Case concerning alleged discrimination of same-sex parents declared inadmissible - Bonnaud and Lecoq v France

The European Court of Human Rights has published its decision in Bonnaud and Lecoq v France, declaring inadmissible an application by a same-sex couple complaining about discrimination on the grounds of sexual orientation in respect of the parenting of their children.

The facts

The applicants, Francine Bonnaud and Patricia Lecoq, are French nationals. 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 were dismissed in 2010.

Complaint to the Court

Relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to espect for private and family life) of the Convention, 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.

The decision of the Court

The Court decided to conduct a separate examination of the applicants’ complaints relating to before and after heir separation in 2012.

The applicants’ situation before their separation

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.

Domestic law, 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.

The Court considered, inter alia, that the assessment made by the domestic courts did not disclose a difference in treatment based on the applicants' sexual orientation.

The Court found no appearance of a violation of Article 8 taken in conjunction with Article 14 and, consequently, decided that 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 was rejected.