CASE OF SALGUEIRO DA SILVA MOUTA v. PORTUGAL
Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Matti Pellonpää
8. The applicant is a Portuguese national born in 1961. He lives in Queluz (Portugal). 9. In 1983 the applicant married C.D.S. On 2 November 1987 they had a daughter, M. The applicant separated from his wife in April 1990 and has since then been living with a man, L.G.C. Following divorce proceedings instituted by C.D.S., the divorce decree was pronounced on 30 September 1993 by the Lisbon Family Affairs Court (Tribunal de Família). 10. On 7 February 1991, during the divorce proceedings, the applicant signed an agreement with C.D.S. concerning the award of parental responsibility (poder paternal) for M. Under the terms of that agreement C.D.S. was to have parental responsibility and the applicant a right to contact. However, the applicant was unable to exercise his right to contact because C.D.S. did not comply with the agreement. 11. On 16 March 1992 the applicant sought an order giving him parental responsibility for the child. He alleged that C.D.S. was not complying with the terms of the agreement signed on 7 February 1991 since M. was living with her maternal grandparents. The applicant submitted that he was better able to look after his child. In her memorial in reply C.D.S. accused L.G.C. of having sexually abused the child. 12. The Lisbon Family Affairs Court delivered its judgment on 14 July 1994 after a period in which the applicant, M., C.D.S., L.G.C. and the child’s maternal grandparents had been interviewed by psychologists attached to the court. The court awarded the applicant parental responsibility, dismissing as unfounded – in the light of the court psychologists’ reports – C.D.S.’s allegations that L.G.C. had asked M. to masturbate him. It also found, again in the light of the court psychologists’ reports, that statements made by M. to that effect appeared to have been prompted by others. The court added: “The mother continues to be most uncooperative and it is wholly improbable that her attitude will change. She has repeatedly failed to comply with the Court’s decisions. The finding is inescapable that [the mother] has not shown herself capable at present of providing M. with conditions conducive to the balanced and calm life she needs. The father is at present better able to do so. In addition to providing the economic and living conditions necessary to have the child with him, he has shown himself capable of providing her with the balanced conditions she needs and of respecting her right to maintain regular and sustained contact with her mother and maternal grandparents.” 13. M. stayed with the applicant from 18 April to 3 November 1995, when she was allegedly abducted by C.D.S. The applicant reported the abduction and criminal proceedings are pending in that connection. 14. C.D.S. appealed against the Family Affairs Court’s judgment to the Lisbon Court of Appeal (Tribunal da Relação), which gave judgment on 9 January 1996, reversing the lower court’s judgment and awarding parental responsibility to C.D.S., with contact to the applicant. The judgment was worded as follows. “In the proceedings for the award of parental responsibility for the child M., born on 2 November 1987, daughter of [the applicant] and C.D.S., the decision given on 7 February 1991 confirmed the agreement between the parents as to parental responsibility for the child, contact and the amount of maintenance payable by the father, since custody of M. was awarded to the mother. On 16 March 1992 [the applicant] applied for a variation of the order granting parental responsibility, alleging that the child was not living with her mother in accordance with what had been decided, but with her maternal grandparents, which – he argued – was unsatisfactory. It was for that reason that the custody arrangements should be varied so as to allow him to have his daughter and apply to the mother the contact and maintenance arrangements which had hitherto been applied to him. The child’s mother not only opposed the application lodged by the applicant, but also relied on evidence supporting her contention that the child should not remain in the company of her father because he was a homosexual and was cohabiting with another man. After a number of steps had been taken in connection with those proceedings, the following decision was given on 14 July 1994: ‘1. Custody and care of the child is awarded to the father, in whom parental responsibility shall be vested. 2. The child may see her mother on alternate weekends, from Friday to Monday. Her mother shall collect her from school on the Friday and bring her back to school on Monday morning before lessons start. 3. The child may also see her mother every Tuesday and Wednesday; her mother shall fetch her from school after lessons and bring her back the following morning. 4. The child shall spend Christmas Eve and Christmas Day alternately with her father and her mother. 5. The child shall spend the Easter holidays with her mother. 6. During the school summer holidays the child shall spend thirty days with her mother. The dates must be agreed on with the father at least sixty days beforehand. 