Removal of child custody from the mother due to her same-sex relationship with another woman! Discrimination on the grounds of sexual orientation. Conviction from the Court
JUDGMENT
Χ. v. Poland 16.09.2021 (app. no. 20741/10)
SUMMARY
The case concerned proceedings the applicant brought to contest 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. She alleged that the courts had acted in his favour because of her
relationship with another woman. Relying on Article 14 taken in conjunction with Article 8, the
applicant complained that the domestic courts had refused to grant her custody of her child on the
grounds of her sexual orientation.
The Court found that the applicant’s sexual orientation and relationship with another woman had
been consistently at the centre of deliberations and present at every stage of the judicial
proceedings. It concluded that there had been a difference in treatment between the applicant and
any other parent wishing to have full custody of his or her child. That difference had been based on
her sexual orientation and therefore amounted to discrimination.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The applicant, Ms X, is a Polish national who was born in 1970 and lives in Poland. She has four
children from her marriage in 1993 with Mr Y.
After becoming involved in a relationship with another woman, Z, X applied for a divorce in
April 2005. Her parents, who did not approve of their daughter’s decisions, subsequently sought
custody of the children. Temporary custody was granted to them by the District Court, sitting as a
single judge – a judge who was allegedly well acquainted with her parents. Following an appeal by
both X and Y, in June 2005 the Regional Court quashed that decision. In the same month it
pronounced a no-fault divorce and granted X full parental rights and custody of the four children.
In October 2006 the applicant’s former husband applied to change the custody arrangement. After
assessment of their respective parenting abilities, during which the applicant was asked directly
whether she was homosexual and had had sexual intercourse with Z, the District Court inversed the
parental rights, granting full parental rights to Y and restricting those of X.
The applicant appealed, emphasising that she had always been the main carer for the children and
that her former husband had not spent time with the children since the divorce, either not using his
contact rights or leaving the children in the care of her parents. The appeal was dismissed in
January 2008, despite the applicant’s former husband proposing that X retain custody of the
youngest child; acknowledging that the latter had a stronger bond with his mother and that his taking care of him would be difficult. The applicant’s three older children moved to live with their father in compliance with the court order.
In April 2008 X requested that the custody order be revised in respect of her youngest child. The
District Court, sitting as the same single judge, and relying on the expert opinions issued in the
previous proceedings, held that the applicant “had concentrated excessively on herself and her
relationship with her girlfriend”, and rejected her request for an interim measure allowing her to
retain custody during the proceedings. On 26 May 2008, X lodged an application challenging the
impartiality of the judge. The following day, the same judge ordered that the child be removed from
her care. A few days later the court guardian took the boy from his kindergarten and handed him
over to his father.
On 8 June 2009, the District Court dismissed X’s application for amendment of the custody order and
for parental and custody rights over the youngest child. The court decided that the seven-year-old
should continue to live with his siblings and father so that his correct emotional and social
development needs could be met, stating that that decision was “justified by the current stage of
the child’s development and the father’s larger role in creating [the child’s] male role model”.
X appealed, claiming that the child was being looked after mainly by his sisters and grandparents.
She considered that the court had failed to recognise the interests of the child and had taken her
husband’s homophobic opinions into account, opinions which he had voiced to the children, the
courts and the experts. She argued that the main grounds for the court’s decisions had been her
relationship with another woman and discriminatory on the basis of her sexual preferences. The
Regional Court dismissed the appeal.
Relying on Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for
private and family life), the applicant complained that the domestic courts had refused to grant her
custody of her youngest child on the grounds of her sexual orientation.
Relying on Article 6 § 1 (right to a fair hearing), the applicant complained that the District Court
single judge had not been impartial since she was well acquainted with her parents.
THE DECISION OF THE COURT…
Article 14 taken in conjunction with Article 8
The Court found that the references to the applicant’s homosexuality and relationship with Z were
predominant in the first set of proceedings concerning the four children. The first expert report had
concluded that it would be possible for the applicant to keep her children if she “decisively corrected
her attitude and excluded her girlfriend from family life”. Her suspected homosexuality and sex life
also featured in the second expert opinion, the expert having openly questioned the applicant about
her intimate relations with Z and concluding that the children would prefer to live with their father.
Those two opinions had been the basis of the ruling which placed all four children in their father’s
care and limited the applicant’s parental rights.
The Court considered that the same expert opinions and the first ruling had had a decisive bearing
on the final set of domestic proceedings concerning custody of the youngest child. Both the
applicant and her former husband had been considered to have similar parenting abilities; yet the
courts had refused to alter the status quo as regards custody of the youngest child on the basis of
two main arguments – the advantages of all the siblings living together and the importance of a male
role model in the boy’s upbringing.
The applicant’s sexual orientation and relationship with another woman had been consistently at
the centre of the deliberations and omnipresent at every stage of the judicial proceedings. There
had therefore been a difference in treatment between the applicant and any other parent wishing to
have full custody of his or her child. That difference had been based solely or decisively on her sexual
orientation, amounting to discrimination within the meaning of the European Convention.
There had thus been a violation of the Convention under these Articles.
Article 6 § 1
The Court considered that the final decision concerning this part of the application had been given
on 16 September 2008. The application to the Court had thus been lodged out of time.
Just satisfaction (Article 41)
The Court held that Poland was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary
damage.
Separate opinion
Judge Wojtyczek expressed a dissenting opinion, which is annexed to the judgment.
