Information Note on the Court’s case-law No. 152
May 2012
Santos Nunes v. Portugal - 61173/08
Judgment 22.5.2012
Article 8
Article 8-1
Respect for family life
Lack of diligence by domestic authorities in executing court order granting biological father custody of abducted child: violation
Facts – The applicant had a casual relationship with a Brazilian national, who gave birth to a daughter in 2002. In 2003, following a genetic test, the applicant acknowledged paternity and applied to the authorities for custody of the child. It came out in the proceedings that the mother had placed the child in the care of a Portuguese couple. When questioned, the couple (Mr and Mrs G.) explained that the mother had signed a consent form entrusting the child to their care because she could not afford to bring her up. As they could not have children of their own, they had applied to adopt the child. In July 2004 the court awarded the applicant custody of his daughter. It explained that although Mr and Mrs G. were financially better off than the applicant, in taking the child they had shown complete disregard for the applicable laws and procedures. The applicant subsequently asked the court to enforce the decision, alleging that Mr and Mrs G. had refused to hand over the child. In 2006, after all attempts to locate the child had failed, the court decided to give the case priority, and Mr G. was remanded in custody. Mrs G. then complied with the court’s order to have the child examined in a hospital. In 2007, following that examination, the court fixed a transitional period for the enforcement of the judgment awarding custody to the father. The girl stayed with Mr and Mrs G. but the applicant was able to visit her. She was handed over to her father in December 2008. In January 2009, after interviewing the girl, the judge ended the transitional period and decided that the girl would live with the applicant from then on. Mr and Mrs G. were subsequently granted access. They were prosecuted and found guilty of child abduction, given a two-year suspended sentence and ordered to pay the applicant damages.
Law – Article 8: It had taken four years and five months to have the decision granting the applicant custody of his daughter enforced. The process had been marked by a lack of cooperation on the part of Mr and Mrs G., who had ignored the various summonses issued by the courts and the police. The case had not been considered urgent until 2006, even though the applicant had alerted the authorities about this lack of cooperation by the couple as early as July 2004. The Court was surprised by the failure of the police to trace the child. Not until Mr G. was remanded in custody had Mrs G. presented the child to the authorities. It was a particularly delicate case because of the media interest it generated and the unusual situation, which went beyond a simple dispute between biological parents, or between the latter and the State, because third parties were involved. However, this did not absolve the authorities of their positive obligations under Article 8. It was true that from 2007, in spite of various complications, the domestic courts had done their best, in good faith, to protect the child’s welfare. However, the Portuguese authorities had failed to make adequate and effective efforts to protect the applicant’s rights, thereby breaching his right to respect for his family life.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 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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