7. The mother shall pay the father maintenance of 30,000 escudos per month, payable before the 8th of every month. Those maintenance payments shall be adjusted once annually on the basis of the inflation index for the previous year published by the INE (National Institute of Statistics).’ That decision specifically governed arrangements applicable to the year 1994. C.D.S., who was dissatisfied with the decision, appealed. She had previously appealed against the decision appearing on page 238, which dismissed an application for a stay of the proceedings, and the decision given at the hearing of 29 April 1994 on the application for an examination of the document appearing on page 233; both those appeals were adjourned and did not have the effect of staying the proceedings. The appellant sets out the following grounds in her appeal: … In his pleadings [the applicant] submitted that the judgment of the first-instance court should be upheld. State Counsel attached to the Court of Appeal has recommended that the decision be set aside, but not on the grounds relied on by the appellant. After examining the case, we shall give our decision. We shall first examine the following facts, which the first-instance court considered to be established. 1. The child, M., who was born on 2 November 1987, is the daughter of [the applicant] and C.D.S. 2. Her parents married on 2 April 1983. 3. Divorce was granted on 30 September 1993 and their marriage dissolved. 4. The parents have been living separately since April 1990, when [the applicant] left his home to go and live with another man, whose first name is L. 5. On 7 March 1991 the Loures Court gave a decision in case no. 1101/90 confirming the following agreement on the exercise of parental responsibility for the child: ‘I. The mother shall have custody of the child. II. The father may visit his daughter whenever he likes provided that he does not disrupt her schooling. III. The child shall spend alternate weekends and Christmas and Easter with her father. IV. The child shall spend the father’s holidays with him unless those holidays coincide with those of the mother, in which case the child shall spend fifteen days with each parent. V. On the weekends which the child spends with her father, he shall collect her from her mother’s house on Saturday at about 10 a.m. and bring her back on Sunday at about 8 p.m. VI. The child shall go to a kindergarten as soon as possible, the enrolment fees to be paid by the father. VII. The father shall pay maintenance of 10,000 escudos per month, which shall be adjusted once annually by the same percentage as the net increase in his salary. That sum shall be paid into the account of the child’s mother – account no. …– before the 5th day of the following month. VIII. The father shall also pay half his daughter’s kindergarten fees. IX. The father shall pay half of any special expenses for his child’s health.’ 6. From April 1992 the child stopped seeing her father on the agreed terms, against his wishes. 7. Until January 1994 the child lived with her maternal grandparents [name] at Camarate [address]. 8. From that date the child went to live with her mother and her mother’s boyfriend [address] in Lisbon. 9. She continued, however, to stay overnight at her maternal grandparents’ house from time to time. 10. On schooldays when the child did not stay overnight with her grandparents, her mother used to drive her to her grandparents’ house where she used to stay after school from 5 p.m. 11. During that school year M. was in the first year primary at … school, for which the fees came to 45,400 escudos per month. 12. Her mother has been cohabiting with J. for at least two years. 13. J., who is a business manager, works in the imports and exports sector, the major part of his activity being in Germany where he has immigrant status. His income amounts to some 600,000 escudos per month. 14. The mother, C.D.S., is the manager of DNS, the partners of which are her boyfriend and his brother, J.P. 15. She has been registered with the State agency for employment and vocational training since 17 February 1994. 16. Her expenses are paid for jointly by herself and her boyfriend. 17. She states that she pays 120,000 escudos in rent and spends approximately 100,000 escudos per month on food. 18. The father, João Mouta, is in a homosexual relationship with L.G.C., with whom he has been living since April 1990. 19. He is the head of his sector at A., and his net monthly income, plus commission, comes to just over 200,000 escudos. 20. The child is very close to her maternal grandmother, who is a Jehovah’s Witness. 21. Following her failure to comply with the decision referred to in paragraph 5, the child’s mother was ordered, on 14 May 1993, to pay a fine of 30,000 escudos because since April 1992 she had been refusing to allow the father to exercise his ‘right to contact with his daughter in accordance with the decision given’. 