Salgueiro da Silva Mouta v. Portugal (dec.)

Information Note on the Court’s case-law No. 1

November-December 1998

Salgueiro da Silva Mouta v. Portugal (dec.) - 33290/96

Decision 1.12.1998

Article 8

Article 8-1

Respect for family life

Refusal to grant custody to a parent living in a homosexual relationship: admissible

Respect for private life

Parent obliged to hide his homosexuality during meetings with his daughter: admissible

Article 14

Discrimination

Refusal to grant custody to a parent living in a homosexual relationship: admissible

The applicant married in 1983.  A girl, M., was born to the couple in 1987.  Since 1990, the applicant has been living in a homosexual relationship.  In the divorce proceedings, the applicant and his spouse concluded an agreement whereby custody was granted to the mother, the applicant being awarded a right of access.  However, M.’s mother refused him access and the applicant filed a request for custody to be awarded to him.  The court acceded to this request in a judgment delivered in 1994 and M. lived with the applicant until 1995, when she was allegedly abducted by her mother (criminal proceedings are currently pending in this connection).  His former wife appealed against this decision and the appeal court set aside the judgment, holding that, as a general rule, a young child should not be separated from its mother, but it also added that a homosexual environment could not be considered to be the healthiest for a child’s development, given that this was an abnormal situation.  Nevertheless, the court awarded a right of access to the applicant, who maintains that it is not being honoured as the whereabouts of M. are unknown.  No appeal was filed against this decision.  The applicant, relying on Article 8 in conjunction with Article 14, alleges that the appeal court awarded custody to M.’s mother on the basis of his homosexuality.  He also claims that the appeal court’s decision constitutes an unjustified interference with his right to respect for family life, and also with his right to respect for his private life in that it was specified that he must hide his homosexuality in his meetings with his daughter.

Admissible under Article 8 and Article 14 in conjunction with Article 8.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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