System of Social and Legal Protection of Children in the Czech Republic
- Children subject to social and legal protection
- Entities providing social and legal protection of children
- Keeping records and file documentation
I. Children subject to social and legal protection
First, we have to define a “child” for the purposes of social and legal protection. The Act on Social and Legal Protection (SLP Act) defines a child as a person under legal age, in accordance with the Convention on the Rights of the Child. According to Article 1 of the Convention a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. According to s. 8, Civil Code, majority shall be acquired by achieving the age of eighteen years; before achieving this age, majority can be acquired only by entering into a marriage (not earlier than at the age of 16).
Social and legal protection is afforded to all children on the territory of the Czech Republic, notwithstanding their nationality. Differences apply only to the extent of the provided social and legal protection.
According to s. 2(2) of the SLP Act social and legal protection shall be provided to a child, who:
- has permanent residence within the territory of the Czech Republic,
- according to Act No. 326/1999 Coll., on the residence of foreign persons in the territory of the Czech Republic, as amended, has been granted a residence permit or has been registered for residence in the territory of the Czech Republic for a period of at least 90 days,
- has filed a motion to commence procedure on granting of international protection in the territory of the Czech Republic (i.e. asylum procedure or subsidiary protection according to Act No. 325/1999 Coll., on asylum, as amended, hereinafter referred to as “Asylum Act“),
- is authorized to permanent residence in the territory of the Czech Republic, or
- resides in the territory of the Czech Republic with a parent, who has applied for a temporary protection residence permit in the territory of the Czech Republic or already resides in the territory of the Czech Republic under a granted temporary protection residence permit according to Act No. 221/2003 Coll., on Temporary Protection of Aliens, as amended.
This corresponds to Article 2 of the Convention on the Rights of the Child, according to which the States Parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. This, in addition to a child with permanent residence, shall mean also a child with a temporary residence permit, staying in the territory of the Czech Republic for at least 90 days from the date of registration, and a child, who has filed a motion to commence procedure on granting international protection within the meaning of Act No. 325/1999 Coll., Asylum Act, as amended, and a child authorized to permanent residence in the territory of the Czech Republic within the meaning of s. 87, Act No. 326/1999 Coll., on the residence of foreign persons in the territory of the Czech Republic and amendments to certain acts, as amended. This provision governs situations related to children of aliens in substitute care by a decision of an appropriate authority, provided that at least one person, to whom the child has been entrusted, has permanent residence in the territory of the Czech Republic or that the relevant children’s home is located in the territory of the Czech Republic. In addition to the mentioned forms of stay this includes also a stay under a granted temporary protection residence permit or a filed application for a temporary protection residence permit for the territory of the Czech Republic.
The SLP Act in s. 2(3) stipulates an obligation to grant social and legal protection also to children not meeting the above stated conditions, provided that such social and legal protection shall be granted within an indispensable extent as specified directly in s. 37 of the SLP Act. This provision imposes the obligation to grant social and legal protection on municipal authority and municipal authority of a municipality with extended competences (city authority, in Prague authority of the relevant metropolitan district) and the obligation consists in adoption of measures to protect life and health and to secure basic needs to the minimum necessary extent including health care.
The situation of the particular child constitutes a material circumstance for granting social and legal protection, when the reason for granting consists in resolving a factual problem.
Thus the SLP Act defines materially the group of children subject to social and legal protection, however, only by way of examples (s. 6), mostly due to the fact that there are numerous situations of children and their parents, which cannot be specified comprehensively in the Act.
Typical circumstances leading to actions of social and legal protection are as follows:
- parents of the children died; they fail to meet their obligations arising out of parental responsibility; they fail to exercise or abuse rights arising out of parental responsibility,
- the children have been placed in the custody of another natural person (than a parent) and this person fails to meet obligations arising out of the decision on granting the custody of the child,
- the children lead a truant or immoral life, particularly they neglect school attendance, do not work even though they have insufficient resources for living, they drink alcohol or use other addictive substances, make their living as prostitutes, they commit a crime or in case of children under 15 years of age an act that would otherwise be a crime, repeatedly commit offences or otherwise threaten public order,
- the child repeatedly runs away from the parents or other natural or legal persons responsible for its upbringing,
- a crime was committed against the children that threatened their life, health, freedom, human dignity, moral development or property, or there is a suspicion of such a crime having been committed,
- children, who upon a request of the parents or other persons responsible for the upbringing of the child were repeatedly placed into institutions providing constant childcare or placement of whom in such a facility lasts for more than 6 months,
- children threatened by violence perpetrated between the parents or other persons responsible for the upbringing of the child, or by violence among other physical persons,
- children, who are applicants for asylum and are separated from their parents or other persons responsible for their upbringing,
provided that such circumstances have such duration or intensity that result in adverse consequences for the children’s development or the circumstances cause or may cause improper development of the children.
