Every child needs someone who stands up for them, protects their rights and makes decisions in situations where they do not know themselves or the law does not allow them to act. Who are the people who can defend the child’s interests in everyday life and who is the person who represents them, for example in court or when parents disagree?
The natural legal representatives of a child are his or her parents. It is true that they represent the child jointly, but this does not mean, of course, that they both have to accompany the child at all times. In routine matters, such as going to the doctor or dealing with school formalities, only one of them normally acts. In such situations, they are deemed to be acting with the tacit consent of the other parent. Parents have a legal duty to act at all times in the best interests of the child and to ensure the child’s safety, health and development.
However, there are also decisions that go beyond normal administration, such as choosing a school, changing residence or signing contracts. In these cases, parents are expected to agree on the decision. Often in such cases, both parents’ signatures are required on documents. If there is no agreement, the court may decide on the proposal of one of the parents.
The right to represent the child lasts until the child reaches the age of majority, unless the parent is relieved of this responsibility or is restricted from exercising it by the court.
Tip: The Constitutional Court has dealt with a case where a mother moved her child hundreds of kilometres away, effectively preventing the father from seeing his child. According to the Constitutional Court, such a move should be taken into account in the child custody arrangements, with the proviso that the obstacles associated with the move should lie rather on the side of the parent who took the move.
If a child is a party to court proceedings, for example in inheritance, family or guardianship proceedings, he or she cannot act independently. Parents as legal guardians are obliged to represent the child and protect his/her rights. However, there is often a conflict of interest between the child and the parents in such situations. Typical examples are inheritance proceedings where both parent and child inherit from the same testator, or custody disputes between parents where independent representation of the child is needed. In these cases, the court appoints an independent guardian, called a conflict guardian, whose main task is to defend the interests of the child exclusively. It is irrelevant whether or not the court suspects that the parent actually wants to act against the interests of the child.
When appointing a guardian ad litem, the court is obliged to ensure that the guardian is a person capable of professionally defending the interests of the child. The guardian of the conflict is most often the children’s social welfare authority(OSPOD). The guardian has the duty to assess the situation objectively, to obtain the child’s opinion (if his or her age and maturity of mind allow it) before making any fundamental decision and to ensure that the proceedings are decided in the child’s best interests.
The child is also protected by other mechanisms in the proceedings. The court has a duty to ensure that any decision is made in the child’s best interests. For example, in inheritance proceedings, the court must consider whether accepting the inheritance will jeopardise the child’s financial situation.
In more complicated proceedings, such as custody or property disputes, the court may order the involvement of other professionals, such as psychologists or social workers, to help determine what is really best for the child.
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One of the most common cases where a child is represented by a person other than his or her own parent is parental divorce. Parents are still the legal guardians of the child after the divorce, but their child’s interests must be taken care of. .
Even if the parents are able to agree on everything and draw up an agreement concerning the care of the child, the guardian must be present in the proceedings. In such a situation, as a rule, he or she does not intervene significantly in the proceedings.
However, if the parents cannot reach an agreement, the role of the conflict guardian becomes more important. As a rule, he or she will visit both parents’ households to determine whether the environments are suitable for the child. He or she observes the hygiene conditions, spatial possibilities and the presence of basic facilities (e.g. a place to sleep and play). He/she also listens to the child’s opinion and often acts as a mediator between the parents or may mediate. He or she prepares a report for the court and may suggest the need for expert evidence, for example by a psychologist. The guardian will ensure that the child has impartial representation and that his or her views are heard if the child is sufficiently mature.
Courts, and thus potentially conflict guardians, also come into play in situations where parents have major disputes between them, for example, over school choice, health care or other substantive issues. In such a case, one of them may petition the court to adjudicate the dispute.
Husband and wife Honza and Petra were going through an amicable and uncontested divorce. They both agreed on the division of property and custody of their seven-year-old son Adam. They agreed to alternate custody, with Adam staying with each parent for a week and both sharing equally in the cost of clothing and supplies for their son. The agreement also included child support, with Jan agreeing to contribute CZK 6 000 per month for Adam.
On the face of it, everything went smoothly. Jan was a high-ranking manager with a monthly income of over CZK 250 000, while Petra, a primary school teacher, earned CZK 35 000 a month. Both parents agreed to the maintenance agreement. However, the OSPOD worker stated that the proposed maintenance did not correspond to Jan’s high income or Adam’s needs. Little Adam had interests that required financial support – he attended sports clubs, English classes and started playing the piano. His parents wanted to pay for everything halfway, which would have been unnecessarily financially demanding for his mother.
The OSPOD therefore brought a motion for an increase in child support to the court, stressing that child support should not only cover the child’s basic needs but also reflect the standard of living of the parent with the higher income. The court subsequently ruled that the amount of CZK 6 000 was indeed inadequate. It took into account Jan’s high income, the needs of little Adam and the different financial situation of the two parents.
If a child cannot be brought up by his or her parents, for example because the child’s safety is at risk or because of serious social problems of the parents, the child may be placed in foster care or under guardianship. These forms of care have different rules for representing the child and exercising rights.
Foster carers take care of the child on the basis of a court order but do not have parental responsibility towards the child. This remains with the child’s parents or the guardian if the parents are not fit to exercise it. Foster carers therefore do not represent the child in legal matters unless specifically authorised to do so by the court, but their role involves the day-to-day care of the child and providing for his or her needs.
Guardianship, on the other hand, is an institution where the court appoints a guardian when the child’s parents have died, been deprived of parental responsibility or are unable to exercise it. The guardian represents the child in legal matters, manages the child’s property and looks after the child’s interests. However, he or she does not have to be the person who cares for the child. Guardianship does not in itself imply a maintenance obligation towards the child, although sometimes a guardian is appointed, for example by a grandparent.
Another important situation in which the role of the guardian is crucial is the removal of the child from the parents’ care. This is one of the most serious interventions in family relationships to ensure the protection of the child in situations where his or her safety, health or development is at risk. This step can only be taken by a court decision, usually on the basis of a petition from the competent child welfare authority(OSPOD) or another authorised body.
In a given situation, the court assesses whether there is another way or support measures, such as professional counselling or social assistance, or whether removal from care is necessary. After removal, the child is placed in alternative care, for example with relatives, in foster care or in a facility for children in need of immediate assistance.
We have already mentioned the concept of OSPOD several times. Its task is to intervene in cases where a child is at risk and to provide the necessary protection and care. The OSPOD can intervene in family situations where there is suspicion of neglect, abuse or other forms of child endangerment.
OSPOD also provides families with counselling and support to prevent more serious interventions, such as placing a child in foster care. It can help resolve family conflicts, mediate professional help or suggest measures to improve the child’s situation.
In its role as a conflict guardian, the OSPOD represents the child in court proceedings, such as divorce disputes, child custody determinations, inheritance proceedings or in cases of removal of a child from the care of his or her parents.
Find out what other forms of foster care we know.
There are a number of other situations where parents cannot represent their minor child. These include:
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