Yes, this Convention came into force on 1 January 2002 in Slovakia.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The applicable law is the law of the State of the habitual residence of the child. When the protection of the person or property of the child is required, the decision-making court may take into account exceptionally  the law of another country with which the case has a substantial connection ( Article 24 of Slovak international private and procedural law and Art. 15-17 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children)

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

If the minor has its habitual residence in a Member State of the EU bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation), the application of this Regulation will prevail over both the Hague Convention and Private International Law rules. Thus, Article 8 of the Regulation in general sets out that the international jurisdiction will belong to the Courts of the Member State where the child has its habitual residence.

If the minor has its habitual residence outside the European Union but in a State  party to the Hague Convention, the international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the child, in order to take measures directed to the protection of the child’s property or person (Article 5 Hague Convention).

If  the minor has its habitual residence outside the EU in a State which is not party to the Hague Convention, national Private International Law rules will be applicable in order to determine the international jurisdiction. Jurisdiction of the Slovak courts in matters of custody of minors is given if the minor in the Slovak Republic has his/her habitual residence or the habitual residence cannot be determined (§39 of Slovak international private and procedural law) .

The power of the Slovak courts is given also in matters of custody of minor refugees or children who have entered the territory of the Slovak Republic as a result of the unrest in their country.

If the jurisdiction of the Slovak court in matters of custody of minors is not given, the Slovak court shall perform only measures necessary to protect the person or property of the minor and shall inform the competent authority of the country of habitual residence of the minor. Measures are adopted by a court under the Slovak substantive law.

Under Article 60 of the Convention, the Slovak Republic reserves the jurisdiction of its authorities to take measures directed to the protection of immovable property of a child situated on the territory of the Slovak Republic as well as the right not to recognize any parental responsibility or measure in so far as it is incompatible with any measure taken by its authorities in relation to such property.

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

No distinction is made in Slovak international private law between custody and right of representation, therefore the above applies.

According to Slovak law, a person is considered a minor before reaching the age of 18 years. Article 8 of the Slovak Civil Code (Law No. 40/1964 Coll ) provides that before the age of 18, a minor may become major only in case of a marriage. The resulting majority cannot be removed even if the marriage is subsequently dissolved or in case of annulment.

Article 9 of the Civil Code provides that minors have limited legal capacities that are adequate to their intellectual and mental maturity corresponding to their age.

Finally, the Article 476 letter d) of the Slovak Civil Code allows minors who have reached the age of 15 years to make a will, but only in the form of a notarial document.

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

Extension through marriage is possible under Article 9 of the Slovak Civil Code (refer to the previous question).

According to Article 11 of the Slovak Family Law (Law 36/2005 Coll) the Family Court of the principal residence of the minor exceptionally may authorise the marriage of a minor over 16 years. Without this permission, the marriage shall be void.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

A minor may make a will without the consent of his/her legal representative when  he or she is over the age of 15 years (§ 476 letter d) of Civil Code). The will  has to be established by a notary.

Under Slovak Law the concept of ‘custody’, refers to the concept of ‘parental rights and responsibilities‘. In principle, both parents have custody of the minor, regardless whether the minor was born in or out of wedlock and whether the minor’s parents are married, divorced, live separately or jointly. They shall possess equal right of execution of custody under the condition they have full legal capacity and their fatherhood and motherhood was proven under the law. Parents may exclusively carry out the execution of custody to the extent that they have not been deprived of their parental rights and responsibilities, and to the extent that the execution of these rights and responsibilities has not been either restricted or suspended.

In the event that one of the parents does not fulfil any one of the stated conditions, the other parent is fully in charge of execution of custody.

3.1 What is the scope of the right of custody?

Under Slovak Law, the concept of ‘custody’ refers to the concept of ‘parental rights and responsibilities’. These rights belong jointly to both parents and single custody is an exception. Parental rights and responsibilities shall be fully executed by one parent only, in cases when the other parent is dead, legally incapable or deprived, restricted or suspended of parental rights and responsibilities.

The concept of ‘custody’ is defined broadly under the Slovak Family Code and in particular comprises the right of representation of the minor, the right of administration of minor’s property and finally the right of custody. The right of custody includes the duty and right of bringing up the minor, educating the minor, providing him/her with health care and maintenance (Article 28 of Slovak Family Code).

From the right of custody shall be distinguished the right of personal care of the minor. Personal care of the minor may be executed by both parents living jointly, by one parent only, or by both parents living separately. A parent who provides personal care of the minor can make all decisions connected with the minor’s everyday life, but all important matters (moving, school, etc.) must be mutually agreed by both parents. In case of absence of mutual agreement of parents, the court must make a decision on their proposal. The right of representation of the minor child and administration of his/her property remain the responsibility of both parents, irrespective of which parent provides the right of personal care of the minor.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

In cases when one of the parents is dead, legally incapable or deprived, restricted or suspended of parental rights and responsibilities, the other parent is in charge of execution of parental rights and responsibilities.

In the event that neither parent is alive, known, or has full legal capacity, or both parents have been deprived of the execution of parental rights, the District Court according to the habitual residence of a minor child shall establish a guardian of a minor child.

The guardian is in charge of representation of the minor, the administration of his/her property, and supervising the minor’s upbringing (education, personal care, health care, maintenance etc.). The guardian may provide personal care of the minor himself or another person may be appointed by the court.

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

The court shall decide on the appointment of a guardian of a minor child on someone’s proposal (e.g. of a person, who wants to be a guardian), or of its own motion as soon as it becomes aware of the need to establish a guardian of a minor child either on the basis of its own activities or some other initiative, for example, child protection authority.

3.2.2 Is the competent authority free in its choice of a new custodian?

If the parents of a minor child are alive, and if it is not contrary to the interest of the minor, the court shall appoint as a guardian especially a person suggested by the parents (whose performance of parental rights and responsibilities has been suspended). If there is no such person, the court shall appoint as a guardian somebody from relatives or close persons of a minor child, or persons close to the family of the minor or some other natural person. If it is not possible to establish as a guardian any natural person, the court shall appoint as a guardian a municipality.

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Joint guardianship is exclusively acceptable in the case of spouses, therefore only a married couple may be appointed jointly as the guardian of the minor. Slovak law does not exclude the possibility to appoint different guardians for different areas. In some cases a different person may be appointed as the guardian for administration of the property from the guardian of legal representation, and custody (eg. when the minor is owner/successor of the commercial legal entity the guardian for administration of the property shall be the specialist in administration of such a property).

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

Disputes over parental custody irrespectively between married or unmarried parents are decided upon by the family court division of the District Court according to the habitual residence of a minor child.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

Slovak law does not provide for transfer of custody by power of attorney.

Parental rights and responsibilities include legal representation of a minor child, which is a joint right of both parents, who, when executing this right, are obliged to protect the interests of the minor.

There exist also cases in which the right of legal representation of a minor shall be executed by only one parent: when the other parent is not alive, or he/she is unknown or does not have full legal capacity. This also applies in situations when one of the parents has been deprived of their parental rights and responsibilities, or when execution of these rights and responsibilities has been either restricted or suspended.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

If the court decides on the restriction or deprivation of the execution of parental rights and responsibilities only in relation to one of the parents, these rights and responsibilities shall be fully carried out by the other parent.

If neither of the parents can execute parental rights and responsibilities, or in case when the only living parent has been deprived of parental rights and responsibilities, the court shall establish a guardian of a minor child.

If both parents of a minor child have died, or have been deprived of the execution of parental rights and responsibilities, the court shall establish a guardian of a minor child who will be responsible for the minor’s education, and who will represent and manage its assets.

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

The court shall decide on the appointment of a guardian of a minor child on someone’s proposal (e.g. of a person, who wants to be a guardian), or of its own motion as soon as it becomes aware of the need to establish a guardian of a minor child either on the basis of its own activities or some other initiative, for example, child protection authority.

To establish a guardian is competent the district court in whose jurisdiction the minor child is domiciled (under the agreement of the parents or by the court decision, or on the basis of other relevant facts).

4.1.2 Is the competent authority free in its choice of a new legal representative?

If the parents of a minor child are alive, and if it is not contrary to the interest of the minor, the court shall appoint as a guardian especially a person suggested by the parents (whose performance of parental rights and responsibilities has been suspended). If there is no such person, the court shall appoint as a guardian somebody from relatives or close persons of a minor child, or persons close to the family of the minor or some other natural person.
If it is not possible to establish as a guardian any natural person, the court shall appoint as a guardian a community.

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Yes, spouses can be jointly established as guardian of a minor child. As for the possibility to have different representatives for different areas, this is not very common in our legal practice, as there is usually only one guardian appointed to represent a minor child. Nevertheless, the Slovak legal system does not exclude this option.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes, Slovak law provides for a range of exceptions.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

A representative cannot represent another if he/she is not eligible for the legal action, or if he/she has no full legal competence in cases where the representative has to represent in all legal acts.

Parents, when representing their minor children, must have full legal capacity. (The same is true in case of an adoptee and a guardian appointed in the place of parents.)

When parents represent their children, only a possibility of a conflict of interests between parents and children, or between minor children represented by the same parent, is enough for the inability to represent the children, which means none of the parents can represent their minor child. In such a case the court appoints a guardian for the minor child, who will represent the child in proceedings or by a certain legal act (guardian ad litem/collision guardian).

It is not possible for the legal representative to represent a minor at all times, as some acts are so exclusive in their nature that they cannot be done by anyone other than the minor. They are such legal acts for which the minor has his/her own legal competence because they are granted by the law.

• A minor can acknowledge paternity before the court, while representation by a legal representative in this case is excluded;
• A 15 year old child can only make a will in the form of a notarial instrument;
• A minor child older than 16 years of age can file a petition to the court for the permission of marriage;
• A minor child older than 16 years of age can file a petition to the court on granting parental rights in relation to personal care of a minor child.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Parental rights and responsibilities according to Slovak law include both the right of custody and the representation rights. Therefore, in the case of joint custody, parents also in principle have joint powers of representation.

Where custody is held by only one parent, the parent has sole rights to represent the child in ordinary cases. However, in essential things mutual agreement is needed (see more in section 4.2.3).  If the parents are not able to reach an agreement, the procedure under § 35 of the Family law will apply (decision made by court).

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

The right to represent a minor child is a part of parental rights and obligations, which belong to both parents. By exercising the rights and duties, parents are obliged to protect the interests of the minor child.

It is assumed that the parents agree on the exercise of parental rights and responsibilities, as well as the content of the legal act in relation to a child. When dealing with normal – ordinary matters, each of them can act separately in the name of the child, it is not necessary to act together. In other than ordinary or basic matters, it is necessary to seek the opinion of the other parent, respectively, i.e. the expression of the other parent that he/she agrees with the manifested will of the representing parent. If he/she were to not give consent, there would be a need for a court decision on the difference of opinions of the parents. For example, acquisition of real estate, selling of real estate, granting loans, waiver of the succession, etc. can be considered other than ordinary matters.

In principle, both parents must act together for all legal transactions.

(It is possible for just one parent to act, if the other has authorised him/her to represent the child alone. E.g. authorisation for travelling abroad with just one parent.)

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

For specific legal transactions a court approval is required. Specifically, when administrating a minor’s property, parents (or individuals appointed by the court to administer a minor’s property) exercise it independently only in ordinary acts of property management (e.g. rental of a building, etc.).
For other acts, such as selling a property, a court approval is needed.
A court approval is issued only on application.
The district court of the place of habitual residence of the child is competent.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

Court approval is not required in ordinary acts related to care of a minor’s property.

• If a special, not ordinary act of administration of a minor’s property is concerned, a court approval is required. (§ 28 Civil Code).
• A non-ordinary act is for example acquisition or removal of real estate or other things or rights of a greater value. A legal act carried out by a representative of a minor child shall be approved by the court only if it is in the best interests of the minor child. (§ 179 Civil Proc.Code)
• Court approval is required in matters related to the administration of the property of the child, in particular:
• Acquisition of property by a minor
• Selling of a minor’s property
• Donation of a property
• Lien on a property
• Conclusion of a succession agreement
• Waiver of succession
• Granting of a loan, etc.

The question of whether or not a matter is ordinary or unordinary when dealing with a minor’s property must always be judged with respect to the circumstances and the nature of the case.

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Court approval is generally obtained after the fact.

When the legal representatives of a minor have decided to dispose with the minor’s property, after the conclusion of an act (e.g. after the conclusion of a Donation Agreement or a Sales Contract, etc.), they are obliged to bring an action to the court, for an approval of the court in the name of the minor.

Without this court’s approval, the legal act shall be deemed invalid. (For example, if the subject of a contract is real estate and the act is not approved by a court, as a result the Cadastral office will not authorise the transfer of ownership, will not issue a decision on the deposit in the Land registry and therefore there will be no transfer of ownership.)

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

In specific cases, parents are excluded from the power of representation. According to § 31- Representation of a minor child (Family Act), none of the parents can represent a minor child in case of a legal process which could lead to a conflict of interests between the parents and the minor, or between minor children represented by the same parents. In such a case the court shall appoint a guardian of the minor child, who will assume the proceedings or represent a particular operation (guardian ad litem). The curator safeguards the interests of the child and represents him/her accordingly. (e.g. inheritance proceedings).

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

A testator may identify the administrator of the property in making the bequest (who may or may not be the legal representative of a minor.)

4.4 May the right of representation be transferred to another person by means of a power of attorney?

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or is cannot be transferred in regard to certain transactions)?

4.4.3 What are the formal requirements for this type of power of attorney?

The legal representative may authorise other persons (e.g. they can issue power of attorney to a solicitor). Where both parents jointly represent the child, both must authorise the third party.

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

There is no such document for the legal representatives (parents).

Article 31 of the Slovak family law in its paragraph 3 provides a representation of a minor child by a guardian. In this case, the court issues a decision in the form of an appointment of the guardian attesting containing an enumeration of his/her powers of representation. The same applies for a custodian.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

There are no specific documents proving parental authority or power of representation in Slovakia. The relationship can be proven by the birth certificate. However, this does not justify parental authority or the right to legal representation of a minor child.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

Every citizen of  the Slovak republic  including a minor child may travel abroad with a valid travel document. We recommend checking with the Embassy of the State being visited whether there are other requirements in  addition to  travel documents. For example, written consent from the parents (legal representatives) and the form and language of this consent, and  whether the signature must be certified by a notary, or whether a simple permission of the parent (legal representative) is sufficient.

Regarding the national law, we should refer to the provisions of § 35 of Family law according to which  the consent of both parents is required only on substantive matters related to the exercise of parental responsibility, in particular for example the eviction of a minor child abroad. On the other hand, for the short term leave of a child abroad ( e.g. vacation ) the consent of both parents is not required.

Part 1: Protection measures for adults in loss of capacity

The basic Slovak legislation on issues surrounding loss of legal capacity is based on Section 10 of Act No. 40/1964 Coll. – The Civil Code that allows for a restriction as well as complete loss of legal capacity (https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/1964/40/).

With effect from 1 July 2016, with the adoption of Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceedings, it is no longer possible to deprive a person of legal capacity. This new procedural regulation does not allow for the complete loss of legal capacity and describes only a restriction of legal capacity. The enshrined changes relating to the procedure for legal capacity were implemented in the context of the accession of the Slovak Republic to the United Nations Convention on the Rights of Persons with Disabilities (https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html).

Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceeding – stipulates that when the court decides to restrict an individual’s legal capacity, the extent of the restriction is specified in the judgement and a guardian is appointed by the court (Section 248, para. 2 https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2015/161/20201001). 

A proposal to initiate proceedings must contain, with the exception of the general conditions of the proceedings, a description of the evidence justifying the intervention in the individual’s legal capacity and a reason justifying that the less restrictive action is not possible, or a description of the evidence justifying the change in the restriction of the individual’s capacity to perform legal acts, or evidence justifying the return of the individual’s capacity to perform legal acts (Section 234)

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