Article 24 - The rights of the child
Key facts of the case:
X sought a declaration that Y could be adopted. In first-instance, the court dismissed this application on the grounds that the parents' consent had not been given and, considering X's economic situation, it was determined that granting X’s claim would have a significant negative impact on the Z (Y’s brother) future financial resources. Against this decision, X lodged an appeal before the Appeal Court which was dismissed, confirming the decision under appeal, albeit on different grounds.
The Appeal Court reviewed the case facts and concluded that the general requirements for adoption under Art.1974 Civil Code were met. Specifically, the court determined that the adoption would offer significant benefits to Y, that there were legitimate reasons for the adoption, and that the adoption would not unfairly disadvantage Z. However, the Appeal Court held that the requirement laid down in Arts.1979(3) and 1980(1) Civil Code and 34(1)(a) and (b) of the legal framework for the adoption process (Law 143/2015) had not been met, namely that the adopter had been entrusted with guardianship, before the adoption proceedings, by an administrative trust or a protective measure of judicial confidence aiming at the future adoption.
The Public Prosecutor Service lodged a review appeal to the Supreme Court, arguing that, although there had been no formal declaration of administrative custody by the social services , entrusting Z to the care of X, the potential adoptive parent (pending a final decision), the social services approved in a Pre-Adoption Monitoring and Assessment Report (Art.53(2) Law 143/2015) that the child be adopted by the applicant. In the aforementioned report, the social services highlighted the good exercise of parenthood by X, and concluding that Y's adoption could be processed. The Public Prosecutor Service further claimed that, if it is not considered that the requirement of administrative custody is met, the pre-existing provisions of Art.1980 (3) of the Civil Code, revoked by Law 46/2023 should be applied. This rule allowed for adoption, without an administrative custody decision, if other relevant court decisions, such as those concerning parental responsibilities, had already been made.
The key legal question was whether, before the adoption process, the child should have been entrusted to the prospective adopter, through an administrative trust, or a protective measure of judicial confidence to the person selected with a view to future adoption.
Outcome of the case:
The Court noted that although, in this case, the administrative custody was not formally established, it must be considered that, subsequently, it was remedied with the preparation of the ‘Pre-Adoption Monitoring and Evaluation Report’ by the social services. This report is the result of a technical assessment by the social services for the pre-adoption period, which includes, in particular, elements relating to the personality and health of the adopter and the adoptee, the suitability of the adopter to raise and educate the adoptee, the adopter's family and economic situation and determining reasons for the adoption request. Therefore, the lack of a formal administrative trust decision has been remedied by the comprehensive evaluation conducted by the social services.
Furthermore, the Court noted that if this report was not considered sufficient to remedy the lack of a formal administrative custody decision, this would compromise the paramount principle of the child's best interests, enshrined in national and EU law, namely Art.24(2) of the EU Charter of Fundamental Rights . The court also clarified that in this case respecting the primacy of Y’s best interests includes, in particular, recognising her wish to be adopted, to be placed in a structured and functional family, to preserve her emotional relationships and the quality of these relationships, which are essential for her healthy and harmonious development.
The Court highlighted that the adoption requires both the consent of the adopter and the consent of the adoptee's parents, even if they are minors anddon't exercise parental responsibility, as long as there has been no court-ordered temporary guardianship with a view to future adoption, among others referred to in 1981(1) Civil Code. However, the Court noted that in this case the consent of Y's biological parents had been not obtained (under Art.1981(1)(c) Civil Code) or waived by the court (under Art.1981(3)(a)(c) Civil Code). As the consent of Y’s biological parents has not been obtained, nor has such consent been waived, the Court could not make any decision on the merits. It was therefore necessary to obtain the consent of the biological parents, or to waive such consent, to approve the adoption. Consequently, the decision under appeal was revoked, and the case was remitted the case to the first-instance court .
«Charter of Fundamental Rights of the European Union
Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity – article 24(1) from the Charter.
In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration – article 24(2) from the Charter.
Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests - article 24(3) from the Charter.»
«CARTA DOS DIREITOS FUNDAMENTAIS DA UNIÃO EUROPEIA
As crianças têm direito à proteção e aos cuidados necessários ao seu bem-estar. Podem exprimir livremente a sua opinião, que será tomada em consideração nos assuntos que lhes digam respeito, em função da sua idade e maturidade – artigo 24.º/1, da Carta.
Todos os atos relativos às crianças, quer praticados por entidades públicas, quer por instituições privadas, terão primacialmente em conta o interesse superior da criança – artigo 24.º/2, da Carta.
Todas as crianças têm o direito de manter regularmente relações pessoais e contactos diretos com ambos os progenitores, exceto se isso for contrário aos seus interesses – artigo 24.º/3, da Carta.»
«O primado do interesse das crianças constitui um princípio fundamental de Direito da Família e das Crianças consagrado no Direito Internacional (art. 3º da Convenção das Nações Unidas sobre os direitos das crianças) e no Direito da União Europeia (artigo 24º/2, da Carta dos Direitos Fundamentais da União Europeia).»