Last week, the Grand Chamber of the ECHR handed down its judgment in X and Ors v Austria 19010/07 – HEJUD  ECHR 148. The case concerned the complaint by two women in a stable same-sex partnership about the Austrian courts’ refusal to grant one of them the right to adopt the son of the other without severing the mother’s legal ties with the child (“second-parent adoption”). The Grand Chamber held as follows:
- by ten votes to seven, that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights on account of the difference in treatment of the applicants in comparison with unmarried opposite-sex couples in which one partner wished to adopt the other partner’s child; and,
- unanimously, that 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 of which one spouse wished to adopt the other spouse’s child.
The Court found that the difference in treatment between the applicants and an unmarried opposite-sex couple in which one partner sought to adopt the other’s child had been based on their sexual orientation. No convincing reasons had been advanced as to why that difference in treatment was necessary for the protection either of the family or of the interests of the child.
The applicants were two Austrian women (“the first and third applicants”) and the son of one of them (“the second applicant”), who was eleven or twelve at the time the application was made to the ECHR. The boy was born out of wedlock in 1995 and his mother had sole custody of him. The three applicants live together and the two women jointly care for the “child” (though the mills of Strasbourg grind very slowly and by now he must be seventeen or eighteen).
The women concluded an adoption agreement in February 2005 when the boy was nine or ten. Though the boy’s father had not consented to the adoption without giving any reasons they nevertheless submitted the agreement to the district court for approval. They were aware that the Civil Code could be understood to exclude the adoption of the child of one partner in a same-sex relationship by the other without severing the relationship with the natural parent; and they therefore sought a declaration from the Constitutional Court that those provisions were unconstitutional because they discriminated in relation to sexual orientation. The Constitutional Court rejected the request as inadmissible in June 2005 pending the decision of the district court. In October 2005 the district court refused to approve the adoption agreement, holding that the Civil Code envisaged that in the case of an adoption by one person the adopting parent replaced the natural parent of the same sex, thus severing the child’s relationship with him or her. In the instant case, the boy’s adoption by the first applicant would sever his relationship with his mother, not his relationship with his father.
The applicants appealed to the regional court without success, the court observing that though Austrian law did not give a precise definition of the term “parents” it plainly envisaged an opposite-sex couple. In September 2006 the Supreme Court dismissed a further appeal on points of law, holding that the adoption of a child by the female partner of his or her mother was legally impossible and that the relevant provisions of the Civil Code were not unconstitutional.
The complaint before the Grand Chamber
The Austrian Civil Code does not contain provisions specific to adoption by same-sex couples; however, though the law allows adoption whether or not the adoptive parent is married to the biological parent, the domestic courts interpret the Code to exclude the adoption of one partner’s biological child by the other partner in a same-sex relationship.
The applicants complained under Article 14 taken in conjunction with Article 8 that they were being discriminated against on account of the first and third applicants’ sexual orientation. They argued that there was no reasonable and objective justification for allowing one partner in an opposite-sex relationship to adopt the other’s child while prohibiting the adoption by one partner of the other’s child in the case of same-sex couples, contrary to Articles 14 and 8 ECHR. The Grand Chamber confirmed that the relationship between the three applicants amounted to “family life” within the meaning of Article 8 and that Article 14 taken in conjunction with Article 8 applied in their case – nor did the Austrian Government disputed that.
Comparison with a married couple in which one spouse wished to adopt the other spouse’s child
In a recent judgment in another same-sex adoption case, Gas and Dubois v France  ECHR 108 the Court had concluded by six votes to one (Villiger J dissenting) that the position of a same-sex couple in which one partner wished to adopt the other’s child without severing the mother’s legal ties with the child was not on all fours with the situation of a married couple and there had therefore been no violation of Article 14 taken in conjunction with Article 8. The Grand Chamber saw no reason to deviate from the finding in that case and reiterated that the Convention did not impose an obligation on states parties to grant same-sex couples access to marriage: moreover, where a state chose to provide same-sex couples with an alternative means of legal recognition it enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified a difference of treatment (Schalk and Kopf v Austria  ECHR followed). Furthermore, marriage conferred a special status on those who entered into it, giving rise to social, personal and legal consequences.
The Court concluded that the first and third applicants in the present case were not in a relevantly similar situation to a married couple. Consequently, there had been no violation of Article 14 taken in conjunction with Article 8 when their situation was compared with that of a married couple in which one spouse wished to adopt the other’s child. Furthermore, their submission was to be distinguished from the judgment in Gas and Dubois because, under French law, second-parent adoption was not open to any unmarried couple, whether homosexual or heterosexual.
