06 Oct Discrimination based on the sexual orientation of the mother in court custody proceedings

In the case of X. v. Poland (application no. 20741/10, 16.09.2021) the European Court of Human Rights held that there had been: a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned proceedings the applicant brought to contest the removal of her youngest child from her custody after her former husband obtained a change in the custody arrangements ordered in the divorce judgment. She alleged that the courts had acted in his favour because of her relationship with another woman. Relying on Article 14 taken in conjunction with Article 8, the applicant complained that the domestic courts had refused to grant her custody of her child on the grounds of her sexual orientation. 

The Court found that the references to the applicant’s homosexuality and relationship with Z were predominant in the first set of proceedings concerning the four children. The first expert report had concluded that it would be possible for the applicant to keep her children if she “decisively corrected her attitude and excluded her girlfriend from family life”. Her suspected homosexuality and sex life also featured in the second expert opinion, the expert having openly questioned the applicant about her intimate relations with Z and concluding that the children would prefer to live with their father. Those two opinions had been the basis of the ruling which placed all four children in their father’s care and limited the applicant’s parental rights.

The Court considered that the same expert opinions and the first ruling had had a decisive bearing on the final set of domestic proceedings concerning custody of the youngest child. Both the applicant and her former husband had been considered to have similar parenting abilities; yet the courts had refused to alter the status quo as regards custody of the youngest child on the basis of two main arguments – the advantages of all the siblings living together and the importance of a male role model in the boy’s upbringing.

The applicant’s sexual orientation and relationship with another woman had been consistently at the center of the deliberations and omnipresent at every stage of the judicial proceedings. There had therefore been a difference in treatment between the applicant and any other parent wishing to have full custody of his or her child. That difference had been based solely or decisively on her sexual orientation, amounting to discrimination within the meaning of the European Convention. There had thus been a violation of the Convention under these Articles.

References from the official website of the European Court of Human Rights