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Content updated: 18-11-2019 10:26

The Constitutional Court: the interests of a child may not be violated solely because of the change of the permanent place of residence upon leaving Lithuania

08-11-2019

By its ruling adopted today, the Constitutional Court has declared Paragraphs 3 and 5 of Article 2 of the Law on the Children’s Maintenance Fund (hereinafter referred to as the Law on the Fund), which is no longer in force, to have not been in conflict with the Constitution, insofar as, under these paragraphs, in order to be granted a benefit from the Children’s Maintenance Fund (hereinafter referred to as benefits from the Fund), the applicant (one of the parents, the guardian, or the curator) and the child were required to have permanent residence in the Republic of Lithuania. However, Items 1 and 3 of Article 7 and Items 1 and 3 of Paragraph 1 of Article 10 of the Law on Child Maintenance Benefits (hereinafter referred to as the Law on Benefits), which is in force, have been found to be in conflict with Paragraph 2 of Article 38 and Paragraph 3 of Article 39 of the Constitution and the constitutional principle of a state under the rule of law, insofar as the said items respectively establish the necessary condition for the payment of child maintenance benefits granted by the state – to have permanent residence in the Republic of Lithuania, as well as the ground for terminating the payment of these benefits – leaving by the applicant and/or the child to take up permanent residence in another state.

The Constitutional Court emphasised in the ruling that childhood is consolidated in Paragraph 2 of Article 38 of the Constitution as a particularly protected and fostered constitutional value, considering that childhood is a special period in the life of an individual, during which the development of the personality, insofar as this development is linked to physical, mental, and social maturity, takes place, as well as considering that children constitute a socially sensitive and particularly vulnerable part of society due to the particularities of their developing personality (among others, their insufficient physical and social maturity). Care by the state for childhood as a particularly protected and fostered constitutional value is an important precondition for implementing the striving, entrenched in the Preamble to the Constitution, for an open, just, and harmonious civil society. Therefore, under Paragraph 2 of Article 38 of the Constitution, specific protection and support is necessary for children, so that the conditions are created for their healthy and full development, among others, for their growing up to be honest people and loyal citizens.

In view of this, the Constitutional Court noted that the constitutional imperative of the priority of the interests of a child stems from the Constitution, among others, Paragraph 2 of Article 38, which consolidates childhood as a particularly protected and fostered constitutional value, Paragraph 3 of Article 39, under which the state must, by means of a law, guarantee the sufficient and effective protection of the rights and lawful interests of under-age children, as well as from the striving, entrenched in the Preamble to the Constitution, for an open, just, and harmonious civil society. This imperative implies the duty of the state to ensure that account is, first of all, taken of the interests of a child and no preconditions are created for violating these interests in the course of adopting and applying laws and other legal acts, as well as in deciding on other issues related to a child.

The Constitutional Court pointed out that, under Paragraph 2 of Article 38 and Paragraph 3 of Article 39 of the Constitution, the state has the duty to defend the interests of children in cases where their parents (one of their parents) fail(s) to fulfil their constitutionally consolidated duties, among others, the duty to support their children. Under the Constitution, it is also allowed to establish, by means of a law, such a form of ensuring the right of a child to maintenance as the provision of financial support (child maintenance benefits from the Children’s Maintenance Fund in the constitutional justice case at issue) by the state for children who are not maintained by their parents (one of their parents). Once the obligation of the state to provide children with the said financial support has been established by means of a law, no preconditions may be created for releasing parents from their constitutional duty to support their children, i.e. a law must lay down the duty of the state to recover funds spent on the provision of this support from parents who fail to fulfil their constitutional duty to support their children.

As noted by the Constitutional Court, when establishing, by means of a law, such a form of ensuring the right of a child to maintenance as the provision of financial support by the state for children who are not maintained by their parents (one of their parents), as well as when establishing the conditions for the provision of this support, the legislature must pay regard to the above-mentioned constitutional imperative of the priority of the interests of a child, which stems from the Constitution, among others, Paragraph 2 of Article 38 and Paragraph 3 of Article 39 thereof, as well as to the requirement, stemming from the constitutional principle of a state under the rule of law, among other things, not to restrict the rights acquired under a law more than necessary in order to reach legitimate objectives important to society.

Deciding on the constitutionality of the impugned legal regulation laid down in Paragraphs 3 and 5 of Article 2 of the Law on the Fund, the Constitutional Court noted that, under this impugned legal regulation, in the context of defining the concepts of the applicant, who applies for benefits from the Fund, and the child, who is granted these benefits, the requirement applicable both to the applicant and the child to have permanent residence in the Republic of Lithuania had been consolidated just as one of the necessary conditions, respectively, for acquiring the right to apply for benefits from the Fund and for being granted them. However, the necessary conditions, indicated in Article 3 of the Law on the Fund, for the payment of benefits granted from the Fund had not included the requirement applicable both to the applicant and the child to have permanent residence in the Republic of Lithuania; also, Paragraph 1 of Article 6 of the Law on the Fund or any other provisions of this law had not provided for any such ground for terminating the payment of benefits from the Fund as the change of the permanent place of residence by the applicant and/or the child upon leaving the Republic of Lithuania. Such an interpretation of the law in question is also confirmed by the case law of the Supreme Administrative Court of Lithuania.

