Right to family life of children whose parents want to place them in institutional care

https://doi.org/10.63189/NAWB7635

1.     Introduction

The United Nations Convention on the Rights of the Child is known as the “Magna Carta” of the rights of the child. The Czech Republic, or former Czechoslovakia, acceded to the Convention soon after its adoption.[1] Because the accession occurred in the 1990s, many of the Convention’s provisions had to be paraphrased into a series of national laws, although the Convention was directly applicable in the country according to constitutional law. Let us particularly emphasise the best interests of the child as a primary consideration in all actions concerning the child, irrespective of whether they are undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies; the child’s participation rights; and the child’s rights to fair trial in all relevant court proceedings. The child’s key or fundamental rights include the right to know his or her origin or parents and, as far as possible, be cared for by them. Therefore, it is presumed that the child has the right to family life with his or her parents, that is, the family of origin.

On the other hand, the Convention on the Rights of the Child, States Parties respects the responsibilities, rights, and duties of the child´s parents to provide, in a manner consistent with the child’s evolving capacities, appropriate direction and guidance to the child in the latter’s exercise of the rights recognised in the Convention. However, in accordance with the Convention’s website, ‘children are not just objects who belong to their parents and for whom decisions are made, or adults in training. Rather, they are human beings and individuals with their own rights’.[2]

Family life varies among individuals and often involves various problems. For instance, what are the obligations or rights of the parents of a child who is causing educational problems? How should the parents proceed? It is assumed that, first, the parents should try to solve their child’s educational problems in the gentlest possible means. They should know that they can ask the state authority for help, particularly assistance regarding the social and legal protection of children. We consider the court’s removal of a child from his or her family against the parents´ wishes an extreme solution to a family law crisis. Entrusting the child in alternative care must be considered an exceptional, subsidiary, or ultima ratio solution.[3] In general, child rights must be considered fundamental rights and protected as values or principles of the legal order.[4] However, what happens when the child’s parents themselves request his or her placement in institutional care?

2.     Law in books

According to the Convention, the child has the rights to (a) be informed; (b) express his or her views and wishes; (c) influence, by his or her opinion, decisions; and (d) completely determine, by his or her opinion, the decisions.[5] Accordingly, the Civil Code (Act No. 89/2012 Sb., as amended; hereafter referred to as CC) requires parents to inform their child of everything that enables the child to form his or her own opinion on any matter and communicate it to them before making any decision that affects the child’s interests. However, this requirement does not apply if the child is unable to properly receive the message, form an opinion, or communicate it to his or her parents. The parents shall pay due attention to the child’s opinion and take it into account when making decisions (Section 875, para 2, CC). The court has a similar information obligation towards a child in case it decides the latter’s case (Section 867, CC). Further, it is noted that the child must receive information about the possible consequences of compliance with his or her perspective or those of any decision in a case or matter concerning him or her. To strengthen the child’s participatory rights, the CC establishes a rebuttable presumption of the law according to which a child over 12 years of age is presumed to be able to receive information, form his or her own opinion, and communicate it (Section 867, para 2, the second sentence, CC). Usually, the child’s parents, who are the holders of parental responsibility, defend the child’s best interests.[6] However, if there is any potential conflict of interest, the court appoints a guardian ad litem for the child (Section 948 ff, CC).

Regarding public law, according to the so-called Children Act (Act No. 359/1999 Sb., on Socio-Legal Protection of Children, as amended; hereafter referred to as ChildA) a child who can form his or her own opinions has the right, for the purposes of social and legal protection, to express the opinions freely in all discussions on matters affecting him or her, even in the absence of parents or others responsible for the child’s upbringing. Further, the child’s views shall be given due weight, as appropriate to his or her age and mental maturity, in consideration of all matters affecting him or her. Finally, the child who is able, in consideration of his or her age and intellectual maturity, to assess the impact and significance of decisions arising from judicial or administrative proceedings to which he or she is a party or other decisions related to his or her person shall receive information from the authority for the social and legal protection of children on all relevant matters concerning his or her person. Further, a child over 12 years of age shall be deemed able to accept information, form his or her own opinion, and communicate it (Section 8, para 2, 3, ChildA).[7]

According to civil procedural law (Act No. 99/1963 Sb., as amended; further CC), the child is the subject, not the object, of court proceedings. The child’s procedural capacity, that is, the ability to act independently before the court, depends on his or her capacity to act or the degree of his or her intellectual and voluntary maturity in relation to his or her age. Therefore, a minor who is not fully capable of acting independently is usually unable to act independently in court and requires a representative to act for him or her. In principle, the child’s parents, who are the holders of parental responsibility, are allowed to represent him or her by the operation of law.[8] As mentioned earlier, parents usually defend the best interests of their child; however, if there is a potential conflict of interest, the court appoints a guardian ad litem to the child (Section 948 ff, CC). Finally, to ensure the effective protection of a minor child who is not fully capable of exercising his or her legal capacity in the often demanding court proceedings, the law provides for support representation by a legal representative based on the decision of the chamber’s president (§ 23, CPC).[9]

3.     Law in action

Although ‘law in books’ offers significant scope for children to exercise their participatory and procedural rights, they do not always find their application in practice, as evidenced by a recent decision of the Constitutional Court of the Czech Republic.[10] The Court stated,

In proceedings for interim measures concerning the placement of a minor (close to the age of majority) in an institution providing institutional education, the courts are obliged to give the minor the opportunity to be heard. To do otherwise is contrary to the best interests of the child, a denial of the possibility of exercising participation rights, and an expression of arbitrariness in the application of the law.

