Parents’ maintenance obligations to their minor children; early payment by the state of maintenance instalments due to minors in cases in which the debtor fails to pay; 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. 400/11
22 of September of 2011
The Constitution does not place the State in the legal position of guarantor of the concrete maintenance obligations that parents owe to their minor children. The public authorities’ duties with regard to children’s right to protection require them to adopt legislative and administrative measures, including in the form of social security benefits, with a view to the joint pursuit with society as a whole of the objective of children’s full development. This is an objective which is based on the assumption that the dignity of the human person must be guaranteed, and on the vision of the child as a person in training whose development requires that all his/her qualities and abilities must be used to advantage.
When the State intervenes as the provider of maintenance, it does so not because the party whom a court has ordered to pay maintenance has failed to, but because of the situation of hardship to which that failure has contributed. This is why the social benefit in question is only awarded if resorting to it is indispensable.
When it modelled the legal regime governing the public provision of maintenance to minors in the place of persons who ought to pay that maintenance but have failed to do so, the legislator’s decision that the intervention of the Fund for Guaranteeing the Maintenance Due to Minors should only cover the period following the judicial decision that set the amount of that maintenance, and that the Fund is not required to pay benefits with regard to periods prior to that decision – particularly the period between the moment at which application is made to the court and the latter’s decision – is not unconstitutional.
On more than three previous occasions the Constitutional Court had held that the norm under which the obligation of the Fund for Guaranteeing the Maintenance Due to Minors to provide judicially ordered maintenance payments due to a minor, in the place of the person who ought to have made them but hasn’t, is only constituted when the court that determines the amount of the payments to be made by the Fund issues its decision and the Fund is not required to make payments with regard to periods preceding that decision, was unconstitutional. The Organic Law governing the Constitutional Court provides for the possibility of an ex post facto review of the constitutionality of any norm which the Court has deemed unconstitutional in at least three concrete cases, and the Public Prosecutors’ Office asked the Court to subject the norm in the present case to such a review.
From the point of view of the review of the norm’s constitutionality, what was at stake was the moment in time as of which the State’s obligation to make a monthly payment that guarantees the person with custody of the minor sufficient resources to ensure the latter’s healthy growth is constituted.
The only relevant issue with regard to the normative interpretation before the Constitutional Court was the norm’s constitutionality or otherwise when it determines that that moment is the date on which the court hearing the maintenance claim notifies the Fund for Guaranteeing the Maintenance Due to Minors of its decision, and that the latter has no retroactive effects.
The Constitutional Court noted that the “right and duty to educate and maintain their children” pertains first and foremost to parents, and that this duty to maintain, which includes the duty to provide children with their sustenance, within the parents’ economic capabilities, until the children are in a position, or become subject to the duty, to seek their own means of subsistence in their own right, is in fact one of the few constitutional duties that are expressly enshrined in the Constitution itself.
As the Court has clearly stated in earlier jurisprudence, the fact that the Constitution requires the State to seek to ensure real economic and social democracy means that the State cannot stand aside from the need to protect children. As such, not only children, but also fathers and mothers have the right to protection by society and the State – the former with a view to their full development, and the latter because the State is under a duty to support them in looking after the former. However, this does not mean that the State must legally position itself as a guarantor of the maintenance payments owed by parents.
The vicarious provision of maintenance by the State represents the implementation of a social right in an area in which there is an overlap between two types of responsibilities or duties to protect, each of which obeys its own philosophy. As a typical social right, in the dimension that is reflected in a request to the State for material benefits, this children’s right is a “right that is subject to that which is possible”, and the Constitution does not directly serve to quantify it or determine how it should be made a reality. The courts can only use other constitutional referents to determine the limits on the legislator’s power to shape the right of children to have their protection ensured by means of factual or pecuniary benefits provided by the State – referents in which the principle of the dignity of the human person occupies a leading place. On condition that the legislator’s solution does not affect the essential core of the way in which the right in question is legislatively implemented, the legislator must be acknowledged to enjoy a broad margin within which it is entitled to shape social rights.
The Constitutional Court recognised that the degree of protection which the Constitution affords in the particular area of the protection of childhood is more intense due to the characteristics of the holder of the rights, and that the minimum content of the correlative duty on the part of the State to provide protection can be more precisely determined.
However, the Court did not feel that the minimum content of the social right in question can only be achieved by the existence of a public pecuniary payment in the format imposed by the norm before it, nor that that payment must be owed from at least the moment in time when the request for it is made.
When social rights, as positive rights, are implemented, as a rule there is a space within which the legislator is able to shape the legislation. This is because there is generally more than one way to fulfil the applicable constitutional imperative, and its positive implementation is subject not only to that which is financially possible, but also to a margin within which the holders of political power can make choices. Inasmuch as this is not a content that is directly determined by the Constitution, it is important to determine whether, within the overall regime instituted by the legislator, there are other mechanisms that are capable of providing protection with regard to the situation of hardship brought about by the failure to fulfil the obligation to pay maintenance (if such mechanisms did not exist, it would indeed be possible to question whether the principle of the dignity of the human person was being preserved).
The Constitutional Court was of the view that retroactively obliging the Fund for Guaranteeing the Maintenance Due to Minors to make the payments for the period between the moment when the request was made and the final decision would not in its own right ensure fulfilment of the minor’s needs for maintenance at the time to which those payments applied. Coverage by payments from the Fund of a period that has already passed could only serve as a compensatory legal mechanism, not as an effective means of providing for the minor’s needs during the period to which they refer, satisfaction of which is a requirement of the principle of the dignity of the human person. If the minor has suffered privations of this kind as a consequence of the failure by his/her parent to fulfil the duty to which the latter was subject, it is not the retroactivity of payments by the Fund that can remedy them. As such, and given that the retroactive payment of maintenance by the Fund for Guaranteeing the Maintenance Due to Minors is not even an entirely reliable way of preventing the minor from being placed in a situation that is incompatible with the dignity of a human person, it is not possible to say with the degree of certainty required for the Court to criticise the legislative options that have been adopted in order to make a reality of the positive dimension of the social rights, that the retroactive effect of the decision is imposed by imperative requirements involved in fulfilment of the minimum duty to protect with which the State is charged.
The Court felt that the fact that the law already provides for the possible provisional determination of a public payment is one of the appropriate means of providing a real-time response to imperative needs; and that the taking of provisional measures, at the time when the need for sustenance exists, does a better job of quickly responding to especially urgent situations than does a measure which covers a posteriori the whole of the period in which hardship has existed.
This Ruling was the object of five dissenting opinions, including those of the rapporteur of Ruling no. 54/11 and two other Justices who subscribed to the latter (which was included in the selection of jurisprudence that was sent to the Venice Commission with regard to January-April 2011) – a Ruling in which this same norm was deemed unconstitutional.
The dissenting Justices especially emphasised their view that the majority in the present Ruling ignored the specificity of the legal asset that is protected by the Fund for Guaranteeing the Maintenance Due to Minors. They said that this asset represents the maintenance due to a category of citizens who are incapable of providing for themselves, in a situation in which the persons who are subject to the duty to maintain them fail to do so. What is at stake is the fulfilment of vital needs that form the object of the right to a minimally dignified existence, and this right enjoys a special status within the social rights as a whole, with a degree of fundamentality that is practically equivalent to that of the personal rights.
See Ruling no. 54/11 (1-02-2011).