Consequently, contrary to what was maintained by the petitioner in the constitutional justice case at issue, the impugned provisions of the Law on the Fund had not established such a ground for terminating the payment of child maintenance benefits as the change of the permanent place of residence by the applicant and/or the child upon leaving the Republic of Lithuania.

In view of the above, the Constitutional Court held that there were no grounds for stating that the impugned legal regulation had disregarded the duty, stemming from Paragraph 2 of Article 38 and Paragraph 3 of Article 39 of the Constitution, for the state to defend the interests of children in cases where their parents (one of their parents) fail(s) to fulfil their constitutional duty to support their children, or that the impugned legal regulation had disregarded the above-mentioned constitutional imperative of the priority of the interests of a child.

The Constitutional Court drew attention in the ruling to the fact that, on 28 September 2017, the Seimas adopted the Law Amending the Law on the Children’s Maintenance Fund, which came into force on 1 January 2018; by means of this law, the Law on the Fund was set out in a new wording and its previous title was amended to “The Republic of Lithuania’s Law on Child Maintenance Benefits” (hereinafter referred to as the Law on Benefits). The Law on Benefits, among others, prescribes that the benefits from the Fund that were granted and paid under the Law on the Fund are recalculated and continue to be paid under the Law on Benefits, whose compliance with the Constitution was not impugned by the petitioner.

The Constitutional Court has held that, if it finds the unconstitutionality of provisions that are not impugned by the petitioner but are consolidated in the same legal act, it must state that the said provisions are in conflict with the Constitution. The same applies to provisions that are not impugned by the petitioner but regulate the same relationships and are consolidated in a legal act amending the legal regulation impugned by the petitioner. The implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system.

The Constitutional Court noted that, differently from the Law on the Fund, the Law on Benefits consolidates the necessary condition for the payment of the granted benefits – the child and the applicant must have permanent residence in the Republic of Lithuania (Items 1 and 3 of Article 7), as well as provides for the special ground for terminating the payment of these benefits – the change of the permanent place of residence by the child and/or the applicant upon leaving the Republic of Lithuania (Items 1 and 3 of Paragraph 1 of Article 10).

Assessing such a legal regulation laid down in the Law on Benefits, the Constitutional Court drew the conclusion that, solely because of the change of the permanent place of residence by persons upon leaving Lithuania, as well as without regard to any other circumstances, the legal regulation established under the above-mentioned Items 1 and 3 of Article 7 and Items 1 and 3 of Paragraph 1 of Article 10 of the Law on Benefits leads to the loss of the right acquired by a child under this law to benefits intended for his or her maintenance and, thus, gives rise to the preconditions for violating the interests of the child. Therefore, at the same time, this legal regulation does not provide any preconditions for assessing the individual situation of each person concerned, among others, any preconditions for taking into account the circumstances substantiating the relationship between the particular person and the state, or other important circumstances, including whether the state for which the persons left provides certain support for children who are not maintained by their parents (one of their parents). In addition, in certain cases, such a legal regulation can also create the preconditions for unjustifiably limiting freedom of movement of persons.

In this context, the Constitutional Court noted that such a legal regulation as laid down in Items 1 and 3 of Article 7 and Items 1 and 3 of Paragraph 1 of Article 10 of the Law on Benefits, which gives rise to the preconditions for violating the interests of a child, cannot be constitutionally justified based solely on the objective of reducing state budget expenditure.

Considering this, the Constitutional Court held that the legal regulation laid down in Items 1 and 3 of Article 7 of the Law on Benefits, under which the necessary condition for the payment of the already granted benefits is that the child and the applicant must have permanent residence in the Republic of Lithuania, and the legal regulation laid down in Items 1 and 3 of Paragraph 1 of Article 10 of the Law on Benefits, under which the sole change of the permanent place of residence by the child and/or the applicant upon leaving the Republic of Lithuania is consolidated as the special ground for terminating the payment of benefits, disregard the constitutional imperative of the priority of the interests of a child, which stems from the Constitution, among others, Paragraph 2 of Article 38 and Paragraph 3 of Article 39 thereof, and which implies the duty of the state to ensure that, when a legal regulation is established, account is, first of all, taken of the interests of a child and no preconditions are created for violating these interests, as well as disregard the constitutional principle of proportionality as one of the elements of the constitutional principle of a state under the rule of law.

Thus, upon the entry into force of this ruling of the Constitutional Court, the payment of the already granted child maintenance benefits may not be terminated based solely on the fact that the child for whose maintenance these benefits have been granted and/or the applicant who applied for these benefits have (has) left to take up permanent residence in another state.

The full text of this ruling of the Constitutional Court is available on the website of the Constitutional Court at https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1990/content.