Abstract

Decisions on establishment of minors' place of residence fall within the sphere of application of joint parental authority, along with decisions concerning the form of education and professional training, complex medical treatments and surgical interventions, respectively administration of minors' property. As a consequence, the principle is that common parental consent is necessary when minors leave national territory in order to travel abroad. In case of parental disagreement, the case-law established a specific line to be followed in courts: substitution of parental consent. The scope of the present article is to analyze from a double perspective (theoretical and practical) the main issues to be considered in solving cases of this type, as well as the implications of judgements pronounced in this area on other interconnected aspects concerning both parents and the child. The objectives of this study are to examine relevant procedural and substantial matters as they derive from the experience so far and propose solutions based on the vector principle of best interests of minors (e.g., the urgent procedure in Romanian Procedural Civil Code called “ordonanţă preşedinţială” is admissible, or the procedural path to follow should be the general procedure on the merits of the case; substitution of parental consent should be specific, or also accepted in a general manner, with no reference to the period and location of the minor abroad, etc.). At the same time, the study will ponder on implications of judgements substituting parental consent related to other institutions in the sphere of national law (e.g., common or exclusive parental authority) or international law (incidence of 1980 Hague Convention on the Civil aspects of international child abduction).

Authors and Affiliations