2010/04/13 - II. ÚS 485/10: Genuine Reasons for a Parent´s Lack of Interest

13 April 2010

HEADNOTES

The

proceedings according to the provisions of § 180a of the Civil Procedure

Code, in connection with the provisions of § 68 of the Family Act, are a

serious infringement of parental rights, and the subject of the same is

restriction of parental responsibility, as an early stage of the parent

being deprived of the same (adoption of the child). The same conclusion

must be arrived at also when using the teleological method of

interpretation, when the purpose of adoption is to compensate, for the

minor, the lack of a stable family environment in instances when the

consanguineous parents are not able or willing to provide the same; the

originating relation between the adoptee and the adopter is the same as

that between the parents and children. Even though these proceedings

are, according to the hierarchy of the Civil Procedure Code, classified

as separate, it is indubitable that such proceedings, due to their

subject and consequences, must be considered a special type of

proceedings on granting, restricting or depriving parental

responsibility pursuant to the provisions of § 176 of the Civil

Procedure Code.

Should

the Constitutional Court admit the interpretation adopted by the

ordinary courts, this being that in the case of proceedings pursuant to

the provisions of § 180a of the Civil Procedure Code, the principle that

the circumstances at the time when a judgment is pronounced are

decisive for the judgment is broken, the period of time for filing a

petition under the provisions of § 180b of the Civil Procedure Code

would be non-proportionally extended, such a period of time being,

compared to the period according to the provisions of § 180a of the

Civil Procedure Code, twice as long anyway. The above-specified facts

are supported also by the circumstance that, with respect to the

complexity of interpersonal relationships and the crisis situation which

come into consideration, it is not possible to determine in gross a

“term” for the parent to commence proper exercise of their parental

rights, when such a term is rather of a subsidiary nature, but it is

necessary to carefully and sensibly assess their conduct and possible

reasons for not showing interest, and weigh up the various measures

which come into consideration; in this, adoption (deprivation of

parental responsibility) is the last resort.

The

Constitutional Court expresses regret that, under the conditions of a

modern democratic law-based state of the 21st century, acknowledging the

principles of social solidarity and pursuing increased protection of

parenthood and family, resulting not only from the fundamental legal

norms of the Czech Republic and international commitments (see, for

example, the Convention on the Rights of the Child, adopted on 20

November 1989 in New York, promulgated through Notification by the

Federal Ministry of Foreign Affairs of the Czech and Slovak Federative

Republic No. 104/1991 Coll.), but in particular from the generally

shared value framework of society, lack of funds may be the cause of

such a draconic separation of a parent and child when the very lack of

resources is, in comparison with other reasons, a problem which is

effectively solvable by the state. Every person in their life may find

themself, through no fault of their own or partly through their own

actions, in a situation which they are not able to solve and which

temporarily keeps them from properly taking care of their own child. In

addition to the family and institutions of civic society, it is then

primarily the state which should play the key role in such cases

(paragraph 24) and should take and must take active steps to renewing

the bond between the biological parent and their child.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


A

Panel of the Constitutional Court, consisting of Chairman Jiří Nykodým

and Justices Stanislav Balík and Eliška Wagnerová (Justice Rapporteur),

adjudicated on 13 April 2010 the matter of a constitutional complaint

filed by complainants (1) L. S. and (2) M. S., a minor in foster care,

represented by Mgr. David Strupek, an attorney at law with a registered

office at Jungmannova 31, 110 00 Prague 1, against a resolution by the

Supreme Court, dated 20 November 2009, file No. 30 Cdo 4096/2009, and a

judgment by the Regional Court in Prague, dated 23 April 2009, file No.

24 Co 138/2009; this with the participation of the Supreme Court and the

Regional Court in Prague as parties to the proceedings; upon approval by the parties to the proceedings without an oral hearing; as follows:


I.

By not respecting the principles contained in Article 2 para. 2 of the

Charter of Fundamental Rights and Basic Freedoms and in Article 8 para. 2

of the Convention on the Protection of Human Rights and Fundamental

Freedoms, the resolution of the Supreme Court, dated 20 November 2009,

file No. 30 Cdo 4096/2009, and the judgment of the Regional Court in

Prague, dated 23 April 2009, file No. 24 Co 138/2009, have violated the

fundamental rights of the complainants guaranteed by Article 36 para. 1

of the Charter of Fundamental Rights and Basic Freedoms and Article 8

para. 1 of the Convention on the Protection of Human Rights and

Fundamental Freedoms.

II. Therefore, these decisions shall be annulled.



REASONING

I.


1.

By a constitutional complaint sent to the Constitutional Court on 17

February 2010, that is within the term of 60 days from the delivery of

the contested decision [the provisions of § 72 para. 3 of Act No.

182/1993 Coll. on the Constitutional Court, as amended by later

regulations (hereinafter referred to only as the “Act on the

Constitutional Court”)], the complainants demanded that the decisions by

the Supreme Court and the Regional Court in Prague, as specified above

in this document, be annulled, this based on the statement that the same

violated their fundamental rights guaranteed in Article 6 and Article 8

of the Convention on the Protection of Human Rights and Fundamental

Freedoms (hereinafter referred to only as the “Convention”).

2.

The constitutional complaint was appended with a petition for

postponement of enforceability of the contested decisions. By a

resolution dated 2 March 2010, ref. No. II. ÚS 485/10-12, pursuant to

the provisions of § 79 para. 2 of the Act on the Constitutional Court,

the Constitutional Court granted the same and postponed the

enforceability of the decisions specified above until the time the

Constitutional Court decides on the constitutional complaint.

3.

The complainants considered that the violation of the right to a fair

trial claimed in the constitutional complaint consisted of the fact that

complainant (2), as a minor, had been represented in the proceedings by

a guardian ad litem who was, at the same time, the person proposing the

measures which, in a crucial way, infringed the family life of the

complainants. In the complainants’ opinion, a conflict of interests

occurred when the person making the proposal and the guardian ad litem –

being one and the same person – undertook, in the name of complainant

(2), procedural acts in such way that the same reflected the opinion of

the person making the proposal/the guardian, such opinion being

specified in the proposal. The law presumes that the body for social and

legal protection of children acts in the best interest of minors –

persons not of legal age – involved in proceedings but the correctness

of the procedural standpoint of such a body, prior to issuing a judicial

decision, is not incontestable, and the parties are not deprived, even

in non-adversarial proceedings, of the rights resulting from the

principles of the adversarial nature of the proceedings. The fact that

the person proposing such a vital decision [note: adoption of a child

without the approval of the parent; hereinafter referred to also as

“adoption”] is at the same time a procedural representative of the child

anticipates, even prior to the judicial decision, that the decision is

in the best interest of the child. In the proceedings, the child then

acts, formally and procedurally, as a person who accedes to the

petition; a dissonant procedural position of the child is effectively

disallowed. In connection to this, the complainants referred to the

Judgment of the European Court of Human Rights in the case of Havelka

and others v. the Czech Republic, dated 21 June 2007, where the European

Court of Human Rights stated that it is regrettable that minor children

were represented, in proceedings on the imposition of an upbringing

administered by a relevant educational institution (“an institutional

upbringing”), by the body for social and legal protection of children

proposing the same. The complainants believe that if this principle is

valid in the case of an institutional upbringing, which is an

educational measure of a temporary nature, then, a fortiori, it must

also be valid in the instance when a measure is being proposed which

would tear apart a family in an irreversible manner. The complainants

further stated that a similar conclusion, this being that a body for

social and legal protection of children – as a party proposing an

institutional upbringing for minors – cannot be at the same time the

guardian ad litem of the children, was reached paradoxically by Panel 24

Co of the Regional Court in Prague itself in a resolution by the same

dated 15 August 2008, file No. 24 Co 332/2008.

