For a parent, raising, caring for, representing and interacting with a child implies rights and duties intertwined, in turn, with the rights and duties of the child. For instance, the child’s right to protection implies for a parent a duty to look after the child and keep the child safe from any dangers. A parent’s right to help implies for the child a duty to help his or her parents in the family’s shared activities and daily chores. That said, a parent may expect help and involvement by the child, allowing for the child’s age. Let us bear in mind that sufficient time must be left for the child to play and rest.
In Estonia, relations between children and parents are regulated by the Constitution and the Family Law Act (FLA). In addition, children and parents must be guided in their mutual interaction by the Convention on the Rights of the Child (CRC) (see the “Children's rights and responsibilities” heading).
The Convention on the Rights of the Child enshrines the internationally recognised rights of children. The introduction of the Convention was intended to emphasise that a child is a person and has the same kinds of rights, duties, interests and needs as an adult. More often than not, adults tend to forget this. Under the Convention, the child is understood to be a legal entity, which means, put differently, that the child is a holder of rights. In sum, the child is an individual, human rights apply to the child, and the child is not subject to rights of ownership by anyone, not even his or her parent.
A child’s capacity to exercise rights and to take responsibility for choices and actions increases with the child’s development. This is also the premise for the Convention on the Rights of the Child as it links the child’s right to exercise his or her rights and to perform duties to his or her age and the level of development. This means that as the child develops, his or her right to exercise his or her own judgment increases. Until a child is not able to exercise his or her rights, his or her parents or representatives will do it for him or her. The exercising of the child’s rights must be guided by the child’s interests always.
As children cannot always protect their rights and interests, they need help and protection from adults. The child’s primary helpers and guardians are his or her parents. Children have to be protected from mental and physical violence, injustice, negligence, abuse, sexual abuse and other threats. Additionally, adults must ensure that children have what they need in order to live and establish suitable conditions for the development of children's skills and interests.
Laste õigused. Lastekaitse Liit: Tallinn, 2005, lk 71 (Children’s rights. Estonian Union for Child Welfare: Tallinn, 2005, page 71).
Read more on the duties and rights of a parent.
Right and duty to raise and take care of a child
(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.)
Right to interact with one’s child
(Section 26, Constitution; section 143, FLA)Family life is safeguarded by the Constitution, under which the family life of each person living in Estonia is inviolable. The safeguarding of family life also extends to the safeguarding of relations amongst family members. Amongst other things, the Constitution safeguards the right of parents and children to interact.The Family Law Act establishes the child’s right to interact with both parents. If the child’s interests are not in jeopardy, he or she must be able to interact regularly with both parents even if they are separated. Interaction with a parent living separately must be assured even if the two parents are on poor terms. A parent is obliged to refrain from any activity harming the child’s relationship with the other parent. The child has to be able to interact with his or her parents also if he or she is being raised or cared for by someone other than his or her parent. The person must not harm relations between the child and his or her parents in any way. That said, it has to be kept in mind that if the child does not wish to interact with a parent living separately, the parent has no right to demand interaction. The child cannot be forced to interact with a parent who frightens the child or if the interaction with the parent is not in the interest of the child for any other reason.Today, it is quite common that the workplace of a parent is far from the place of residence of the child, and therefore daily interaction and care might not be possible. A parent has to discuss taking up employment farther away with the child beforehand and, in making a decision, take the child’s views into consideration as much as possible, circumstances permitting. A parent has to keep in mind that a child has a right to being cared for by both parents. Indisputably, this is inescapable in order for a child to attain well-rounded development. If an absence cannot be avoided, a parent has to demonstrate to the child in every way, in both word and deed, that he or she will always be there for the child, irrespective of the absence.Põhiseadus. Kommenteeritud väljaanne. Teine täiendatud trükk, lk 279-280. (Constitution. Annotated edition. Second updated edition, page 279-280.)The Grand Chamber of the European Court of Human Rights has addressed a parent’s right to meeting with his or her child in Sahin versus Germany (case No. 30943/96, 8 July 2003). The court stated that Article 8 of the European Convention on Human Rights, which protects privacy and the privacy of the family, requires that a state should consider the interests of parents and children. In the Court’s view, when the interests of a parent and the child are weighed up, particular attention has to be paid to the child’s best interests that may, because of their impact and nature, outweigh the interests of the parent. Under the said Article, a parent is forbidden to apply measures that might harm the child’s health and development. Article 8 protects the family’s integrity, which also includes the child's and parent’s mutual right to be with each other. The above decision indicates that the aspect of the health and development of the child, as an interest of the child, have outweighed a parent’s right to meet with his or her the child.Case No. 21188/09 on 12 April 2011 Gluhaković versus Croatia in the European Court of Human Rights shows that the court’s decision, which states the place and time of meetings, is insufficient to ensure the right of a separated parent and a child not living with the parent to meet. In designating a place and time, a court must consider whether such meetings, allowing for the parties and circumstances, are actually possible. It is a duty of parents to facilitate meetings and, if needed, to take measures in order for meetings to occur. In the above case, the national court had designated meeting times that were not suited for the child’s father, living separately, due to work and a meeting place whose suitability the court had omitted to assess.
