Adoption
II. RELEVANT LAW AND PRACTICE A. Domestic law 1. The Civil Code 26. The relevant provisions at the material time read as follows: Article 343 “Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age.” Article 343-1 “Adoption may also be applied for by any person over twenty-eight years of age. ... ” 2. Family and Social Welfare Code 27. The relevant provisions at the material time read as follows: Article 63 “Children in State care may be adopted either by persons given custody of them by the children's welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt ... Authorisation shall be granted for five years, within nine months of the date of the application, by the president of the council for the relevant département after obtaining the opinion of a [ n ] [ adoption] board. ... ” Article 100-3 “Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.” 3. Decree no. 98-771 of 1 September 1998 establishing the arrangements for appraising applications for authorisation to adopt a child in State care 28. The relevant provisions of the decree read as follows: Article 1 “Any person wishing to obtain the authorisation contemplated in the first paragraph of Article 63 and Article 100-3 of the Family and Social Welfare Code must submit an application to that end to the president of the council for the département in which he or she resides. ... ” Article 4 “Before issuing authorisation, the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family, child-rearing and psychological perspective. To that end, he shall order inquiries into the applicant's circumstances ...” Article 5 “The decision shall be taken by the president of the council for the relevant département after consulting the adoption board ... ” B. International Conventions 1. Draft European Convention on the Adoption of Children 29. The relevant provisions of this draft Convention, currently being examined by the Committee of Ministers of the Council of Europe, provide inter alia : Article 7 – Conditions for adoption “ 1. The law shall permit a child to be adopted : a. by two persons of different sex THE LAW 32. The applicant alleged that she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life. She relied on Article 14 of the Convention taken in conjunction with Article 8, which provide: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” I. ADMISSIBILITY A. Submissions of the parties 1. The applicant 33. The applicant stated that adoption by homosexuals fell into three quite distinct categories: first, it might be a single person seeking to adopt, in a member State where adoptions by single persons were permitted (even if only in exceptional cases), in which case any partner the individual might have acquired no parental rights as a result of the adoption (individual adoption); second, one member of a same-sex couple might seek to adopt the child of the other partner, so that both partners had parental rights vis-à-vis the child (second-parent adoption); and lastly, both members of a same-sex couple might seek to jointly adopt a child with no prior connection with either partner, so that both partners simultaneously acquired parental rights vis-à-vis the child (joint adoption). The applicant specified that she had applied for individual adoption, which was the simpler legal option. 34. She emphasised the importance of obtaining authorisation, which, in practice, was a precondition to adopting a child in France or abroad. 35. The applicant did not claim a right to adopt, which – irrespective of the sexual orientation of the prospective adoptive parent – did not exist. Nevertheless, she submitted that Article 14 of the Convention, taken in conjunction with Article 8, was applicable to the present case. Firstly, the opportunity or chance of applying for authorisation to adopt fell within the scope of Article 8 both with regard to “private life”, since it concerned the creation of a new relationship with another individual, and “family life”, since it was an attempt to create a family life with the child being adopted. Secondly, a person's sexual orientation, which was an aspect of their private life, accordingly fell within the scope of Article 8. 2. The Government 36. The Government contended that the application was inadmissible, since the complaint fell outside the scope of Article 8 of the Convention and, consequently, Article 14. In any event, unlike in Fretté ( Fretté v. France, no. 36515/97, § 32, ECHR 2002-I), the refusal to grant the applicant authorisation had not been based, explicitly or implicitly, on the applicant's sexual orientation and could not therefore amount to direct or indirect discrimination based on her homosexuality. 37. The reason for refusing her authorisation had been dictated by the child's interests alone and had been based on two grounds : lack of a paternal referent and the ambivalence of the applicant's partner's commitment to her adoption plans. 38. With regard to the ground relating to the lack of a paternal referent, the Government pointed out that many professionals considered that a model of sexual difference was an important factor in a child's identity and that it was perfectly understandable that the social services of the département should take into consideration the lack of markers enabling a child to construct its identity with reference to a father figure. The Government cited decisions of the domestic courts in support of their submission that any other heterosexual applicant whose immediate circle of family and friends did not include a member of the opposite sex would have had their application refused on the same ground. 