Termination of Parental Rights Cannot Be Applied Automatically, But Only in the Best Interest of the Child

On 6 June 2017, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of the phrase ”drug addiction” of Article 67.f of the Family Code.

Circumstances of the case

The case originated in an exception of unconstitutionality of the phrase ”drug addiction” of Article 77.f of the Family Code, raised by the lawyer Andrei Lungu, in the case no. 2ra-181/17 pending before the Supreme Court of Justice.

According to Article 67.f of the Family Code, parents may have their parental rights terminated if they have developed chronic alcoholism or addiction to drugs.

The author of the exception of unconstitutionality contended, basically, that termination of parental rights of a drug addicted person, without an examination of each individual case, if it affects the best interest of the child, it thus amounts to unjustified interference in family life and is not proportional to the goal pursued.

The complaint was examined by the Constitutional Court of Moldova in the following composition:

Mr Tudor PANȚÎRU, President, 

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges.

Conclusions of the Court

Examining the casefiles and hearing the reasoning of the parties, the Court noted that the respect for family life – a right enshrined in Article 28 of the Constitution – it encompasses the relation between a parent and his child.

In its caselaw, the Court mentioned that although the right to respect and protection of family life does not have an absolute nature, any interference shall be prescribed by law, it shall pursue a legitimate aim and be proportional to the situation that determined it, so that it would be without prejudice to the existence of the right itself.

In this case, the Court noted that in line with the provisions of Article 67.f of the Family Code, parents may have their parental rights terminated if they are addicted to drugs.

The Court observed that the measure of parental rights termination of drug addicted persons pursues a legitimate goal – that of the need to protect the rights and the best interest of the child.

Concurrently, in its caselaw, the European Court of Human Rights (ECtHR) mentioned that the measures involving termination of parental rights should be applied only under very exceptional circumstances and may only be justified by an imperative requirement referring to the interest of the child. The interest of the child comprises two limbs. First, it dictates that the ties of a child with its family must be maintained, except in cases where the family has proved particularly unfit; secondly, it is in the best interest of the child to ensure his development in a sound environment.

The ECtHR also held that applying a total and absolute ban on the exercise of parental rights, by operation of law, without the supervision of the courts […] on the interest of the child and as a result, this does not pursue a legitimate aim, such as protecting health or moral values or the education of children.

In this regard, the Court underlined that the measure of terminating parental rights may not be applied arbitrarily, it being necessary for a fair balance to be struck between concurring rights – in this case – the right to family life and the best interest of the child.

The Court held that the provisions of Article 67.f may not be applied automatically, but only following an examination by the court of law, in order to find whether:

1.    Serious irregularities were committed by the parent against the child;

2.    It is in the best interest of the child for such a measure to be applied.

At the same time, the Court mentioned that this measure shall be applied as an ultima ratio measure, when other means of protecting the best interest of the child are not suffice or are not effective.

Considering the above, the Court held that the challenged provision is without prejudice to Article 28 in conjunction with Article 54 of the Constitution, insofar as termination of parental rights is applied in the best interest of the child.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

-       Rejected the exception of unconstitutionality;

-       Declared as constitutional the phrase ”drug addiction” of the provisions of Article 67.f of the Family Code no. 1316-XIV of 26 October 2000, to the extent the termination of parental rights is not applied by the court of law automatically, but it is decided in the best interest of the child.

This judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, shall be effective from the date of passing and shall be published in the Official Journal of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.