Does the new law take parents away from children? A dangerous mistake that defies both law and psychology

Media headlines have enormous power. In just a few words, they can create the impression that a complex legal issue has a simple solution. This is exactly how the article with the title works"The child doesn't want to be with its parents? No one will force them again."At first glance, it is a message that inspires compassion and respect for the child. On closer inspection, however, it represents a dangerous simplification that can give the public a wrong idea of ​​what is really required by international law, the jurisprudence of the European Court of Human Rights (ECtHR), the Constitutional Court of the Czech Republic and modern child psychology.

It must be said quite frankly that no sane person advocates forcible physical coercion of a child into contact with a parent. Such a procedure would not only be unethical, but also usually contrary to the best interests of the child. However, the opposite extreme is just as dangerous - to create the impression that a child's mere statement "I don't want to be with a parent" automatically means the end of the parental relationship. Such an approach is not a manifestation of child protection. It is the resignation of the state from its basic obligations.

Public debate today often slips into a false dilemma: either we force the child or we fully respect his wishes. However, international law does not stand on either of these extreme positions. It requires something much more demanding - an individual assessment of each case, a thorough investigation of the reasons for refusing contact and active protection of the family life of the child and both parents.

The Czech Republic is boundConvention on the Rights of the Child, Article 9(3) of which states that the child has the right to maintain regular personal contact and direct contact with both parents, unless this is contrary to his or her best interests. Therefore, the basic rule of international law is not to separate a child from one parent, but to preserve the relationship with both parents. The limitation of this right constitutes an exception that must be convincingly justified by the specific circumstances of the case.

The same principle follows from Article 18 of the Convention on the Rights of the Child, according to which both parents bear joint responsibility for raising the child and the state should create conditions so that they can actually exercise this responsibility. This is not just a political recommendation. It is an international commitment of the Czech Republic.

The jurisprudence of the European Court of Human Rights is no less clear. Article 8 of the European Convention on Human Rights protects the family life not only of the child, but also of both parents. The European Court repeatedly emphasizes that the state not only has an obligation not to interfere in family life, but alsopositive obligationcreate conditions for its preservation and restoration. It is not enough to issue a judgment and state that the child refuses contact. Public authorities must take all reasonable steps that can reasonably be expected to restore the broken relationship between the child and the parent.

This principle pervades the judgments of the ECtHR in casesIgnaccolo-Zenide against Romania,Hokkanen proti Finsku,Glaser v United Kingdom,Kutzner v. Germanyor by judgment of the grand senateStrand Lobben and others against Norway. In all these cases, the court reminded that time is irreplaceable in family matters. Every month of inactivity can mean an irreversible loss of emotional bond between child and parent. Failure of the state to protect these relationships may in itself constitute a violation of Article 8 of the European Convention.

It is noteworthy that the European Court has never expressed the principle that the child decides for himself whether or not to maintain contact with the parent. The child's opinion is undoubtedly important and must be respected. However, it is not the only criterion. The court must always examine whether the opinion is authentic or whether it is the result of a long-term parental conflict, loyalty pressure, psychological influence or other circumstances. To accept without further statement "the child does not want" is to give up on the search for the truth.

The jurisprudence of the Constitutional Court of the Czech Republic follows the same path. He repeatedly emphasizes that the best interest of the child cannot be equated only with his immediately expressed wish. The court is obliged to assess all the circumstances of the case, to examine the long-term benefit of the child, the preservation of his family ties, the proportionality of the intervention in family life and to look for solutions that preserve the child's relationship with both parents as much as possible.

It is here that law naturally connects with psychology. Developmental psychology has long pointed out that a child builds his identity through his relationship with both parents. It's not just about daily contact. It is about creating a sense of self-worth, security, belonging and continuity of one's life. If one parent is removed from his life without an objectively serious reason, the child does not just lose a specific person. He loses half of his family story, part of his identity, ties to his extended family, grandparents, siblings, traditions and life experiences.

