Court/Judicial body: Portuguese Constitutional Court
Date: 1 February 2011 CRC
Provisions: General reference to the CRC. Substance of Article 26 (social security) referred to.
Other international provisions: Recommendations of the Council of Europe R(82)2, on payment by the State of advances on child maintenance, and R(89)l, on contributions following divorce.
Domestic provisions: Constitution of Portugal
Background: This was an appeal lodged by the Public Prosecutor’s Office. A lower court granted a mother’s request for maintenance payments that her ex-husband owed to their two children to be made instead by the Fund for Guaranteeing the Maintenance Due to Minors (“Fund”). The norm of the Portuguese Executive Law that regulated the Fund states that the Regional Social Security Centre must begin making the payments on behalf of the Fund only in the month following a court’s decision ordering such payment. The beneficiary cannot demand payments for periods prior to that decision. The Public Prosecutor’s appeal argues that this norm is unconstitutional.
Issue and resolution: Child’s right to benefit from social security. The Constitutional Court found the ‘norm’ to be unconstitutional.
Court reasoning: The Court considered that the duty to provide for children’s upkeep lies first of all with their parents. However, the Constitution expressly recognises that: “With a view to their integral development, children have the right to protection by society and the state, especially from all forms of abandonment”. This is consistent with binding international norms and conventions that Portugal has ratified. The Court held that given that the recipients of the social benefit in question are children who are deprived of the means of subsistence, the social protection provided for in the Constitution are imperative. Any norm that does not address the provisions and enment to protection and social benefits for the child in the period preceding a judicial decision ordering such payment, undermines the fulfilment of the recipient child’s basic needs, and is a failure by the State and therefore unconstitutional. Payments should cover the whole of the period in which the parents fail in their duty to provide for their children’s subsistence.
Excerpt citing CRC and other relevant human rights From court
The need for state intervention has been recognised by the international organisations that have issued binding international legal norms in this regard. These particularly include Recommendations of the Council of Europe R(82)2, on payment by the state of advances on child maintenance, and R(89)l, on contributions following divorce, which covers the state’s obligations with regard to the payment of maintenance to minors in cases in which their parents divorce. The 1989 United Nations Convention on the Rights of the Child also attaches special importance to making sure that children and young persons up to the age of eighteen actually receive maintenance payments.
CRIN comments: CRIN believes this decision is consistent with the CRC. Under Article 26, every child has the right to benefit from social security, such benefits granted taking into account the resources and circumstances of the child and those responsible for the maintenance of the child. Furthermore, Article 27 requires States to take appropriate measures to assist parents to ensure that every child has an adequate standard of living.
Citation:  PTCC 2; 54/2011
Link to full judgement: http://www.worldlii.org/cgi-bin/sinodisp/pt/cases/PTCC/2011/2.html (summary only)