CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 septembre 2021

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POLAND (Application no. 20741/10)     JUDGMENT   Art 14 (+ Art 8) • Discrimination • Family life • Refusal to grant applicant full parental rights and custody over her youngest child based solely or decisively on considerations regarding her sexual orientation • Decisive and discriminatory reliance on importance of male role model   STRASBOURG 16 September 2021   FINAL   28/02/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of X v. Poland, The European Court of Human Rights (First Section), sitting as a   Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   20741/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms X (“the applicant”), on 18 March 2010; the decision to give notice to the Polish Government (“the Government”) of the complaints concerning Article 6 and Article 14 taken in conjunction with Article 8 of the Convention; the decision not to have the applicant’s name disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Polish National Chamber of Legal Advisers ( Krajowa Izba Radców Prawnych ), the Institute of Psychology of the Polish Academy of Sciences, the Ordo Iuris Institute for Legal Culture, and ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) on behalf of ILGA and four other organisations: the FIDH (International Federation for Human Rights), KPH (the Campaign Against Homophobia), NELFA (the Network of European LGBTIQ* Families Associations) and the ICJ (International Commission of Jurists), organisations that the President of the Section had authorised to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court); Having deliberated in private on 6 July 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant alleged 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 FACTS 2.     The applicant was born in 1970 and lives in L. The applicant was represented by Ms K. Kędziora, a lawyer practising in Warsaw. 3.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     In 1993 the applicant married Mr Y. Their first two children, A and B, girls, were born in 1993 and 1996 respectively. Afterwards, two boys were born, C in 1998 and D on 24 December 2001. Divorce 6.     A conflict between the applicant and her husband over custody of their children apparently started in 2005. At that time the applicant became involved in a relationship with another woman, Z. 7.     In April 2005 the applicant applied for a divorce. 8.     A serious disagreement between the applicant and her parents developed, as they did not accept her decisions about her personal life. They instituted proceedings in which they sought custody of her children. On 28   April 2005 the R District Court, sitting as a single judge, Judge   D.T., granted them temporary custody of A, B, C and D. The applicant and her husband appealed against the decision. On 16 June 2005 the S Regional Court allowed their appeal and quashed the impugned decision. The court noted that although the family had been going through a difficult period due to the impending divorce, both parents had been caring for their children properly. There had been no justification for such a profound interference by the authorities and the children’s removal and placement in the custody of their grandparents. The appellate court also considered that the first ‑ instance court had incorrectly and to the largest extent based itself on statements of the grandparents, ignoring other evidence. 9 .     On 6 June 2005 the S Regional Court granted a divorce in the proceedings initiated by the applicant. The court pronounced a no-fault divorce and granted the applicant full parental rights and custody of the parties’ four children. The applicant’s former husband’s parental rights were restricted. Neither the applicant nor Y appealed against the judgment; no written grounds for it were prepared. The divorce judgment became final on 28   June 2005. First set of custody proceedings 10 .     On 2 October 2006 the applicant’s former husband applied to change the custody arrangement ordered in the divorce judgment. 11 .     On 16 May 2007 an expert opinion was obtained from the Głogów Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno Konsultacyjny , “RODK”). The experts were firstly asked to give an opinion on the existence of family bonds between all four children, the applicant, and Y. Secondly, they examined what parenting abilities ( predyspozycje wychowawcze ) both parents had, and which parent should be given full parental rights. Lastly, they were asked to consider whether the children’s interests justified them being separated, so that some children would live with one parent and some would live with the other. The experts drew the following conclusions: “On the basis of the assessments, it is established that the children, who are minors, are emotionally attached to both parents, however currently the father is of paramount importance ( pierwszoplanowy ) to them, [and] their relationship with the mother has been disrupted ( ulegly zaburzeniu ). The minors A, B and C have better contact with their father, [and] in [their] relations with him they are open, show their feelings and expectations, [and] feel secure, accepted and important. In [their] relations with their mother, A and B have feelings of regret, rejection, [and a] lack of interest and understanding. The girls expect the mother to change her attitude towards them, withdraw from her relationship with Z, concentrate on matters relating to them, [and] take into account their expectations and feelings. The minor D is disoriented in the family situation. In comparison with [his] older siblings, he demonstrates his frustration to a lesser