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Portugal / Court of Appeal of Oporto / 1516/06.0TMPRT.2.P1

Complainant, defendant, minor children

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Portugal / Court of Appeal of Oporto
Decision date:

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:

  • The situation did not include non-compliance as far as visitation rights were concerned, a fact that was clearly seen in the son's willingness to be with his mother;
  • Ruling on parental obligations has to be interpreted as a means which seeks to safeguard the minor children’s interests and their well-being physically and psychologically;
  • In not revealing the express opinion of the son, the court a quo breached the provisions laid down in Article 12 (1) of the Convention on the Rights of the Child, Article 26 (1) in the Portuguese Constitution (CRP), Articles 1874, 1878 (2), and 1901 (3) in the Civil Code (Código Civil) and Article 4 i) in the Law for the Protection of Children and Young People at Risk (Lei de Protecção de Crianças e Jovens em Perigo, LPCJP).