Comparison with an unmarried opposite-sex couple in which one partner wished to adopt the other’s child
The Court took the view that the applicants were in a similar position to an unmarried opposite-sex couple in which one partner wished to adopt the other’s child. The Austrian Government had not argued that a special legal status existed which would distinguish an unmarried heterosexual couple from a same-sex couple, conceding that same-sex couples could in principle be as suitable or unsuitable for adoption, including second-parent adoption, as opposite-sex couples.
Austrian law allowed second-parent adoption by an unmarried opposite-sex couple. Nothing in the relevant regulations of the Civil Code prevented one partner in an unmarried heterosexual partnership from adopting the other’s child without severing the ties between that partner and the child. In contrast, for a same-sex couple second-parent adoption was legally impossible because the Civil Code provided that any person who adopted a child replaced that child’s biological parent of the same sex. Because the first applicant was a woman, adoption could not, therefore, create a parent-child relationship between her and the child in addition to the relationship with his mother.
The Grand Chamber was not convinced by the Austrian Government’s argument that the applicants’ adoption request had been refused on grounds unrelated to their sexual orientation and that the applicants were therefore asking the Court to carry out an abstract review of the law. The Austrian courts had made it clear that an adoption in the terms desired by the applicants was impossible under the Civil Code and both the district court and the regional court had essentially relied on the legal impossibility of the adoption requested by the applicants. They had not carried out any investigation into the circumstances of the case. In particular, they had not dealt with the question of whether there were any reasons for overriding the refusal of the child’s father to consent to the adoption. By contrast, the regional court had underlined that in Austrian family law “parents” meant two persons of opposite sexes and had stressed the interest of the child in maintaining contact with two opposite-sex parents. The Supreme Court had confirmed that second-parent adoption as requested by the applicants was legally impossible.
Given that the Austrian courts had concentrated on the legal impossibility of the adoption, they had been prevented from examining in any meaningful manner whether or not the adoption would be in the child’s interests whereas, in the case of an unmarried different-sex couple they would have been required to examine whether or not an adoption served the child’s interests. The applicants had therefore been directly affected by the legal situation of which they complained; moreover, since they enjoyed “family life” together for the purpose of Article 8, all three could claim to be victims of the alleged violation.
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, 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.
There was no obligation under Article 8 to extend the right to second-parent adoption to unmarried couples. Given that Austrian law did allow second-parent adoption in unmarried different-sex couples, however, the Court had to examine whether refusing that right to (unmarried) same-sex couples served a legitimate aim and was proportionate to that aim.
The Austrian courts and the Government had argued that Austrian adoption law was aimed at recreating the circumstances of a biological family. The Court accepted that the protection of the family in the traditional sense was in principle a legitimate reason which could justify a difference in treatment, as was the protection of the child’s interests. However, according to the Court’s case-law, in cases where a difference in treatment based on sex or sexual orientation was concerned, the Government had to show that that difference was necessary to achieve the aim.
The Austrian Government had not provided any evidence to show that it would be detrimental to a child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes. Moreover, under Austrian law, adoption by one person was possible whatever that person’s sexuality; and if he or she had a registered partner that person had to consent to the adoption. The legislature had therefore accepted that a child might grow up in a family based on a same-sex couple and that it was not detrimental to the child. Furthermore, there was force in the applicants’ argument that de facto families based on same-sex couples existed but denied legal recognition and protection. There was therefore considerable doubt about the proportionality of the absolute prohibition on second-parent adoption for same-sex couples.
The Government had argued that in the absence of consensus among states parties regarding second-parent adoption by same-sex couples it had a wide margin of appreciation as to how it regulated the issue. However, the view of the Grand Chamber was that the issue before it 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 second-parent adoption.
Only ten Council of Europe member states which allowed second-parent adoption in unmarried couples could be used as a basis for comparison: of those, six treated heterosexual couples and same-sex couples in the same manner while four adopted the same position as Austria. The narrowness of that sample did not allow conclusions as to a possible consensus among states parties; however, the Grand Chamber concluded that the Austrian Government had failed to justify the proposition that excluding second-parent adoption for a same-sex couple while allowing it for an unmarried opposite-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 and there had been a violation of Article 14 taken in conjunction with Article 8.
The potential significance of the case is underlined by the fact that the Court accepted several third-party interventions – including one from the British Association for Adoption and Fostering. What the judgment does not do is to overwrite the judgment in Gas and Dubois; moreover, the Grand Chamber underlined that the Convention does not oblige states parties to extend the right of second-parent adoption to unmarried couples. However, it stresses the need for equality of treatment, irrespective of sexuality, once a member state has established the right of second-parent adoption.
It will be interesting to see what impact the judgment has on further consideration of the charitable status of St Margaret’s Children and Family Care Society, the Glasgow-based Roman Catholic adoption agency about which we have posted previously.
There is a longer analysis of the judgment at the International Justice Resource Center.