4. In the

complainants’ opinion, the infringement of the right to family life

occurred through the positivistic and formalistic approach of the

Regional Court to the wording of the provisions of § 68 of Act No.

94/1963 Coll. on Family, as amended by later regulations (hereinafter

referred to only as the “Family Act”), which not only disallows

individual assessment of circumstances in a case, but it is in conflict

with modern trends in the sphere of the legal arrangement of the right

to family life and with its constitutionally conforming interpretation.

Since this is the most serious form of infringement of the right to

family life, which is definitive and irreversible, it is necessary to

assess in a much stricter way the compliance with all requirements

prescribed by law and constitutional order, i.e. to determine a genuine

lack of interest by parents in minors with respect to specific

circumstances, so that the tearing apart of family’s bonds actually

represents a rightful interference under Article 8 para. 2 of the

Convention; formal compliance itself with the factual attributes of the

case, pursuant to the provisions of § 68 para. 1, clause a) of the

Family Act, cannot suffice. In this connection, the complainants

referred to the Judgment of the Constitutional Court, dated 28 January

2004, file No. I. ÚS 669/02 (N 11/32 SbNU 97; all decisions of the

Constitutional Court are available at nalus.usoud.cz), in which

the Constitutional Court specified that the conditions established in

the provisions of § 68 para. 1, clause a) of the Family Act must be met

completely, and there must not remain the slightest doubt that the same

are not met in the given specific case; also the limits of the

possibilities of the parents, their social status, their social

orientation, the level of general intelligence and education must all be

taken into consideration. However, in the given case, the ordinary

courts have in no way assessed the statement of complainant (1) that the

considered interval of passivity on her part was contributed to by an

unbearable social situation, which did not make it possible for this

complainant to travel for visits for a certain period of time.

Furthermore, the ordinary courts, in their reasoning for the contested

decision, completely inaptly overvalued the significance of phone calls

for a child of the age of 1.5 to 2 years, when their meaningfulness is

somewhat dubious.

5. According to the complainants, another lapse

on the part of the ordinary courts in their determining whether

approval of the child’s parent is necessary as regards adoption of the

child consists of non-compliance with the positive obligations of public

power as were determined by the European Court of Human Rights in their

Judgment, dated 8 July 1987 in the case of W. v. the United Kingdom. In

said decision, the European Court of Human Rights stated that when

making a decision concerning whether approval by a parent for the

adoption of the child is required, maximum protection against

arbitrariness is necessary. The relevant deliberations by the

authorities of public power must contain deliberations concerning the

standpoint and interests of the consanguineous parents, and such

authorities must also properly deal with the same. This may take place

on the basis of continuous monitoring, as well as on the basis of

regular contact and communication between the employees of the relevant

authority and the parents. In the given case, the European Court of

Human Rights declared a violation of Article 8 of the Convention, as the

consanguineous parents had not been notified and warned about the

consequences of their actions, including adoption (they were only

notified of the possibility of placing the child into long-term foster

care). In the complainants’ opinion, the body for social and legal

protection of children should have notified complainant (1) of the

possible consequences of her “lack of interest” and actively discussed

and monitored the reasons for the same with her. Filing the petition

should have been preceded by a firm warning on possible adoption

occurring without the approval of the parent. Permanent and irreversible

breakage of the bond between the biological parent and the child cannot

be, in the opinion of the complainants, supported by the principle that

ignorance of the law is no excuse, or by the principle of vigilantibus

iura, this also with respect to the fact that the right to family life

here also works to the benefit of the child, who should not suffer

detriment to their rights only due to the potential negligence or

ignorance of the parent. The complainants have concluded that, with

respect to the issue specified above and the fact that parents from a

problematic social environment or with minimal education are often

unaware of the considerable degree of risk they expose themselves to

through a period of six month’s passivity, proper instructions and a

warning are necessary.

6. That is why the complainants proposed,

with respect to the above facts, that the Constitutional Court, by its

Judgment, annul the decisions of the Regional Court in Prague and the

Supreme Court quoted above. With respect to this, the complainants

stated that the constitutional complaint is also formally aimed against

the decision by the court of appeal on a point of law, even though the

decision is actually correct, since, as expected, the appeal on a point

of law filed by the complainants was rejected as inadmissible. The

complainants, however, on the basis of instructions in the judgment of

the Regional Court, for reasons of being cautious, filed an appeal on a

point of law in the given case, even though from the outset they had

material doubts concerning the admissibility of the same (see the

Resolution of the Constitutional Court, dated 21 August 2009, file No.

II. ÚS 1902/09). If, however, cassation would take place only with

respect to the decision of the court of appeal, the resolution of the

court of appeal on a point of law would be left in a procedural vacuum.

7.

The Constitutional Court requested the parties to the proceedings to

supply their opinions on the constitutional complaint. The Supreme

Court, through the chairman of panel 30 Cdo, JUDr. Karel Podolka, fully

referred to the reasoning of the contested decision and stated that its

correctness was actually not doubted by the complainants; the Court has

not submitted a proposal as a participant for the decision of the

Constitutional Court. The Regional Court in Prague, through the

chairwoman of panel 24 Co, JUDr. Šárka Kamenická, with respect to

reasons for which it was established that adoption of the minor

complainant (2) does not require approval of the mother, complainant

(1), fully referred to the reasoning of the contested decision. As for

the alleged infringement of the right to a fair trial (see paragraph 3),

the Regional Court stated that with respect to the provisions of § 68

para. 3 of the Family Act, the case law quoted by the complainants is

inappropriate since the body for social and legal protection of

children, as the party putting forward the proposal is, by law, in

proceedings pursuant to the provisions of § 180a of Act No. 99/1963

Coll., the Civil Procedure Code, as amended by later regulations, also

the child’s guardian. The Regional Court, just like the Supreme Court,

did not file a proposal as a participant for the decision of the

Constitutional Court.

8. Furthermore, the Constitutional Court

asked the secondary party (the Municipal Office in Dobříš, as the body

for social and legal protection of children, which was the guardian of

the minor in the proceedings) to submit a statement, within the

prescribed term, concerning the constitutional complaint, and instructed

them that should the Constitutional Court not receive such a statement

within the established term, the Constitutional Court would consider

that the Municipal Office has waived its position of a secondary party

(the provisions of § 28 para. 2 of the Act on the Constitutional Court).

The secondary party has not delivered its opinion within the prescribed

term, therefore it has waived its being a party to the proceedings.

9.

Pursuant to the provisions of § 44 para. 2 of the Act on the

Constitutional Court, the Constitutional Court may, upon approval by the

parties, dispense with an oral hearing, if further clarification of the

matter cannot be expected from such a hearing. The parties provided

such approval and the Constitutional Court dispensed with an oral

hearing.



II.


10.

Firstly, the Constitutional Court dealt with the formal requisites of

the constitutional complaint filed, and, in this connection,

particularly with the active standing or capacity to procedural acts of

the minor. Settled decision-making practice of the Constitutional Court

indicates that in situations when a person not of legal age is a

secondary party to proceedings and when the Constitutional Court does

not reject the constitutional complaint, such a person is regularly

provided with a procedural guardian (see, for example, Judgment file No.

III. ÚS 1206/09, dated 23 February 2010). The basis for this consists,

in accordance with the provisions of § 63 of the Act on the

Constitutional Court, of the provisions of § 20 in connection with the

provisions of § 29 para. 1 of the Civil Procedure Code and in connection

with the provisions of § 83 para. 1 of the Family Act. However, this

practice cannot serve as a basis in this case, as the position of the

minor is different (even though, with respect to the facts specified

below, proceedings on limitation of parental responsibility are de facto

concerned). Not even the case solved by Judgment file No. II. ÚS 125/98

(N 105/12 SbNU 87), dated 24 September 1998, which involved minors as

the only complainants in a case of regulation of contacts with their

father, is inspirational. At that time, the minors were, on one hand,

granted capacity to procedural acts in proceedings before the

Constitutional Court with respect to their ages (11 and 12 years) and

intellectual level ascertained by the ordinary courts, but, on the

other, a children care body was appointed to them as their guardian in

these proceedings.

11. It is necessary to proceed from the fact

that any natural person to whose benefit the claimed constitutionally

guaranteed fundamental right or freedom operates, this irrespective of

their legal capacity or age, may be a complainant. The constitutional

complaint is directed against a decision in proceedings pursuant to the

provisions of § 180a of the Civil Procedure Code, which was initiated

upon the petition by a body for social and legal protection of children,

which in such cases should be, by law, the guardian of the child (see

the provisions of § 68 para. 3 of the Family Act). In addition to the

minor, also her mother filed the constitutional complaint, and

authorised an attorney at law to represent also the minor. In the case

under consideration, the Constitutional Court, without feeling any need

to consider another possible guardian for the minor for the proceedings

before the Constitutional Court, when such guardian was given the proper

latitude for submitting an opinion (paragraph 8), and in particular due

to the fact that in the given case there is no risk of a clash between

the procedural interests of the complainants mutually (note: the father

of the minor is not identified in the birth certificate), and with

respect to the nature of the proceedings before the Constitutional Court

(see provisions of § 48 para. 1 of the Act on the Constitutional

Court), inclined to the opinion held by theory. According to such

opinion, if the complainant does not have full legal capacity due to the

absence of age, the constitutional complaint may be filed, in their

stead, by their legal guardian, who will also grant the power of

attorney to an attorney at law (see Wagnerová, E., Dostál, M., Langášek,

T., Pospíšil, I.: Zákon o Ústavním soudu s komentářem / The Act on the

Constitutional Court with Commentary. Prague: Aspi, 2007, page 404,

clause 9). Therefore, the Constitutional Court concludes that

complainant (2), with the approval of complainant (1), her legal

guardian, empowered an attorney at law to file a constitutional

complaint, and thus the formal requirements for the constitutional

complaint were met in the given case (similarly in Judgment file No. II.

ÚS 1945/08, dated 2 April 2009).



III.
 

12.

In order to evaluate the objections and statements of the complainants,

the Constitutional Court requested the file from the District Court in

Příbram, file No. 5 P 36/2008, from which the Constitutional Court

ascertained the following facts decisive for the proceedings on the

constitutional complaint.

13. The Constitutional Court

discovered, from a report by the Municipal Office in Kralupy nad

Vltavou, the social care department (page No. 5), dated 22 January 2007,

that on the basis of a suggestion by the minor’s physician, a visit was

conducted to the household of the complainants in April 2006, and the

mother was informed by the social worker that it was necessary to

improve the condition of the household; but the minor herself seemed in

good order, and necessities for her were provided. The same report

indicates that, in the course of repeated visits, considerable

improvement was witnessed in the household, as well as in the approach

of the mother to caring for the child (May 2006). In January 2007,

another visit was paid to the household of the complainants, when, with

the assistance of the Municipal Police, it was ascertained that the

mother’s boyfriend (note: the alleged father of the child) was

aggressive, and often used physical violence against the mother, who was

afraid that he would also act violently towards the minor. The mother

subsequently approved of the voluntary stay of the minor in a facility

for immediate aid that was offered, to which the minor was transported

on the same day (for more details, see a report dated 9 January 2007,

page No. 36). In the conclusion of the report it is stated that the

mother had an interest in the child and wanted to alter circumstances in

her life so the minor could return to her care. The Municipal Office,

however, reached the conclusion that the mother was not a person capable

of providing proper care for the minor. By a resolution dated 1 March

2007, ref. No. 42 P 22/2007-24, the District Court in Mělník initiated,

on the basis of the report specified above, proceedings on ordering an

institutional upbringing for the minor. The Constitutional Court

discovered, from the report of the Municipal Office in Slaný, the social

and health care department (page No. 33), dated 14 May 2007, that the

mother visited this department in March 2007 and announced that she

wanted her daughter back under her care. She was informed that her new

housing conditions were not suitable (note: a house at the address of

Ž.) for a little child. The report further indicates that perhaps the

mother should move from there to “a place in Moravia”. During a meeting

on 24 May 2007, the mother stated that she did not approve of the

petition to order an institutional upbringing for the minor, that she

had improved her familial circumstances and wanted the minor back under

her care; she was again living with the father of the minor and together

they visited her every two weeks. By a judgment of the District Court

in Mělník, dated 24 May 2007, ref. No. 42 P 22/2007-40, the minor was

entrusted to the care of Fond ohrožených dětí (The Fund for Children in

Need) – Klokánek Hostivice (hereinafter referred to also as the “FOD” or

“Klokánek centre”).
    
