112 LE. EUR L. [Vol. 10:1
to the parent who has full capacity to perform legal acts, as well as “parental responsibility“ as defined by Czech law or “rights and duties“ as defined by Slovak law. Furthermore, the right belongs to the parent only when he ot she is the legal representative of the chud. Whether the chud is under the direct care of the parent or not is irrelevant.
To enable adoption, the law requires the consent of both parents as legal representatives. The consent has to be expressed personally, explicitly and directly. If the child has both parents, the consent has to be given by both of them.37 The parent(s) can give speciuic consent to a particular prospective adopter as well as to an anonymous one (the so-called “blanket consenť‘ or “consent in blank“). Consent is invalid prior to the birth of the child; the parents are not allowed to issue their consent until six weeks after the
us birth.38 Revocation of consent is permitted, but if the consent is blank, then only before the chud is passed to the care of prospective adopters.39
Consent of both parents, if they are legal representatives of the chud, is not required in three cases under the Czech Act on the Family.4° These are as follows:
1. Lack of interest
The consent of the parents is not later required when for a period of at least six months the parents have not showed a true interest in the child of the type parents would have showed.41 In all cases, the
before passing the chud into the pre-adoption temporary care of prospective adopters.
For a more in-depth diseussion, sec O. PLANKOVÁ, OSVOJENIE DIEtAtA 66 [Adoption of the Chud], (Bratislava 1979).
38 Art. 68a Czech AF, Art. 119 FGC.
39Art. 68a Czech AF.
° Art. 68 and 68a Czech AF.
41 Art. 68 para. 1 Section a Czech AF. For a critique of the previous regulation, sec IF. HADBRKA,
DOPAD NOREM RADY EVROPY NA MODERNÍ RODINNÉ



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2003] UN. Convention on the Rights oj the ChUd 113
court must eXamine whether the parents have showed a “real interesť‘ in the chud and whether they are able to take appropriate care of the chud. In flnding a lack of interest, the court must aiso take into consideration au the obstacles that prevented the parents fřom showing a trne interest un the chud and to consider their character. The obstacies can be obj ective, subj ective or even “speculative“ ones aimed at preventing the prospective adoption. Furthermore, the court must also eXamine the conduct and actions of the parents toward consoiidating their personal, family, social and living conditions to be able to take personal care ofthe chud.42
2. Absolute lack of interest
The consent of the parents Is not later required when for a period of at least two months after the chud‘ s birth the parents have showed absolutely no interest in the chud, although no grave obstacle had prevented them from showing such interest.43 The term “absoiute lack of interesť‘ was introduced into the Czech Act on the Family by the Great Amendment to the Act (1998). The new provision was passed as a reaction by the legislature to long-lasting calls by practicing lawyers for an effective law. The amendment helps to resolve the iegal status of newly-born and abandoned children in as shon a time as possible. The period oftwo months has to elapse after the child‘s birth.44
3. The “blanket consenť‘ (consent in blank)
The consent of the parents is not later required, when they have already expressed their consent “in advance,“ regardless of any specific future adopter.45 The consent to the adoption has to be given by the parents in advance (before initiating the court proceeding for
PRÁVO 516 [The Impact of the Norms of the Council of Europe on Modem Family Law], (Právní praxe 1994, No. 9).
42k1.
Art. 68 para. 1 Section 1, Czech AF.
Id.
Art. 68a Czech AF, Art. 1192 FGC.

