CYIL 2014

249

WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION?

be apparent

prima facie

, the subject matter of the case was adoption of a child. The

general principle which is applied for this situation is foremost the best interest of the

child. Analysing the situation of the child living for a long period with his mother

and her female partner

and having regular contact with his biological father, it

should be on the Court to apply this principle. However, the Court did not assess

the best interest of the child and went on to examine in a very general way differences

in the treatment of non-married same-sex couples and non-married different-sex

couples in the question of adoption. It is difficult to see what is really at stake in

this case. Which right is really violated by Austrian authorities deciding on the law

not accepting second-parent adoption in case of same-sex couples? One can see in

the decision of the Court that there is no specific interference with the family life

of the applicants. Art. 8 (in conjunction with Art. 14) of the Convention does not

allow either a right to create a family or a right to adopt a child.

The family as such

is created by natural and/or legal links, and it is recognized as such by the society.

Adoption as a special institution aims to create new family links where natural ones

do not serve the best interest of children. As the Court (with the tacit consent of the

Austrian government) held that, in the present situation of the case, family life was

established and was affected by an act of the government, we argue there is no right

to adoption (in passive or active form). The Court decided in the opposite direction

without saying, however, whether biological (and legal) relations between a child

and his father are severed or not. Can we imagine a family where there are three

parents? And in future may be in the case of altering education (of two family lives

and one or more moving children) even four parents? Are we in the presence of an

‘evolution’ to a multi-parent family? One can argue positively by the ‘logic’ of the facts.

The majority of families are of two parents, but there exist single parent families as well.

So, why not multi-parent families? If one argues that a single parent family is not in the

best interest of a child, the question arises whether a multi-parent one is. The Court did

not consider these consequential issues, because it only focuses its argumentation on the

issues of discrimination, which is totally wrong. Doing that means we see the case only

from the point of a “legal” technical view and without seeing the impact of the decision.

Some incorrectness of the decision can be seen as well in an argument based

on the creation of Austrian law.

In the words of the Court this law on adoption

“merely reflects the position of those sectors of society which are opposed to the idea of

opening up second-parent adoption to same-sex couple”

This argumentation by the

ECtHR somewhat undermines the democratic process of the formation of law. The

Austrian law in question surely reflects the position of a sector of society. However

Austrian law allows in the case of same-sex couples exercise of some parental authority and responsibilities.

(See Case X and Others v. Austria, § 55.)

E. B. v. France [GC], no. 43546/02, § 41, 22 January 2008.

There can of course be differences in the right conception of the family according to cultural, historical

and societal values. However these are not the subject of the present article.

See § 143 of the judgement.

Ibid.