pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en CZECH FAMILY LAW V. PARENTAL RESPONSIBILITY © Zdeňka Králíčková Radovan Dávid 2015 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 2 2 TERMINOLOGY n Ancient Rome – patria potestas – concept of an authority n n Czechoslovakia/the Czech republic: n1918 – Civil Code (ABGB): Pater Familias n1949 – Act on the Family Law: Power of Parents n1963 – Act on the Family: Parental Rights and Duties §1998: an amendment: Parental Responsibility n2012 (2014) – Civil Code: Parental Responsibility n n Europe: Parental Responsibility, Elterliche Sorge, l´Autorité Parental, della Potestà dei Genitori, Władza Rodzicielska. n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 3 3 INTERNATIONAL TREATIES nthe Constitution of the Czech Republic nArt. 10 – international treaties have priority in application n nthe UN nConvention on the Rights of the Child n nthe Council of Europe nEuropean Convention for the Protection of Human Rights and Fundamental Freedoms – n art. 8 – Right to respect for private and family life nEuropean Convention on the Exercise of Children’s Rights nEuropean Convention on the Legal Status of Children Born out of Wedlock nEuropean Convention on Adoption of Children nEuropean Convention on Contact Concerning Children etc. n nthe Hague Conference on Private International Law nthe Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption nthe Hague Convention on the Civil Aspects of International Child Abduction nthe Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 4 EU nCouncil Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 5 5 NATIONAL SOURCES nThe Constitution of the Czech Republic n Art. 10 – international treaties have priority in application n nThe Charter of Fundamental Human Rights and Freedoms (part of the Constitutional Order) n nThe Civil Code: n Art. 858, art. 865 et seq. n nThe Children Act 1999 n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 6 6 GENERAL REMARKS ON PARENTAL RESPONSIBILTY n nParental responsibility is a legal institution nThe aim of Parental responsibility is to protect a minor child who is not fully capable n nOnly a minor child who is not fully capable can be protected by Parental responsibilty n nParental responsibility belongs to both legal parents (no discrimination based on sex) n nParental responsibility belongs to all parents irrespective of their age or capacity nminor parents nparents with mental disorder n nParental responsibility is collection of rights and duties (reciprocity) n nParental responsibility should be exercised with the respect to the best interest of the child n ► the child is a subject of parental responsibility, not a passive object n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 7 CONTENT OF PARENTAL RESPONSIBILITY n858 CC n na) care of a minor, including caring for his/her health as well as physical, emotional, cognitive and moral development (upbringing) n nb) representing a minor, and n nc) managing his/her property n n- living, education etc. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 8 8 nCare of a child/upbringing nRight to have a child by herself/himself, to live with the child, to see/visit the child, to communicate with the child nRight to control child´s behavior and education nRight to decide in the matters regarding a child on his/her behalf nRight to determine residence of a child (?) nRepresentation of a child nIn matters the child has no capacity nIn conflict of interests ► custodian nManagement of a child´s property nWhile deciding extraordinary matters ► court decision nWhen problems ► property custodian by court n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 9 9 Rights and duties excluded from parental responsibility nMaintenance duty nRight to give a name and surname to a child nRight to keep relations with a child (to meet him/her) (?) nRight to give consent with adoption n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 10 10 EXERCISE OF PARENTAL RESPONSIBILITY nParental responsibility is a dynamic institution n nExecution depends on circumstances, age, view, needs and mental development of the child etc. n nIt is important nwhether parents live together or not nwhether they are able to reach an agreement on key matters regarding their child n nFlexibility ► NO res iudicata ► the court can change the decisions n n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 11 11 PRINCIPLES OF EXERCISE OF PARENTAL RESPONSIBILITY – THE RIGHTS OF THE CHILD nThe best interests of the child should be the primary consideration in all matters concerning child nThe child’s autonomy should be respected in accordance with the developing ability and and need of the child to act independently. nThe child should not be discriminated on grounds such as sex, race, colour, language, religion, political or other opinion, national, ethnic or social origin, sexual orientation, disability, property, birth or other status nChild’s right to be heard according to his or her age and maturity nThe child should have the right to be informed, consulted and to express his or her opinion in all matters concerning the child, with due weight given to the views expressed by him or her n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 12 PROBLEM I. DISAGREEMENT/MISMATCH OF PARENTS n§ 877 CC n If the parents are unable to agree on important issues concerning the exercise of their parental responsibility, the court shall decide. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 13 13 PROBLEM II. SEPARATION OF THE PARENTS nArt. 908, 919 CC n If the parents of a minor do not live together and are unable to agree on the child's upbringing and alimentation, the court can decide who will have custody of the child and how each of the parents shall contribute to his/her alimentation, even without a petition. n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 14 PROBLEM III. DIVORCE OF THE PARENTS nArt. 755 (3) n The divorce cannot be granted before a court ruling has taken effect granting custody of minor children after the divorce. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 15 CHILD CUSTODY (personal care: individual, joint, alternative), MAINTENANCE AND CONTACT nArt. 907 et seq. CC n n A court may entrust a child to the care of one of the parents or to shared or joint care; a court may also entrust a child to the care of a person other than a parent if it is necessary with regard to the interests of the child. If a child is to be entrusted to joint care, the consent of both parents is required. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 16 16 SUSPENSION, RESTRICTION, DEPRIVATION OF PARENTAL RESPONSIBILTY by the court nArt. 868 et seq. CC nSuspension – there is an obstacle impeding execution of parental responsibility guardian nRestriction – parent does not execute his/her parental responsibility appropriately and restriction corresponds with the best interest of the child (partial) nDeprivation – when parent abuses or seriously neglects his/her rights and duties derived from parental responsibility; it is the most radical intervention to parental responsibility (the whole) guardian n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 17 TERMINATION OF PARENTAL RESPONSIBLITY nFull legal capacity of the child (18 years, marriage after 16, court declaration) n nDeath of the child n nDeath of the parents n nDeprivation by the court ► guardian pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en 18 PRINCIPLES OF EUROPEAN FAMILY LAW REGARDING PARENTAL RESPONSIBILITIES by CEFL - Commission on European Family Law http://www2.law.uu.nl/priv/cefl/ www.law.muni.cz PF_PPT_nahled PF_PPT_en2 19 Principle 3:1 Concept of parental responsibilities nParental responsibilities are a collection of rights and duties aimed at promoting and safeguarding the welfare of the child. They encompass in particular: n(a) care, protection and education; n(b) maintenance of personal relationships; n(c) determination of residence; n(d) administration of property, and n(e) legal representation. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 20 Principle 3:2 Holder of parental responsibilities n(1) A holder of parental responsibilities is any person having the rights and duties listed in Principle 3:1 either in whole or in part. n(2) Subject to the following Principles, holders of parental responsibilities are: n(a) the child’s parents, as well as n(b) persons other than the child’s parents having parental responsibilities in addition to or instead of the parents. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 21 RIGHTS OF THE CHILD Principle 3:3 Best interests of the child In all matters concerning parental responsibilities the best interests of the child should be the primary consideration. Principle 3:4 Autonomy of the child The child’s autonomy should be respected in accordance with the developing ability and need of the child to act independently. Principle 3:5 Non-discrimination of the child Children should not be discriminated on grounds such as sex, race, colour, language, religion, political or other opinion, national, ethnic or social origin, sexual orientation, disability, property, birth or other status, irrespective of whether these grounds refer to the child or to the holders of parental responsibilities. Principle 3:6 Child’s right to be heard Having regard to the child’s age and maturity, the child should have the right to be informed, consulted and to express his or her opinion in all matters concerning the child, with due weight given to the views expressed by him or her. Principle 3:7 Conflict of interests The interests of the child should be protected whenever they may be in conflict with the interests of the holders of parental responsibilities.