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The Iona Blog

Why seven ECHR judges dissented from their colleagues’ ‘Brave New World’ decision

Author: Tom O'Gorman
Date: 22nd February 2013

No fewer than seven judges of the European Court of Human Rights issued a partial dissent from the court's ruling on Tuesday in favour of a lesbian couple where one partner wished to adopt the biological child of the other.

The case is called ‘X and others v Austria’ and as was argued in our previous blog is simply one more step on the road to a Brave New World in which motherhood, fatherhood and the biological ties are held to be of no importance.

The seven dissenting judges set out a number of extremely cogent objections to the ruling by the nine judges who voted in favour of the lesbian couple.

First, they pointed out that the father in the case, with whom the boy had maintained strong emotional ties, had refused consent for the adoption by his mother’s lesbian partner.

They criticised the suggestion by the majority that the Austrian Courts should have considered overriding the father's objection to the proposed adoption. Such a measure, the dissenting justices said, would constitute “an exceptional measure which should only be imposed in serious and established cases of a flagrant breach of parental obligations”.

They added: “A father should not have to justify his wish to continue to be a father to his son, still less when, as in the present case, he assumes his parental responsibilities in full.”

The dissenting justices went on: “Bearing in mind that Article 8 of the Convention does not guarantee either the right to found a family or the right to adopt, nor does it guarantee the right to have a child or the right to be adopted, one may well ask what constituted the supposed interference by the national authorities with the applicants’ private or family life.

“The first applicant, who is the mother’s partner, could not assert a right to adopt the latter’s child.  

“The second applicant [the son], assuming that he wished to be adopted, could not claim such a right either; moreover, he already had a father and a mother.  

“The rights of the third applicant, the child’s mother, were not infringed in any way. On the contrary, the impugned legislation simply preserved her parental rights, which she did not intend to waive.”  

The judges rejected to the suggestion that the Austrian law in question discriminated against same-sex couples.

They pointed out that, in Austrian law, adoption meant the cessation of kinship ties between the prospective adoptive child and one or both of his or her biological children.

This meant that, in any given adoption case, there were a number of possible outcomes:

·         If the child was adopted by only one adoptive parent, the kinship ties ceased only in respect of one of the biological parents.

·         This meant that the adoption of a child by a woman could not have the effect of depriving the child of his or her biological father;

·         The law in question imposed a general prohibition on adoption by a man as long as the ties of kinship with the child’s biological father still existed, and by a woman where such ties still existed with the biological mother.

·         Therefore, a person who adopted a child on his or her own did not take the place of either parent at will, but only the place of the parent of the same sex.

The law in question, they continued, was “strictly neutral and applicable in all situations without any distinction being made on the basis of the sexual orientation of the persons seeking to adopt”.

The dissent went on to criticise the failure of the majority to consider the best interests of the child in the case.  

Which of the child's best interests, the dissent asked “would have been served had his father been replaced by his mother’s partner?”  

The dissenting judges noted that the child's mother and her partner had expressed their interest in the adoption, but there was nothing to demonstrate that it was in the child’s ‘best interests’.

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