39. With regard to the second ground, the Government submitted at the outset that the lack of commitment on the part of the applicant's partner was an established fact. They observed that the applicant continued to deny the relevance of that fact, whereas it was legitimate to have regard to the conduct of a prospective adoptive parent's immediate circle of family and friends where there were plans to bring a child into the home. Irrespective of the lack of legal consequences for the partner, the arrival of a child would change the balance of the receiving couple and the family unit, and an adopted child's previous history made it all the more important to assess the solidity of a couple's approach to any plan to adopt. Accordingly, apart from the fact that R. would necessarily be involved in the child's day-to-day life, her lack of involvement could be seen as a source of insecurity for the child with the risk that the child would find him or herself in competition with the applicant's partner for the applicant's time and affection. In the Government's submission, that ground could not be said to be related to the applicant's sexual orientation, as had been borne out by the decisions of the domestic courts. 40. In the Government's view, the circumstances of the present case were therefore very different from those in Fretté ( cited above) and it should be stressed that the French administrative and judicial authorities had given paramount consideration to what lay in the best interests of the child. Those best interests were central to many international instruments binding on France. There was no right to a child or right to authorisation to adopt one. Adoption was a measure taken for the child's protection and was designed to provide him or her with a family. The sole purpose of the authorisation procedure was to identify from among the many candidates the person who could provide a child with the most suitable home in every respect. Accordingly, the desire for a child must not prevail over the child's interests. B. The Court's assessment 41. The Court, noting that the applicant based her application on Article 14 of the Convention, taken in conjunction with Article 8, reiterates at the outset that the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt ( see Fretté, cited above, § 32). Neither party contests this. The right to respect for “ family life ” does not safeguard the mere desire to found a family; it presupposes the existence of a family ( see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father ( see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI ), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 62), or the relationship that arises from a lawful and genuine adoption ( see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004 ‑ V ). 42. Nor is a right to adopt provided for by domestic law or by other international instruments, such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption ( see paragraphs 30-31 above ). 43. The Court has, however, previously held that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings ( see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, p. 33, § 29), the right to “personal development” ( see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I ) or the right to self-determination as such ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). It encompasses elements such as names ( see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280 ‑ B, p. 28, § 24), gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 ( see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, § 36), and the right to respect for both the decisions to have and not to have a child ( see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ ... ). 44. Admittedly, in the instant case the proceedings in question do not concern the adoption of a child as such, but an application for authorisation to adopt one subsequently. The case therefore raises the issue of the procedure for obtaining authorisation to adopt rather than adoption itself. However, the parties do not contest that in practice authorisation is a precondition for adopting a child. 45. It should also be noted that the applicant claimed to have been discriminated against on the ground of her avowed homosexuality, resulting in a violation of the provisions of Article 14 of the Convention taken in conjunction with Article 8. 46. The Court is not therefore called upon to rule whether the right to adopt, having regard, inter alia, to developments in the legislation in Europe and the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions ( see, in particular, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53), should or should not fall within the ambit of Article 8 of the Convention taken alone. 47. With regard to Article 14, which was relied on in the present case, the Court reiterates that it only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003 ‑ VIII ). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention ( see Abdulaziz, Cabales and Balkandali, cited above, § 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 22; and Petrovic v. Austria, judgment of 27 March 1998, Reports 1998 ‑ II, § 22 ). 48. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court's case-law ( see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 9; Abdulaziz, Cabales and Balkandali, cited above, § 78; and Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ). 49. The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – cannot, in the application of that right, take discriminatory measures within the meaning of Article 14 ( see, mutatis mutandis, Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ”, cited above ). 50. The applicant alleged in the present case that, in the exercise of her right under the domestic law, she had been discriminated against on the ground of her sexual orientation. The latter is a concept covered by Article 14 of the Convention ( see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 28, ECHR 1999-IX). The Court also points out that in Fretté v. France (cited above), to which the parties expressly referred, the applicant complained that the rejection of his application for authorisation to adopt had implicitly been based on his sexual orientation alone. The Chamber found that Article 14 of the Convention, taken in conjunction with Article 8, was applicable (§ 33). 51. Accordingly, Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case. 52. In these circumstances the Court dismisses the preliminary objection raised by the Government. It also considers, in the light of the parties'submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 A. Submissions of the parties 1. The applicant 53. The applicant maintained that the refusal to grant her authorisation to adopt had been based on her “lifestyle”, in other words her homosexuality. In her view, this was borne out by the screening of her application and the opinion of the adoption board. She also considered that part of the judgment delivered by the Conseil d'Etat was worded in the same terms as the judgment it had rendered in the case of Fretté ( cited above), which showed that the Conseil d'Etat adopted a discriminatory approach. 54. With regard to the ground based on the lack of a paternal referent, she argued that while the majority of French psychoanalysts believed that a child needed a dual maternal and paternal referent, there was no empirical evidence for that belief and it had been disputed by many other psychotherapists. Moreover, in the present case the Government had not shown that there was a practice of excluding single heterosexual women who did not have a male partner. 55. With regard to the argument based on her partner's place in and attitude to her plan to adopt, she submitted that this was an illegal ground. Articles 343 and 343-1 of the Civil Code provided that adoption was open to married couples and single persons : partners were not concerned and therefore were not a party to the adoption procedure and did not enjoy any legal status once the child was adopted. Having regard to her right to be subject to foreseeable legal rules, the applicant contested a ground for rejection of her application that had no basis in the law itself. 56. The applicant went on to stress that she and her partner had had a meeting with the social worker and that subsequently the various officials involved in screening her application for authorisation had never asked to meet her partner. Either steps should have been taken to interview her partner or this ground had in reality served as a pretext for rejecting her application purely on the basis of her sexual orientation. 57. The applicant submitted that the difference in treatment in her regard had no objective and reasonable justification. Particularly serious reasons were required to justify a difference in treatment based on sexual orientation. There were no such reasons in this case. 58. With regard to the division in the scientific community ( Fretté, § 42), particularly serious reasons were required to justify a difference in treatment of homosexuals. The burden of proving the existence of any scientific reasons was on the Government and if they had failed to prove in Fretté and in the instant case that there was a consensus in the scientific community, this was because there was no known study on the subject. 59. The applicant disputed the existence of a “ legitimate aim ”, since children's health was not really in issue here and the Conseil d'Etat had not explained how the child's health might be endangered. She submitted that three risks were generally cited: first, the alleged risk of the child becoming homosexual, which, quite apart from the fact that there was nothing reprehensible about such an eventuality and that the majority of homosexuals had heterosexual parents, was a prejudiced notion; second, the child would be exposed to the risk of developing psychological problems : that risk had never been proved and recent studies showed that being raised in a homoparental family did not incline a child to any particular disorder; besides that, the right to adopt that existed in some democratic countries showed that there was no risk for the child. Lastly, there was no long-term risk that the child would suffer on account of homophobic prejudices towards the parents and, in any event, the prejudices of a sexual majority did not constitute sufficient justification. 60. She pointed out that the practice of the administrative authorities was inconsistent in France, where some départements no longer refused authorisation to single homosexual applicants. She also stated that the civil courts allowed adoption by the same-sex partner of the original parent. 