November 30, 2021
In the case of X v. Poland, the ECtHR found that there had been a violation of articles 14 and 8 of the Convention in respect of a homosexual mother, who alleged that the removal of her youngest child from her custody, after her former husband obtained a change in the custody arrangements ordered in the divorce judgment, was primarily based on her relationship with her girlfriend. Additionally, the Court declared the applicant’s claim under article 6§1 ECHR (alleged lack of impartiality of a specific judge) inadmissible, as it had been lodged out of time (article 35 §§ 1 and 4 ECHR).
In this post, I argue that, even though the Court followed the reasoning initially established in the Hoffmann case and repeatedly confirmed in many of its judgments relating to allegations of discriminatory treatment against divorced parents, it missed a great opportunity to make explicit that parents’ sexual orientation per se does not affect their parental capability.
The claim was brought by a Polish national, X. In 1993 she married Y and had four children: two girls, A and B, and two boys, C and D.
In 2005 X became involved in a relationship with another woman, Z, and applied for a divorce. In June 2005 the Regional court pronounced a no-fault divorce and granted the applicant full parental rights and custody of her four children.
In October 2006 Y applied to change this custody arrangement. In that respect, two expert opinions were issued after assessment of the parents’ respective parenting abilities, during which one of the experts directly asked the applicant whether she was homosexual. In October 2007 the District court granted full parental rights to the father and restricted those of the applicant. The court, inter alia, considered that the mother wasn’t willing to abandon her excessive intimacy with Z in order to improve her relationship with the children.
X appealed; her appeal was unsuccessful, even though Y proposed that she retain custody of D, acknowledging that he had a stronger bond with her.
The three older children moved to live with Y, while the applicant refused to return D to his father and, in April 2008, she requested that the custody order be revised in respect of him.
On 8 May 2008 the District court dismissed the applicant’s application for an interim measure by allowing her to retain custody of D for the duration of the proceedings. The court notably held that the father was more able to care for D and that the applicant had focused excessively on herself and her relationship with her girlfriend.
On 27 May 2008 the District court ordered that the child be forcefully removed from his mother’s care; a few days later, the court guardian handed D over to his father.
In June 2009 the District court dismissed the applicant’s application for amendment of the custody order over D. It considered that the seven-year-old boy should continue living with his siblings and father and stated that leaving D to live with Y was also justified by the current stage of his development and the father’s larger role in creating the child’s male role model.
The applicant appealed, arguing, inter alia, that the court, when assessing D’s best interests, had failed to take into consideration Y’s homophobic opinions. She also submitted that the main grounds for the court’s decision had been her sexual preferences.
In September 2009 the Regional court dismissed the appeal and found that the applicant’s sexual orientation was not the reason for the dismissal of her application. It reiterated the importance of the male role model for the boy and of all the siblings staying together.
Firstly, it is important to understand the reasoning the ECtHR follows in cases relating to allegations of discriminatory treatment against divorced parents, on the basis of sexual orientation, transsexualism and religion. In the case of Hoffmann v. Austria, where the applicant complained under articles 8 and 14 ECHR that the Austrian courts had awarded parental rights over her children to their father rather than to her because she was a Jehovah’s Witness, the Court found a violation of the Convention and established a specific reasoning (Sudre et al, 2019), which has been repeatedly confirmed in similar discrimination cases (Salgueiro Da Silva Mouta v. Portugal, Palau-Martinez v. France, Ismailova v. Russia, P.V. v. Spain, Vojnity v. Hungary, A.M. and others v. Russia).
Indeed, the Strasbourg Court considers that issues related to custody and access rights attribution fall within the ambit of article 8 and, thus, the application of article 14 is ensured. Subsequently, it examines whether there is a difference in treatment suffered by the parent-applicant, based on an identifiable characteristic or status within the meaning of article 14 ECHR. If that is the case, the ECtHR examines whether the difference in treatment is discriminatory. It is so if it has no objective and reasonable justification: more specifically, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim pursued.
