Currently, the possibility of a minor leaving national territory depends, in certain circumstances, on authorization to do so and, in others, on the absence of opposition to leaving.
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If the parents are married to each other, the provisions of Article 1901(1) of the Civil Code apply, which states that “During marriage, the exercise of parental responsibilities belongs to both parents.”
Leaving national territory is considered - except for a change of residence, i.e. for tourist purposes, as will be presumed unless otherwise stated - to be an act of ordinary life
Combined with the provisions of no. 1 of Decree-Law no. 83/2000, of May 11, which states that “Minors, when unaccompanied by those exercising parental authority, may only leave national territory if they have authorization to do so”, in this case either parent may leave national territory with the minor.
In the same vein, Article 31(4) of Law 23/2007, of July 4, states that “National minors or resident foreigners who travel unaccompanied by the person exercising parental responsibility and are not in possession of legally certified authorization granted by that person shall be refused permission to leave Portuguese territory.”
In the event that the parents are divorced or separated, the provisions of Article 1906(3) of the Civil Code must be taken into account, which states that “The exercise of parental responsibilities regarding the child's daily life is the responsibility of the parent with whom the child habitually resides, or of the parent with whom the child is temporarily staying; however, the latter, when exercising their responsibilities, must not contradict the most relevant educational guidelines, as defined by the parent with whom the child habitually resides”.
So, in this case, and as a rule (unless otherwise agreed), and reproducing the above, the child may leave national territory with either parent.
In other words, in these two situations, either parent may leave national territory with the child, unless there is expressed opposition from the other spouse.
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This situation is relatively common when you consider the possibility of illegal displacement of minors.
Without prejudice to the problems and complications associated with resolving this situation, the truth is that even if the problem is relatively “simple” to resolve within the jurisdiction of the countries that are signatories to the Hague Convention of October 25, 1980, on the Civil Aspects of International Child Abduction, in other countries it can become unfeasible or extremely time-consuming, costly and harmful - particularly to the best interests of minors.
In this context, see also Regulation (EC) No. 2201/2003, of November 27, in particular Article 11 under the heading “Return of the child”, according to which “Paragraphs 2 to 8 shall apply when the child is returned to a Member State. Paragraphs 2 to 8 shall apply where a person, institution or other body having rights of custody applies to the competent authorities of a Member State for a decision, based on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ('the 1980 Hague Convention'), in order to obtain the return of a child who has been wrongfully removed or retained in a Member State other than that of his or her habitual residence immediately prior to the wrongful removal or retention.”
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Therefore, the ideal solution is to prevent the child from leaving national territory.
To this end, the (other) parent must express their opposition to the minor leaving national territory, under the terms and for the purposes of the provisions of article 31-A of Law 23/2007, of July 4, under the heading "Indications regarding leaving the territory or travel impediments",
Paragraph 1 of said article 31. Article 31a states that "Anyone who has been prevented from traveling or leaving the country shall be refused leave of the national territory, when such a restriction has been judicially decreed, and judicial decisions and other legally required information shall be sent to the SEF, as a matter of urgency, for the purpose of creating an indication of a travel or exit ban in the SEF's Integrated Information System and, whenever the Court so orders, to the SIRENE National Office for the purpose of entering the travel ban alert in the SIS, applicable to the territory of the other Member States of the European Union and the States where the Implementing Convention is in force, under the terms and for the purposes of Article 32 of Regulation (EU) 2018/18. Article 32 of Regulation (EU) 2018/1862 of the European Parliament and of the Council of November 28, 2018."
In the case of obvious urgency, where it is not possible to obtain a judicial decision in good time, paragraph 6 of the aforementioned article 31-A states that "When it is not possible to ensure the judicial protection of minors in good time with regard to their departure from national territory, opposition to departure may take place, exceptionally and as a warning, by means of a statement communicated to SEF by those who invoke and prove, under the terms of the Civil Code, legitimacy in safeguarding the integrity and interests of the minor."
This alert will be "entered in SEF's Integrated Information System for a maximum of 90 days if the interested parties obtain and send SEF, within the first 30 days, a copy of the request for confirmation of the objection in the context of legal proceedings, namely civil guardianship or promotion and protection proceedings, so that it can assess the need for it in the interests of the minor, which is a condition for communicating the alert to the National SIRENE Office and entering it in SIS", according to paragraph 7 of the aforementioned article.
To this end, SEF services should preferably be contacted by e-mail at DCID.UCIPD@sef.pt, in order to ensure that supporting documentation is sent, and the respective border posts should also be contacted by telephone, whose contact details can be accessed via the following link: https://www.sef.pt/pt/Pages/contactos-aereos.aspx.
The documents to be sent essentially consist of a declaration, dated and signed, with full identification of the minor and the opponent, their address and contact details;
A copy of the opponent's identification document;
A copy of the minor's birth certificate, issued less than 6 months ago.
Copy of the agreement and/or decision on the regulation of the exercise of parental responsibilities, if any.
Subsequently, a court decision must be obtained refusing to allow the minor to leave Portugal, under the terms and for the purposes of paragraph 1 and subparagraphs b) and c) of paragraph 2 of the aforementioned article 31-A.
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Finally, it should be emphasized that subtracting a minor constitutes a crime, punishable under the terms of Article 249(1)(a) of the Penal Code.
Legislation referenced:
Civil Code
Penal Code
Decree-Law no. 83/2000, of May 11
Law no. 23/2007, of July 4th
Hague Convention of October 25, 1980, on the Civil Aspects of International Child Abduction
Regulation (EC) no. 2201/2003, of November 27
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