degree, [since] he holds a privileged position in the family and receives more attention from the mother and her girlfriend. However, the results of the assessments show the child’s serious emotional instability, which disrupts his social and cognitive development. C still wishes to stay in his father’s care, [and] rejects the possibility of returning to live with the mother because of strong traumatic experiences linked with her violent behaviour towards him. The boy has emotional bonds with his siblings, is in permanent contact with them, and wishes to be raised with them, in his father’s care. The assessments show that Y currently has better parenting abilities than [the applicant], more meaningful contact with the children, [and a] better understanding of their needs, and [he] meets their expectations to a larger extent. The minors receive interest [from their father], trust him, [and] feel [that they are] important to him. He is stable in [his] relations with the children, [and] gives them a sense of stability. However, [the applicant] is at times excessively tense, irritated and erratic, which does not help their emotional stability and distances them from her emotionally. The applicant’s excessive concentration on herself and on her relations with Z means that she is not involved in matters relating to the children to a sufficient degree, does not take into account their feelings and expectations, [and] requests acceptance of her behaviour in spite of the resistance and opposition from the children. In difficult situations relating to parenting, [the applicant] cannot cope with her emotions and can be too radical in her actions. It would be possible for [the applicant] to continue to have care of the children, provided that she decisively corrects her attitude, excludes Z from family life, and continues psychological therapy aimed at improving her relations with the children. Owing to [her] symptoms of excessive tension and impulsivity, the applicant should consult a psychiatrist. It is proposed that A, B and D, who are relying on a positive change in the mother’s attitudes and have ties to their current place of residence, conditionally remain in the care of [the applicant], with supervision from the court guardian. The psychological situation of C indicates that he should stay in the care of his father and have relations with his siblings. [The applicant] should take actions to re-establish his trust and rebuild their relations. In the event of a lack of positive change in [the applicant’s] behaviour as a mother, it will be necessary to give direct care to the father, for the best interests of the children and for their further correct social and emotional development.” 12 .     On 9 October 2007 another expert issued an opinion in which she answered a question from Judge D.T. as to what the children’s preferences were. When questioned by the expert, the applicant had been directly asked whether she had had sexual intercourse with Z and whether she was a   homosexual. The expert concluded that the children would prefer to live with their father. The opinion stated: “[the applicant] was not and is not in a homosexual relationship with Z, who has sometimes stayed overnight owing to lengthy conversations, but they have not had sexual intercourse.” 13.     On 16 October 2007 the R District Court, sitting in a composition of one professional judge, Judge D.T., and two lay judges, granted the application by the applicant’s former husband and restricted the applicant’s parental rights in respect of her four children. The court granted full parental rights to Y and issued a custody order in his favour. It considered that the applicant’s marriage had broken down because in 2004 she had started a   relationship with another woman, Z. 14.     The court took into account the wishes of the applicant’s three older children – aged thirteen, eleven and eight at the time – to live with their father. The court noted that the applicant’s former husband had started a   new relationship and considered that the children had accepted his new partner. The court stated “[the applicant] doesn’t want to abandon [her] excessive intimacy with Z in order to improve [her] relations with [her] children” . 15.     The court held: “It is clear from the expert opinions that [the applicant], although declaring [that she has a] strong emotional bond with the children, does not notice their needs and problems and does not meet their expectations. She expects them to accept and submit to the current situation. She does not want to abandon her excessive proximity to Z for the sake of her relations with [the children]. When having contact with the children, [the applicant] is tense, irritated, erratic and aggressive. Her relations with the children are superficial ... Her current parental behaviour is incorrect, owing to her personal problems and emotional involvement in a relationship with another woman, [a woman] who interferes with family life, evokes strong and negative feelings in the children, and destabilises the parenting atmosphere. It would have been possible for the applicant to continue to exercise [her] parental rights, if she had decisively corrected her attitude, excluded Z from family life, and continued psychological therapy aimed at improving her relations with the children. However, [the applicant] has not been able to correct her behaviour, in spite of the signals coming from the children and the clearly destructive influence which her serious involvement in the relationship with her girlfriend has on family life. In comparison with [the applicant], Y is totally different. He has a mature approach to [his] parental duties. His attitude towards the children does not raise any concerns. In [his] relations