14. The Constitutional Court

ascertained, from a report by the FOD (page No. 48), dated 22 January

2008, that the mother “sometimes” visited the minor, the last time being

on 11 August 2007, and since then showed no interest in the minor in

any way and “therefore, according to the provisions of § 68 para. 1,

clause a) of the Family Act, a ‘qualified lack of interest’ has been

demonstrated over time.” The FOD further stated that following the

expiry of such a term, i.e. 11 February 2008, they intended to ask the

competent body for social and legal protection of children to file a

petition for declaring a “half year’s genuine lack of interest on the

mother’s part in the child” to the relevant court of justice so that, in

co-operation with the Regional Office of Central Bohemia, the minor

could be handed to substitute family care in the form of adoption. The

Constitutional Court found out, from a report by the FOD (page No. 52),

dated 8 July 2008, that in the decisive period only one phone call was

registered (on 17 January 2008), and that the mother did not contact the

minor even at Christmas time and on her birthday. For this reason, the

FOD on 12 February 2008 filed with the Municipal Office in Kralupy nad

Vltavou an application for filing a petition to a court of justice for

declaring a lack of interest and, therefore, also legal release of the

child to be put up for adoption (page No. 54). Together with this

announcement, the FOD asked the District Court in Mělník for “assistance

in dealing with the future of the child”, when, through such release,

that is by passing a judgment on declaring a half year’s lack of

interest, a possibility would be given for putting the child up for

adoption. On 27 March 2008, the Municipal Office in Dobříš, the social

care department, filed with the District Court in Příbram a petition for

the issue of a decision on the lack of interest on the part of the

mother in the child (page No. 53), pursuant to the provisions of § 68

para. 1, clause a) of the Family Act. This petition specified that the

phone call mentioned above, from 17 January 2008, included a query by

the mother concerning the condition of the child, and information that

the mother could not travel to visit her since she had no car. The

Constitutional Court discovered, from a report by the FOD (page No. 90),

dated 8 January 2009, that other visits by the mother to the minor at

the Klokánek centre took place on 15 May 2008 and 17 May 2008, and then

the mother and her partner (note: a person different from the child’s

father) visited the child on 16 August 2008, 12 October 2008, 26 October

2008, 9 November 2008, 15 November 2008, 18 December 2008 and 22

December 2008. This report further states that the mother did not

co-operate with the FOD, and did not call or write to the minor. The

Constitutional Court ascertained, from a report from the Municipal

Office in Dobříš, the social care department (page No. 92), dated 2

February 2009, that the mother then lived with her partner and another

minor daughter of theirs, and they wanted the minor under their care,

and that they had been visiting her regularly since May 2008. The

Office, however, insisted on its petition, since as to the date of

filing the same, the mother had shown no interest in the child. A report

by the FOD (page No. 94), dated 2 February 2009, shows that the FOD

carried out an examination of the place of residence of the mother and

concluded that it was not an environment suitable for the permanent

residence of the minor, and the mother and her partner were looking for a

new home.

15. At a meeting held on 4 February 2009, the mother

stated that she had not been able to visit the minor in the decisive

period, she had had no money and been homeless. She had not contributed

to the support of the minor since she “was not told anything about it”.

The guardian of the minor specified that placement of the same in foster

care, to which the mother would be a party and would contribute towards

supporting the minor, is a given. The guardian was asked by the court

whether she insisted on the petition so filed, when adoption was not an

option, after which the guardian stated that she still insisted on the

petition filed. By a judgment dated 4 February 2009, ref. No. 5 P

36/2009-99, the District Court in Příbram decided on establishing “that

the mother, L. S., born .…., showed no genuine interest in the minor, M.

S., born .…., from 12 August 2007 to 1 April 2008.” As for reasons for

its decision, the District Court stated that the report by the FOD

proven that the mother visited the minor for the last time on 11 August

2007 and, until the filing of the petition, i.e. until 1 April 2008, she

had shown no interest in the minor and visited her as late as 15 May

2008. Therefore, she did not show, from 12 August 2007 to April 2008,

consistent interest in the minor through telephoning or writing, she

demonstrated no concern for the condition of her health, behaviour or

development. She did not voluntarily fulfil her statutory maintenance

duty, even though she could have done so, she could have worked or been

registered at the employment office, have co-operated with them and

collected social security benefits. Furthermore, the mother did not

inform the relevant offices of the place of her residence, and her then

place of residence was completely unsuitable for bringing up a minor.

That is, from 9 January 2007 to April 2008, she in no way improved her

familial, social and housing conditions, and did not co-operate with

social care departments in such a way that her situation could improve

and that she might become able to take over the care of the minor. In

conclusion, the court stated that it had assessed the conditions

pursuant to the provisions of § 68 of the Family Act as to the date of

filing the petition.

16. The Regional Court in Prague decided on

the appeal filed by the mother of the minor via a judgment dated 23

April 2009, ref. No. 24 Co 138/2009-113 in such a way that the Court

changed verdict I. of the judgment of the District Court, since that

verdict did not agree with the statutory arrangement pursuant to the

provisions of § 68 para. 1, clause a) of the Family Act in connection

with the provisions of § 181 of the Civil Procedure Code, and determined

that the mother’s approval is not necessary for putting the minor up

for adoption. The Regional Court, beyond the argumentation contained in

the judgment by the District Court, stated that one phone call (on 17

January 2008) cannot be considered as consistent and genuine interest on

the part of the mother in the minor. The mother in the proceedings did

not even declare any objective circumstances which would in the decisive

period of time prevent her from being consistently interested in the

minor: "[b]esides, the mother herself, during the proceedings before the

court of appeal, upon a request for her to possibly provide statements

and evidence of such statements concerning the fact that she, from 12

August 2007 to 1 April 2008, did show interest in the minor, Monika, of

what such interest consisted and how such interest was demonstrated,

since the contents of the file clearly shows that she did not show any

such interest, explicitly stated that at that time she had had no place

to live and she had had no way of travelling to see the minor, and so

she had not taken interest in her” (page 4 of the judgment). The court

of appeal further specified that the mother had started a family with L.

V. (working for over 11 years as a labourer with a single company, with

an income of over CZK 13,000) and cares for her second-born daughter

Denisa (the mother receives a family allowance of CZK 7,500), but she

lives in a house to which she has no right of ownership or lease (note:

the house is owned by an uncle of L. V.), in other words, during the

decisive period of time and essentially until the present time, the

mother has not improved her social conditions, in particular relating to

housing (note: for description of her present housing conditions, see

page 3 of the judgment), sufficiently so that she could personally

resume caring for the minor. In instructions concerning the judgment,

the court of appeal stated that an appeal on a point of law against the

judgment may be filed to the Supreme Court, within a term of two months

from the delivery of the same.

17. The Municipal Office in

Dobříš, the social care department, in its statement concerning the

mother’s appeal on a point of law (page No. 124), dated 23 July 2009,

specified that with respect to the interest of the mother in the minor,

they had reassessed their position, with substitute family care for the

minor in the form of adoption not being feasible, and substitute family

care in the form of foster care in which the mother would actively

participate was agreed on with the mother. The complainant’s appeal on a

point of law was rejected as inadmissible by a resolution of the

Supreme Court dated 20 November 2009, ref. No. 30 Cdo 4096/2009-135,

since the given case concerned neither restriction or deprivation of

parental responsibility or suspension of the exercise of the same, nor

irrevocable adoption [the provisions of § 237 para. 2, clause b) of the

Civil Procedure Code].



IV.


18.

The Constitutional Court declares that the constitutional complaint is

admissible (§ 75 para. 1 a contrario of the Act on the Constitutional

Court), was duly filed and meets other requirements under law [§ 30

para. 1, § 72 para. 1, clause a) of the Act on the Constitutional

Court]. The Constitutional Court proceeded to dealing with the merits of

the same and concludes that the constitutional complaint is justified.

19.

The task of the Constitutional Court is solely the protection of

constitutionality, not control of “common” lawfulness [Article 83 of the

Constitution of the Czech Republic (hereinafter referred to only as the

“Constitution”)]. The Constitutional Court is not called to review the

correctness of the application of “ordinary” law. The Constitutional

Court is entitled to intervene in the decision-making activities of

ordinary courts when a legally effective decision of such bodies of

public power has violated the complainant’s fundamental rights or

freedoms protected by the constitutional order of the Czech Republic,

since fundamental rights and freedoms define not only a framework of

normative content of the applied legal norms, but also a framework of

their constitutionally conforming interpretation and application.

20.

