Under Portuguese law, a parent’s authority over children is defined as the power and duty “to, in the interest of the children, ensure their safety and health, provide for their maintenance, direct their upbringing, represent them (even when unborn), and administer their property” (article 1878.º, no. 1, of the Portuguese Civil Code, or CC).
This power/duty, known as “parental responsibilities”, is assigned automatically, by operation of the law, to the people registered as the child’s parents (articles 1797.º, no. 1, and 1877.º et seq CC) and empowers a person to make decisions in relation to every aspects of the child’s life, including the issues most relevant to the child’s life and development, referred to in Portuguese law as “matters of particular importance”.
Matters of Particular Importance
The law does not provide a definition for this concept, leaving its definition to legal doctrine and case law.
Since, by law, decisions concerning matters of particular importance require both parents’ consent (even during a marriage or civil partnership), it is understood that these are decisions that may have a significant impact on the child’s development and wellbeing.
Despite case law arguing that the classification of a given issue as a matter of particular importance should be made on a case-by-case basis (see decision of the Oporto Court of Appeal dated 27 January 2020 and decision of the Lisbon Court of Appeal dated 2 May 2017), there is a consensus that the following issues are of particular importance:
Acts of Everyday Life
In contrast to “matters of particular importance”, either parent can make decisions alone, without requiring the other’s consent, regarding the child’s day-to-day activities, referred to in Portuguese law as “acts of everyday life”;
These are decisions or issues that do not imply significant consequences to the life of the child, such as:
Exercise of Parental Authorities
How parental authorities are exercised depends, under the terms of the law, on whether the parents live together as a couple (under the context of marriage or civil partnership) or are separated.
Separated parents must formally regulate the exercise of parental responsibilities, either by agreement, which must be approved by a Public Prosecutor and ratified by judicial or administrative decision, or through a judicial proceeding called “parental responsibilities regulation”.
Although children owe obedience to their parents, the parents must take into account their children’s opinions and autonomy, according to their age and maturity (article 1878.º, no. 2, CC).
Parental responsibilities are attributed to the biological mother with the establishment and registration of motherhood.
Establishment of Motherhood
According to Portuguese law, biological motherhood “results from the fact of birth” and is established by indication (article 1796.º, no. 1, CC).
For this purpose, the law prescribes the obligation for parents, their representatives and their next of kin to declare the birth and identify the mother, within 20 days of the date of birth (article 96.º, nos. 1 and 2, of the Portuguese Civil Registry Code). The birth declaration may also take place at the hospital or health centre where the birth took place, until the mother is discharged (articles 96.º, no. 2, al. c) and 96.º-A of the Portuguese Civil Registry Code).
If the birth declaration is made:
Without the identification of the mother, she can declare the maternity at any time, unless the paternity is registered in favour of a person other than the husband and the child was born or conceived during the marriage (article 1806.º CC).
The established motherhood can be challenged in court at any time, through a special procedure of impugnation of maternity, by providing evidence that the registered mother is not the biological mother of the child.
Like biological mothers, biological fathers are endowed with parental responsibilities with parenthood’s establishment and registration.
Establishment of Fatherhood
According to Portuguese law, biological fatherhood is either established by presumption, in favour of the mother’s husband, or by recognition, in cases of filiation outside of marriage or in which the presumption does not apply (article 1796.º, no. 2, CC).
Presumption of paternity
Presumption of paternity operates, as a rule, as long as the child is born or conceived during marriage (article 1826.º, no. 1, CC). There are, however, some exceptions relating to cases in which children are conceived before marriage or after the spouses’ separation (articles 1828.º and 1829.º CC).
Furthermore, and in any case, the married woman may always declare the birth with the indication that the child is not her husband’s, in which case the presumption will cease to apply and paternity will have to be established by recognition (article 1832.º, no. 1, CC).
Establishment by recognition
Portuguese law provides for two ways of establishing paternity by recognition:
The voluntary recognition of a child does not depend on the mother’s authorisation, nor is any relationship between the mother and the father required. Likewise, the relationship of the father with another person at the time of conception or birth does not prevent the recognition.
However, the declaration must be based on genetic truth, and false statements are a criminal offence under the terms of article 348.º-A of the Portuguese Criminal Code.
Both the presumption of paternity and the voluntary recognition of the child may be challenged through a special procedure of impugnation of paternity, by providing evidence that the registered father is not the biological father of the child.
The establishment of filiation in these cases has specialities, regulated in Law no. 32/2006 of 26 July (also called the Law on Medically Assisted Procreation, or LPMA).
Medically Assisted Reproduction
Medically assisted reproduction techniques are authorised in Portugal as subsidiary methods of procreation (article 4.º, no. 1, LPMA). They are available to:
In order to be submitted to these techniques, beneficiaries must give their free and informed consent, expressly and in writing, to the medical doctor in charge (art. 14.º, no. 1, LPMA).
