Parental authority, child custody and access rights
ii. Relevant domestic law 19. Article 1905 of the Civil Code provides: “1. In the event of divorce …, child custody, maintenance and the terms of payment shall be determined by agreement between the parents, which is subject to confirmation by the ... court … 2. In the absence of an agreement, the court shall decide on the basis of the interests of the child, including the child’s interest in maintaining a very close relationship with the non-custodial parent ...” 20. Certain provisions of the Guardianship Act are also relevant to the instant case. Section 180 “1. ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child, custody of whom may be awarded to one of the parents, a third party or an educational or welfare establishment. 2. Contact arrangements shall be made unless, exceptionally, this would not be in the child’s interests ...” Section 181 “If one of the parents does not comply with the agreement or decision reached in respect of the child’s situation, the other parent may apply to the court for enforcement ...” Section 182 “If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms, one of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ...” THE LAW i. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 21. The applicant complained that the Lisbon Court of Appeal had based its decision to award parental responsibility for their daughter, M., to his ex-wife rather than to himself exclusively on the ground of his sexual orientation. He alleged that this constituted a violation of Article 8 of the Convention taken alone and in conjunction with Article 14. The Government disputed that allegation. 22. Under Article 8 of the Convention, “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court notes at the outset that the judgment of the Court of Appeal in question, in so far as it set aside the judgment of the Lisbon Family Affairs Court of 14 July 1994 which had awarded parental responsibility to the applicant, constitutes an interference with the applicant’s right to respect for his family life and thus attracts the application of Article 8. The Convention institutions have held that this provision applies to decisions awarding custody to one or other parent after divorce or separation (see the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29; see also Irlen v. Germany, application no. 12246/86, Commission decision of 13 July 1987, Decisions and Reports 53, p. 225). That finding is not affected by the Government’s submission that since the judgment of the Court of Appeal did not ultimately vary what had been decided by friendly settlement between the parents on 7 February 1991, there was no interference with the rights of Mr Salgueiro da Silva Mouta. The Court observes in that connection that the application lodged – successfully – by the applicant with the Lisbon Family Affairs Court was based on, among other things, the fact that his ex-wife had failed to comply with the terms of that agreement (see paragraph 11 above). A. Alleged violation of Article 8 taken in conjunction with Article 14 23. Given the nature of the case and the allegations of the applicant, the Court considers it appropriate to examine it first under Article 8 taken in conjunction with Article 14, according to which “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 24. Mr Salgueiro da Silva Mouta stressed at the outset that he had never disputed the fact that his daughter’s interests were paramount, one of the main ones consisting in seeing her father and being able to live with him. He argued, nonetheless, that the Court of Appeal’s judgment, in awarding parental responsibility to the mother exclusively on the basis of the father’s sexual orientation, amounted to an unjustifiable interference with his right to respect for his family life. The applicant submitted that the decision in issue had been prompted by atavistic misconceptions which bore no relation to the realities of life or common sense. In doing so, he argued, the Court of Appeal had discriminated against him in a manner prohibited by Article 14 of the Convention. The applicant pointed out that judgment had been given in his favour by the court of first instance, that court being the only one to have had direct knowledge of the facts of the case since the Court of Appeal had ruled solely on the basis of the written proceedings. 25. The Government acknowledged that Article 8 could apply to the situation in question, but only as far as the applicant’s right to respect for his family life with his child was concerned. They stressed, however, that no act had been done by a public authority which could have interfered with the applicant’s right to the free expression and development of his personality or the manner in which he led his life, in particular his sexual life. With regard to family life, however, the Government pointed out that, as far as parental responsibility was concerned, the Contracting States enjoyed a wide margin of appreciation in respect of the pursuit of the legitimate aims set out in paragraph 2 of Article 8 of the Convention. They added that in this field, in which the child’s interests were paramount, the national authorities were naturally better placed than the international court. The Court should not therefore substitute its own interpretation of things for that of the national courts, unless the measures in question were manifestly unreasonable or arbitrary. In the instant case the Lisbon Court of Appeal had taken account, in accordance with Portuguese law, of the child’s interests alone. The intervention of the Court of Appeal had been prescribed by law (Article 1905 § 2 of the Civil Code and sections 178 to 180 of the Guardianship Act). Moreover, it had pursued a legitimate aim, namely the protection of the child’s interests, and was necessary in a democratic society. The Government concluded that the Court of Appeal, in reaching its decision, had had regard exclusively to the overriding interests of the child and not to the applicant’s sexual orientation. The applicant had not therefore been discriminated against in any way. 26. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see the Hoffmann judgment cited above, p. 58, § 31). It must be determined whether the applicant can complain of such a difference in treatment and, if so, whether it was justified. 1. Existence of a difference in treatment 27. The Government disputed the allegation that in the instant case the applicant and M.’s mother had been treated differently. They argued that the Lisbon Court of Appeal’s decision had been mainly based on the fact that, in the circumstances of the case, the child’s interests would be better served by awarding parental responsibility to the mother. 