Article 2 para. 3 of the Constitution and Article 2 para. 2 of the

Charter of Fundamental Rights and Basic Freedoms (hereinafter referred

to only as the “Charter”) determine that state power may be asserted

only in cases, within bounds, and in the manner provided by law,

naturally, respecting the principle of proportionality resulting from

the requirements of the state governed by the rule of law (Article 1

para. 1 of the Constitution). If it is not so, an action or an act of

the state power is a manifestation of arbitrariness. As has repeatedly

been emphasised by the Constitutional Court, not each violation of norms

of ordinary law when the same are being applied or interpreted also

causes violation of a fundamental right of an individual. However,

violation of a norm of ordinary law as a result of arbitrariness

(exercised, for example, through not respecting a norm of an imperative

nature) or as a result of an interpretation which is in extreme

contradiction with the principles of fairness, may be capable of

infringing the fundamental right and freedom of an individual [cf., for

example, Judgment file No. III. ÚS 346/01, dated 14 March 2002 (N 30/25

SbNU 237)]. The Constitutional Court intervenes at all times when the

Constitutional Court discovers that there is an element of arbitrariness

in the course of action of the ordinary courts. For example, in

Judgment I. ÚS 534/03, the Constitutional Court stated: “[t]his

violation of the complainant’s fundamental rights and freedoms is

concerned also when an ordinary court fails to see the

constitutional-law significance of the ban on arbitrariness, that is a

resource from the perspective of which it is necessary to proceed to

interpretation of all procedural principles and rules given by ordinary

law. The Constitutional Court reviews the decisions of ordinary courts

also under the situation when the Constitutional Court finds out that

ordinary courts have interpreted regulations in such an extreme manner

that the same strays from the confines of constitutionality. This is the

case also in the situation when the ordinary courts interpret certain

statutory provisions so extensively that they consequently establish an

obligation of an individual to act in excess of the law, whereby Article

4 para. 1 of the Charter is violated. The Constitutional Court has

already adjudicated (for example, by Judgment file No. I. ÚS 546/03)

that the provisions of Article 4 para. 1 of the Charter have two

dimensions. The first of them defines the impact of the provisions of

Article 2 para. 2 of the Charter on individual persons, whilst the

second represents a structural principle of a democratic law-based

state, according to which state power may be exercised only in cases and

within bounds provided by law, and in a manner prescribed by law. In

the same way, establishing obligations by a court is limited by law,

upon simultaneously preserving fundamental rights and freedoms.” In the

opinion of the Constitutional Court, arbitrariness is concerned also in

instances when ordinary courts do not fulfil the obligation to

substantiate properly their decisions in the given respect, that is in

an adequate, rational and logical way [for example, Judgment file No. I.

ÚS 534/03, dated 13 September 2004 (N 126/34 SbNU 285)]; also in cases

when a decision shows extreme disagreement between legal conclusions and

the evidence presented and the factual conclusions inferred from the

same; and additionally in the case when interpretation and application

of “ordinary” law is in extreme contradiction with the principles of

fairness [for example, as a result of exalted formalism – see, for

example, Judgment file No. III. ÚS 94/97, dated 26 June 1997 (N 85/8

SbNU 287)].

21. The Constitutional Court has repeatedly

emphasised in its decision-making practice that from the viewpoint of

examining the contents of a legal arrangement, it is not possible to

rely solely on a linguistic interpretation of the provisions being

applied; relevance particularly pertains to the purpose and meaning of

the legal norm applied, and possibly to other acknowledged methods of

interpretation. In Judgment file No. Pl. ÚS 21/96, dated 4 February 1997

(N 13/7 SbNU 87; 63/1997 Coll.), the Constitutional Court stated that

the “[c]ourt is not absolutely bound by the verbatim wording of

statutory provisions, but may and must deviate from the same in

situations when the same is required for serious reasons by the purpose

of the act, history of origination of the same, systematic nexus or any

of the principles which are based in a constitutionally conforming legal

order as a meaningful whole. In relation to this it is necessary to

eschew arbitrariness; a decision of the court must be based on rational

argumentation.” The Constitutional Court has commented on the issue of

tension between literal and teleological interpretation in a number of

other judgments or opinions [see Opinion file No. Pl. ÚS-st-1/96, dated

21 May 1996 (ST 1/9 SbNU 471), Judgment file No. Pl. ÚS 33/97, dated 17

December 1997 (N 163/9 SbNU 399; 30/1998 Coll.)]. The Constitutional

Court has formulated the primary proposition in connection with this in

Judgment file No. Pl. ÚS 33/97. The Constitutional Court stated that an

unsustainable aspect of the utilisation of law consists of its

application based solely on linguistic interpretation; linguistic

interpretation represents merely a primary approximation to the legal

norm applied, it is a basis for clarifying and explaining its meaning

and purpose (which is also served by a number of other procedures, such

as logical and systematic interpretation, interpretation e ratione

legis, etc.). This approach of interpretation and application has also

been emphasised by the Constitutional Court, for example, in Judgment

file No. III. ÚS 258/03, dated 6 May 2004 (N 66/33 SbNU 155), as well as

Judgment file No. III. ÚS 288/04, dated 16 September 2004 (N 132/34

SbNU 331), in which the Constitutional Court also referred to the

relevance of the teleological method directed at finding the meaning and

operation of the law. In relation to these propositions, it is possible

to say that, on the general basis of deliberations on acceptance of a

conclusion concerning the contents of a legal norm (legal regulation),

the Constitutional Court thus accentuated the importance of the

teleological method of interpretation as an interpretative approach

which must not be omitted from the viewpoint of constitutional law and

which is eligible, in the context of rational argumentation, to

represent a significant corrective in identifying the contents of the

legal norm (see Judgment file No. II. ÚS 3201/08, dated 6 February

2009).

22. Above the scope of rationis decidendi, the

Constitutional Court, in Judgment file No. III. ÚS 1206/09, dated 23

February 2010, pointed to the fact that the Constitutional Court is, in

cases according to the provisions of § 237 para. 2, clause b) of the

Civil Procedure Code, bound to undertake, in necessary cases, correction

of legal opinions which would otherwise pertain to the Supreme Court.

The present system of proceedings on an appeal on a point of law

acknowledges neither a means of correction of a judicial decision nor a

means of unifying case law on the issues in question other than a

constitutional complaint, which is undoubtedly an undesirable situation

and one which does not correspond to the principles of execution of

justice in a law-based state. In Judgment file No. IV. ÚS 128/05, dated

10 May 2005 (N 100/37 SbNU 355), the Constitutional Court stated that a

court of appeal on a point of law must, in interpreting and applying

conditions for admission of an appeal on a point of law, be aware of the

fact that through the same, a party to the proceedings always pursues

protection for their own subjective rights, and thus it is necessary to

seek a relationship of adequate balance between restricting the right of

access to a court, and the purpose of the given type of proceedings on

an appeal on a point of law (which at the same time represents public

interest). Then, the conditions for admission of an appeal on a point of

law under § 237 para. 2, clause b) of the Civil Procedure Code must be

interpreted in such a way that both the obligation determined by the

Constitution on the part of the courts to provide individuals with

protection for their fundamental rights (Article 4 of the Constitution),

and the purpose of the given type of proceedings on an appeal on a

point of law (see clause 21), are fulfilled.

23. When

interpreting the provisions of Article 10 para. 2 of the Charter and the

provisions of Article 8 of the Convention, relating to protection of

family life and respect for family life respectively, the Constitutional

Court, in Judgment file No. II. ÚS 838/07, dated 10 October 2007 (N

157/47 SbNU 53), emphasised that the basis of family relations

traditionally consists of the biological bond of consanguinity between

family members, even though the traditional concept of family has

undergone certain changes over time [cf. Judgment file No. II. ÚS

568/06, dated 20 February 2007 (N 33/44 SbNU 399)]. The basic

constituent of family life continues to be the coexistence of parents

and children (Judgment of the European Court of Human Rights in the case

of Kutzner v. Germany, dated 26 February 2002), since in this very

framework, care and upbringing by the parents, to which the children

have a right under Article 32 para. 4 of the Charter, should take place.

