TrustHLT/LaCour huggingface dataset:
GR1 (Government): Nevertheless, they scrutinized the well-being of the child, and in striking a fair balance between the interests involved, especially in the light of the existing relationship between father and son, the Austrian courts did not see any necessity to override the interest of the father with regard to the well-being of the child.
GR1 (Government): Here I would like to refer to page 11 at sequitur and page 15 of the court, of the decision of the court of second instance.
GR1 (Government): As a consequence, in the present case, neither a male partner, a new male partner, nor a husband of the mother could have adopted the child, since the consent of the parent to be replaced is indispensable for the court's approval of an adoption agreement.
GR1 (Government): This sine qua non and this prerequisite is to be distinguished from the effects of an adoption.
GR1 (Government): This precondition is to be distinguished very clearly.
GR1 (Government): With respect of the exclusion of second parent adoption in same-sex couples, we want to reiterate that Austrian law wants to avoid in general a situation where a child, as a result of an adoption, has two mothers or two fathers in legal terms.
GR1 (Government): Austrian law pursues the aim of creating, to the extent possible, as already mentioned, the legal family ties of a biological family whenever a child is adopted.
GR1 (Government): Securing a child's well-being is certainly a legitimate aim in this respect, and in our view it is pursued with adequate means, since it adequately takes the interests of all other persons involved into account.
GR1 (Government): Here again I would like to stress that the consent of the father was not given.
GR1 (Government): The precondition for an adoption has not been met, irrespective of the gender and sexual orientation of the persons involved.
GR1 (Government): Even if the Strasbourg court should come to the conclusion that there had been a violation of the Convention in the present case, the decision in the original case cannot come to another conclusion also in the future, as long as the father refuses to give his consent.
GR1 (Government): Mr. President, distinguished members of the Court, to conclude with, in our opinion,
GR1 (Government): the Austrian law, and in particular the Austrian civil code, strikes a fair balance between the protection of the interests of the various groups of persons concerned.
GR1 (Government): I would also like to close by referring once more to the detailed written observations of the Republic of Austria.
GR1 (Government): The motions contained therein are fully maintained.
Nicolas Bratza (JudgeP): Thank you very much, Mrs. Ohms.
Nicolas Bratza (JudgeP): I then call Mr. Graupner.
AP1 (Applicant): I'm representing here today a family.
AP1 (Applicant): I'm representing a mother and her child, a boy who has been raised for 13 years now by his mother and her female partner, a boy who was nine years of age when this case has started and who is 17 years of age now, and the mother's partner, the boy's step-parent.
AP1 (Applicant): The mother and her partner have been living together as a couple for many years, just as heterosexual couples.
AP1 (Applicant): They have bought a joint estate, which is the home of the family.
AP1 (Applicant): They are forming a family with the son brought in from a former relationship, and the three are living an everyday life, an everyday family life, just as all the heterosexual families around them.
AP1 (Applicant): The only difference to all these families around them is the sex of the step-parent, female instead of male.
AP1 (Applicant): The Youth Welfare Office of Vienna, when this case started, recognized that the two women are providing the son with a second applicant with a wonderful family life, and the Youth Welfare Office recommended joint custody, and it has been refused by the Austrian courts, as we have heard just before.
AP1 (Applicant): This court has stated and treated homosexual men and women as being in a relevantly similar situation as heterosexual men and women in relation to parental rights, and especially in relation to adoption.
AP1 (Applicant): In the case of Silva-Motor, Fréte, Yppi versus France, and recently Gaille Dubois.
AP1 (Applicant): And this court stated, quote, a cohabiting same-sex couple living in a stable, de facto partnership falls within the notion of family life just as the relationship of a different sex couple in the same situation would.
AP1 (Applicant): Schalkenkopf, 2010, paragraph 94.
AP1 (Applicant): The issue before this court, and this cannot be stressed enough, is not, it is not joint adoption by a couple.
AP1 (Applicant): The issue before this court today is single adoption.
AP1 (Applicant): What Austria refuses to the applicants is single adoption.
AP1 (Applicant): It is adoption by an individual person.
AP1 (Applicant): The first applicant may adopt an Austrian law and a child of the world, with only one single exception, the second applicant.