114 J.E. EuR.L. [Vol. 10:1
adoption). The parents baye to be physically present before either the court or the body of social-legal protection of the chud. The Great Amendment establishes a strict condition for blanket consent regarding newbom children. In accordance with the Buropean Convention on the Adoption of Children, the amendment provides that the consent of the parents who are the child‘s legal representatives will not be accepted until the chud is six weeks old.46 The new provision aims to protect both the newborn child‘s mother in a difficult situation and the child‘s right to be brought tip in bis/her natural family.
The (ireat Amendment introduced an improvement to the legal status of the minor parent even if he/she is not the legal representative of the chud.47 The new law provides that the consent of the minor parent is required for adoption of the child.48 The tests of lack of interest, absolute lack of interest and blanket consent apply even if the parent is minor,49
The Great Amendment also effeeted an improvement to the legal status of the so-called “probable“ parent. The man who declares that he is the father of the child is allowed to initiate a court procedure in order to determine bis fatherhood.5° In addition, the legal status of the biological father has been improved by the new concept on adoption. According to the new Article ‘70a of the Czech Act on the Family, the adoption of the child camiot be granted before the court‘ s decision in the proceeding on fatherhood becomes effective.51
46 ActNo. 91/1998 Coll.
The legal position of the minor parent was vely weak for a long time in both the Czech Repub lic and Slovakia. The courts treated minor parents as “participants“ in hearings and their view was eonsidered only when they exereisd proper personal care of the chud and where there were no cireumstances warranting depriving them of parental responsibility.
48 Art. 67 pan. 2 Czech AF; since 1998, there Is no age limit.
Art. 68 para. 2 Czech AF.
50 Section 3 ofthe amended Art. 54 para. 1 Czech AF.
This provision of the amendment was influenced not only by practical and theoretical considerations, but especially by Strasbourg case law.
See J. HADERKA, PŘÍPAD KEEGAN VERSUS IRSKO 311-313 [Case Keegan Versus Ireland].



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2003] UN C‘onvention on the Rights oj the Chud 115
In applying tbc tests of lack of interest, absolute lack of interest and blanket consent, the court must examine au the surrounding circumstances In a special hearing (called “incidental proceeding“). This special procedure aims at determining whether the chud is legally available for adoption or not. The court has to resolve the above-mentioned matters before the prospective adopter applies for the adoption.52
PinaRy, In the case of blanket consent, the revocation of the parents‘ consent is allowed only before passing the chud to the care of prospective adopters.53 Nevertheless, there is no regulation of revocation in general in the Czech Republic. Both the doctrine and the court practice follow the view that revocation of consent is possible until the adoption becomes defnitive.
The Slovak Act on the Family uses only the tests of lack of interest and blanket consent.54
B. The Ben Interest oj the Chud
Both the Czech and Slovak Acts on Family impose a daty on the court to examine the state of health of the chud and communicate its fndings both to the pro spective adapter and the legal representatíves of the chud. The court requests a health report Iiom an expert on both the physical and mental state of the chud, including a prognosis. However, the ínterpretation of this provision should not lead to “discrimination“ of handicapped (disabled) children. Particularly difňcult in this area are probletns caused by hereditary diseases or the HIV virus.
C. The Consent of tbc Minor Chud
Both the Czech and Slovak Acts on Family formulate this condition as follows: “consent is necessary when the child is capable of perceiving the effects of adoption, unless the purpose of adoption
52 Art. 68 pata. 3 Czech AF.
Art. 68a Czech AF.
54Art 68 Slovak AF.

116 JE. EUR. L. [Vol. 10:1
would be thereby Mistrated.“55 The interpretation of this provision has been rather difficult. In practice, this article is often applied, for instance, when the chud has been living in a foster family since bis eariy years and has not known the original parents and when the foster parents seek to exchange foster care for adoption. In this context, the so-caiied “participation“ rights of the chud grounded in the Convention on the Rights of the Chud aiso have to be considered. According to these rights, a chud who is capable of forming his/her own views has the right to express those views Ůeely in au matters affecting the chud and these views are given due weight in accordance with the age and maturity of the chud. For this purpose, the Convention provides that the chud shali be given the opportunity to be heard in any judicial and administrative proceedins affecting the chud, either directly ot through a representative or an appropriate body, in a maimer consistent with the procedural rules of national law.56 The paraphrased equivalent of the above-described conventionai participation rights has been introduced recently into the Czech Act on the Family.57
Neither Czech nor Slovak law establish any age limits for a legal act exercised by minor children.58 Finally, it should be added that there is no principle of anonymity of adoption designated in Czech and Slovak law.
Art. 67 para. 1 Czech and Slovak AF.
56CRCArt. 12.
57See new Art. 31 para. 3 AF.
European laws regulate this issue differently. The Austrian Civil Code (ABGB, Art. 181) recognizes the child‘s “right to be heard“ when the minimum age is five years. According to the French Code Civil (CC, Art. 345), a child older than thirteen years always has to agree personally to adoption. The German Civil Code (B GB, Art. 1746) establishes the age of fourteen years for considering the ehild‘s opinion on the adoption. The Dutch law provides the ehild‘s “veto“ on the intended adoption when he/she is tifteen years old.