As a result of the entitlement of the legislature to determine details

in accordance with Article 32 para. 6 of the Charter, this fundamental

right cannot be restricted. Pursuant to Article 32 para. 4 of the

Charter, the rights of parents may be limited and minors may be removed

from their parents’ custody against the parents’ will only by a decision

of a court on the basis of the law. In this, according to Article 8

para. 2 of the Convention, the material compliance of infringement of

fundamental rights and freedoms with the law occurs when such

infringement pursues any of the legitimate objectives, and if the same

is necessary in order to attain such objectives; that is, in particular,

if the same is proportional to the pursued objective (see the Decision

of the European Court of Human Rights in the case of Couillard Maugery

v. France, dated 1 July 2004). In the Judgment in the case of Klass and

others v. Germany, dated 6 September 1978, the European Court of Human

Rights stated that exceptions regulated by Article 8 para. 2 of the

Convention require restrictive interpretation, and their necessity in

the given case must be conclusively proven. This means that only such a

course of action by the courts in decision making on rights and

obligations to a minor, which is in accordance with the Family Act at

its formal and material level [cf. resolution file No. I. ÚS 471/97,

dated 15 April 1998 (U 32/10 SbNU 459)], cannot be considered as

illegitimate interference. In other words, it is necessary to examine

the correlation between the public good, represented by the purpose of

adoption, and the fundamental right to family life, which is formally

restrictable by law, but only under the material pre-condition that it

is a measure necessary in a democratic society, and when the pursued

objective cannot be achieved through a more moderate means. It is true

also in this case that the law, or the restriction of the fundamental

rights anticipated by law, must be interpreted in a constitutionally

conforming manner; that is, in particular, in such a way that the

application of such law passes the test of proportionality.

24.

Infringement of the right to family life, including deprivation or

restriction of parental responsibility, represents a very serious

infringement of fundamental human rights, and, therefore, it must be

supported by sufficiently potent arguments motivated by the interests of

the child (see the Decision of the Grand Chamber of the European Court

of Human Rights in the case of Scozzari and Giunta v. Italy, dated 13

July 2000). A lack of funds may be considered to be one of these, but

only in connection with other circumstances (see Judgment file No. II.

ÚS 838/07, or the Judgment of the European Court of Human Rights in the

case of Wallová and Walla v. the Czech Republic, dated 26 October 2006).

In other words, the possibility to place a child in an environment more

suitable for their upbringing cannot in itself justify the violent

removal of the child from its biological parents; such an infringement

of the right of the parents to enjoy family life with their child must,

in addition, be “necessary” with respect to other circumstances [the

Judgment of the European Court of Human Rights in the case of Havelka

and others v. the Czech Republic, dated 21 June 2007]. The bodies of

public power also have positive commitments which are closely related to

effective respect for family life. Therefore, as soon as the existence

of a family bond is proven, the bodies of public power must in principle

act in such a way that such a relation may develop, and adopt suitable

measures for the purpose of reuniting a parent and child (Kutzner v.

Germany, or Judgment file No. II. ÚS 838/07); these positive obligations

include, in addition to active aid regarding personal, social, health

and financial troubles, the obligation to inform parents and properly

instruct them on the possible consequences of their actions (see the

Judgment of the European Court of Human Rights in the case of W. v. the

United Kingdom). The fundamental right to an undisturbed family life as a

subjective public right, then, in accord with the case law of the

European Court of Human Rights, also protects the right of a parent to

have measures adopted by state bodies that focus on renewed coexistence

with the child (see Judgment of the European Court of Human Rights in

the case of Eriksson v. Sweden, dated 22 June 1989), this in as short a

time as possible, with respect to the fact that the simple passage of

time may result in irreparable consequence to relationships between

children and a parent not living with them (see Judgment of the European

Court of Human Rights in the case of Ignaccolo-Zenide v. Romania, dated

25 January 2000).

25. Conclusions contained in Judgment file No.

I. ÚS 669/02 then correspond to the above mentioned facts: "[w]ith

respect to the fact that a decision pursuant to the provisions of § 68

para. 3 of the Family Act is a considerable infringement of the

relationship between parents and children and of the parental

responsibility of the complainants, the conditions established in § 68

para. 1, clause a) of the Family Act must be met completely, and not a

slightest doubt may exist that they are not satisfied in a specific

case. What ensues from the text of the specified provisions is that an

ordinary court must ascertain whether there is a genuine lack of

interest in the child on the part of the parents, and must always take

into consideration the efforts made by the parents and limits of their

possibilities. When deciding on the non-existence of a genuine interest

by parents in the child, the court must primarily evaluate whether the

parents have a genuine inner bond with the children, and if so, which

kind of bond. The court must thus assess also the external

manifestations of parents towards children, towards bodies making

decisions in the case and so on, all this taking into consideration

their efforts and possibilities, their social status, social

orientation, level of general intelligence and education.”
 


V.
 

26.

As an introduction, and to justify the admissibility of the

constitutional complaint, the Constitutional Court believes it necessary

to define the nature and purpose of the proceedings pursuant to the

provisions of 180a of the Civil Procedure Code; that is proceedings on

determination whether approval by the parents of a child is necessary

for putting the child up for adoption, since the very misunderstanding

of such provisions is the basis for the lapses by the ordinary courts

specified below.

27. Pursuant to the former legal arrangement,

the fact whether the approval of a parent is necessary for putting a

child up for adoption was decided upon within the scope of adoption

proceedings, when such a decision was of a prejudicial nature and was

dependent on the result of evidence, but in such a way that the purpose

of adoption was not circumvented. This legal arrangement, however,

collided with the principles of a fair trial, when the same, in

consequence, resulted in denial of the proper protection of rights of

the persons involved, in particular the right of the parents to have the

opportunity to exercise their parental rights as an exercise of

parental responsibility, but also the right of the minor to be taken

care of, through the exercise of parental rights, in the first place, by

their consanguineous parents and to grow up as part of their own

family. The new legal arrangement established the independence of

proceedings on whether approval by a parent for putting a child up for

adoption is necessary, and thus established legal safeguards “so that

the fundamental right of a parent to the exercise of their parental

rights, as part of their parental responsibility towards a minor, ceases

to be accepted and respected only after it is ascertained, in a proper –

just – trial, that is in particular with complete participation by the

parent themself, that a court found reasons for such a conclusion, when

such reasons are determined by law and thus socially and morally

acknowledged” (Hrušáková, M. et. all: Zákon o rodině. Komentář. / The

Family Act. Commentary. 3rd edition. Prague: C. H. Beck. 2005, page

301). As for the nature and consequences of such proceedings, literature

states that “[w]ith respect to the magnitude of legal consequences of

such findings, since adoption of a child without approval of their

parents is a very serious infringement of their parental responsibility,

the law determines that verification of the fact whether the legal

conditions for adoption of a child without approval of the parents are

established shall be undertaken in the form of separate ‘incidental

proceedings’” (Holub, M., Nová, H., Sladká Hýklová, J.: Zákon o rodině.

Komentář. / Act of Family. Commentary. 8th edition. Prague: Linde Praha.

