Atala Riffo and daughters v. Chile
Inter-American Court of Human Rights
24 February 2012
Article 2: Non-discrimination
Article 3: Best interests of the child
Article 12: The child’s opinion
Other International Provisions:
American Convention on Human Rights, Articles 1.1 (prohibition of discrimination), 11 (right to privacy), 17.1 and 17.4 (rights of the family), 19 (rights of the child), 24 (right to equal protection), 25 (right to judicial protection), 62.3 and 63.1 of the American Convention on Human Rights
International Covenant on Civil and Political Rights
International Convention on the Elimination of all Forms of Racial Discrimination
Convention on the Elimination of all Forms of Discrimination against Women
European Convention on Human Rights
Vienna Convention on the Law of Treaties
International Covenant on Economic, Social, and Cultural Rights
Organic Code of the Courts
Code of Civil Procedure
Law on Minors
Ms Atala separated from her husband in 2002, reaching an agreement that she would maintain custody of their three daughters, M., V. and R. Later that year, Ms Atala’s same sex partner began living with Ms Atala and her children. In 2003, the father filed a custody suit, and was awarded provisional custody by a juvenile court. In May 2004, the Supreme Court of Chile granted permanent custody to the father on the basis that Ms Atala’s sexual orientation and cohabitation with a same sex partner would cause harm to her three daughters. In November 2004, Ms Atala lodged a petition before the Inter-American Commission on Human Rights (“Commission”), which approved a Merits Report in July 2008. In September 2010, the Commission filed a claim against Chile in the Inter-American Court of Human Rights (“Court”).
Issue and resolution:
Best interests of the children, whose custody and care were determined without having regard to their rights, and on the basis of discrimination against the mother due to her sexual orientation. The Court found Chile internationally responsible for having violated Articles 8.1 (judicial guarantees), 11.2 (protection of honour and dignity), 17.1 (protection of the family), 19 (rights of the child), 24 (right to equal protection), and 25 (right to judicial protection) of the American Convention on Human Rights (“Convention”), in relation to Article 1.1 (prohibition of discrimination). The Court ordered that the state, among other things:
– provide medical and psychological or psychiatric care to Ms Atala and her daughters as victims;
– publicly acknowledge its international responsibility and provide a public apology to the victims;
– continue to implement permanent education programs and training courses directed at public officials at the regional and national levels, and particularly judicial officials;
– pay USD 50,000 in compensation plus USD 12,000 in costs and expenses.
Article 24 (right to equal protection)
Regarding the right to equal protection in connection with the rights of the children, the Court found that although the judgment of the Supreme Court and the provisional custody ruling of the juvenile court sought to protect the best interests of the girls, these courts failed to prove that Ms Atala’s cohabitation with her same sex partner had a negative effect on the girls’ best interests, including their development. The Court found that, by using the mother’s sexual orientation as grounds for its decision, the Supreme Court discriminated against the girls, since it took into account considerations it would not have used if the custody proceedings had been between two heterosexual parents. The discriminatory treatment against the mother had repercussions for the girls, since it was used to decide that they should be separated from their mother. Therefore, the Court concluded that Article 24, in conjunction with Articles 19 and 1.1 of the Convention, was violated in detriment of the girls.
Article 11.2 and 17.1 (right to private and family life)
Regarding the right to private and family life in connection with the rights of the children, the Court noted that there is no single model for a family, which may have many variations. The Court observed that a family unit had been created consisting of the mother, her same sex partner, and the children. The separation of the girls in an unjustified manner from this family environment amounted to an arbitrary interference with the girls’ right to private and family life, in violation of Articles 11.2 and 17.1 of the Convention, in conjunction with Articles 19 and 1.1.
Articles 8.1 (right to be heard)
Regarding the right to be heard in connection with the rights of the children, the Court noted that although the Supreme Court sought to base its decision on the best interests of the three girls, it failed to explain how it assessed or took into consideration the statements and preferences expressed by the girls, and instead contradicted the wishes expressed by the girls during the custody proceedings. Accordingly, the Court concluded that the decision by the Supreme Court violated the girls’ right to be heard and be duly taken into account under Article 8.1, in connection with Articles 19 and 1.1 of the Convention, to the detriment of the girls.
Excerpts citing CRC and other relevant human rights instruments:
88. In the context of the universal system for the protection of human rights, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights have classified sexual orientation as one of the categories of forbidden discrimination considered in Article 2.1 of the International Covenant on Civil and Political Rights and Article 2.2 of the International Covenant on Economic, Social, and Cultural Rights. In this regard, in the case of Toonen v. Australia the Human Rights Committee indicated that the reference to the category “gender” would include the sexual orientation of persons. Likewise, the United Nations Human Rights Committee has expressed its concern regarding several discriminatory situations related to people’s sexual orientation, which it has expressed repeatedly in its final observations to the reports presented by the States.
