Discrimination in Poland against lesbian in custody case is a violation of the ECHR

The First Section of the European Court of Human Rights has issued its judgment in the case of
X v Poland

The case concerns the applicant's claim that she had been discriminated against on the basis of her sexual orientation in proceedings for full parental rights and custody rights over her youngest child.

The Court held, by six votes to one, that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

Facts of the case

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, Ms. Z, Ms. 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 Ms. X and Mr. Y, in June 2005 the Regional Court quashed that decision. In the same month it pronounced a no-fault divorce and granted Ms. 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 Ms. Z, the District Court granted full parental rights to Mr. Y and restricting those of Ms. X.

Ms. X 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 April 2008, Ms. 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.

In May 2008, Ms. 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.

In June 2009, the District Court dismissed Ms. 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”.

Ms. X appealed, claiming that the child was being looked after mainly by Mr. Y's 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 was discriminatory on the basis of her sexual preferences. The Regional Court dismissed the appeal.

Complaint to the Court

Ms. X complained that the domestic courts had refused to grant her custody of her child on the grounds of her sexual orientation, which amounted to discrimination in the enjoyment of her Convention rights, in breach of Article 14 taken in conjunction with Article 8 of the Convention.

Judgment of the Court

The Court applied its general approach to complaints brought under Article 14 of the Convention, which includes the principle that, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous or relevantly similar situations.

The Court, therefore, considered whether there was a difference in treatment relevant to Article 14. In examining the domestic proceedings the Court found, for instance, that "references to the applicant’s homosexuality and relationship with Z were predominant in the first set of proceedings" (§ 76). 

The Court's "inescapable conclusion" was that Ms. X's "sexual orientation and relationship with another woman was consistently at the centre of deliberations in her regard and omnipresent at every stage of the judicial proceedings" (§ 79). 

The Court therefore concluded that there was a difference in treatment between Ms. X and any other parent wishing to have full custody of his or her child. This difference was based on her sexual orientation, a ground which is covered by “other status” in Article 14 of the Convention.

The Court then turned, as is standard in an Article 14 issue, to ask whether the difference in treatment was justified.

The Court focused on the fact that, in the most recent set of proceedings, the domestic courts refused to alter the status quo as regards custody 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 Court considered whether these arguments were appropriate to fulfil the purpose declared in these proceedings, namely to protect the best interests of the child. In so doing, the Court evaluated whether either or both reasons were based on discriminatory considerations.

The Court's conclusion was that the reference to the importance of a male role model for the boy’s upbringing, the need for which would apparently increase as the child grew older, was discriminatory and a decisive factor in the dismissal of Ms. X's requests for custody. 

Moreover, the Court noted that the domestic courts considered that a positive assessment of Ms. X's competencies as a primary carer for her children depended on her stopping her relationship with Ms. Z. In this respect, the domestic courts referred to her relationship as “excessive involvement” and an “attitude” which needed to be “corrected” and expected the relationship to be “abandoned” and Ms. Z to be “excluded from family life”.

The Court concluded that in refusing to grant Ms. X full parental rights and custody rights the domestic authorities "made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention" (§ 92).

As such, there had been a breach of Article 14 of the Convention taken in conjunction with Article 8.

Dissenting opinion of Judge Wojtyczek (Poland)

Judge Wojtyczek filed a dissenting opinion, criticising the majority on three grounds, namely that (i) the proceedings raise serious reservations from the viewpoint of procedural justice, (ii) the factual findings made by the Court are not fully accurate, and (iii) the legal assessment of the merits of the case appears incorrect.

Judge Wojtyczek argued that the proceedings in this case are "fundamentally flawed from the standpoint of procedural justice" and that the majority "have established a difference in treatment without providing sufficient evidence that the applicant was treated differently from another class of parents in a similar situation". 

Judge Wojtyczek concludes: "In any event, the contested domestic judgments remain within the scope of the margin of appreciation of the respondent State".

Brief comment on the influence of E.B. v France 

One of the striking features of this judgment is the use it makes of the Grand Chamber's judgment in E.B. v France. In E.B., which concerned discrimination on the grounds of sexual orientation in respect of the adoption of a child, the Court reached the "inescapable conclusion" that that applicant's "sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings" (§ 88) and, as a consequence of this, she had suffered discrimination. In the case of Ms. X, the Court has reached exactly the same conclusion.

As my colleague, Loveday Hodson, commented to me, the Court's judgment in the case of Ms. X shows "E.B. in action". In E.B. the applicant’s "life-style" as a lesbian living with another woman was made a determining factor in refusing her request to adopt a child. As the Grand Chamber intimated in E.B., having undue regard for an individual's sexual orientation can serve to "contaminate" judicial proceedings and decision-making to such an extent that the outcome is discriminatory. The Court can be seen to have adopted the same view in the case of Ms. X by holding that the domestic authorities made a distinction based solely or decisively on considerations regarding her sexual orientation, and that this distinction is not acceptable under the Convention.