Porto Court of Appeal, proc. 1341/17.3T8MTS.P1, 18.05.2017

EARLY SCHOOL-LEAVING | MINOR EMANCIPATED BY MARRIAGE | ROMA TRADITIONS | EARLY MARRIAGE

 

Porto Court of Appeal, proc. 1341/17.3T8MTS.P1, 18.05.2017

                           

JURISDICTION: Civil

SUBJECT: Child protection

RAPPORTEUR: Teles de Menezes

RULING: Rejects the appeal, confirming the lower court decision, which had dismissed the child protection case on the grounds that the Law on the Protection of Children and Youths at Risk is not applicable to emancipated minors.

DOMESTIC LAW:

Constitution (Articles 69 and 70)

Civil Code (Articles 132, 133 and 1877)

Law on the Protection of Children and Youths at Risk, approved by Law No. 148/99, of 1 September 1999 [Articles 2, 3, 4, 5(a), 8(1), 63(1)(d), 106, 107, 110(1)]

Decree-Law No. 176/2012, of 2 August 2012 [Articles 1(1), 2, 6, 8(1)]

Lisbon Court of Appeal, proc. 783/11.2TBBRR.L1-1, 20.03.2012

INTERNATIONAL LAW:

Convention on the Rights of the Child (Article 1)

FOREIGN LAW: n.a.

KEYWORDS: Early school-leaving; mandatory schooling; minor emancipated by marriage; situation of danger; full and harmonious development; educated, responsible and proactive citizen; Portuguese nationality; minority status; domestic violence; early marriage; unity of the legal system; best interest of the child; Roma traditions; ethnicity; Roma children

COMMENTS:

1. This judgment concerns the early school-leaving by a youth of Roma ethnicity following her marriage at the age of 16. In their interaction with the Child and Youth Protection Commission, her parents had declared that, according to Roma traditions, she could not go back to school since she was married. The Court of Appeal does not delve into considerations about Roma traditions or the risks possibly faced by the youth as a result of her early marriage, ignoring the Public Prosecutor’s arguments to that effect. The Court looks only into the issue of whether or not the protection measures established by the Law on the Protection of Children and Youths at Risk (LPCYR) are applicable to persons under the age of 18 who have been emancipated by marriage. The Court concludes that they are not.

 

2. The Public Prosecutor had initiated the protection procedure when the youth, who was enrolled in the 7th grade, dropped out of school. Its reasoning was that, even though she was civilly married and emancipated by reason of marriage (under Articles 132 and 133 of the Civil Code), she continued to be, due to her age, a “child or youth” for the purposes of the application of the rules governing mandatory schooling and protection measures [Article 5(a) LPCYR and Articles 1(1), 2 and 6 of Decree-Law No. 176/2012, of 2 August 2012]. According to the Public Prosecutor, the youth lived in a “situation of danger for her education, upbringing and full and harmonious development, with a view to becoming an educated, responsible and proactive citizen”.

 

3. The lower court had made a restrictive interpretation of Article 5(a) LPCYR, with the argument that it was required to “respect the unity of the legal system”, invoking the definition of child given by the UN Convention on the Rights of the Child (which allows majority to be reached before 18) and Article 133 of the Civil Code on emancipation by marriage. Noting that the youth had Portuguese nationality, the lower court concluded that she had stopped benefiting from the protection of the Convention and of the LPCYR when she became emancipated in accordance with the Civil Code. The lower court explained that the emancipation determines the end of the minority status, so that, even though the emancipated minor is still subject to mandatory schooling, it is no longer up to the parents (whose responsibilities ceased) or the state (through the protection system) to intervene and “guide the youth’s life in a way contrary to her will”, since she is “free to govern herself”. For these reasons, the lower court dismissed the case.

