Portugal
How can you prepare child relocation from or within Portugal? What if your child has been relocated without your consent?
Since Portugal is a European Union country, Regulation (EU) No 2019/1111 of the Council of 29 June 2019 (Brussels IIa), and decisions from the European Court of Justice have direct application in the Portuguese legal system.
Portugal is also a member of the 1980 Hague Convention on Child Abduction, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and is also a party to bilateral agreements (such as French Luso and Luxembourg Luso).
Country Reporter:
Nuno Cardoso-Ribeiro
Nuno is the founding partner of Divórcio & Família, in Lisbon, Portugal.
Nuno was a founder and is presently the chairman of the board of the Portuguese AAFC – Family and Children’s Lawyers Association and a member of the International Academy of Family Lawyers (IAFL).
Nuno has volunteered to keep this page about Portugal up to date.
Lawyers and mediators in Portugal
We provide a list of lawyers and mediators in Portugal who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: Portugal
Authority
In Portugal, the freedom to move and to establish residence, within the national territory or abroad, is a constitutionally right protected by law. According to article 44, no. 1 of the Portuguese Constitution, every citizen is guaranteed the right to travel and settle freely in any part of the Portuguese territory, while , no. 2 of the same article ensures that “every citizen is guaranteed the right to emigrate, or to leave the Portuguese territory and the right to return to Portugal”.
As we are aware, the Maastricht Treaty at an European level, grants all EU citizen the right to move freely and establish residence within the Schengen territory. However when a minor is involved, the situation becomes more complex and requires other legal framework.
In Portugal, according to article 1906 of the Portuguese Civil Code – “Exercise of parental responsibilities in case of divorce, judicial separation of persons and property, declaration of nullity or annulment of marriage” – the parental responsibilities related to issues of particular importance for the child’s life, are exercised jointly by both parents in accordance with the terms that were in force during the marriage.
Since the decision regarding the child’s place of residence is a matter of particular importance, the child’s relocation to another country require the consent of the holders of parental responsibilities (usually the parents) or, if that consent is not granted, a court order allowing the relocation.
Traveling with children: Portugal
The departure of national minors from the country, as well as the entry and exit of foreign minors legally residing in Portugal, is regulated by Article 23 of Decree-Law 138/2006 of 26 July and by Article 31 of the Law no 23/2007, dated on the 4th July. According to the current legislation, both national minors and foreign minors legally residing in Portugal who wish to leave the country and are travelling unaccompanied by both parents or one of them, must present a legally certified exit permit issued by whoever holds parental responsibilities.
This authorization must be contained in a written document, dated and signed by the person legally responsible for the child. If the minor is accompanied by a third party, that person must be duly identified in the document, along with the explicit accompanying powers they possess.
This authorisation may be used an unlimited number of times within the period of validity mentioned in the document, which, however, cannot exceed one calendar year. If no other period is specified, the authorization is valid for six months from the date of issue.
Child relocation: Portugal
Substitute permission
If a parent wishes to relocate with their children and the other parent with custody rights refuses to grant permission, the relocation parent may seek permission from the court. When making a decision on this matter, the court must take into account the child’s best interests, but also all circumstances of the case and weigh all relevant interests.
Preventing relocation
If the other parent wishes to prevent the relocation, he can request the court to issue a relocation ban. A relocation ban is a court order that prohibits a parent from moving a child to a new location without the other parent’s consent or court approval.
Additionally, he can submit a statement to SEF (Serviços de Estrangeiros e Fronteiras, also known as, Foreign Affairs Service), along with a copy of their identification document, a copy of the child´s birth certificate (issued less than 6 months prior to its submission) and a copy of the agreement/decision regarding parental responsibilities, if there is one.
This opposition will be recorded in SEF’s Integrated Information System for a period of 30 days, which can be extended to 90 days if SEF receives a copy of the request for confirmation of the opposition in the context of judicial proceedings within those 30 days.
Child abduction: Portugal
Applicable Conventions
Portugal is a party to the Hague Convention on Child Abduction, and is bound by the Regulations of the European Council, as well as French Luso and Luxembourg Luso bilateral agreements.
HAGUE CONVENTION
What is Child Abduction according to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?
Under article 3rd. of the Convention, a child/young person’s abduction is to be considered wrongful when the removal or retention happens in breach of rights of custody attributed by the Law of the State where a child or young person has his habitual residence and when that right was being actually exercised or would have been so exercised if the child was not removed or retained.
Who can report in the event of an international abduction of child/young person?
Under article 8th. of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the abduction can be reported by any person, institution or other body claiming that a child or young person has been removed or retained in breach of custody rights.
When should an international abduction of a child/young person reported?
This participation should be communicated as soon as possible. According to article 12th. of the Convention, such participation shall take place within one year from the date of the wrongful removal or retention and the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State in which the child is present.
