Honza and Joe (names changed) have been registered together for twenty years, the last 13 years. They have two teenage children who were adopted in 2010 in accordance with US law, where they all live together permanently. He regularly travels to the Czech Republic to visit his family. When they board a plane in the USA, the family is legally and factually - two dads and their two children. When they perform at the airport in Prague, they are no longer legally a family. Because the Czech law does not recognize the adoption by a same-sex couple (or an unmarried man-woman couple) that took place abroad. In addition to being highly undignified, it also causes practical and potentially life-threatening complications.
Fathers in the Czech Republic demanded recognition of their completely legal parental rights. It was therefore not a question of whether the Czech law should allow joint adoptions to same-sex couples, but whether the Czech Republic should recognize individual families with something that another state has already allowed. The Czech Constitutional Court said yesterday in its ruling that the ban on recognizing foreign adoption is in order. Why did he decide so and what are the consequences?
1. A striking double meter
Czech courts usually recognize decisions of courts of other states. And nowhere else outside of adoption is the court bound to recognize a decision only if Czech law says the same as foreign law. In order not to have to recognize everything, the courts have a so-called public policy reservation. "Public order" is a deliberately flexible term, the content of which changes over time and should change. The reservation of public order also applies to the recognition of adoptions from abroad. But only for the recognition of adoptions from abroad, Czech law stipulates the second mentioned condition.
2. Where did the law recognize the ban on recognizing adoptions from abroad?
The Nečas government introduced it into the law on private international law in 2011. According to the explanatory memorandum, so that Czechs cannot "circumvent" the national ban on joint adoptions by adopting a child abroad. Not a word about the best interests of the child or the protection of the family. Just a moral panic that someone living in a country that does not discriminate against rainbow families could want such a crazy thing as not losing their family status upon arrival in the Czech Republic. Of course, people often adopt children in the country where they live permanently. Calling this logical step "circumventing the law" is proof of subdued relativity and a complete reluctance to think about how people actually live.
3. Why is this a problem?
Wherever there is a need for parents to act for or care for a child, a problem arises if the law does not recognize them. There are many potential situations in the hospital, in the offices or at school. For example, when something happens to children in the Czech Republic, both parents will not have the same opportunity to receive information about their health condition, be in hospital with them and otherwise cooperate with doctors.
There is also a problem with inheritance - until the state recognizes both their parents, it is possible that they will inherit from them only to a limited extent or not at all. Children will have a problem becoming citizens of the Czech Republic if the state does not recognize their Czech parents. They may need a visa to stay in the country and their stay will be limited. They may not even be allowed to enter the Czech Republic together. When children travel de facto without their parents and do not even have their parents' consent to travel, from the point of view of the Czech authorities it may be an international child abduction. Children will also not be in the public health insurance system.
Paradoxically, unmarried male-female couples who have adopted children abroad abroad will also feel the problem. Their adoption will not be recognized in the Czech Republic.
4. Why didn't the Constitutional Court lift the ban?
This is difficult to find in the finding, a proper justification is missing. The Constitutional Court has simplified the question asked as to whether it is unconstitutional for the state to "insist on respecting its own rules" when recognizing foreign adoptions. Of course he has a right to do so. But the question was originally whether the current rules were in order and not causing anyone unnecessarily trouble. Unfortunately, the Constitutional Court did not address this.
Simply put, the Constitutional Court threw the hot potato on the legislature. Until joint adoptions by same-sex couples are allowed in Czech law, respecting the family status granted abroad would be a "special privilege" (maintaining the legal protection of children and families is clearly a "privilege" for the US) and "circumventing the law" to follow a couple who have lived in the US for 20 years before adopting children under US law?).
The risks that the de facto non-recognition of one parent brings to children and families are stated by the Constitutional Court only cynically that the petitioners have not yet (!) Had any problems and the others are "hypothetical concerns of an economic nature". Read more via Denik Referendum