The Court accepts that the domestic decisions pursue a legitimate aim, namely the child’s best interests. Nevertheless, it is the ‘proportionality control’ that obtains specificity in these cases and determines the ruling of the Court (Patsianta 2017). The Court disapproves of the fact that a domestic decision is not based on the specific circumstances of the case, but on the applicant’s status in the abstract. More precisely, it sanctions a determination in abstracto of the child’s best interests based on possible negative consequences of the parents’ status over their children. When the ECtHR concludes that a reasonable relationship of proportionality does not exist between the means employed and the aim pursued, it objects to the domestic courts’ a priori criticism of the parents’ status (Hoffmann, Salgueiro Da Silva Mouta, Palau-Martinez, Vojnity, A.M. and others). On the contrary, the Court considers that a reasonable relationship of proportionality is attained, when the domestic decisions are based on precise and concrete factors demonstrating the negative influence of this status (Ismailova, P.V.).
The present case is in line with this case law. After reiterating that differences based solely or decisively on sexual orientation, which is a ground covered by “other status” within the meaning of article 14 ECHR, are unacceptable under the Convention, the Court delves into the implementation of its well-established reasoning in the present case.
The ECtHR confirms that the facts of the case fall within the ambit of article 8 ECHR and refers in a detailed way to the experts’ opinions issued during the first set of proceedings and to the Polish courts’ decisions. Subsequently, it reaches the ‘inescapable conclusion’ (§79) that the sexual orientation of the applicant was omnipresent at every stage of the judicial proceedings and, therefore, there was a difference in treatment between the applicant and any other parent wishing to have full custody of her or his children, on the basis of her sexual orientation.
The ECtHR accepts that the Polish courts’ decisions pursue a legitimate aim, the best interests of the child, and examines, in particular, whether the two main arguments on which the decisions of the Polish courts were based in respect of D, namely the advantages of all the siblings living together and the importance of a male role model for the boy’s upbringing, were appropriate to protect his best interests. Its conclusion is that they were not. More specifically, the Court considers that the domestic courts failed to assess the child’s best interests on the basis of all relevant and important aspects of the case, such as the strong bond between mother and son, the fact that the experts’ reports did not find anything of concern about the child’s well-being when he was under his mother’s care and the fact that the applicant was the child’s primary carer before his forced removal from her. Moreover, it notes that the reference to the male role model was repeated at every stage of the final set of proceedings as an essential consideration in the assessment of the child’s best interests; as it stresses, this was a stereotypical view that was not supported by expert reports and its reference was discriminatory.
Regarding the applicant’s relationship with her girlfriend, the ECtHR notes that the Polish authorities never examined Z’s attitudes and her relationship with D, while no suggestion had been made that the child had been adversely affected by her presence.
The Court considers that the Polish authorities’ decision made a distinction based solely or decisively on the applicant’s sexual orientation. It notably observes that the discriminatory reference to the importance of a male role model was a decisive factor in the dismissal of the applicant’s request. Furthermore, it underlines that a positive evaluation of the applicant’s role as a primary carer for her children depended on her ending her relationship with Z.
Despite the fact that the ECtHR sides with the claims of a homosexual mother, it misses a great opportunity to go a step further. More specifically, in the case of Vojnity v. Hungary, where the applicant complained that the absolute ban on his access rights in respect of his son had been based on his religious beliefs, the ECtHR followed the Hoffmann approach but also took a bold step. More precisely, on the basis of articles 8 and 9 ECHR together with article 2 Protocol N°1, the Court confirmed the right of married, and separated or divorced parents who do not have custody of their children to communicate and promote their religious convictions to them, even in an insistent or overbearing manner, unless this exposes the children to dangerous practices or to physical or psychological harm (§37). In other words, the Court made clear that parents’ religious beliefs per se cannot influence their capacity to raise their children.
