X v Austria  ECHR 057
The Grand Chamber of the European Court of Human Rights has found that where second-parent adoption is available for unmarried different-sex couples, the impossibility of second-parent adoption by same sex couples is discriminatory and violates articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Two women were living in a stable de facto relationship in Austria. One of the partners sought to adopt the other woman’s biological son, with the aim of giving both of them legally recognised parental status.
Article 182 section 2 of the Austrian Civil Code regulates the effects of adoption and allows for second-parent adoption in unmarried different-sex couples. It states:
If the child is adopted by just an adoptive father (an adoptive mother), the relationship shall cease only in respect of the biological father (the biological mother) and his (her) relatives; in so far as the legal relationship with the other parent remains intact after the adoption, the court shall declare it to have been severed, subject to the consent of the parent concerned.
The Austrian Courts successively ruled that the adoption sought by the women was legally impossible under the Civil Code because adoption of the son by his mother’s female partner would legally break the son’s relationship with his biological mother – “adoption can therefore not serve to create a parent-child relationship between the [mother’s partner and the son] in addition to the relationship with the mother”.
The merits of the particular case – whether the adoption was in the child’s best interests and whether the father’s refusal to consent could be overridden – were never fully considered. This led to the human rights claim in the ECHR.
At the ECHR, the women sought a declaration that the difference in treatment between unmarried same-sex and different-sex couples under the Austrian Civil Code breached their human rights under the Convention. They referred to article 14 (discrimination) in conjunction with article 8 (respect for family life), claiming discrimination based on sexual preference and a right to respect for their private and family life.
The ECHR considered that the relevant discrimination was as between unmarried same-sex couples and different-sex couples. Drawing on the earlier case of Gas and Dubois v France  ECHR (15 March 2012), the Court stated that because the Convention does not oblige Contracting States to grant access to marriage for same-sex couples, the applicant’s legal situation was not comparable to that of a married couple.
The ECHR found that the applicable legislation led to a distinction between unmarried same-sex and different-sex couples in respect of second-parent adoption. This difference affected the women, with the Court stating:
[The] legal impossibility of the adoption requested by the applicants was consistently at the centre of the domestic courts’ considerations. Indeed, this fact prevented the domestic courts from examining in any meaningful manner whether the adoption was in the [son’s] interests.
The ECHR highlighted that States have a “margin of appreciation” under the Convention to legislate as they see fit to protect the family and secure respect for the family under article 8. However, where any difference in treatment is based on sex or sexual orientation, that margin of appreciation is narrow. According to the Court, the Austrian Government needed to show that the difference served a legitimate aim and was proportionate to that aim. It was therefore necessary to demonstrate that the protection of the family in the traditional sense, and the protection of the child’s interests, required the exclusion of same-sex couples from second-parent adoption. The Austrian Government was unable to demonstrate this to the Court and, in fact, conceded that same-sex couples could be as suitable or unsuitable as different-sex couples when it came to adopting children.
Although the ECHR found that there had been a violation of article 14, taken in conjunction with article 8, it did not find that the success of the complaint necessarily led to the same-sex partner being able to adopt the child. The Court’s role was to “question whether the women had been discriminated against on account of the fact that the courts had no opportunity to examine in any meaningful manner whether the requested adoption was in the [son’s] best interests”.
Although same-sex couples cannot legally adopt a child in Victoria, they may do so individually in certain circumstances.
In this case, the human rights issue in question was the difference in treatment that the unmarried same-sex couple faced, as compared to an unmarried different-sex couple. Under the Charter of Human Rights and Responsibilities Act 2006 (Vic), discrimination is prohibited on the basis of sex and sexual orientation. Because it is unlawful for public authorities to act in a way that is incompatible with human rights, public authorities must ensure that their acts or decisions do not reflect a discriminatory difference in treatment. Section 17 of the Charter also confirms that “every child has the right, without discrimination, to such protection as is in his or her best interests” – a point that the ECHR continually raised in their judgment in reference to the adoption.
This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116735
Alex Lockie and Tahlia Brysha-Pullen are Law Graduates at King & Wood Mallesons.