Does the Ministry of Justice cover repeated delays? When kids lose to the system

There is a moment when the rule of law ceases to be judged by what is written in the Constitution, laws or international treaties. He begins to be judged by whether he is able to protect the weakest - the children. And here, in my opinion, the Czech state fails in some guardianship matters.

The most alarming thing is not the violation of court decisions by one of the parents. Unfortunately, this can happen in any country. Something else is really worrying. How do state authorities react to such situations. And it is here that a question opens up that goes far beyond one particular dispute.

Opinion of the Ministry of Justice issued in proceedings pursuant to Act No. 82/1998 Coll. in my opinion it reveals a deeper systemic problem. Instead of dealing with whether the state has really ensured the effective protection of family life, the ministry focuses primarily on the formal description of the court's procedural actions. As if the very existence of a resolution, a meeting or an appointed expert is proof that the state has fulfilled its obligation.

But the child does not know how many resolutions have been issued.

A child only knows if it can be with its father or mother.

It is here, in my opinion, that the formal legal approach collides with the reality of human life.

If the court issues an enforceable decision that remains disrespected for a long time, it is not just a problem of one parent. It is a failure of the authority of the state. The right cannot be based on voluntariness. The court's decision is not a recommendation or a non-binding opinion. It is a binding act of public authority. If the state is unable to ensure that it is respected, it weakens citizens' confidence in the very meaning of judicial protection.

Even more serious is the fact that precisely in guardianship cases, time represents an irreplaceable value. Every month that a child loses contact with one parent changes his psychological development, emotional ties and perception of his own family. Such consequences cannot be rectified after several years with a new judgment or an apology from the state. A lost childhood cannot be returned.

The European Court of Human Rights says this repeatedly and unequivocally. The rights guaranteed by the Convention must not be merely theoretical or illusory. It must be practical and effective. In the area of ​​family life, this means that the state must not be a passive observer. He has a positive duty to act quickly, actively and efficiently. It is not enough to decide. It is necessary to ensure that the decision actually works.

Nevertheless, in my opinion, one can still observe an approach that reduces the protection of fundamental rights to procedural statistics. Proceedings were conducted. An expert was appointed. A meeting took place. And thus it is as if the responsibility of the state has been exhausted.

But this approach is in direct contradiction to the meaning of the protection of fundamental rights.

The Constitutional Court repeatedly emphasizes that the best interest of the child must be the primary consideration in every decision. However, the best interest of the child cannot be measured by the number of procedural acts. It is measured by the result. And the result should be a child who can grow up in a safe environment and maintain a full-fledged relationship with both parents.

The Civil Code is equally unambiguous. Section 889 explicitly states that a parent who without reason permanently or repeatedly prevents the other parent from having contact with the child creates a reason for a new decision on custody. The law thereby sends a clear signal: the child's right to both parents is not an empty declaration. It is a value that the state must protect even against the will of the parent who violates it.

In addition, the Act on Special Court Procedures provides the courts with a whole range of tools – fines, mediation, addiction treatment, professional assistance, OSPOD supervision, as well as the ultimate option of enforcing the decision by taking the child away. These institutes were not adopted to remain a dead body of law. They are to be used when the child's right to both parents is threatened.

If this is not happening, a legitimate question arises as to whether the state is really fulfilling its positive obligations under Article 8 of the European Convention.

It is even more serious if the current jurisprudence of the European Court of Human Rights is overlooked when assessing state responsibility. The Novák v. Czech Republic judgment once again reminded that the state must not allow the passage of time to legitimize a state of affairs created by the unilateral actions of one of the parents. In other words, whoever violates the law must not benefit from delays in proceedings. If, in the meantime, the child adapts to the illegally created situation, this adaptation cannot automatically be considered an argument for maintaining the status quo. Such an approach would mean that time becomes the ally of those who do not respect court decisions.

And here, in my opinion, the most fundamental question arises.

What message does the state send to parents who respect court decisions?

What message does it send to children?

What message does it send to the public?

If a citizen repeatedly asks the court for protection, submits proposals for the execution of the decision, draws attention to continued violations of the law, and finally learns that everything was actually fine because the court issued a decision, then it is not surprising that trust in justice weakens.

The rule of law does not depend on a number of decisions.

It stands on their effectiveness.

It does not depend on the number of meetings.

It depends on whether it protects fundamental rights.

It does not rely on procedural formalities.

It stands for justice.

If the state is unable to protect a child from the long-term loss of a relationship with one parent even when there are enforceable court decisions, then this is not just a problem of an individual dispute. This is a warning signal for the entire legal system.

And that is precisely why this question should not be of interest only to participants in one guardianship proceeding. It should be of interest to anyone who cares about the functioning of the rule of law.

Because today the state may not have been able to protect a child in one particular case.

Tomorrow could fail for any of us.

The greatest threat to the rule of law is not the individual errors of the courts. These are unavoidable and fixable. The real threat is when exceptions become a system, when delays are excused by the complexity of the matter, inaction is disguised as procedural restraint, and unexecuted court decisions become a common part of reality.

Such a state gradually loses its authority. Not because he doesn't have laws. But because he cannot enforce them effectively.

If we want to maintain citizens' trust in justice, it is not enough to constantly repeat that the best interest of the child is a priority. It is necessary to fulfill this priority with concrete actions. Court decisions must be enforced. Stretches must be the exception, not the standard. And the state must bear responsibility where its inaction or inefficiency allows a child to become a hostage to a long-standing parental conflict.

The rule of law is not known by how well it can write judgments.

He is known by whether he can protect the child before it is too late.

And therein lies the true test of justice.

Source:

Council of Europe. 1950. Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). Rome: Council of Europe. Available from: HUDOC - European Convention on Human Rights

United Nations. 1989. Convention on the Rights of the Child. New York: United Nations. (Especially Article 3 and Article 9 governing the best interests of the child and the child's right to contact with both parents.)

European Court of Human Rights. 1994. Hokkanen v. Finland, Application No. 19823/92, Judgment of 23 September 1994. Strasbourg: European Court of Human Rights

European Court of Human Rights. 2000. Ignaccolo-Zenide v. Romania, Application No. 31679/96, Judgment of 25 January 2000. Strasbourg: European Court of Human Rights. • European Court of Human Rights. 2002. Sylvester v. Austria, Applications Nos. 36812/97 a 40104/98, Judgment of 24 April 2003. Strasbourg: European Court of Human Rights.