Consent may be freely revoked until the start of the treatment (with the exception of a surrogate mother who, according to the law, may revoke her consent until the declaration of birth of the child, as per article 14.º, nos. 4 and 5, LPMA).
Artificial insemination and in vitro fertilisation
In cases of artificial insemination, the fatherhood of the semen donor shall not be considered. Instead, fatherhood will be established in favour of the beneficiary’s spouse or unmarried partner. For this purpose, the spouse or unmarried partner must consent to the technique of medically assisted reproduction, along with the beneficiary (as per article 20.º, no. 1, LPMA).
The same rules apply when in vitro fertilisation is carried out using donor oocytes or semen (article 27.º LPMA).
Surrogates
Although foreseen in legislation, this medically assisted procreation technique is not yet properly regulated and therefore is still not available in Portugal.
As explained above, parental responsibilities are attributed by law to both registered parents, regardless of whether they are married to each other.
Indeed, marriage at point of conception or birth is only relevant due to the presumption of paternity, applicable to different-sex couples who use natural methods of reproduction.
In cases of medically assisted reproduction, marriage has no specific relevance, as the paternity/maternity is established in cases of both marriage and civil partnerships, upon informed consent of the beneficiary’s spouse/partner.
Parents in a same-sex relationship do not have to meet additional requirements to obtain parental responsibilities. However, the establishment of filiation for these couples has specialities:
From the moment parenthood is established for both parents, same-sex parents exercise parental responsibilities simultaneously, under the same terms as different-sex couples.
In Portugal, adoption has the same effects as natural filiation (as per article 1586.º CC). Hence, once decreed, adoptive parents obtain parental responsibilities automatically (article 1986.º, no. 1, CC).
People can apply for adoption, individually or as a couple, as long as they are 25 years old or older. Portuguese law also provides for the adoption of the spouse’s/civil partner’s child.
Procedure
Adoption is decreed by court order, through a special procedure regulated by Law no. 143/2015 of 8 September.
This procedure aims essentially at verifying whether the special requirements for adoption are fulfilled, as well as collecting the consent of the following people:
In certain cases, the court may waive the need for certain consents referred to above, namely of the parents of the adoptee, when judicially inhibited from the exercise of parental responsibilities.
Exercise of Parental Responsibilities Before Adoption
Since adoption in Portugal is only decreed when it presents real advantages for the adoptee (articles 36.º, no. 6, of the Portuguese Republic Constitution and article 1974.º, no. 1, CC), adoptees are, as a rule, in situations of danger, due to orphanhood or serious violations of fundamental duties by their biological parents.
In such situations, children are often subject to protection measures, which may involve entrusting the child to the prospective adopting parents, under the terms of article 1978.º of the CC, in which case they obtain the parental responsibilities even before the adoption is decreed.
Both case law and legal doctrine agree that the permanent move of a child to a new country must be qualified as a “matter of particular importance” (see 1.1 Parental Responsibility).
As a matter of particular importance, international relocation requires the consent of both parents.
Consent regarding a matter of particular importance is never presumed by law, even during marriage or in a civil partnership. Therefore, when one of the parents seeks to decide alone a matter of particular importance, third parties must refuse to intervene (ie, obtaining the child’s passport or habitual residency title).
If one of the parents does not consent to the relocation, parents may:
To apply for relocation, the applicant needs to allege a disagreement between the parents on the child’s country of residency and demonstrate that it is in the best interests of the child to authorise the relocation.
According to the many provisions of international law that bind the Portuguese State concerning children, such as the United Nations Convention on the Rights of the Child (UNCRC), as well as Portuguese-specific legislation, the determining factor in a proceeding concerning a child shall always be his or her best interests (as per article 3.º, no. 1, UNCRC, article 24.º, no. 2, Charter of Fundamental Rights of the European Union, also known as CFREU, and articles 4.º, no. 1, and 40.º, no. 1, RGPTC).
Legal Framework
The wishes and feelings of a child capable of forming his or her own views must be taken into consideration by judicial and administrative authorities in all matters affecting the child’s life, including a relocation application. This results from:
The Relation Between the Child’s Opinion and the Child’s Best Interests
This does not mean, however, that the court is bound by the wishes and feelings of the child. Instead, the child’s opinion must be duly considered by the state authorities when assessing the child’s best interests.
The child’s best interests and the child’s opinion may not coincide. In this sense, Portugal case law accepts and deems legal a decision against the child’s wishes, even at advanced stages of his or her development, such as adolescence, so long as justified by the child’s best interests (see decision of the Supreme Court of Justice dated 18 June 2024).
Children’s Participation Rights as Fundamental Rights
The child’s right to be heard, when he or she is capable of forming his or her own views, is qualified as a fundamental right.
