4.4.
Right to a “normal and traditional” family
141. In this regard, the Supreme Court of Justice stated that “the preferred right of the
minors to live and grow within the bosom of a family that is structured normally and is
appreciated in the social environment, according to the proper traditional model” was
disregarded164. For its part, the Juvenile Court of Villarica, in its provisional custody
decision, indicated that “the petitioner offers more favorable arguments on behalf of the
best interest of the girls, which in the context of a heterosexual and traditional society take
on great importance” 165.
142. The Court confirms that the American Convention does not define a limited concept
of family, nor does it only protect a “traditional” model of the family. In this regard, the
Court reiterates that the concept of family life is not limited only to marriage and must
encompass other de factor family ties in which the parties live together outside marriage166.
143. International case law is consistent on this point. In the case of Salgueiro da Silva
Mouta v. Portugal, the European Court considered that the decision of a national court to
remove an underage child from the custody of a homosexual parent, with the argument that
the child should live in a traditional Portuguese family, lacked a reasonable relationship of
proportionality between the measure taken (withdrawal of the custody) and the purpose
sought (protection of the best interest of the minor) 167.
144. Similarly, in the Case of Karner v. Austria, the European Court of Human Rights
stated that:
“The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete
measures may be used to implement it. […] as is the position where there is a difference in treatment
based on sex or sexual orientation, the principle of proportionality does not merely require that the
measure chosen is in principle suited for realizing the aim sought. It must also be shown that it was
necessary, in order to achieve that aim, to exclude certain categories of people” 168.
145. In the instant case, this Court finds that the language used by the Supreme Court of
Chile regarding the girls’ alleged need to grow up in a “normally structured family that is
appreciated within its social environment,” and not in an “exceptional family”, reflects a
164
Judgment of the Supreme Court of Justice of Chile, May 31 2004 (record of appendices to the petition,
volume V, page 2673).
165
Decision in the provisional custody application by the Juvenile Court of Villarrica, of May 2 2003 (record of
appendices to the petition, volume V, page 2567).
166
Advisory Opinion OC-17/02, supra note 122, paras. 69 and 70. Also see: ECHR, Case Keegan v. Ireland,
(No. 16969/90), Judgment of May 26, 1994, para. 44, and Case Kroon et al. v. Netherlands, (No. 18535/91),
Judgment of October 27, 1994, para. 30.
167
Cf. ECHR, Case Salgueiro da Silva Mouta, supra note ¡Error! Marcador no definido., paras. 34 to 36.
168
ECHR, Case Karner, supra note 143, para. 41 (“The aim of protecting the family in the traditional sense is
rather abstract and a broad variety of concrete measures may be used to implement it. […] as is the position
where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not
merely require that the measure chosen is in principle suited for realizing the aim sought. It must also be shown
that it was necessary in order to achieve that aim to exclude certain categories of people”).
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