24 May 2019

Fulfilling the statutory conditions for both spouses symptoms as a necessary prerequisite to entrust the function of a foster family for a minor child.

The provisions of the Act of 9 June 2011. On supporting family and foster care system (Dz.U.2018, poz.998) contain detailed regulations concerning the mode of conduct, types and kinds of foster families and the composition of the subjective and demands on people that need to be met in order to entrust the function of a foster family. The ruling on the placement of a minor child in a foster family is beside the parallel institution of the family house of the child or institutional foster care most severe form of parental restrictions in case of threats to the child’s welfare, which provides art. 109 § 2 point 5 Codes and Family Welfare. It is used in accordance with Article. 112 ³ § 1 KRO only if it has previously used the other measures referred to in Art. 109§ 2 point 1 – 4 of KRO and forms of assistance to parents of the child referred to in the regulations on family support and the system of foster care, have not led to the removal of a state of emergency child welfare, unless the urgency of ensuring the child foster care due to a serious threat to the child’s welfare, in particular the risk of his life or health. However, according to 112 ³ § 2 KRO is not acceptable to place the child in foster care against the will of their parents solely because of poverty.

Art. 39 and Art. 41 of the Act provides for foster families: a relative, professional and non-professional; and such types of foster families: spouses or a person unmarried. While Article. 42 provides the requirements for subjective – the conditions which must be satisfied by a person within a given type and the type of foster family to be able to decide on the placement of the minor child in this particular family. In the course of proceedings concerning the placement of a child in a foster family consisting of spouses also it comes to a situation where indicated in Article. 42 meets the conditions for only one of them, which raises the question of the admissibility of such a ruling. In this situation, the Court is not authorized to place the child in a foster family being married.

Behind this decision, supported by the results of the interpretation of Article properly carried out. 41 zw. Article. 42 act, as a function of this family can be entrusted according to that standard only spouses of which both satisfy the condition of symptoms or a person Unmarried that meets these conditions symptoms, not the spouses, one of which is in compliance, and the other does not fulfill these of subjective reasons. Interpretation of the language and the logical system and the standard clearly leads to the conclusion that the rule sets for either or both of the entities (collective or individual), which must be present in the above-indicated conditions symptoms. The remaining provisions of this Act and other legislation governing parental restrictions do not provide any legal norms.

If, however, allowed the legislature to establish a foster family two people regardless of whether they are married or just the facts with each other or other people, or one person irrespective of the above circumstances, it is quite different formulate the wording of this provision. Then have written, that creates a foster family or person remaining unmarried or in relation to actual or two persons living or which have no relationship with each of the others. Meanwhile, there is the latter provisions such content.

For adopted here, the result is also supported method of teleological and functional interpretation, also bearing in mind the content of the provisions of international agreements and the Constitution, which is beyond the legal protection of the child and the family and order each time taking into account his good, also requires special protection of marriage understood as a legal relationship women and man (art. 18, art. 71 and. 72 Constitution). In addition, there used form of parental restrictions is intended as a substitute for natural families, which are still both parents of the child, and what unites most people having no common or unrelated child is the legal marriage.

Therefore, in the first place indicated in the recipe just spouses, because the child has a constitutional right to care from both parents, and taking into account protection of the family and marriage, public authorities should just strive for such support and development of institutions of custody, the child was just two parents whether foster carers regardless of their relationship with the child. Only in the absence of persons who may be the first of the listed entities performing this function, due to the interest of the child shall be established in a foster family as a person unmarried married after meeting the prerequisites symptoms, which is the provision listed in second place, which prejudge the the intention of the legislator.