The Court could have taken a similar step and could have explicitly stated that parents’ sexual orientation per se does not affect their parental capability. Indeed, the opportunity was ideal, as under the title ‘International Material’ a reference is made to the Explanatory Memorandum of the Resolution 2239 (2018) issued by PACE, ‘Private and family life: achieving equality regardless of sexual orientation’. In this Memorandum, Mr Jonas Gunnarsson, rapporteur, states, inter alia, that ‘as the Inter-American Court of Human Rights has made clear, and as was already implicit in the reasoning applied by the European Court of Human Rights nearly 20 years ago, a parent’s sexual orientation has no bearing on their capacity to raise and provide for a child.’ (§44). Moreover, under the same title, reference is also made to the case of Atala Riffo and daughters v. Chile, where the Inter-American Court found that the decision of the Chilean courts to remove three children from the custody of their homosexual mother was discriminatory on the basis of her sexual orientation, emphasizing that ‘an abstract reference to the child’s best interest … without specific proof of the risks or damage to children that could result from the mother’s sexual orientation’ is not acceptable (§45).
The dissenting opinion of Judge Wojtyczek reflects the fragile position of homosexual parents, especially in Poland. As the Institute of Psychology of the Polish Academy of Sciences, a third party intervener, points out, in this country, there are many inequalities in legal and practical matters directly affecting same-sex families, professionals who are in contact with these families often show prejudice towards them, while public attitude towards the LGBT community is negative and homophobic.
The Polish Judge disagrees with the majority on the violation found of articles 8 and 14 and raises three types of objections, which refer to the proceedings before the Court, the factual findings made by it and the legal assessment of the merits of the case.
Firstly, Judge Wojtyczek finds problematic the fact that the father, the children and the parents’ new partners have not been heard by the Court or invited to present observations, and that the Court’s ruling was based mainly on X’s submissions. According to article 36§2 ECHR, the President of the Court may, in the interest of the proper administration of justice, invite any person concerned to submit written comments or take part in hearings. For example, in the case Anagnostakis and others v. Greece regarding the visitation rights of a father in respect of his child born out of wedlock, the President of the Section allowed the child’s mother to submit a third-party intervener contribution. Judge Wojtyczek raises an interesting point; however, it is a decision to be taken in the context of each case. Indeed, a systematic implementation of this procedure in custody and access rights cases could be complex and ineffective, as the individuals concerned might not wish to get involved in the proceedings before the ECtHR or their contribution may not be necessary. In the present case, the implementation of this procedure would have been unlikely to change the Court’s ruling. Indeed, the applicant’s submissions and the third party interveners’ contributions have been solid enough to lead the Court to sanction Poland, while the involvement of other family members in the proceedings would have failed to offer crucial input.
Secondly, Judge Wojtyczek highlights the difficulty of establishing facts in international human rights proceedings and observes that the factual findings made by the Court omit some relevant circumstances of the case. In that respect, he provides certain examples, which mostly imply that, on certain occasions, the applicant may not have exercised correctly her parental responsibilities, but do not necessarily prove that the majority’s view is incorrect.
Thirdly, the Judge focuses on the question of discrimination; notably, he tries to minimize the emphasis given to the applicant’s sexual orientation (§3.2.1.) and the importance of the male role model by the national authorities (§ 3.2.2.). And as a last attempt to object to the majority’s opinion, he erroneously observes that the majority’s approach transformed the Court into an appeal body which reassessed the factual findings of the domestic courts and the application of the domestic law (§ 3.4.). This assessment has not been proven by his analysis; it rather reflects his strong intention to defend Polish authorities’ decisions at all costs.
In spite of considering that the rights of a homosexual mother have been infringed due to discriminatory treatment suffered by her as a result of her sexual orientation during parental and custody rights proceedings, the European Court failed to go a step further and make explicit that parents’ sexual orientation per se does not affect their parental capability.
Such a step would have greatly empowered rainbow families who, according to a third-party intervener, ILGA-Europe, have been already thriving throughout Europe, yet still face discrimination both in law and in practice. Nonetheless, even if this step is yet to be taken, the ECtHR once more stands up for the rights of homosexual parents on the basis of a determination in concreto of the child’s best interests.