Therefore, the SLP Act does not condition social and legal protection by any single event or short-term effects, on contrary, it assumes continuance of such circumstances for a time that requires an adequate solution to the situation. Should such circumstances consist in a single occurrence, this would have to be of intensity able to influence the child’s development adversely.
II. Entities providing social and legal protection of children
Another issue consists in specification of entities providing or ensuring social and legal protection of children. In this respect we have to mention that within the meaning of the key principles courts constitute the general authorities charged with protection of children and social and legal protection measures are exercised by specialized bodies. These are specified by s. 4(1) of the SLP Act, which also defines their scope of competence. The authorities providing social and legal protection to children are:
- municipal authorities of municipalities with extended competences (city authorities, in chartered towns metropolitan and town district authorities, in Prague authorities of charged metropolitan districts),
- municipal authorities,
- regional authorities (in Prague the City Hall of the Capital of Prague),
- Ministry of Labour and Social Affairs and
- Office for International Legal Protection of Children.
Social and legal protection of children is also provided by municipalities and regions with separate powers, commissions for the social and legal protection of children and other legal and natural persons, if authorized to exercise of social and legal protection (s. 4(2), SLP Act), however, these are not authorities in the sphere of social and legal protection of children.
Because namely municipal authorities of municipalities with extended competences and municipal authorities are able to monitor the children’s rights protection and adopt timely measures with a knowledge of the relevant issues and local circumstances, the Act charges them with most of obligations in the sphere of protection of children and assistance to parents and other persons responsible for upbringing of children.
Here we should also state the commission for the social and legal protection of children (hereinafter referred to as “commission“), established by a mayor of a municipality with extended competences as a special municipal body according to s. 106 of Act No. 128/2000 Coll., on municipalities (local government), as amended, and according to s. 38 of the SLP Act. The commission is only intended to exercise delegated powers in the sphere of social and legal protection of children.
Tasks of the commission according to the SLP Act include, inter alia: coordinating exercise of social and legal protection within the territory of the administrative district of a municipality with extended competences, designing and assessing social and preventive programmes in the sphere of protection of children or assessing individual cases of exercised social and legal protection of children and issuing opinions thereon.
Participation of the commission members and invited persons shall be considered as another act in public interests according to s. 203 Act No. 262/2006 Coll., Labour Code, and according to s. 38(7) of the SLP Act they shall be entitled to compensatory wage/salary. The commission members and invited persons not working under employment relation or relation similar to employment but involved in gainful activities shall be entitled to a compensation for lost earnings for the term of exercise of a commission member office in the amount proved by evidence, not exceeding CZK 80 per hour or CZK 680 per day. The commission members and invited persons shall also be entitled to compensation for travel costs in the amount proved by evidence. The mentioned compensations shall be paid by the municipal authority of a municipality with extended competences.
Powers of regional authorities include, in addition to control and methodological tasks, almost the entire process of mediation of substitute family care, deciding on authorization for exercise of social and legal protection of children by natural and legal persons and deciding on state subsidy to promoters of facilities for children requiring immediate help. In relation to municipal authorities and municipal authorities of municipalities with extended competences regional authorities act as a superior control body and an appellate body authorized to review decisions of municipal authorities and municipal authorities of municipalities with extended competences in administrative procedure.
Another authority is the Ministry of Labour and Social Affairs (hereinafter referred to as „Ministry“), the scope of powers of which includes care for family and children at risk in general. The Ministry provides for due legislative regulation in this sphere and within the statutory framework manages execution of state administration in the sphere of social and legal protection of children by issuing legal regulations and guidelines (s. 92, Act No. 129/2000 Coll., on regions). The Ministry also acts as a control and appellate body in relation to regional authorities, executes the second instance agenda of substitute family care and keeps a national register of natural and legal entities charged with exercise of social and legal protection of children.
The Office for International Legal Protection of Children (hereinafter referred to as “Office”) is an administrative agency with state-wide powers authorized to address issues of children protection in international affairs. The Office was established by the SLP Act and is subordinated to the Ministry (s. 3).
The SLP Act allows also non-state entities (foundations, civil society associations, churches and other legal and natural persons) authorized by a regional authority or the City Hall of the Capital of Prague to perform particular tasks in the sphere of social and legal protection of children, provided that these tasks are directly specified by s. 48 of the SLP Act. In case that a legal or natural person applies only for an authorization for a summer educational and recreational camp, the authorization shall be issued by the above stated commission for the social and legal protection of children established by the municipal authority of a municipality with extended competences. Authorized entities do not constitute social and legal protection authorities.
