Salguiero Da Silva Mouta v. Portugal

Application no. 33290/96
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S was a homosexual Portuguese national. In 1983 he married a woman, C, with whom he had a daughter. S and C subsequently separated and then divorced. Since their separation, S had been living with another man. In connection with their divorce, S and C signed an agreement giving C parental responsibility over the daughter and S certain rights of contact with his daughter. However, S was not able to exercise his rights of contact because C did not comply with the agreement. As a result, S sought an order giving him parental responsibility for the daughter. The family affairs court awarded S parental responsibility after finding that S was better suited to take care of their daughter than C.

C appealed the family affairs court’s decision. The Court of Appeal reversed the lower court’s decision and awarded C parental responsibility and S certain contact rights with his daughter. In its decision, the Court of Appeal stated, among other things, that the ‘child should live in…a traditional Portuguese family’ and that homosexuality is an ‘abnormality and children should not grow up in the shadow of abnormal situations’.

S lodged the current application against Portugal claiming that the Court of Appeal’s decision violated Article 8 of the ECHR taken alone and in conjunction with Article 14. S also requested just satisfaction as damages. S never disputed that his daughter’s interests were paramount. However, S claimed that the Court of Appeal’s decision amounted to an unjustifiable interference with his right to respect for his family life because it was based exclusively on his sexual orientation, which bore no relation to the realities of life or common sense. S also pointed out that the lower court, which found in his favor, had direct knowledge of the facts, whereas the Court of Appeal ruled solely on written transcripts.

The State argued that with regard to family life, States enjoyed a wide margin of appreciation in respect of the pursuit of the legitimate aims set out in paragraph 2 of Article 8. As such, the State claimed that in instances such as this, where the interests of the child are paramount, national authorities were better positioned than international courts to rule on such matters. The State claimed that the Court of Appeal based its decision exclusively on the overriding interests of the daughter and not on the sexual orientation of S and that, as a consequence, S had not been treated differently than C. The State claimed further that the Court of Appeal’s statements regarding S’s sexual orientation were merely clumsy or unfortunate and as such, could not in themselves constitute a violation of the ECHR.

[Adapted from INTERIGHTS summary, with permission]

The Court held that:

(1) because the Court of Appeal introduced a new factor in reversing the lower court, namely the sexual orientation of S, S was treated differently from C;

(2) a difference in treatment was discriminatory if it did not pursue a legitimate aim or if there was no proportionality between the means employed and the aim sought to be realized;

(3) because the protection of the health and rights of children was a legitimate aim, the Court must determine whether the second requirement for proportionality was satisfied;

(4) in light of the earlier finding that the Court of Appeal introduced the sexual orientation of S as a new factor in overturning the lower court, the language used by the Court of Appeal concerning the sexual orientation of S was more than clumsy or unfortunate and was instead decisive to the Court of Appeal in reaching its decision;

(5) Article 8 taken in conjunction with Article 14 was violated because there was no reasonable relationship of proportionality between the means employed and the aim pursued when the Court of Appeal distinguished between S and C based on the sexual orientation of S;

(6) in view of the above ruling, there was no need to rule on whether there was a violation under Article 8 taken alone; and

(7) the present judgment constituted just satisfaction for the alleged damages.

[Adapted from INTERIGHTS summary, with permission]

"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." Paragraph 28

"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. . . . 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." Paragraphs 35 and 36.

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