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2003] UN Convention on the Rights ofthe chud 117
D. Eligible and Suitable Prospective Adopter and HisĺHer Will to Adopt the Child
The personality of the prospective adopter plays an essential role in adoption. This S so because it depends greatly on the adoptive parent whether the adoption will be successful and in the best interest of the chud. That is why it is necessary to eXamine not only bis/her desire to adopt the child hut also bis/her character, personal dispositions, motivation for adoption, life style and other cireumstances (finances, property, dwelling, etc.). The prospective adopter should ensure a stable and harmonious environment for the ehild and hisfher growth.
Both the Czech and Slovak doctrine and practice follow the view that there should not already exist a family relationship between the chud and the prospective adopters that would render adoption needless. This pre-condition is not establisbed by the law, hut is a consequence of the nature of adoption. Generally, it is thought that adoption is not possible between first-degree relatives and between siblings.
Furthermore, the prospective adopter must be an adult and have full capacity to perform legal acts in order to be able to eXercise the role of legal representative of the child and protect
au his/her interests.
The Aet on the Family in both the Czech Republic and Slovakia lays down
expressis verbis that the court has to examine the physičal health of the prospective adopter (relying on the medical reports and “other necessary investigations“) and to determine whether it is not detrimental to the aim of adoption.59 The health of the prospective adopter Řhould be good enough so that heJshe eould provide the child with a long-lasting and generally suitable family environment. The prospective adopter should be able to become a supporter, educator and role model for the child. The court has the duty to inform the prospective adopter and the legal representatives of the child of its findings regarding the health of the adopter.
Art. 70 Czech and Slovak AF.

118 J.B.EuR.L. Vo1. 10:1
The Act on the Family In both countries provides that the chud can be jointly adopted oniy by persons married to each other.6° The husband and wife are. ailowed to adopt the chud simuitaneously or successively. In such cases, the court must eXamine the length of the marriage, its course and “quality,“61 as well as other conditions and aspects. Even if only one spouse is to adopt the chud, both the Czech and Slovak Acts require the consent of the spouse of the adopter. This condition has to be met even In the Case where the couple are not living together. The consent of the spouse of the adopter is not required where the spouse does not have full capacity to perform legal acts or where consent is prevented by an obstacie “difficult to overcome.“62
The law In both countries aiso provides that there has to be an adequate difference in age between the prospective adopter and the chud.63 At the same time, the Acts on the Family do not establish any age categories or any age limits.M However, both the doctrine and the legal practice interpret the term “adequate difference in age“
60Art 66 para. 1 Czech and Slovak AF.
61 Compare Ast. 9.2 b), c) of ECAC, which makes joint adoption available only to spouses. Some laws even demand a certain minimal period of matrimony for instance, the French law flxes the minimum period of matrimony at five years.
62 Art. 66 para. 2 Czech and Slovak AF.
63Art. 65 para. 1 Czech and Slovak AF.
64 Compare the traditional Austrian Civil Code (ABGB, 1811) where the adopters had to be older than forty and the adopted child had to be at least eighteeú years their junior (Art. 180).
ECA Children provides that the adopter has to reaeh a minimum age prescrihed for this purpose, this age being “neither lower than twenty-one years nor higher than thirty-five years.“ Article 7 para 1. There are, of course, exceptions for the husband of the child‘s mother and in other exceptional circumstances. As mentioned above, the Czech Republic had made a reservation not to apply this article. For a discussion of problems in this area, see L. Macháčková, Náhradní
rodiče ve vyšším věku - diskriminace v zá koně o rodině? [Older Substitute Parents - Discrimination in the Act of the Family?), 8 PRÁvo A RODINA 8 (2000).
..: ..

