Atala Riffo and Daughters v Chile, 2012, Series C No. 239

Judgment of the Inter-American Court of Human Rights finding that Chile violated the complainant's right to freedom from discrimination and to privacy in a custody case of same-sex parents.

The case related to the custody process brought before the Chilean court by the father of three girls against their mother, Karen Atala Riffo. Chilean domestic courts found that Ms Atala’s sexual orientation and her co-habitation with her same-sex partner would cause harm to the three girls, and granted custody to the father. Notably, on 31 May 2004 the Supreme Court of Chile granted permanent custody to the father, concluding that ‘potential confusion over sexual roles that could be caused in them by the absence from the home of a male father and his replacement by another person of the female gender poses a risk to the integral development of the children from which they must be protected.’

The claimant had exhausted all domestic courts and on 24 November 2004 she lodged the initial petition before the Inter-American Commission. On September 17, 2010, the Inter-American Commission on Human Rights filed a claim against the Republic of Chile and the case was brought to the Inter-American Court of Human Rights (IACtHR).

Atala Riffo argued that in the course of the Chilean judicial process she had suffered discriminatory treatment and arbitrary interference in her private and family life. The IACtHR considered alleged violations of Articles 11 (right to privacy), 17 (right of the family) and 24 (non-discrimination).

The court found that the State had violated the claimant’s right to privacy when deciding her case stating that the scrutiny was ‘unsuitable and disproportionate’ and the ‘domestic courts should have limited themselves to examining parental behaviour.’ The court also held that the claimant had ‘created a family unit which, as such, was protected under Articles 11.2 and 17.1 of the American Convention’ and that the State had violated these rights.

The State were also held to be in violation of Article 24 with the court finding that they had ‘used abstract, stereotyped, and/or discriminating arguments to justify their decisions’ which ‘constitute discriminatory treatment’.

The Court urged Chile to make reparations and to adopt legislation, policies and programmes to prohibit and eradicate discrimination based on sexual orientation.

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