Information Note on the Court’s case-law No. 148
January 2012
Assunção Chaves v. Portugal - 61226/08
Judgment 31.1.2012 [Section II]
Article 6
Civil proceedings
Article 6-1
Access to court
Failure to duly inform applicant, who was neither present nor represented at hearing, of procedure for challenging a court order withdrawing his parental authority: violation
Facts – The applicant is a Brazilian national who lives in Portugal. He and a Portuguese national had a daughter who was born in hospital in 2006. Concerned for the safety of the child, the hospital staff informed the public prosecutor that the mother was suffering from drug addiction, learning difficulties and epilepsy and that she was refusing to take care of herself. They also noted the precarious financial situation of the child’s parents and the fact that there was conflict with the mother’s family. The Commission for the Protection of Children and Young People at Risk ordered that the child should remain in the hospital and then be placed in residential care. On 2 April 2009 the Family Court withdrew the couple’s parental responsibility and their contact rights. In September 2009 the judge appointed a temporary guardian and started adoption proceedings.
Law – Article 6 § 1: The applicant had been absent when the Family Court had given judgment. However, the decision had been served on him in person when he went to the court registry on 7 April 2009. That was the starting-date for the ten-day period allowed for lodging an appeal with the Court of Appeal. While it was true that the applicant had not lodged such an appeal, he had expressed his opposition to the judgment by means of two applications sent via email, the first to the Attorney General on 9 April 2009 and the second to the Supreme Court on 10 April 2009. The applicant had evidently not complied with the formal procedure or made use of the remedies provided for in order to challenge the Family Court’s judgment, opting instead to lodge objections to the judgment with two authorities which did not have the power to afford redress for the alleged violations. Furthermore, the applicant should have been represented by a lawyer at the appeal stage. An application for legal aid could have stopped time running for the purposes of lodging an appeal. However, the applicant had not requested legal aid until August 2009, by which time the judgment had already become final.
Nevertheless, it was legitimate to ask whether the applicant had been duly informed of the procedures to be followed in order to appeal against the judgment of the Family Court, in so far as he had not been present when the judgment was delivered, had not been represented by counsel during the proceedings and had had only ten days in which to lodge an appeal. Proceedings concerning the protection of a child at risk were complex, not only because of the issues to be addressed but also because of the extremely serious and sensitive nature of what was at stake both for the child and for the parents. The Family Court had taken all the steps that could be expected of it to enable the applicant and his partner to participate effectively in the proceedings. Nevertheless, additional precautions and measures should have been taken once the court had noted that the applicant had not been informed of the date on which the judgment was due to be delivered, especially since he had not been represented by a lawyer. The judgment in question had not indicated what follow-up measures were to be taken or the date on which it would become final, as Portuguese law did not require that information to be included in the context of such proceedings. The applicant could therefore not be criticised, in the particular circumstances of the case, for not appealing against the judgment using the procedure and the avenues of appeal provided for by the law. Consequently, in the instant case, the lack of clear and reliable official information concerning the avenues of appeal and the formal requirements and time-limits for lodging an appeal had infringed the applicant’s right of access to a court under Article 6 § 1 of the Convention.
Conclusion: violation (four votes to three).
Article 8: While the decision to take the child into care and keep her initially in an institution had been taken on medical grounds, the judgment of 2 April 2009 had taken particular account of the fact that all contact between the child and her parents had been broken off, since 7 November 2007 in the mother’s case and since 5 December 2007 in the applicant’s case. As the couple had had contact rights in respect of their daughter, they had been wholly responsible for the breaking of the family tie, having chosen to take up residence in Spain. The applicant had not advanced any valid and compelling reason to justify moving away from his daughter, who had been made the subject of a protective measure with particularly serious repercussions. Accordingly, the Family Court’s decision had been based on relevant and sufficient reasons and had been justified in the child’s best interests.
Conclusion: no violation (four votes to three).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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