with the children, he is warm, cordial [and] communicative, and able to have close contact [with them], ease tension, [and] encourage the open expression of feelings ... The children, who are minors, are emotionally attached to both parents, however currently the father is of paramount importance to them, [and] their relationship with the mother has been disrupted ... Taking into account those circumstances, the court considers that there has now been a change in circumstances, which justifies changing the ruling on the parties’ parental rights over the children. The court considers that there is no guarantee that the applicant will provide her children with the correct care, owing to her serious involvement in her relationship with Z. Although the children did not accept the mother’s relationship or her girlfriend, the applicant forced them to be nice to Z and show her respect. The court considers that the applicant, despite declaring [that she has] a strong relationship with the children, is unable and actually unwilling to revise her behaviour, [and this] undoubtedly has a negative influence on the children’s emotional and psychological development. The court considers that, for the well-being of the children, at present it is necessary to grant Y parental rights and limit the applicant’s parental rights.” 16.     The applicant appealed. In her appeal, she contested the court’s conclusions that her children would prefer to live with their father and had not accepted Z. She complained that the experts had distorted their words, and that they were too young to be given responsibility for decisions about which parent they wanted to live with. The applicant emphasised that she had been the main carer for the children during the marriage and after its dissolution; her former husband had not spent time with all four children, and had either not used his contact rights or left the children with their maternal grandparents. 17 .     On 10 January 2008 the S Regional Court held a hearing at which the applicant’s former husband proposed that the applicant retain custody of   D. He acknowledged that his youngest child had a stronger bond with his mother and that taking custody of him, although possible, would be difficult. At the same hearing, the court dismissed the applicant’s appeal. Proceedings to challenge the judge 18.     On 26 May 2008 the applicant lodged an application whereby she challenged the impartiality of Judge D.T. She submitted that the judge had known her parents from the time when they had been lay judges, from   2000 until 2003. Her mother had worked at that court as a guardian since the 1980s. Moreover, the judge had clearly shown bias against the applicant in the past in granting her parents temporary custody of her four children. There had been no justification for such a decision, as had been noted by the appellate court in 2005. In the applicant’s opinion, there was no doubt that the judge had sympathised with her parents and former husband. 19.     On 2 June 2008 the R District Court dismissed the challenge. The court, which was the same court where the challenged judge sat, considered that there was no objective justification for challenging Judge D.T.’s impartiality. 20.     The applicant appealed against the decision. 21 .     On 16 September 2008 the S Regional Court dismissed her appeal. The court considered that the applicant had failed to justify the allegation that Judge D.T. had the type of personal relationship with her parents which could raise doubts as to the judge’s lack of impartiality. SECOND set of custody proceedings 22.     Subsequently, the applicant’s three older children moved to live with their father, as ordered by the courts. The applicant refused to return her youngest child, D, to her former husband. 23.     On 15 April 2008 the applicant had requested that the custody order be revised in respect of D and that she be granted parental rights. She had submitted that the child had always lived with her, even after the order of 16   October 2007. The child had strong emotional ties to her and refused to move to live with his father. 24 .     On 21 April 2008 the applicant obtained a private opinion from a   psychologist, L.W.-M., concerning D, which confirmed that the child had a very strong bond with her, as he had lived with her all his life. He was less attached to his father. This opinion was not taken into account by the R   District Court; however, it was referred to by the S Regional Court in the final ruling of 17 September 2009 (see paragraph 34 below). 25 .     On 25 April 2008 a “local assessment” ( wywiad   środowiskowy ) report was drawn up by a court guardian. In the interview conducted, the child recounted a violent incident in which his father had attacked Z in his presence, which had had a negative impact on him. The child manifested his attachment to his mother throughout the interview and also expressed some fear of his father. The court guardian also commented positively on the mother as a carer for her child. The domestic courts referred to the report in all subsequent rulings. 26 .     On 8 May 2008 the R District Court, sitting as a single judge, Judge D.T., dismissed the applicant’s application for an interim measure by allowing her to retain custody of D for the duration of the proceedings. The judge relied on the expert opinion by the RODK of 16 May 2007 and the second opinion of 9 October 2007 (see paragraphs 11 and 12 above), considering them recent and relevant, although they had been issued in the previous set of proceedings. The court held that the father had showed that he was more able to care for D. He was emotionally stable and had a strong bond with the child. As regards the applicant, the court held that she “had concentrated excessively on herself and her relationship with her girlfriend ( przyjaciółka )”. An appeal by the applicant against that interim ruling was dismissed by the S Regional Court on 16 September 2008. 