Decision No. 3 of 27 June 2013 on Constitutional Case No. 7/2013
The case was instituted in response to a moion by the Ombudsman of the Republic of Bulgaria who challenged the constitutionality of Art. 7, para 9; Art. 8, para. 9 and Art. 10а, para 4, item 2 of the Family Allowances Act (FAA). In the Ombudsman’s opinion the above texts award an undeserved privilege to the parent/adopter who outlived the other as they place at a disadvantage all other parents/adopters who for a reason other than demise bring up their children unassisted. The challenge insists that the codified entitlement of the parent of a child who was left an orphan to monthly allowances until the child’s graduation from secondary school and to monthly allowances until the child reaches an age of one and to a onetime target sum to defray some of the expenses of a first-grade pupil – all this infringes on the principle of the equality before the law as enshrined in Art. 6, para 2 of the Constitution. Consequently the legislation unwarrantably discriminates against all other parents who for one reason or another find themselves in the same situation as they bring up their children unassisted by the second parent. As a further reason the Ombudsman stated that the legal texts that he challenged touched, among others things, on the rights of children since a child who is brought up by a parent who has outlived the other parent will be provided with better care owing to the family allowances than a child who is brought up by a single parent/adopter. In the opinion of the Ombudsman such an approach is discordant with the principles in Article 2 and Article 3 of the UN Convention on the Rights of the Child.
The Constitutional Court dismissed the challenge as unsustainable with the following arguments:
The Family Allowances Act embraced a new philosophy vis-à-vis the onetime and monthly payments in the event of childbirth and child rearing. This form of support ceased to be social assistance and was transformed into an autonomous social welfare institution by which the State aids families in their upbringing effort. Family child-intended allowances are a special form of social welfare which is different from the social security coverage schemes. Hence the conclusion that the concept that underlies the family allowances is different from the concept of social assistance in the narrow sense of the word. The crux of the concept is that it is an element of the welfare state policy with a focus on the encouragement and protection of the family, motherhood and children (Art. 14 of the Constitution) and part of the Constitution formulated imperative for a welfare state to assist parents in the exercise of their parental right and obligation to raise and bring up their children (Art. 47, para 1 of the Constitution). That is why the system is financed exclusively by the National Budget. The target of the State policy to support the raising and upbringing of children in a family which is seen as the natural milieu where the occurring processes don’t boil down to the parents’ ability or to guaranteed equality of childcare in this milieu. International human rights arrangements are in the same vein: Art. 16 of the European Social Charter (revised). The family is seen as a special unit of society and of law (Art. 9 of the International Covenant on Economic, Social and Cultural Rights; Art. 23 of the International Covenant on Civil and Political Rights) and involves parents who live together be they spouses or not, and underage children and specially, by virtue of the Family Allowances Act, children who have come of legal age but are not 20 years old yet.
The Ombudsman did not challenge the option of privileges, in principle, in favor of any vulnerable social group and of compensation benefits to the socially disadvantaged (Decision No. 14/1992 on Constitutional Case No. 14/1992). As the Constitutional Court has already noted: “The principle of equality stands for equality before the law. That the law provides for differentiation with regard to one and the same right or obligation is not tantamount to a violation of the Constitution-proclaimed principle of equality before the law. Differentiation is based on a definite criterion that is met by all the entities in the respective group. The differentiation accounts for the strict and fair enforcement of equality in a greater measure and codifies it.” (Decision No 6/2010 on Constitutional Case No. 16/2009). However, the Ombudsman insisted that a privilege granted on a certain group, specifically on orphaned children with one parent who outlived the other, viz. the elimination of the means-testing criterion to make a family eligible for child allowances must cover all the children who are brought up by one parent as they are in identical situations.
Really in a state committed to the rule of law the Legislature is bound to apply the same solution to similar cases and a solution that varies from case to case if equality before the law and justice in society are to be guaranteed. Cases are seen as similar if the differences between them, if at all, are not essential. Essential differences, if any, make it binding on the Legislature to intervene and differentiate the legal texts that ensure equality in protection and support. Art. 14 of the Constitution reads that the family shall enjoy the protection of the State while Art. 47, para 1 of the Constitution makes it binding on the State to assist parents in the raising and upbringing of their children. However, legislation about assistance to families by means of benefits shall not remain undifferentiated owing to the essential differences in the needs from family to family. This is the only way to guarantee the equality before the law of the family allowances beneficiaries, as insisted by Art. 6 of the Constitution. It is beyond doubt that families where children are brought up by one parent who outlived the other make up a vulnerable category on account of an unlooked for mishap that entailed irremovable and irreversible consequences. Hence the Lawmaker’s intervention for their sake guarantees equality in the protection of the family and children (Art. 14 of the Constitution) and justice in the attitude of the State. The question is whether the Lawmaker has violated the principle of equality before the law by the award of a privilege to be enjoyed only by one category of parents who singly bring up their children.
