Salgueiro da Silva Mouta v Portugal
| Judgment Date | 21 December 1999 |
Human rights – Right to respect for family life – Discrimination – Residence –Homosexual father applying for residence of child of former marriage – Lisbon Court of Appeal finding that homosexuality was an abnormality and awarding residence to mother – Whether father discriminated against by court – European Convention on Human Rights, arts 8 and 14.
The applicant father and the mother were married in 1983 and on 2 November 1987 they had a daughter M. They separated in 1990 and since that time the father had lived with another man. In 1991 the parents signed a parental responsibility agreement whereby the mother was to have parental responsibility and the father a right to contact. The mother failed to comply with the agreement and the father was denied contact. In March 1992 the father applied for parental responsibility on the basis that the mother had failed to comply with the agreement and allegedthat the child resided with the maternal grandparents who were Jehovah’s Witnesses. In response the mother alleged that the father’s partner had sexually abused the child. On 14 July 1994, after obtaining court psychologists’ reports, the Lisbon Family Affairs Court awarded the father parental responsibility. The court psychologists’ reports had recommended that the child not live with the grandmother as her religious fanaticism condemned and excluded the father on the grounds of his sexual preferences and had further dismissed as unfounded the allegation of sexual abuse. The court found that the mother was most uncooperative and that it was improbable that her attitude would change. Pursuant to the court order the child lived with the father until 3 November 1995 at which time the father alleged that she was abducted by the mother. The mother appealed to the Lisbon Court of Appeal and on 9 January 1996 the decision of the lower court was reversed and parental responsibility was awarded to the mother with contact to the father. In reaching its decision, whilst the Court of Appeal stated that as a general rule custody of young children should be awarded to the mother unless there were overriding reasons to the contrary, it found that in any event custody would still have been awarded to the mother as the child should live in a traditional Portuguese family. The Court found that homosexuality was an abnormality and that children should not grow up in the shadow of abnormal situations. The mother never respected the contact ordered and the father lodged enforcement proceedings. On 12 February 1996 he also lodged an application against the Republic of Portugal with the European Commission of Human Rights. In the latter application the father argued that in awarding parental responsibility to the mother based exclusively on his sexual orientation
the judgment of the Court of Appeal amounted to an unjustifiable interference with his right to respect for family life under art 8 of the European Convention on Human Rights. He further argued that the wording of the decision of the Court of Appeal clearly showed that the decision had been based mainly on his sexual orientation and that the attitude of the court had been out of touch with the realities of life and had discriminated against him in a manner prohibited by art 14 of the Convention.
Held – The judgment of the Court of Appeal, in so far as it set aside the judgment of the lower court, constituted an interference with the father’s right to respect for family life and attracted the application of art 8 of the Convention. Further, a difference of treatment was discriminatory within the meaning of art 14 if it had no objective and reasonable justification; if it did not pursue a legitimate aim or if there was not a reasonable relationship of proportionality between the means employed and the objective. In the present case the Lisbon Court of Appeal had introduced a new factor when making its decision, namely the father’s sexuality. It was clear from the wording of the judgment that the father’s homosexuality was a decisive factor in reaching its decision. That conclusion was supported by the fact that the Court of Appeal warned the father not to adopt conduct that would make the child realise the nature of his relationship with his partner. The court had made a distinction based on considerations regarding the father’s sexual orientation that was not acceptable under the Convention and which did not reflect proportionality between the means and the objective. Accordingly there had been a violation of art 8 of the Convention taken in conjunction with art 14.
Cases referred to in judgment of the CourtEngel v Netherlands (No 1) (1976) 1 EHRR 647, ECt HR.
Hoffmann v Austria (1994) 17 EHRR 293, ECt HR.
Irlen v Germany (1987) 53 DR 225, E Com HR.
Schmidt v Germany (1994) 18 EHRR 513, ECt HR.
ComplaintThe applicant father complained to the European Court of Human Rights alleging a violation of arts 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the decision of the Lisbon Court of Appeal made 9 January 1996 which reversed the judgment of the lower court and awarded parental responsibility to the mother with contact to the father. The facts are set out in the judgment of the European Court of Human Rights.
