Opinion (Rogério COPETO / Official GNR): PARENTAL RESPONSIBILITIES AND DOMESTIC VIOLENCE.
The publication of Lei n.º 24/2017, of 24 May, approved in the Assembly of the Republic unanimously on 7 April and will enter into force on the next day 23 June, It aims to promote the urgent regulation of parental responsibilities in domestic violence situations (CEO) and other forms of violence in the family context.
Rogério COPETO
Lieutenant Colonel of the GNR
Master in Law and Security and Homeland Security Auditor
Head of the Education Division / Command Doctrine and Training
It is common knowledge that the crimes committed in the family context, as VD or sexual abuse, cause irreversible damage to a family, leading to marital rupture and consequent regulation of parental responsibilities, where there are children, verifying that sometimes are not taken care of the best interests of children, or adequate protection to victims.
Where, by reason of the commission of a crime in the family context, are open multiple processes, to individually treat each situation. A criminal case for possible criminal and civil guardianship proceedings, for the regulation of parental responsibilities, elapsing the same in different courts, except in small regions, where the same judge tutelage all processes, but still subject to the rules of the different branches of law, as it is the Criminal Law and Criminal Procedure, the Family Law and Children and Civil Law.
For this reason, It checks not infrequently, that at the same time as it applies in the criminal process, one constraint measure removal of the aggressor, in the process of regulation of parental responsibilities is allowed at the same offender being with children, and this situation, pointed out by those who deal with these cases, as responsible for the increase of conflicts between parents, leading to continued violence, parental alienation, can in severe cases culminate in murder, all because there is no communication between Courts.
Therefore it is expected that the changes introduced by Law No. 24/2017 of 24 May, in various degrees, which Bill No. 345 / XIII It is by the Parliamentary Socialist Group, may contribute to the prevention of the most serious cases of VD, particularly homicides in marital context, allowing in the process of regulation of parental responsibilities to take into account the enforcement measures applied in criminal proceedings.
So, Law no 24/2017 of 24 May, to promote the urgent regulation of parental responsibilities in situations of domestic violence, made changes in several diplomas, particularly in the Civil Code, na Lei n.º 112/2009, of 16 of September, the arrangements applicable to the prevention of domestic violence and the protection and assistance of victims, the Criminal Procedure Code, the General Administration of Civil Procedure and the Child Protection Law No. 75/98, of 19 November, on the guarantee of maintenance for minors.
The Civil Code was amended Article 1906º-A (Regulation of parental responsibility regarding the crimes of domestic violence and other forms of violence in the family context), as follows: "For the purposes of paragraph 2 the previous article, it is considered that the joint exercise of parental responsibilities may be deemed contrary to the child's interests: a) For decreed measure of coercion or applied additional penalty of contact between parents ban, or; b) Are at serious risk the rights and safety of victims of domestic violence and other forms of violence in the family context, as maltreatment or sexual abuse of children."
On Amendment to Law No. 112/2009, of 16 of September, It was added No. 4 Article 31, as follows: "4 – The measure or enforcement measures involving the restriction of contact between parents are immediately communicated to the public prosecutor who serves on the competent court, for establishment of effects, matter of urgency, the respective regulatory process or change the regulation of the exercise of parental responsibilities". In the law 112/2009 is also deleted Article 37-B (Mandatory reporting of court decisions), which required the reporting of stringent coercive measures of contacts between parents, the Courts of Family and Children, when that decision became final transitasse, no processo criminal por VD.
The Criminal Procedure Code was added No. 4 to Article 200, as follows: "4 – The application obligation or obligations involving contact constraint between parents are immediately communicated to the public prosecutor who serves on the competent court, for establishment of effects, matter of urgency, the respective regulatory process or change the regulation of the exercise of parental responsibilities".
The General Board of Civil Procedure were amended Guardianship the articles 24a and 44a, as follows: Article 24a (Inadmissibility of the use of specialized technical hearing and mediation), "The use of specialized technical listening and mediation, articles mentioned in the previous, It is not allowed between the parties when: a) For decreed measure of coercion or applied additional penalty of contact between parents ban, or; b) Are at serious risk the rights and safety of victims of domestic violence and other forms of violence in the family context, as maltreatment or sexual abuse of children". Article 44-A (urgent regulation), "1 – When is decreed measure of coercion or applied additional penalty of prohibition of contact between parents or is in grave risk the rights and safety of victims of domestic violence and other forms of violence in the family context, as maltreatment or sexual abuse of children, prosecutors requires, no later than 48 hours after knowledge of the situation, regulation or alteration regulating the exercise of parental responsibilities. 2 – Fined the application, parents are cited for conference, to make us 5 immediate days. 3 – Whenever the parents do not agree, or any of them missing, It is fixed provisional arrangements pursuant to Article 38, followed by her subsequent accordance with Articles 39 and following of this law".
Na Lei n.º 75/98, of 19 November, changed No. 2 Article 1, to read as follows: "2 – Payment of benefits to which the state is obliged, under this law, ceases on the date the minor reaches the age of 18 year old, except in the cases and circumstances referred to in paragraph 2 Article 1905.º the Civil Code". O No 2 1905º of the Civil Code provides artº holds for after the age, and until the child reaches 25 years, the pension determined for their benefit during the minority.
By analyzing the changes mentioned above it can be seen that the implementation of measures involving contact constraint between parents are immediately notified to the public prosecutor for prosecution matter of urgency of regulation or modification of regulating the exercise of parental responsibilities, can this joint exercise of parental responsibilities be deemed contrary to the child's interests if enacted measure of coercion or applied additional penalty of contact between parents ban, the same applies when they are at grave risk the rights and safety of VD victims or other forms of violence in the family context, as maltreatment or sexual abuse of children, taking these measures in order to strengthen communication between the Criminal Court and the Family Court and Juvenile, ensuring that the process control is done in the shortest time.
We finished to give three resolutions account of Parliament that have been published in recent days, namely No. 100/2017, which recommends to the Government to provide a new National Plan for Gender Equality, Citizenship and Non-Discrimination and evaluation of the effectiveness of the electronic bracelet in the RV crime, a n.º 101/2017, recommending that the Government programming, VD to combat sensitization and debureaucratisation, e a n.º 107/2017, which urges the Government to adopt VD prevention and control measures, checking up so so far, this legislature will probably be the one that most diplomas produced in such a short time, for the protection of childhood and youth and the prevention of VD, knowing however that we are profuse in the laws of production and little proficient in their application.
