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

Themes: Right to equality and freedom from discrimination Portugal

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, 21st December 1999

Background

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

When the Court of Appeal examined the case, it gave custody to the mother rather than Mr Salgueiro da Silva Mouta. One of the reasons given was that Mr Salgueiro da Silva Mouta 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 court found that Mr 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.

Follow-up

The Portuguese courts re-examined the case without taking into consideration the applicant’s homosexuality.

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

Additional information

Themes: Right to equality and freedom from discrimination Portugal