LOCAL AUTHORITIES' INVOLVEMENT IN FULFILLING THE MINOR CHILDREN MAINTENANCE OBLIGATION, IN PROTECTING AND PROMOTING CHILDREN'S RIGHTS.

• Author: Buda, Daniel

There can be no keener revelation of a society's soul than the way in which it treats its children (Nelson Mandela)

1. Introduction

   In the context of the numerous concerns, both national and international, regarding children's rights and freedoms, we consider it necessary to conduct a thorough analysis of the role that local government authorities have in the field of this type of protection, considering the legislative provisions in this matter.

   Through the National Strategy for children's rights protection and promotion 2014-2020, a primordial principle was established: the need of promoting society's focus on the development and welfare of the child, which should represent both a core value of any society and the human resource of the future. Thus, it was concluded that the society's current critical issues cannot be overcome without a collective effort systematically directed to the children's growth, education, and of course, to their welfare (Ministry of Labor, Family, Social Protection and Elderly, 2014).

   This document follows the line of the Europe 2020 Strategy (European Commission, 2010), which promotes the image of 'A 21st century of a Europe where the children of today will have a better education, access to the services and to the resources they need'1 to harmoniously grow up and lead Europe into the 22nd century.

   In this context, the drafted legislation which guarantees the rights of every child (in particular the right to life, health and education, and the right to be fairly treated and to be heard) should be known by every responsible citizen wishing to contribute to the process of creating a better society which can offer protection and respect to the children--the future of this society.

   Through this article, without claiming to cover all the aspects regarding the protection and safeguarding of children's rights, we intend to conduct an analysis of the legal provisions regarding the parental duties, emphasizing the obligation to support minor children and how this obligation is fulfilled, while focusing on the local authorities' involvement in solving extremely important issues in the field of child protection.

   Beyond this purpose, we wish this work to be an effective tool for both students interested in this field, and for the public servants with responsibilities in this area. Moreover, we would like to make a call addressed to the citizens to be actively involved in the activities that can be undertaken for the welfare of children. In this way we could create a community partnership which assumes that the responsibility towards children must not belong only to a single authority or institution, but also it should belong to a competitive system, composed of family, informal leaders, citizens of the community and also of the responsible institutions or organizations' representatives.

2. Legislative framework

   Raising and educating children have been presented as a major concern at international level, assuming that investing in children's future means investing in your society's future.

   In this context, all the national provisions in the field of child protection must be in accordance not only with the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, adopted in The Hague on October 19, 1996, and ratified by Romania in 2007, but also with the Principles of European Family Law regarding Parental Responsibilities established by the Commission on European Family Law.

   In the national law, the minor's maintenance obligation is governed by article 525 of the New Civil Code which establishes the minor child's right to request maintenance from his/her parents when it is necessary. The indicated text stipulates that the minor is in need when he/she cannot maintain himself/herself from his/her work, even if he/she would have his/her own belongings.

   If the minor has his/her own revenues, the presumption of his/her state of need is not working anymore, the child is the one who has to prove the fact that his/her income from work is insufficient to maintain himself/herself (Baias et al., 2011, pp. 440-441).

   In addition, paragraph 2 of article 525 states that, when parents could not provide maintenance without endangering their own existence, the court may approve the maintenance to be ensured throughout the capitalization of the minor's belongings, except the ones for basic necessities, for example clothing, personal goods, etc.

   Moreover, the parent's obligation to provide maintenance both to their minor child and to their major child involved in further study is governed by article 499 of the New Civil Code (2), in the context of the general provisions regarding parental authority.

   It should be underlined the fact that these legal provisions governing the child's maintenance obligation are supplemented by the general rules regarding the obligation of maintenance, specified in art. 513-534 of the New Civil Code, and in several special provisions of Law no. 272/2004 regarding the protection and promotion of children's rights.

   Moreover, it should be noted that the maintenance obligation rendered in favor of the minor child is complex and comprehensive (Florian, 2011, p. 338). If the legal obligation of maintenance of other people means only providing the necessities of life, in the case of the minor child, in order to properly fulfil their maintenance obligation, the parents must provide their minor child maintenance, but also they must ensure his/her education, teaching and professional training.

   In this context, it appears that the maintenance obligation which must be fulfilled by the parents in favor of their minor child is closely linked to the parental authority and child protection.

   Parental authority is the main form of minor's protection and, in accordance with article 483, paragraph 1, of the New Civil Code, this involves all the rights and duties concerning both the person and the belongings of the child. The parental authority belongs equally to both of the child's parents.

   For example, without being exhaustive, parents have: the right and the duty to raise their own child, the right and the duty to care for his/her health and for the minor child's physical, mental and intellectual development, the right and the duty to educate their children according to their own beliefs, the right and the duty to care for the schooling and the professional training of the children according to their needs and characteristics, the right and the duty to offer to their children guidance and advice to properly exercise their own rights recognized for them by the law and, not least, the right and the duty of the parents to provide maintenance in favor of their minor child (Banciu and Banciu, 2012, p. 195).

   All these rights and obligations, including the maintenance obligation, are governed by the best interest of the child principle, an enshrined principle in the provisions of the New Civil Code and of Law no. 272/2004.

   As stated in paragraph 2 of article 2 of Law no. 272/2004, the child's best interest circumscribes the child's right to a normal physical and moral development and also to a balance in the socio-affective level and in the family life.

   This principle governs not only the parents' actions in fulfilling the minor child's maintenance obligation and the other obligations laid on them, but also the work of public authorities overseeing the proper exercise of parental authority. In this regard, paragraph 4 of article 2 of Law no. 272/2004 establishes that the best interest of the child principle shall be taken first in all the actions and decisions concerning children, whether they are undertaken by the public authorities or, where it is relevant, by the other authorized private bodies or courts.

   This position is in compliance with the EU practice. For example, in the terms of the attitude that courts should adopt, the European Court of Human Rights, in the Ignaccolo-Zenide against Romania litigation, stated that the judge is obliged, when settling accessories divorce claims (such as those concerning the custody of the minor children), to take into account the interests of minors, the authorities having the duty to make reasonable efforts so that, when parents' interests are in conflict and the children are not mature enough to express themselves clearly regarding their own preferences, their best interests is to be promoted (European Court of Human Rights, 2000).

   In the same case and also in the one entitled Maire against Portugal (European Court of Human Rights, 2003), the European Court decided that while executing parents-children linked...