Hoffman v. Austria, No. 12875/87, ECtHR (Chamber), 23 June 1993

Refusal of child custody based on parent’s religious affiliation. Discriminatory treatment detrimental to the right to respect for private and family life.

Art. 8 ECHR
Art. 14 ECHR

The choice made by the national authorities to deny custody to a parent because of his belonging to a religious minority creates a difference in treatment that can be considered discriminatory only in the absence of an objective and reasonable justification, that is, if it is not justified by a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Although the best interest of the child is a legitimate aim, in the absence of concrete and direct evidence of the negative influence that the applicant’s religion has on the growth and daily life of the children, the choice to deny her custody is not a reasonable measure proportional between the means used and the objective pursued, such as to determine a discriminatory treatment detrimental to the right of respect for private and family life.