Legality of the action of the Orphan's Court in ensuring the right of communication between the child and the parent must be examined in the administrative court
26 March, 2021
At the sitting of the chairs of the Senate Departments convened by the Chief Justice of the Supreme Court, the issue of jurisdiction of the case where the Orphan's Court ensures the right of contact between the child and the parent in accordance with the court ruling in a civil case was solved.
The chairs the Senate Departments acknowledged that at the time the Orphan's Court ensures the implementation of the right of contact between a child and a parent in a civil case, it fulfils the obligations specified in legal provisions, ensuring the public function – a priority to protect child’s rights and interests. Such an action may result in a violation of the child's rights and interests. In such cases, it is a matter of the actual action of the Orphan's Court in accordance with Section 89 of the Administrative Procedure Law and the lawfulness of the action must be verified in accordance with the administrative procedure.
The issue was considered at the request of the Department of Administrative Cases of the Senate to decide the jurisdiction of the case. In the case, the Administrative District Court received an application requesting to declare illegal the action of the city Orphan's Court, which manifested itself in violation of the child's rights during the exercise of the child's and parent's right of access, when the Orphan's Court ensured the implementation of the right of access in the premises of the Orphan's Court established by a court ruling in a civil case. The applicant considers that the action of the Orphan's Court violates the child's right to freedom.
In general, the control of the execution of a court decision made in a civil case is not to be performed in accordance with the administrative procedure; the supervision of it in accordance with the general procedure must take place within the framework of a civil case. The activities of the institution within the framework of a civil case cannot be inspected in accordance with the administrative procedure. However, as acknowledged in the decision of the meeting of the chairs of the Senate Departments, this does not automatically mean that any actions of the Orphan's Court, which are in any way related to a civil case, are subject to the civil procedure.
The nature of the action taken by the Orphan's Court is decisive in determining the jurisdiction of the application.
Pursuant to Section 182 of the Civil Law, the Orphan's Court has a certain competence to participate in the assessment of the compliance of the contact person from the point of view of observance of the rights and interests of a child. If the Orphan's Court does not approve of the selected contact person or the parties cannot agree on a contact person, the communication shall be carried out in the presence of a representative of the Orphan's Court or a person authorized by the Orphan's Court. Unlike other natural or legal persons, to whom the court of general jurisdiction may impose an obligation to perform the duties of a contact person, the obligation of the Orphan’s Court to ensure the exercise of the child's and parent's access rights arises from the law and must be fulfilled. This is the actual action of the Orphan's Court in accordance with Section 89 of the Administrative Procedure Law, and the legality of the action can be verified in accordance with the administrative procedure.
Information prepared by
Rasma Zvejniece, the Head of the Division of Communication of the Supreme Court
E-mail: firstname.lastname@example.org, telephone: +371 67020396, +371 28652211