61. In Europe there had been a steady development in the law in favour of adoption by same-sex couples since the Fretté judgment ( cited above, § 41), with some ten European States now allowing it. The applicant also referred to a European consensus in favour of making adoption available to single homosexuals in the member States of the Council of Europe which allowed adoption by single persons, other than France where decisions were made on a discretionary basis. The same was true outside Europe, where case-law developments were in favour of adoption by homosexuals in the interests of children needing a home. 62. Lastly, she disputed the argument that there were insufficient numbers of children eligible for adoption, to which the Court had adhered in its Fretté judgment ( cited above, § 42), arguing that the number of children eligible for adoption in the world exceeded the number of prospective adoptive parents and that making a legal possibility available should not depend on the effective possibility of exercising the right in question. 2. The Government 63. The Government pointed out that authorisation to adopt was issued at local, and not national, level by the president of the council for the département after obtaining the opinion of an adoption board at département level. In 2005, 13, 563 new applications had been submitted, of which barely 8 % had not been satisfied ( with less than 6 % being refused authorisation and about 2 % being withdrawn ). In 2006, 4, 000 visas had been granted by the relevant authorities to foreign children being adopted. The Government stated that they could not provide statistics relating to the applicants'sexual orientation, as the collecting or processing of personal data about a person's sexual life were prohibited under French law. 64. The Government submitted, in the alternative, that the present case did not lend itself to a review of the Court's finding in the Fretté judgment ( cited above ), since present -day conditions had not sufficiently changed to justify a departure from precedent. 65. With regard to national laws, there was no European consensus on the subject, with only nine out of forty-six member States of the Council of Europe moving towards adoption by same-sex couples and some countries not making adoption available to single persons or allowing it under more restrictive conditions than in France. Moreover, that observation should be qualified by the nature of those laws and the conditions that had to be met. 66. The conclusion reached by the Court in Fretté regarding the division in the scientific community was still valid today. The Government justified the failure to produce studies identifying problems or differences in development in children raised by homosexual couples by the fact that the number of children raised by a homosexual couple was unknown and the estimated numbers highly variable. Besides the complexity of the various situations that might be encountered, the existing studies were insufficiently thorough because they were based on insufficiently large samples, failed to take a detached approach and did not indicate the profile of the single-parent families in question. Child psychiatrists or psychoanalysts defended different theories, with a majority arguing that a dual maternal and paternal referent in the home was necessary. 67. There were also still wide differences in public opinion since Fretté ( cited above, § 42). 68. The Government confirmed that the reality was that applications to adopt outnumbered children eligible for adoption. Their international obligations, particularly Articles 5 and 15 of the Hague Convention, compelled them to select candidates on the basis of those best able to provide the child with a suitable home. 69. Lastly, they pointed out that none of the sixty or so countries from which French people adopted children authorised adoption by same-sex couples. International adoption might therefore remain a purely theoretical possibility for homosexuals despite the fact that their domestic law allowed it. B. The Court's assessment 70. The Court observes that in Fretté v. France (cited above) the Chamber held that the decisions to reject the application for authorisation had pursued a legitimate aim, namely to protect the health and rights of children who could be involved in an adoption procedure (§ 38). With regard to whether a difference in treatment was justified, and after observing that there was no common ground between the legal systems of the Contracting States, the Chamber found it quite natural that the national authorities should enjoy a wide margin of appreciation when they were asked to make rulings on such matters, subject to review by the Court (§ 41). Having regard to the competing interests of the applicant and children who were eligible for adoption, and to the paramountcy of the latter's best interests, it noted that the scientific community was divided over the possible consequences of a child being adopted by one or more homosexual parents, that there were wide differences in national and international opinion and that there were not enough children to adopt to satisfy demand (§ 42). Taking account of the broad margin of appreciation to be left to States in this area and to the need to protect children's best interests to achieve the desired balance, the Chamber considered that the refusal to authorise adoption had not infringed the principle of proportionality and that, accordingly, the justification given by the Government appeared objective and reasonable and the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention (§§ 42 and 43). 