89. For its part, the Committee on Economic, Social, and Cultural Rights has determined that sexual orientation may be included in “another social condition”. Similarly, in the context of their general observations and recommendations, the Committee on the Rights of the Child (FN 107. Cf. United Nations, Committee on the Rights of the Child, General Comment No. 3 (2003). HIV/AIDS and the rights of the child, CRC/GC/2003/3, of March 17, 2003, para. 8 (“of concern also is discrimination based on sexual orientation”); General Comment No. 4 (2003). The health and development of adolescents in the context of the Convention on the Rights of the Child, CRC/GC/2003/4, July 21, 2003, para. 6 (“States Parties have the obligation to ensure that all human beings under 18 enjoy all the rights set forth in the Convention without discrimination (Art. 2), regardless of “race, color, sex, language, religion, or political or other opinion, national, ethnic or social origin, property, birth, disability or ot her status”. These grounds also cover sexual orientation”)), the Committee against Torture, and the Committee on the Elimination of Discrimination against Women have made references to the inclusion of sexual orientation as one of the prohibited categories for discrimination.
108. The general purpose of protecting the child’s best interest is, in itself, a legitimate aim and is also an imperative. Accordingly, the Court reiterates that the regulating principle regarding children’s rights is based on the very dignity of the human being, on the characteristics of children themselves, and on the need to foster their development, making full use of their potential. Likewise, it should be noted that the preamble of the Convention on the Rights of the Child establishes that children require “special care” and Article 19 of the American Convention states that they must receive “special measures of protection.”
150. … the Court considers that the prohibition of discrimination, in cases related to minors, must be interpreted in light of Article 2 of the Convention on the Rights of the Child, which states that:
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
151. In this regard, the Court points out that children cannot be discriminated against based on their own status and this prohibition extends also to the conditions of their parents or family members, for example in this case the mother’s sexual orientation. The Committee on the Rights of the Child has pointed out in its General Comment No. 7 that children may suffer the consequences of discrimination against their parents, for example if they are born out of wedlock or in other circumstances that deviate from traditional values (FN 171. Cf. United Nations, Committee on the Rights of the Child, General Comment No. 7. Implementing Child Rights in Early Childhood, CRC/C/GC/7, September 30, 2005, para. 12.).
196. … In the instant case, the Court notes that Article 8.1 of the American Convention embodies every person’s the right to be heard, including children, in proceedings in which their rights are determined. This right must be interpreted in light of Article 12 of the Convention on the Rights of the Child, which contains appropriate stipulations on the child’s right to be heard, for the purpose of facilitating the child’s intervention according to his age and maturity and ensuring that it does not harm his genuine interest (FN 218. … For its part, the United Nations, Committee on the Rights of the Child has established that the right “to be heard in any judicial and administrative proceedings affecting the child” implies that “this provision applies to all relevant judicial proceedings affecting the child, without limitation”. United Nations, Committee on the Rights of the Child, General Comment No. 12 (2009). The right of the child to be heard, CRC/C/GC/12, July 20, 2009, para. 32. In particular, UNICEF has indicated that “‘any judicial […] proceedings affecting the child’ covers a very wide range of court hearings, including all civil proceedings such as divorce, custody, care and adoption proceedings, name-changing, judicial applications relating to place of residence, religion, education, disposal of money and so forth, judicial decision-making on nationality, immigration and refugee status, and criminal proceedings; it also covers States’ involvement in international courts.” UNICEF, Implementation Handbook for the Convention on the Rights of the Child (Third edition fully revised) 2007, p. 156.).
197. Specifically, General Comment No. 12 of 2009 of the United Nations Committee on the Rights of the Child emphasizes the relationship between the “best interest of the child” and the right to be heard, when it states that “there can be no correct application of Article 3 if the components of Article 12 are not respected [(best interest of the child)]. Likewise, Article 3 reinforces the functionality of Article 12 facilitating the essential role of children in all decisions affecting their lives”.
198. In order to determine the scope of the terms described in Article 12 of that Convention, the Committee clarified a number of points such as: i) “States parties cannot begin with the assumption that a child is incapable of expressing her or his own views”; ii) “it is not necessary that the child has comprehensive knowledge of all aspects of the matter affecting her or him, but that she or he has sufficient understanding to be capable of appropriately forming her or his own views on the matter”; iii) the child can express her or his views without pressure and can choose whether or not she or he wants to exercise her or his right to be heard; iv) “implementation of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”; v) “the capacity of the child […] has to be assessed in order to give due weight to her or his views, or to communicate to the child the way in which those views have influenced the outcome of the process”; vi) “children’s levels of understanding are not uniformly linked to their biological age,” for which reason the maturity of the child must be determined based on “the capacity […] to express their views on issues in a reasonable and independent manner”.
200. … the Committee on the Rights of the Child has emphasized that Article 12 of the Convention on the Rights of the Child not only establishes the right of each child to express his views in all matters affecting him, but also includes the subsequent right to have these views taken into consideration, according to the child’s age and maturity. It is not sufficient to listen to the child; the child’s views must be seriously considered when he or she is capable of forming his or her own opinion, and for this reason the views of the child must be assessed on a case-by-case basis. If the child is capable of forming his or her own views in a reasonable and independent manner, the decision maker must consider the child’s views as a significant factor in the settlement of the issue. Therefore, in the context of judicial decisions on custody, all legislation on separation and divorce must protect the child’s right to be heard by those responsible for making decisions.
CRIN believes this decision is consistent with the CRC. Article 2 requires states to ensure the rights in the CRC to all children without discrimination of any kind. This includes: the best interests of the child shall be a primary consideration in all actions concerning children (Article 3); right to express his or her opinion freely and to have that opinion taken into account (Article 12); and right to protection from interference with family (Article 16).
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.