Theoretical and Practical Considerations Regarding the Child?s Right to a Family Environment and to Alternative Care

• Author: Aurelian Gherghe
• Position: Ecologic University in Bucharest, Law Faculty
• Pages: 414-419

Theoretical and Practical Considerations Regarding the Child’s Right to a

Family Environment and to Alternative Care

Aurelian Gherghe1

1Ecologic University in Bucharest, Law Faculty

1 Preliminary considerations

Child protection represents the set of rights and duties acknowledged in the child’s interest, to his/her

natural or foster parents, whose exercise, and fulfilment, respectively, has as purpose the insurance of

the child’s raising, education and formation for life1.

The legal framework with respect to the protection of the minor, observance, promotion and granting

of the child’s rights is established by the Family Code and by Law no. 272/2004 related to the

protection and promotion of the child’s rights2.

The underage child’s protection is mainly and habitually done by the parents. The exercise of rights

and the fulfilment of the parental duties must have in mind the superior interest of the child and ensure

the child’s material and spiritual well being, especially by taking care of him/her, by maintaining

personal relations with him/her, by ensuring his/her raising, education and maintenance, as well as by

his/her regal representation and by the management of his/her patrimony. In this sense, art. 5

paragraph (2) of Law no. 272/2004 stipulates that the responsibility for the bringing up and insurance

of the child development devolves mainly upon the parents, who must exert their rights and fulfil their

obligations towards the child, taking into account, first of all, his/her highest interest.

In the child’s rights matter, the dominant principle is that of complying with and promoting with

priority the superior interest of the child. This principle is imposed including in relation with the rights

and obligations of the child’s parents, of his/her ot her legal representatives, and to any persons to

whom he/she was legally entrusted3. T he judicial practice and the specialized l iterature have

emphasized the prevalence of the principle of the child’s superior interest in all steps and decisions

regarding the children, taken by public authorities and authorized private bodies, as well as in the

cases solved by courts of law.

The defence system around the child is concentric: the natural and legal core is the family, formed of

parents and their children; the extended family, composed of the child, parents and their relatives 4th

1 In this sense, see: A. Ionaşcu, M.N. Costin, M. Mureşan, V . Ursa „Filiaţia şi ocrotirea minorilor”, Dacia Publishing

House, Cluj-Napoca, 1980, p. 172.

2 Published in the Official Gazette, Part I, no. 557 of the 23rd of Jun e 2004. This law came into force on the 1st of January

2005, except for th e provisions of art. 17 paragraph (2), art. 19 p aragraph. (3), art. 84 paragraph. (2), art. 104 paragraph (2),

art. 105 paragraph (5), art. 107 paragraph (2) and art. 117- which came into force 3 days after the publishing of this law in the

Official Gazette, Part I.

3 Thus, it was decided that th e protection of a child who claims to have been the vi ctim of a physical and/or emotional abuse,

especially when he/she comes from a family with social problems, i.e. the separation of parents, after one of them decided to

work abroad, must be realized promptly, with the identification o f the members of the extended family, capable of exerting

„de facto” the parental rights and also by listening to what the underage child’s statement, to the extent allowed by his/her

situation and age. (Bucharest Court of Law, 5th Civil Section, civil judgment no. 888 from August 1st 2006, irrevocable b y

lack of appeal, unpublished.

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