22. On 25 June 1994, after interviewing the father and mother both individually and together, and M. without her parents or her maternal grandmother being present, and the maternal grandmother and the father’s partner individually, and performing a psychological examination of M., the court psychologists drew up the following report: ‘M. is a communicative child of normal intellectual development for her age and above average intelligence. She is very attached to her father and mother, and the conflict between her parents is a source of some insecurity. She would like her parents to live closer together because she finds it difficult to understand why she has to live with her grandparents and not see her father or to accept this. She has a very good relationship with her father, who is very affectionate and attentive towards his daughter. Both [the applicant] and his ex-wife are affectionate and flexible parents and both invest in their daughter’s upbringing and emotional security. The reasons for their separation were subsequently a source of substantial conflict between them, exacerbated by M.’s maternal grandmother, who does not accept [the applicant’s] lifestyle and unconsciously tries to keep him away from his daughter. To sum up, both parents are capable of overseeing their daughter’s satisfactory psychoaffective development, but we do not feel that it is right for her to live with her grandmother, who exacerbates the conflict between the two parties and fuels it by trying to keep [the applicant] away because she does not accept his lifestyle.’ 23. On 16 August 1993 M. told the psychologist and her father that the latter’s partner had asked her, while her father was out, to go into the bathroom with him, that he had locked the door and asked her to masturbate him (she made gestures imitative of masturbation) and then told her that she did not need to wash her hands and that she should not say anything to her father. The psychologist stated that the manner in which the child had related that episode had made her doubt the truthfulness of the story, which might have been suggested by repeated promptings. She added that while the daughter was describing the episode, the applicant had been understanding and asked for clarification, which confirmed that the father and daughter had a good relationship. 24. During the interview with the psychologist on 6 December 1993 the child stated that she was still living with her maternal grandmother and that from time to time she stayed with her mother where she would sleep on a sofa in the living room because there was no bedroom for her. 25. In a report dated 17 January 1994, drawn up following a meeting between the daughter and her father, the psychologist concluded that ‘although M. has observed during her meetings with her father that he is living with another man, her parental images have been fully assimilated and she presents no problem relating to psychosexual identity, be it her own or that of her parents’. 26. Dr V., a psychiatrist, stated, after interviewing the boyfriend of [the applicant], the child’s father, that in his opinion the partner was well adjusted and of satisfactory emotional and cognitive development. He found nothing abnormal about the boyfriend either as an individual or in terms of his relationship with the child’s father. He considered it wholly improbable that the episode related by the child, as described in paragraph 23, had really occurred. 27. The final report drawn up by the court psychologists, dated 12 April 1994, indicated that M. was suffering from a degree of insecurity due in part to the conflict between her mother’s side of the family and her father, and that she had a defensive attitude which manifested itself in a refusal to confront potentially stressful situations. The child is aware that her family opposes her meetings with her father, their opposition being justified by the child’s description of an episode which had allegedly occurred between her and her father’s boyfriend, L.G.C., in which L.G.C. had asked her to masturbate him. With regard to that account, it is difficult to imagine how a 6-year-old child could relate in detail an episode which had occurred several years earlier. The experts conclude in their report that the fact that M. had described in detail the above-mentioned masturbation episode did not mean that it had actually occurred. They reiterate that the father is a very affectionate father, full of understanding and kindness towards his daughter, while also imposing on her, satisfactorily and instructively, limits which were necessary and made her feel secure. The experts also reiterate that the child’s mother is a very affectionate mother, but rather permissive, which is not conducive to a feeling of security, although she is capable of improving. They also conclude that it is not advisable for the child to live with her grandmother because the religious fanaticism present in her environment not only condemns the father, but excludes him on grounds of the individual and emotional choices he has made. This has contributed to sowing confusion in the child’s mind and exacerbating her sense of conflict and anxiety, thus compromising her healthy psychoaffective development. 