If the child cannot grow up in his/her own family, it is necessary to solve the situation by placing him/her in substitute care. The most optimal solution is that case the substitute family upbringing, which is always preferred over the institutional care.
Alternative care is provided in the form of:
- the substitute family care (so-called other person’s care, adoption, foster care, temporary foster care, guardianship);
- the institute care (facilities for children in need of immediate assistance, infant care homes, care homes for children under three years of age, children’s centres, evaluating institutions, children’s care homes, children’s homes with boarding schools, juvenile delinquents institutions, homes for disabled children).
Substitute family care (hereinafter referred to as SFC) – is the care for a child that is raised by persons other than biological parents in an environment most similar to the classic family life.
Forms of foster care include:
- placing the child in the custody care of another person;
- foster care;
- temporary foster care;
- guardianship (while raising the child).
Another form of assistance to children living in institutional care, but not through foster care, is the so-called “host care”.
Custody Care – Section 953 et seq. of the Civil Code
If the interest of the child requires, the court may entrust the child to the custody of a person other than the parent, provided that the person agrees to provide the custody of the child. The condition is that they provide a guarantee of successful child upbringing. When choosing a suitable person, the court will usually give priority to the relatives of the child – kinship foster care – but it may also be another person to whom the child has an emotional relationship.
The child may also be placed in the joint education of the spouses. The sole custody for one spouse can be granted only with the consent of the other spouse, provided that the consenting spouse is competent to perform legal acts or if the measure of such consent is not connected with an obstacle too difficult to overcome. In its decision-making, the court always specifies the extent of the custodian’s rights and obligations towards the child. The custody of a person other than the parent is only possible if the parents can be ordered to pay the child support.
Foster care – § 958 et seq. of the Civil Code
According to the Civil Code, foster care is a form of substitute family care in which the foster parent personally cares for the child and is responsible for the child’s upbringing. From a legal point of view, however, the relationship between a foster parent and a child as is not the same as between an adopted child and adoptive parent. The foster parent has the right to represent the child and to manage his / her affairs only in everyday matters and has no child support payments obligation. To carry out special and legal matters (such as issuing of a travel document), the foster parent must apply for approval from the child’s legal guardian or the court. If the foster parent is convinced of a conflict between the child’s interest and the decision of the child’s legal guardian, the foster parent may seek a court decision.
Foster care is a state-supported form of substitute family care, which should, under the new legislation on foster care benefits, ensure material security for the child and, taking into account the difficulty of this work, also provide the foster parents with adequate resources. The child may be placed in foster care of an individual or joint foster care of spouses. The current legislation has been in power since 1 January 2013. It explicitly stipulates the interest of the child as the determining criteria for foster custody. By law, foster care has priority over placing the child in an institutional setting. If the child can express his or her opinion freely, given his / her age and intellectual maturity, his / her opinion must be taken into account before deciding on foster care.
Foster care can be transformed into legal guardianship in cases where the child’s biological parents have died, had been deprived of their parental responsibility, their parental responsibility has been limited or suspended or their legal capacity is limited.
Foster care is granted by a court decision and only the court can terminate the foster care. It can only do so for serious reasons, but it must always terminate the foster care if the foster parent requests it. Foster care obligation ceases when the child reaches the legal age. The foster parent is obliged to support the child in maintaining contact with his or her biological parents and relatives. If the court decision has previously placed the child in institutional care, in a facility for children in need of immediate assistance or a temporary foster care, the court may temporarily place the child in custody of a person who is seeking the foster care but only with the parents’ consent. If the custody legal process has not been initiated within three months of the court decision, the court approval shall cease to have legal effect.
Temporary Foster Care – Section 27a of the Social and Legal Protection of Children Act
Since January 1, 2013, the legal regulation of temporary foster care has been significantly amended. Acting on a proposal from the authority of the social and legal protection of children, the court may entrust the child into the temporary foster care of persons registered by the regional authority as the temporary foster care providers for the period:
- for which the parent cannot raise the child due to serious circumstances (health issues, imprisonment and others);
- for the necessary period at the end of which the parent’s consent to adoption can be given (the earliest time for consent to adoption is six weeks after childbirth, i.e., for the new-borns awaiting the parental consent for adoption);
- until the court has finally decided that there is no need for parental consent (Section 821 of the Civil Code). This applies to children whose parents show a clear lack of interest. A parent’s lack of interest is considered to be clearly manifested if there were no contact attempt at least three months after the last genuine interest was expressed. However, if the parent’s conduct cannot be seen as a gross violation of his or her parental duties, the parent must be advised by the children social and legal protection authority on the possible consequences of their behaviour and at least three months with no contact attempt must have elapsed since such advice. The court decision on the parent’s lack of interest in the child is based on the assessment from the children social and legal protection authority acting as the child’s guardian or on the proposal of the parent.
Temporary foster care can last no more than one year. In particular, the purpose of temporary foster care is to give the parents time to adjust their situation so that they can take the child into their care again or, in the opposite case, to find another suitable stable family for the child. It is therefore primarily a crisis institution and only a temporary solution. The court may order the temporary custody of a child by an interim decision.
Adoption – Section 794 et seq. of the Civil Code
When adopting, the spouses or individuals accept the child as their own and acquire full parental rights and responsibility. Adoption creates the same relationship between the adoptive parent and the adopted child as it is between the biological parent and the child, as well as forms family ties to the other members of the adoptive family. All reciprocal rights and obligations between the adopted child and his or her original family cease to exist. Adoptive parents have full parental responsibilities. The adoptive parents are legally registered as the child’s parents in the birth register. However, the adoptive parents are obliged to inform the child of the fact of adoption as soon as deemed appropriate, but no later than by the start of the child’s schooling.
The new parents give the child their surname. Also, the child and the adoptive family become legally related. There must be a reasonable age difference between the adoptive parent and the adopted child, generally not less than sixteen years.
Adoption is decided by the court. The child must be living in the care of the future adoptive parent for at least six months prior to the decision, at the expense of the adoptive parents. This condition is met if, during this period, the child was cared for, at their own expense, by the foster parents, guardian or another individual who has decided to adopt the child. Where the consent of the biological parents to adoption is necessary, the condition of six months of personal care prior to the adoption is always calculated after the expiry of three months from the date of the parents granting the consent.
At present, an adult can also be adopted, unless it is contrary to good morals. The adoption of an adult is regulated by Section 846 et seq. of the Civil Code.
Guardianship (with care) – Section 928 et seq. of the Civil Code
The court will appoint a guardian to the child if:
- the child’s parents died;
- the parents were stripped of parental responsibility;
- their parental responsibility has been suspended;
- they do not have full legal capacity (and therefore do not bear parental responsibility).
The guardian acts as the legal guardian of the child. The guardian is required to raise the child, to represent and manage his or her property instead of the biological parents. The appointed guardian may or may not personally take care of the child. If the guardian personally raises the child, he is entitled to foster care child benefits. If the child is first placed in foster care, during which conditions change – for example, parents are stripped of parental responsibility – existing foster parents may be appointed as legal guardians.
There is no such legal relationship between the guardian and the child as it is between the parent and the child. The guardian is not obliged to pay child support to the child.
The legal guardian carries out his duties under the regular supervision of the court, not only concerning the management of the child’s property but also his or her personal affairs. The guardian submits regular reports about the child to the court, usually at annual intervals. Any decision made by the guardian in the substantive matters concerning the child requires court approval.