Information Note on the Court’s case-law 13

December 1999

Salgueiro da Silva Mouta v. Portugal - 33290/96

Judgment 21.12.1999 [Section IV]

Article 8

Article 8-1

Respect for family life

Refusal to grant custody to a parent living in a homosexual relationship: violation

Article 14

Discrimination

Refusal to grant custody to a parent living in a homosexual relationship: violation

Facts : The applicant married in 1983 and a daughter of the marriage, M., was born in 1987. Since 1990 he has been in a homosexual relationship. The applicant and his wife started divorce proceedings in which they reached an agreement giving parental responsibility to the mother and access to the applicant. However, M.’s mother refused the applicant access to their daughter. He therefore sought an order giving him parental responsibility for the child, which was granted by the court in 1994. M. stayed with the applicant until 1995 when, he alle ges, she was abducted by her mother. Criminal proceedings are pending in that regard. His ex-wife appealed against the court’s decision and the court of appeal reversed the lower court’s judgment, holding that, generally, a young child should not be separa ted from his or her mother and stating that a homosexual environment could not be claimed to be healthy for a child’s development given that, in the Court of Appeal’s view, it was an abnormal situation. The Court did, nonetheless, grant the applicant a con tact order, but this was never complied with. No appeal lay against that decision. The applicant filed an application with the Family Affairs Court for enforcement of the court of appeal’s decision. Those proceedings are still pending.

Law : Article 8 taken together with Article 14: As regards a difference in treatment, the court of appeal had acted correctly in considering the interests of the child, basing its decision on both the facts of the case and the law allowing it to award parental responsibility t o one parent rather than the other. However, in reversing the decision of the Family Affairs Court and consequently awarding parental responsibility to the mother rather than the father, the court of appeal had had regard to a new factor, namely that the a pplicant was a homosexual and living with another man. There had therefore been a difference in treatment between the applicant and M.’s mother based on the applicant’s sexual orientation, a notion that fell within Article 14 of the Convention since the li st set out in that Article was not exhaustive. As regards justification for the difference of treatment, the court of appeal had undoubtedly pursued a legitimate aim in reaching its decision, namely the protection of the child’s health and rights. The Cour t reviewed the court of appeal’s decision and noted that, on examining the appeal lodged by the mother, it had had regard to a new factor – the applicant’s homosexuality – in deciding to whom parental responsibility should be awarded and had gone on to say : “the child must live in ... a traditional Portuguese family” and “it is unnecessary to examine whether or not homosexuality is an illness or a sexual orientation towards people of the same sex. Either way, it is an abnormality and children must not grow up in the shadow of abnormal situations”.

The Court was of the view that those passages from the judgment of the Lisbon Court of Appeal were not simply clumsy or unfortunate, or mere obiter dicta ; they suggested that the applicant’s homosexuality had been decisive in the decision to award parental responsibility to the mother. That conclusion was supported by the fact that, when ruling on the applicant’s rights of access, the court of appeal had d iscouraged the applicant from behaving during visits in a way that would make the child aware that he was living with another man “as if they were spouses”. The court of appeal had therefore drawn a distinction dictated by considerations as to the applican t’s sexual orientation.

Conclusion: violation (unanimous).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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