Legitimacy to appeal of a person who has the de facto care of a minor, but not the exercise of parental authority.
Protection of the family
RULING Nº 52/07
30 of January of 2007
The rules setting out the requirements for exercise of parental authority are designed to govern proceedings in which the courts are empowered to further a particular interest in the most appropriate way, as if the matter were an essentially administrative one and legal only from a formal standpoint.
In determining the requirements for exercise of parental authority, the courts must have regard to the child's interests. All other interests are of secondary importance. The child's interests cannot determine who has locus standi in the proceedings.
In the present proceedings, the Court had ruled that a child be returned a child to her biological father, removing her from the couple who then had de facto responsibility for her and who wanted to adopt her. In that context, not allowing the couple to take part in the proceedings would effectively deny them any possibility of stating their claims and defending their interests on the same footing as the other parties to the case.
I. The State Counsel's Office sought clarification of the requirements for exercise of parental authority, in a case where a mother had handed over her newborn child to a couple so that they would "fully adopt it and bring it up as a member of their family". The lower court had decided to award custody and parental authority over the child to the biological father. The couple had been refused leave to appeal against the decision on the grounds that this de facto tie, from which exercise of parental authority derived, did not concern them. As a result, they were not entitled to contest the decision laying down the requirements for exercise of that authority.
The procedure involved in setting the requirements for exercise of parental authority was expressly classed as non-contentious. The relevant rules in the code of civil procedure were those which gave the courts wider jurisdiction in matters of fact and evidence, empowered them to apply the criteria of usefulness and advisability in reaching their decisions and allowed them to amend measures when circumstances warranted it. In its decision the lower court had interpreted Article 680.2 of the code of civil procedure in such a way that the appellants had not "actually and directly" been injured by the decision laying down the requirements for apportioning parental authority between the biological parents. This was because their interests were not at issue here; rather, those of the child.
II. The Constitutional Court pronounced the relevant provision of the code of civil procedure to be unconstitutional. It prevented the person actually looking after a child from lodging an appeal in proceedings to determine how parental authority over the child was to be exercised. It contravened the right to the court protection, as guaranteed by Article 20.1 of the Constitution.