FOURTH SECTION
CASE OF PACHECO CASTELO v. PORTUGAL
(Application no. 13218/21)
JUDGMENT
STRASBOURG
24 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Pacheco Castelo v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 13218/21) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 February 2021 by a Portuguese national, Mr Bruno Miguel Pacheco Castelo (“the applicant”), who was born in 1996, lives in Nainville‑les‑Roches (France) and was represented by Ms F. Dias, a lawyer practising in Paços de Ferreira;
the decision to give notice of the application to the Portuguese Government (“the Government”), represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General, and, after 1 September 2022, Mr Ricardo Bragança de Matos, Public Prosecutor;
the Government’s observations;
Having deliberated in private on 3 October 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns a judgment of the Supreme Court of 2 December 2020 keeping joint legal custody of the child with both parents and establishing the domicile of the applicant’s daughter with her grandmother. Under Article 8 of the Convention, the applicant complained of a breach of his right to respect for his family life.
2. The applicant is the father of I., born on 17 July 2013, while he was in a relationship with C. when they were both minors. He lives in France. I. lives in Portugal with her mother, C., but stays mostly with her grandmother, M.
3. On 16 June 2014 after becoming of age, the applicant requested sole custody of I. and the establishment of the child’s domicile with him, with contact rights granted to the mother. At that time the child was being monitored by the Commission for the Protection of Children and Youth (Comissão de Proteção de Crianças e Jovens – hereinafter “the CPCJ”) following suspicions of negligence on the part of her carers, C. and M. However, since the applicant was residing abroad and in view of the fact that I. was being monitored, the Oporto Family Court provisionally decided that the legal custody of I. should be joint, that I. should live with C. and continue being monitored by the CPCJ.
4. On 28 August 2017 the applicant lodged a second claim with the Oporto Family Court, reiterating his requests. He contended that he had a stable life and the means to look after his daughter.
5. By a judgment of 9 February 2020 it was decided that I. should live with the applicant and contact rights were granted to C., M. and other relatives. Joint legal custody of I. was kept with both parents. The Oporto Family Court firstly took into consideration the fact that I. was living with her grandmother, M., who had been taking care of her since she was born, initially because C. was a minor and subsequently because C. had moved to live with her partner, J., who was a drug user. Secondly, it noted that I.’s situation had been monitored by the CPCJ in 2014 and again between 2014 and 2019 owing to alleged instances of ill-treatment of C. and I. by J. and also because of M.’s mental health. With respect to the applicant, the Oporto Family Court took into consideration the fact that I. had spent the summer holidays with him and his partner and younger daughter, that they had the means to live together in France, and that the emotional ties between I. and the applicant were evident, as could be seen during the hearing. In addition, it considered that the child had said that she enjoyed living in Portugal with C. and M. but also that she loved the applicant and wanted to be with him in his new house.
6. On 16 June 2020, following an appeal from C., the Oporto Court of Appeal upheld that decision, taking the view that to live with her father was in I.’s best interests. It considered, firstly, that it was with the parents that principal parental responsibility lay, and not with the grandparents or other persons. Secondly, it found that the mother did not fulfil the requirements for carrying out that duty.
7. On 2 December 2020, following a further appeal from C., the Supreme Court reversed the judgment of the Oporto Court of Appeal. It decided to establish the residence of I. with her grandmother, M. and to award the applicant contact rights. The joint legal custody was maintained. The Supreme Court noted that I. was living with her grandmother M. It acknowledged that C. was not living with I. but rather with J., at an unknown location, and that C. occasionally slept at M.’s house, on a sofa in the living room. Nevertheless, it considered that that was a positive element to take into consideration in view of J.’s past of domestic violence and current drug addiction and that there was no evidence that that had affected the child. The Supreme Court thus found that there was no risk that could justify a change of domicile of the child, or any evidence that C. had completely relinquished her maternal obligations, even if M. was I.’s main carer.
8. The Supreme Court further decided that I. should live with M. and that C. should refrain from changing the child’s place of residence without judicial authorisation. As regards that point, it reasoned as follows:
“However, there is a risk, in future, that C.’s parental responsibilities would need to be limited since she is in a relationship and lives with J. at an unknown location and has mentioned that one day she would like to live with J. and I.; J. consumes drugs; in June 2017 J. punished I. by locking her inside [their] car. Even if at present no risk exists for the child (who lives with M.), there could be one in future.”
9. Under Article 8 of the Convention, the applicant complained that the Supreme Court’s judgment of 2 December 2022 had not taken account of his daughter’s best interests. He further submitted that M. should not have been granted de facto custody of I., since M. had not requested it.
THE COURT’S ASSESSMENT
10. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
11. The general relevant principles have been summarised in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 203-04, 10 September 2019); C. v. Finland (no. 18249/02, §§ 52-54, 9 May 2006); Santos Nunes v. Portugal (no. 61173/08, § 67, 22 May 2012); and Petrov and X v. Russia (no. 23608/16, §§ 98-101, 23 October 2018). In the light of these principles, the Court must consider whether, in view of the circumstances of the present case as a whole, the reasons adduced to justify the impugned decision were “relevant and sufficient”, and whether the decision‑making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention.
12. The Court notes at the outset that in family proceedings, an appeal before the Supreme Court is exceptional and only possible on points of law as provided for in Articles 671, 672 and 674 of the Portuguese Code of Civil Procedure. Furthermore, Article 1411 § 2 of the Code provides that decisions adopted on grounds of suitability or appropriateness may not be the subject of an appeal to the Supreme Court. The appeal was considered admissible by the Supreme Court relying on the ground of the existence of a relevant social interest, in particular, the child’s best interest which in the Supreme Court’s view could have been breached by the two lower courts.
13. In the present case the Court observes that the Supreme Court appears to have placed preponderant weight on the mother’s interests while disregarding other factors, in particular and primarily, the child’s best interests and, secondly, the applicant’s rights as a father (see C. v. Finland, cited above, § 54).
14. The Court also notes that the decision of the Supreme Court was contradictory when assessing the risk regarding the mother. On the one hand, the Supreme Court downplayed that risk by affirming that it was not currently evident or that there was no evidence that it had affected the child (see paragraph 7 above). On the other hand, it acknowledged that risk and felt compelled to find a safeguard, by adding that the child should live with her maternal grandmother and that C. could not change her place of residence without judicial authorisation (see paragraph 8 above). Furthermore, the Supreme Court did not explain why the child’s best interests would be better served by living with her grandmother rather than with her father, bearing in mind the facts that had been established by the Oporto Family Court regarding his emotional ties with his daughter, as well as his having the means and ability to take care of her (see paragraph 5 above).
15. In the light of the above, it does not appear that the reasons adduced by the Supreme Court were relevant and sufficient to conclude that a fair balance was struck between the different interests at stake.
16. Turning to the decision-making process, seen as a whole, while the Oporto Family Court had the benefit of direct contact with all the persons concerned, who were present at the hearing before it (see paragraph 5 above), the Court finds it striking that the Supreme Court overturned the decisions of the two lower courts without holding an oral hearing with the parties and their representatives (see C. v. Finland, §§ 56 and 58, and Petrov and X, § 101, both cited above).
17. Moreover, the Supreme Court did not give any weight to the child’s view as already established in the lower court’s decisions (see paragraph 5 above), nor was she heard by it. In this connection, the Court reiterates that in any judicial proceedings affecting children’s rights under Article 8 of the Convention, it cannot be said that children capable of forming their own views were sufficiently involved in the decision-making process if they were not provided with the opportunity to be heard and thus express their views (see, mutatis mutandis, M. and M. v. Croatia, no. 10161/13, § 181, ECHR 2015, and C v. Croatia, no. 80117/17, § 78, 8 October 2020). The Court has already held that as children mature and, with the passage of time, become able to formulate their own opinions on their contact with their parents, for instance, the courts should give due weight to their views and feelings, as well as to their right to respect for their private life (see N.Ts. and Others v. Georgia, no. 71776/12, § 72, 2 February 2016).
18. In view of the foregoing, the Court is not convinced that the decision-making process leading to the impugned decision of the Supreme Court was fairly conducted so as to ensure that all views and competing interests were duly taken into account and weighed up.
19. Having regard to all the considerations set out above, the Court considers that there has been a violation of Article 8 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
20. The applicant’s claim for just satisfaction was not submitted within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 8 of the Convention.Done in English, and notified in writing on 24 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Tim Eicke
Deputy Registrar President