2007, page 232). At a general level, parental responsibility means the

sum of rights and obligations regulating child care, the administration

of the child’s assets and representation of the child in legal

relationships with necessary expression of the obligation to protect the

interests of the child (see Article 32 para. 4 of the Charter).

28.

From the above facts it may be concluded that the proceedings according

to the provisions of § 180a of the Civil Procedure Code, in connection

with the provisions of § 68 of the Family Act, are a serious

infringement of parental rights, and the subject of the same is

restriction of parental responsibility (see also paragraph 25), as an

early stage of the parent being deprived of the same (adoption of the

child). The same conclusion must be arrived at also when using the

teleological method of interpretation, when the purpose of adoption is

to compensate, for the minor, the lack of a stable family environment in

instances when the consanguineous parents are not able (in a very

restrictive sense, paragraph 24) or willing to provide the same; the

originating relation between the adoptee and the adopter is the same as

that between the parents and children (or, the parental responsibility

of a consanguineous parent as a sum of their parental rights and

obligations in relation to the minor is, through adoption, legally

annulled; such parental responsibility passes to the adopter, see

Hrušáková, M., page 272); in principle, approval of a legal guardian for

the child being adopted, usually the consanguineous parent, is required

for said adoption (see the provisions of § 67 para. 1 of the Family

Act). Therefore, it is the right of the parent, within the scope of the

exercise of their parental responsibility, to grant or not approval of

such adoption; such a parent may be deprived of this right only

following compliance with conditions prescribed by law by a decision of a

court in proceedings pursuant to the provisions of § 180a of the Civil

Procedure Code. In other words, even though these proceedings are,

according to the hierarchy of the Civil Procedure Code, classified as

separate, it is indubitable that such proceedings, due to their subject

and consequences, must be considered a special type of proceedings on

granting, restricting or depriving parental responsibility pursuant to

the provisions of § 176 of the Civil Procedure Code.

29. With

respect to the above, the Constitutional Court must state that the

Supreme Court made a mistake when, proceeding from a simple designation

of the proceedings according to the provisions of § 180a of the Civil

Procedure Code and their independence within the scope of taxonomy of

the procedural regulation, irrespective of the purpose of such

proceedings (paragraphs 21 and 22), it purely formally rejected an

appeal on a point of law by the complainant for inadmissibility pursuant

to the provisions of § 237 para. 2, clause b) of the Civil Procedure

Code, since, in its opinion, this was not a case of restriction or

deprivation of parental responsibility or suspension of exercise of the

same, or a case of irrevocable adoption. However, this opinion does not

stand up in light of the facts specified above (paragraph 28), and the

Constitutional Court thus inclined towards cassational action [similarly

in Judgment file No. III. ÚS 405/03, dated 23 February 2006 (N 45/40

SbNU 373)], in relation to the resolution of the Supreme Court contested

by the constitutional complaint (even though the complainant considered

the same as correct, paragraph 6), when such a resolution does not

comply with the requirements of constitutionality, and, in consequence,

is related to the fact that the complainant was barred from claiming “in

a determined procedure” their right at a court of justice (denegatio

iustitiae), which, according to the constant case law of the

Constitutional Court, established a violation of the fundamental right

of the complainant to a fair trial pursuant to Article 36 para. 1 of the

Charter.

30. As for the course alone of proceedings pursuant to

the provisions of § 180a of the Civil Procedure Code, the Constitutional

Court states that the Court does not identify itself with the

conclusions of the ordinary courts and the doctrine on the court making a

decision on compliance with conditions according to the provisions of §

68 para. 1, clause a) of the Family Act as to the date of filing the

petition [see paragraph 15 in fine, or “in this, the court makes a

decision on compliance with these conditions always as to the date of

filing the petition (an exception to the otherwise valid principle

determined in § 154 para. 1 of the Civil Procedure Code)…”, in

Hrušáková, M., page 298)]. The above-specified conclusion is based on a

mistaken interpretation of the period of continual genuine lack of

interest on the part of the parent in the child pursuant to the

provisions of § 68 para. 1, clause a) of the Family Act as a certain

quasi term of forfeiture, when upon the expiry of six months without

demonstrating an interest in the child, the parent “loses” a part of

their parental responsibility to the scope of the right to grant or not

approval of adoption (paragraph 28), when it is not necessary to examine

reasons for such lack of interest, since such a period of time is

sufficient for solving personal problems. Such an interpretation,

however, is constitutionally non-conforming as it leads to

non-proportional restriction of the right to family life of a parent and

a child (paragraph 23). The Family Act determines that approval of a

parent to adoption of a child is not required when, for a period of at

least six months, the parent continually has not shown genuine interest

in the child. It is evident even from a linguistic interpretation of the

provisions in question that such a period was established by the

legislature as a minimal term (“for a period of at least six months”)

and it must be applied as such when examining compliance with the

conditions pursuant to the provisions of § 68 of the Family Act. This in

consequence means that, from the petition of the child’s guardian, it

must be clear that the alleged lack of interest in the child by the

parent lasts at least six months, and such a period of time expired at

the earliest as to the date of filing the petition, otherwise the court

automatically dismisses the petition. If such a condition is met, the

court proceeds to ascertaining the qualified lack of interest in the

child, and the court must also examine the conduct of the parent from

the filing of the petition to the time of the issue of the decision, so

that infringement of the fundamental rights of the parties to the

proceedings is minimised to the greatest possible degree. Furthermore,

the wording of the provisions of § 180b para. 1 of the Civil Procedure

Code, which makes it possible for a parent to apply the rebus sic

stantibus proviso, this at the earliest after the expiry of one year

from legal effectiveness of the judgment, corresponds to such a

conclusion. Should the Constitutional Court admit the interpretation

adopted by the ordinary courts, this being that in the case of

proceedings pursuant to the provisions of § 180a of the Civil Procedure

Code, the principle that the circumstances at the time when a judgment

is pronounced are decisive for the judgment is broken, the period of

time for filing a petition under the provisions of § 180b of the Civil

Procedure Code would be non-proportionally extended, such a period of

time being, compared to the period according to the provisions of § 180a

of the Civil Procedure Code, twice as long anyway. The above-specified

facts are supported also by the circumstance that, with respect to the

complexity of interpersonal relationships and the crisis situation which

come into consideration, it is not possible to determine in gross a

“term” for the parent to commence proper exercise of their parental

rights, when such a term is rather of a subsidiary nature, but it is

necessary to carefully and sensibly assess their conduct and possible

reasons for not showing interest, and weigh up the various measures

which come into consideration; in this, adoption (deprivation of

parental responsibility) is the last resort.

31. As for the

reasons for the decision by the ordinary courts, the Constitutional

Court states that the courts concluded that the complainant had not

shown a continual genuine interest in the minor, when she did not visit

the minor, did not phone her, did not write to her, was not interested

in the state of her health and development, did not contribute to her

support, and, furthermore, in no way solved her personal situation,

especially regarding housing and property conditions (for more details

see paragraphs 15 and 16). The Constitutional Court deems it proven that

during the time considered by the ordinary courts (paragraph 30), the

mother attempted only one instance of telephone contact, which, in

harmony with the opinion of the court of appeal, cannot be considered a

qualified interest in the child pursuant to the provisions of § 68 of

the Family Act. However, the files (paragraph 13) make it absolutely

clear that placement of the child at the Klokánek centre (30 kilometres

from the place of residence of the mother) took place upon approval by

the mother for reasons of the provision of the necessary period of time

for solving her personal problems (domestic violence) and worries for

the safety of the minor. At the time of placing the minor at the

Klokánek centre, the mother lived with her boyfriend (the alleged father

of the minor), on whom she depended in terms of alimentation and

housing, and who committed physical and psychological violence against

her. Furthermore, the files make it apparent that the complainant at

first kept visiting the minor, the last time being on 11 August 2007

(paragraphs 13 and 14), and repeatedly declared that she had an interest

in the child and that she wanted the minor back under her care after

solving her personal problems. During the time of qualified lack of

interest examined by the ordinary courts, the mother was changing

address repeatedly, and for a considerable part of such a period of time

she was, according to her own statement, completely lacking resources

and without lodging. From May 2008, she again started to regularly visit

the minor and made endeavours for her return to the complainant’s care.

The Constitutional Court has nothing left than to state that the

ordinary courts have completely ignored the argumentation of the

complainant, through which she repeatedly explained her passivity in the

relationship to the minor; in addition to this, the ordinary courts not

only did not deal with this argumentation, they even considered the

same to be some “confession” and thus evidence proving the complainant’s

lack of interest in the child (paragraph 16). According to the

Constitutional Court, the argumentation of the complainant is sufficient

for proving objective reasons for which she could not visit the minor

during the decisive period of time, and to a sufficient degree questions

the compliance with the conditions anticipated in the provisions of §

68 of the Family Act (paragraph 25). The Constitutional Court does not

share the rather evasive statement of the court of appeal, that the

mother in no way adapted her personal situation when she actually

established a new and properly functioning family, she provided herself,

within the possibilities available to her, with housing, and has

attempted, according to the instructions of social workers, to establish

adequate housing suitable for bringing up the minor (sic!, oddly

enough, such an environment is ineligible for the upbringing of a

four-year-old minor, while the same is unobjectionable for the

upbringing of an infant), this in addition to regularly visiting the

minor.

32. In the opinion of the Constitutional Court, the

conclusions of the ordinary courts on the necessity of declaration of a

qualified lack of interest on the part of the complainant in the child,

and thus legal release of the child for adoption, do not respect the

conditions defined by constitutional law for infringement of the

fundamental right of the complainants to their family life, as are

specified above (paragraph 23), or they lack a meaningful

interconnection with any constitutionally protected purpose, when such

conclusions formally correspond to the wording of the Family Act, but do

not pursue any of the objectives specified in paragraph 2 of Article 8

of the Convention, and such an infringement is not, for the attainment

of such objectives, “necessary in a democratic society.” In addition,

the necessity of infringement of the fundamental right of the

complainants (a decision pursuant to the provisions of § 68 of the

Family Act) is, in the given case, practically eliminated by the

declaration by the guardian of the minor, when the guardian herself

stated that in the case of the complainant, with respect to the change

of her attitude, the release of the minor for adoption is not given

consideration (paragraphs 15 and 17). The ordinary courts have thus

committed acts of arbitrariness (paragraph 20), when they examined

compliance with the conditions according to the provisions of § 68 of

the Family Act only as to the date of filing the petition (paragraph

30); they have in no way dealt with the argumentation of the complainant

(paragraph 31) and have not taken into consideration the subsequent

conduct of the complainant towards the minor, whereby they violated the

fundamental right of the complainants to a fair trial, which, in

consequence, has lead to an infringement of her right to family life

pursuant to Article 8 para. 1 of the Convention.

33. The whole

case under consideration (including the proceedings pursuant to the

provisions of § 180a of the Civil Procedure Code, ordering an

institutional upbringing, entrusting the minor into foster care, and the

intended adoption) is interwoven with the essential problem of the

complainant, that is her poverty and resultant problematic housing

situation. The Constitutional Court expresses regret that, under the

conditions of a modern democratic law-based state of the 21st century,

acknowledging the principles of social solidarity and pursuing increased

protection of parenthood and family, resulting not only from the

fundamental legal norms of the Czech Republic and international

commitments (see, for example, the Convention on the Rights of the

Child, adopted on 20 November 1989 in New York, promulgated through

Notification by the Federal Ministry of Foreign Affairs of the Czech and

Slovak Federative Republic No. 104/1991 Coll.), but in particular from

the generally shared value framework of society, lack of funds may be

the cause of such a draconic separation of a parent and child when the

very lack of resources is, in comparison with other reasons, a problem

which is effectively solvable by the state. Every person in their life

may find themself, through no fault of their own or partly through their

own actions, in a situation which they are not able to solve and which

temporarily keeps them from properly taking care of their own child. In

addition to the family and institutions of civic society, it is then

primarily the state which should play the key role in such cases

(paragraph 24) and should take and must take active steps to renewing

the bond between the biological parent and their child, the more so in a

situation when the complainant from the beginning expressed her efforts

to cope with her burdensome personal situation under which she found

herself not through her own fault. The Constitutional Court, not

doubting the genuine intentions of the FOD and the bodies for social and

legal protection of children, however, in this connection, must state

that had these bodies devoted the same effort to actively aiding the

mother as they made when obdurately taking a number of steps in order to

restrict her parental rights, the minor would not have had to be in

foster care today, and the possibly irremovable infringement of the

relationship between the mother and the child need not have happened.

34.

Even though it is superfluous with respect to what has been said above,

the Constitutional Court wishes to emphasise that, in accordance with

the case law of the European Court of Human Rights, it is necessary to

infer, from the positive obligations of the state (paragraph 24) and

from the necessity of restrictive interpretation of conditions for

limitation of the right to family life (paragraphs 23 and 25), the

obligation of the state to not only inform parents of the options for

solving their burdensome personal situation and forms of potential help,

but also to notify them of the consequences of their conduct, including

the possibility of restricting parental responsibility or depriving

them of the same (paragraph 28).

35. In conclusion, the

Constitutional Court states that the Court proceeded to the cassation of

the decisions contested by the constitutional complaint for the reasons

specified above, and, therefore, the Constitutional Court has not

further dealt with the objection of the complainant regarding the

position of the body for social and legal protection of children as both

the person putting forward the proposal and the guardian (paragraph 3).

To this, the Constitutional Court stated that it fully identifies

itself with the conclusions of the decision the European Court of Human

Rights in the case of Havelka and others v. the Czech Republic quoted by

the complainant; nevertheless, these do not completely apply to the

case now under consideration, when, in proceedings pursuant to the

provisions of § 180a of the Civil Procedure Code, the body for social

and legal protection of children is not a party to the proceedings, but,

under law, holds the position of guardian of a minor (see the

provisions of § 68 para. 3 of the Family Act). Furthermore, the

Constitutional Court believes it apt to add that they have considered

the possibility of annulling merely the decision of the Supreme Court,

this for reasons specified in paragraphs 26 to 29, but then, with

respect to the nature of the case in which time plays an important role,

proceeded to annulling all contested decisions.

36. Therefore,

the Constitutional Court, for the reasons specified above, granted the

constitutional complaint pursuant to the provisions of § 82 para. 2,

clause a) of the Act on the Constitutional Court, and annulled the

decisions contested by the constitutional complaint pursuant to § 82

para. 3, clause a) of the Act on the Constitutional Court.

Note: Decisions of the Constitutional Court cannot be appealed (§ 54 para. 2 of the Act on the Constitutional Court).