Breaking the Adoption Taboo? X. and Others v Austria

I am delighted to welcome Dr. Loveday Hodson as the author of this blog's first guest post. Loveday is an expert in family law and human rights. She has written the first book-length study of the relationship between Non Governmental Organizations and the development of human rights: NGOs and the Struggle for Human Rights in Europe. Many thanks to Loveday for this excellent piece. 

X. and Others v Austria
Loveday Hodson

The Grand Chamber of the European Court of Human Rights has this week issued another important judgment on sexual orientation discrimination in the area of family life, specifically addressing the adoption of a child by a 'second parent' in a same-sex relationship.

The applicants in X and Others v Austria were a child – unnamed in the judgment, so let's name him 'Sam' - and his two lesbian mums. Their straightforward argument was that Austrian law discriminated against their family because while it provided for 'second parent' adoption in the case of unmarried and married opposite-sex couples, it made no such provision for same-sex couples. It perhaps goes without saying that marriage is not extended to same-sex couples in Austria; registered partners, while able to adopt as individuals, are specifically excluded from joint and second-parent adoption. In short, one of Sam's mothers had no possibility of establishing a legally-recognised relationship with him, at least not without severing his ties with his biological mother. For the applicants, this exclusion was a non-sense that belied the reality of their day-to-day family life. Sam - aged about twelve when this application was submitted to the Court - had been cared for by both his mums since he was about five years old. Perhaps understandably, the applicants’ argued was that it was not in Sam’s best interests to have his relationship of care left unrecognised.

Although the applicants presented a compelling case, their arguments took the Court into unchartered territory. While it has long maintained a strong stance towards discrimination on the grounds of sexual orientation, the Court has also referred a number of times to the protection of the ‘traditional family’ as a ‘weighty and legitimate reason which might justify a difference in treatment’. Consequently, the Court’s approach to LGBT families has been somewhat inconsistent and fretful. In E.B. v France, for example, the complaint by a woman in a stable same-sex relationship about a refusal for authorization to adopt a child as a single person (authorization that was in theory open to any unmarried person) was upheld on the basis that it was discriminatory; however, in Gas and Dubois v France the Court held that refusal of authorization for a ‘second-parent’ in a same-sex relationship to adopt her partner’s biological child was not a violation of the Convention as second-parent adoption was not open to any unmarried person under French law. Austrian law was also arguably not incompatible with the loosely-worded European Convention on the Adoption of Children (revised 2008), which merely 'permits' States to extend adoption laws to same-sex couples in registered partnerships and unmarried couples in a stable relationship. At the time the case was before the Grand Chamber, only eleven Council of Europe states had extended second-parent adoption to same-sex couples, with most States reserving it for married couples; conversely, only five Council of Europe States allow unmarried second-parents to adopt but did not extend that provision to unmarried same-sex couples.

The Judgment

1. The Grand Chamber held [by ten votes to seven] that the difference of treatment between unmarried opposite-sex and same-sex couples in respect of second-parent adoption amounted to a violation of the applicants’ right to a family life (Article 8) in conjunction with Article 14. The Court reiterated that the margin of appreciation afforded to States when it comes to issues of discrimination on grounds of sexual orientation is narrow. The Austrian Government had failed to show that a blanket prohibition was necessary for the protection of the traditional family or for the protection of the interests of the child. Indeed, the blanket prohibition meant that the domestic courts did not have the opportunity to consider whether or not such a step would have been in Sam’s best interests. The Court went to great lengths, however, to stress that it was not making a decision on whether adoption would be appropriate in this case.

2. The Court further held unanimously that there was no violation of the Convention where the applications’ situation was compared with a married couple and child. Marriage, the Court held, “confers a special status on those who enter it”. Referring to Schalk and Kopf v Austria, the Court reiterated that the Convention does not impose an obligation on States to extend marriage to same-sex couples. Neither does any alternative form of legal recognition open to same-sex couples have to mirror the rights associated with marriage.


One aspect of this judgment that still has the power to pleasantly surprise is the readiness with which the Austrian Government and Court accepted that the applicants had established a family life for the purpose of Article 8 of the Convention; it is worth recalling this right has been extended to same-sex couples and their children only since June 2010 (Schalk and Kopf). The Court has recognised for the first time – at least implicitly – the potential importance to a child of having his relationship with two same-sex parents legally recognised. The onus was placed firmly on the Austrian Government to demonstrate that a blanket prohibition was necessary in order to protect Sam’s best interests, which they had failed to do. Any differences between the regulation of unmarried same-sex and opposite-sex parents will clearly now need to be robustly justified by the State concerned. This is all the more surprising given that it was only in 2010 that the Court observed that it did “not see any indication that [Austria] exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership” (Schalk and Kopf, para. 109).

The obvious limitation of this judgment is that it confirms the Court’s long-standing love affair with the idea that marriage is the gold standard for relationships, and yet it does nothing to move us closer to a position where States are required to extend marriage to same-sex couples. Indeed, the Court bent over backwards – practically doing cartwheels for good measure – to emphasize that marriage-based distinctions were a different matter altogether. The exclusion and discrimination – not to mention conceptual incoherence – that results from its position is clear. Twenty-four Council of Europe States reserve second-parent adoption to married couples. This judgment does not trouble those States in any way, and consequently the majority of children raised by same-sex couples remain outside of an equal framework of legal recognition. The best interests of the child principle – the foundation of the Court’s argument in relation to the children of unmarried couples in this case - seems to be easily overlooked when marriage enters the picture and same-sex couples are left outside of the frame.

Austrian law created a fiction that children could only have two opposite-sex parents and a biological parent could simply be ‘replaced’ through the adoption process. The X. and Others v Austria judgment represents a genuine attempt to better reflect the diversity of European families, in which the rigid simplicity of a strictly-biological understanding of parenthood is belied. Whereas the potential for two opposite-sex people to create a child is clearly a biological truism, it is increasingly less relevant to the social aspect of parenting and the day-to-day reality of many children’s lives. Yet the Court still finds itself tongue-tied when discussing children raised in LGBT families. Whereas Sam's biological mother is named as such, the Court leaves his other mother untitled in respect of her relationship to him: she is referred to, simply, as ‘his mother’s partner’. While this may appear to be a mere matter of semantics, it actually suggests that this is an area still riddled with contradictions and confusion. Those of us with an interest in this area continue to watch with a mixture of pride and concern as the Court continues to try to find its feet on its journey towards meeting the needs of LGBT families and, in particular, securing the rights of children raised in so-called 'alternative' families.