27.     On 27 May 2008 the R District Court, sitting as a single judge, Judge D.T., ordered the court guardian to forcefully remove D from the applicant’s care. On 3 June 2008 the court guardian took the child from his kindergarten and handed him over to the applicant’s former husband. D was six years old at that time. 28.     In the course of the proceedings, the R District Court ordered the same Głogów RODK to prepare a fresh expert opinion. The opinion, submitted to the court in March 2009, concluded that both the applicant and her former husband had similar parenting abilities. The experts considered that D should continue living with his siblings in a stable environment and be in permanent contact with his mother. In view of his age, the experts considered that the father’s role was more important for the child’s building of his “male role model” (“ męski wzorzec osobowy ”). 29.     The court held a hearing on 8 June 2009 at which it heard evidence from the applicant and her former husband, Y. The latter explained that the maternal grandparents and D’s older siblings helped with everyday life and the raising of D. They would take D to school and pick him up on most days, and when Y had night shifts at work D would sleep at his maternal grandparents’ home. Before the court, Y stated: “I did not contribute to the breakdown of the family. [The applicant] wanted such a solution, she took [Z] under her roof. I am against such an arrangement. They should not be raising D together. A child should be raised by a man and a woman, not by two women or two men. It is for natural reasons; we were created that way.” 30 .     On 8 June 2009 the R District Court, sitting in a composition of one professional judge, Judge D.T., and two lay judges, dismissed the applicant’s application for amendment of the custody order of 16   October 2007 and for parental rights and custody rights over D. The court repeated the facts of the case which it had established on 16 October 2007 and re ‑ examined the course of the proceedings since the divorce judgment in   2005. In respect of the period of time between 2005 and 16 October   2007, the date on which the same court had changed the custody arrangement with respect to the four children, the court stated: “[the applicant] remained in a relationship with Z, whom she would meet in her flat and go for walks with, or to the cinema. The friend would also stay the night in [the applicant’s] flat.” 31 .     The court noted the conclusions of the experts who had held that both the applicant and her former husband had a similar parenting approach and abilities as regards caring for D. They both aimed to secure the child’s best development and accepted that the presence of both parents in his life was a necessity. The experts recognised that both parents had made attempts to cooperate with each other for the best interests of their youngest child. With respect to the father, Y, the court noted that in November 2008 he had had a child in a new relationship, but the relations between all siblings were good. Y did not live with his girlfriend and their child. The court noted that the arrival of a new brother had been difficult for D, but it had not led to his being neglected by his father. 32.     The court decided that D should continue living with his siblings and father so that his correct emotional and social developmental needs could be met. The court stated: “Leaving [D] to live with his father is also justified by the current stage of the child’s development and the father’s larger role in creating [the child’s] male role model.” The court also noted that since the child had been living with his father, the applicant had secured contact rights. She spent every weekend with D, more time than was provided for in the officially established arrangements, in agreement with her former husband. The court emphasised that it had been necessary for D’s well-being for him to have regular contact with his mother. 33 .     The applicant appealed, claiming that D’s best interests required that he return to live with her. She submitted that in his father’s home, D’s sisters and grandparents took care of him. The applicant relied on other private opinions submitted in the proceedings which emphasised that she had been the child’s primary carer and had the strongest bond with him. Moreover, the child had clearly expressed his wish to live with the applicant, and the court had acknowledged that this did not necessitate further evidence. The applicant dismissed the court’s arguments about the importance of the “male role model” as arbitrary. She noted that the R   District Court had failed to provide any jurisprudence of the national courts, including the Supreme Court, to support the argument that the gender of the parent with custody should be decisive in adjudicating on a   parental dispute. She considered that the court had failed to examine many important elements and recognise that the interests of the child were of paramount importance. She also noted that her former husband had always been openly hostile to Z, had never accepted the applicant’s choices, and had presented his homophobic opinions to the court and the experts. He had repeated them to all the children and forbidden them to play with Z or even greet her. The court, however, when assessing D’s best interests, had failed to take into consideration the father’s approach to the applicant and her partner, and the negative influence which his behaviour must have had on the children. Lastly, the applicant also raised the argument that the court’s decision had been discriminatory on the basis of her sexual preferences. The applicant argued that the main grounds for the court’s decisions had been her relationship with another woman. 