The closing down of adoption and care centres, criteria for setting up adoption centres, and the amount of benefits for foster families K 12/12
The different amounts of benefits aimed at covering child maintenance costs that are provided for in the Act on Support for Families and on the Foster Care System are consistent with the Constitution.
At the hearing on 23 April 2013 at 9.00 a.m., the Constitutional Tribunal considered an application, submitted by a group of Sejm Deputies, with regard to the closing down of adoption and care centres, criteria for setting up adoption centres, and the amount of benefits for foster families.
The Constitutional Tribunal adjudicated that Article 80(1) of the Act of 9 June 2011 on Support for Families and on the Foster Care System was consistent with Article 32(1) of the Constitution. As to the remainder, the Tribunal discontinued the proceedings.
There was one dissenting opinion, submitted by Judge Teresa Liszcz.
Article 80(1) of the Act of 9 June 2011 on Support for Families and on the Foster Care System (hereinafter: the Act) provides for different amounts of benefits aimed at covering child maintenance costs, depending on whether the child is raised by a foster family that is closely-related to the child (defined in the Act as: a foster family where the child is taken care of by his/her siblings or ascendants) or whether the child is brought up by a professional foster family, a non-professional foster family or a family-run children’s home.
The different amount of benefits aimed at covering child maintenance costs which has been granted to the foster family that is closely-related to the child, in comparison with the amount provided to other categories of foster families, stems from the fact that the ascendants and siblings of the child are obliged to provide for the child in their care. The benefit which arises from Article 80(1)(1) of the Act has an auxiliary character i.e. it is intended to facilitate the fulfilment of the statutory obligation to provide for the child as regards his/her maintenance, and where needed - also upbringing, which lies with ascendants and siblings, pursuant to Article 128 of the Family and Guardianship Code. Thus, the legal situation of the foster family that is closely-related to the child, in the context of obligations related to taking care of the child, is considerably different than the situation of other categories of foster families enumerated in Article 39(1) of the Act. The said difference arises from the fact that there are close blood relations between the child deprived of parental care and the persons that constitute the above-mentioned foster family. The said close blood relations are linked by the legislator with the obligation to provide for the child, which manifests family solidarity and is deeply rooted in moral principles. Therefore, the scope of the legal obligations of the foster family that is closely-related to the child who is deprived of parental care is broader than the scope of obligations that lie with non-professional and professional foster families as well as family-run children’s homes. The said broader scope in particular concerns the existence of the statutory obligation to provide for the child, derived from the provisions of the Family and Guardianship Code.
In the view of the Constitutional Tribunal, it was justified for the legislator to differentiate between the legal situation of the foster family that is closely-related to the child and the legal situation of the other categories of foster families. The applicants did not seem to recognise the differentiating factor, and thus their argumentation for the non-conformity of the challenged provision to Article 32(1) of the Constitution was inapt.
The reason for discontinuing the proceedings within the scope of reviewing Article 244(4) and Article 245(1) of the Act in the light of Article 32 of the Constitution was the obvious groundlessness of the application, arising from the fact that the applicants had assumed an incorrect interpretation of the challenged provisions. Their argumentation led to an erroneous conclusion that the said provisions supposedly constituted a basis for indicating a group of subjects of rights and obligations that shared an essential common characteristic as well as that, consequently, differentiation within that group was unjustified in the light of Article 32 of the Constitution.
The hearing was presided over by Judge Teresa Liszcz, and the Judge Rapporteur was Judge Zbigniew Cieślak.
The judgment is final and its operative part shall be published in the Journal of Laws.