Application of a new regulatory regime regarding the exercise of parental responsibilities to pending cases.
Exercise of parental responsibilities
Weighing of interests
Prohibition of arbitrariness
RULING No. 398/11
22 of September of 2011
The grounds for the difference in legal treatment that results from a transitional-law norm which precludes the immediate application in pending cases of a new regime governing the exercise of parental responsibilities in cases in which the minor’s parents have never been married and are not living and have never lived in circumstances analogous to those of spouses, are the need to safeguard the expectations which the parties formed with regard to the application of the law that was current at the moment when the court was asked to intervene. Although a change in the legislation can cause a change in the normative treatment afforded to a given category of situations, thereby implying that realities which are substantially the same thenceforth lead to different solutions, this does not mean that this divergence is incompatible with the Constitution, inasmuch as it (the divergence) comes about for legislative policy reasons which warrant a new legal regime. Given that legislative changes are designed to cause a certain matter to be treated in a different way, the creation of unequal situations as a result of the application of the repealed legal framework to pending cases and of the new regime to new situations is an inherent part of the freedom that allows the legislator in a state that is subject to the rule of law, acting in pursuit of its democratic mandate, to alter current laws. It is thus not possible to say that the resulting differentiation is arbitrary, and it consequently cannot be held to be unconstitutional.
The issue in the present case was a norm contained in a law which, among other things, changed the regime governing the exercise of parental responsibilities, but said that the new regime did not apply to pending cases. The court a quo refused to apply this law, saying that it was materially unconstitutional. As such, the Public Prosecutors’ Office brought a mandatory appeal before the Constitutional Court, asking it to review the constitutionality of the norm in question.
The original case involved the situation of a minor whose parents were not married, did not live together in a de facto union and did not agree as to how parental authority should be exercised. The minor lived with the mother.
Under the previous regime, in cases of biological parents who were not married to one another and did not live together in a de facto union, either they agreed to exercise parental authority jointly or, in the absence of such agreement, that exercise pertained to the parent with custody of the minor. It was presumed iuris tantum that custody pertained to the mother – a presumption which, if the real situation was otherwise, could only be overturned by a court.
A biological parent without the right to exercise parental authority possessed the power to monitor his/her child’s education and living conditions. The basis for this solution was an eminently practical one. In such situations, the idea was to imbue the representation of the minor’s interests with certainty and efficacy by awarding parental authority solely to the person with custody of him/her, with the statistically justified presumption that that person was the mother.
The regime introduced by the new law says that when filiation is established with regard to both biological parents and they do not live in circumstances analogous to those of spouses, the exercise of parental responsibilities is subject to the same regime as that which applies in cases of divorce, judicial separation from bed and board, or the declaration of the nullity or annulment of the marriage. In essence this regime requires that parental responsibilities for questions that are particularly important to the child’s life be exercised jointly by both biological parents, under the same terms as apply during effective marriage, except in cases of manifest urgency, when either parent can act alone, but must inform the other as soon as possible. It is only when a court rules that the joint exercise of the parental responsibilities for especially important questions regarding the child is contrary to his/her interests, that the court must issue a duly justified decision ordering that that exercise pertain to only one of the parents.
The exercise of parental responsibilities with regard to acts concerning the child’s day-to-day life pertains to the biological parent with whom he/she habitually lives.
When the present regime imposed the joint exercise of parental responsibilities, its goal was to fight the distancing of fathers from their children and the weakening of the emotional bond between them, while also promoting gender equality and making children’s right to loving bonds with both biological parents a reality.
The question which the transitional norm poses is whether it is acceptable from the point of view of the constitutional principle of equality that the content of biological parents’ rights/duties towards their children can depend on a circumstance as random as that of the date on which a legal action is brought.
Even though it puts the minor’s interest on a higher plane, the legal action to regulate the exercise of parental responsibilities is a voluntary jurisdiction procedure in which, as a rule, there is a conflict between the representations which the biological parents and the Public Prosecutors’ Office make with regard to the terms of that regulation. In accordance with pre-established substantive rules, each party to the proceedings pursues a procedural strategy designed to convince the court that its view of the minor’s interests is the right one. Within the scope of its investigative powers and in accordance with pre-established rules, the court also seeks to determine the regime that will best serve the minor’s superior interest. If these rules change during the course of the proceedings, the parties are surprised, the procedural strategy they have adopted may be frustrated, and the factual framework that has been established before the court may be insufficient to allow the application of new rules that protect the minor’s interests, inasmuch as that framework was determined in the light of a legal regime with a different content.
It is true that the fact that the procedure is one of voluntary jurisdiction, in which the court possesses broad powers to make the procedural steps more flexible, means that there is nothing to stop the court from reopening the phase in which the parties make factual allegations and present evidence, thereby adapting the established factual framework to the new contents of the substantive law. However, this procedural repetition would make the previous procedural steps useless, would mean that it would take longer to regulate the exercise of parental authority in the case, and would harm both the normal, effective operation of the judicial instance and the pursuit of the minor’s best interests.
The Constitutional Court was of the view that, regardless of the question of whether the constitutional principles of legal security and trust and of the right to fair process require that the interests at stake be protected, it is possible to say that the solution adopted by the legislator does offer legitimate, understandable and reasonable grounds for the normative criterion chosen by the legislator.
The Constitutional Court’s position on this subject had not been uniform. Its earlier jurisprudence included a decision by one chamber that the norm was constitutional, and a decision by another that it was unconstitutional. This type of divergence is one of the situations in which it is possible to appeal to the Court’s Plenary – that a chamber of the Court has held a norm unconstitutional, when the same norm has previously also been found to be constitutional by a chamber of the Court. The Public Prosecutors’ Office therefore fulfilled its mandatory obligation when it is either the appellant or the respondent in such a case, and brought the present appeal before the Plenary.
The Ruling was the object of two dissenting opinions.
See Rulings nos. 153/2010 (14-04-2010) and 407/10 (9-11-2010). The latter is included in the selection of jurisprudence that was sent to the Venice Commission with regard to September-December 2010.