As such, a state authority’s decision not to hear the child must always be justified, according to the case’s circumstances. Otherwise, the final decision in matters affecting the child will be null and void, as a result of the violation of the child’s right (see decision of the Lisbon Court of Appeal dated 10 November 2022).
The Child’s Ability to Understand the Matters Under Discussion
Rather than establishing a minimum age at which the child must be heard, Portuguese law prescribes that the child’s ability to understand the matters under discussion must be assessed by the judge, according to the child’s age and maturity (as per article 4.º, no. 1, al. c), RGPTC).
This is in line with article 12.º of the UNCRC, which prescribes the obligation to State Parties of ensuring the child’s right to express his or her views freely, when capable of forming his or her own opinions.
Assessment of the child’s ability to understand the matters under discussion
On a strict or literal interpretation of the law, this assessment should be the object of a formal decision, made on a case-by-case basis and with the assistance, if needed, of the court’s technical consultants (article 4.º, no. 2, RGPTC).
Courts should, therefore, order the technical teams to interview the child or otherwise collect data (ie, school information, psychological reports, etc) that allow the evaluation of the spontaneity of the child’s opinion.
However, first instance courts often hear the child without formally justifying their decision, often assuming that children over seven or eight years old are capable of forming their own opinions.
Exception: the Child’s Best Interests
Even if the judge concludes that the child is capable of understanding the matters under discussion and forming his or her own views on such subjects, the court may still decide not to hear the child, if it is considered that it is not in the child’s best interests to do so (as per article 35.º, no. 3, in fine, RGPTC).
This may be the case, for instance, where hearing the child places him or her:
Although there is no legal rule establishing that siblings should be together, Portuguese case law gives high priority to this factor. Indeed, and despite case-law rules having no formal legal weight in Portugal, there are many legal dispositions that support the understanding that a close relationship with siblings is essential to the child’s wellbeing and sound development (see, eg, articles 1887.º-A, 1979.º, no. 4, 1984.º and 1986.º, no. 3, CC).
However, similarly to the wishes and views of the child, keeping children together is not the determining factor for the decision, but rather one more relevant factor with which to assess the child’s best interests. Therefore, an application for relocation that leads to a separation of children is not excluded a priori (see decision of the Lisbon Court of Appeal dated 21 March 2024, which decided to maintain a separation of siblings who had lived apart for some time).
When considering the best interests of the child, the possibility to keep a close relationship with both parents is one of the main factors to consider.
Under article 1906.º, no. 8, of the CC, it is established that the judge must always promote agreements or take decisions that favour broad opportunities of contact with both parents. Loss of contact with the left-behind parent is, therefore, one of the most – if not the most – common reasons to reject a relocation application, especially in cases where it is not possible to establish a visitation regime that sufficiently safeguards the relationship between the child and the left-behind parent.
Notwithstanding, the protection of the child’s best-interests calls also for the consideration and protection of the child’s relationship with the applicant-parent, who can in no way be penalised simply because he or she wishes to move to another country.
In accordance with the recognition of the fundamental rights to free movement and to the free development of personality (articles 26.º and 44.º, Portuguese Republic Constitution), Portuguese courts, as a rule, do not assess the applicant’s motives for relocation (see decision of the Guimarães Court of Appeal dated 4 February 2016).
Nevertheless, it will always be important to demonstrate that the reasons for relocation are legitimate, ie, more than a whim of the applicant, not aimed at hindering the child’s relationship with the left-behind parent, etc (see Superior Court of Justice’s decision dated 17 December 2019).
Among the most frequent reasons for relocation are the wish to return to the country of origin and professional aspirations.
Considering that the child’s best interests is the decision-making criterion par excellence, Portuguese courts will consider any ground for opposition deemed relevant to the child’s wellbeing and development, including but not limited to:
Court Fees
Parties in proceedings concerning children pay a court fee of EUR306, ten days after the final decision is made, regardless of whether it can be appealed (as per articles 6.º, no. 1, 7.º, no. 1, 13.º, no. 2, 14.º-A, al. g) and 15.º, no. 1, al. f) and no. 2, Portuguese Regulation on Procedure Costs, also known as RCP).
The same amount is due in case of appeal, ten days after the decision of appeal is made (articles 6.º, no. 2, 13.º, no. 2 a contrario and 15.º, no. 1, al. f) and no. 2, RCP).
Court Expenses
To these amounts are added any court expenses associated with the case (eg, translator fees, rogatory letters, medical examinations, etc) (articles 16.º et seq RCP).
Other Expenses
Although representation by a lawyer is not mandatory until the appeal stage, if one of the parties chooses to appoint one, he or she must bear the respective fees (unless he or she benefits from legal aid).
Furthermore, Portuguese law requires the translation into Portuguese and legalisation of foreign official documents, which can be particularly costly, especially if the documents were issued by countries that are not part of the European Union or signatories to the Hague Convention of 5 October 1961, abolishing the requirement of legalisation for foreign public documents (also called the Apostille Convention).