28. At the hearing on 24 January 1994 the following interim decision was given with the agreement of both parents: (I) M. could spend every Saturday from 10 a.m. to 10 p.m. with her father, (II) to that end, her father would fetch her from her mother’s house accompanied by her paternal grandmother and/or her paternal great-grandmother. 29. The mother did not allow her daughter to see her father on the terms fixed by the above-mentioned decision. 30. On 22 April 1994 the child psychiatry department of D. Estefânea Hospital decided that M. should be monitored because her feelings of anxiety were such as might inhibit her psychoaffective development. Those facts, found at first instance, are considered to have been definitively established, without prejudice to the possibility of considering a further factor in delivering this judgment. With regard to the other appeals, since the mother has not submitted any pleadings they are considered to be inoperative under Articles 292 § 1 and 690 § 2 of the Code of Civil Procedure. Apart from the fact that factual evidence has not been submitted, these aspects appear to us to be sufficient to give a ruling here as we understand that the lower court ruled on the essential issue of the case, that is to which of the two parents custody of the child should be awarded. The shortcomings in the decision referred to by State Counsel, although relevant, do not warrant setting it aside. Let us now examine the appeal: Article 1905 § 1 of the Civil Code provides that in cases of divorce, judicial separation of persons and possessions, declarations of nullity or annulment of marriage, child custody, maintenance and the conditions of payment are governed by agreement between the parents, that agreement being subject to confirmation by the court; confirmation is refused if the agreement is contrary to the child’s interests, including the child’s interest in maintaining a very close relationship with the non-custodial parent. Paragraph 2 adds that, in the absence of an agreement, the court shall decide, while protecting the child’s interests, including his or her interest in maintaining a very close relationship with the non-custodial parent, it being possible to award custody of the child to one or other parent or, if one of the cases provided for in Article 1918 applies, to a third party or to an educational or welfare establishment. The Guardianship Act also deals with this point. Section 180(1) of that Act provides that any award of parental responsibility must be in the child’s interests. A judgment of the Lisbon Court of Appeal of 24 April 1974, summarised in BMJ (Bulletin of the Ministry of Justice) no. 236, p. 189, states: ‘The Convention on the Rights of the Child – Resolution of 20 November 1989 of the General Assembly of the United Nations – proclaims with rare concision that children, for the full and harmonious development of their personality, require love and understanding; they should, as far as possible, grow up under the protection and responsibility of their parents and, in any event, in a climate of affection and psychological and material security, with young children not being separated from their mother save in exceptional cases.’ We do not have the slightest hesitation in supporting that declaration, which fully corresponds to the realities of life. Despite the importance of paternal love, a young child needs the care which only the mother’s love can provide. We think that M., who is now aged 8, still needs her mother’s care. See on this point the judgment of the Porto Court of Appeal of 7 June 1988, in BMJ no. 378, p. 790, in which that court held that ‘in the case of young children, that is until 7 or 8 years of age, the emotional tie to the mother is an essential factor in the child’s psychological and emotional development, given that the special needs of tenderness and attentive care at this age can rarely be replaced by the father’s affection and interest’. The relationship between M. and her parents is a decisive factor in her emotional well-being and the development of her personality, particularly as it has been demonstrated that she is deeply attached to her parents, just as it has been shown that both of them are capable of guiding the child’s psychoaffective development. In the official record of the decision of 5 July 1990 awarding parental responsibility, [the applicant] acknowledged that the appellant was capable of looking after their daughter and suggested that custody be awarded to the mother, a statement he repeated in the present proceedings to vary that order, as recorded in the transcript of the hearing of 15 June 1992, declaring that he wished to waive his initial application for custody of the child because she was living with her mother again. M.’s father expresses the wish that his daughter not stay with her maternal grandparents, referring to the numerous difficulties he encounters when trying to see his daughter, given the conduct of the appellant and her mother who do all they can to keep him away from his daughter because they do not accept his homosexuality. Section 182 of the Guardianship Act provides that previous arrangements can be varied if the agreement or final decision is not complied with by both parents or if subsequent