Early payment by the state of maintenance payments due to minors in cases in which the person on whom that duty falls does not fulfil his/her obligation – the Fund for Guaranteeing the Maintenance Due to Minors (FGADM)
Right to a sufficient standard of living
Social rights of minors
Access to social security
RULING No. 54/11
1 of February of 2011
In order to satisfy the fundamental right to social security of minors with regard to whom the parental duty to provide for their subsistence is not being fulfilled, it is not enough to create just any minor-support mechanism. It is also necessary for that mechanism to be constructed in a way that allows it to provide an effective response to such situations. Inasmuch as the duty to pay maintenance is embodied in regular pecuniary payments intended to cover the cost of the minors’ expenses, the question of the timely provision of those payments is an essential one. This goal is only achieved if the social benefits awarded to the minors in question cover, as closely as possible, the whole of the period in which the parents fail in their duty to provide for their children’s subsistence. A normative interpretation that leaves the period before submission of the application for the intervention by the Fund for Guaranteeing the Maintenance Due to Minors without protection is unconstitutional; nor is this finding precluded by the fact that the law allows the applicable court to order the State to make provisional maintenance payments, given that this provisional decision can only be used in cases of exceptional urgency and does not encompass all the situations in which a minor’s subsistence is not ensured by the parties on whom the obligation primarily falls. What is more, the moment at which the beneficiary can demand the social benefits that have been ordered on a provisional basis is uncertain and always comes late, given that the provisional decision is only taken when the procedure for determining the need for the State to intervene and provide a subsidy is already underway; and, what is more, that moment in time can also be preceded by fact-finding steps, and the amount of time these will take is also uncertain.
This Ruling was handed down in response to a mandatory appeal by the Public Prosecutors’ Office, which it lodged with regard to the decision by the court a quo to uphold a mother’s request for the maintenance payments that her ex-husband owed to their two underage children to be made instead by the Fund for Guaranteeing the Maintenance Due to Minors (FGADM); in taking this decision, the court refused to apply the norm contained in the Executive Law that regulated the Fund, which says that the Regional Social Security Centre must begin making the payments on behalf of the Fund in the month following that in which it is notified of the court’s decision, on the grounds that this norm is unconstitutional.
In its decision the court a quo interpreted this norm to mean that the obligation on the part of the FGADM to make court-ordered maintenance payments to a minor in the debtor’s place is only constituted upon the issue of the decision in which the court determines the amount of the payment that is to be made by the Fund, and that the beneficiary cannot demand payments for periods prior to that decision – a meaning which the court in question held to be unconstitutional.
The Constitutional Court considered that the duty to provide for children’s upkeep lies first of all with their parents, that the obligation to pay maintenance is based on the filial relationship and is an integral part of the content of parental authority, and that this reflects a society which is founded on the principle of family solidarity. However, a state which seeks to achieve economic and social democracy cannot stand aside from a child’s natural need for protection, and this is why the Constitution expressly recognises that: “With a view to their integral development, children have the right to protection by society and the state, especially from all forms of abandonment”; and also lays down that: “In performing their irreplaceable role in relation to their children”, fathers and mothers must receive protection. This entails a responsibility on the part of the state, which must serve as a support for family solidarity.
The need for state intervention has been recognised by the international organisations that have issued binding international legal norms in this regard. These particularly include Recommendations of the Council of Europe R(82)2, on payment by the state of advances on child maintenance, and R(89)l, on contributions following divorce, which covers the state’s obligations with regard to the payment of maintenance to minors in cases in which their parents divorce. The 1989 United Nations Convention on the Rights of the Child also attaches special importance to making sure that children and young persons up to the age of eighteen actually receive maintenance payments.
The Constitutional Court recalled that this was the spirit underlying the publication of a 1998 Law whose goal was the creation of a public system for guaranteeing maintenance payments due to minors. This Law was designed to complement the existing provisions on this subject in the Executive Law governing the Organisation of the Protection of Minors – a system which is often incapable of responding to the need to enforce the right to maintenance, especially when the whereabouts of the party who is responsible for payment are unknown, or he/she is abroad or self-employed. The 1998 Law says that in every situation in which that party does not pay the due amounts in the ways laid down under the rules governing the Organisation of the Protection of Minors, the state must itself ensure that payment whenever the recipient’s income does not exceed the national minimum wage and he/she does not receive at least that much income from whoever is responsible for his/her care. This intervention by the state is thus a subsidiary one, inasmuch as it only occurs when it is not possible to coactively ensure the maintenance payments for which the minor’s progenitors are responsible in any of the other ways provided for by law.
The Constitutional Court was of the view that this suppletive intervention by the state is restricted to the fulfilment of constitutional requirements derived from the constitutional right to the protection of childhood, which obliges a state that seeks to be a Welfare State governed by the Rule of Law to organise a social security system which, inter alia, ensures the protection of minors whose minimally dignified subsistence cannot be provided for by the enforcement of the obligations of the persons who possess the parental responsibilities for those minors.
In the infra-constitutional jurisprudence on this subject, opinions are divided on the question of when the obligation on the part of the FGADM to make maintenance payments is constituted. Some courts have decided that this moment is that at which the request for intervention by the Fund enters the judicial system; others have held that the obligation is only constituted when a court actually orders the Fund to pay. This jurisprudential split ended when the Supreme Court of Justice issued a Jurisprudence Standardisation Ruling in which it decided: that this obligation only arises upon the decision in which a court judges the incident in which the original debtor fails to pay; that the obligation only becomes enforceable in the month following the one in which the Fund is notified of the court’s decision; and that the obligation therefore does not encompass any payments due before that date.
The Constitutional Court noted that it was not its place to gauge whether this criterion is correct in infra-constitutional terms, but rather to verify whether it fulfils the requirements imposed by the Constitution.
In its Ruling the Court held that, given that the recipients of this social benefit are minors who are deprived of the means of subsistence, this is a universe in relation to which the social protection imperatives provided for in the Constitution are at their greatest. Any normative solution that does not address the need to guarantee the payment of maintenance in the period preceding the judicial decision undermines the fulfilment of the recipient minor’s basic needs, to the extent that it results in acceptance of a new period, whose duration is uncertain, in which there is a continued absence of any social maintenance benefit – a period which itself comes on top of an earlier one that has already demonstrated the total failure of family solidarity.
The Ruling was the object of one opinion, whose author concurred with the decision on the case’s merit, but dissented from the Court’s decision to hear it, inasmuch as she felt that the procedural conditions for the Constitutional Court to hear this appeal were not met.