(Articles 9 & 18, CRC; sections 26–27, Constitution; Chapter 10, FLA)
The Constitution establishes parents’ right and duty to raise and care for their children. The Convention on the Rights of the Child states that parents have a joint responsibility for their child and that primary responsibility for raising and developing the child lies with his/her parents (legal guardians, in certain instances). Rights and duties between a parent and the child also arise when the child is adopted. Where a parent fails to raise or care for his or her child, the parent’s rights may be restricted for the reason of failing to perform parental duties.
A child may not be separated from his or her parents against his or her will except where competent public authorities decide, in accordance with the law, that a separation is in the child's interests. Weighing up interests, the European Court of Human Rights attaches particular importance to the child’s best interests, which may, due to their nature and impact, outweigh a parent’s right to a family life (see
Johansen versus Norway).
Below, the right of custody and its subclasses are discussed. Parents have a duty and a right to take care of their child. That is, a parent has a right of custody. The right of custody divides into the right of custody of a person and the right of custody of property.
The
right of custody of a person (sections 124–126, FLA) means parents’ right and duty to raise the child, look after him or her, designate his or her whereabouts and otherwise attend to his or her welfare in every way. Under the right of custody of a person, a parent is forbidden to abuse the child physically, mentally or emotionally or to apply any other degrading rearing methods. In no event must a child be subjected to corporeal punishment. When providing an education, parents have a duty to consider a child’s capabilities and inclinations above all else. Failing relevant aptitude, parents have a responsibility to request help from educators or other qualified persons. The right of custody of a person includes a parent’s right to require anyone holding his or her child unlawfully, against the parent’s will, to turn over the child (see the following paragraphs: decision No.
3-2-1-79-96, Civil Chamber of the Supreme Court, 5 June 1996). Under the right of custody of a person, a parent has the right to designate the third parties who the child may interact with, with a restraining order mandatory for them to abide by. The designation of acquaintances must allow for the fact that, under the Convention on the Rights of the Child, a child has a right to privacy (see clause 4, “Rights of the Child”), meaning that a child may choose his or her own friends and acquaintances. The above freedom may be afforded insofar as it does not endanger the child. If a parent wishes to ascertain whether a friend, acquaintances or circumstances present a danger, a relationship of trust has to be established with the child in order for the issues to be discussed. A parent, making a judgment, must explain why, in his or her opinion, a choice is not appropriate.
In decision No.
3-2-1-79-96 of 5 June 1996, the Civil Chamber of the Supreme Court adopted the view that whereas a parent (including an adoptive parent) does, under the Family Law Act, have a right to require anyone holding his or her child against his or her will to turn the child over to him or her, it is not in the child’s best interests to grant custody of a child to a parent (father) if the child has spent most of his or her life with a third party (grandmother) with whom a close relationship has been formed. As the child’s interest outweighed the parent's interest, the Supreme Court granted custody of the child to the grandmother in its decision. The child, too, expressed a wish to remain with the grandmother.
The Supreme Court has said in
case No. 3-2-1-4-07 of 1 March 2007 that a court can terminate parental rights if a parent has misused his or her rights or has unlawfully or wrongfully neglected his or her duties as a parent to raise and care for the child. Shirking duties to raise and care for a child is also constituted by a parent neglecting to provide care for and oversight of a child, that is, by a parent failing to perform his or her duties deliberately. Termination of parental rights does not release a parent from providing support to his or her under-age child. The panel found it important to point out that the termination of parental rights is an extreme judicial remedy to protect the interests of the child. The aim of the law is not to punish a parent with the termination of parental rights but to protect the child from a parent who, without any compelling reason, does not properly fulfil his or her duties as a parent or who, through his or her activity, harms the child’s interests.
In the same decision, the Court stated that parental rights may be terminated if a parent has a harmful effect on a child. The panel was of the view that a harmful effect on a child is not only a parent's violent or threatening behaviour towards the child but that it may also be violent or threatening behaviour towards people close to the child, if the child so perceives it. Therefore, threatening phone calls between parents may have a harmful effect on the child, although the child might not know the exact content of the phone calls.
The right of custody of property (sections 127–133, FLA) confers on a parent a right and a duty to manage the child’s property and act as the child's representative. The most important thing to remember is that the child’s funds must be managed prudently. This is to say that parents have a duty towards the child, in exercising their right of custody of property, to apply the same level of care as in case of their own affairs.
Property acquired by a child by inheriting or gifting has to be managed by parents in accordance with instructions from the person who provided the property, and any deviation from the instructions is permissible only if a failure to deviate from them might harm the child's interests. The child’s funds may be applied toward the defrayal of the costs of supporting the child. Parents must keep their own assets separate from any funds not needed to support the child, manage the child's property or defray other recurring expenses. Specific requirements for investing funds are set out in the Family Law Act. In certain instances, carrying out transactions on behalf of the child requires the sanction of a court.
To carry out transactions on behalf of the child, the sanction of a court is required in the following instances:
- disposing of real property or an interest in real property held by a child;
- disposing of instructions aimed at the transfer of real property or at the creation, transfer or expiry of an interest in real property held by a child;
- also, undertaking to act on the said authorisations;
- concluding a contract aimed at the acquisition of real property or an interest in real property on behalf of a child or making the child’s real property available for use.
A parent needs no sanction from a court in order to:
- execute a transaction whereby a child assumes an obligation to dispose of all of his or her property, inheritance or a legally mandated or compelled share in a future inheritance;
- conclude a contract aimed at the sale or acquisition of a business or an organisationally autonomous unit thereof as well as a contract of partnership aimed at the launch of a business;
- lease out a business venture;
- acquire a share in a legal entity or becoming a shareholder in one;
- conclude a long-term contract that does not expire or cannot be cancelled for a year from when a child becomes of age;
- take out a loan;
- acquire and sell securities;
- execute a transaction creating liability by the ward for the obligations of another person or a transaction encumbering the child’s property in order to secure the obligations of another person;
- conclude an agreement to break up a common ownership or to preclude or defer this;
- execute a transaction in order to terminate a child’s claim, reduce it or its collateral or create such liability except in certain instances where the child’s funds are invested (sections 186 (2) and (4), FLA).
As a child's representative, a parent cannot gift the child’s property. Parents have no right to launch a new business venture on behalf of the child. In addition, parents have no right to turn over to the child any objects in order to perform a contract concluded by the child or to use them without restraint if their sale requires the sanction of a court. The sanction of a court is not needed for relinquishing an inheritance if the child’s right to the inheritance has arisen as a result of a parent, who has the right to act as the child’s representative, relinquishing the inheritance.
Although the primary responsibility for raising and developing a child lies with his or her parents, under section 27 of the Constitution, the State has a duty to protect the family and to support and help parents to raise children. The State must in every way help, support and counsel parents in raising children through education and medical systems and social services provided by a local government. The State recognises the right of families with children to receive a family allowance to defray part of the costs related to caring for, raising and educating a child. Family allowances set out in the
Family Benefits Act and paid monthly include the child allowance, child care allowance, single parent’s child allowance, conscript's child allowance and foster care allowance. One-off family allowances include a childbirth allowance, adoption allowance and start in independent life allowance. Family allowances paid quarterly include family allowances for families with four or more children and for families raising triplets. Once a year, a school allowance is paid. In addition to State family allowances, a local government may pay children and families additional allowances funded from its budget.
Põhiseadus. Kommenteeritud väljaanne. Teine täiendatud trükk, lk 301. (Constitution. Annotated edition. Second updated edition, page 301.)