III. Keeping records and file documentation
The SLP Act (ss. 54 and 55) charges a municipal authority of a municipality with extended competences to keep records and file documentation on children provided with social and legal protection and children for whom the authority has been appointed as a guardian. Files contain particularly personal data of children and their parents, data about the educational situation of such children, records on results of investigations into the family, minutes and records of meetings with the parents or other persons, copies of filings and petitions to courts and other state authorities and written copies of decisions made by the courts, prosecution authorities and administrative authorities. The implementation regulation specifying the scope of records keeping with respect to children and contents of files held by social and legal protection authorities and contents of files on applicants for adopting or fostering children is the MLSA Instruction file no. 21-12242/2000 dated 15 March 2000 (amended by MLSA Guidance file no. 21-42246/2002 dated 29 October 2002). Full wording of the Instruction was promulgated in the Government Bulletin for Regional and Municipal Authorities (chapter 6 of 28 November 2002). Files may consist also of records on technical data media. In addition to files a municipal authority of a municipality with extended competences also keeps other documents, which form the basis for drawing up the file documentation, for example notices by natural persons regarding a threat to a child according to s. 7(2) of the SLP Act. These documents are not available to any authority, natural or legal person. The documents may only be presented at court and to the public prosecutor's office, in cases where data contained therein is related to criminal prosecution.
Data contained in the file regarding a child can be used by a municipal authority of a municipality with extended competences only in the interest of the child.
Only a parent with parental responsibility or another person responsible for upbringing of the child or their representative on the basis of a written power of attorney, can on the basis of a written application look into the file documentation related to a child, unless it applies to administrative proceedings. A power of attorney issued to a representative of parents does not require authenticated signatures of the parents. An authentication of signature on a power of attorney may be required only in case of reasonable doubts regarding authenticity of the power of attorney (e.g. when only the representative of the parent alone comes to the municipal authority of a municipality with extended competences and the municipal authority is not aware on the basis of prior negotiations of any authorization given by the parents to the relevant representative and simultaneously the authenticity of the power of attorney cannot be immediately verified with the parents by phone etc.). However, in principle a plain written form of the power of attorney without authenticated signatures is sufficient.
A blind person will be read the content of the file documentation and the municipal office of a municipality with extended competences will upon request of the given person allow his/her accompanying person to look into the file as well.
Parents or other persons responsible for the child’s upbringing or their representative on the basis of a written power of attorney searching in the files have the right to make extracts and copies (for a fee) of all or part of such documentation; the fee for making copies of files shall be determined according to Act No. 634/2004 Coll., on administrative charges and fees, as amended (currently the administrative fee amounts to CZK 15 per copy page produced by a copy machine). Therefore, making copies of files on a child constitutes an exception from the rule according to which acts related to exercise of social and legal protection of children are exempt from charges and fees.
Searching in files does not fall into the scope of Act No. 106/1999 Coll., on free access to information, as amended.
A municipal authority of a municipality with extended competences shall within 15 days from the date of application filed by the parent or person responsible for upbringing of the child to search in the mentioned files
- inform the parents or the person responsible for the child’s upbringing that they are allowed to search in the files and will specify the date of files inspection, in such case no decision shall be issued, or
- decide to refuse the written application should it be contrary to the interests of the child, or if the documentation may reveal identity of the natural person, who notified facts according to s. 7 of the SLP Act.
The above stated provision shall apply mutatis mutandis to keeping files on a child by other social and legal protection authorities and managing files held by a municipal authority of a municipality with extended competences.
A municipal authority of a municipality with extended competences is also obliged to ensure storage of all data contained in the files and related to:
- a child exempted from the files, for a term of 15 years following the calendar year of exemption,
- a child, who was adopted or placed into foster care, for a term of 15 years following the calendar year when the child reached legal age,
- an applicant for adoption of foster care, for a term of 15 years following the calendar year of exemption of the applicants from the files.
The obligation to provide for due storage of all data in the files the shall apply mutatis mutandis to files kept on adoption and foster care mediation by a regional authority according to s. 22 of the SLP Act and by the Ministry according to s. 23 of the SLP Act.
Employees of social and legal protection authorities, employees of municipalities with extended competences working in a municipal authority and employees of social and legal protection facilities shall according to the SLP Act be obliged to hold in confidence any and all facts, which they learn upon carrying out tasks of social legal protection or in direct relation thereto (s. 57). They are also obliged to keep confidential identity of a person the person who notifies the social and legal protection authority of a possible threat to a child according to s. 7 of the SLP Act and also any data on persons into the custody of whom, as of future adoptive parents, the child has been placed, and also on the place of stay of such a child. Further they are obliged not to disclose a place of stay of a parent who has become victim of domestic violence in a family with a child.
The obligation to maintain confidentiality shall survive termination of the employment, provided that the employees may be released from this obligation only by the person, in whose interest this obligation applies, by a written waiver stating the scope and purpose thereof.
The obligation to maintain confidentiality is also imposed on authorized persons and other natural persons who during cooperation with social and legal child protection authorities and social and legal child protection facilities learn about facts that must be kept confidential by the employees of the social and legal child protection authority.
The SLP Act contains also sanctioning provisions. A natural person, who discloses or distributes data on adoption of a child and thus complicates the care by the adoptive parent or upbringing of an adoptive child, commits an offence, for which a fine up to CZK 50 000 may be imposed.