Refusal to recognize a legal relationship between a child and the biological partner’s ex-partner. No violation of private and family life
JUDGMENT
C.E. and others v. France 24.03.2022 (app. no. 29775/18 and 29693/19)
SUMMARY
The judgment concerned two cases. The first related to the rejection by the domestic courts of an
application for full adoption of a child, made by the biological mother’s former partner. The second
concerned the domestic courts’ refusal to issue a document attesting to a matter of common
knowledge (acte de notoriété) recognising a legal parent-child relationship, on the basis of de facto
enjoyment of status (possession d’état), between a child and the biological mother’s former partner.
The Court emphasised that legal instruments existed in France enabling the relationship between a
child and an adult to be recognised. For instance, the child’s biological mother could obtain a court
order for the exercise of joint parental responsibility with her partner or former partner. While an
order of that kind did not entail the establishment of a legal parent-child relationship, it nevertheless
allowed the partner or former partner to exercise certain rights and duties associated with
parenthood, and thus amounted to a degree of legal recognition of the relationship.
Relying on Article 8 (right to respect for private and family life), C.E., M.B. and C.B (application no.
29775/18) alleged a breach of their right to respect for their private and family life on account of the
domestic courts’ rejection of the application for full adoption of M.B. by C.E., the former partner of
C.B., the child’s biological mother. In application no. 29693/19 A.E., the former partner of T.G.’s
biological mother, and T.G., alleged a breach of the latter’s right to respect for private and family life
on account of the domestic courts’ refusal to issue a document attesting to a matter of common
knowledge, establishing a legal relationship between A.E. and T.G. on the basis of their de facto
enjoyment of status.
In both cases the applicants alleged a breach of Article 8 of the Convention. The Court examined
their complaints from the standpoint of the States Parties’ positive obligation to secure to persons
within their jurisdiction effective respect for their private and family life.
Firstly, after noting that since the couples’ separation, and despite the lack of legal recognition of a
relationship between the children and the adults in question, the persons concerned had led a
family life comparable to that led by most families after the parents separated, the Court held that
there had been no violation of the right to respect for family life.
Secondly, the Court sought to ascertain whether the refusals complained of had breached the right
to respect for private life.
In doing so the Court stressed at the outset that in situations such as those of the applicants there
existed legal instruments in France enabling the relationship between a child and an adult to be
recognised. For instance, the child’s biological mother could obtain a court order for the exercise of
joint parental responsibility with her partner or former partner, as had been done in one of the two
cases.
The Court went on to observe that since the publication of the Bioethics Act of 2 August 2021,
female couples who had had recourse to assisted reproductive technology (ART) abroad before
4 August 2021 had the possibility, for a three-year period, of jointly recognising a child who had a
legal parent-child relationship only with the woman who had given birth; this had the effect of
establishing a legal relationship with the other woman. That option had been available in one of the two cases. In the other case, as the child was now an adult, her adoption by the applicant in question was possible under the simple adoption procedure.
The Court therefore concluded that, in view of the margin of appreciation left to the respondent
State – which, admittedly, was narrower where children’s best interests were in issue – the
respondent State had not failed in its obligation to guarantee effective respect for the private life of
the persons concerned.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants C.E., C.B. and M.B. (application no. 29775/18) were born in 1974, 1967 and 2002
respectively. The applicants A.E. and T.G. (application no. 29693/19) were born in 1980 and 2008
respectively. All the applicants live in France.
Application no. 29775/18 – On 13 January 2002, at a time when C.E. and C.B. were living as a couple,
C.B. gave birth to M.B., who had been conceived “with the help of a friend and donor in France”. C.B.
was the child’s sole legal parent.
The couple separated in 2006. Under an agreement reached with C.B., C.E. has contact rights with
the child which entail having her to stay every other weekend and for half the school holidays. C.E.
makes monthly maintenance payments to her former partner for the child’s everyday care and
education.
