Human Rights Report on Moldova: Guardianship and Trusteeship

One form of protection for children without parental care is guardianship for the children who have not attained the age of 14, or trusteeship for the children aged from 14 to 18 years old. Guardianship and trusteeship are established for the children without parental care in order to educate and train them, as well as to protect their rights and legitimate interests.  The Guardian (curator) is the legal representative in court who defends the rights, freedoms and legitimate interests of persons, who do not have full legal capacity, and of those who have limited capacity. This right is granted by law.

A specific context is created for the Republic of Moldova.  The children remain without parental care because their parents migrate to work abroad and guardianship/trusteeship should be applied as a form of child protection. According to the statistics, submitted by the General Prosecutor’s Office of the Republic of Moldova, on October 1, 2011 on the territory of the country, there were about 42,299 children, who have one or both parents abroad, and who were registered by the social assistance and family protection departments and by community social workers.

Although the number of children without parental care is increasing and represents an alarmingly high figure in the country, there are only 3,595 children for whom guardianship / trusteeship was established. For example, according to the data submitted by the authorities from Cimislia district, there are 812 children, whose both parents work abroad, but guardianship was established just for 14 children. A similar situation is in Falesti district, where out of the 569 children registered by the authorities, and who have both parents abroad, trusteeship was established only for 37 children.

One reason for the created situation is the lack of action on behalf of the local authorities. Although article 142, paragraph (4) of the Family Code expressly stipulates that guardianship and trusteeship is established by the local authorities within one month from the receipt of such a request on the basis of the written notice of the guardianship authority's, however, based on the provisions of article 114, paragraph (2) the guardianship authority, which has been informed about the child left without parental care, shall, within 3 days, control the child's living conditions and, if lack of parental care is confirmed, it must issue a decision on registering the child, and ensure his legitimate rights and interests through a temporary placement, allowed by law, until the determination, as provided by this code, of the form of adequate protection. Consequently, the authorities are also obliged to intervene in situations when it is assumed that the parents are going abroad and leave their children in the care of relatives, without informing the guardianship authority. Therefore, according to the ombudsman’s opinion, it is not justified that the authorities motivate their inaction over the child’s best interests.

The irresponsibility of the parents is connected with the difficult procedure of establishing guardianship. According to the specialists on child protection, the mandatory condition for the guardian is to undergo medical examination to confirm the health state,  creates many inconveniences, a reason that generates a barrier for providing adequate parental care for the children.

There are also difficulties in terms of the interpretation and enforcement of the legislation on guardianship / trusteeship. The ombudsman was confronted with such situations in 2011 too, just as in 2009 and 2010. In one of the examined cases, it was found that, following the death of a single mother, the children's uncle, in order to prevent their institutionalization, addressed a request to the guardianship authorities to start the procedure of establishing guardianship for the children remained without parental care, so as to provide education, training and protection of the orphans’ rights left without parental care.

Under the provisions of the Family Code, and on the basis of the incumbent duties,  the Head of the District Section for Social Assistance and Family Protection issued an opinion- conclusion according to which the children were recognized the status of orphans, so as to observe the children’s best interests, and the applicant  was recognized the right to be guardian. The local Council issued an administrative act ordering the appointment of the uncle as guardian of one of the brothers.  In the case of the second child, left without parental care, the local public administration did not take any decision, and respectively, no form of protection, as stipulated in the Family Code, was determined. 

Later, examining the reason why no form of protection was determined for the orphan child, it turned out that in the second child’s birth certificate under the rubric "father" was indicated the single mother's family name and the surname of a certain citizen, whose identity is missing in the State Registry of the Population. The guardianship authority instructed the relatives of the underage children to submit a request for summoning to court the given person to cancel the inscription in the birth certificate, considering that it was the only possibility of legal solving of the form of protection for the child left without parental care. The provisions of Article  112 of the Family Code stipulate that in the case of parents’ death, of limitation of parental rights, of neglect, of reporting the parents as incapable because of illness or long absence, of evading  from children's education and protection of their  rights and interests, including the refusal of parents to take their children from educational, curative or other institutions, where they are located, as well as other cases  of lack of parental care, the protection of the children’s  rights and interests is ascribed to the guardianship authority. Therefore, although the authorities had sufficient leverage to settle the case, because of incorrect interpretation of the law on guardianship / curatorship on behalf of the guardianship authorities, the violation of the child's right to family habitation was admitted and in this context the responsibility lies directly on the authorities.

The ombudsman believes that, when parents manifest irresponsible behaviour, because of lack of legal knowledge, and do not follow the procedure of establishing guardianship to ensure protection for children without parents, the authorities must intervene promptly for preventing risk situations in which children can be involved. Also, when in certain circumstances a large number of children without parental care are observed without the authorities being informed, the latter should organize actions for community information on this subject.
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