X. v Poland
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Custody rights
(Application no. 20741/10), 19 July 2019
Find here the communicated case.
- Following a divorce, a mother was denied custody of her three children on grounds of her sexual orientation.
- ILGA-Europe together with FIDH, ICJ, KPH and NELFA submitted the following:
- The ECtHR expressly stated that the concept of one’s sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground is considered ‘suspect’ and subject to ‘particularly severe scrutiny’. The Court has confirmed that parent-child ties and custody cases fall under Article 8, and applies to LGBTI parents’. In Salgueiro da Silva Mouta v. Portugal, the ECtHR considered that the refusal to grand custody over the child based on the applicant’s sexual orientation constituted a violation of Article 8 in conjunction with Article 14. The IACtHR reached the same conclusion in Atala Riffo y Ninas v Chile, where custody rights were denied to the mother due to her sexual orientation. A number of national courts in Europe and internationally have considered the custodial rights of gay and lesbian parents, affirming their right to equal access to children without discrimination based on sexual orientation.
- This case provides the Court with the opportunity to reaffirm its findings made in Salgueiro da Silva Mouta v. Portugal and confirm rights of parents irrespective of their sexual orientation or gender identity and expression to equal access to custody of their children.