AP1 (Applicant): What Austria argues for in this case is to take away the protection this court, this great chamber has established in Yppi versus France, from the stepmother regarding the child which is most close to her and with which she has been living in the family for years, and that exclusively on the basis of her sex.
AP1 (Applicant): If she were a man, she would have the chance of adopting her stepchild, second applicant.
AP1 (Applicant): All the circumstances of the case unchanged save her sex, and there would be no discrimination.
AP1 (Applicant): So a relevantly similar situation, between the applicant's step-parent family on the one hand and the heterosexual step-parent family on the other hand, cannot reasonably be denied.
AP1 (Applicant): The issue before this court, and also this cannot be stressed enough, is not a privilege of marriage.
AP1 (Applicant): And this distinguishes this case most decisively from the recent case of Guy Dubois versus France.
AP1 (Applicant): In Austria, step-parent adoption is available not just for married couples, it is also available for unmarried couples.
AP1 (Applicant): But while in unmarried couples, in heterosexual unmarried couples, it is meaningfully possible to do so, unmarried homosexual couples are totally excluded to do such a step-parent adoption in a meaningful way.
AP1 (Applicant): So this is perfectly a Karna-like situation, a situation established in Karna versus Austria 2003 and the follow-up cases.
AP1 (Applicant): An unequal treatment between unmarried heterosexual couples on the one hand and unmarried same-sex couples on the other hand, which the Court found inadmissible in the cases Karna, Kozak, PB and GS, and JM versus UK.
AP1 (Applicant): So the issue before this court today is just respect for the Karna case law the Court established.
AP1 (Applicant): As the intervening six NGO coalition has pointed out, only four member states of the Council of Europe, four other member states like Austria, do allow unmarried couples step-parent adoption and at the same time exclude same-sex couples. So the other 42 are sharing an overwhelming consensus.
AP1 (Applicant): They either restrict step-parent adoption to marriage or, if they don't do so, they are treating all unmarried couples the same without making any difference based on gender or sexual orientation. 42 member states.
AP1 (Applicant): This Court has constantly established that discrimination on the basis of sexual orientation is unacceptable, is as serious as discrimination on the ground of race, ethnic origin, religion and sex. That differentiation on the basis of sexual
AP1 (Applicant): orientation requires particularly serious reasons, convincing and weighty reasons, and the scope of the question is narrow. Distinctions must be necessary, not only
AP1 (Applicant): suitable, to realize a legitimate aim. And this Court has also stated that distinctions
AP1 (Applicant): solely based on sexual orientation are plain discrimination. There are no particularly
AP1 (Applicant): serious reasons, no convincing and weighty reasons in this case, which would render the distinction applied by Austria in this case necessary in that sense.
AP1 (Applicant): We have provided the Court with extensive studies and expert positions in our written submissions, and especially the large-scale study commissioned by the German Ministry of Justice in 2009, which show and prove a wide scientific consensus in Europe and worldwide, a consensus which establishes same-sex parents are as good parents as opposite-sex parents, and children in same-sex families, so-called rainbow families, are developing as well as in heterosexual families.
AP1 (Applicant): And this Court, the Grand Chamber, in these proceedings, have asked the Austrian government to provide research findings proving that same-sex couples, unlike opposite-sex couples, would be incapable of providing the care and upbringing a child needs. The Austrian government provided not a single study. The intervening
AP1 (Applicant): organizations, ECLJ and ADF, provided one, the Regnero study. If you look close to
AP1 (Applicant): this one study provided, we see that the children studied, 77 to 98 percent of them lived with same-sex families less than three years, and 57 to 77 percent, so half to three quarters of the studied children, have been living with same-sex families less than four months. And then the author compares these children to children
AP1 (Applicant): raised by their mother and their father from birth until their 18th birthday.
AP1 (Applicant): And then when you read the study, you see that the author himself, Mark Regnero, on page 764, says, and admits himself, quote, comparing the children of such parents with those who experience no union dissolution is arguably unfair, end of quote.
AP1 (Applicant): So the only thing this study shows is that breakdown of a couple is not good for the children, but it says nothing about the welfare of children raised by stable same-sex families like my clients, like we have in this case here before the court.
