The case is very simple according to Gregor Puppinck of the European Centre for Law and Justice (ECLJ). “The two female partners want to oust the father and, since the law does not allow them to do so, they claim it is discriminatory,” Gregor reported in TurtleBayandBeyond (C-FAM’s blog).
The Grand Chamber of the European Court of Human Rights will hear the case X and others v. Austria on October 3. Its decision will apply to all 47 countries in the Council of Europe and cannot be appealed.
Austria’s attorney has pointed out that most European countries do not allow a child to have two mothers or two fathers. A homosexual rights attorney who brought the case argued that this is sexual discrimination.
The child was born out of wedlock in 1995. He bears his father’s name. While the mother has sole custody, the father has regular contact with his son and pays alimony.
The boy lives with his mother and her partner. The lesbian couple wants to be recognized as a “family” by the law, although according to Austrian law, the child will reach the age of majority within the year. They argue the father “failed to give a valid reason” for refusing to give up his parental rights so that the lesbian partner can replace him.
Austria allows a step-parent to adopt a child if the estranged parent consents or a court decides the parent is abusive or completely disinterested in the child. The parent then loses all personal and legal bonds, including the right to see the child.
Austrian authorities determined that adoption would be not be in the interest of the child, that a woman cannot replace a father, and there was no cause for depriving the father of his rights.
According to the Statement of Facts compiled by the European Court of Human Rights, a District Court refused to allow the adoption in 2005 based on Austria’s Civil Code which recognizes adoption by one person replaces the natural parent of that same sex, and severs the relationship between the child and that natural parent.
A Regional Court dismissed an appeal in 2006, observing that when a child has both parents there is no need to replace one of them.
The Supreme Court also dismissed their appeal. It noted that adoption aims to put children in situations as close as possible to the natural family, entrusting suitable people with the education and custody of orphans or of children whose parents could not take care of them.
“Not only are children shifted around following the swing of adults’ love affairs and separated from their father or mother because of divorce,” Puppinck said, “Now adults should allegedly be allowed to falsify children’s filiation to satisfy their own desires and wipe out their past.”
It is unclear whether the father is aware of the court proceedings since the lesbian couple is pursuing the case anonymously. Nothing indicates the boy’s opinion. The same lawyer – Helmut Graupner, legal counsel of ILGA-Europe – represents the women and the boy.