CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGE BERRO-LEFÈVRE

(Translation)

I joined Judge Costa in his concurring opinion as I agree with him that the only ground on which “discrimination could be established would be that of unequal treatment between two prospective adoptive parents, irrespective of their gender, on the basis that one was the spouse of the biological and legal parent, and the other was not”.

I am of the view that, contrary to what is asserted in paragraph 68 of the judgment, for the purposes of second-parent adoption the applicants’ legal situation is comparable to that of a married couple.

The reason why I ultimately voted in favour of finding no violation of Article 14 of the Convention taken in conjunction with Article 8 is that, all things duly considered, it does not seem obvious to me that this difference in treatment was contrary to the Convention.

Although the applicants’ daughter can have a legal tie only with her mother, this does not appear to me to stand in the way of a normal family life. In the event of a crisis, the delegation of parental responsibility remains an option “where the circumstances so require” and especially “in the interests of the child”, for instance should the child’s mother be seriously ill or injured. Moreover, in the event of the second applicant’s death, Ms Gas can become A.’s guardian. Lastly, a simple-adoption order remains an option when the child reaches full age.

Above all, and more fundamentally, I consider that this case concerns issues on which no consensus exists in Europe. According to the third-party interveners (reputable non-governmental organisations specialising in this field), in February 2011 second-parent adoption was permitted in ten of the forty-seven States Parties to the Convention (that is to say, in 21.3% of them: Belgium, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Spain, Sweden and the United Kingdom).

However, the obstacle represented by Article 365 of the Civil Code remains a source of problems, even if it is not contrary per se to the Convention. The child’s legal status remains precarious, a situation which cannot be in his or her best interests, as Judge Villiger demonstrates with particular eloquence in his dissenting opinion.

For that reason I echo Judge Costa’s call for the legislature to revisit the issue by bringing the wording of Article 365 of the Civil Code into line with contemporary social reality.

DISSENTING OPINION OF JUDGE VILLIGER

I respectfully disagree with the judgment which concludes that there has been no breach of Article 14 of the Convention taken together with Article 8.

My disagreement lies with the perspective of the judgment which, I believe, fails to identify the relevant elements in order to assess whether the measure was justified. The judgment focuses on the adults, but not on the children who are nevertheless an integral part of the applicants’ complaints. In my view, the issue should rather be whether the difference of treatment complained of is justified from the vantage point of the child’s best interests.

It transpires from the judgment – and was also stated by the applicants at the hearing – that they do not wish to marry. Rather, they wish to adopt the child in order to obtain joint parental custody. This is not possible according to Article 365 of the French Civil Code, as the applicants represent a same-sex couple. On the other hand, such adoption and the ensuing joint parental custody would be possible if the two adults (one of whom had a child) were a heterosexual couple and if they married.

My difficulty lies with the position of the children of the various relationships. The children of a heterosexual couple benefit from joint parental responsibility if the couple are married; those of a same-sex couple do not as, in such a case, adoption is excluded. Therein lies for me the difference of treatment viewed under Article 14 of the Convention taken together with Article 8.

At this stage I should add that I firmly believe – and I consider this undisputed – that joint parental custody is in the best interests of the child.

I fail to see a justification for this difference in treatment. In my view, all children should be afforded the same treatment. I cannot see why some children, but not others, should be deprived of their best interests, namely of joint parental custody.

Indeed, how can children help it that they were born of a parent of a same-sex couple rather than of a parent of a heterosexual couple? Why should the child have to suffer for the parents’ situation? As the Court stated in Mazurek v. France (no. 34406/97, § 54, ECHR 2000 ‑ II) in the circumstances of the disadvantaged position of an adulterine child:

“... an adulterine child cannot be blamed for circumstances for which he or she is not responsible. It is an inescapable finding that the applicant was penalised, on account of his status as an adulterine child ...”

To say in the present case that this difference in treatment is justified because marriage has a special status in society does not convince me. This reasoning may, possibly, be justified from the point of view of the legislator when distinguishing marriage from other forms of cohabitation. But this is not the only point of view as regards the balancing of the various interests under Articles 14 and 8. Indeed, society’s views should not even be the main point of view (let alone, as in the present judgment, the only one). Should not the child’s position be equally important? Justifying discrimination in respect of the children by pointing out that marriage enjoys a particular status for those adults who engage in it is, in my view, insufficient in this balancing exercise.

In fact, the root of the problem in this case appears to be the blanket prohibition of joint parental custody over children of the parent of a same-sex couple. This is the problem of every legislation which regulates all situations according to one standard. Such blanket legislation immediately raises issues as to proportionality – particularly, I would emphasise, in cases concerning family life.

The Court has been confronted with such blanket legislation under Article 8 of the Convention, inter alia , in cases against Germany, where in certain circumstances all fathers were hindered by law from having contact with their children. In those cases, the Court found that the legislation was so rigid that it became disproportionate; rather, it was considered that in the best interests of the child a judge should decide individually in each case (see Zaunegger v. Germany , no. 22028/04, 3 December 2009, and Anayo v. Germany , no. 20578/07, 21 December 2010).

In the present case, I am not at all proposing that the applicants should be authorised to marry which anyway they do not wish to do. I am also not pronouncing myself on issues of adoption. I am merely highlighting discrimination in respect of the best interests of the child.

In the best interests of a child born into a same-sex relationship, I believe that the child should be offered the best possible treatment afforded to other children born into a heterosexual relationship – which is joint parental custody.

For these reasons, I conclude that in this case only insufficient justification has been made out as regards the discrimination in issue. There has, therefore, been a violation of Article 14 of the Convention taken together with Article 8.