AP1 (Applicant): The ADF has cited in addition a handful of other studies without providing them to the court. We don't see them, so we cannot evaluate them. I have looked at one of
AP1 (Applicant): them, the Zarantacos study, and it does not in any way say what ADF villages.
AP1 (Applicant): Instead, the outcome of the study in the summary says children in married couples are more likely to do well than children of cohabiting heterosexual and homosexual couples, merely based on the assumption of teachers, to be said.
AP1 (Applicant): So the comparator in this case is not marriage. It is cohabiting heterosexual
AP1 (Applicant): couples. And according to this study, there is no difference between cohabiting
AP1 (Applicant): heterosexual and cohabiting homosexual couples.
AP1 (Applicant): So if you look further in this study, the author, Zarantacos, says, quote, on page 30, and these findings must be treated with caution before one jumps to conclusions encouraging homophobia and traditionalism, end of quote.
AP1 (Applicant): So the one single study provided to the court against the applicants, or at best a handful of studied but not presented studies, they do not even say what the third party interveners alleged they would say. And not in any way, they can't challenge the
AP1 (Applicant): findings of the rest of the scientific world.
AP1 (Applicant): We have provided the court with a long list of renowned associations which are advocating step-parent adoption in same-sex families for the best interest of the child. The American Psychological Association, the Child Welfare League of America,
AP1 (Applicant): the American Psychiatric Association, the North American Council on Adoptable Children, the American Academy of Pediatrics, the American Psychoanalytical Association, the American Academy of Family Physicians, the British Association of Adoption and Fostering, the Royal College of Psychiatrists, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, the Canadian Psychological Association, et cetera, et cetera.
AP1 (Applicant): And the Inter-American Court of Human Rights recently summed it up, quote, the abilities of gay and lesbian persons as parents and the positive outcome for their children are not areas where credible scientific researchers disagree.
AP1 (Applicant): Case Atalava v. Chile, earlier this year, paragraph 129.
AP1 (Applicant): To the same conclusion recently came the Bioethics Commission of the Austrian government in a report recently presented recommending same adoption rights for same-sex couples as for heterosexual couples. And the Committee of Ministers of
AP1 (Applicant): the Council of Europe in an unanimous decision recommended equal treatment of same-sex and opposite-sex couples and recommended the decisions on parental responsibility to be taken without discrimination based on sexual orientation in the recommendation of measures to combat discrimination on grounds of sexual orientation and gender identity from March 2010. And the Commissioner
AP1 (Applicant): for Human Rights of the Council of Europe in his report on discrimination on grounds of sexual orientation and gender identity from June 2011 called for same parenting rights for same-sex couples in especially the same adoption rights. As the Court
AP1 (Applicant): established, the owners of proof for necessity of a distinction on the basis of sexual orientation is on a government. Has this proof been supplied? Has this proof of particularly
AP1 (Applicant): serious reasons been supplied? The Austrian government never, ever even alleged
AP1 (Applicant): that children in same-sex families, in rainbow families, are not developing as well as in heterosexual families. They did not see or say that, I have to admit.
AP1 (Applicant): Instead, it argued that the distinction were justified because it avoids two legal mothers or two legal fathers and it, quote, uses the biological principle as a guideline. We also have heard that today. Biologically, however, also a white child
AP1 (Applicant): cannot descend from black parents. May this biological principle also be used as a
AP1 (Applicant): guideline to ban adoption of white children by persons of black color and allow racially compatible adoptions only? I doubt. And when biological parents are still
AP1 (Applicant): alive, any adopted child in Austria has already two mothers and two fathers. That
AP1 (Applicant): is why Austria has made a reservation to the mentioned adoption convention from 1967, which requires that legal kinship with the biological parents be completely terminated in what Austria does not do so that any adopted child has two legal fathers or mothers. In Ebie v. France, 2008, the Court found the reasons put forward
AP1 (Applicant): by the government in this case not convincing against the background of the domestic legal provisions. We have the same here. In its written observations to the Grand
AP1 (Applicant): Chamber and also in the oral observations we just heard, the government heavily claimed that due to the father's refusal of consent, heterosexual couples would have been treated the same way as my client's same-sex couple. But I'm sorry I have
AP1 (Applicant): to say this is absolutely not true. The Austrian courts in this case have denied
AP1 (Applicant): any inquiry and any decision on the merits of the case, on the merits of the proposed adoption. They have denied an inquiry and any decision on whether the adoption
AP1 (Applicant): proposed serves the best interest of the child and on whether the father's consent should be replaced, all of which the courts would have done in the case of a heterosexual couple. The Supreme Court stated it more than clearly, quote, given the legal
AP1 (Applicant): impossibility of adoption, it is not necessary to further discuss if there are reasons for the consent, end of quote. And that is what they would have done in a heterosexual
AP1 (Applicant): case, looked into the reasons whether the father's consent should have been replaced.
