A.D. (R.Z.) v. V. D. (M.F.)
Supreme Court of Lithuania
October 9, 2008
Other International Provisions:
European Convention on the Legal Status of Children Born out of Wedlock (Preamble: Non- discrimination on legal status of children born in and out of wedlock; Article 2: Maternal and paternal affiliation based solely on the fact of the birth)
Constitution of the Republic of Lithuania (Article 29(1) and (2): Equality and non-discrimination; Article 39(3): Protection of under age children);
Law on Fundamentals of Protection of the Rights of the Child (Article 4(1): Priority of the legal interests of the child; Article 13(1): Right of the child to a home; Article 21(2): Equal parents involvement in the child's upbringing, care, material support and availability of a home; Article 55: responsibility for the violations of the rights of the child);
Civil Code of the Republic of Lithuania (Book Three: Family Law)
R. Z. and M.F. lived together in an apartment owned by M.F. and at no point had a registered marriage. R. Z. gave birth to a child in 2000. Five years later, M.F. sold the apartment without the knowledge of R. Z. and bought a house, where he began to reside with another woman. As a consequence, R. Z. and her child had no place to live until 2007, when she was finally able to borrow enough money to buy a small apartment. M.F. had officially recognised the couple's child as his own in 2006, but had given less than 100 Euros per month for child support since the separation. R.Z. sued to formalise custody and visitation arrangements, increase child support payments, and request damages for the unauthorised sale of her child's residence.
Issue and resolution:
Child support; right to housing; discrimination. The Court ruled that both parents have a duty to secure a child's right to housing regardless of whether a child was born in wedlock.
In line with both domestic and international law, including the Convention on the Rights of the Child, the general principle of child rights is that priority should be given to the legitimate interests of the child. Here, this means that no child can be left without a place to live, adequate care, or the fulfilment of basic needs, and any transaction which results in these outcomes must be declared as illegal and invalid. Although the Civil Code does not recognise cohabitation as a legal union, this cannot be used as an excuse to treat children born out of wedlock differently from children born in wedlock because parental rights and duties attach from the moment of a child's birth whether or not the parents are married.
Excerpts citing CRC and other relevant human rights instruments
as translated by CRIN:
If there is no specific [national] legal act regulating or describing children's rights and freedoms, then the Law on Fundamentals of Protection of the Rights of the Child must be applicable which, in line with the Constitution of the Republic of Lithuania, the United Nations 1959 Declaration on the Rights of the Child, the 1989 Convention on the Rights of the Child, and other international legal acts and principles, sets out the child's basic rights and freedoms and the duties to guarantee and protect these rights (Law on Fundamentals of Protection of the Rights of the Child, Article 1(2) and Article 5(2)).
Paragraph 3 of Article 39 of the Constitution stipulates that minors are protected by law. General principles for the protection of children's rights imply that, everywhere and always, the legitimate interests of the child have to be taken into account first, and no child can be left without a home, the minimum means of subsistence, or proper care and custody. Transactions leaving a child without a home must be invalidated (Protection of Child Rights Act, Article 4, paragraphs 1, 5, 6, 13). Paragraph 2 of Article 21 of the Law on Fundamentals of Protection of the Rights of the Child enshrines the equal duty of both parents to take care of the child's upbringing - to look after, financially support and provide the child with housing (see order of the Lithuanian Supreme Court, Civil Division, Trial Chamber on 13 September 2006 in a civil case, A.S. v. R.S., file no. 3K-3-469/2006). Persons who violate children's rights protected by the Constitution, the laws mentioned above and other legislation regulating the protection of children's rights are accountable in a manner prescribed by law; parents and other legal representatives of children who violate the rights of children, or abuse their rights and responsibilities, are subject to civil, administrative or criminal liability (Protection of Child Rights Act, Section 55, Article 56, paragraph 1). The European Convention on the Legal Status of Children born out of Wedlock and the constitutional principle of equality (Article 29 § 1) justify the need to defend the rights of children born to both married and unmarried parents. This is directly provided in the Civil Code, Article 3.161, paragraph 5, which states that children born to unmarried parents and children born to married parents have equal rights. In order to protect the child's right to housing (as found in Article 13 of the Law on Fundamentals of Protection of the Rights of the Child) and with respect to paragraph 2 of Article 27 of the United Nations Convention on the Rights of the Child,...parents or other legal representatives of children have the primary responsibility for providing the proper living conditions necessary for the child to develop. This is confirmed by Cassation Court Practice (order of the Lithuanian Supreme Court, Civil Division, Trial Chamber on 26 April 2006 in a civil case I.J. (L.) v. V.U., file no. 3K-3-302/2006).