Likewise, all written communications with the court must be in Portuguese.
Reimbursements to the Other Party
Under the terms of the law, winning parties have the right to be reimbursed their expenses along with court fees and expenses, as well as a small compensation for lawyer fees, to be paid by the losing party (article 533.º, Portuguese Code of Civil Proceedings and articles 25.º and 26.º RCP).
In proceedings concerning children, it is not mandatory to appoint a lawyer until the appeal stage (article 986.º, no. 4, Portuguese Code of Civil Proceedings).
Even considering that relocation cases are often granted urgent nature due to the sometimes imminent relocation of the applicant-parent, proceedings are usually time-consuming, taking between six months and a year and a half.
Equal Parenting Principle
As referred to above, Portuguese law favours decisions that allow broad opportunities of contact between the child and both parents, as well as the sharing of parental responsibilities between them (as per article 1906.º, no. 8, CC).
Therefore, case law has increasingly abandoned the figure of the primary caregiver, favouring instead the principle of equality between both parents and the equal parenting principle.
The specific relevance of the primary caregiver in relocation cases
Nevertheless, since the child’s best-interests criterion implies the assessment of the effect of the child’s estrangement from both parents, courts continue to rule in favour of the primary caregiver in relocation cases, often arguing that the relationship with the other parent may be kept through recurrent contact through technological means and frequent travelling (see decision of the Guimarães Court of Appeal dated 19 January 2023).
While relocation to another jurisdiction is always considered a matter of particular importance, and as such requires the consent of both parents, the classification of relocation within a jurisdiction as a matter of particular importance or as an act of everyday life will require a case-by-case analysis.
The criterion, according to the child’s best interests, will be the impact of the relocation on the child’s activities and routines, which as a rule depends on the distance between the place of residence and the location of the proposed move.
Thus, if the proposed relocation is to a nearby location, with little to no impact on the child’s activities and routines, and allows the child to keep his or her relationship with the left-behind parent, the relocation will not require his or her consent.
On the other hand, if the relocation:
relocation will be qualified as a matter of particular importance and require the consent of both parents (as per II Jornadas de Direito da Família e da Criança – O Direito e a Prática Forense, pg. 33).
Relocation to a different, far-away place or between the mainland and the islands of the Azores or Madeira always represents a matter of particular importance.
As referred to in 2. Relocation, the removal of a child out of Portuguese jurisdiction by one of the parents, without the other’s consent, is illegal. In fact, international child abduction implies the violation both of the child’s and of the left-behind parent’s fundamental rights, who are illegally deprived of contact with each other (as per article 36.º, no. 6, Portuguese Republic Constitution).
Criminal Relevance
Under article 249.º of the Portuguese Penal Code, child abduction is committed by a person who:
Although the crime seems to encompass situations of international child abduction by one of the parents, case law and legal doctrine have defended its inapplicability in cases where the exercise of parental responsibilities is not formally regulated.
It is also understood that the criminalisation of this behaviour does not fit criminal law’s ultima ratio character and that these situations can be sufficiently sanctioned on a civil level.
The majority of international child abduction situations go, therefore, unpenalised, it being enough that the contact between the child and the left-behind parent is maintained, or that the child’s whereabouts are known, for criminal courts to consider that no crime was committed.
Portugal is a Party-State of the United Nations Convention on the Rights of the Child and, as such, undertook to combat the illicit transfer and non-return of children abroad (article 11, no. 1, UNCRC).
Furthermore, Portugal is a country signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“1980 Hague Convention”) and a Member-State of the European Union, whose Council Regulation 2019/1111, of 25 June 2019 (“Brussels IIb Regulation”), introduces complementary rules on the application of the 1980 Hague Convention.
Therefore, and according to article 4 of the 1980 Hague Convention, the Convention shall apply when a child habitually resident in Portugal is removed to or retained in another country in breach of custody or access rights.
Steps to Return a Child Wrongfully Removed to or Retained in a Contracting State
Through the Central Authorities
In a situation in which a child is removed from Portugal, any person (including a parent), institution or other body claiming that the removal or retention occurred in breach of custody or visitation rights may apply to the Central Authority of any Contracting State for assistance in securing the return of the child, under the terms of article 8 of the 1980 Hague Convention.
Applying to the Portuguese Central Authority
Since March 2024, the Portuguese Central Authority is the “Direção Geral da Administração da Justiça” (or DGAJ).
One of its main purposes as a Central Authority for the 1980 Hague Convention is providing the necessary information and assistance to complete a child’s return application, as well as obtaining the necessary documentation to instruct this request.
As such, on its website, DGAJ makes available various forms and information relating to the return application of a child removed from Portugal (see here and here).
Once the forms and documents are received by DGAJ, DGAJ will proceed to a technical analysis of the request and submit it to the Central Authority of the State where the child is believed to be.