 

4. On appeal, the Public Prosecutor argued for a broad interpretation of Article 5(a) LPCYR, saying that there is no reason to differentiate, “with regard to danger”, between a 16-year-old youth who is emancipated and another one of the same age who is not, depriving the former of the state’s protection. According to the Public Prosecutor, the youth’s situation presented other risk factors (alluded to in the report which signalled the case) which had to be ascertained. Going beyond the facts under review, the Public Prosecutor hinted at the possibility that the youth was victim of domestic violence, which, if confirmed, would be a situation of danger for her safety, health, physical integrity, if not her life, requiring the protection from state in a manner suited to her age. According to the Public Prosecutor, it would make no sense to treat differently two youths victims of domestic violence just because one lives in a de facto union (and is therefore entitled to a protection measure) while the other is married (and no longer entitled to that protection). Going further in its argument that the youth was in a situation of danger, the Public Prosecutor raised the question of whether the “early marriage was not in itself a risk factor or an enhancer of danger”. The Public Prosecutor also contested that the unity of the legal system could be hindered by an interpretation of Article 5(a) LPCYR which covered youths emancipated by marriage, arguing that the Convention on the Rights of the Child had been ratified by Portugal in 1990 and could not derogate the application of the LPCYR, which had been adopted later and which would have explicitly endorsed the Convention’s definition of “child” if that had been the will of the legislator. According to the Public Prosecutor, it was the restrictive interpretation of Article 5(a) LPCYR that hindered the unity of the legal system, as it collided with the special protection due to youths under Article 70 of the Constitution. Finally, the Public Prosecutor noted that the case could warrant the application, for the youth’s benefit, of a protection measure such as “support for an autonomous life”, through which she could have access to training programmes that would safeguard her from a “predictable dependence on her husband”.

 

5. In its judgment, the Court of Appeal notes that, under Articles 132 and 133 of the Civil Code, the emancipation by marriage grants the youth full capacity for the exercise of her rights, and that there are no grounds to limit the emancipated youth’s capacity, since emancipation equates her to an adult. Based on Articles 2, 3(1), 5(a) and 63(1)(d) of LPCYR, the Court concludes that the protection measures are only applicable to minors, either children or youths, and cease with the majority, except if the youth to whom a protection measure is being applied requests, upon turning 18, the extension of the measure until he or she becomes 21 years of age, which is not the case here. The Court also notes that the Civil Code provisions which allow the emancipation of minors by marriage are in accordance with the Constitution, so it cannot be argued that the lower court’s ruling breached Articles 69 and 70 of the Constitution, on the protection of children and youths.

 

6. It should also be noted that the Court makes a clear distinction between the instant case and that which was decided by the Lisbon Court of Appeal (proc. 783/11.2TBBRR.L1-1, 20.03.2012), since, while in both cases we have early school-leaving by Roma children, in the earlier case, the child was not emancipated and it was the parents who refused to let her continue her studies. “In our case – the Court contrasts –, the minor is no longer a minor for legal purposes, she is treated as an adult due to emancipation, so that, since she is free to govern her person, it cannot be through a protection measure that we can force her to attend school”.

 

7. Focusing solely on the technical issue of the scope of the LPCYR, the Court of Appeal avoided taking a position on the question of marriages at the age of 16 and on the “Roma traditions” which require school-leaving after marriage. The arguments put forward by the Public Prosecutor are nevertheless noteworthy, since the Public Prosecutor treats the youth’s marriage at the age of 16 (“early marriage”) as a risk factor and danger enhancer in and of itself, in spite of the fact that such marriages are expressly allowed by law, and makes unsubstantiated references to the possibility that the youth is a victim of domestic violence.

Nicole Friedrich

Regular contributor to the project InclusiveCourts Regular contributor to the project InclusiveCourts Translation from the Portuguese by Patrícia Jerónimo

 

Cite as: FRIEDRICH, Nicole, “[Annotation to the judgment of] Porto Court of Appeal, proc. 1341/17.3T8MTS.P1, 18.05.2017”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/

 

REFERENCES IN THE LITERATURE: n.a.

 

 

 

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