On 29 July 2015 C.E. lodged an application with the Aix-en-Provence tribunal de grande instance for
a full adoption order in respect of M.B. while retaining the legal relationship between the child and
C.B.
The court rejected the application and the judgment was upheld by the Court of Appeal.
In a judgment of 28 February 2018 the Court of Cassation (First Civil Division) dismissed an appeal on
points of law by C.E.
In the meantime, on 31 May 2016, C.E. and C.B. had applied to the Narbonne tribunal d’instance
requesting a document attesting to a matter of common knowledge (acte de notoriété) establishing
a legal relationship between C.E. and the child. The request was eventually refused.
Application no. 29693/19 – In May 2006 A.E. entered into a civil partnership with K.G. After having
recourse to assisted reproductive technology (ART) abroad, K.G. gave birth to T.G. on 13 November
2008.
On 16 March 2010 K.G. applied to the family-affairs judge of the Rennes tribunal de grande instance
seeking to exercise joint parental responsibility with A.E. The judge allowed the application. In
October 2011 A.E. gave birth to a child. In May 2012 the same court ordered the delegation of
parental responsibility on a shared basis between A.E. and K.G.
Following the couple’s separation the civil partnership was dissolved in October 2014.
On 2 July 2018 A.E. applied to the Rennes tribunal de grande instance requesting it to issue a
document attesting to a matter of common knowledge on the basis of de facto enjoyment of status
(possession d’état) with regard to T.G. K.G. intervened in the proceedings as a third party. The vicepresident
of the court refused the request.
THE DECISION OF THE COURT…
Article 8
The Court noted that at the time the applicants applied to the domestic courts and the Court, French
law had made no provision for a legal parent-child relationship to be established between a minor
and the former partner of his or her biological mother without the latter’s legal status being
affected. The persons concerned could not have recourse to full or simple adoption or to recognition
through the effect of their de facto enjoyment of status.
The Court observed that in neither case did the Article 8 complaints allege a breach of the
applicants’ right to respect for private and family life by a public authority. Instead, they related to
alleged shortcomings in the French legislation which, according to the applicants, had resulted in the
refusal of their requests and undermined effective respect for their private and family life.
The Court therefore decided to examine the applicants’ complaints from the standpoint of the States
Parties’ positive obligation to secure to persons within their jurisdiction effective respect for their
private and family life, rather than from the perspective of their obligation not to interfere with the
exercise of that right.
Right to respect for family life
The Court noted that in both cases, since the couples’ separation, and despite the lack of legal
recognition of a relationship between the children and their biological mother’s former partner, the
persons concerned had led a family life comparable to that led by most families after the parents
separated. C.E., in agreement with her former partner, exercised contact rights in respect of M.B.,
while K.G. and A.E. had opted for joint parental responsibility, in accordance with domestic law, and
had put shared custody arrangements in place. Furthermore, none of the applicants in either case
had reported any difficulties in conducting their family life, and the respondent State had put in
place legal instruments enabling the ties between them to be protected. If any problems were to
arise they could be remedied on the basis of Article 371-4 of the Civil Code, according to which “if
the interests of the child so require, the family-affairs judge shall determine the arrangements
concerning the relationship between the child and any other person, whether a relative or not, who
has resided in a stable manner with the child and one of the parents, has participated in the child’s
education, everyday care or accommodation and has developed lasting emotional bonds with him or her.” Thus, there was no basis for finding, in the circumstances of the two cases, that the respondent State had failed in its obligation to guarantee the applicants effective respect for their family life.
There had therefore been no violation of the right to respect for family life protected by Article 8.
Right to respect for private life
As noted by the Court, at the time the applicants applied to the domestic courts and the Court,
French law had made no provision for a legal parent-child relationship to be established between a
minor and the former partner of his or her biological mother without the latter’s legal status being
affected. It therefore had to be determined whether, in the circumstances of the present cases, the
absence of such a possibility amounted to a failure by the respondent State to comply with its
positive obligation to guarantee the applicants effective respect for their private life.