Costs of the application
For purposes of applying to DGAJ, it is not necessary to appoint a lawyer; however, this may be necessary once the application is transmitted to the Central Authority of the State where the child is believed to be. Applicants in situations of economic insufficiency may apply for legal aid, in the terms set out in 3.3 Hague Convention on the Civil Aspects of International Child Abduction.
The filing of a return application with DGAJ is free of charge and the whole process may be done through a computer, eliminating the costs for postage and travel.
Furthermore, the Portuguese Central Authorities provide a translation of the necessary documentation in the official language of the State where the child is believed to be.
Steps to secure access rights
The steps described above may be taken in order to apply for the organisation and securing of access rights, when a child is removed to a foreign Contracting State.
DGAJ provides the forms for this request, as well as information on the necessary documents to instruct the application (see here).
Through Portuguese courts
Proceedings of return may be brought directly before Portuguese courts, in accordance with article 18 of the 1980 Hague Convention.
In fact, and despite the child’s international abduction, Portuguese courts retain jurisdiction as the country of habitual residence of the child before the child’s wrongful removal/retention, in accordance with article 9 of the Brussels IIb Regulation and article 7 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Hague Convention), of which Portugal is also a Contracting State.
A decision on the substance of rights of custody which entails the return of the child shall be enforceable in another EU Member State, in accordance with Chapter IV of the Brussels IIb Regulation, and articles 23 and 26 of the 1996 Hague Convention.
Steps to Return a Child Wrongfully Removed to or Retained in a Non-Contracting State
The wrongful removal or retention of a child in a Non-Contracting State of the 1980 Hague Convention leads to a very sensitive situation, in which the eventual return of the child is almost entirely dependent on the law of the Non-Contracting State.
Although it is possible to obtain a decision in Portugal regarding the parental responsibilities’ regulation, which entails the child’s return, as described above, the procedure for the recognition and enforcement of such a decision in the country where the child is may prove difficult or altogether impossible without an international instrument to ensure its automatic recognition and enforcement, such as the 1996 Hague Convention.
Legal Advice
In Portugal, it is not mandatory to appoint a lawyer to present an application to the Central Authority, nor to the Portuguese court, except in case of appeal.
Please note that the Central Authority does not provide legal advice or representation, but only general information regarding the relevant laws, regulations and proceedings.
Notwithstanding, a parent may always choose to appoint a lawyer. In cases of economic insufficiency, parents can apply for legal aid and advice, on the same terms as citizens involved in any kind of legal process or seeking legal advice.
To apply for legal aid, a form must be submitted to the Portuguese Social Security, providing information on the applicant’s income and assets.
Although this is a straightforward procedure, it is usually time-consuming, as it implies the evaluation of the economic situation of the applicant and communications between administrative authorities in order to appoint a state-paid lawyer (in fact, the state-paid lawyers are appointed by the Portuguese Bar Association), which is often incompatible with the urgency of return procedures and international child abduction situations.
Return Procedures Through Central Authorities
Upon receiving an application for the child’s return from another Contracting State, DGAJ usually attempts to secure the voluntary return of the child, through consensus with the parent who wrongfully removed or retained the child in Portugal.
Should this attempt fail or prove impossible – for instance, because the true and current address of the abducting parent is unknown – DGAJ will forward the process to the competent public ministry’s office, which may apply for a judicial return procedure or, if necessary, for the application of protection measures to the child.
Statistical information
Currently, DGAJ does not provide statistical information about the number of Hague cases and their outcome. Nevertheless, upon direct request it often shares information collected by the former Central Authority about the number of Hague cases received from other Contracting States.
Judicial Return Procedures
Hague Convention application
Despite acknowledging the Convention’s underlying principle of immediate return of the child, Portuguese case law is sympathetic to the defences to the Convention, often defending broad interpretations of the exceptions provided in article 13.
The most common example is the relevance of the child’s separation from the abducting parent. Since the latter is often qualified as the primary caregiver, the child’s separation from this parent upon return is usually perceived as entailing a grave risk of physical or psychological harm to the child, under the terms of article 13, §1, al. b) of the 1980 Hague Convention (see a recent decision of the Portuguese Supreme Court dated 13 September 2022).
Furthermore, and even though the verification of an exception does not bind the court to refuse the child’s return, there is, to our knowledge, no Portuguese decision that ordered the child’s return despite the verification of an exception. On the contrary, its verification has always led to a non-return decision.
Proceedings
Portuguese law does not provide for a special proceeding for return applications, under the 1980 Hague Convention or otherwise.
As such, Portuguese courts use, as a rule, the common proceedings regulated by the Portuguese General Regime of Civil Guardianship Procedure, bestowing it with an urgent nature in order to meet the requirements of expediency and promptness arising from article 11, §1 of the Convention and article 24 of the Brussels IIb Regulation.