‚H

2003] UN. Convention on the Rights oj the Chud 119
to mean the usual difference in age between natural parents and their children.65
The Czech and Slovak legal treatises use the term “step-parent adoption“ when the chud is adopted by the new spouse of one of bis/her parents (the stepfather/mother). This form of adoption does not provide the chud with a “new family“ but, in fact, harmonizes the de facto relationship with the legal one. Nevertheless, this kind of adoption is considered a “full adoption.“
E. Obligatozy Pre-adoption Temporaíy Care
In order to ensure that the adoption will be in the best interest of the child both the Czech and the Slovak Act on the Family provide that the chud is to live under the care and support of the prospective adopter for at least a three-month period preceding the court‘s decision on the adoption.66 Since the institution of pre-adoption care is focused on creating a relationship between the prospective adopter and the chud, the new “family“ is provided with this period to prove its suitability. The tbree months are aimed at giving both parties a chance to get to know each other in order to prevent a possible revocation of the adoption in the future.
F. Additional Conditions Fixed for Irrevocable Adoption
Since it is not possible to revoke the irrevocable adoption, the law in the both Czech Republic and Slovakia imposes additional requirements for irrevocable adoptions. These are as follows:
1. Only a chud older than one year can be adopíed by irrevocable adoption.67 The rationale of this requirement is that once the chud reaches the age of at least one year it is
65 See Judgment of the Czech Supreme Court No. 49/1976; compare Art. 8 of the European Convention on the Adoption of Children.
Art. 69 Czech and Slovak AF. Compare the Dutch and French laws, which regulate obligatory temporary pre-adoptive care more strictly (the Netherlands: one year, France: 6 months).
67Art.
75 Czech and Slovak AF.

120 J.E. EUR. L. [Vol. 10:1
possible to set up a prognosis
for bis/her development,
especially as far as health is concerned.
A particularity of Czech law is that irrevocable adoption is available primarily to spouses, to the spouse of the chud‘ s parent, to the spouse of the chud‘ s dead parent or to the spouse of the child‘s adopter.68 The one exception is that a single person can adopt a chud only if it can be shown that the adoption will be in the best interest ofthe chud.69
2. Article ‘74 of both acts requires entry of the adoption into the vital register (public records). The chud will obtain a new “list of birth“ with the narnes of the adopters as his/her parents and without either the fact of adoption or the identity of his/her former parents listed.70
According to the new legal regulation of vital registers in the Czech Republic,7‘ and un accordance with international standards, the public record should be kept in such a way as to prevent persons who do not have a legitimate interest 1om leaming the fact that a person has been adopted or the identity of his/her former .parents.72 Nevertheless, following the Convention on the Right of the Chud, which guarantees the right of the chud to know bis/her parents,73 the Czech law regulating public records gives the chud who has reached the age of eighteen the right to inspect all facts recorded un vital registers. This means that the adopted child has a legal claim to know bis/her origin and the names of bis/her original (natural) parents.
68Ast.l4Para2CzechAF.
69 Art. 74 Para 2 Czech AF.
70 This is in accordance with para. 3 of the European Convention on the
Adoption of Children.
71 Act. No. 30 1/2000 Coll. dealing with vital registers, names and surnames.
72 In accordance with Art. 20 para. 4 of European Convention on the Adoption
of Children.
73CRCArt.lpara. 1.
. : ..



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F.

2003] UN C‘onvention on the Rights oj the ChUd 121
IV. ADOPTION PROCEEDINGS
The legal regulation of the institution of adoption and of adoption by administrative and judiciäl proceeding has seen a significant number
Of changes since the signing and rati1‘ing Of the international conventions in the Czech Republic and Slovakia.
Adoption can be granted only by court in the Czech Republic and Slovakia. Furthermore,
hi the Czech Republic, a special administrative “proceeding“ before “the authorities of social-legal protection ofthe chud“ has to prccede the court‘s decision. The legal relationship between the two bodies is regulated mainly by the new Act on Social-Legal Protection of Children74 and iii accordance with the international conventions discussed above. The special proceeding (called “co-operation“) concentrates on the mutual suitability of the chud and the adopter.75 The procedure can be started only on the basis of application of the person seeking to become the adopter. He/she has to apply to the District Authority, which keeps all the documentation on the children and prospective adopters. The District Authority then passes on a copy of the documents to the Miiistry of Labor and Social Policy. The Ministry keeps the so-called “central records“ which contain, in addition to the documents passed by the District Authority, the expert opinions and the child‘s opinion obtained by the Ministry before starting their own proceeding searching for a mutually suitable “pair.“
When the suitable “paiť‘ is found, the prospective adopter has the right to get to know the child and to be granted “obligatory :pre adoption temporary care.“ The prospective adopter is allowed to submit its application for adoption to the court only after the three months have elapsed.76
As regards inter-country adoption, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“CPC“) is the main legal regulator used in both countries.
ActNo. 359/1999 Coll..
751d. Art. 20 ff.
76 Art. 69 Czech and Slovak AF.

