Current Affairs

Výpis aktualit

Courts should assess stability of the educational environment when deciding on pre-adoptive care

III. ÚS 794/22

The Third Panel of the Constitutional Court (Justice Rapporteur Ludvík David) annulled the judgment of the Regional Court in Ústí nad Labem of 7 December 2021, ref. No 96 Co 190/2021-69, and the judgment of the District Court in Most of 21 May 2021, ref. No 53 Nc 11504/2021-45. The decisions violated the complainant’s constitutionally guaranteed rights to protection of private life under Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 10(2) of the Charter of Fundamental Rights and Freedoms, as well as to judicial protection under Article 36(1) of the Charter.

The complainant is the husband of a minor girl’s mother, who sought a court order transferring the minor to his custody prior to adoption. He is raising the girl in a shared household with her mother (his wife) and their son. The girl never lived in a household with her biological father; she was born at a time when he and her mother lived together briefly as companions. The minor girl’s father was a party to the proceedings before the general courts and consented to the adoption. He is currently not paying maintenance for his daughter and prefers his current family. The girl has been living in the same household with her mother and the complainant for seven years. The District Court in Most rejected the complainant’s application. The Regional Court in Ústí nad Labem then upheld the judgment of the Court of First Instance, stating its opinion that pre-adoptive care was premature for the time being, as there still might be some relationship between the minor and her father.

In his constitutional complaint, the complainant sought the annulment of both judgments of the general courts, claiming that they violated his constitutionally guaranteed right to judicial protection under Article 36(1) of the Charter, the right to equality of parties to the proceedings under Article 37(2) of the Charter and the right to protection of private life under Article 10(2) of the Charter. The complainant further alleges a violation of Article 3(1) of the Convention on the Rights of the Child caused by misinterpretations of the best interests of the child legal test.

The Constitutional Court upheld the constitutional complaint and annulled the contested judgments. The general courts violated the complainant’s right to respect for his private life and to protection against unwarranted interference therewith, as well as the right to due justification of judicial decisions. According to the Constitutional Court, the courts’ interpretation of the legislation would ultimately prevent pre-adoptive care without due justification. 

Although a fundamental right to adoption is not guaranteed to individuals by the constitutional order (nor by international obligations), the Plenum of the Constitutional Court has already found a violation of human dignity in connection with the right to protection against unwarranted interference with private life and the right to respect for private life (judgment of 14 June 2016, file No Pl. ÚS 7/15). The best interests of the child is the primary consideration in any decision-making by public authorities relating to the rights of the child. However, particularly in cases requiring judicial intervention, the best interests of the child are not the “be-all and end-all”. They are closely intertwined with the often complicated family relationships the courts have to assess. Therefore, the courts should take account of circumstances such as the emotional relationship between the child and the parent and its maintenance, the stability of the child’s environment or the desirability of its changing or alternation, the methods and degree of parental involvement in the care and upbringing of the child, but also, for example, the daily routine taking into account the distance from home to school and the child’s extracurricular activities or the flexibility of the parents’ employment.

In the complainant’s case, the involvement of the complainant as the mother’s new partner (and spouse) in the upbringing and maintenance of the minor became the core of the general courts’ consideration. In doing so, the courts based their findings only on the gradual weakening or loss of the relationship between the girl and her biological father, which the authority for social and legal protection of children attributed solely to the minor’s mother. 

According to the Constitutional Court, both courts based their decisions solely on their intuition, or rather their notion of the situation, without proper support in facts. Moreover, they pointed the complainant towards an indefinite point in the future with the promise that it was too early for pre-adoptive care now. Therefore, they accepted that the situation might change in the future, but made the complainant’s future new application conditional on the failure of the attempt to re-establish a relationship with the biological father. However, they did not provide any “guidance” as to how the relationship between the biological father and the girl should be restored when, moreover, the father had already agreed to the adoption by the complainant. This was the decision of the courts in a reality where the girl had demonstrably been living with the complainant, her mother and her sibling in a common household and had thus formed a functioning family for seven years.

The Constitutional Court emphasised that although contact between the biological father and the child is required by case law, the reality cannot be ignored if the life paths of both parents and their daughter are heading in completely different directions, and apparently irreversibly so. It also agreed with the constitutional complaint’s argument that the courts were attempting to “discipline” the minor's parents, to the detriment of her best interests. 
For further proceedings after the annulment, the Constitutional Court summarised that given the established family situation in the present case, it favours the stability of the educational environment, which, after establishing the complainant’s eligibility for pre-adoptive care, opens up the possibility of future adoption of the minor. The contrary and inadequately explained legal opinion of the two general courts, referring the petitioner to “conditionally” wait for pre-adoptive care until an unspecified point in the future, took away the complainant’s realistic chance for an early adoption.