EAST EUROPEAN LAW CENTER

IA

UNIVERSITY

The Journal of

East European Law
2003! Vol. 10 No. 1
Adoption andlmplernentation ofthe UN. Convention on the Rights ofthe Chud In the CNzech Republic and Slovakia

COLUMB

Zdenka Krajickova

Comment
Adoption and Implementation of the U.N. Convention on the Rights of the Chud in the
Czech Republie and Slovakia
ZDENKA KLkLICKOVA
Adoption is traditionally understood as the acceptance Of a stranger‘s chud as one‘s own and the voluntary assumption of parental obligations by an individual who is not the biological parent of the person adopted. In most legal systems, adoption is understood as an institution of substitute family care and a service for minor children, especially orphans. In the Czech Republic and Slovakia, adoption is considered an “imitation“ or “fiction“ of the biological parent-child relationship (adoptione natura imitatur).1 Contemporary adoption law in the Czech Republic and Slovakia is rooted in Roman law and marked by a trend to respect human rights and to build the rule of law. Steps toward Buropean Union harmonization have been taken by passing new acts not only in the Field of constitutionai law but aiso in the sphere of private law, especiaily family law; by signing international conventions;2 and by introducing a new approach to adoption, discussed herem.3
This defznition does not apply when the adoption serves for inheritance
purposes or for the legitimization of children born out of wedlock. See A.
CHLOROS, Ádoption. In Creation oj Relationships oj Kinship, In Persons and
Family, in THE INTERNATIONAL ENCYCLOPEDIA OF COMPARÁTIVE LAW 12, Vol. IV
(1976).
2 The signing of the Hague Convention on Protection of Children and Cooperation in Respect of Intereountry Adoption, as well as, in the Czech Republic, the passing of the Act on the Social-Legal Protection of Children (Aet. No. 359/1999 Coll.) were the crucial turning points in this field.
The trend to conceptualize adoption as an institution that serves the best interests of the ehud was introduced in the 1970s. See Id. at 12.

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I. TYPES OF ADOPTION
Current Czech and Siovak law recognizes several types of adoption:
1. Adoption may be ciassifíed as “fuil“ or “partiai“ according to the extent of integration of the minor chud in his adoptive family. Full adoption means that the chud hilly and legally joins the adoptive family and obtairts au the rights of a chud born in legal wedlock, includiiig inheritance rights.
2. Adoption may aiso be classified as contractual, as opposed to administrative or judicial. The modem trend appears to be moving away from contractual adoption — based on a contract and used as a device primarily intended to perpetuate the famiiy4 — and toward administrative or judiciai adoption, based on a court decision and having the chud‘ s welfare as its principal purpose. Czech and Slovak law follow this latter concept of adoption.
3. Adoption may aiso be classified as revocable or irrevocabie and permanent. Czech and Siovak law approve both types, aithough revocation of adoption is considered an exceptional recourse available only on serious grounds. In order to ensure that the purpose of the adoption to provide the minor chud with a long-lasting family environment is met, the mutuai suitability of the prospective adopter and the chud, as weil as the professional preparation of the prospective adopter and the proper procedural requirements of adoption are carefhliy considered.5
According to Czech historical regulation (following the Austrian Civil Code, Allgemeines BUrgerliches Gesetzbuch [ABGB] (1811)), adoption was established and terminated by a contract. A residuum of this concept is the possibility of terminating the adoption through a contract made between adopters and adult children, preserved in both the Slovak Act on the Law of Family (1949) and the Czech Act on the Family (Act No. 94/1963 Coll. Czech Family Code, as amended by Act No. 91/1998 Coll). The 1998 amendment to the Czech Act on the Family introduced temňnation of adoption based only on the court‘s decision.
In this respect, see the new detailed regulation in the Act on the Social-Legal Protection of Children (Act. No. 359/1999 Coll.), further discussed herem.

