Legislation

The right of the child to have contact with both parents is guaranteed in a number of international treaties.[1] Usually, it is in the interest of the child to be raised by both parents. Parents have as well the right to see their children and educate them. Parents exercising access rights to their child realize their right to family life based on maintaining and developing mutual emotional, moral and social relations among close family members,[2] the rights and duties arising from their parental responsibility and their role in the child´s upbringing. If parents are not able to make an agreement about contact with their child, the court shall regulate it. The access rights regulation and its enforcement, however, use to be complicated in cases when relationships between parents are seriously disturbed. It regards the most delicate legal disputes in which hostage and victim of disagreements between parents is the innocent child.[3] Often one parent indoctrinates child against another parent in a way that child refuses this parent without any justification.[4] It is because of parents themselves why factual realization of access rights often fails. Parent who was not entrusted with the custody is in practice often unreasonably being denied access to his child by another parent. Refusing to allow parent contact with his child is an undesirable manifestation of conflict between parents. Parent who was awarded custody may this way intend to attach his child to himself or to hurt another parent. However, possibility of using coercive measures in this sensitive area is restricted and requires approach based on the utmost caution.[5] Although parent disposes of an enforceable judicial decision he often cannot get access to his child for a number of months or years even using usual legal means. Commonly becomes that parent denying access does not react on available means of legal protection and does not allow contact regardless of decision enforcement or threat of criminal prosecution. The passage of time, however, can have irremediable consequences for relations between children and parent who does not live with them.[6] When contact is after all realized, relationships between parent and his child are many times weakened or even torn.

According to Article 11 of the Czech Civil Code each natural person has the right to protection of his or her personhood, in particular of his or her life and health, civic honour and human dignity as well as of its privacy, name and expressions of personal nature. The protection of personality is based on the concept of the integrated rights and its aim is to secure the respect of all the personal right and general free development of each personal sphere.  It is a crucial elaboration of the Article 7, 8, 10, 11, 13 a 14 of the Czech Charter of fundamental rights and freedoms.  In this integrated concepts there are single component rights that ensure protection of individual rights of the natural person as a part of the inseparable physical and moral integrity. The list of the rights stated in the Civil Code is demonstrative.[1] One of the aspect of every single natural person is the right to privacy.[2] Right to privacy encompasses the protection of the family life.[3] From the subjective public rights perspective it is also protected by the Article 8 of the European Convention on Human Rights or by Article 10 par. 2 of the Czech Charter of fundamental rights and freedoms. Article 32 par 4 of the Czech Charter guarantees the parents the right to take care of the children and the right to raise them. The child is guaranteed by the same provision the right to ensure the parental custody and care. The Article 8 of ECHR primarily aims to protect the individual against the wilful infringement from the state, but is also imposes the state the positive obligation to effective respect of the family life. If there exists the family relationship, the state has a duty to act to ensure the development of this relationship and to adopt the appropriate measures to establish the contact with the parent and child.[4] The Civil Code protection of personal rights is a elaboration of the relevant constitutional principles. The Czech Constitution in Article 1 declares the Czech Republic as a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens. This respect of the democratic state for the rights is expressed by the list and concretization mainly in Charter and ratified international agreements.[5] The significant foundations of the private legal conception of the general personal right is stipulated also by the European Charter on Human Rights binding for the Czech republic since 18.3.1992.[6]

            The general courts have to take into consideration the streaming of the fundamental rights and constitutional values and provide them the wide and adequate protection and in case of the infringement of fundamental right to privacy and family life that concerns the intimate sphere of the individual, the protection has to be even intensified. These duties of the courts could be concluded from Article 1 par. 1 and Art. 4 of the Czech Constitution that ensures the judicial protection for fundamental rights.[7] Although the Charter primarily guarantees the fundamental rights as a subjective public rights and acts directly between an individual and public authority, in some cases the basic rights „stream“ into the general law. That is the case of the horizontal relationships, in the relationships that are not based on the superiority and inferiority, that is the relationships where the participants are equal.[8]

Be together is for the parents and child one of the elements of the family life also in case when the relationship between the parents fell apart.[9] The child has a right according to the Article 32 par. 4 of the Charter to realize the care just in this mutual relationship.[10] The as much as possible wide contact must be enabled, because it is mainly the time scope, in which the parent can influence the child verbally and non-verbally, the so called care of presence or model. It is therefore in the interest of the child  not to lose the contact with the parent.[11] The basic elements of the family life is the right to create, maintain and develop the relationship between the members of the family based on the emotional relation.[12] The family and family life presents the community of the person connected biologically, emotionally and derived also of property; the connections are maintained not only among living individuals, but it also concerns the transcendental life. The family life includes the social, moral, cultural relations but also the relations in the area of the care of the children.[13] If there is an infringement of these relations, it is an illegal infringement of the right to family life.


[1] The Supreme Court decision No. 30 Cdo 1630/2004 from 30.6.2005, similarly The Supreme Court decision No. 30 Cdo 2739/2006 from 31. 1. 2007 or No. 30 Cdo 3322/2008 from 28. 10. 2010. Compare ŠVESTKA, Jiří. SPÁČIL, Jiří. ŠKÁROVÁ, Marta. HULMÁK, Milan a kol. Občanský zákoník I, II. 2. Edition, Prague: C.H.BECK, 2009, p. 134.

[2] The right to privacy is included under the protection of personal rights.

[3] Niemitz v. Germany, Application No. 13710/88, 16. 12. 1992. Similarly The Czech Constitutional Court finding No. II. ÚS 517/99 from 1. 3 2000 (N 32/17 SbNU 229).

[4] The Supreme Court decision No. 30 Cdo 4091/2011 from 30. 1. 2013

[5] No. 120/1976 Coll., in force since 23.3.1976.

[6] The Supreme Court decision No. 30 Cdo 1630/2004 from 30.6.2005.

[7] The Czech Constitutional Court finding No. I. ÚS 1586/2009 from 6.3.2012.

[8] The Czech Constitutional Court finding No. IV.ÚS 27/09 from 11. 9. 2009 (N 200/54 SbNU 489).

[9] Volesky v. the Czech Republic, Application N. 63627/00, 29. 6. 2004.

[10] The Czech Constitutional Court finding No. II. ÚS 485/10 from 13. 4. 2010 (N 82/57 SbNU 93).

[11] The Czech Constitutional Court finding No. I. ÚS 618/2005 from 7.11.2005, similarly II. ÚS 554/2004 from 11.5.2005 The Constitutional Court stated that the contact with the child in the scope of once in two week time does not constitute the notion of the right to care of the child and therefore infringes the right to family life.

[12] Niemitz v. Germany, Application No. 13710/88, 16. 12. 1992, The Czech Constitutional Court finding No. II. ÚS 517/99 from 1. 3. 2000 (N 32/17 SbNU 229).

[13] Quotation No. 32.


[1] E.g. Article 9 of the Convention on the Rights of the Child

[2] Judgment of the Supreme Court of the Czech Republic from 31 January 2008, no. 30 Cdo 3361/2007

[3] KMEC, Jiri. KOSAR, David. KRATOCHVÍL, Jan. BOBEK, Michal. Evropska umluva o lidskych pravech. Komentar.  1.st edition. Prague: C. H. Beck, 2012, p. 939

[4] Psychology refers to as parental alienation syndrome (PAS)

[5] Reigado Ramos v. Portugal, Application No. 73229/01, 22 November 2005

[6] Ignaccolo-Zenide v. Romania, Application No. 31679/96, 25 January 2000

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