71. The Court notes that the present case also concerns the question of how an application for authorisation to adopt submitted by a homosexual single person is dealt with; it nonetheless differs in a number of respects from the above-cited case of Fretté. The Court notes in particular that whilst the ground relating to the lack of a referent of the other sex features in both cases, the domestic administrative authorities did not – expressly at least – refer to E.B.'s “choice of lifestyle” (see Fretté, cited above, § 32). Furthermore, they also mentioned the applicant's qualities and her child-raising and emotional capacities, unlike in Fretté where the applicant was deemed to have had difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child (§§ 28 and 29). Moreover, in the instant case the domestic authorities had regard to the attitude of E.B.'s partner, with whom she had stated that she was in a stable and permanent relationship, which was a factor that had not featured in the application lodged by Mr Fretté. 72. In the instant case the Court notes that the domestic administrative authorities, and then the courts that heard the applicant's appeal, based their decision to reject her application for authorisation to adopt on two main grounds. 73. With regard to the ground relied on by the domestic authorities relating to the lack of a paternal or maternal referent in the household of a person seeking authorisation to adopt, the Court considers that this does not necessarily raise a problem in itself. However, in the circumstances of the present case it is permissible to question the merits of such a ground, the ultimate effect of which is to require the applicant to establish the presence of a referent of the other sex among her immediate circle of family and friends, thereby running the risk of rendering ineffective the right of single persons to apply for authorisation. The point is germane here because the case does not concern an application for authorisation to adopt by a – married or unmarried – couple, but by a single person. In the Court's view, that ground might therefore have led to an arbitrary refusal and have served as a pretext for rejecting the applicant's application on grounds of her homosexuality. 74. The Court observes, moreover, that the Government, on whom the burden of proof lay ( see, mutatis mutandis, Karner v. Austria, no. 40016/98, §§ 41-42, ECHR 2003 ‑ IX ), were unable to produce statistical information on the frequency of reliance on that ground according to the – declared or known – sexual orientation of the persons applying for adoption, which alone could provide an accurate picture of administrative practice and establish the absence of discrimination when relying on that ground. 75. In the Court's view, the second ground relied on by the domestic authorities, based on the attitude of the applicant's partner, calls for a different approach. Although she was the long-standing and declared partner of the applicant, Ms R. did not feel committed by her partner's application to adopt. The authorities, which constantly remarked on this point – expressly and giving reasons – concluded that the applicant did not provide the requisite safeguards for adopting a child. 76. It should first be noted that, contrary to the applicant's submissions, the question of the attitude of her partner, with whom she stated that she was in a stable and lasting relationship, is not without interest or relevance in assessing her application. It is legitimate for the authorities to ensure that all safeguards are in place before a child is taken into a family. Accordingly, where a male or female applicant, although unmarried, has already set up home with a partner, that partner's attitude and the role he or she will necessarily play on a daily basis in the life of the child joining the home set-up require a full examination in the child's best interests. It would moreover be surprising, to say the least, if the relevant authorities, having been informed of the existence of a de facto couple, pretended to be unaware of that fact when assessing the conditions in which the child would be given a home and his future life in that new home. The legal status of a person seeking to adopt is not incompatible with an examination of his or her actual situation and the subsequent finding of not one but two adults in the household. 77. The Court notes, moreover, that Article 4 of the Decree of 1 September 1 998 ( see paragraph 28 above ) requires the president of the council for the relevant département to satisfy himself that the conditions in which the applicant is proposing to provide the child with a home meet the needs of an adopted child from a family, child-rearing and psychological perspective. The importance of these safeguards – of which the authorities must be satisfied before authorising a person to adopt a child – can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of 20 November 1989, the Hague Convention of 29 May 1993 or the draft European Convention on the Adoption of Children ( see paragraphs 29-31 above ). 