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(Dec 06, 2010) On October 6, 2010, the French Constitutional Council ruled on an application for a priority preliminary ruling lodged by the Cour de Cassation, France's Supreme Court for civil and criminal matters, on the issue of the constitutionality of article 365 of the Civil Code (Conseil Constitutionnel, Decision No. 2010-39 QPC of October 6, 2010, Constitutional Council website, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/l
es-decisions/acces-par-date/decisions-depuis-1959/2010/2010-39-qpc/d
ecision-n-2010-39-qpc-du-06-octobre-2010.49642.html
(last visited Dec. 3, 2010)).

Article 365 sets forth the rules governing parental authority where a child has been the subject of a simple adoption by a single person. It provides that "the adopting person shall alone be vested with all rights of parental authority over the adoptee – unless said adopting person is the spouse of the father or mother of the child." (Id.) The constitutionality of article 365 was challenged on the grounds that it gives parental authority only to married couples in cases of a simple adoption and, as a result, prohibits, in principle, the adoption of the child either by the person cohabiting with the adopting person or his/her partner.

The same-sex couple who challenged the constitutionality of article 365 argued that "[i]t fails to respect the right to a normal family life and the principle of equality before the law." (Id.) The Council dismissed both arguments and found article 365 constitutional.

The Council ruled that "this provision does not prevent the parent of a minor child from co-habiting with a person or entering into a civil partnership with any person of his/her choosing – nor from having the person with whom he/she co-habits or his/her partner participate in the upbringing and education of the child – and that the right to lead a normal life does not carry an entitlement to the creation of a legal adoptive bond." (Id.)

The Council further stated that "the principle of equality does not preclude Parliament from treating different situations in different ways or from departing from the principle of equality for reasons of general interest, provided that in each case the resulting difference in treatment is directly connected with the purpose sought to be achieved by the law that introduces such different treatment." (Id.)

Finally, the Council ruled that if Parliament felt that it was in the best interest of the child for a distinction to be maintained between married and non-married couples, it was not the Council's role "to substitute its own appraisal for that of Parliament as to the consequences that should be drawn in the case at hand, from the particular situation of children brought up by two people of the same sex." (Id.)

Author: Nicole Atwill More by this author
Topic: Adoption and foster care More on this topic
Jurisdiction: France More about this jurisdiction

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Last updated: 12/06/2010