A lesbian denied the right to adopt a child has been awarded over €24,000 in damages and costs against France by the European Court of Human Rights. The court ruled that it is discriminatory to deny eligibility to adopt to a person on the grounds he or she is gay or lesbian.
In a 10 to seven majority, the court found that France had violated Articles 14 and 8 of the European Convention on Human Rights, prohibiting discrimination and guaranteeing respect for family life.
The woman is a 45-year-old nursery teacher who has been living with another woman, a psychologist, since 1990. In 1998 she applied to adopt a child, and in her application she mentioned her sexuality and relationship.
The local social services directorate recommended her application be rejected. She appealed, and was again refused.
The two reasons given for the decisions were the lack of "identificational points of reference" for the child due to the absence of a paternal image, and the ambiguous nature of her partner's commitment to the proposed adoption.
She appealed this decision to Besançon administrative court, which upheld her appeal and set the previous rulings aside. However, the local Department appealed against this, and the appeal court held that the refusal was not based on the woman's lifestyle, but on the best interests of the child, and therefore was not discriminatory.
She appealed this to the Conseil d'Etat on points of law, but it upheld the court of appeal decision. She then appealed to the Strasbourg court.
This court pointed out that French law explicitly permits single people to adopt, and has a procedure for them doing so. While the court considered it generally valid to seek a "paternal referent" for a child being adopted, it questioned the emphasis placed on this by the authorities in the context of an adoption by a single person. It also pointed out that the French Civil Code made no reference to the need for a "referent" of the opposite sex.
"The Court considered that the reference to the applicant's homosexuality had been, if not explicit, at least implicit; the influence of her homosexuality on the assessment of her application had not only been established, but had also been a decisive factor leading to the decision to refuse her authorisation to adopt."
If noted that the domestic authorities had found the applicant "had undoubted personal qualities and an aptitude for bringing up children."
Looking at the two reasons given for refusing to allow her to adopt, it found that the "paternal referent" ground was not soundly based and contaminated the whole decision. Therefore discrimination had taken place, and her rights to a private and family life had been violated.
The decision has been welcomed by the gay and lesbian network, GLEN, which pointed out that Ireland does not exclude people from eligibility to adopt on the ground of their sexuality.
"The key issue in Ireland is that same-sex couples are excluded from consideration as joint adoptive parents," said Eoin Collins, director of policy change in GLEN.