AP1 (Applicant): EB v. France, decided by the Grand Chamber in 2008, was not about whether a child
AP1 (Applicant): ever be placed by Ms. EB for adoption, but it was about automatic exclusion
AP1 (Applicant): of Ms. EB from even the chance of being considered as the potential adoptive
AP1 (Applicant): parent of a specific child for reasons linked to her sexual orientation, for her partnership with a woman. And that is the same in our case here. Discrimination
AP1 (Applicant): at issue in this case is not whether Austrian courts approved or not approved the adoption. That is what we are complaining about. What we are complaining
AP1 (Applicant): about and what is the issue is that my clients have been barred from having the merits of adoption be at all considered by the Austrian courts. The automatic exclusion
AP1 (Applicant): the Austrian courts established from any chance to meaningful adoption would have applied even if the father would be dead. It would have applied even if the father
AP1 (Applicant): would be unknown, and it would have applied even if the father would have consented to the adoption. The refusal and the automatic exclusion of my clients would have
AP1 (Applicant): applied even if the father would have consented to the adoption. The exclusion
AP1 (Applicant): of my clients from step parent adoption is not connected to the consent or to the consent of the father, but to the sex and sexual orientation of the mother and her partner, the first and the third applicant. The national court stated that the aim
AP1 (Applicant): of the exclusion is promotion of the traditional family. However, the second applicant,
AP1 (Applicant): the third applicant, has to be paramount and cannot change it, and nobody stated that anyone wants to do anything about it and change it. Luckily. In Wagner v. Luxemburg
AP1 (Applicant): in 2008, this Court stressed the importance of the recognition of an existing family life for the best interest of the child. And in Yppi v. France again, the Court
AP1 (Applicant): showed that the child's best interest has to be paramount. The key notion, also in
AP1 (Applicant): this case, is best interest of the child and not the sex or sexual orientation of its parents. As Judge Costa, a former president of this Court, in Yppi v. France, in a
AP1 (Applicant): dissenting opinion even, put it, quote, the message sent by this Court to the state parties is clear. A person seeking to adopt cannot be prevented from doing so merely
AP1 (Applicant): on the ground of his or her homosexuality. I agree. And we all should agree, I think.
AP1 (Applicant): Children in rainbow families deserve the same right to get a chance to establish stable legal ties with their step-parents in as much as their peers in heterosexual families who do enjoy this right, even when their parents, the parent and the step-parent are not married. Thank you very much.
Nicolas Bratza (JudgeP): Thank you very much, Mr. Graupner.
Nicolas Bratza (JudgeP): We've therefore come to the end of the first round of pleadings, and I would like to ask at this stage whether any of the judges present would like to put some questions to the parties.
Nicolas Bratza (JudgeP): Judge Potocki, please.
André Potocki (Judge): Mes questions s'adresseront à l'agent du gouvernement.
André Potocki (Judge): Ma première question est une demande de confirmation.
André Potocki (Judge): Vous nous avez dit, Madame, que l'orientation sexuelle des requérantes n'était pas pertinente dans cette affaire parce que, de toute façon, l'adoption était impossible en raison du refus opposé par le père biologique.
André Potocki (Judge): Ma question est donc la suivante.
André Potocki (Judge): Si le père biologique avait donné son accord, la Cour doit-elle comprendre qu'alors l'adoption aurait été possible, quelle que soit l'orientation sexuelle et le sexe des requérantes.