According to the cited decision at issue, the parents of a minor complainant requested the District Court to issue an interim order and, subsequently, a judgement on the merits of placing the minor under institutional care. According to the District Court, the 16-year-old complainant’s behaviour was continuously deteriorating and his development was in danger at that time. The minor had been ignoring all his obligations for a long time by living an idle life and not receiving any education. He committed “defective behaviour” and met inappropriate people who endangered his development. Subsequently, the Regional Court dismissed the complainant’s appeal, because it had already ruled on the merits. This is the reason why the applicant´s guardian lodged a constitutional complaint ad litem against both decisions.

The Constitutional Court found several errors in the civil courts’ procedure. The complainant was neither heard nor represented by a guardian in the District Court proceedings for an interim measure. Further, he was not heard in the proceedings before the Regional Court. The Regional Court sought the applicant’s views from the guardian and was satisfied with a single sentence, that is, the minor had asked for the annulment of the interim measure. However, the Constitutional Court clarified that such a procedure could not be approved. If the courts considered that the minor had not chosen the “right path in life” and that there were reasonable doubts regarding the impairment of his normal development, they had the duty to ascertain his opinion on the present case. This means listening to him and understanding his other ideas about the future. From the complainant’s statements, it could have become clear whether, in his case, where his parents had decided to give up personal care for him, there were other possible ways of alternative care or the provision of housing. The Constitutional Court stated that placing a minor in institutional care should always be considered a last resort, or an ultima ratio option. Finally, the Court found that the contested decisions had violated the applicant´s fundamental right to communicate his point of view and his right to be heard in judicial proceedings guaranteed by the Convention on the Rights of the Child, as well as his right to judicial protection and right to have the case heard in his presence guaranteed by the Charter of Fundamental Rights and Freedoms (Constitutional Act No. 2/1993 Sb., as amended). Finally, his right to a fair trial guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms was violated, as well.[11]

4.     Conclusions

Accordingly, the rights of the childguaranteed by the Conventionon the Rights of the Child and national legislation are not fulfilled in all cases. Sometimes, evenparents are unwilling, unable, or incapable of caring for their children. They may fail to provide protectionfor their child,completely negate the child’s right to family life, and harm the child. It is alarming that even the authoritiesforthe social and legal protection of childrenoften do not fulfil therightsof the child. Their protection is often completely formal. Sometimes, the poor practices of these administrative authorities go hand in hand with the bad practices of courts. The child is not given space in the courtroom, which violates his or her participation rights and right to a fair trial. Currently, institutionalcare is overused in the Czech Republic.[12] It is emphasised that in any action concerning a child, it is necessary to start from the idea that ‘the child who threatens is at risk’.[13] Alternative care, such as foster care by close relatives, grandmothers, oraunts, should be sought only when it is not possible for the child to remain in their parents’ care, that is, if the court concludes that the child’s parents are not suitable caregivers or the child cannot expect anything good from them.

[1] It was published under No. 104/1991 Sb.

[2] See https://www.unicef.org/child-rights-convention (accessed on 15th February 2024).

[3] For details, see Králíčková, 2022b, pp. 83 ff.

[4] For the human rights concept of family law, see Králíčková, 2010, p. 11 ff.

[5] Towards the rights of the child, see Martiny, 2017, pp. 737 ff.

[6] See Králíčková, 2022a, pp. 73 ff.

[7] See Krausová, Novotná, 2006, pp. 1 ff.

[8] See Králíčková, 2022a, pp. 73 ff.

[9] For more details on the concept of procedural rights of the child, see Šínová, 2016, pp. 207 ff.

[10] Constitutional Court of the Czech Republic, case No. II ÚS 2225/23 from 1st November 2023.

[11] It was published under No. 209/1992 Sb.

[12] See the criticism on institutional care made by the United Nations Committee on the Rights of the Child https://www.ohchr.org/en/press-releases/2011/06/committee-rights-child-reviews-report-czech-republic (accessed on 15th July 2023).

[13] For more details, see Radvanová, 2015, pp. 1 ff.

References

Králíčková, Z. (2010) Lidskoprávní dimenze českého rodinného práva (Human Rights Dimension of the Czech Family Law). Brno: Masarykova univerzita.

Králíčková, Z. (2022a) ‘Czech Republic: The Content of the Right to Parental Responsibility’ in Sobczyk, P. (ed.) Content of the Right to Parental Responsibility. Experiences—Analyses—Postulates. Budapest, Miskolc: Central European Academic Publishing, pp. 73 – 104.

Králíčková, Z. (2022b) ‘The Rights of the Child at Risk’. Law, Identity and Values. Budapest: Central European Academic Publishing, 2022/2, pp. 83 – 100. 

Krausová, L., Novotná, V. (2006) Sociálně-právní ochrana dětí (Social–Legal Protection of Children). Praha: ASPI.

Martiny, D. ‘Práva dítěte v rodinném právu—evropské tendence’ (‘The Rights of the Child in Family Law—European Trends’). Právník, 2017/2, pp. 737 – 750.

Radvanová, S. et al. (2015) Rodina a dítě v novém občanském zákoníku (Family and the Child in the New Civil Code). Praha: C. H. Beck Publishing House.

Šínová, R. et al. (2016) Rodičovská odpovědnost (Parental Responsibility). Praha: Leges.

Constitutional Court of the Czech Republic: Case No. II. ÚS 2225/23 from 1st November 2023.