Rather than setting out a specific sequence of acts for ordinary guardianship proceedings, the legislation only established that “the judge may order the steps deemed necessary before issuing a final decision”.
This naturally leads to a lack of uniformity in the processing of return applications, further decreasing legal certainty and security in a very stressful time for children and parents. Likewise, this undermines mutual trust between authorities, especially as Portuguese law does not provide for communication mechanisms with the court of the State of the child’s residency.
Despite these disadvantages, it is indisputable that, even in the absence of a proper internal proceeding, courts must conform with the legal requirements of the 1980 Hague Convention and the Brussels IIb Regulation, as well as the guiding principles of guardianship procedures and civil proceedings, namely the principles of equality of arms and of the child’s right to be heard (as per decision of the Supreme Court dated 14 September 2023).
Return procedures for a non-Contracting State
Even though the 1980 Hague Convention does not apply in such cases (article 4 of the Convention, a contrario), one of the aims of this international instrument is to secure the prompt return of children wrongfully removed to or retained in a Contracting State – a purpose that continues to apply, even if the abducted child is a habitual resident of a non-Contracting State.
Furthermore, and as referred to above, one of the undertakings assumed by the Portuguese State under the UNCRC is to combat the illicit transfer and non-return of children abroad.
In this sense, although no case law is available on this subject, it is our understanding that the same procedure and principles should be applicable whenever a non-Contracting State is involved, as follows from the principle of the primacy of the child’s best interests.
Costs and timescale of return proceedings
Return proceedings are bestowed urgent nature, running terms even during judicial holidays, and must be decided within six weeks from the date of commencement of the proceedings (article 11, §2, 1980 Hague Convention and article 24.º, nos. 2 and 3, Brussels IIb Regulation).
Notwithstanding, the courts often struggle to reach a final decision within this timeframe, due to the steps taken to ensure the summons of the defendant, an adequate time for both parents to present their defence, the scheduling of a conference to hear the child (if the child is deemed capable of understanding the matters under discussion), etc.
To this end, Portuguese courts often use technical advisory services, in order to obtain information on the child’s ability to understand the matters under discussion, the child’s integration in Portugal, his or her current state of mind and wellbeing, etc, which usually delays proceedings.
Return proceedings under the 1980 Hague Convention are not subject to the payment of court fees (article 26, §2, 1980 Hague Convention), although court fees may apply in case of appeal.
Portugal is a signatory to the Hague Convention.
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geral@divorciofamilia.com divorciofamilia.comThe Child’s Right to Express His or Her Views in Return Proceedings
Introduction and legal framework
The relevance of the child’s opposition to being returned in the 1980 Hague Convention
As per article 13, §2 of the Hague Convention on the Civil Aspects of International Child Abduction (also known as the “1980 Hague Convention”), a judicial or administrative authority may refuse to order the return of a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.
This is one of the few exceptions or defences to a child abduction application, releasing the courts of a Contracting State from the duty to order the return of a child proved to have been removed or retained away of his or her country of residence in breach of a custody right.
According to the Hague Conference on Private International Law’s (HCCH) guidelines, the exceptions to non-return must be given a restrictive interpretation. This is a direct implication of the 1980 Hague Convention, which aims to ensure the prompt return of abducted children and to restore the status quo prior to any wrongful removal or retention. The reasons for these goals are multiple and include, among others:
Child’s opposition to return vis-à-vis child’s right to express his or her views
The above may help explain the somewhat limited relevance of the child’s opinion in the 1980 Hague Convention, especially when compared with other international Conventions, such as the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on the Exercise of the Rights of the Child (ECERC).
Indeed, while these Conventions recognise the child’s right to be heard and to participate in judicial proceedings that concern him or her, establishing the duty of judicial authorities to take the child’s opinion into account, the 1980 Hague Convention refers instead to the child’s opposition to being returned and leaves it to the Contracting State’s authority to decide whether or not to take the child’s grounds for opposition into consideration.
Whether these differences are deemed appropriate in light of the 1980 Hague Convention, or merely as a symptom of a legal evolution initiated in 1989 with the UNCRC, which considerably broadened children’s substantive and procedural rights, the fact remains that both European Regulations and Portuguese internal law have sought to introduce, in recent years, the child’s right to be heard in return proceedings.
This short article aims to discuss the potential disadvantages of such a trend.
The introduction of the child’s right to be heard in return proceedings by the Brussels IIb Regulation
On 1 August 2022, Council Regulation (EU) 2019/1111 of 25 June 2019, or the “Brussels IIb Regulation”, became applicable in its entirety in all Member States of the European Union.
This Regulation is a recast of Council Regulation (EC) no. 2201/2003 of 27 November 2003, also known as the “Brussels IIa Regulation”, and, like its predecessor, “establishes uniform jurisdiction rules for divorce, legal separation and marriage annulment, as well as for disputes about parental responsibility with an international element”.