28. The Court does not deny that the Lisbon Court of Appeal had regard above all to the child’s interests when it examined a number of points of fact and of law which could have tipped the scales in favour of one parent rather than the other. However, the Court observes that in reversing the decision of the Lisbon Family Affairs Court and, consequently, awarding parental responsibility to the mother rather than the father, the Court of Appeal introduced a new factor, namely that the applicant was a homosexual and was living with another man. The Court is accordingly forced to conclude that there was a difference of treatment between the applicant and M.’s mother which was based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14 of the Convention. The Court reiterates in that connection that the list set out in that provision is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “ notamment ”) (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 30-31, § 72). 2. Justification for the difference in treatment 29. In accordance with the case-law of the Convention institutions, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291 ‑ B, pp. 32-33, § 24). 30. The decision of the Court of Appeal undeniably pursued a legitimate aim, namely the protection of the health and rights of the child; it must now be examined whether the second requirement was also satisfied. 31. In the applicant’s submission, the wording of the judgment clearly showed that the decision to award parental responsibility to the mother was based mainly on the father’s sexual orientation, which inevitably gave rise to discrimination against him in relation to the other parent. 32. The Government submitted that the decision in question had, on the contrary, merely touched on the applicant’s homosexuality. The considerations of the Court of Appeal to which the applicant referred, when viewed in context, were merely sociological, or even statistical, observations. Even if certain passages of the judgment could arguably have been worded differently, clumsy or unfortunate expressions could not in themselves amount to a violation of the Convention. 33. The Court reiterates its earlier finding that the Lisbon Court of Appeal, in examining the appeal lodged by M.’s mother, introduced a new factor when making its decision as to the award of parental responsibility, namely the applicant’s homosexuality (see paragraph 28 above). In determining whether the decision which was ultimately made constituted discriminatory treatment lacking any reasonable basis, it needs to be established whether, as the Government submitted, that new factor was merely an obiter dictum which had no direct effect on the outcome of the matter in issue or whether, on the contrary, it was decisive. 34. The Court notes that the Lisbon Family Affairs Court gave its decision after a period in which the applicant, his ex-wife, their daughter M., L.G.C. and the child’s maternal grandparents had been interviewed by court psychologists. The court had established the facts and had had particular regard to the experts’ reports in reaching its decision. The Court of Appeal, ruling solely on the basis of the written proceedings, weighed the facts differently from the lower court and awarded parental responsibility to the mother. It considered, among other things, that “custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see paragraph 14 above). The Court of Appeal further considered that there were insufficient reasons for taking away from the mother the parental responsibility awarded her by agreement between the parties. However, after that observation the Court of Appeal added “Even if that were not the case ... we think that custody of the child should be awarded to the mother” (ibid.). The Court of Appeal then took account of the fact that the applicant was a homosexual and was living with another man in observing that “The child should live in ... a traditional Portuguese family” and that “It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations” (ibid.). 35. It is the Court’s view that the above passages from the judgment in question, far from being merely clumsy or unfortunate as the Government maintained, or mere obiter dicta, suggest, quite to the contrary, that the applicant’s homosexuality was a factor which was decisive in the final decision. That conclusion is supported by the fact that the Court of Appeal, when ruling on the applicant’s right to contact, warned him not to adopt conduct which might make the child realise that her father was living with another man “in conditions resembling those of man and wife” (ibid.). 36. The Court is therefore forced to find, in the light of the foregoing, that the Court of Appeal made a distinction based on considerations regarding the applicant’s sexual orientation, a distinction which is not acceptable under the Convention (see, mutatis mutandis, the Hoffmann judgment cited above, p. 60, § 36). The Court cannot therefore find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14. B. Alleged violation of Article 8 taken alone 37. In view of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 taken alone; the arguments advanced in this respect are essentially the same as those examined in respect of Article 8 taken in conjunction with Article 14. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant requested the Court to award him “just satisfaction” without, however, quantifying his claim. In the circumstances the Court considers that the finding of a violation set out in the present judgment constitutes in itself sufficient just satisfaction in respect of the damage alleged. B. Costs and expenses 40. The applicant requested reimbursement of the costs incurred in lodging his application, including those of himself and his advisers attending the hearing before the Court, namely 224,919 Portuguese escudos (PTE), 5,829 French francs, 11,060 Spanish pesetas and 67 German marks, that is a total sum of PTE 423,217. He also requested reimbursement of the fees billed by his lawyer and by the adviser who had assisted her in preparing for the hearing before the Court, that is PTE 2,340,000 and PTE 340,000 respectively. 41. The Government left the matter to the Court’s discretion. 42. The Court is not satisfied that all the costs claimed were necessary and reasonable. Making an equitable assessment, it awards the applicant an aggregate sum of PTE 350,000 under that head. As regards fees, the Court considers that the sums claimed are also excessive. Making an equitable assessment and having regard to the circumstances of the case, it decides to award PTE 1,500,000 for the work done by the applicant’s lawyer and PTE 300,000 for that done by her adviser. C. Default interest 43. According to the information available to the Court, the statutory rate of interest applicable in Portugal at the date of adoption of the present judgment is 7% per annum.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. The Portuguese courts’ decision had been largely based on the fact that the applicant was a homosexual and that “the child should live in a traditional Portuguese family”. That distinction, based on considerations relating to sexual orientation, was not acceptable under the Convention.