Civil Law – Protection of Minors – Law governing the Protection of Endangered Children and Young Persons (LPCJP) – Procedural Law
Civil-law / protection of minors;
Right and duty to raise and educate children;
Right of parents and children to spend time together;
Principle that children cannot be separated from their parents by administrative decision and without parental consent;
Placement in care with a view to future adoption;
RULING No. 62/17
14 of February of 2017
The Constitutional Court declined to find any unconstitutionality in a norm in the Law governing the Protection of Endangered Children and Young Persons (LPCJP), when interpreted to mean that the adversarial principle is respected if the parents in a case in which a court decides whether to place their minor children in care with a view to their future adoption were able to consult the casefile, even though they weren’t personally notified in advance of the inclusion in that file of documents which then served as evidence of the facts on which the court relied in order to reach its decision.
Per se, absence of notification of the existence of a particular document in the casefile does not intolerably harm the right to an adversarial process, which is a dimension of the overall right of defence. The Court said that the norm might only have been unconstitutional if it had effectively restricted or negated the right to knowledge of the contents of the casefile, thereby making it inherently impossible for parents to influence the court’s decision or present a reasoned position on those contents.
Nor did the Court find any unconstitutionality in another norm from the same Law, when interpreted such that parents’ lawyers are not entitled to take the casefile to their offices and examine it there during the period available to them in order to draw up an appeal.
The right to take temporary possession of a casefile is not an absolute one, inasmuch as the court a quo is entitled to deny it in the light of the need to protect other constitutionally relevant interests.
In the present case, the appellant was unable to rely on any express legal norm that would have entitled her counsel to examine the casefile away from the court premises. The only situation in which it would be possible to say that the adversarial dimension of the right of defence might be intolerably harmed by an inability to examine the casefile away from the court registry would be if there were a difficulty or obstacle that objectively compromised the ability to gain full and timely knowledge of the procedural acts and documented evidence in the file and to duly consider and weigh them up. The legislator possesses a legitimate interest in maintaining the restricted nature of proceedings, and only allowing casefiles to be consulted at the court registry is one appropriate means of achieving this.
In the concrete case before it, the Constitutional Court took the view that the evidence as to whether the appellant had effectively been able to participate in the proceedings suggested that there had been no obstacles to an adversarial process or to knowledge of the statements and documents included in the proceedings, and that she had had ample and real opportunity to challenge the facts of the case.
The appellant in this concrete review case was the biological mother of three minors, who were uterine siblings and whom the court a quo removed from her and placed in care with a view to their adoption.
She alleged that two norms contained in the Law governing the Protection of Endangered Children and Young Persons (LPCJP) were unconstitutional when interpreted as they had been by the court a quo.
The first norm reads as follows: “Children and young persons, their parents, legal representative or whoever has de facto care of them shall have the right to ask for legal steps to be taken and to submit evidence”. It was interpreted to mean that the fact that it is possible to consult the casefile in proceedings involving placing minors in care with a view to their future adoption is sufficient to ensure fulfilment of the adversarial principle, even though the parents are not personally notified in advance of the inclusion in that file of documents which served as evidence of facts on which the court relied in order to reach its decision.
The text of the second norm is as follows: “The parents, legal representative and whoever has de facto care of a child or young person may consult his/her casefile personally or by means of a lawyer”. The appellant alleged that the interpretation whereby the parents’ lawyers were not entitled to take the whole casefile and examine it at their offices when they were drawing up an appeal against the court’s decision to place the minors in care was unconstitutional.
The Constitution recognises that as a fundamental element of society, the family has the right to be protected by society and the state and to the effective existence of conditions that enable its members to achieve personal fulfilment. This in turn means that parents’ ability to act in relation to their children, namely with regard to raising and educating them, must also be protected. The full and complete development of children is the subject of a range of duties designed to protect that development from potential risks; one such duty requires the state to ensure special protection for children who are deprived of a normal family environment.
The ordinary legislator is under a duty to legislate in such a way as to ensure both the subjective (with regard to entities that occupy subjective legal positions) and objective protection of the family. At the International-Law level, this protection is also derived from a variety of international instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civic and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, the New York Convention on the Rights of the Child, and the Charter of Fundamental Rights of the European Union.