21 December 1999.
THE EUROPEAN COURT OF HUMAN RIGHTS (FOURTH SECTION)delivered the following judgment.
Procedure1. The case originated in an application (no 33290/96) against the Republic of Portugal lodged with the European Commission of Human Rights (the
Commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) by a Portuguese national, Mr João Manuel Salgueiro da Silva Mouta (the applicant), on 12 February 1996.
2. On 20 May 1997 the Commission decided to give notice of the application to the Portuguese Government (the Government) and invited them to submit observations in writing on its admissibility and merits. The Government submitted their observations on 15 October 1997 after an extension of the time allowed and the applicant replied on 6 January 1998.
3. Since the entry into force of Protocol No 11 on 1 November 1998 and pursuant to art 5(2) thereof, the application has been examined by the Court.
4. In accordance with r 52(1) of the Rules of Court, the President of the Court, Mr L Wildhaber, assigned the case to the Fourth Section. The Chamber constituted within that section included ex officio Mr I Cabral Barreto, the judge elected in respect of Portugal (art 27(2) of the Convention and r 26(1)(a)), and Mr M Pellonpää, the President of the Section (r 26(1)(a)). The other members appointed by the President of the Section to complete the Chamber were Mr G Ress, Mr A Pastor Ridruejo, Mr L Caflisch, Mr J Makarczyk and Mrs N Vajiæ (r 26(1)(b)).
5. On 1 December 1998 the Chamber declared the application admissible, considering that the complaints lodged by the applicant under arts 8 and 14 of the Convention should be examined on the merits.
6. On 15 June 1999 the Chamber decided to hold a hearing in private on the merits of the case. The hearing took place in the Human Rights Building, Strasbourg, on 28 September 1999.
There appeared before the Chamber: (a) for the Government Mr A Henriques Gaspar, Deputy Attorney General, agent, Mr P Guerra, lecturer, Legal Service Training College, adviser; (b) for the applicant Ms T Coutinho, lawyer, counsel, Mr R Gonçalves, trainee lawyer, adviser. The applicant also attended the hearing. The Court heard addresses by Ms Coutinho and Mr Henriques Gaspar, and also their replies to questions put by one of the judges.
7. In accordance with the decision of the President of the Chamber of 28 September 1999, the applicant filed an additional memorial on 8 October 1999 in respect of his claims under art 41 of the Convention. The Government replied on 28 October 1999.
The facts (I) The circumstances of the case8. The applicant is a Portuguese national born in 1961. He lives in Queluz (Portugal).
9. In 1983 the applicant married CDS. On 2 November 1987 they had a daughter, M. The applicant separated from his wife in April 1990 and has since then been living with a man, LGC. Following divorce proceedings instituted by
CDS, the divorce decree was pronounced on 30 September 1993 by the Lisbon Family Affairs Court (Tribunal de Família).
10. On 7 February 1991, during the divorce proceedings, the applicant signed an agreement with CDS concerning the award of parental responsibility (poder paternal) for M. Under the terms of that agreement CDS was to have parental responsibility and the applicant a right to contact. However, the applicant was unable to exercise his right to contact because CDS did not comply with the agreement.
11. On 16 March 1992 the applicant sought an order giving him parental responsibility for the child. He alleged that CDS was not complying with the terms of the agreement signed on 7 February 1991 since M was living with her maternal grandparents. The applicant submitted that he was better able to look after his child. In her memorial in reply CDS accused LGC of having sexually abused the child.
12. The Lisbon Family Affairs Court delivered its judgment on 14 July 1994 after a period in which the applicant, M, CDS, LGC and the child’s maternal grandparents had been interviewed by psychologists attached to the court. The court awarded the applicant parental responsibility, dismissing as unfounded—in the light of the court psychologists’ reports—CDS’s allegations that LGC had asked M to masturbate him. It also found, again in the light of the court psychologists’ reports, that statements made by M to that effect appeared to have been prompted by others. The court added:
‘The mother continues to be most uncooperative and it is wholly improbable that her attitude will change. She has repeatedly failed to comply with the Court’s...
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