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Custody Arrangements for Minors Approaching Adulthood Should, as a Matter of Principle, Respect their Opinions

The Second Panel of the Constitutional Court (Justice-Rapporteur David Uhlíř) upheld the constitutional complaint of the petitioner - a minor - and annulled the ruling of the Municipal Court in Prague of April 12, 2022, on the ground that it was contrary to the best interests of the child under Art. 3 (1) of the Convention on the Rights of the Child, the right of the petitioner to a fair trial under Art. 36 (1) of the Charter of Fundamental Rights and Freedoms and the right of the petitioner to be protected from unwarranted interference with private and family life under Art. 10 (2) of the Charter of Fundamental Rights and Freedoms.

The petitioner is 14 years old. The subject matter of the proceedings before the ordinary courts was the modification of his custody and the substitution for the mother's consent to enroll him in another primary school (in the father's place of residence) by an interim measure. The minor had been in custody of his mother since childhood. In February this year, at the age of 14, he decided to live with his father and, towards the end of a weekend visit, he informed his mother of that decision. He subsequently went to OSPOD (Authority for Social and Legal Protection of Children) with his father where he was interviewed by a social worker - without his parents present - about his views on the family arrangement. During the interview, the petitioner expressed his wish to live with his father and - in this context - change the primary school he attended.

The minor was first put into the father's custody by order of the District Court for Prague 9 by way of an interim measure by which the court also substituted the mother's consent to the minor's enrolment in the primary school near the father's place of residence. Although it was the father of the petitioner who filed the application for the interim measure, the minor himself took steps towards the court and provided the court with his contact details. However, without further inquiry into the petitioner's position, the District Court accepted the report from OSPOD on the interview with the minor, respected the petitioner's position as expressed therein, and granted the father's motion for an interim measure in accordance with the petitioner's wishes.

However, a subsequent order of the Municipal Court in Prague revoked the interim measure. The Municipal Court did not further investigate the opinion of the petitioner. Unlike the District Court, however, the Municipal Court held that the petitioner's opinion did not constitute a fundamental guide to the adjustment of the situation by an interim measure. It emphasized that the relevant circumstances and the opinion of the minor would be ascertained only in the proceedings on the merits. The petitioner disagreed with the conclusions of the Municipal Court and therefore referred the matter to the Constitutional Court. He still lives with his father and studies at the new primary school there.

The Constitutional Court accepted the complaint lodged by the petitioner - a minor, as it had done in similar cases in the past. The petitioner had demonstrably lodged the constitutional complaint himself, represented by an attorney-at-law who was in contact with the petitioner. It is apparent from the contents of the file that the petitioner has an understanding of the role of the Constitutional Court and is able to understand the institution of authorization/power of attorney.

As a key aspect of the present case, the Constitutional Court identified respect for the position and standpoints of the petitioner (a minor) who is close to adulthood and is therefore already able to formulate his own independent opinion on the courts' decisions about his life and to perceive the consequences of his standpoints.

However, the District Court, without hearing the petitioner, effectively granted the petitioner's wishes and respected his standpoint as expressed to the social worker of OSPOD. Based on the mother's appeal, the Municipal Court subsequently emphasized in the contested decision that the expression of the opinion of a minor over the age of 12 years as to the adjustment of his or her circumstances was not the sole criterion for the court's decision-making, which we can agree to as a general rule of thumb. However, it disregarded the specific circumstances of the present case, which concerns a young person, rather than a 'child', a minor who faces no problems in his upbringing, is able to formulate his views independently and sensibly and whose parents' ability to look after him is essentially comparable.

According to the Constitutional Court, the outcome of court proceedings concerning the custody of a minor approaching the age of adulthood should certainly not have been a conclusion that the opinion of the young person on the setup of his or her own life is of no weight with the public authorities. After all, the legal system also views the person of the petitioner, taking into account his age, primarily as a subject of rights and obligations and not as a mere object of judicial decision-making. In a few months' time, the petitioner will be self-sufficient in employment matters (albeit with some limitations) and will be criminally liable under a special legal regulation. He will be able to legally begin training for a pilot's license as well as obtain a driving license for a motorcycle.

According to the Constitutional Court, the opinion of a child who is approaching adulthood cannot be disregarded in any proceedings before the ordinary courts concerning decisions about his or her life. This also applies to proceedings regarding interim measures. That general requirement is reflected in the obligation imposed upon the ordinary courts to ascertain reliably the opinion of the young person. It is also reflected in the duty of the courts to regard the wishes of the young person as an essential guide in seeking his best interests. Lastly, the courts are obliged to respect the young person's opinion, in particular where the petitioner is able to express his or her opinion on his or her best interests and to understand the consequences thereof, when the minor does not show any problems in their upbringing and the ability of both parents to provide for his or her welfare is essentially equivalent. That was precisely the case in the matter before the Constitutional Court.

Thus, according to the Constitutional Court, a custody arrangement for a minor approaching adulthood which goes against the duly established opinion of the minor - in a situation where there are no specific circumstances reasonably justifying a deviation from his or her standpoint - constitutes an interference with the private and family life of the child within the meaning of Art. 10 (2) of the Charter of Fundamental Rights and Freedoms and also violates the principle of the best interests of the child under Art. 3 (1) of the Convention on the Rights of the Child.

The Constitutional Court concluded this opinion by noting that parents themselves often contribute to the escalation of conflict within the family. However, they must be prepared that in all proceedings concerning decisions on children, the opinion of minors approaching adulthood will be sought procedurally and given due weight. Undoubtedly, the opinion of an adolescent child expressed in proceedings before ordinary courts may change in the future. However, the approaching adulthood also brings with it the responsibility of the young person for the consequences of his or her own poor decision.

Lastly, the Constitutional Court pointed out that of the petitioner, as a young person, cannot be "pacified" by one of the parents and a hitherto valid decision to entrust a minor to the care of one of the parents cannot be enforced by force if the minor has strongly expressed that he or she does not wish it to be so.