As far as parental responsibilities are concerned, both Regulations follow and develop the rules laid down in the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the “1996 Hague Convention”), with the exception of the ones concerning applicable law, a subject which has not yet been harmonised at the EU level.
One of the main new features of the Brussels IIb Regulation, when compared with the previous one, is the introduction of complementary provisions to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”), applicable in international child abduction cases that involve EU Member States. These include, among others, the recognition of the “right of the child to express his or her views in return proceedings” (article 26 of the Brussels IIb Regulation).
According to this provision:
Besides the extended scope of the child’s right to express his or her views, vis-à-vis the relevance of the child’s opposition to being returned, this complementary provision differs from the 1980 Hague Convention in two major aspects:
The principle of the child’s hearing and participation under Portuguese law
In accordance with Portuguese law and procedure, the child’s right to express his or her views has the dignity of a general procedural principle, known in Portuguese legal terminology as “the principle of the child’s hearing and participation” (article 4, no. 1, c), RGPTC).
According to this principle, a child who is capable of understanding the matters under discussion must always have the opportunity to be heard, preferably with the support of the court’s technical advisory teams. The child’s accompaniment by an adult of his or her choice is also guaranteed, unless there are well-founded reasons for refusal – a rule which is a direct transposition of article 5, a) of ECERC.
In Portugal’s case, this principle was already applied to return proceedings under the 1980 Hague Convention even before the Brussels IIb Regulation became applicable.
This is so because Portuguese law does not provide for a specific procedure applicable to return applications. In the absence of such a procedure, Portuguese courts typically apply the common procedure provided in the Portuguese General Regime of Civil Guardianship Procedure (RGPTC), which leaves it to the judge to order the steps deemed necessary before issuing a final decision.
Despite this apparent freedom, when deciding which steps are necessary, in Hague return proceedings or otherwise, judges must comply with common procedural principles, as well as the principles set out in RGPTC, which include the principle of the child’s hearing and participation.
Assessing the child’s capacity to understand the matters under discussion
In order to determine whether or not a child has sufficient understanding, judges must perform a case-by-case analysis; to do so, they may use the court’s technical advisory teams (article 4, no. 2, RGPTC). As such, it is not enough, according to the law, to consider the child’s age and maturity in the abstract. Instead, such factors must be weighed alongside the other information available in the case files, including, among other things:
Portuguese courts often bypass this assessment, directly ordering the child’s hearing, even at very young ages. They do so both to avoid the difficulties inherent to the evaluation of the child’s ability to understand the matters under discussion, but also to avoid the legal consequences of not providing the child the opportunity to express his or her views, which can result in the nullity of the final decision.
The relevance of the child’s views in return proceedings
Notwithstanding its major importance as a legal fulfilment of the child’s procedural rights and right to the free development of personality, the relevance of the child’s views in return proceedings may be particularly problematic in return proceedings, under the framework of the Brussels IIb Regulation and Portuguese law.
The child’s views vis-à-vis the child’s opposition to being returned
The child’s right to express his or her views, recognised in the UNCRC, the ECERC and Portuguese law, has a different and broader scope than the “child’s objection to being returned”, used in the 1980 Hague Convention.
To illustrate the above, we selected the decision from the Évora Court of Appeal dated 4 June 2020. In this case, concerning a Ukrainian child of 12, the decision of the first instance court, which ordered the child’s return, was annulled by the Court of Appeal, on the grounds that nothing was said in the decision about the views and wishes expressed by the child.
According to the summary report of the case files, upon his hearing, the child stated that “he had gone to the sixth grade, but he had not passed; he likes to be in Portugal a lot; he wishes to go to Ukraine in the holidays, to visit his family, but only with his mother; he lives with his mother and brother; he doesn’t miss his father” (freely translated).
These declarations do not contain a direct opposition to his return, but merely a preference for staying in Portugal. Furthermore, the child did not provide an objective reason for his preference or for his wish to stay in Portugal with his mother and brother.
Notwithstanding, the court of appeal considered that “the decision to order the return [of the child], following wrongful removal to or retention in one of the Contracting States, requires an examination of whether the return corresponds to the child’s best interests or even whether it is in accordance with his or her will, provided that the child’s age and degree of maturity justify his or her opinion being taken into account” (freely translated).
The Évora Court of Appeal decision goes on to say that “a child’s expressed wish to remain in the country to which he or she has been removed and is being retained must also take into account the child’s maturity, as established in the 1980 Hague Convention. It is not enough for a child to express that he or she wishes to remain in the contracting state to which he or she has been unlawfully removed or retained. It is necessary that this wish demonstrates a sufficient degree of maturity and that the decision not to return is based on the child’s best interests” (freely translated).
The above results, in sum, in the following:
This case law, which results in a significant expansion of the scope of application of the exception provided for in article 13, §2 of the 1980 Hague Convention, invites considerations which, due to their close relation with the merits of the right of custody, should be within the exclusive competence of the courts of the State of habitual residence.
