CYIL vol. 15 (2024)

PETR KONŮPKA The best interests of the child are, according to international law, including the case-law of the Strasbourg Court, 33 the leading principle and aspect that guardianship courts are supposed to follow in their decisions. Last year’s record before the Court suggests that the Czech courts are generally doing the right thing in this respect. In none of the eight family law applications decided did the Court find a violation of any right protected by the Convention, including the right to respect for family life. In addition to the two cases mentioned above, as well as in other decisions, the Strasbourg Court explicitly stated that the Czech courts had assessed the best interests of the child thoroughly and had given it due weight. Thus, in Karas v. Czech Republic 34 the Court approved limiting the father’s contact with his daughter to assisted meetings three times a year for one hour. According to the Court, the domestic courts correctly took into account, on the one hand, the child’s essentially positive relationship with her father, but, on the other hand, in accordance with the best interests of the child, they took into account the fact that the father had a negative influence on the child, acted aggressively and, although he had been given many opportunities to develop his relationship with his daughter and to demonstrate his parental skills, he had not taken advantage of them, quite the contrary. In P. N. v. the Czech Republic 35 the Court found that the domestic courts, when deciding to substitute the father’s consent to the children’s relocation to the United States of America, had taken into account the testimony of the children, who were now almost 15 years old and wished to remain in the United States with their mother, and had taken due account of their best interests. Last but not least, in last year’s family law cases, it is worth noting that the Court touched upon the question of the role and impartiality of the Office for Legal Protection in two decisions. In the case of P. N. v. the Czech Republic 36 this issue became relevant as the applicant himself had not filed an application for an order for the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction. This procedural passivity on the part of the applicant became one of the key elements for the Court’s finding that there had been no violation of his rights under Article 8 of the Convention. Judges Mourou-Vikström and Elosegui nevertheless pointed out that the Office could and should have initiated the proceedings itself, which it had not done. According to the judges, its double role as a guardian of children and as a central authority under the Hague Convention raises questions about a possible conflict of interest. The majority of the seven-member Chamber, however, did not see an issue in this circumstance. The same was the case in the Marcoski and Rath v Czech Republic decision. 37 The Court held that there was no reason to believe that the dual status of the Office had caused it to fail to take the necessary steps to protect the best interests of the child. On the contrary, it had provided the child with effective legal representation and had also argued in favour of extending contact rights of the applicant, assessing that it was in the best interests of the child. Thus, the systemic setting of the Office’s powers passed the Strasbourg test.

33 See, among many others, e.g., X v. Latvia, no. 27853/09, Grand Chamber judgment of 26 November 2013, §§ 95–100.

34 Application no. 20647/21, decision of 6 April 2023. 35 Application no. 44684/14, judgment of 8 June 2023. 36 See footnote 35. 37 Applications nos. 72064/17, 19453/18 and 5027/16, decision of 6 April 2023.

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