The judicial or administrative authority concerned, even if has expired the 1 year period referred to in the preceding paragraph, shall also order the return of the child, unless it is proved that the child is already integrated into the new environment.
In Portugal, do you need a lawyer for the proceedings under the Hague Convention of 25 October 1980? And in the other States?
In Portugal it is not mandatory to have a lawyer for this type of proceedings.
Under article 19th. of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, whatever the decision on the return of the child or young person, it does not affect the fundamentals of custody rights.
The documentation required to start these proceedings is described on the website of the Portuguese government:
Government
The Central Authority is the first point of contact in cases of child abduction or illicit retention as per the Hague Convention on child abduction. In Portugal the designated Central Authority is the Direção-Geral de Reinserção e Serviços Prisionais (DGRSP), according to DL no. 215/2012, of the 28th of September and Dispatch no. 9954/2013, of the 30th of July.
This entity is responsible for cooperating with the central authorities of the other contracting countries and with their national judicial and administrative authorities, with the aim of fulfilling the obligations imposed by the Hague Convention.
In the specific case of international child abduction, cooperation is essential to ensure the immediate return of the child. This cooperation results from the 1980 Hague Convention, of the 25th of October, and Council Regulation no. 2201/2003, of the 27th of November.
These legal instruments promote collaboration between the competent entities of the respective states, such as locating the child who has been unlawfully removed or retained, preventing harm to the children, exchanging information regarding the welfare of children and their social situation, initiating judicial or administrative proceedings aimed at the child´s return, facilitating amicable solutions, and other related tasks.
As far as encouraging friendly solutions is concerned, the Central Authority will only pursue this course of action outside of the judicial process in cases where communication with the parent who has the child does not jeopardize the child’s safe return. This is to prevent the possibility of the parent relocating with the child a second time. In any case, regardless of the results of this extrajudicial step, there is nothing preventing a voluntary surrender from being obtained during the judicial process. Upon receiving the request for the return of a child under the terms of the Convention, the Portuguese Central Authority will promptly forward it to the Public Prosecutor, who will then initiate legal proceedings in court to address the matter.
If you find yourself in a situation where the other parent has taken your child to Portugal without your consent, the first step is to file a return application with the Central Authority. This application must be made under the terms of Article 8 of the Convention and will trigger the involvement of the Public Prosecutor, who will initiate proceedings in court.
Court procedure
In Portugal, cases of child abduction are heard by the Family Courts in the districts where they exist or in civil courts where they dont. However, it’s important to note that these cases can be complex and may take some time to resolve. As a rule, the 6 weeks period referred to in article 11 of the 1980 Hague Convention will not be enough for a court decision to be taken, and a 12 weeks period will be a more realistic possibility.
Child participation
In Portugal, the judge presiding over a child abduction case is responsible for determining when and how the child will be heard during the procedure.
In Portugal, it is not mandatory for a legal representative to be appointed to the child.
Instead, the interests of the Child are safeguarded and represented in court through the intervention of the Public Prosecutor.
Mediation
In Portugal mediation is strongly encouraged at all stages, before and during the return proceedings and legal proceedings but it not mandatory.
Once again, it is essential to have the guidance and support of experienced legal professionals who can help understanding if, in your case, mediation is appropriate.
Execution
When any of the parties decides to appeal the court´s decision, the court can be asked to suspend the return of the child for the duration of the appeal.
In addition the innocent party may also ask the court to order the abducting parent to cover the expenses related to the abduction and the return of the child, which can include the costs with travel expenses, legal fees and other related expenses.
Prevention
If you think your child is in Portugal, but you do not know exactly where, the Central Authority can help you locate your child.
If you fear that your child will be abducted from Portugal to another country, or otherwise be taken to an unknown location, various measures can be taken:
• orders to prevent the removal of the child; issuing border alerts; temporary placement of the child in institutional care.
FRENCH LUSO BILATERAL AGREEMENT
France and Portugal are bound by a convention on judicial cooperation to protect minors, dated on the 20th of July 1983. Chapters II and III of this convention are dedicated to these issues.
It should be noted that this Convention contains, not only rules on international child abduction, but also provisions on jurisdiction, conflict of laws and the enforcement of decisions.
The Convention applies to any minor who is under the age of 18 and is a national of either France or Portugal. However, the central authorities interpret this agreement broadly, so it currently applies to any child who has been unlawfully removed or retained, regardless of nationality.
This convention, which entered into force on the 1st of October 1984, is based on the following two mechanisms:
– immediate return of the child to the place of habitual residence with the parent who has legal or actual custody,
– the execution of the court decision establishing the child’s domicile and granting parental authority.
When a Central Authority is requested by its counterpart to obtain the return of a child unlawfully removed or retained on its territory, it must take immediate action by contacting the Public Prosecutor, who will take all appropriate measures to ensure the voluntary return of the child.