Right to decide on child related matters
(Section 27, Constitution, sections 145–146, FLA)With respect to the child, a parent has a right to decide, in addition to the right of custody and the right to interaction discussed in the preceding subsections. The right to decide matters concerning the child is part of the right to raise one’s children. Important matters include the choice of kindergarten, school and hobby groups and many others affecting the child’s development and related to raising the child.The rights and duties of parents having the right of custody are equal. This means that parents decide matters concerning the child together, even if the parents are living separately on a permanent basis. In exercising the right to decide, parents must always give priority to the rights of the child. Raising and caring for the child, they must consider that the child’s capacity and need to act autonomously and responsibly increase constantly. The child has to be able to be involved in the resolution of matters that concern caring for and raising him or her according to his or her age and level of development.
Right to represent the child
(§ 27, Constitution, § 120, FLA)A minor or a person younger than 18 years of age has restricted active legal capacity1. This means that children have a restricted right to execute transactions autonomously. The right of minors has been restricted, as they are not yet mature enough to make all decisions autonomously due to limited experience, knowledge and skills and, not knowing any better, might enter into agreements that prove harmful to them.A parent has a right and a duty under the Constitution to care for and raise his or her child. This entitles the parent to make certain decisions for the child and to act as the child’s representative. The legal representative of a child is a parent having the right of custody of the child. Parents with a joint right of custody have a joint right to act as the child’s representative. A parent acts as the child’s representative alone if he or she has the right of sole custody of the child or on a specific matter if a court has granted the parent the right to decide the matter.A court may expand the restricted active legal capacity of a 15-year-old if this is in the child’s interests and if the child’s level of development permits it. A court decides concerning which transactions a parent does not act as the child’s representative. Full active legal capacity, that is, the right to execute transactions independently, is acquired on becoming of age (turning 18).A parent’s right of representation in exercising his or her right of custody of property is restricted. Decisions concerning the child’s property must consider, above all else, the child’s interests. Restrictions applicable when the right of custody of property is exercised are established by the Family Law Act. This is discussed in subsection 1.1 Section 8 of the General Part of the Civil Code Act (GPCCA) establishes the bases for the active legal capacity for a natural person. The active legal capacity of a natural person is the capacity to perform valid transactions autonomously. Full active legal capacity is possessed by a person who has turned 18, that is, by a person of age. Persons under 18, that is, minors, have restricted active legal capacity. See also sections 8-12, GPCCA.
Right to respectful behaviour
(Section 19, Constitution)Under the Constitution, a duty exists to respect and consider the rights and duties of other people when exercising one’s own rights and duties. This means that freedom is not without limit. So, too, the child and a parent are obliged to respect each other and consider each other’s interests and rights. Thus, a parent has a right to respectful behaviour and a decorous attitude on the part of the child; however, this means that a parent must behave in the same way toward the child.Politeness cannot be mandated by law; however, a parent can teach the child about it. A parent should have the conviction that it is simpler to require from the child behaviour that the parent himself or herself adheres to.
Duty to support
(Chapter 8, FLA)On the one hand, a parent has a duty to support his or her children; on the other, he or she has a right to be supported by them, too.A parent is obliged to support his or her under-age child or a child who, on becoming of age, continues the acquisition of a basic or secondary education at a basic school, gymnasium or vocational educational institution until turning 21. The amount of support has to be appropriate to the child’s needs and to a normal lifestyle.Parents are not released from their duty to support an under-age child of theirs even if this endangers their own ability to cope. Parents are obliged to curb their own needs in order to enable ther child to subsist. This principle derives from the particular relationship of dependence between an under-age child and his or her parent.Under the Constitution, parents have a right to be supported by their child in the event of their incapacity for work.
Right to help
(Section 27, Constitution; section 114, FLA)A family’s duty to care for family members in need derives from the Constitution. In addition to a duty to provide financial support, family members have a duty to help one another in their daily lives. Thus, a parent is obliged to teach and develop his or her child, and a child is obliged to help his or her parent at home.Under the Family Law Act, a child is obliged to help his or her parents with household chores while living with his or her parents and while they raise or support him or her. Thus, parents have a right to help by their child. The child has to support his or her parents, contribute to the family’s shared activities and daily chores according to his or her abilities and means. When availing of the right to help, one must keep in mind that the child has a right to rest, play and spare time. This has to be taken into account by parents planning household chores and activities for their children. Apart from school, household chores and any work, the child must have time left over for activities enjoyed by him or her.Põhiseadus. Kommenteeritud väljaanne. Teine täiendatud trükk, lk 302. (Constitution. Annotated edition. Second updated edition, page 302.)