Family Law – Civil law on the protection of minors; Means of ensuring the effective payment of child maintenance
Principle of the dignity of the human person;
Right to the minimum needed to ensure a decent standard of living;
Possible attachment of social pensions in order to enforce the payment of child maintenance orders.
7 of May of 2014
An article in the Law governing the Organisation of the Custody, Protection and Re-education of Minors provides for the means required to make child maintenance orders effective, and says that maintenance can be deducted from pensions owed to the person who is judicially required to pay it, if he/she does not do so. A norm extracted from this article was interpreted to mean that there was no minimum base amount below which such deductions could not be made from social pensions in order to pay maintenance owed to a minor child, even if this meant depriving the person required to pay the maintenance of the indispensable minimum needed to ensure his/her subsistence. The Constitutional Court found that when interpreted in this way, the norm was unconstitutional, because it undermined the fundamental right of the person required to pay child maintenance to a decent standard of living.
In this concrete review case the Public Prosecutors’ Office brought a mandatory appeal against a ruling in which the Porto Court of Appeal refused to apply a norm regarding the means needed to enforce child maintenance payments owed to a minor child, which was extracted from the Law governing the Organisation of the Custody, Protection and Re-education of Minors.
The Constitutional Court (TC) noted from the case file that it had been proven that the respondent (the successful appellant before the Court of Appeal), who was the father of the minor to whom the maintenance was supposed to be paid, received an invalid’s pension. If he had paid the maintenance the original court had imposed on him in the decision that was then revoked by the Porto Court of Appeal, the respondent would have been left with a monthly amount below the combined cost of the seniors’ home where he lived and his medicines, in a situation in which, even as things were, it was already necessary for his other children to help pay his expenses.
The Court recalled that the discussion on the untouchability of income derived from the receipt of social pensions has revolved around the idea that application of the principle of the dignity of the human person means that a part of such incomes cannot be attached. In its jurisprudence the Constitutional Court had already held that social pensions which do not exceed the national minimum wage (SMN) or the Social Insertion Income (RSI) are unattachable.
This guideline was also extended to income from work, thereby making it legally impossible to order an attachment that would deprive a person of the monthly income equal to the national minimum wage, when the debtor does not have other property or income that can be attached.
Specifically on the question before it in the present case, the Constitutional Court had already found that where child maintenance obligations are concerned, the right of a minor child to a decent standard of living can collide with his/her parent’s fundamental rights. In such cases the principle of the essential dignity of the human person must be safeguarded for all the persons involved, in a process in which the objective is to ensure that the rights of all of them are harmonised in practical terms.
The Porto Court of Appeal applied this Constitutional Court jurisprudence in order to decide that in cases like this one, the principle of the dignity of the human person cannot be seen unilaterally, inasmuch as failure to fulfil the right to maintenance payments directly affects the recipient’s living conditions, but respecting it can endanger the payer’s right to life itself, or at least his/her right to a dignified life.
On the other hand, it is also true that where the parent who is in breach of the obligation to pay child maintenance is concerned, what is at stake is not just fulfilling a debt, but also a duty which in constitutional terms is an autonomous fundamental duty.
The Court took the view that when the issue is how to make the principle of the personal dignity of the parent compatible with the coactive fulfilment of the child’s right, the latter’s position as the creditor in relation to a maintenance payment should not in fact be seen through the prism of the constitutional guarantee of the right to property, as applicable to credit rights.
Until their children’s basic needs have been satisfied, parents should not retain more income for themselves than that needed to provide for their own subsistence needs.
The problem in the present case involved determining the level below which the Constitution precludes deductions from an invalid’s social pension received by the person under the obligation to pay child maintenance.
In its jurisprudence the Constitutional Court recognises the existence of a guarantee of the right to a minimally decent level of subsistence. At stake in the present case was the negative dimension of this guarantee of a minimally decent standard of living – i.e. recognition of a right not to be deprived of that which is essential in order to preserve an income which is itself indispensable to that minimally decent standard of living.
When considering the pressing nature of the maintained child’s need, one must take into account the fact that if it is impossible for payments to be made coactively, the public authorities will make payments instead – payments rooted in the state’s task of protecting childhood. In concrete terms, in such cases it falls to the Fund for Guaranteeing the Maintenance Due to Minors (FGADM) to make payments instead of a parent from whom it has not been possible to secure payments by the means provided for in the Law governing the Organisation of the Custody, Protection and Re-education of Minors (albeit the exact amounts in question may not be identical).
In its decision the Porto Court of Appeal found that the then appellant would have been left with an income that was clearly less than the Social Insertion Income, which the social solidarity subsystem considers to be the minimum of minima compatible with the dignity of the human person.
The Constitutional Court took the view that the Court of Appeal had properly weighed up the conflicting fundamental rights of the then appellant and his minor child in its decision. The extent to which the minor child’s fundamental right to a decent standard of living was affected was not disproportionate, in that neither was it permissible for his subsistence to be legally secured at the cost of his father’s subsistence, nor did the decision deprive the child of alternative mechanisms which would in principle provide for that subsistence, given that a minor child’s fundamental right to a decent standard of living can be provided for via the FGADM mechanism.
In the light of all the above, the Constitutional Court held the normative interpretation before it unconstitutional.
Rulings nos. 177/02 (23-04-2002); 509/02 (19-12-2002); 96/04 (11-02-2004); 306/05 (08-06-2005); and 312/07 (16-05-2007).