Parents’ sexual orientation and children rights– coming out in Chile and the ICHR: Atala Riffo v Chile

by | Dec 11, 2012

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About Nicolas Espejo Yaksic

Dr. Nicolás Espejo Yaksic is Researcher at the Centre for Constitutional Studies (CEC) of the Supreme Court of Mexico; Visiting Fellow, Exeter College, University of Oxford and Member of the Leiden's Children Rights Observatory, Leiden University. He has worked for more than 25 years in the field of human rights, both as an academic and activist, in Latin America and for the United Nations System. He is the editor (with Fabiola Lathrop) of the book Discapacidad Intelectual y Derecho (Intellectual Disability and The Law), Thomson Reuters & Legal Publishing, Santiago de Chile, 2019.

Atala Riffo e hijas vs. Chile, a case in which the Inter-American Court of Human Rights (ICHR) condemned the stigmatisation and stereotyping of homosexual parents, is one of two landmark decisions by the court this year concerning children’s rights and family life under the American Convention on Human Rights (ACHR).


Ms Atala’s decision to publicly express her homosexuality had led to the withdrawal of her custody rights to her children.  At the domestic level, the Chilean Supreme Court had sustained that, based on the impact of Ms Atala’s ‘coming out’ on her children, withdrawing custody rights was in their best interests.  In particular, the Chilean Supreme Court held that in the conservative social context, Ms Atala’s public homosexuality was damaging for the rights of her children and that a same-sex parental environment could provoke a confusion of parental roles, incompatible with the best interest of the child.

In contrast to the domestic decision, the ICHR held that Chile had violated Ms Atala’s right to be heard (8º), right to private and family life (17º), right to equality before the law (24º), the rights of her children (19º) in contravention of Chile’s obligations to respect and guarantee, without discrimination, the rights set forth in the ACHR.

The ICHR maintained that the determination of the best interest of the child in care and custody cases should always be based on concrete parental conduct and any real or proven harm on the child. Accordingly, the ICHR held that when determining the best interests of the child, judges could not base their decisions on speculations, presumptions, and stereotypes or generalizations about the personal characteristics of parents or any dominant cultural preferences concerning certain traditional conceptions of the family. Following the ECHR´s decision in Salgueiro Da Silva Mouta v. Portugal, the ICHR emphasised that the best interest of the child could never be used to justify a discrimination based on sexual orientation. Further, the Court reaffirmed a well-established principle in human rights law: that the social practices of discrimination or intolerance in our societies shall never be used as justification for the restriction of fundamental rights.

Finally, the ICHR considered that the ACHR does not privilege one particular conception of family over other, allowing several forms and spaces for the development of private and family life. Based on this open textured interpretation of family life, the ICHR rejected the disproportionate invasion on the private and family life of Ms Atala and her children, consolidating a substantial defence of difference in family relations.  No doubt, this is an important step for childrens rights and family law in the Americas.

Dr. Nicolás Espejo-Yaksic, Universidad Central de Chile and UNICEF consultant.  He is currently a Visiting Fellow at Kellogg College, Oxford

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