Fretté v France
| Judgment Date | 26 February 2002 |
Human rights – Private and family life – Discrimination – Adoption – Single homosexual man applying for prior authorisation to adopt – Sexual orientation a decisive factor in refusal – Whether refusal amounting to discriminatory treatment – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 8, 14.
The applicant, a single homosexual man, applied for prior authorisation to adopt a child. That application was rejected on the basis, inter alia, that he had no stable maternal role model to offer, and that he had difficulties in envisaging the practical consequences of upheaval occasioned by the arrival of a child. French domestic law permitted single persons to apply for adoption provided that they had been granted prior authorisation. The applicant subsequently asked the authorities to reconsider the decision. They refused, indicating, inter alia, that the applicant’s choice of lifestyle did not appear to be such as to provide sufficient guarantees that he would be able to provide a suitable home for a child. The applicant sought judicial review of that decision. That application was allowed by the Administrative Court. The authorities appealed to the Conseil d’Etat, which allowed the appeal. Before the Conseil d’Etat, the applicant acted in person. At that time, the relevant law required that lawyers appearing before the Conseil d’Etat be notified of hearing dates at least four days prior to the hearing. That requirement did not extend to litigants in person, and because of the operation of that rule, the applicant alleged that he had been unable to attend the hearing before the court. The applicant complained to the European Court of Human Rights, invoking art 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in conjunction with art 8, that the refusal to authorise him had been based implicitly and exclusively on his homosexuality, and discriminated against him on the grounds of his sexual orientation.
Held – The Convention did not guarantee the right to adopt as such, and the right to respect for family life presupposed the existence of a family, and did not safeguard the mere desire to found a family. However, the scope of the margin of appreciation enjoyed by contracting states in assessing whether and to what extent differences in otherwise similar situations justified a different treatment in law varied according to the circumstances, the subject matter and its background. One of the relevant factors might be the existence or non-existence of a common ground between the laws of the contracting states. In the instant case, there was
no such common ground on the matter in question. Although most contracting states did not expressly prohibit homosexuals from adopting where single persons might adopt, it was not possible to find in the legal and social orders of the states uniform principles on such social issues, on which opinions within a democratic society might reasonably differ widely. When asked to rule on such a matter, it was natural for the national authorities, who considered the interests of the society as a whole, to enjoy a wide margin of appreciation. The national authorities, by reason of their direct and continuous contact with the vital forces of their countries, were in principle better placed than an international court to evaluate local needs and conditions. Therefore, in the instant case, a wide margin of appreciation was left to the national authorities. Furthermore, the scientific community was divided over the possible consequences of a child being adopted by one or more homosexual parents. In addition, there were wide differences in national and international opinion. In those circumstances, the national authorities in the instant case were entitled to consider that the right to adopt on which the applicant relied was limited by the interests of the children eligible for adoption, notwithstanding the applicants legitimate aspirations and without questioning his personal choices. Therefore, if account was taken of the broad margin of appreciation left to states in this matter and the need to protect children’s best interests to achieve the desired balance, the refusal to authorise adoption did not infringe the principle of proportionality. It followed that the difference in treatment the applicant complained of was not discriminatory for the purposes of art 14 taken in conjunction with art 8.
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ApplicationThe applicant, Philippe Fretté, a French national, by a case originated in an application (no 36515/97) against the French Republic lodged with the European Commission of Human Rights (the commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged a violation of art 8 of the Convention, contending that the French authorities’ decision to dismiss his application for authorisation to adopt amounted to an arbitrary interference in his private and family life, and that it was based exclusively on an unfavourable prejudice about his sexual orientation. The facts are set out in the judgment of the court.
Procedure1. The case originated in an application (no 36515/97) against the French Republic lodged with the European Commission of Human Rights (the commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by a French national, Philippe Fretté (the applicant), on 1 April 1997.
2. The applicant alleged, in particular, that the decision to dismiss his application for authorisation to adopt amounted to an arbitrary interference in his private and family life, within the meaning of art 8 of the Convention, and that it
was based exclusively on an unfavourable prejudice about his sexual orientation. He also complained that he had not been summoned to the hearing held by the Conseil d’État and that he had not been given access to the government commissioner’s submissions prior to the hearing, in breach of arts 6 and 13 of the Convention.
3. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).
4. The application was allocated to the third section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
5. By a decision of 12 June 2001 the court declared the application partly admissible.
6. A hearing took place in public in the Human Rights Building, Strasbourg, on 2 October 2001 (r 59(2)). There appeared before the court: (a) for the government, Mr R Abraham, director of legal affairs, Ministry of Foreign Affairs, agent, Mrs L Delahaye, magistrat, on secondment to the Human Rights Section of the Legal Affairs Department, Ministry of Foreign Affairs, Mrs H Davo, magistrat, on secondment to the Human Rights Office, European and International Affairs Department, Ministry of Justice, Mrs A Oui, principal administrative assistant, Social Services Department, Ministry of Employment and Solidarity, counsel; (b) for the applicant Mr R Wintemute, reader in law, King’s College, University of London, approved representative, Mr T Formond, doctoral student in private law, University of Paris X (Nanterre), Mr S Garneri, doctoral student in public law, University of Aix-en-Provence, advisers.
7. The court heard addresses by Mr...
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