The duty to provide housing for a child is a duty of both parents, and applies regardless of whether the father is officially registered as the birth father in the child's records, because the parents' and the child's mutual rights and obligations begin at birth (Civil Code, Book Three, Article 3.137(2)and(3); Convention on the Rights of the Child, Article 7; European Convention on the legal status of children born out of wedlock, Article 2). Thus, the child's parents are recognised at birth, not just at a later date when paternity or maternity is officially recorded or a legal decision establishing paternity or maternity comes into force. According to the commonly recognised principle of non-discrimination, the parent-child relationship is legally established regardless of whether or not a child was born in or out of wedlock.
In resolving a legal dispute involving a child's residence, preference cannot be given to a parent on the basis of his/her sex, race, nationality, language, origin, social status, religion, beliefs or attitudes (Constitution of the Republic of Lithuania, Article 29(2)). The solution to such a dispute should be primarily based on the best interests of the child and his or her expressed will (Civil Code, Book Three, Article 3.174(2)). The child's desire can be ignored only if it clearly contradicts his or her interests. Applying the provisions mentioned above, it must be remembered that in reaching a legal resolution on family relations, the principles of child rights and the child's interests must be prioritised (Convention on the Rights of the Child, Article 3(1); Civil Code, Book Three, Article 3.3(1); Law on Fundamentals of Protection of the Rights of the Child, Article 4(1)). This means that courts ruling on these specific legal cases must determine which parent's home would better suit the interests of the child. Therefore, before reaching a final decision, a court must carefully evaluate each of the parent's efforts and abilities to ensure that the main rights and responsibilities described in the relevant legal provisions are met, and further examine the parent's family environments, personal characteristics, ability to provide suitable and proper conditions for a child to grow and develop, the existing relationships between child and mother and child and father, the child's interests, and so on.
In the year this case was decided, the Lithuanian Parliament revised the legal definition of a family to include only married couples and children born in wedlock. This law was seen by some as problematic and effectively legalising discrimination against unmarried partners, children born out of wedlock, and step-children by denying them the rights and benefits accorded only to officially recognised families. Although the Lithuanian Civil Code provides for recognition of non-marriage “partnerships”, the Parliament had also refused to provide further elaboration on this legal concept on a number of occasions.
On September 28, 2011, the Constitutional Court of the Republic of Lithuania (Decision No 28/2008) declared this new, restricted definition of a family to be in contradiction with the Constitution and reinstated an expanded definition. The Court explicitly stated that the new definition was inappropriate, discriminatory, and failed to recognise legitimate family relations including, for example, unmarried couples who live together and raise their own children or remarried parents who raise step-children.
CRIN believes that this judgment is consistent with Lithuania's obligations under the CRC. As recognised by the Court, Article 3's mandate is that the best interests of the child be a primary consideration in all actions concerning children. In this case, the Court was also right to declare that a child's connection with both of his or her parents is established at birth and to recognise that parents have a joint primary responsibility, within their means, to – in the words of Article 27 - “secure the conditions of living necessary for the child's development.”
2008 10 09, 3K-3-383/2008, LAT, Civilinė, Nutartis.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.