The Czech Republic does not recognize adoption by gay couples

On Monday, the Czech Constitutional Court ruled that denial of parental rights in the case of cross-border adoption is not against the constitution. As a result, the judges of rainbow families effectively deny the parents' rights and violate EU law and the policies of the European Commission.

The regional court in Prague petitioned for the repeal of a provision denying parents' right to cross-border rainbow families in connection with a pending appeal against the judgment of the district court in Nymburk, 40 km northeast of Prague The Petition of the Gay The couple had been rejected, a citizen of the Czech Republic and his partner from Trinidad and Tobago. Their two American citizenship children were adopted by a court decision in New Jersey.

According to the Czech District Court, a requirement for recognition according to Section 63 (1) of the Act on Private International Law was not met at all, as adoption would not be permitted under the substantive provisions of Czech law: the Czech legal system allows the joint adoption of a child but not through “only” partnered partners. Same-sex couples in the Czech Republic have been able to enter into a registered partnership since mid-2006; they cannot marry with equal rights.

The petitioner agreed with this conclusion, but considered the condition in question to be unconstitutional as the court did not recognize the "factual and legal reality", did not protect family life within the meaning of Article 10 (2) of the Basic Charter and did not act in the best interests of the child.

??????????????????If you are a parent in one member state of the EU, you should be a parent in all member states of the EU.

????????The Czech Constitutional Court ignores EU Directive 2004/38, which recognizes all cross-border family members, with this ruling.

This has to be taken to @EUCourtPress . https://t.co/We2nfRbQR6

- Rémy Bonny ??????????????????(@RemyBonny) January 11, 2021

The petitioner did not object to the unconstitutional rules governing adoption itself, as enshrined in the Civil Code, but only the provision in the law on private international law that these rules also apply to the recognition of foreign adoptions. The main consideration was that the constitutional order would be contradicted in order to insist on observing one's own adoption rules when deciding on the recognition of foreign decisions.

The Constitutional Court does not share this opinion and stated: "The Czech Republic is a sovereign state within the meaning of Article 1, paragraph 1 of the Constitution of the Czech Republic." The full verdict can be read here.

However, since the Czech Republic is a member of the European Union, its national law is lower in the legal hierarchy than EU law. Monday's decision therefore contradicts EU Directive 2004/38 and Article 21 (1) of the Treaty on the Functioning of the EU.

The Directive provides "the right of EU citizens and their family members to move and reside freely within the territory of the Member States". Article 21 (1) provides: "Every citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to the restrictions and conditions set out in the Treaties and the measures taken to achieve this effect."

The 2018 decision in the Coman case before the European Court of Justice has already confirmed: «Article 21 (1) TFEU must be interpreted as meaning that the competent authorities of the Member State of which the Union citizen is a national refuse to grant this third-party amount. National a right of residence in the territory of that Member State on the grounds that the law of that Member State does not recognize marriage between persons of the same sex. "

The Romanian Adrian Coman and the American Clai Hamilton were once married in Belgium. However, the Romanian authorities refused to grant the husband a residence permit. The two went to the European Court of Justice (ECJ) and got there justice (MANNSCHAFT reported) .

Therefore, a decision must now be made before the European Court of Justice, as the Czech Constitutional Court is obviously ignoring EU law.

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