Abstract
The aim of this abstract is to investigate the balance between the best interest of the child and LGBT non discrimination in the parent-child relationship in the case law enacted by the two supranational courts competent for the protection of human rights: the Inter-American Court of Human Rights and the European Court of Human Rights. The core of the abstract concerns the relationship between the protection of the best interest of the child and the issues related to sexual orientation of the parents. Is this really relevant or is only one element of cultural or religious tradition? Analysing of the case law decided by both courts is necessary to answer to these questions.On the one hand the only case decided by the Inter-American Court of Human Rights on discrimination based on homosexual orientation in parent-child relationship is Atala Riffo and Daughters v. Chile. Karen Atala is a lesbian mother of three girls taken away from her by her former husband because of her sexual orientation. According to the Inter-American Court of Human Rights the Chilean authorities violated several principles, such as the right to equality and non-discrimination, privacy, protection of honor and the right of children to be heard. On the other hand the case law of the European Court of Human Rights in sexual orientation and parenthood is related to both the parent-child relationship and adoption. In the first case the landmark decision is Salguerio Mouta v. Portugal. Similar to Ms. Atala, Mr. Salgueiro was was prevented by his former wife from visiting his daughter in breach of an agreement reached at the time of their divorce. The national authorities did not accept his claim for visiting his daughter and the Court of European Rights stated that applicant's homosexuality had been decisive in the final decision released by Lisbon Court of Appeal. The prominent case law of the European Court of Human Rights in sexual orientation and adoption is formed by decisions related to France, especially Fretté, E. B. and Cas and Dubois cases. The Fretté and E. B. cases are both related to a claim of adoption by a homosexual person. Although the European Court of Human Rights decided in a opposite way, the core of both decisions is the protection of the best interest of the child. Indeed, the Strasbourg judges decided to grant to French authorities a wide margin of appreciation because Mr Fretté was not ready to organize his new life around a child and the related responsibilities. On the contrary, the case of E.B. v. France shows that the applicant was successful in her work as an educator of children and was recognized as a good teacher by French authorities, independent of her sexual orientation. The refusal of her request for adoption constituted discrimination based solely on abstract categories, exactly contrary to Articles 8 and 14 of the ECHR. In considering the case Gas and Dubois v. France, the Court did not accept the claim of the applicants related to the step-parent adoption of the daughter of one of the partners because the PACS is not a figure equivalent to marriage, in which situation a step-parenting adoption is possible.