LIŠENjE RODITELjSKOG PRAVA U KONTEKSTU PRINCIPA PROPORCIONALNOSTI I NAJBOLjEG INTERESA DETETA

Abstract

The decision on the deprivation of parental responsibility represents the most drastic form of state intervention in family relations in cases where the child's parents, for factual or legal reasons, are unable to exercise parental responsibility in accordance with the best interests of the child. More precisely, it is about situations when parents who have the primary duty of care for the child, by their actions or inactions, violate the rights of the child to the extent that it requires the removal of the child from the existing family environment and the withdrawal of all or certain parental duties from the content of parental responsibility. From the aspect of the rights of the child, the decision on the deprivation of parental responsibility represents giving priority to the child's right to life, survival and development in relation to the child's right to live with his/her parents. Such a decision should be based on the application of the proportionality principle developed by the Federal Constitutional Court of Germany back in 1982 (BverfGE 60, 79 of 17 February 1982 – 1BvR 188/80). In this context, a parent can be deprived of parental responsibility only if such a decision is proportionate to the intensity of the violation of the child's personal property, the appropriate assessment of future risks, but also if other family support measures have not yielded results or it can be assumed that they will not be able to remove the danger to the rights and interests of the child. In the context of Serbian law, the principle of proportionality may imply the existence of previously adopted measures of corrective supervision over the exercise of parental responsibility towards a specific parent or parents. Also, the stated principle requires that the decision on the deprivation of parental responsibility is not made in cases where the parent, through no fault of his own, is unable to adequately perform parental duties. In such circumstances, the child can be separated from the parents only if all family support measures which the state can provide in terms of social protection have been previously used without success. The principle of proportionality in the aforementioned sense is particularly characteristic of the decisions of the European Court of Human Rights, confirmed in a number of cases in which the Court decided, of which, for the sake of illustration, two cases that were conducted against Germany will be mentioned (B.B and F.B. v. Germany and Wetjen and Others v. Germany).