34 .     On 17 September 2009 the S Regional Court dismissed the appeal. The court reiterated that both the applicant and Y had similar parenting abilities and attitudes. The court stated: “It should be stressed that the opinion of the RODK has the advantage of being based on access to the files and the examination of all the persons concerned, which was not the case for the private psychological opinion, therefore it cannot be regarded as fully authoritative and decisive. There are and were no grounds for ordering another opinion from another RODK and an additional psychologist, because the existing expert opinion does not contain any deficiencies, contradictions or ambiguities and does not differ from the other evidence. There is no contradiction with the opinion of the psychologist L.W.-M., which, owing to the lack of aforementioned qualities, cannot constitute evidence in this case ... The appellate court finds that the dismissal of her application was not on the grounds of the applicant’s sexual orientation, even if she perceives it that way. The issue of raising a child in a same-sex relationship is very controversial, but there was no need to examine it. However, the applicant’s relationship is a fact, therefore one of the circumstances of the case, and one which caused a particular reaction from the three older children that in turn led to consequences for the whole family, [something] which could not be ignored during the examination of [the applicant’s application to amend the custody order]. The applicant’s older children had difficulties in accepting their mother’s relationship, which is and should be understandable, as it is not a common situation with which children are familiarised from a very young age. On the contrary, very young people are confronted with a different family model every day, one which they perceive as natural, as they see this around, in their home or in the homes of their peers [or of] distant family members, on the street, at school. The minor D, unlike his older siblings, does not refer to his mother’s situation, [and] this is justified by his age, but as stated above, any declarations made by D should be seen through the prism of extensive psychological and pedagogical knowledge, because without that it is impossible to properly balance the welfare of a growing child who has found himself in a situation which is emotionally very difficult. The experts from the RODK took this situation into account and formulated certain conclusions with which it is impossible not to agree – the arguments of the experts regarding the role of the father and the need to grow up with siblings are most convincing and relevant. For any boy from a broken family, a male role model is important, and its importance increases as the child grows older. It is undoubtedly most desirable that this role model be the boy’s father, whose parenting abilities are subject to examination in the course of the taking of evidence. However, in the case of [the applicant’s former husband], there are no such objections, as he has the appropriate parental attitude, and it is also thanks to him that D’s siblings have settled down, he himself also finds his place there, and it is important for the children to grow up together. Using other family members in exercising parental authority is not a sign of irregularity, and in the case of numerous offspring there is even a necessity, therefore such a ground of appeal does not automatically result in it being accepted. When examining the appeal, one has to remember the circumstances in which the original decision on parental rights – contained in the divorce judgment and granting the applicant custody of her children – was changed. The change took place in 2007, and this was a period during which the applicant had been stabilising her personal life, something that had influenced her parental behaviour in such a way that important corrective measures had been necessary. The positive improvement in this field was confirmed by the most recent opinion by the RODK, which, in contrast to the previous [opinion], did not indicate that there were irregularities in the applicant’s parental attitude. Her behaviour has improved over the years and can no longer raise objections. However, in the meantime, D has grown older. He is no longer a little child, and undoubtedly the role of [his] father, with whom he has been living for one year, has increased. Here again is the important element of being raised with siblings, and this has been categorically emphasised by the experts and is obvious from life. [There is a] need for stability, which in D’s case means the necessity to spare him new changes, since those which he has already experienced have exceeded the adaptation capabilities of a small child ... The [impugned] ruling is not discriminatory on the grounds of sexual preference, which is what the applicant relied on. It has to be noted that not all differences in how a person is approached amount to discrimination; it is important if the grounds for such an approach were rationally justified. In the circumstances of the case, the rational justification was that the siblings should stay [together] with one parent, since the parents didn’t want to be together. For the reasons indicated above, [the applicant] cannot be that parent, ... because the other children are not with her.” 35.     The applicant was notified of that decision on 6 October 2009. Further developments 36.     