The Constitutional court annulled the resolution of District court for Prague 8 and Regional court in Prague. This presented another opportunity for the court to address the issue of removing children from their parents' care and placing them in children's homes. What led the court to this decision, and what challenges did it face? What arguments did the parents present, and what errors did the lower courts make?
Lower courts decisions prior to the Constitutional Court's ruling
Before the finding of the Constitutional court [1] preceded a judgement of District court in Prague 8 (District court) regarding joint custody , a resolution of District court regarding an initiation of proceedings on institutional care [3], a resolution of the Regional court in Prague (Regional court) regarding a nomination of a guardian of children [4] and at last a resolution of Regional court regarding appeal against the resolution of the District court.
In 2020 the district court placed two minors, a boy and a girl, into the custody of both their parents.[2] The children's care was supervised by the Agency for the Social and Legal Protection of Children (agency) due to the extraordinary conflicting relationship of their parents. During the court's proceedings, the agency did not record any positive progress regarding the parents ́ relationship. District court held that parents had not paid appropriate attention to the negative impact of their relationship on their children.
Two years later, the agency submitted a report to the district court indicating that its supervision was insufficient to minimise risks in the family to an acceptable level. The agency reported that there were no visible improvements regarding the parents' ongoing conflict, which kept on deteriorating
The agency recommended to the district court to impose another educational measure or other appropriate measure. According to the agency's report, a temporary removal from parent's custody seemed to be in the best interest of the children. According to the pediatrician's medical opinion, the joint custody arrangement negatively affected the boy, who was also endangering his younger sister.
The children were represented in court proceedings by their public guardian, the Municipal Office of the City District Prague 18. It represented them in judicial proceedings regarding the deprivation of parental responsibility and imposition of institutional care. The guardian opposed the decision to place the children in institutional care, perceiving it as potentially harmful. Therefore, he recommended the proceedings for the deprivation of parental responsibility to be halted.
On November 15, 2022, the district court issued a resolution initiating proceedings to place the boy in institutional care and ordered the parents to transfer their son to a children's home.
The district court referred to the agency's report, which describes the ongoing conflict between the parents. Both accused each other of abuse; the father questioned the mother's sanity, while the mother failed to comply with court decisions. Additionally, their son faced constant and excessive physical punishment. The district court thus concluded that these circumstances posed a significant danger to the children.
The District Court further noted that the parents had been causing long-term harm to the boy, as no stabilisation of circumstances had occurred since the previous decision. The parents were not communicating with each other, their son was exhibiting inappropriate behaviour, and, moreover, he imposed a threat to his younger sister. The parents appealed this resolution to the regional court. The father disagreed with the length of time his son was to remain in the children's home, while the mother opposed the resolution itself. The Regional Court upheld the District Court's decision, stating that based on the available facts, „an interim solution by preliminary ruling is the right approach”.
What was the outcome of the Constitutional Court's decision?
The Constitutional Court determined that the actions taken by the lower courts were in violation of the fundamental rights of the mother, and by extension, those of her son, as guaranteed by the Constitution.
The district court did not appropriately evaluate what was in the boy´s best interest and also failed to inform him sufficiently during the proceedings. As a result, the district court thus violated both mother´s and son´s right to judicial protection as well as their rights to protection against unlawful intervention in family life and to parenting.
The Regional Court violated the boy's right to participate in the proceedings by failing to communicate appropriately with him regarding his placement in a children's home. State authorities did not inform the boy about the possibility of being placed in such an institution, and the court made no effort to ascertain his opinion, effectively leading to his lack of participation in the proceedings. Additionally, the Regional Court did not take into account the mother’s reference to the findings of the Constitutional Court [6], which she cited in her arguments. The court also failed to give proper consideration to the father's motion to shorten the duration of the preliminary ruling.
The Constitutional Court's reasoning
The Constitutional Court held that the temporality of a preliminary ruling is significant, as its purpose is not to permanently determine the rights and obligations of the participants.
It declared that a child cannot be removed from their parents´ custody solely on the grounds that they could be placed in a better environment for upbringing). If it was that easy to remove a child from their biological family's custody without serious and specific reasons, it would allow for the arbitrary removal of children and their placement with so-called 'better' parents.
