The facts of the case and domestic proceedings
The applicants were two Austrian women (“the first and the third applicant”), both born in 1967, who live in a stable homosexual relationship, and the son of one of them (“the second applicant”). The latter was born out of wedlock in 1995 and his mother (the third applicant) has sole custody of him. The applicants live together and the two women jointly care for the child.
The first applicant wanted to adopt the child. The only way to do so under domestic law would have been for the legal relationship between the child and his biological mother to have been dissolved because the law envisaged that the biological mother would be replaced by the partner making the application. The applicants on the other hand, wanted to share parental responsibility. That being the case, they anticipated that Austrian law could be interpreted to to exclude the adoption of the child of one partner of a homosexual couple by the other partner. A pre-emptive application to the Austrian Constitutional Court to declare the relevant domestic law unconstitutional was ruled in admissible until the District Court had ruled on the adoption application. The District Court duly rejected the application.
All domestic appeals failed. The domestic view was that the term "parents" envisaged parties of opposite genders. This was despite the fact that there was no definition of the term in national law. The situtation was further complicated by the fact that the biological father declined to consent to the applicants' application. Accordingly, the national appeal court took the view that where both parents were still actively involved in a child's life, there was no need for an adoptive parent. The Supreme Court went further in dismissing the appeal, holding that the national law was constitutional and that adoption by the same-sex partner of one of the parents was legally impossible.
The Convention complaint
The applicants complained that they were discriminated against on the grounds of the sexual orientation, of the would-be parents, contrary to Article 8(1) in conjunction with Article 14 of the Convention. Whilst domestic law would have allowed the adoption of a child by the partner of one its parent's where heterosexual couples were concerned but not in the case of homosexual couples. Moreover, they argued that there was no objective, reasonable justification for such a disparity.
The Court's judgment
It was accepted that the applicants had an established "family life" and that accordingly, Articles 8 and 14 were in play. The only issue was whether or not the applicants had in fact, been discriminated against, contrary to the Convention. The Court considered two different comparators for the purposes of the discrimination argument: (i) Comparison with a married couple in which one spouse wished to adopt the other spouse’s child and (ii) Comparison with an unmarried different-sex couple in which one partner wished to adopt the other partner’s child.
(i) Married couples in which one spouse in which one partner wished to adopt the other partner's child
The Court concluded that the first and third applicants in the case of X and Others were not in a relevantly similar situation to a married couple. After all, the first and third applicants were not married. Consequently, there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child.
(ii) unmarried different-sex couple in which one partner wished to adopt the other partner’s child
Given that the legal impossibility of the adoption had consistently been at the centre of the Austrian courts’ considerations, they had been prevented from examining in any meaningful manner whether the adoption would be in the child’s interests. In contrast, in the case of an unmarried different-sex couple they would have been required to examine whether an adoption served the child’s interests.
The difference in treatment between the first and third applicants and an unmarried different-sex couple in which one partner sought to adopt the other partner’s child had been based on their sexual orientation. The case was thus to be distinguished from Gas and Dubois v. France (Application no. 25951/07) delivered in March last year, in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second parent adoption was not open to either of them. Artcle 8 does not require the extension of the right of adoption to unmarried couples. However, where domestic law does extend that right, it will be for the national authorities to show that its denial to same-sex couples pursues a legitimate aim and is proportionate to that aim.
The Court accepted that the government's attempted justification of protecting the family in the traditional sense was, in principle, a legitimate aim but in order to pass muster under the Convention, consistent with the established case law in this area, the difference in treatment had to be shown to be necessary to meet the aim.
Standing against a finding of proportionality, the Court were struck by the fact that legal adoption by one homosexual parter of the other's child was possible provided that one replaced the other. Moreover, it was accepted that sexual orientation was irrelevant to the question of whether or not a person was fit to be a parent. The Court also found force in the fact that defacto families with same-sex parents existed in spite of the fact that they enjoyed no legal recognition or protection.
The Court rejected the government's argument that in the absence of consensus on the issue, member states of the Council of Europe enjoyed a wide discretion on how it legislated on this issue.The issue before the Court was not the general question of same-sex couples’ access to second-parent adoption, but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of this type of adoption.
In sum, the Court found that the Government had failed to give convincing reasons to show that excluding second parent adoption in a same-sex couple, while allowing that possibility in an unmarried different sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore discriminatory. There had accordingly been a violation of Article 14 taken in conjunction with Article 8.
Comment
Against a backdrop of the House of Commons vote in favour of gay marriage and a similar vote in the French National Assembly, this decision could not be more timely. I am surpised that the decision has not been covered more widely here, even though our adoption law already allows for gay adoption. The Court accepted third-party interventions from 10 organisations, including the British Association for Adoption and Fostering (BAAF), demonstrating the significance of the case, even without recent events.
It restates some important principles. There is no requirement under the Convention for adoption rights to be extended to unmarried couples, whether heterosexual or homosexual. However, where those rights are granted by the State, they must be afforded without regard to sexual orientation, unless it can be shown that such differential treatement is justifable - something which must surely now be unthinkable. Moreover, the decision can be read as establishing a general right of same-sex couples generally to be considered equally as prospective adoptive parents on the same terms as heterosexual couples. Given the thousands of children across Convention States awaiting adoption, including the UK, this must be welcome news.
It is interesting to note the references to "traditional family" structures. Judgments such as this make a valuable contribution in breaking down the heteronormative view that such constructs implicitly carry and advance the cause of equalising the rights not only of same sex couples but also their family members.
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