The right of family members to spend time together is a subjective projection of the protection afforded to family unity, and one of the core constitutional rights, freedoms and guarantees. One of the effects of the ‘protection and promotion’ measure (a measure designed to protect an endangered child or young person and promote his/her rights) under which a child is placed in the care of the person(s) who has(have) been selected to adopt him/her, or of an institution with a view to his/her future adoption, is to preclude the original parents from exercising their parental responsibilities, which means they are no longer able to spend time with the child. This measure lasts until the actual adoption is ordered and is not subject to revision, so in the meantime it can lead to disrespect for the fundamental right of parents and children to spend time together. Restrictions on the latter right are only possible in cases that are especially provided for by law, and can only be imposed by a court. Separating children from their parents must be an ultima ratio intended to safeguard the greater good – here, the defence of the child’s physical and psychological integrity and the possibility for him/her to develop his/her personality, when those assets are endangered by actions or omissions on the part of his/her parents. In this respect it is entirely justified to invoke the right to effective jurisdictional protection, which postulates both the ability to access the law and the courts, and the right whereby the proceedings in which a decision to separate parents and children is taken must be truly fair.
In its jurisprudence, the Constitutional Court has taken the position that the right of access to the courts implies the need to guarantee an effective jurisdictional protection that encompasses: the right to act; the right to initiate proceedings; the right to a court decision without undue delays; and the right to fair process.
The Court said that abstractly speaking, the present case could theoretically involve the principle that the inability to defend oneself is prohibited, the right to an adversarial process, and the right to know the information in one’s casefile.
In every concrete case of this type one must determine whether, in the process by which the court reached its decision and taking that process as a whole, the parents were able to play a role that was sufficiently relevant in order to ensure them the protection their interests require.
In the actual case before the Court, it was important to determine whether the fact that the appellant was not notified of the existence of a specific document compromised the possibility of her defending herself against the potential undesired (by her) outcome of the proceedings. The appellant said nothing in this regard in her appeal to the Court of Appeal, to which she only submitted generic statements.
The casefile itself shows that both the appellant and her lawyer had effective access to the file. The Court said that in the absence of concrete elements one way or the other, it was unable to gauge how central or decisive the document in question had been to the court a quo when it formed its opinion on the facts or constructed its decision in the case.
On the question of the constitutionality of the second LPCJP norm, when interpreted to mean that parents’ lawyers are not entitled to take the whole casefile and study it at their offices when they are compiling an appeal, the Court noted that ‘protection and promotion’ proceedings are classified as restricted, and that this accords with the provisions of Article 16 of the Convention on the Rights of the Child.
The Constitutional Court said that it was not its place to take a stance on the best interpretation of an infra-constitutional legal norm, but only to determine whether the interpretation which the court a quo used as ratio decidendi conflicts with any constitutional norms or principles.
The Court had already recognised in the past that the right whereby a party’s counsel is entitled to analyse a casefile at his/her office is one of the ways in which the right of defence can be implemented. However, it has also acknowledged that there are other constitutionally relevant interests in this domain, which must be weighed against that right. The Court’s position has been, and was in the present case, that only those norms or their interpretations which imply an inadmissible restriction of the possibilities available to the defence should be considered unconstitutional. This was not so here, and the Court therefore denied the appeal.
One Justice dissented from the Ruling on the grounds that in her opinion, the Court had agreed to hear the appeal when the requirements for doing so were not met.
Constitutional Court Rulings nos. 174/93 (17-02-1993); 271/95 (30-05-1995); 695/95 (05-12-1995); 1185/96 (20-11-1996); 133/99 (03-03-1999); 632/99 (17-11-1999); 355/00 (05-07-2000); 110/11 (02-03-2011); 416/11 (28-09-2011); 350/12 (05-07-2012); 243/13 (10-05-2013); 839/13 (05-12-2013); 204/15 (25-03-2015); 510/15 (13-10-2015); 569/15 (28-10-2015); 193/16 (04-04-2016, included in the selection sent to the Venice Commission with regard to January-April 2016); and 333/16 (19-05-2016).
Judgment of the European Court of Human Rights in the case of Pontes v. Portugal of 10 April 2012, consulted in the Portuguese version available at http://hudoc.echr.coe.int/eng?i=001-119146).