Rejection of a request for contact rights vis-à-vis former spouse’s child: violation of the applicant’s right to respect for her private and family life
JUDGMENT
Callamand v. France 07.04.2022 (app. no. 2338/20)
SUMMARY
The case concerned the rejection of the applicant’s request for contact rights with her former
spouse’s child, who had been conceived by medically assisted procreation.
Having noted the existence of genuine personal links between the applicant and the child, which
were protected by Article 8 of the Convention, the Court observed that the applicant had not sought
the establishment of kinship or shared parental authority, but merely the possibility of continuing,
occasionally, to see a child in respect of whom she had acted as a joint parent for more than two
years since his birth.
The Court emphasised, firstly, that it was difficult to see, from the reasoning set out by the Bordeaux
Court of Appeal, which had seen no need to conduct a psychological assessment of the child, why it
had departed from the assessment of the Bordeaux tribunal de grande instance and the public
prosecutor’s office regarding the acceptance of the applicant’s request. It noted, secondly, that the
reasons given in the appeal court judgment did not show that a fair balance had been struck
between the applicant’s interest in protecting her private and family life and the child’s best
interests. It therefore found a violation of Article 8 of the Convention.
As regards the applicant’s complaint concerning discrimination on grounds of sexual orientation, the
Court, having noted that that complaint had not been raised before the domestic courts, concluded
that the domestic remedies had not been exhausted as required.
PROVISIONS
Article 4
Article 14
PRINCIPAL FACTS
The applicant, Virginie Callamand, is a French national who was born in 1966.
Child A. was born on 17 January 2014 by impregnation in Spain with gametes from a third party; his
biological mother, S.E., and Ms Callamand had been living together as a couple.
Ms Callamand and S.E. were married on 4 July 2015. They separated in May 2016, and their divorce
was made final in February 2019.
On 20 February 2017, on an application from Ms Callamand, the Family Judge of the Bordeaux
tribunal de grande instance granted her contact rights under an immediately enforceable judgment.
S.E. appealed against the latter. Before the Court of Appeal the public prosecutor argued that the 20
February 2017 judgment should be upheld in as much as it had granted contact rights to the
applicant.
On 3 April 2018 the Bordeaux Court of Appeal set aside the judgment of 20 February 2017.
Ms Callamand appealed on points of law. The Court of Cassation dismissed the appeal on points of
law on 26 June 2019.
THE DECISION OF THE COURT…
Article 8
The Court had often pointed out that where obligations were concerned, the States Parties had to
strike a fair balance between the competing interests of the individual and of society as a whole. The
present case involved the applicant’s right to respect for her family life, but also the principle of the
best interests of the child and his rights under Article 8, as well as S.E.’s rights under the latter
provision as the biological mother. The question was whether, in view of the wide discretion
(“margin of appreciation”) available to it, the respondent State had struck a fair balance between
those interests, it being understood that the child’s best interests should take precedence.
The Court noted that the decision given by the Bordeaux Court of Appeal in its judgment of 3 April
2018 was largely based on the consideration that the “family life” concept had not fully applied to
the relationship between the applicant and the child. Indeed, the Court of Appeal had concluded
that the applicant had not demonstrated that she would be at ease with the child; that her wish for
the child had been subsidiary to that of her partner; and that she had only helped bring him up until
he had been two years old and had not attempted to forge durable legal links by becoming closely
involved in the adoption project.
The Court considered, on the contrary, that the applicant and the child had had genuine personal
links which were protected by Article 8 of the Convention.
The Court had difficulty discerning how and why the arguments set out by the Court of Appeal and
the fact that S.E. had formed her parental project before starting to live with the applicant as a
couple had been decisive in assessing the applicant’s request, which had not concerned the
establishment of kinship or obtaining shared parental authority. The applicant had merely sought
the possibility of continuing, occasionally, to see a child in respect of whom she had acted as a joint
parent for more than two years since his birth.
The Court noted that the domestic courts had diverged on the requisite response to the applicant’s
request. The Family Judge of the Bordeaux tribunal de grande instance had granted contact rights to
the applicant. Furthermore, before the Court of Appeal the public prosecutor had requested the
upholding of that decision, proposing reducing the rights in question given the lack of kinship
between the applicant and the child.
Nor could the Court easily discern, from the reasoning set out by the Bordeaux Court of Appeal,
which had seen no need to conduct a psychological assessment of the child, why it had departed
from the assessment of the Bordeaux tribunal de grande instance and the public prosecutor’s office.
Thus, owing to the narrowness of the review conducted in the framework of the appeal on points of
law, the reasoning of the Bordeaux Court of Appeal’s judgment of 3 April 2018, did not demonstrate
that a fair balance had been struck between the applicant’s interest in protecting her private and
family life, on the one hand, and the best interests of child A., on the other.
There had therefore been a violation of Article 8 of the Convention.
Article 14
Alleged discrimination as regards establishing a family relationship
The applicant pointed out that the only possible way for her to establish a family relationship
between herself and child A. had been adoption, whereas if she had been a man living with A.’s
mother as a couple she could not only have opted for adoption but also have relied on possession
d’état (de facto enjoyment of parental status), or availed herself of the presumption of paternity.
She considered her case involved discrimination on grounds of sexual orientation.
In the present case it was sufficient for the Court to point out that even though the applicant had
submitted her complaint to the Court of Cassation, that superior court had deemed it inadmissible
on the grounds of novelty. Since the facts on which the complaint was based had not been
submitted to the Court of Appeal, it had been impossible for the Court of Cassation to examine it.
Consequently, the complaint had not been raised before the domestic courts under the conditions
prescribed by domestic law, and the obligation to exhaust domestic remedies had therefore not
been honoured.
Alleged discrimination regarding the conditions for granting contact rights
The applicant submitted that Article 371-4 of the Civil Code, concerning third persons, made contact
rights subject to certain conditions, and that in the case of third persons who were
“intended parents” the additional condition was set out in case-law of a “joint parental project”. In
the applicant’s view there had been a difference in the treatment of the intended, same-sex,
parents, and heterosexual grandparents or step-parents, and thus the distinction had been drawn on
grounds of sex. She claimed that if she had been a man the lack of a “joint parental project” would
not have been used against her to dismiss her request for contact rights because the existence of
such a joint project would have been presumed for a man and a woman.
The Court noted that the reason why, in her supplementary memorial before the Court of Cassation,
the applicant had mentioned discrimination on grounds of her sexual orientation in breach of
Articles 14 and 8 taken together was that she had wished specifically to criticise the fact that the
only option available for the female partner of a child’s mother in order to establish kinship with the
child in question was adoption, whereas heterosexual couples had other options. Clearly, therefore,
she had not presented the Court of Cassation with the complaint of discrimination in the conditions
for granting contacting rights and that she had therefore failed to exhaust domestic remedies in that
regard.