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4. Adoption may be available with or without the possibility of re-adoption. The Act on the Family in both the Czech Republic and Siovakia permits re-adoption only in the case of irrevocable adoption.
5. Both Czech and SloVak law recognize a distinction between individual adoption and joint adoption. Joint adoption is permitted only for couples.6
6. Based on the future residence of the chud, adoption may aiso be ciassified as domestic or international.
II. CURRENT LEGAL REOULATIONS CONCERNING ADOPTION
A. NationalLaws
Adoption is not soiely a maUer of family law. Because of new conceptions of the rights of the child, and because of the child‘s new legal status in family and society, adoption is aiso rooted in constitutional law. The constitutionai orders of the Czech Republic and Slovakia are fomied in part by a Charter of Fundamental Rights and Freedoms, which contains similar provisions.7 The Czech Charter provides that the care and upbringing of children is the right of the parents and that children have the right to be cared for by their own parents. Pursuant to the Charter, the rights of parents can be Iimited and minor chiidren may be separated fřom their parents against their will oniy on the basis of a court determination in accordance with applicable law.8 Ali the institutions of substitute
Most prevailing international legal regulations permit joint adoption only by
spouses. Some laws even require a fixed minimum period of marriage. For example, French law specifíes that the marriage has to have existed for at least five years. Cf European Convention on Adoption of Children, Apr. 24, 1967, Art. 9.2 b), c), ratified by the Czech Republic but not Slovakia.
Resolution of the presidium of Czeeh National Council Nr. 2/1993 Coll. to republication of Charter of fundamental rights and ňeedoms as component part of constitutional order of the Czech Republic, amended by constitutional act Nr. 162/1998 Coll. (came into force 1 st of January 1999) hereinaer Charter].
8 Charter Art. 32 para. 4

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family care, including adoption, are to be interpreted literally, as providing for “substitution“ of the natural-original family.
The Constitutional Court of‘ the Czech Republic has issued two important decisions conceming the rights of the chud. First, the Constitutional Court voided Article No. 46 of the Family Act. This provision permitted the separation of a chud hom his or her parents against their will by a preliminary administrative act of the former district national committee.9 Pursuant to new regulations, which are in accordance with international standards of protection of the rights of the chud, a minor chud can be separated fřom his or her legal family against the will of the child‘s parents only pursuant to a court determination, in accordance with applicable law and procedures, ensuring that such separation is necessary for the best interest of the chuldY The Slovak counterpart of this Artiele is still in force un Slovakia. In another case, concerning the possibility of adoption of adults, the Constitutional Court ruled that the chud, by reason of hus or her physical and mental immaturity, needs special safeguards and care and must be protected by special measures. The institution of adoption is one such measure.11
The Act on the Family and the Civil Code are the main sources of current substantive law on adoption in the Czech Republic.32 A 1998 amendment to the Act on the Family made essential changes to family law, including matrimonial property law regulated in the Civil
The system of national committees was established at the dose of World War II by the then-existing provisional government On the local level, thě membership of the national eonimittees consisted of fifteen to twenty-five persons. National committees at the distriet level had om sixty to 120 members. The national eommittees on the local level were assigned particular areas of jurisdiction,:
including maintaining public order and organizing the implementation of the political, economic, and cultural tasks assigned by the government.
° See Judgment of the Constitutional Court of the Czech Republic No. 72/1995 Coll.
See Judgment of the Constitutional Court of the Czech Republie No. 295/1996 Coll.
12 Zákon o rodině, Act No. 94/1963 Coll. [hereinafter Czech AF Občanský zákoník, Act No. 40/1964 Coll. (hereinafler Czech CC.]

2003] UN convenüon on the Rights oj the ChUd 107
Code.‘3 The Act on Social-Legal Protection of Children represented a tuning point in the legal protection of the rights of the chud, as it provides for the regulation of previously unregulated forms of adoption, such as inter-country.adoption.14
Slovak legal regulations are simular to their Czech counterparts, as both the Family Act and the Civil Code of the former Czechoslovak Federal Republic are still in fotce.‘5 No equivalent of the Czech Act on Social-Legal Protection of the Children has been passed. Foster care in Slovakia is regulated in the autonomous Foster Care Act.‘6
With respect to the international aspeets of adoption, th Act on Iiůernational Private and Procedural Law is applied as the basic nonn of international private law in both the Czech Republic and Slovakia.17 The importance of the Act has increased with the rise in international contacts that followed the fall of the communist regime in 1989.
B. International La-ws
Among the most important international documents on adoption is the Declaration on Soeial and Legal Principles relating to the Protection and Welfare of Children (“Declaration“), with special reference to Foster Placement and Adoption Nationally and tnternationally.‘8 The Declaration is not legally binding, but its principles were taken into accoimt in the drafting of the International Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption.
13 ActNo. 91/1998 Coll.
14 Zákon o sociálně-právní ochraně dětí, Act No. 359/1999 Coll.
Act No. 94/1964 Coll. [hereinafter Slovak AF]; Act No. 40/1964 Coll. [hereinafter Slovak CC]
16 Act No. 265/1 998 Coll.
‘ Zákon o mezinárodním právu soukromém a procesním, Act No. 96/1963 Coll.
IS G.A. Res. 41/85 (1986.)

108 LE. EUR. L. [VoL 10:1
Another important international document is the Convention on the Rights of the Chud (“CRC“), which is the first international document devoted exclusively to the rights ofchildreni9 The CRC is considered the Magna Carta of the rights of the chud, as it includes a hill catalogue of the rights of the chud iřom birth to maturity. Pursuant to the CRC, the best interest of the chud is the primary consideration in au actions concerning children.2° The right of the chud to grow up in a family environment, in an atmosphere of happiness, love and understanding is expressed in the Preamble of the CRC. A child who is temporarily or permanently deprived ofhis or her natural family environment, or who cannot be allowed to remain in such an environment for his or her best interests, should be entitled to special protection and assistance provided by the State.21 The CRC emphasizes that due regard be paid to the desirability of continuity in the child‘ s upbringin and the child‘s ethnic, religious, cultural and linguistic background.
The CRC views adoption as an alternative method of solving the problem of dysfunctional natural families. Adoption of a minor child can be authorized only by competent authorities who must determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child‘ s status in relation to parents, relatives and legal guardians, and that, if required, the persons coneerned have given their informed consent to the adoption on the basis of such counsel as may be necessary.23 Lnter-country adoption is to be considered only when the child cavnot be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child‘ s country of origin.24
‚ G.A. Res. 44/25 (1989.)
20 CRC Art. 3 para. 1.
21 Id. Art. 20 para. 1.
221d. Art. 20 para. 3
23 Id. Art. 21 para. a.
Id Art. 21 para. b.
:.: t .

2003] UN. Convention on the Rights oj the ChUd 109
Both the Czech Republic and Slovakia are State Parties to the CRC. The former Czech and Slovak Federal Republic signed the CRC on September 30, 1990, and the Convention camc into force on February 6, 1991 25 According to Article 10 of the Constitution of the Czech Republic, the ratified and published international conventions on human rights and fundamental ňeedoms which are binding for the Czech Republic are immediately applicable and baye priority over Czech laws.26 Thus, the CRC is directly applicable in the Czech Republic and in Slovakia by courts and administrative bodies.
The Hague Convention on Protection of Children and CoOperation in Respect of Inter-Country Adoption was adopted by the Hague Conference on Private International Law on May 29, 1993 (“CPC“) with the aim of preventing the abduction, sale and trafticking of children and commercialization of inter-country adoption. Like the CRC, the CPC recognizes the right of the minor chud to grow up in a family environment, in an atrnosphere of happiness, love and understanding.27 The CPC recognizes that intercowitry adoption may offer the advantage of a permanent family to a child for whom a sUitable family cannot be fonnd in his or her state of origin.28 The CPC takes into consideration the continUity of the chud‘ s upbnnging and his or her etlmic, religious and cultural background.29
The CPC lays down strict conditions for inter-cowitry adoption, reqUiring that the competent anthorities of the state of origin:
a) establish that the child is adoptable;
b) determine that an inter-country adoption is in the child‘s best interests;
25 The CRC was published sub No. 104/1991 Coll.
26 Constitutional Aet No. 1/1993 ColÍ. Art. 10.
27 CPC Preamble
28 Id.
29y Art. 16 para. 1 sub-para. b