circumstances make it necessary [to vary] the terms. Consideration needs to be given, however, to whether there is a justified ground for varying the decision awarding custody of the child to her mother. On examining the content of the initial application for a variation of the order it can be seen that emphasis is placed on the fact that the child was living with her maternal grandparents who are Jehovah’s Witnesses. The truth of the matter, however, is that [the applicant] has not produced any evidence to prove that this religion is harmful and has merely stressed the grandparents’ stubborn refusal to allow the father and daughter to see each other. To the Court’s knowledge, the beliefs of Jehovah’s Witnesses do not incite to evil practices, although fanaticism does exist. Are there adequate reasons for withdrawing from the mother the parental responsibility which was granted her with the parents’ agreement? There is ample evidence in this case that the appellant habitually breaches the agreements entered into by her with regard to the father’s right to contact and that she shows no respect for the courts trying the case, since on several occasions, and without any justification, she has failed to attend interviews to which she has been summoned in the proceedings. We think, however, that her conduct is due not only to [the applicant]’s lifestyle, but also to the fact that she believed the indecent episode related by the child, implicating the father’s partner. On this point, which is particularly important, we agree that it is not possible to accept as proven that such an episode really occurred. However, we cannot rule out the possibility that it did occur. It would be going too far – since there is no conclusive evidence – to assert that the boyfriend of M.’s father would never be capable of the slightest indecency towards M. Thus, although it cannot be asserted that the child told the truth or that she was not manipulated, neither can it be concluded that she was telling an untruth. Since there is evidence to support both scenarios, it would be wrong to give greater credence to one than the other. In the same way, the accepted principle in cases involving awards of parental responsibility is that the child’s interests are paramount, completely irrespective of the – sometimes selfish – interests of the parents. In order to establish what is in the child’s interests, a court must in every case take account of the dominant family, educational and social values of the society in which the child is growing up. As we have already stated and as established case-law authority provides, having regard to the nature of things and the realities of daily life, and for reasons relating to human nature, custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see the Evora Court of Appeal’s judgment of 12 July 1979, in BMJ no. 292, p. 450). In the instant case parental responsibility was withdrawn from the mother despite the fact that it had been awarded her, we repeat, following an agreement between the parents, and without sufficient evidence being produced to cast doubt on her ability to continue exercising that authority. The question which therefore arises, and this should be stressed, is not really which of the two parents should be awarded custody of M., but rather whether there are reasons for varying what was agreed. Even if that were not the case, however, we think that custody of the child should be awarded to the mother. The fact that the child’s father, who has come to terms with his homosexuality, wishes to live with another man is a reality which has to be accepted. It is well known that society is becoming more and more tolerant of such situations. However, it cannot be argued that an environment of this kind is the healthiest and best suited to a child’s psychological, social and mental development, especially given the dominant model in our society, as the appellant rightly points out. The child should live in a family environment, a traditional Portuguese family, which is certainly not the set-up her father has decided to enter into, since he is living with another man as if they were man and wife. It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations; such are the dictates of human nature and let us remember that it is [the applicant] himself who acknowledged this when, in his initial application of 5 July 1990, he stated that he had definitively left the marital home to go and live with a boyfriend, a decision which is not normal according to common criteria. No doubt is being cast on the father’s love for his daughter or on his ability to look after her during the periods for which she is entrusted to his care, for it is essential that they do see each other if the objectives set out above are to be met, that is ensuring the child’s well-being and the development of her personality. M. needs to visit her father if her feelings of anxiety and insecurity are to be dissipated. When children are deprived of contact with their father, their present and future development and psychological equilibrium are put at risk. The mother would be wise to try to understand and accept this if