78. In the Court's view, there is no evidence to establish that the ground in question was based on the applicant's sexual orientation. On the contrary, the Court considers that this ground, which has nothing to do with any consideration relating to the applicant's sexual orientation, is based on a simple analysis of the known, de facto situation and its consequences for the adoption of a child. 79. The applicant cannot therefore be deemed to have been discriminated against on the ground of her sexual orientation in that regard. 80. Nonetheless, these two main grounds form part of an overall assessment of the applicant's situation. For this reason, the Court considers that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision. 81. With regard to the administrative phase, the Court observes that the president of the council for the département did not base his decision exclusively or principally on the second ground, but on “ all ” the factors involved – that is, both grounds – without it being possible to consider that one of them was predominant or that one of them alone was sufficient to make him decide to refuse authorisation ( see paragraph 17 above ). 82. With regard to the judicial phase, the Nancy Administrative Court of Appeal noted that the decision was based on two grounds: the lack of a paternal referent and the ambivalence of the commitment of each member of the household. It added that the documents in the file and the conclusions reached after examining the application showed that the applicant's lifestyle did not provide the requisite safeguards for adopting a child, but disputed that the president of the council for the département had refused authorisation on the basis of a position of principle regarding her choice of lifestyle, namely, her homosexuality ( see paragraph 24 above ). 83. Subsequently, the Conseil d'Etat held that the two grounds on which the applicant had been refused authorisation to adopt were in keeping with the statutory provisions. It also held that the reference to the applicant's “lifestyle” could be explained by the documents in the file submitted to the tribunals of fact, which showed that the applicant was, at the time of her application, in a stable homosexual relationship, but that this could not be construed as a decision based on a position of principle regarding her sexual orientation or as any form of discrimination ( see paragraph 25 above ). 84. The Court therefore notes that the administrative courts went to some lengths to rule that although regard had been had to the applicant's sexual orientation, it had not been the basis for the decision in question and had not been considered from a hostile position of principle. 85. However, in the Court's opinion the fact that the applicant's homosexuality featured to such an extent in the reasoning of the domestic authorities is significant. Besides their considerations regarding the applicant's “ lifestyle ”, they above all confirmed the decision of the president of the council for the département. The Court points out that the latter reached his decision in the light of the opinion given by the adoption board whose various members had expressed themselves individually in writing, mainly recommending, with reasons in support of that recommendation, that the application be refused on the basis of the two grounds in question. It observes that the manner in which certain opinions were expressed was indeed revealing in that the applicant's homosexuality was a determining factor. In particular, the Court notes that in his opinion of 12 October 1998 the psychologist from the children's welfare service recommended that authorisation be refused, referring to, among other things, an “ unusual attitude [ on the part of the applicant ] to men in that men are rejected” (see paragraph 13 above). 86. The Court observes that at times it was her status as a single person that was relied on as a ground for refusing the applicant authorisation to adopt, whereas the law makes express provision for the right of single persons to apply for authorisation to adopt. This emerges particularly clearly from the conclusions of the psychologist who, in her report on her interviews with the applicant of 28 August 1998, stated, with express reference to the applicant's case and not as a general comment – since she prefaces her remark with the statement that she is not seeking to diminish the applicant's confidence in herself or to insinuate that she would be harmful to a child – that “all the studies on parenthood show that a child needs both its parents ” ( see paragraph 11 above ). On 28 October 1998 the adoption board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation on the ground that an adoptive family had to be composed “ of a mixed couple ( man and woman ) ” ( see paragraph 14 above ). 87. Regarding the systematic reference to the lack of a “ paternal referent ”, the Court disputes not the desirability of addressing the issue, but the importance attached to it by the domestic authorities in the context of adoption by a single person. The fact that it is legitimate for this factor to be taken into account should not lead the Court to overlook the excessive reference to it in the circumstances of the present case. 88. Thus, notwithstanding the precautions taken by the Nancy Administrative Court of Appeal, and subsequently by the Conseil d'Etat, to justify taking account of the applicant's “ lifestyle ”, the inescapable conclusion is that her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings. 89. The Court considers that the reference to the applicant's homosexuality was, if not explicit, at least implicit. The influence of the applicant's avowed homosexuality on the assessment of her application has been established and, having regard to the foregoing, was a decisive factor leading to the decision to refuse her authorisation to adopt (see, mutatis mutandis, Salgueiro da Silva Mouta, cited above, § 35). 