Indeed, the assessment of whether it is in the best interests of the child to stay or return will necessarily intersect with the discussion on the child’s country of residence, for which the courts of the requested State lack international competence (as per article 9 of the Brussels IIb Regulation and article 8 of the 1996 Hague Convention). Likewise, in the original spirit of the 1980 Hague Convention, the exceptions to return refer only to extreme situations, and not to the assessment of whether or not the return decision is in the child’s best interests, which the courts of the child’s country of habitual residence are better placed to assess.
Notwithstanding, this or similar understandings have been adopted by Portuguese courts in return proceedings.
The Oporto Court of Appeal, for instance, wrote in the summary of a 2022 decision that “when assessing whether the exception provided for in article 13(b) of the [1980 Hague Convention] is met, a judgement must be made as to whether the child’s return is in his or her best interests or even his or her wishes (provided that the child is of age and maturity)” (freely translated).
In another example, a Supreme Court decision of 2021 considered legal another decision by the Oporto Court of Appeal to refuse the return of two children who expressed a preference to remain in Portugal with the father, although the children described a positive relationship with both parents and explained that the reason why they were upset with the mother was because she had initiated a romantic relationship with another person. According to this decision, even if it was proven that “the children adhered to the father’s point of view, because he expressed sadness” (freely translated) and that “the children are incapable of distinguishing between conjugality and parenthood” (freely translated), the appealed decision is admissible, as the children’s objection is a legal ground to refuse to order the children’s return and the Court had made “a global consideration of the children’s best interests, concluding that its promotion would be greater if they remained and resided in Portugal” (freely translated).
The difficulties in assessing the spontaneity of the child’s views
One of the most difficult aspects of the child’s hearing is to assess whether the child’s views are unduly influenced by one of the parents and/or by an incorrect comprehension of his or her reality. This is particularly true in return proceedings, due to the complexity of the matter and to the publicity given to the child’s views as a defence to a return application.
The child’s hearing in these proceedings can pose terrible risks for the child’s welfare, often leading to the weaponisation of young children and to a court giving weight to a child’s false or misguided understanding, leading to consequences for his or her return, against the child’s best interests.
For this reason, it is important to pay close attention to inconsistencies in the child’s speech, which can be the result of undue influence by an adult or of a loyalty conflict felt by the child. However, even this may not be enough, as such influence or conflict may not be apparent from the child’s declarations.
The weight of the child’s relationship with the abducting parent
As illustrated by the Évora Court of Appeal’s decision cited above, the child’s relationship with his mother assumed, for the child, a particular importance, which intertwines with the child’s supposed preference to stay outside of his country of habitual residence.
In this sense, it is often anticipated that return will lead to the child’s estrangement from the abducting parent, to whom the child has usually grown closer during the time of the wrongful retention, as well as a sometimes unwanted rapprochement with the left-behind parent, from whom the child has grown apart. There is, therefore, a “fear” of return, often fuelled by the abducting parent, which vitiates the child’s volitive and cognitive process.
This fear, however, does not originate from the child’s opposition to being returned but rather from the abducting parent’s decision not to do so. Thus, and although the will of the abducting parent has no legal relevance, it becomes relevant under the guise of the “child’s wish to stay” or the “child’s best interests”, especially when such concepts are used to prevent the child’s estrangement from the abducting parent, who is often qualified as his or her primary caregiver.
The lack of information from the authorities of the State of the child’s habitual residence
Due to the absence of special procedural rules for return proceedings, Portuguese courts are unequipped to request information on the child’s social background from the Central Authority of the child’s habitual residence, as provided for in article 13, §3 of the 1980 Hague Convention.
As an alternative, courts often resort to their own national advisory teams. Although this option may be deemed legitimate in the framework of the Brussels IIb Regulation, which refers to the national law of each Member State, it may lead to decisions based on wrong or incomplete premises.
In this sense, national technical teams only assess a short period of the child’s life, which gives an inaccurate picture of the child’s background that is often very different from the reality the child knew before the abduction.
Furthermore, the circumstances in the State to which the child was wrongfully removed can easily be artificially controlled or influenced by the abducting parent, thus rendering the 1980 Hague Convention ineffective. Simultaneously, the information gathered is often unverified, allowing courts to take into account false or misleading information provided by the parents or the child.
In conclusion
Notwithstanding the paramount importance of the child’s right to express his or her views, its relevance in return proceedings can have inauspicious consequences when leading to decisions that consolidate the de facto conditions created by the abducting parent and ultimately to the child’s estrangement from the left-behind parent, against his or her best interests.
This jeopardises the 1980 Hague Convention’s purposes of preventing parental international abduction, providing abducting parents with a sense of impunity, especially considering that under Portuguese law parental abduction is not considered a crime, when parental responsibilities are not properly regulated.
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