Professional psychological studies have long-term linked the loss of a significant relationship with a parent to an increased risk of anxiety, depressive symptoms, self-esteem disorders, insecurity when forming partner relationships, trust disorders, psychosomatic difficulties or problems in social functioning. Of course, it cannot be said that these consequences will manifest themselves in the same way for every child. It depends on the specific situation, the age of the child and the reasons for restricting contact. However, it is precisely for this reason that it cannot be mechanically assumed that a long-term break in the relationship with a parent is psychologically neutral. On the contrary, it is an intervention that can affect the child throughout his life.

Especially dangerous are the cases when, years later, the child begins to believe that the rejection of the parent was solely his own free decision, although his attitudes were formed in an environment of long-term conflict or unilateral influence. This is precisely why the European courts demand a thorough examination of the reasons for the refusal of contact. It is not enough to listen to the child. It is necessary to understand how and why his opinion was formed.

Nevertheless, legislative considerations and media interpretations are emerging today that can lead to the exact opposite. Instead of actively working with the family, there is a danger that the state will only state the existing situation and resign from its duty to protect family relationships. As a result, such an approach could legitimize not only long-term conflicts between parents, but also cases where the child's relationship with the other parent is disturbed by psychological pressure or systematic devaluation. It would not be about protecting the child, but about institutionalizing the consequences of adult failure.

Therefore, the solution is not to force the child or to leave the child at the mercy of the parents' conflict. The solution is to be active. The state, which acts quickly, provides families with quality mediation, psychological help, assisted contacts, professional therapy and makes decisions without delay. Only then, if all reasonable measures have been exhausted and there are objective reasons indicating that the contact would seriously endanger the child, can it be restricted. Such a procedure corresponds to international law. Everything else represents a resignation to the protection of family life.

The modern rule of law must not be subject to simple slogans. A child's right to both parents is not a relic of the past or an obstacle to his best interest. In most cases, it is a basic part of it. If we mistake the child's immediate wishes for his long-term best interest, and if the state ceases to actively protect family ties, this will not be progress. It will be a departure from the principles that the Czech Republic has accepted as its international obligations, which are protected by the European Convention on Human Rights, the Convention on the Rights of the Child and the constitutional order of the Czech Republic. And in the end, neither the parents nor the courts will pay the highest price for such a mistake. It will be paid by children who lose the opportunity to grow up with both parents, even though international law expressly guarantees them this opportunity, unless there is a really serious obstacle.

Source:

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

European Court of Human Rights. (2000).Glaser v. the United Kingdom. Application No. 32346/96. Judgment of 19 September 2000. Strasbourg: Council of Europe.

European Court of Human Rights. (2000).Ignaccolo-Zenide v. Romania. Application No. 31679/96. Judgment of 25 January 2000. Strasbourg: Council of Europe.

European Court of Human Rights. (2002).Kutzner v. Germany. Application No. 46544/99. Judgment of 26 February 2002. Strasbourg: Council of Europe.

European Court of Human Rights. (2019).Strand Lobben and Others v. Norway. Application No. 37283/13. Grand Chamber Judgment of 10 September 2019. Strasbourg: Council of Europe.

United Nations. (1989).Convention on the Rights of the Child. New York: United Nations.

United Nations Committee on the Rights of the Child. (2009).General Comment No. 12 (2009): The Right of the Child to Be Heard (CRC/C/GC/12).Geneva: United Nations.

United Nations Committee on the Rights of the Child. (2013).General Comment No. 14 (2013): The Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Article 3, Paragraph 1) (CRC/C/GC/14).Geneva: United Nations.

Lamb, M. E. (Ed.). (2012).The Role of the Father in Child Development. 5th ed. Hoboken, NJ: John Wiley & Sons.

Warshak, R. A. (2014).Social Science and Parenting Plans for Young Children: A Consensus Report.Psychology, Public Policy, and Law, 20(1), 46–67.