110 J.E. EUR. L. [Vol. 10:1
c) ensure that the persons, institutions and authorities whose consent is necessary for adoption were counseled and duly informed of the effects of their consent; that their consent was given fredy and in tbc required legal form and was not induced by payment or compensation of any kind; that the consent of the mother was given after the child‘s birth; and
d) ensure, with regard to the age and degree of maturity of the child, that the child was counseled and duly informed of the effects of tbc adoption and of his or her consent to the adoption, where such consent is required, and that consideration has been given to the child‘s wishes and opinions.3°
Each Contracting State must designate a Central Authority to discharge the duties imposed by the CPC.3‘
The Czech Republic signed the CPC on February 11, 2000, and
ratified it on Jime 1, 2000. The Convention was published sub No.
43/2000 Coll. of int. conv. and came into force on Sune 1, 2000.
Slovakia sigiied the Convention on Jime 6, 2001, and ratified it on
October 1, 2001. The Convention was published sub No. 380/2001
Coll.
C. RegionalLaws
The European Convention on the Adoption of Children (“ECAC“) is one of the most important regional conventions. The ECAC was signed by the member states of the Council óf Europe in Strasbourg on April 24, 1967. The ECAC emphasizes that adoption should be in the interests of the child and tbat the adoption should provide the child with a stable and harmonious horne.32 Special
301d. Art.4.
Id. Art. 6 pan 1. See Chapter III, “Central Authorities and Aceredited Bodies,“ Art. 6-13.
32 ECAC Art. 8 para. 1-2.

2003] UN. Convention on the Rights oj the ChUd 111
attention is paid to the anonymity of adoption, although general recent trends seem to favor openuess.33
The Czech Republic signed the ECAC on Deeember IS, 1999, and ratified it on September 8, 2000. The ECAC was published sub No. 132/2000 Coll. ofint. conv. in the Czech Republic and came into fotce on December 9, 2000. The Czech Republic made a reservation not to apply Article 7, para. 1 ofthe ECAC.34 The laws ofthe Czech Republic were modified to comply with the Convention by passing the so-called “Great Amendment“ to the Family Act.35 Slovakia has not yet signed the Convention.
Hl. C0NDITI0Ns OF ADOPTION
Regarding the basic conditions of adoption, not all of them are expressed eXpressis verbis in the law; some of them arise ouly tiom the nature, purpose and aim of the institution of adoption. However, if one of the following conditions is missing, the institution of adoption cannot be used, adoption is not granted and the chud has to be provided for by another form of‘ the institution of substitute care.
A. Inappropriate, Unavailable, Hostile or Missing Family Environment
The parents of the chud are allowed to “renounce their rights“ by
giving their consent to adoption.36 However, this right belongs only
Id. Art. 20. This Article appears to contradict certain provisions of thě CRC, including Árticle 7, which provides that the chud has the right to know hisor her parents, and Article 8, which provides that the chud has the right to preserve his or her identity, including nationality, name and family relations. For a more detauled discussion of this problem, see J. SvESTKA iii M. HRUŠÁK0VÁ BT AL, ZÁKON O RoDINĚ. KoMn.rrÁŘ 262 Aet on the FamiIy. Commentary} (2d ed., C.H.Beck 2000).
Article 7 Para I of the European Convention on the Adoption of Children establishes that “a chud may be adopted only if the adopter has attained the minimum age prescribed for the purpose, this age being neitber less than 21 nor more than 35 years.“
Act No. 9 1/1998 Coll. [hereinafler Great Amendment].
36 Historic legat regulations did not pay much attention to either the consent or its revocation. The doctrine and the practice differed in the Czech Republic and Slovakia. Nevertheless, the prevailing view was that consent can be revoked only