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On the issue of interim measures with respect to the care of minors in relation to the rights of parents, children and the issue of a fair trial

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Court/Judicial body: Constitutional Court of the Czech Republic
Date: July 20, 2010 CRC
Provisions: Article 2 Non-discrimination Article 3 The best interests of a child Article 5 Parental guidance Article 7 Registration, name, nationality, care Article 8 Preservation of identity Article 9 Separation from parents
Other international provisions: European Convention on Human Rights, Article 6 (Right to a fair trial); Article 8 (Right to respect for private and family life)
Domestic provisions: Charter of Fundamental Rights and Freedoms: Art. 32(4): Statutory guarantee of rights regarding the relationship between parents and their children; Art. 10(2): Right to be protected from intrusion into private and family life; Art. 36(1): Right to a fair trial

Case summary

Background: A lower court issued interim measures placing an infant in a child care institution shortly following her birth on the grounds that her mother’s living conditions were unsuitable for the care and upbringing of a child. The child’s mother appealed the decision on behalf of herself and her daughter, asking that her custody be reinstated.

Issue and resolution: Child protection. The Court ruled that taking the child away from her mother before the mother had the opportunity to prove that she was able to care for her was inappropriate.

Court reasoning: The Court noted that the mother-child bond is a natural and critical requirement for the development of a child, and therefore parents should have the opportunity to prove that they are able to care for of their children before the State intervenes. In this case, the Court further stressed that the decision to remove the child from the home was unconstitutional, without legal basis and violated Articles 2, 3, 5, 7, 8 and 9 of the Convention on the Rights of the Child.
Excerpt citing CRC and other relevant human rights 2…The complainant considered that these decisions led to an unlawful interference with her constitutionally guaranteed rights, namely the right to a fair trial under Article 36 of the Charter and Article 6 of the [European Convention on Human Rights], the right to an effective remedy within the meaning of Article 6 and 13 of the Convention and Article 36 and Article 38(1) and (2) of the Charter, and the right to family life and right to freely bring up children within the meaning of Article 7, Article 10(2), Article 32(1) and (4) of the Charter; Articles 5, 6 and 8 of the Convention; and Articles 2, 5, 7, 8 and 9 of the Convention on the Rights of the Child. 36…In addition to the right to a fair trial, the continued separation of the child from the mother and the child’s placement in the infant care institution, for which there was no legal basis, also constituted a number of other violations of constitutionally guaranteed rights contained in Article 10(2), Article 32(4) and Article 36 of the Charter, Articles 6 and 8 of the [European Convention on Human Rights] and Article 2, Article 3(1), Article 5, 7, 8 and 9 of the Convention on the Rights of the Child. 40…Moreover, when deciding on interim measures pursuant to § 76a, paragraph 1 of the Civil Procedure Code, it should be borne in mind that the child’s interests in the proceedings are of the highest importance (cf. Article 3, paragraph 1 of the Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”).

CRIN comments: CRIN believes this decision is consistent with the CRC. Children have the right to be raised by their parents as far as possible under Article 7 of the Convention, and States Parties have an obligation under Article 9 not to separate children from their parents unless it would be necessary in their best interests. Rather than removing children from the home as a first measure, governments should make every effort to support parents in caring for their children.

Citation: IV.ÚS 2244/09 Link to Full Judgment: