The Romanian legislation is silent in respect of the exact procedure which must be followed in case a child is to be placed with his extended family based on a foreign order.
As an effect of the provisions of the Romanian Constitution and the Romanian Civil Procedure Code, European regulations adopted by Romania shall apply with priority towards the national laws. This means that the provisions of the Regulation no. 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility becomes applicable before any national provision.
The provisions of the above-mentioned Regulation (art. 56, paras 1) are in the sense that a court contemplating the placement of a child in institutional care or with its extended/foster family it shall first consult the designated central authority from Romania or any other competent authority (child protection authority from Romania) in case a public authority intervention in that Member State is required for domestic cases of child placement.
The provisions of this Regulation talks about placing a child in institutional care or a foster family. Under the applicable Romanian legislation there is a clear difference between a foster family and an extended family. The extended family represents the child’s relatives up to the 4th grade and the foster family represents the persons, other than the ones representing the extended family which ensures the care and protection of the child.
Thus, we must turn our attention to the national legislation regarding the placement of a child within the care of the extended based on a foreign order. Law no. 272/2004 is the law which provides the main guidance regarding the placement of a child that lacks the guidance and protection of its parents. In respect of the placement of a child under the care of his extended family based on a foreign order this law is silent.
The legal provisions on the placement of the child are interpreted differently by each of the child protection authorities dealing with such cases depending on the county where they are located.
There are local authorities which accept that children can be placed based on a foreign order (and then recognized in Romania) and, other local authorities that maintain the position that Romanian children should be repatriated and then placed with their extended family/in institutional care applying the Romanian legal provisions.
The procedures and requirements for a child to be placed in Romania based on a foreign order could be analyzed from three perspectives:
1.An interim public law care order under which a foreign local authority has overriding parental responsibility for the child
As mentioned above, the Romanian legislation is silent in respect of foreign orders which order that a child to be placed with his extended family.
I believe that a child which is a Romanian citizen abroad should be placed with the extended family, if the members of the extended family qualify to take care of the child in Romania being in his best interest. My view is based on the provisions of the Law no. 272/2004 regarding the protection and promotion of the rights of the child.
According to the provisions of the above-mentioned law (article 24, paras 1), Romania’s diplomatic and consular missions have an obligation to inform the Ministry of Labor, Family and Social Protection about Romanian children abroad who are not accompanied anymore by their parents or a legal representative.
The Ministry of Labor, Family and Social Protection will then take all measures for the child to be returned to his parents, if the case, or to another legal representative.
Thus, in such cases, the competent authority from abroad should first issue a note by which the Romanian Ministry of External Affairs will be notified about this situation.
Article 24 paras. 2 from the Law no. 272/2004: ‘’The Ministry of Labor, Family, Social Protection and the Elderly shall take the necessary measures for the return of the child to the parents or to another legal representative immediately after their identification. If the identified persons cannot or refuse to take over the child at the request of the Ministry of Labour, Family, Social Protection and the Elderly, the court of the child’s domicile or the Bucharest Tribunal, in case this residence is not known, will order the child’s placement in a special protection service proposed by the Ministry of Labour, Family, Social Protection and the Elderly.’’
2. A private law order, giving the carer parental responsibility;
If the child is placed with his grandparents, for example, based on a foreign order giving them parental responsibility, such an order must follow, in Romania, the recognition procedure of a foreign decision provided by the Romanian Civil Procedure Code. Once recognized by the Romanian court, the foreign order will have the same effects as a Romanian court decision.
3. No order
If no order will be issued for the members of the extended family to have parental responsibility or for a local authority to override the parental responsibility, the procedures and the requirements to be followed for a child to be placed in Romania are the ones mentioned at point a) above.
The foreign authorities must notify the Romanian Ministry of External Affairs which will start the proceedings for the child to be returned to Romania and then placed with his extended family based on the applicable Romanian legal provisions.
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Ana-Maria Alexandru