The applicant continued to build and maintain relations with her children while they were living with their father. 37.     C and D moved to live with the applicant and her partner Z in January 2013 and October 2017 respectively. Both children chose to live with them while attending high school, and their father accepted their move. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law The Constitution 38.     The relevant provisions of the Constitution of the Republic of Poland read as follows. Article 47 “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation, and to make decisions about his personal life.” Article 32 “1.     All persons shall be equal before the law. All persons shall have the right to   equal treatment by public authorities. 2.     No one shall be discriminated against in political, social or economic life for any reason whatsoever.” Family law 39.     Article 106 of the Family and Custody Code of 1964 ( Kodeks Rodzinny i Opiekuńczy ), as in force at the material time, read: “If circumstances change and the best interests of a child so require, a court dealing with custody may amend orders included in a decision on divorce concerning the manner in which the parties’ minor children should be cared for.” 40.     Article 107 §   1 of the Family and Custody Code, as in force until 13   June 2009, read: “If parents, both of whom exercise parental authority, are not married, the court dealing with custody may grant custody rights to one parent and restrict the   custody   rights of the other.” 41.     On 13 June 2009 Article 107 of the Family and Custody Code was amended and now reads as follows: “1.     If parents, both of whom exercise parental authority, do not form one household, the court dealing with custody, having regard to the best interests of a child, may issue orders concerning the manner in which the parties’ minor children should be cared for. 2.     The court may grant   custody   rights to one parent and restrict the custody rights of the other ...” The Code of Civil Procedure 42.     Article 577 of the Code of Civil Procedure of 1964 ( Kodeks Postępowania Cywilnego ) provides: “The court dealing with custody can alter its decision if the best interests of the person whom [the decision] concerns so require.” international MATERIAL Council of Europe 43.     The Recommendation adopted by the Committee of Ministers on 31   March 2010 ( CM/Rec(2010)5 ) on “measures to combat discrimination on grounds of sexual orientation or gender identity” gave the following recommendations to Member States, in so far as relevant: “2.     ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them; ... 5.     ensure by appropriate means and action that this recommendation, including its appendix, is translated and disseminated as widely as possible.” The appendix to the above Recommendation states, in so far as relevant, as follows: “IV.     Right to respect for private and family life ... 26.     Taking into account that the child’s best interests should be the primary consideration in decisions regarding the parental responsibility for, or guardianship of a child, member states should ensure that such decisions are taken without discrimination based on sexual orientation or gender identity. 27.     Taking into account that the child’s best interests should be the primary consideration in decisions regarding adoption of a child, member states whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity. ....” 44 .     The Parliamentary Assembly of the Council of Europe (PACE) issued Resolution 2239 (2018) Private and family life: achieving equality regardless of sexual orientation. The relevant part reads as follows: “4. ... the Assembly calls on Council of Europe member States to: 4.1   ensure that their constitutional, legislative and regulatory provisions and policies governing the rights of partners, parents and children are applied without discrimination on grounds of sexual orientation or gender identity, eliminating all unjustified differences in treatment based on these grounds ...” Its Explanatory Memorandum by Mr Jonas Gunnarsson, rapporteur, states, in so far as relevant: “Summary The right to respect for private and family life is a fundamental right, enshrined in Article 8 of the European Convention on Human Rights. This right is of equal importance in everyone’s lives, yet progress towards achieving equality in this field regardless of sexual orientation is uneven. This poses real and serious problems in ordinary people’s everyday lives. Discrimination unfortunately remains a reality for many rainbow families. Since the Parliamentary Assembly last examined this issue in 2010, there have been significant developments in European case law, and important advances towards greater equality for rainbow families have been achieved in member States. These developments show that more efforts are however still required from member States in order to achieve equality in the field of private and family life regardless of sexual orientation. 4.3 Well-being of children in rainbow families 47.   One of the arguments most frequently raised against granting legal recognition to same-sex partnerships is that doing so will “open the door” to same-sex couples raising children, and that this will harm children. Such arguments are however fallacious, on at least two very basic grounds. First, same-sex couples are already raising children, and second, research has consistently shown that children raised in rainbow families have the same levels of well-being as other children.... 49.   