90. The applicant therefore suffered a difference in treatment. Regard must be had to the aim behind that difference in treatment and, if the aim was legitimate, to whether the different treatment was justified. 91. The Court reiterates that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised” ( see, inter alia, Karlheinz Schmidt, cited above, § 24; Petrovic, cited above, § 30; and Salgueiro da Silva Mouta, cited above, § 29). Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8 ( see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 89, ECHR 1999-VI; Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32 377/96, § 82, 27 September 1999; and S.L. v. Austria, no. 45330/99, § 37, ECHR 2003-I). 92. In that connection the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions ( see, inter alia, Johnston and Others, cited above, § 53). 93. In the Court's opinion, if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant's sexual orientation this would amount to discrimination under the Convention ( see Salgueiro da Silva Mouta, cited above, § 36). 94. The Court points out that French law allows single persons to adopt a child (see paragraph 49 above), thereby opening up the possibility of adoption by a single homosexual, which is not disputed. Against the background of the domestic legal provisions, it considers that the reasons put forward by the Government cannot be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorisation. 95. The Court notes, lastly, that the relevant provisions of the Civil Code are silent as to the necessity of a referent of the other sex, which would not, in any event, be dependent on the sexual orientation of the adoptive single parent. In this case, moreover, the applicant presented, in the terms of the judgment of the Conseil d'Etat, “ undoubted personal qualities and an aptitude for bringing up children ”, which were assuredly in the child's best interests, a key notion in the relevant international instruments ( see paragraphs 29-31 above ). 96. Having regard to the foregoing, the Court cannot but observe that, in rejecting the applicant's application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention (see Salgueiro da Silva Mouta, cited above, § 36). 97. Consequently, having regard to its finding under paragraph 80 above, the Court considers that the decision in question is incompatible with the provisions of Article 14 taken in conjunction with Article 8. 98. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 8. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 100. The applicant pointed out that without the authorisation that had been refused her it was legally impossible for her to adopt a foreign child and impossible in practice to adopt a French child. Even if the French Government were to act quickly to grant her the authorisation, the discriminatory delay would be between nine and ten years. That delay was not only a psychological strain and unfair, but also reduced her chances of being able to adopt a child one day on account of her age; she had been thirty-seven when she had applied to adopt and so would be forty-six at the youngest if authorisation were finally to be granted. Accordingly, she sought an award of 50,000 euros (EUR) for non-pecuniary damage. 101. The Government did not express a view. 102. The Court considers that the applicant must have suffered non-pecuniary damage that is not sufficiently compensated by a mere finding of a violation of Article 1 4 of the Convention taken together with Article 8. Accordingly, ruling on an equitable basis, the Court awards her EUR 10,000 in just satisfaction. B. Costs and expenses 103. The applicant claimed EUR 14,352 in lawyer's fees from the introduction of the application until the outcome of the proceedings (sixty hours'work at the rate of EUR 200 per hour exclusive of VAT ), plus EUR 176 for the travel and accommodation expenses incurred in attending the hearing before the Grand Chamber, that is, a total of EUR 14 ,528. 104. The Government did not express a view. 105. The Court observes that, according to the criteria laid down in its case-law, it must ascertain whether the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum (see, among other authorities, Öztürk v. Turkey [GC], no. 22479/93, § 83, ECHR 1999-VI). Applying the said criteria to the present case, the Court considers reasonable the amount of EUR 1 4, 528 claimed by the applicant and awards her that sum. C. Default interest 106. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. The domestic administrative authorities, and then the courts that heard the applicant’s appeal, had based their decision to reject her application for authorisation to adopt largely on the lack of a paternal referent in the applicant’s household, which was not a legitimate reason. Also, the influence of her homosexuality on the assessment of her application had not only been established but had also been a decisive factor.