Grand Chamber find Austrian same sex adoption discrimination

27 February 2013 by

gay-rights-rally-in-Los-A-001X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – Read judgment

The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.

The narrowness of the majority might have had something to do with the fact that the father of the Child had been a party to the case in the domestic courts and opposed the adoption (although the fact that the child of the lesbian couple in Gas and Dubois v France had been conceived through anonymous donor insemination had not helped that case). In the event, the Grand Chamber decision was based on the fact that the Austrian Supreme Court had referred to the “legal impossibility” of the proposed same sex adoption in this case.

The Court was at pains to stress that the way Austrian law discriminated between same sex and different sex couples was what determined the case. It found that treating people differently because one couple lived together (even as a same sex couple) and another was married was permissible as that was not comparing relevant situations. Similarly it reasserted the decision in Gas and Dubois v France (commented upon here) where it was found permissible to refuse an Adoption Simple to a same sex couple in a PAC and their child in circumstances where French law would only permitted this in case of a married couple.

This case was more like in E B v France where the Court found a violation of Article 14 in conjunction with Article 8 in a case where a single adoption order to a woman in a same sex relationship had been refused because of the lack of a “paternal referent” in the household.


There may be an argument to say that the Court was not breaking new ground here but the Grand Chamber went out of its way to reaffirm the Judgment in Schalk & Kopf v. Austria (2010) that same-sex couples enjoy “family life” under Article 8 of the Convention.

Dr Paul Johnson notes the reiteration by the Court of the wide margin of appreciation which the Court grants to contracting states to reserve marriage to heterosexual couples. Doubtless this has pragmatic aspects in circumstances in which only a limited number of states allow same sex couples to marry.

However, the Judgment did appear to conclude that Russia was in a group of countries that allows second-parent adoption for unmarried different-sex couples but not for unmarried same-sex couples.  Given the reaction of the Russian government to Alexeyev v. Russia (2010) (about the banning of the Moscow lesbian and gay pride parade banned), it is likely to provide quite enough controversy once its implications sink in.

By comparison, this case has only limited salience in England and Wales because, by way of the Adoption and Children Act 2002 (but only implemented in 2006), adoption is permitted by unmarried couples whether same sex or heterosexual.

However, ignoring Human Rights Judgments is not the exclusive reserve of Russia. The reason this case has generated headlines in Northern Ireland is because the Executive there have acted as if the Judgment of the House of Lords in Re P [2008] UKHL 38  never happened.

In a Judgment of conspicuous clarity, Mr Justice Treacy in An Application By The Northern Ireland Human Rights Commission For Judicial Review [Compatibility of the Adoption Order (NI) 1987 with the ECHR] [2012] NIQB 77 declared that the relevant Orders that govern Adoption in the province do not (or shall not) prevent couples who are not married, or in a Civil Partnership, from applying to adopt a child and stated, “All individuals and couples, regardless of marriage status or sexual orientation are eligible to be considered as an adoptive parent.” His Judgment was firmly based on concern for the best interests of the children waiting to be adopted. The Northern Ireland Executive announced their intention to appeal the very next day and Jim Allister MLA said,

Once more, we see the human rights mantra being exploited to further divorce the law from the moral expectations and norms of the society it exists to serve

It is against that background that the Attorney General of Northern Ireland submitted third party comments to the ECHR considering X v Austria.

It remains to be seen whether or not the Judgment of the European Court will provide much comfort to either party against a background in which the domestic Courts dealing with problems raised in Scottish and Northern Irish adoption law have hitherto tended to adopt much more expansive visions of the effects of Article 8 and 14.

The NI AG was not alone in submitting third party arguments in Strasbourg. Six non-governmental organizations instructed Professor Rob Wintemute of King’s College London to submit comments on their behalf. There is an argument that if an Act of Parliament can be said to have three parents (adopted or natural) then Rob Wintemute could be said to be a father of the Civil Partnership Act 2004 in the UK (the other father being Anthony Lester QC, Lord Lester of Herne Hill with the mother being Angela Mason) and the practitioner text on the Act is dedicated to them.

He is fast heading for national treasure status (although the Daily Mail might think otherwise). Maybe he should head to Belfast next.

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