Judicial Protection of the Family Rights of Parents and Children under the Family Legislation of Certain European States

Abstract

In the scientific article the author conducts a study of foreign experience of legal regulation of judicial protection of family rights of parents and children, primarily under the legislation of certain states of the European Union (such as Germany, France, the Czech Republic, Slovakia, Poland, Hungary, Latvia, Estonia) and under the legislation of the Republic of Moldova. Based on the conducted research, the author comes to the conclusion that in the German civil and French civil legislation, the Civil Code of Hungary and the family laws of Estonia and Slovakia, an exhaustive list of methods and types of judicial protection of the family rights of parents and children is not defined, although it can be formed on the basis of the analysis of the texts of individual articles devoted to specific issues of the exercise of family rights of parents and children and their protection. At the same time, as shown by the analysis of the family legislation of this state, which regulates the specifics of the protection of family rights and obligations of parents and children, the court must have the right to consider all disputes regarding the implementation of family rights of parents and children, similarly to what is provided for by Family Law of Ukraine. The French Civil Code separately defines the procedural powers of the court of first instance, which are intended to resolve cases that come up for consideration within the framework of a dispute over the exercise of parental rights. The analysis of the civil legislation of the Czech Republic, Latvia, Poland and Romania allow us to conclude that the court is not the only (albeit the main) body authorized to protect the rights of parents and children; specific methods and forms of protection of family rights, in particular parents and children, similar to French and German civil legislation, are defined in separate articles. Latvian civil law, along with the judicial protection of the family rights of parents and children, also contains a quasi-judicial form of protection represented by orphan courts, which are guardianship and care bodies of local self-government bodies and decide on the issue of transferring a child to the care and upbringing of a future adopter, on the adoption of a child, on assistance in parents' implementation of their rights and obligations towards a child, assistance to a child in case of improper implementation by the parents of their rights and obligations regarding a child, termination of the right of guardianship of the parents over a child or renewal of such right, appointment, approval or dismissal of a guardian. Polish and Romanian family legislation provide for two independent forms of protection of family rights — judicial and quasi-judicial, similar to Latvian legislation, when the issue of adoption, establishment of guardianship, resolution of disputes between parents regarding the fulfilment of parental rights and duties by them is decided by «guardianship and guardianship courts» as bodies of custody and care. The Family Code of the Republic of Moldova adopts an order with courts as bodies that ensure the protection of family rights of parents and children, guardianship bodies, and also provides that family rights are protected by competent public administration bodies, and in some cases by mediators and judicial authorities. The court, as a rule, protects the family rights of parents and children in the presence of a conflict of interests between parents and children.