André Potocki (Judge): Ma seconde question est la suivante.
André Potocki (Judge): Vous nous avez rappelé que l'intérêt de l'enfant est un principe si important en droit autrichien qu'il a maintenant valeur constitutionnelle.
André Potocki (Judge): Deuxième point, dans votre mémoire écrite au point 3.3,
André Potocki (Judge): je lis, ma citation sera brève, des couples homosexuels peuvent être pour l'essentiel personnellement, personnellement en italique, aussi appropriés ou non que des couples hétérosexuels pour adopter des enfants.
André Potocki (Judge): Il en va de même pour l'adoption d'enfants du conjoint dans les couples homosexuels.
André Potocki (Judge): Troisième point, il me semble, sauf à ce que vous me corrigiez, qu'en droit autrichien, il est absolument impossible aux homosexuels d'obtenir une adoption coparentale.
André Potocki (Judge): En rapprochant ces trois éléments, c'est à dire l'intérêt supérieur de l'enfant comme but légitime, la reconnaissance de l'aptitude éducative de certains couples homosexuels et enfin l'interdiction absolue qui leur est opposée.
André Potocki (Judge): Est ce que ne surgit pas une question de proportionnalité ou de façon encore plus précise?
André Potocki (Judge): Et c'est sur ce point que j'aimerais avoir vos explications.
André Potocki (Judge): Ne serait-il pas plus concevable au regard de ce principe de proportionnalité que soit prévu un examen au cas par cas des requêtes pour juger précisément de l'intérêt des enfants et de l'aptitude éducative des requérants ou des demandeurs à l'adoption plutôt que de leur opposer un refus absolu et de principe?
André Potocki (Judge): Merci.
Nicolas Bratza (JudgeP): Judge Ziemele, please.
Ineta Ziemele (Judge): I have a question both to the applicants' representative and to the government, and it follows the first question just exposed by Judge Potocki.
Ineta Ziemele (Judge): I would like the parties to clarify, in your submissions just now, the government said that the applicants never applied formally for a substitution of the father's lack of consent to the adoption.
Ineta Ziemele (Judge): And the applicants just argued that the Austrian courts have denied any inquiry into reasons for replacement of father's consent because the law does not allow it.
Ineta Ziemele (Judge): And I see a certain contradiction in these two submissions.
Ineta Ziemele (Judge): I would be very grateful to the parties for really clarifying that.
Ineta Ziemele (Judge): And maybe for the applicant, if you would comment in your reply in relation to the regional court's decision, in which we can read the court's reasoning about the biological father having regular contacts with the child, also the fact that the child maintains a meaningful relationship, and the court's conclusion or interim conclusion in these circumstances.
Ineta Ziemele (Judge): However, there is no need to replace either of the biological parents.
Ineta Ziemele (Judge): So would you maintain your submission in the light of the regional court's reasoning that there was no any substantive inquiry into the whole consent issue and the best interests of the child?
Ineta Ziemele (Judge): Thank you.
Nicolas Bratza (JudgeP): Thank you.
Nicolas Bratza (JudgeP): Are there any other questions?
Nicolas Bratza (JudgeP): That would be the case.
Nicolas Bratza (JudgeP): I propose then that we have a break of 15 minutes.
Nicolas Bratza (JudgeP): In fact, we will meet again at 1025.
Nicolas Bratza (JudgeP): The hearing is suspended.
Nicolas Bratza (JudgeP): The hearing is resumed and I give the floor to Mrs. Ohms again.
Nicolas Bratza (JudgeP): Please, Mrs. Ohms.
GR1 (Government): Thank you Mr. President and thank you distinguished members of the court.
GR1 (Government): With your consent I would like to begin to answer the question of Miss Simile.
GR1 (Government): The Austrian concerning the contradiction between the position of the Austrian government and the position of the applicants on points of facts. The Austrian law requires formal motions to replace
GR1 (Government): one parent's consent to adoption and such a formal motion was not taken in the present case.
GR1 (Government): If you look at the application made by the applicants, page 3, it seems that the applicant acted on the assumption that the court will do this act ex-offer. Here it is stated