she is not to cast doubt on her own ability to exercise parental responsibility. At present, the failure to comply with the decision confirming the contact arrangements does not amount to a sufficient reason for withdrawing from the appellant the parental responsibility awarded to her by that decision. Accordingly, we reverse the judgment of the lower court as regards the child’s permanent residence with her father, without prejudice to the father’s right to contact during the periods which will be stipulated below. It should be impressed upon the father that during these periods he would be ill-advised to act in any way that would make his daughter realise that her father is living with another man in conditions resembling those of man and wife. For all the foregoing reasons the Court of Appeal reverses the impugned decision and rules that the appellant, C.D.S., shall continue to exercise parental responsibility for her daughter, M. The contact arrangements shall be established as follows: 1. The child may see her father on alternate weekends from Friday to Monday. To that end the father shall fetch his daughter from school at the end of classes on the Friday and bring her back on Monday morning before classes start. 2. The father may visit his daughter at school on any other day of the week provided that he does not disrupt her schooling. 3. The child shall spend the Easter holidays alternately with her father and her mother. 4. The Christmas holidays shall be divided into two equal parts: half to be spent with the father and the other half with the mother, but in such a way that the child can spend Christmas Eve and Christmas Day with one and New Year with the other alternately. 5. During the summer holidays the child shall spend thirty days with her father during the latter’s holidays, but if that period coincides with the mother’s holidays the child shall spend fifteen days with each of them. 6. During the Easter, Christmas and summer holidays the father shall fetch the child from the mother’s house and bring her back between 10 a.m. and 1 p.m. unless the parents agree on different times. 7. In accordance with the date of this decision, the child shall spend the next Easter and Christmas holidays with the parent with whom she did not spend those holidays in 1995. 8. The matter of maintenance payable by the father and the manner of payment shall be examined by the Third Section of the Third Chamber of the Lisbon Family Affairs Court in case no. 3821/A, which has been adjourned pending the present decision regarding the child’s future. Costs are awarded against the respondent.” 15. One of the three Court of Appeal judges gave the following separate opinion: “I voted in favour of this decision, with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation, which – accordingly – cannot, as such, in any circumstances be described as abnormal. The right to be different should not be treated as a ‘right’ to be ghettoised. It is not therefore a matter of belittling the fact that [the applicant] has come to terms with his sexuality and consequently of denying him his right to bring up his daughter, but rather, since a decision has to be given, of affirming that it cannot be declared in our society and in our era that children can come to terms with their father’s homosexuality without running the risk of losing their reference models.” 16. No appeal lay against that decision. 17. The right to contact granted to the applicant by the judgment of the Lisbon Court of Appeal was never respected by C.D.S. 18. The applicant therefore lodged an application with the Lisbon Family Affairs Court for enforcement of the Court of Appeal’s decision. On 22 May 1998, in connection with those proceedings, the applicant received a copy of a report drawn up by the medical experts attached to the Lisbon Family Affairs Court. He learnt from this that M. was in Vila Nova de Gaia in the north of Portugal. The applicant made two unsuccessful attempts to see his daughter. The enforcement proceedings are apparently still pending. 19. Article 1905 of the Civil Code provides: “1. In the event of divorce …, child custody, maintenance and the terms of payment shall be determined by agreement between the parents, which is subject to confirmation by the ... court … 2. In the absence of an agreement, the court shall decide on the basis of the interests of the child, including the child’s interest in maintaining a very close relationship with the non-custodial parent ...” 20. Certain provisions of the Guardianship Act are also relevant to the instant case. “1. ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child, custody of whom may be awarded to one of the parents, a third party or an educational or welfare establishment. 2. Contact arrangements shall be made unless, exceptionally, this would not be in the child’s interests ...” “If one of the parents does not comply with the agreement or decision reached in respect of the child’s situation, the other parent may apply to the court for enforcement ...” “If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms, one of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ...”