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Salgueiro da Silva Mouta v. Portugal, [1999] 1999-IX Eur. Ct. H.R. 309

Facts: The applicant was a Portuguese national and was prevented by his ex-wife from visiting his daughter, in breach of an agreement reached after their divorce. He sought an order giving him parental responsibility for the child, which was granted by the Lisbon Family Affairs Court. On appeal he was denied the child custody on the ground that he was a homosexual and living with another man.

Complaint: the applicant complained of a violation of article 8 and 14 of the European Convention.

Holding: the ECHR held that there had been a violation of Article 8 (right to respect for private and family life) taken together with Article 14 (prohibition of discrimination) of the European Convention

Reasoning: the denial of child custody constituted an interference with the applicant’s right to respect for his family life. Moreover there had been a difference in treatment between the applicant and the child’s mother based on the applicant’s sexual orientation. Such a difference in treatment was discriminatory under article 14 if it had no objective or reasonable justification. The homosexuality of the applicant was not such a reasonable justification and legitimate aim. Therefore there had been a violation of article 8 and 14 of the Convention.


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