Family ties that bind: same-sex, same best interest : an analysis of the European Court of Human Rights approach to the best interests of the child in gay parenting cases

Abstract

Those who talk can be heard. Those who are allowed to talk may be listened to. This study is an attempt to give legal voice to those who cannot talk or are usually not listened to: children. This study is about the attention given to their interests, the best interests of the child. When these interests are immersed in a minority context, children may be overlooked for different reasons, including discriminatory attitudes or prejudice regarding their families. Law and its interpretation must be changed in order to include the difference. This study discusses the best interests of the child principle with special attention to its legal relevance in cases where lesbians, gays, bisexual and transgender (LGBT) are, or want to be, parents. The authoritative source for the interpretation of the principle is the United Nations (UN) Convention on the Rights of the Child (CRC). The analysis focuses on the European Court of Human Rights (ECtHR) and its case law. The study aims to explore the Court‟s approach to the best interest of the child and identify whether the principle is being consistently applied in cases involving LGBT families, given the fact that sexual orientation and gender identity are still sensitive issues in Europe. This is done by comparing these cases to cases lodged by applicants who were not identified as belonging to sexual minorities. The margin of appreciation doctrine and the lack of European consensus on sexual minorities‟ rights are confronted with the urgent paramount consideration that has to be given to children‟s best interests. The analysis explores whether there is room for detecting a possible Court‟s biased approach towards the concept of the best interests of the child. This study challenges the Court‟s decisions in the sense that the focus should not only be at the LGBT parents‟ rights to private and family life, but also at the interests of their daughters and sons. This is an attempt to call upon the ECtHR and all States not only to actively fight against LGBT discrimination, but, ultimately, to stop interpreting the concept of the best interests of the child in an arguably biased way, and to consider the principle‟s legal value in any decision, regardless of their parents‟ sexual orientation or any other distinction.