Salgueiro da Silva Mouta v. Portugal  | 1999

Legal standards changed after gay father was denied custody of his child

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.

Judgment of the European Court of Human Rights, 21 December 1999


A lower court granted João Salgueiro da Silva Mouta custody of his daughter, after he and his wife got divorced. However, his ex-wife abducted the child and refused to let the girl see him.

When the Court of Appeal examined the case, it gave custody to the mother rather than João. One of the reasons given was that João was gay – and homosexuality was an abnormality that children should not be exposed to when growing up.

Judgment of the European Court of Human Rights

The European court found that João Salgueiro da Silva Mouta’s homosexuality had been decisive in the authorities’ refusal to grant him custody. This had been discriminatory, with no proper justification.


The Portuguese courts re-examined the case without taking into consideration João's homosexuality.

Following the European court’s judgment, Portuguese courts are no longer able to take the sexual orientation of a parent into account when deciding on custody rights.


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