Court/Judicial body: Constitutional Court of the Czech Republic
Date: August 26, 2010 CRC
Provisions: Article 12: The child’s opinion
Other international provisions:European Convention on Human Rights ( Article 8: Right to respect for private and family)European Convention on the Exercise of Children’s Rights ( Article 3: Right to be informed and to express his or her views in proceedings)
Domestic provisions: Act No. 2/1993 Coll., The Charter of Fundamental Rights and Freedoms (Art. 32(4): Rights regarding the relationship between parents and their children; Arts. 36, 38: Right to judicial and other legal protection; Art 10(2): Right to be protected from intrusion into private and family life; Art. 8: principle of liberty and limitations); Act No. 94/1963 Coll., on Family (Section 31(3): Child’s right to be heard in proceedings related to family matters)
Background: The District Court ordered that a child with health problems be placed in emergency care, later transferring custody of the child to a local children’s home. Against the court order, the child’s mother picked her up from a psychiatric facility and fled abroad to Liechtenstein, Italy and Switzerland, where the two lived intermittently in various social welfare facilities. The mother arranged for the child’s father to start caring for her 6 months later, and although she later returned to the Czech Republic during the appeal and expressed a desire to care for her daughter, the Court of Appeal found that she would not be able to do so. The mother appealed to the Constitutional Court, claiming that her rights were violated by the courts’ failure to consider alternatives to institutional care and that her daughter’s rights were violated by the courts’ failure to give the child an opportunity to be heard in the proceedings.
Issue and resolution: Child protection; right to be heard. The Court ruled that, in accordance with Article 12 of the Convention on the Rights of the Child, children have a right to be heard in cases that directly affect them. However, court decisions must also be in accordance with the best interests of the child, and hence may differ from the child’s expressed wishes.
Court reasoning: Children must be able to express their opinions on issues that directly affect them, especially given their lack of power in relation to their parents or legal guardians. In legal proceedings, typically only the parties have a right to be heard. But where a child not directly involved in legal proceedings will be affected by the outcome of those proceedings, denying that child the right to express his or her opinion would be unconstitutional and violate Article 12 of the CRC and Article 3 of the European Convention on the Exercise of Children’s Rights. Here, in violation of her rights, the child was not given an opportunity to express her views, and these views were not considered when determining the outcome of the case. As such, the Court ordered that new proceedings be initiated, with the child being given a chance to express her opinion and to have this opinion take into account in reaching a decision.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: It must be stressed that the claimed right to a fair process by the minor complainant belongs only to the minor and not to another complainant, and therefore a breach of the rights as established in Article 12, paragraph 2 of the Convention on the Rights of the Child and Article 3(b) of the European Convention on the Exercise of Children’s Rights can only be invoked by a minor; generally these rights shall only be applicable to children and not per se to parents (see resolution No. II. U.S. 393/05, II. U.S. 1818/07, available at http://nalus.usoud.cz). … The right to be heard in all proceedings in which decisions will be made on matters explicitly regulated in Article 12 of the Convention on the Rights of the Child and Article 3 of the European Convention for the Exercise of the Rights of Children, as well as in Section 31 (3) of the Family Code and Section 100 (4) of the Civil Procedure Code, provides the child with the possibility to appear in any judicial or administrative proceedings affecting him, either directly or through a representative or an authority, in a manner where the hearing shall be done in accordance with the procedural rules of national law. In other words, the child is guaranteed the right to allow authorities to express his opinion on issues that directly affect him, allowing him (only to a certain extent) to offset his unequal position in relation to his parents or legal guardian. … Under Article 32(4) of the Charter, the rights of the parents may be limited and minor children may be separated from parents against their will only by a court decision. The material conformity of such an interference with fundamental rights and freedoms, according to Article 8(2) of the [European Convention on Human Rights] is achieved if this interference seeks any of the legitimate objectives and if it is necessary, meaning particularly proportionate to desired purpose (see Decision European Court of Human Rights in the case Couillard Maugeri v. France, No. 64796/01).
CRIN comments: CRIN believes this decision is consistent with the CRC. Children have the right to express their views in all matters that affect them under Article 12 of the Convention, and, as noted by the Court, these views must be taken into account in accordance with the child’s age and maturity.
Citation: III.ÚS 3007/09 Link to Full Judgment: Available here via http://nalus.usoud.cz/Search/Search.aspx