Human rights and the adoption process in French family law

8th March 2015 by

 

For many same-sex couples the thought of adopting a baby or child may seem a daunting prospect and some may not even be aware that they are eligible to apply. In English and Welsh family law couples can apply to adopt a child irrespective of their sexual orientation and whether or not they have entered into a civil partnership.

All adoption applicants will be considered based on their personal circumstances and it is far more important that the prospective adopters are in a loving, stable family unit, than whether they are heterosexual, married or civil-partnered.

Healys’ family lawyers in Brighton and London can help you understand and undertake the various legal aspects of adopting a child, whether you wish to make a UK application or an inter-country adoption.

However, not all EU countries have the same rules on adoption as in the UK.

Same-sex couple denied adoption in France

In 2012 a ruling in the European Court of Human Rights (ECtHR) highlighted a difference in French family law in regard to the adoption rights of same-sex couples.

Under French adoption rules same-sex couples cannot adopt children and a same-sex partner of a parent cannot become the adoptive parent of their partner’s child.

As a result, two women brought a claim in the ECtHR alleging that French law breached Article 8 of the European Convention on Human Rights giving them the right to a family life.

The women had been living together since 1989, and having decided they wanted to bring up a child underwent an assisted conception using sperm from an anonymous donor. A baby was born in 2000. In 2002, the couple entered into a civil-partnership (PACS) and the birth mother’s partner applied for a French “simple adoption” with the mother’s consent. A simple adoption in France is similar to a Special Guardianship arrangement in the UK, whereby the birth family retain legal parentage of the child but give up their parental responsibility for the child to the adoptive parent.

The French courts turned down the women’s application on the basis that it diminished the rights of the birth mother.

In the ECtHR, judges dismissed the allegation that the couple had been discriminated against because of their sexual orientation and determined that the refusal had been as a result of their non-married status. The court ruled that since a heterosexual couple who had chosen to enter into a PACS would also not be allowed to adopt a child under French family law, the women’s application had been treated similarly and fairly.

However, the judges offered a dissenting judgement expressing concern that the French court’s decision had been focused on the interests of the adults and not on that of the child. It was noted that a fundamental problem of French domestic law existed in that it failed to offer same-sex couples a system whereby they were able to share parental responsibility for a child they had chosen to raise together.

The judges considered that to maintain the best interests of a child, the same framework of security should be in place regardless of whether he or she was being adopted by a heterosexual or homosexual couple, namely that shared parental responsibility was ultimately preferential.

Healys family lawyers in Brighton and London for adoption legal advice

For expert legal advice regarding any aspect of adoption, or the making or defending of applications for parental responsibility orders, child residence orders, child contact orders and other court orders for the financial support of children, Healys experienced family law team can help.

If you wish to speak to a family lawyer in Brighton please call 01273 685 888 or email an enquiry to family@healys.com

Alternatively, our solicitors in London can be reached on 020 7822 4000. We look forward to helping you.