The Court pointed out that it had held, in the context of children born abroad through a gestational
surrogacy arrangement and conceived using the gametes of the intended father, that the child’s
right to respect for private life required that domestic law provide a possibility of recognition of a
legal parent-child relationship not only between the child and the intended father, where he was the
biological father, but also, where the legal parent-child relationship with the intended father was
recognised in domestic law, with the intended mother, designated in the birth certificate legally
established abroad as the “legal mother”, even where she was not genetically related to the child.
The Court noted that the situations of M.B. and T.G. could not be compared to such a situation as
they had not been conceived through gestational surrogacy and their ties to C.E. and A.E.
respectively had not previously been established under the law of another country.
Firstly, the Court stressed that in situations such as those of the applicants there existed legal
instruments in France enabling the relationship between a child and an adult to be recognised. For
instance, the child’s biological mother could obtain a court order for the exercise of joint parental
responsibility with her partner or former partner. While an order of that kind did not entail the
establishment of a legal parent-child relationship, it nevertheless allowed the partner or former
partner to exercise certain rights and duties associated with parenthood and thus amounted to a
degree of legal recognition of the relationship.
T.G.’s biological mother had availed herself of that option, and she and A.E. had exercised joint
parental responsibility with regard to T.G. since 2010. While this was not the case with C.E. and C.B.,
the Court observed that it had not been alleged that C.B. would object to sharing parental
responsibility in this way; moreover, this would be inconsistent with the fact that she had agreed to
M.B.’s adoption by C.E.
Furthermore, where former partners separated or failed to reach agreement, the Court noted that
the family-affairs judge could, if the child’s interests so required, determine the arrangements
concerning his or her relationship with the mother’s former partner (Article 371-4 of the Civil Code).
This too could be likened to some extent to legal recognition of their relationship.
Secondly, the Court noted that since publication of the Bioethics Act of 2 August 2021, female
couples who had had recourse to ART abroad before 4 August 2021 had the possibility, for a threeyear
period, of jointly recognising a child who had a legal parent-child relationship only with the
woman who had given birth; this had the effect of establishing a legal relationship with the other
woman. The couple’s possible subsequent separation had no implications for the application of this
mechanism. It was sufficient for them to have been a couple (married, in a civil partnership or
cohabiting) at the time of the ART treatment, and for them to have had recourse to that treatment
with the intention of having a child together.
The Court noted that this option was available in the case of T.G., since he had been born as a result
of an ART procedure carried out abroad in the context of the plans of K.G., his biological mother, and
A.E. to start a family together. Since 4 August 2021 (when T.G. had been approximately 12 years and eight months old), a procedure had existed in French law enabling a legal parent-child relationship to be established between T.G. and A.E. That option had thus become available just three years after
their application for a document attesting to a matter of common knowledge.
Thirdly, although under the legislation this procedure was not available in the case of M.B., who had
not been conceived through an ART procedure performed abroad, it appeared that her adoption by
C.E. under the simple adoption procedure would now be possible. While that had not been the case
when she had still been a minor, as her biological mother would have been deprived of parental
responsibility as a result, M.B. had reached the age of majority on 13 January 2020 and a procedure
had therefore been available since then enabling a legal mother-child relationship to be established
with C.E.
In view of the margin of appreciation left to the respondent State – which, admittedly, was narrower
where children’s best interests were in issue – the Court considered, with regard to M.B. and T.G.’s
right to respect for private life, that a fair balance had been struck between the interests at stake.
This applied with even greater force to the right to respect for private life of C.E. and C.B. on the one
hand and A.E. and K.G. on the other, as their interests in that regard coincided with those of M.B.
and T.G. respectively.
The Court therefore held that the respondent State had not failed in its obligation to guarantee
effective respect for the applicants’ private life. It followed that there had been no violation of
Article 8.
