Juvenile Law – Law governing the Protection of Endangered Children and Young Persons (LPCJP)
Youth protection and promotion measures;
Autonomous living support measure;
Right to full development;
Duties of the state;
Principle of equality;
Principle of proportionality
RULING No. 382/167
12 of July of 2017
Civil legislation provides for economic support for young adults who want to conclude their vocational training or academic studies. This provision is derived from the legal protection the Constitution affords to the full development of young persons. In the present Ruling, the Constitutional Court found that a measure of this kind does not have to be restricted to persons under the age of 21.
A norm in the Law governing the Protection of Endangered Children and Young Persons (LPCJP) was interpreted to mean that an ongoing measure which is designed to support the beneficiary’s life autonomy in such a way as to enable him/her to conclude his/her vocational training or academic studies (the measure and the education/training must have begun before he/she came of age on his/her 18th birthday) must necessarily end on his/her 21st birthday. The Court noted that this limited the direct economic support given after they come of age to young people who have been deprived of a normal family environment, compared to that available to young persons who are not in that family situation. It said that this was sufficient to declare the unconstitutionality of the norm in question, because it was in breach of the prohibition on negative forms of discrimination regarding the protection of the right to the full development of young persons deprived of a normal family environment.
The Public Prosecutors’ Office was legally required to bring this concrete review case because the Cascais Family and Juvenile Court (TFM-C) refused to apply an LPCJP norm which it considered unconstitutional. The norm said that measures designed to protect endangered children and young persons and promote their rights must end when the young person comes of age, or on his/her 21st birthday when he/she has asked for the measure to continue beyond his/her 18th birthday.
The court a quo said that as such, the norm set an age limit which negatively discriminated against young persons who do not even enjoy a healthy home, inasmuch as since 1 October 2015 the Civil Code has said that, as a general rule, parents are generally under a duty to provide for the upkeep of their children until the latter reach 25 years of age. It took the view was that this was discriminatory and thus unconstitutional, because the same benefit is not available to many young persons covered by the LPCJP.
The Constitutional Court said that although it considered the lower court had somewhat oversimplified the matter, the purpose of the LPCJP is precisely to fulfil the duty of society and the state to ensure the protection of endangered children and young persons and promote their rights. It concretely does this by providing for protection and promotion measures, and especially targets at-risk situations that endanger a child or young person’s safety, health, training, education or development. In this context, “child” and “young person” are defined as persons below the age of 18 in general, as well as persons between the age of 18 and their 21st birthday who have requested the continuation of a protection/promotion intervention that began before they were 18.
The norm before the Court in the present case referred to a measure that is intended to support an autonomous life and is implemented in a natural life environment (as opposed to measures involving institutionalisation). The measure consists of directly providing young persons aged 15 and over with economic support and psycho-pedagogical and social counselling, and must take the individual’s competencies and potentials into account. Given that both before and after a person comes of age, his/her personal growth and increasing capacity to autonomously take decisions about his/her own interests and freely develop his/her personality pose some specific issues, there is nothing to prevent the concept of ‘young person’, when used for the purposes of the special protection the Constitution recognises such persons must enjoy, from applying not only to minor teenagers, but also to young adults who require special protection.
The concept of a welfare state based on the rule of law requires that citizens’ rights be respected and that the state be under a general duty to promote individual access to the assets and values that are protected by the Constitution.
The Portuguese Constitution attaches special importance to whether a child or young person is incorporated into a normal family environment or is deprived of one.
Among other things, a normal family environment is concretely embodied in the fact that while a young person is a minor, his/her parents or whoever is placed in a similar legal position must fully exercise their responsibilities, maxime with regard to the young person’s upkeep and education.
The need to protect a child or young person’s full development, namely in cases in which parents do not fulfil their fundamental duties to their offspring, can lead to disqualification from or limitation of the exercise of the parental responsibilities. The constitutional importance of the family environment is derived from a combination of the view that the family is a fundamental element of society and the recognition of the rights/duties of mothers and fathers in relation to their children.
The fact that children who are deprived or a normal family environment – especially orphans and abandoned children – are more vulnerable means that they require added protection.
In situations in which it is not possible to create conditions in which parents actually exercise their parental responsibilities, the Constitution’s concern with providing children and young persons with a normal family environment postulates a constitutional-law rather than just an ordinary-law preference for measures that are implemented in a natural life environment.
In its decision, the lower court said that the necessary termination of an autonomous living support measure because the beneficiary has turned 21 as required by the LPCJP norm in question was constitutionally illegitimate, because it discriminated against young persons who did not even have a healthy home, compared to young persons with a father and a mother who are present in their lives. Since 1 October 2015 and subject to certain conditions, the state has placed parents under a duty to support their adult offspring for as long as the latter are engaged in vocational training or academic studies, up until they reach the age of 25.
The Constitutional Court said that the core structure of the principle of equality means that the right to support provided for in the law that modified the Civil Code in this way and the right to support for an autonomous life attributed in order to permit the conclusion of training or education can be said to refer to the same reality, seen within a constitutional framework. When it comes to this right to economic support for the purpose of concluding during adulthood the vocational training or academic education that was begun while they were minors, young adults up to their 25th birthdays must be considered equal, regardless of whether, when they began that training or education, they were supported by their parents or benefited from an autonomous living support measure.
In the present case, the fact that, subject to certain conditions, the law places parents under a duty to economically support their adult offspring with a view to the conclusion of education or training that began while the latter were minors, with the corresponding right on the part of the offspring to continue to receive economic support from their parents, is not dependent on whether or not the aforesaid parents spent time with their children while the latter were minors.
The autonomous living support measure is also naturally intended to ensure the creation of conditions that will permit the education and/or training of young persons who are deprived of a normal family environment. In this case, in the absence of parents or equivalents in a position to fully shoulder their parental responsibilities, it is the state which, while the protectee is still a minor, undertakes the protection of the young person’s right to full development. This is especially true with regard to his/her academic education and vocational training, and the norm before the Court said that, with the young person’s agreement and subject to other requisites, that protection can be extended after he/she comes of age, but only up to an absolute limit of his/her 21st birthday. The legislator’s view that the continuation of economic support granted in order to ensure a young adult’s upkeep and sustenance by either his/her parents, or the state in the case of an autonomous living support measure, is a means of protecting his/her full development justifies the comparability of the two situations. The fact that provision is made for the existence of such support does not mean that its award should not be adjusted to each young person’s concrete circumstances. However, such differences, which are derived from the need to take the singularity of each case into account, do not mean that when it comes to the promotion of the legal value in question, young persons incorporated into a normal family environment and those deprived of one should not, once they have come of age, both benefit from a form of support intended to enable them to conclude the training or education process they began while they were still minors, all in such a way as to avoid interrupting that process and thus losing the efforts and energies that have already been invested in it.
The Court said that the two groups of young people are in an equal situation with regard to the ability to benefit from a form of economic protection of their right to full development. As such, the different legal treatment afforded to them was constitutionally unacceptable and the Court therefore found the norm in question unconstitutional.
Rulings nos. 191/88 (20-09-1988); 349/91 (03-07-1991); 231/94 (09-03-1994); 609/94 (22-11-1994); 713/96 (22-05-1996); 412/02 (10-10-2002); 509/02 (19-12-2002); 232/03 (13-05-2003); 306/05 (08-06-2005); 651/09 (15-12-2009); 546/11 (16-11-2011); 187/13 (05-04-2013); and 296/15 (25-05-2015);