Key facts of the case:
In a court decision where the terms were agreed upon by the parents, the father was granted the custody of and the exercise of parental responsibilities regarding two minor children aged 10 and 14 years old after the couple had divorced. The mother was granted right of access at particular weekends and during part of the school holidays. Neither of the parents would be deprived of the company of the children for more than three consecutive weeks. As from a certain point in time, in accordance with what the father alleged, this ruling was not respected as regards the mother owing to the children's unwillingness to keep in touch with their mother, in particular the 14-year old daughter. As a result, the mother was deprived of the company of her children, a situation that was abetted by the father who did not want to argue with the children. The mother sought a writ pursuant to the fulfilling of parental obligations, the outcome of which was a partial verdict on the claim of non-compliance. The father was absolved of contravening the order in the case of the daughter, but he was condemned in the case of the son. The court sentenced the defendant to pay a fine to the sum of €150 and compensation to the complainant to the sum of €500. The father appealed against this decision to the Court of Appeals referring mainly to the following:
Understanding the philosophy underpinning the law, the European Union regulations and international conventions binding the Portuguese State is pacific in terms of the need to rule on parental responsibilities where the child is heard in a prior hearing – cf. as regards this point, Article 24, line i) in the LPCJP; the provisions in Article 147 in the Jurisdictional Organisation of Minors (Organização Tutelar de Menores, OTM) in the version pursuant to the Law 133/99 of 29 August; Article 24 no. 2 in the Charter of Fundamental Rights of the European Union (...) and Article 12 no.2 in the United Nations Convention on the Rights of the Child. “All the precepts cited in the above make it clear that the courts should hear the child, taking into account his/her age and degree of maturity”, which is what happened.
“Together with the right to hear the child, the parent and the child enjoy the right to be in each other’s company.” "Denying or suppressing the child’s right to be with the parent who does not have custody over the children is only allowed in an extreme conflict of the child’s interests and the above-mentioned right, which is not the case.”
“The parent who has custody over the children cannot hide behind the fleeting or unformed impressions of the child so that nothing is done and so that in practice it even ends up by hindering the visitation rights of the parent who does not have custody."