Children can only be removed from their parents´ custody temporarily, until a more adequate arrangement can be found. Separation of children from their parents is a solution of the last resort. [7] It is thus acceptable only if “it is necessary for ensuring of protection of some of the child's absolute rights against his parents“.[8] These rights include a right to life, freedom from torture and other ill-treatment and freedom from any kind of violence.
The Constitutional Court criticised the district court for failing to assess the proportionality of the violation of the boy's fundamental rights or to consider what would be in his best interest. It did not explore potential alternatives, such as placing him in the custody of his father or a third party. Additionally, the district court seemed oblivious to the possibility of improving the family situation.
Notes
[1] Finding of the Constitutional court delivered on 25th of April 2023, case no. III. ÚS 484/23. Available from https://www.usoud.cz/fileadmin/user_upload/Tiskova_mluvci/Publikovane_nalezy/2023/3_484_23_AN.pdf.
[2] Judgement of the District court in Prague 8 delivered on 16th of June 2020, case no. 0 P 277/2018-844.
[3] Resolution of the District court in Prague 8 delivered on 15th of November 2022, case no. 0 P 277/2018-1347.
[4] Resolution of the Regional court in Prague delivered on 5th of September 2022, case no. Co 297/2022-1158.
[5] Resolution of the Regional court in Prague delivered on 21st of December 2022, case no. 70 Co 419/2022-1420.
[6] Finding of the Constitutional court delivered on 29th November of 2022 f. n. IV. ÚS 412/22.
[7] See for example judgement of ECHR delivered on 26th of February 2002 No. 46544/99 in Kutzner vs. Germany.
[8] See Finding of Constitutional court delivered on 13th of September 2022 r. n. III. ÚS 3146/21.
Sources
Constitutional court. (2023, May). Umístění dítěte do dětského domova pro neshody rozvedených rodičů neobstálo před Ústavním soudem [press release]. Available from: https://www.usoud.cz/aktualne/umisteni-ditete-do-detskeho-domova-pro-neshody-rozvedenych-rodicu-neobstalo-pred-ustavnim-soudem.
Finding of the Constitutional court delivered on 25th of April 2023, case no. III. ÚS 484/23.
Law No. 292/2013 Coll., on Special forms of judicial procedure law, as amended.
Ministry of Labour and Social Affairs. (2023). Kolizní opatrovník. Available from http://ppvss.mpsv.cz/mpsv/ciselniky.nsf/i/S043.
Ministry of Justice of Czech Republic. (2017). Chci se rozvést. Available from: https://justice.cz/chci-se-rozvest#:~:text=Soud%20m%C5%AF%C5%BEe%20sv%C4%9B%C5%99it%20d%C3%ADt%C4%9B%20do%20p%C3%A9%C4%8De%20jednoho%20z,schv%C3%A1lit%20p%C5%99edlo%C5%BEenou%20dohodu%20man%C5%BEel%C5%AF%20o%20%C3%BAprav%C4%9B%20pom%C4%9Br%C5%AF%20d%C3%ADt%C4%9Bte..
Umístění chlapce do dětského domova pro neshody rodičů před ÚS neobstálo. (2023, 3th of May). Advokátní online deník. Available from: https://advokatnidenik.cz/2023/05/03/umisteni-chlapce-do-detskeho-domova-pro-neshody-rodicu-pred-us-neobstalo/.
Release No. 104/1991 Coll. Of the federal ministry of foreign affairs regarding arranging of Convention of the Rights of the Child.
Release No. 209/1992 Coll., of the federal assembly of the ministry of foreign affairs regarding arranging of Convention on Human rights and fundamental freedoms and subsequent protocols.
Sobotka, R. (2023). III. ÚS 484/23 – umístění dítěte do dětského domova pro neshody rozvedených rodičů neobstálo před Ústavním soudem. Available from: https://ak-vrana.cz/iii-us-484-23-umisteni-ditete-do-detskeho-domova-pro-neshody-rozvedenych-rodicu-neobstalo-pred-ustavnim-soudem/.
Photo
Legal basis of protection of children is laid by Convention of the Rights of the Child. Temuco children, author: Roberto Herrera Pellizzari, 3 February 2009, source: Wikimedia Commons, CC BY 2.0 DEED.
