Refusal to grant a delegation of parental custody within a female couple did not disclose any difference of treatment on grounds of sexual orientation
Bonnaud and Lecoq v. France 01.03.2018 (no. 6190/11)
Assisted reproduction and homosexual couples. Annulment of the decision providing joint parental responsibility for the biological children of each of the applicants. No violation of the right to respect for privacy or the prohibition of discrimination.
The applicants, Francine Bonnaud and Patricia Lecoq, are French nationals who were born in 1968 and 1969 and live in Tourcoing. They began living as a couple in 1989 and separated in 2012.
In October 1998, after having recourse to medically assisted reproduction in Belgium, Ms Bonnaud gave birth to a daughter, El. In May 2002 Ms Bonnaud and Ms Lecoq entered into a civil partnership.
In November 2003 Ms Lecoq, who had also made use of medically assisted reproduction in Belgium, gave birth to a son, Es. In June 2006 the applicants applied jointly to the courts seeking to share the exercise of parental responsibility for the children by means of the mutual delegation of responsibility.
In a judgment of 11 December 2007 the family-affairs judge allowed the applicants’ application and ruled that they should exercise joint parental responsibility in respect of the two children, El. and Es.
The public prosecutor appealed against that judgment.
On 11 December 2008 the Court of Appeal overturned the judgment and rejected the applicants’ requests. The court concluded that the applicants had not established why the specific circumstances or the children’s best interests should require each partner to delegate parental responsibility for her own child to the other partner, in order for them to exercise responsibility jointly. An appeal on points of law by the applicants was dismissed by the Court of Cassation on 8 July 2010.
THE DECISION OF THE COURT
Articles 8 and 14
The Court decided to conduct a separate examination of the applicants’ situation before and after their separation in early 2012.
The applicants’ situation before their separation With regard to the period during which they cohabited, the Court considered that Ms Bonnaud and Ms Lecoq’s situation had been comparable to that of a different-sex couple in a blended family in which the parent’s partner lived with and raised a child who was not his or her biological child.
Article 377 § 1 of the Civil Code, which allowed parents to apply to the judge to delegate the exercise of their parental responsibility where the circumstances so required, did not distinguish between parents, nor did it make any distinction on the basis of the sexual orientation of the parent making the request or the person to whom responsibility was to be delegated. A survey of the case-law showed that decisions on the delegation or otherwise of parental responsibility were based on the factual circumstances of each case, and in particular the state of health of the mother or the child, time spent away from home and work-related constraints.
In the instant case the Court considered that the assessment made by the Court of Appeal and upheld by the Court of Cassation, according to which the criteria for mutual delegation of parental responsibility between Ms Bonnaud and Ms Lecoq were not satisfied, did not disclose a difference in treatment based on their sexual orientation. The Court also observed, as noted by the family-affairs judge and the Court of Appeal, that the applicants were perceived by those around them as the parents of the two children and that they had not referred to any specific problems that would have called for the delegation of parental responsibility they had requested.
The Court found no appearance of a violation of Article 8 taken in conjunction with Article 14. This aspect of the complaint was therefore ill-founded and had to be rejected.
The applicants’ situation after their separation Following the couple’s separation in 2012, proceedings for Ms Bonnaud’s child to be adopted by Ms Lecoq were in progress. A fresh application seeking to have parental responsibility for Ms Lecoq’s child delegated to Ms Bonnaud was being compiled, and the Court considered it possible that it might be granted in view of the change in the applicants’ circumstances.
This aspect of the complaint was thus premature and had to be rejected (echrcaselaw.com editing).