At the hearing held by our committee in Paris on 5 June 2018 we examined the situation of children in rainbow families through a scientific lens, thanks to the presentation by Ms Kia Aarnio of a recent research project on the well-being and experiences of children in rainbow families financed by the Finnish Ministry of Education and Culture. This study, which involved 129   children aged 7 to 18 growing up in rainbow families and their parents, showed that it was not parental gender or sexual orientation that affected children’s well-being but the functioning of the family. Children in rainbow families had similar numbers of friends, similarly positive school experiences, similar family lifestyles and similar symptoms of anxiety or depression to their peers. LGBT parents were found to be very committed to parenthood, and supported and encouraged their children a lot. The same vulnerabilities affected children in rainbow families as other children, for example if their parents had divorced. 50.   The negative aspects of living in rainbow families related to other people’s attitudes – annoying questions from peers, offensive comments from other family members or other adults. Ten- to twelve-year-olds in rainbow families were bullied more than their peers, but they nonetheless had the same levels of psychological well ‑ being as their peers, possibly due to more motivated parenting and good friendships. One in seven children had a grandparent who had ceased contact with the child’s family because of the parent’s sexual orientation or gender; however, in many cases, other family members or close friends of the child’s family replaced this negative relationship, and the child expressed no negative consequences as a result. When asked what they would like to change in the world to make life even better for them in a rainbow family, children wished that other people would know more about sexual minorities and rainbow families and would accept diversity. ... 52.   To put it another way, research consistently shows that it is not same-sex parents but societies that are not accepting of diversity that harm children in these families. We must base our public policy decisions as regards rainbow families, not on misconceived notions of “traditional” families as the only, irreplaceable, family format that can provide a healthy upbringing for a child – a notion that can also be harmful to children in single-parent families and in blended (step-)families – but on the need both to ensure acceptance of the diverse families, whether “traditional” or “non-traditional”, that exist in all our societies, and to promote a discrimination-free environment for all parents and children. Indeed, 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.” The Inter-American Court of Human Rights 45.     In the case of Atala Riffo and daughters v. Chile ((Merits, Reparations and Costs), judgment of 24 February 2012, Series C No.   239), the Inter ‑ American Court of Human Rights considered that the decision of the Chilean courts to remove three children from the custody of their homosexual mother constituted discriminatory treatment against her on the basis of her sexual orientation, in breach of her right to equality (Article 24, in conjunction with Article 1 § 1 of the American Convention on Human Rights) and her right to private and family life (Article 11 § 2 and 17 § 1 of the American Convention). The court noted, inter alia , that the 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 could not serve as a   suitable measure to restrict a protected right (paragraph 110 of the judgment). As regards the expectation that Ms Atala Riffo ended her relationship, an argument used by the Chilean courts, the court observed as follows (footnotes omitted): “139. In this regard, the Court considers that the prohibition of discrimination due to sexual orientation should include, as protected rights, the conduct associated with the expression of homosexuality. Furthermore, if sexual orientation is an essential component of a person’s identity, it was not reasonable to require Ms. Atala to put her life and family project on hold. Under no circumstance can it be considered “legally reprehensible” that Ms. Atala made the decision to restart her life. Furthermore, it was not proven that the three girls suffered any harm. 140. Therefore, the Court considers that to require the mother to limit her lifestyle options implies using a “traditional” concept of women’s social role as mothers, according to which it is socially expected that women bear the main responsibility for their children’s upbringing and that in pursuit of this she should have given precedence to raising her children, renouncing an essential aspect of her identity. Therefore, the Court considers that using the argument of Ms. Atala’s alleged preference of her personal interests, does not fulfill the purpose of protecting the best interest of the three girls.” THE LAW PRELIMINARY REMARKS – SCOPE OF THE CASE 46 .     The Court notes that in her observations the applicant limited her complaints to the dispute concerning parental rights over her youngest child D, which ended on 17 September 2009. The applicant lodged her application with the Court on 18 March 2010. The Court thus concludes that the case at hand concerns solely the proceedings regarding D, and that it is not called upon to deal with the complaints about the proceedings concerning the applicant’s other children A, B and C, which were concluded by way of a final decision on 10 January 2008. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH Article 8 47.     The applicant complained that the domestic courts had refused to grant her custody of her child D 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. These provisions read as follows: Article 8 “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Admissibility 48.     The Government raised a preliminary objection that the applicant had failed to comply wi