If the abduction party refuses to comply, the matter will be refered to the competent judicial authority in order to obtain a court order recognising a right of access in favour of the parent who does not reside in the child’s State of habitual residence.
Like the Hague Convention, there are exceptions to the immediate return of the child. These include:
– the integration of the child in his or her new environment, where a period of more than one year has elapsed since the removal or retention, at the time the application is made to the court
– the failure of the person who was entrusted with custody to effectively or in good faith exercise their custody rights
– a serious risk to the health or safety of the child due to the occurrence of an exceptional event since the award of custody.
The parent who has been victimized by the removal or non-return of their child may also choose to submit, through the Central Authority of their country, an application for enforcement in the territory of the State where the child is located. This application is based on a court order related to the exercise of parental authority given in the child´s habitual residence before their removal.
In addition, a parent who does not have custody of the child, may address the Central Authority for the organization or protection of the exercise of their rights of access.
LUXEMBOURG LUSO BILATERAL AGREEMENT
The Luxembourg-Portugal Bilateral Agreement was created to establish closer cooperation between the judicial and administrative authorities of both states, with the aim of ensuring better protection of children and improving the provisions of existing multilateral conventions in this field. It is recognized that the best interests of minors are served by preventing their unlawful removal.
This agreement facilitates the recognition and enforcement of judgments concerning custody and rights of access given in either of the Contracting States. It clarifies which courts have jurisdiction over such matters, ensures the free exercise of rights of access in both states, and guarantees the return of minors who have been unlawfully removed or retained in one of the Contracting States.
To implement the provisions of this Convention, the General Directorate for Children’s Guardianship Services of the Ministry of Justice is designated as the Central Authority for Portugal, while the State Attorney General is the Central Authority for Luxembourg.
When appropriate, the central authority shall initiate, through the Public Prosecutor’s Office, before the competent court, the proceedings for the return of the Child.
The authority competent to make a decision on the immediate return of a child in Portugal is the judge of the court of first instance; in Luxembourg the competent authority is the president of the arrondissement court and the jurisdiction where the minor is or is presumed to be located.
In Portugal, the decision on the immediate return of a minor is taken in common guardianship proceedings, while in Luxembourg it is taken in référé proceedings. The decision is enforceable and independent of appeal. It is important to note that the action for the immediate return of the minor does not require prior recognition and enforcement of a judicial decision in the requested State.
Regulation (EU) 2019/1111, of the 29th of June 2019
The Regulation (EU) 2019/1111 of 29 June 2019 deals with the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.
This Regulation contains provisions complementing the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’) in relations between Member States while retaining its core principles. The aim of this Regulation is, simply, to help to strengthen legal certainty and increase flexibility, to ensure that access to court proceedings is improved and to ensure that such proceedings are made more efficient.
For more details: check the country profile of Portugal on the website of HCCH.
Criminal law : Portugal
Criminal law
It may happen that one of the parents takes the child with them to another country, without a court decision in their favour to that effect and without the other parent’s parental consent.
In this case, article 249 of the Portuguese Penal Code unequivocally determines the existence of the crime of “subtracting a minor“.
This crime involves removing a child from the custody of their guardian by any means, and although this crime ir dependent on a complaint, is punishable by imprisonment for up to two years or a fine of up to 240 days.
This penalty, however, may be especially mitigated if the agent’s conduct has been motivated by a desire to respect the minor’s wishes, provided they are old enough to have their opinion heard (in principle over the age of 12).
Relevant websites : Portugal
The Hague Convention on Child Abduction
Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction
European Union website
www.e-justice.europe.eu
Central Authority
Directorate-General for Social Reintegration : Central Authority
Permission Form to Travel with Children
For Portuguese Nationals and for Foreign Resident Minors
www.sef.pt
Government website on Child Abduction:
General Information and Information Regarding our part in the Convention on the Civil Aspects of International Child Abduction
www.hcch.net
Subsidized Legal Aid
Legal aid is available under article 25 of the 1980 Hague convention:
www.justica.gov.pt
Blogs about Portugal
Sustracción Internacional – Datos estadísticos de Portugal
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Rapto Internacional – Dados Estatísticos de Portugal
Rapto Internacional - Dados Estatísticos de Portugal A Convenção sobre os Aspectos Civis do Rapto Internacional de Crianças (Convenção da Haia de 1980), ratificada por Portugal a 12 de Setembro de 1990, prevê, no seu artigo 6.º, que cada Estado Contratante designará...
International Abduction – Portuguese Statistical Data
International Abduction - Portuguese Statistical Data The Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention), ratified by Portugal on September 12, 1990, states, in its article 6, that each Contracting State shall designate a...
Relevant case law in Portugal
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