PORTUGAL: National Laws

Summary: General overview of Portugal's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
The Convention has the force of law in Portugal, and may be directly invoked before the courts and applied by national authorities. Should the Convention conflict with national law, the Convention takes precedence unless national law is more favourable to the rights of the child.

Constitution: The Constitution of Portugal contains extensive rights provisions, including a number that make specific reference to the rights of children:

• Article 36(3): spouses possess equal rights and duties in relation to the maintenance and education of their children

• Article 36(4): prohibits discrimination on the basis of the marital status of a child's parents

• Article 36(5): parents possess the right and duty to educate and maintain their children

• Article 36(6): children shall not be separated from their parents except by judicial order where the parents have not fulfilled their fundamental duties

• Article 64(2)(b): creates the basis for health rights for children

• Article 67(2)(c): requires the State to cooperate with parents in relation to their children's education

• Article 69: children have a right to protection by society and the state, specifically from abandonment and discrimination

• Article 74(2): contains duties of the State to ensure that emigrants' children are taught Portuguese and enjoy access to Portuguese culture, and that immigrants' children receive adequate support to enjoy their right to education

Legislation: Portuguese law consists of codes, laws, decree laws and regional decree laws. A great deal of laws in all of these forms relate to the rights of children including, but by no means limited to:

• The Penal Code

• The Civil Code

• The Labour Code

• Law 99 of 25 August 2001 (on a complaints mechanism for sexual abuse and exploitation of children)

• Act No. 17 of 9 June 1995 (amending the law on motherhood and fatherhood)

• Act No. 45 of 14 October 1986 (framework Act on education)

• Act No. 5 of 10 February 1997 (framework Act on pre-school education)

• Act No. 9 of 2 May 1989 (on the rehabilitation and integration of disabled persons)

• Decree Law No. 190 of 3 September 1992 (on a child's right to be heard)

• Decree Law No. 189 of 17 May 1991 (on the creation of “Minors' Protection Boards”)

• Decree Laws No. 3-A and B of 26 January 1996 (on the High Commissioner for the Promotion of Equality and the Family)

Legal research:
All Portuguese legislation and important cases are published in the Diário da República (www.dre.pt/), though it is only available in Portuguese. The National Assembly (Assembleia de República) maintains an official website in Portuguese, English, and French (http://www.parlamento.pt/Paginas/default.aspx), and offers a copy of the Constitution in English (http://app.parlamento.pt/site_antigo/ingles/cons_leg/index.html). In addition, the GlobaLex Initative at New York University has published a guide to legal research in Portugal (http://www.nyulawglobal.org/Globalex/Portugal1.htm), and both the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/portugal.php) and World Legal Information Institute (http://www.worldlii.org/pt/) offer collections of links to relevant legal research and government resources.

Case law
CRC Jurisprudence
Portuguese reports to the Committee have identified areas of the law in which cases have cited the CRC (including the intervention of a lawyer in guardianship proceedings and where there has been an abuse of authority by parents), but the reports did not cite specific cases.

Case law research:
The Constitutional Court (Tribunal Constitucional) publishes summaries of selected decisions in English online (http://www.tribunalconstitucional.pt/tc/en/acordaos/), and the Supreme Court of Justice (Supremo Tribunal de Justiçia) maintains a database of its decisions and judgements in various languages (http://www.stj.pt/jurisprudencia).

Compliance with the CRC
The Committee has welcomed “the substantial changes in various fields of legislation” including in relation to the administration of juvenile justice, social welfare and security and the development of law relating to asylum seekers. While recommendations have tended to focus on policy, resource allocation and data collection, the Committee has identified a small number of areas in which it has recommended further legal reform.

In depth analysis:
Despite the generally positive nature of the Committee's observations on Portugal's implementation of the CRC, there remain a small number of areas of national law that remain incompatible with the Convention. Corporal punishment is an area of particular concern. The Committee has repeatedly drawn attention to the absence of legislation prohibiting such punishment, and has recommended that the State adopt legislation explicitly prohibiting it in all contexts. Committee recommendations have also focussed on encouraging the State to develop a “mandatory reporting system for professionals working with children who detect the use of corporal punishment in the family”.

Portuguese juvenile justice has benefited from substantial reform in recent years, but the Committee has nevertheless highlighted certain areas in its recommendations for further reform. In particular, the Committee has expressed concern that children over 16 may not receive the full benefit of protections under the recent reforms, which are primarily aimed at those under 16.

With regard to the national schemes relating to the treatment of asylum seekers, the Committee noted the absence of any specific determination procedure for minors. They recommended that the State develop such a procedure, including ensuring that the Asylum Law of 1999 is fully implemented.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects.