Key facts of the case:
A. lodged an appeal against the decision sent down by the Family and Children’s Court of Funchal which had set the starting date for paying child-maintenance benefits of a minor payable by the Child Support Guarantee Fund, one month following the notification of the Court’s decision, and not on the date on which the claim involving the benefits was submitted. The rule applied by the Court a quo has been the object of an appreciation as regards its constitutionality in several judgements handed down by the Constitutional Court and interpretations have not always coincided. The main arguments cited in such judgements are as follows: “the duty to educate and maintain their children" falls to the parents in first place; and the right of children to “the protection of society and the State with a view to their full development, particularly against all kinds of abandonment" does not result in the fact that “the State has to take legal measures to guarantee child support to these off-spring, according to the dictates of the Constitution. “As normally happens where social rights are concerned and which involve State-subsidised material support, this right is a ‘right wherever it is possible to meet it’; neither the amount (quantum) nor the way in which it is paid is stipulated in the Constitution. Pursuant to the right to child support, when child maintenance payments or benefits are paid by the State, the limit cannot be changed by law-makers and may only (legally) be set by going through other constitutional means where the principle of upholding human dignity is foremost”.
Although it is true that the extra protection given children also has as its source, the important instruments available in International Law and European Union Law by which Portugal is bound – mainly the Universal Declaration of Human Rights (Article 25, (2)), the International Covenant on Civil and Political Rights (Article 24), the International Covenant on Economic, Social and Cultural Rights (Article 10, (3)), the United Nations Convention on Children’s Rights, and more recently, the European Union Charter of Fundamental Human Rights (Article 24) – and that the State’s intervention has to be made at a time that is compatible with satisfying the needs calling for such action -, none of these instruments has a bearing on how the Constitution should be interpreted in the way of imposing it upon the common, non-constitutional legislator as the only means, or as a constitutionally-determined minimum, needed for satisfying the social right in question, which is the retroactive nature of the sentence at the moment of instituting a legal procedure against the Child Support Guarantee Fund. It is stressed that in order to protect suitable time limits, the legal system offers an ideal way by making it possible to adopt provisional measures, and such a choice falls within the discretion of the law-maker legislating on how to bring about social rights in concrete.
The Charter is likewise referred to in an Explanation of Vote submitted by one of the Constitutional Court judges, a copy of which is attached to the Judgement.