122 J.E. EUR. L. [VoL 10:1
According to Article 14-22 of the
CPC, the adoption proceeding is started when the prospective adopter applies to the central autority in the State of his/her habitual residence. If the central authority is satisfied that the applicant is eligible and suitable to adopt, it shall prepare a report and transmit it to the central authority of the State of the child‘s origin. The report shall include information about the applicant‘ s identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an inter-country adoption, as well as characteristics of the child for whom he/she would be qualiňed to care. If the central authority of the State of the child‘s origin is satisfied tat the child is adoptable, it shall transmit its report on the chud to the central autority of the applicant, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the fater if, in the State of origin, these identities may not be disclosed. Both central authorities shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.77
The Office of International Legal Protection of Children (Úřad pro mezinárodněprávní ochranu dětí) is the Central Authority in the Czech Republic (in Brno) under the CPC and the new Act on SocialLegal Protection of Children. Before the new Act, there existed no such legal regulation in the country, although the Ministry of Labor and Social Policy equent1y approved inter-country adoptions for children placed in institutional care in the Czech Republic.78 Currently, the Oftice of International Legal Protection of Children follows the international conventions and mediates adoption abroad only when the children cannot be adopted or placed in foster families in the State of origin (i.e. the Czech Republic.) The Offlce aims to ensure that inter-country adoption is only an alternative solution and that the best interest of the chud and his/her fundamental rights aře primary considerations, thus preventing abduction or trafficking in children. If intercountry adoption is suitable, a special proceeding is
CPC Art. 14-22.
78 On the Czech eXperience with inter-country adoption, see an article by the direetor of the Office of International Lega! Proteetion of Chiklren, R. Záleský, Realizace mezinárodního osvojení, [Achieving inter-country adoption], 2
NÁHRADNÍ RODINNÁ PÉČE 9 (2001).



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2003] UN. C‘onvention on the Rights ofthe Chud 123
started according to administrative rules. Nevertheless, adoption is to be granted by the court abroad in the state of the habitual residence of prospective adopters, as it is not in the jurisdiction of the courts of the Czech Republic.79 The reverse applies when a chud from abroad is to be adopted in the Czech Republic.
The Centre for International Legal Protection of Children and Youth (Centrum pre medzinárodno-právnu ochranu deti a mládeže) is the Central Authority in Slovakia (Bratislava) undcr the
CPC.
Finally, adoption itself is granted by the court on the motion of the prospcctive adopter in both countries. The future adopter (or adopters—spouses), the child that is to be adopted and his/her parents (but only when their consent to the adoption is required) are participants in the court proceedings. The child has to bc represented by a custodian.
The court proceeding is regulated by the former Czechoslovak Federal Republic‘s Act on Civil Judicial Order8° in both the Czech Republic and Slovakia.
V. EFFECTS OF ADOPTION
As it has already been discussed, the main effect of adoption in the Czech Republic and Slovakia is the “total incorporation“ of the minor chud into a new adoptive family.
According to the Czech Act on the Family and the Slovak Act on the Family, the chud obtains the same rights in the new family as if he/she were bon there, including rights in law of successión. The adopters in the Czech Republic will assume “parental responsibility“ and will be legal representatives of the chud. Similarly, the adopters in Slovakia will have “parental rights and duties“ and will become legal representatives of the chud as well. The adopters in both countries have to providc support for the child, and the child acquires “eX lege“ the sumame of the adopter or the spouses-adopters.
See Art. 41 of the Act No. 97/1963 Coll. on international private and procedural law.
80 Act No. 99/1963 Coll., Art. 181-185.



