Child Relocation 2024 Comparisons

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:

• the relocation of the child to a distant location within Portugal or to another country;
• the child’s enrolment in a private school;
• surgical interventions which may result in increased risks to the child’s health;
• the practice of extreme sports activities;
• the employment of children, or their participation of children in shows or advertisements; and
• religious education, up to the age of 16.

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:

• decisions about leisure activities;
• the act of taking and picking up the child from school regularly;
• assisting the child with his or her schoolwork; and
• decisions about daily hygiene, clothing, footwear, etc.

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:

• within one year of the birth, the motherhood indicated is registered (article 1804.º, no. 1, CC);
• one year or more after the birth, the motherhood indicated is also registered, but only if the person indicated as mother confirms the birth (article 1805.º CC).

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:

• “perfilhação”, a voluntary declaration by the father acknowledging the child as his own; or
• judicial decision, through a special procedure called an “investigation process” (article 1847.º CC).

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:

• women, either individually or as female couples, without the need of a special diagnosis or any medical justification; and
• different-sex couples, upon a diagnosis of infertility, for the treatment of serious illness or to prevent the risk of transmission of diseases (article 4.º, nos. 2 and 3, and article 6.º, no. 1, LPMA).

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:

• the rules for the establishment of biological motherhood/fatherhood, as described above, do not apply;
• medically assisted reproduction is only available to female couples, who may also resort to adoption;
• cisgender male couples, on the other hand, may only have children together through adoption; and
• same-sex couples in Portugal have access to adoption under the same terms as different-sex couples.

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:

• the adoptee, if older than 12 years of age;
• the prospective adopter’s spouse or partner;
• the parents of the adoptee, unless the child is living with his or her grandparents or uncles/aunts, or the court has applied a protection measure, entrusting the child to the prospective adopters or to an institution in view of future adoption;
• the grandparents or uncles/aunts of the adoptee, when the adoptees live with these family members; and
• the prospective adopter(s).

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:

• resolve the issue through mediation; or
• settle the dispute in a court of law, through the special procedure provided for in article 44.º of the General Regime of Civil Guardianship Procedure (also called RGPTC).

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:

• compromises the alternating residency of the child with both parents;
• compromises the visitation rights of the non-resident parent;
• compromises the child’s ability to attend the same school; or
• in any way impacts significantly the child’s daily life and activities,

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:

• removes the child from the sphere of control of whoever has custody – this can be done either by action or by omission (ie, refusal to disclose the child’s whereabouts) and, as a rule, implies the lapse of a significant time period, sufficient to obstruct the exercise of parental responsibilities;
• by means of violence or threats of serious harm, causes a child to run away; or
• repeatedly and unjustifiably fails to comply with regime established for the child’s residency/visitation rights in the exercise of parental responsibilities’ regulation, by refusing, delaying or significantly hindering the child’s handover or collection.

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.