Application of the Clause of the Good of the Child: Reflections Inspired by the Decision of the Supreme Court on the Creation of Foster Families

Abstract

The article concerns the good of the child clause. Once the sense of the clause was specified, the focus of the article was shifted onto the issue that is closely related to the practice of judicial decisions undertaken by courts, namely to the criteria under which the courts apply this clause. To illustrate the issue, it was necessary to make references to the achievements of the theory of law concerning the linguistic interpretation and functional interpretation and, in particular, the relationship between them. The background and inspiration for the considerations is the decision of the Supreme Court issued a few years ago, in which the obvious thesis was propounded that if the linguistic interpretation leads to absurd conclusions, contradicting the assumption of the rationality of the legislator’s actions and contradicting the axiology of the legal system, then the conclusions should be abandoned and the decisions should be made on the basis of the good of the child clause. The author however claims that the Supreme Court has erroneously interpreted Article 42 of the Act of family support and foster care. He supports his claim saying that in the discussed case there were no grounds for rejecting the norm interpreted with the use of linguistic interpretation methods. Moreover, the author asserts that the Supreme Court has improperly applied that functional interpretation since, referring to the constitutional value of the good of the child, it did not in fact protect it, and by its decision the court made the person who did not meet the legal and moral criteria obtain the status of a foster family.