Providing a Child with a Family, Not a Family with a Child - A Study in the ECtHR Case Law Regarding the Right to Adopt for Homosexual Persons from a Child's Rights Perspective

Sammanfattning: The traditional family as a heterosexual married couple with children is a norm that is increasingly being questioned and other family constellations are getting more common. In this context the relations and families of homosexual persons are being highlighted and prejudices against them are less tolerated. This change of attitude is occurring at different rates around Europe, which renders the task of the European Court of Human Rights (ECtHR) harder since there doesn’t exist a European consensus on the issue. According to Article 8 of the European Convention on Human Rights (ECHR) there is a right to respect for family life. The ECtHR has in many cases taken a stand on the issue of the ambit of Article 8 in regard to homosexual persons, e.g. on the issue of adoption. Parallel to this, the ECtHR in 2008 issued a revised version of their Convention on the Adoption of Children, in which the child’s legal position has been reinforced. Furthermore the ECtHR has in many of their cases regarding adoption emphasized that the child’s interests in these cases are paramount. In this essay I examine the right to adoption, according to the ECHR, for homosexual persons from a child’s interests perspective. Initially I examine what the right to respect for family life, according the ECHR, entails. Then I investigate if there is a general right to adopt and what role the ECtHR gives the child’s interests in those cases. After that I examine whether there is a right to adopt for homosexual persons followed by an account on what role the ECtHR gives the child’s interests in those cases. A conclusion from this examination is that there neither exists a general right to adopt nor such a right for homosexual persons. Nonetheless a Contracting State to the ECHR can incur obligations when they have exceeded the scope of the articles in the convention. The Contracting State has then a duty not to enforce these in a discriminatory manner. The essay further illustrates that even though the ECtHR has emphasized that the child’s interests are paramount in cases concerning the right to adopt these interests are often given little consideration.