European Court of Human Rights: Refusal to grant a
delegation of parental responsibility within a female couple did not disclose
any difference of treatment on grounds of sexual orientation.
In its decision (1.3.2018) in the case of Bonnaud and Lecoq
v. France (application no. 6190/11) the European Court of Human Rights has
unanimously declared the application inadmissible. The case concerned an
application for joint exercise of parental responsibility made by two women
living as a couple, each of whom had a child born as a result of medically
assisted reproduction. 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.
Principal facts: 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.
Complaints, procedure and composition of the Court
The application was lodged with the European Court of Human
Rights on 8 January 2011. Relying on Article 14 (prohibition of discrimination)
read in conjunction with Article 8 (right to respect for private and family
life) of the European Convention on Human Rights, the applicants alleged that
the refusal of their application to delegate parental responsibility to each
other had been based on their sexual orientation and entailed an unjustified
and disproportionate difference in treatment.
Decision of the Court
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.
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