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124 LE. EUR. L. [Vol. 10:1
The first name of the ehud catmot be ehanged in the court proceedings in either the Czech Republic or Slovakia. However, the new Czech law regulating publie records and names and surnames makes it possible for the adopters to choose a new name for the adopted ehud in substitution for, or
In addition to, his own within a period of SiX months after the date when the court decision became effective.8‘ A chud older than fifteen years must be counseled.
An effect of irrevocable adoption under both the Czech and the Slovak law is that the name of the adopter (or spouses-adopters) replaees the name of the chud‘ s natural parents In the vital register. The chud is then given new legal doeuments.
The adopted chud acquires the citizenship of the Czech Republic provided that at kast one of the adopters is the state citizen of the Czech Republic, which follows fřom international conventions.82
VI. REVOCATION OF ADOPTION
The institution of adoption
under the laws of the Czech Republic and Slovakia is understood with the exception of limited adoption
to be a “fíction“ imitating the biological relationship. That Is why it does not cease to eXist either when the child reaches the age of maturity or at death (inheritance law is then applied).
Instead, the institution of adoption is generally considered an institution of long-lasting or permanent substitute famuly care. The new legal regulation of “co-operation“ and striet selection of future adopters aims to prevent crises in such new families. The court is allowed to revoke the adoption only on serious grounds, when such a harmonious relationship between the adopter(s) and the chud a normally eXists between natural parents and children has not been
In the Czeeh Republic, the new An. No. 301/2000 Coll. dealing with vital registers, names and surnames allows the adoptive parents to choose both another natne or an additional natne for the ehud.
82 As for determining the citizenship of the adopter, see Act Na 40/1993 Coll. on gaining and losing eitizenship of the Czeeh Republic.

2003] UN. Convention on the Rights oj the Chud 125
established.83 The reasons for revocation of adoption may be on the part of the adoptive parents as well as the adopted chud. The revocation has legal consequences “eX nunc.“ Nevertheless, the effect of revocation is that the ehud legally returns to the family of bis/her origin. The “old“ rights and duties in this natural family are “re-established,“ including maintenance duty and rights tom inheritance law. The surname ofthe chud will be changed as well.
VIL CoNcLusIoN
The institution of adoption was viewed by the former socialist law 1iom the perspective of the minor chud. Although evep today there are some caus for enabling adoption of adult persons, it is not likely that the present “traditional concepť‘ of adoption will be abandoned in the re-codified Czech and Slovak family law. As it was described above this institution serves the best interest of the minor child, who is mostly abandoned or an orphan, and aims to become a “definitive“ solution of the child‘ s critical situation.
It is necessary to emphasize that the Czech Republic and Slovakia baye harmonized their national laws of adoption witb high international standards, first of all by signing and rati‘ing the abovementioned international conventions and by passing a significant number of acts and amendments to the existing ones. According to the main tenets of these laws, the child has the constitutional right to be raised in an atmosphere of happiness, love and understanding in bis/her own family. Only when the environment ofthe chuld‘s origin is inappropriate, unavailable, hostile or missing should the institutions of substitute family care apply.84 Bach form of substitute family care should then be oriented to the child‘s welfare.
83 Thus, it is no longer possible under Czech law to cancel the adoption by a contract made by adopters and adult chud. See note 3, injra.
84 In both the Czech Republic and Slovakia the following institutions of substitute care are regulated:
1. Collective care: Institutional care (both Czech and Slovak AF); hstitutional protective care (Criminal codes)
2. Family care: Adoption (both Czech and Slovak AF); Foster care (Czech
AF, Slovak Foster Care Act); Care exercised by the third person (both
Czech and Slovak AF); (Juardianship (Czech AF) and custody (Slovak
AF)

126 LE. BULL. [Vol. 10:1
For more details, see M. HRUŠÁK0vÁ, Z. KRÁLÍČKOVÁ: ČESJ(É
RODINNÉ rtkvo [Czeeh Family Law] (2d ed., MU and Doplněk 2001) and generally HRuŠÁIC0vÁ, supra note 33.

126 J.E. EUR. L. [Vol. 10:1
For more details, see M. HRuŠÁK0vÁ, Z. KRÁLÍČKOVÁ: ČESIÉ RODINNÉ itkvo [Czeeh Family Law] (2d cd., MU and Doplněk 2001) and generally HRUŠÁKOVÁ, supra note 33.