As the beneficiary of family allowances is the family, the judgment of whether there exists inequality must take into account the family as a whole in the sense of § 1, item 1 of the FAA Supplementary Provisions. In other words, the judgment of whether there exists inequality must take into consideration the economic and social situation in which parents raise and bring up their children. The matter that the FAA treats and its purpose which is to provide support to parents to raise and bring up their children afford the vantage-ground for an adequate answer to the question whether the challenged texts conflict with the principle of equality before the law.
It is beyond doubt that the death of parents or of a parent is the factor that impacts the family in the greatest measure. Death either puts an end to a family with both parents and the child is left parentless (complete orphan) or, and it was unanticipated, ends the family bond with one of the parents and the child is left motherless or fatherless (half orphan). Therefore but for parentless children, the second most vulnerable category emotionally and money-wise and in general in terms of the conditions in which they grow up are exactly the children who are brought up by the parent who outlived the other one. For purposes other than that the Lawmaker included this group of children in the umbrella category that subsumes multiple varied cases that are termed “children of single parents”, that is parents who bring up their children without a second parent involved. However, essential differences can be observed within this category. It is difficult to perceive a family environment in which a parent who outlived the other one raises and brings up a child as identical to the environment in which a divorcee vested with parental power raises and brings up a child. Divorce dissolves the marriage of spouses but their child still has two parents, and this makes the environment in which such a child grows up essentially different from the circumstances in which a motherless or a fatherless child is brought up. The child of divorcees is looked after by both parents. The care measures are interchangeable and both parents bear responsibility for the upbringing.
An essential difference exists between the situation of a child who is brought up by a parent who outlived the other one and a child who is brought by an unmarried single parent. The latter or his/her parent or legal guardian can always institute a paternity suit that will put the child in a system of kinship ties with all ensuing personal and property relations as a consequence, including parental responsibility and even suspension of parental rights but for the cases that the law, by way of exception, explicitly forbids. Such an action will be, to the maximum extent, in the best interests of the child as it is of paramount importance for the regulation of the child’s legal status. Hence the Constitution’s advocacy for the need of affiliation to both parents (Art. 47, para 1 and Art. 47, para 3 of the Constitution) as an important prerequisite to delineate the environment in which the children will be raised and brought up. The Convention on the Rights of the Child, its Article 7 reads imperatively that the child shall have the right to know his/her parents. Similarly, the conditions in which an orphaned child is raised and brought up are, as a rule, crucially impacted by this fact. The right and responsibility to raise and bring up a child is exercised and borne, respectively, by one parent. The death of a parent terminates the relationship with the child and automatically impacts the child’s emotions and psychology. It is most natural in such a situation for the State, as bound by Art. 47, para 1 of the Constitution, to step in to support the raising and upbringing of a motherless or fatherless child. The family, the child included, is upset by a factor which is beyond control while the environment in which the child is raised and brought up radically changes. Therefore the situation of a child who is brought up by a parent who outlived the other parent is not identical to the situation of a child who for some reason other than the death of a parent is brought up by one parent who may resort to a number of legal tools to involve the other parent. Therefore a differentiated treatment to be received by these categories of cases is justifiable and admissible viewed from the perspective of the need to ensure “equal protection” for the children who are brought up by the parent who outlived the other one.
On the other hand, when the parent-child relationship is an adopter-adoptee relationship it follows a complicated adoption procedure in the course of which the adopter takes a firm and sustained decision, hence the non-availability of a reason to exclude the adopter from the general rules that are valid for all who are eligible for family allowances. The assessment of the Government institutions and of the Judiciary includes, inter alia, the fact that an adoptee will be brought up by one parent from the very day of the adoption.
The category “single parent/adopter” as formulated in the legislation is quite broad and covers a variety of cases, so the Lawmaker is free to codify privileges to be enjoyed by the most vulnerable groups within this category. Moreover, the idea that the law has embraced stands out prominently as it prescribes what should underlie privileges within the framework of family allowances. Mindful of the social groups to which they are targeted, namely handicapped children, children looked after by the parent who outlived the other one, talented children, a conclusion may be drawn about the criterion on which the Lawmaker draws for the regulation. In principle privileges granted within the family allowances scheme are an instrument of support for families who are affected by factors that are beyond their control but that adversely, persistently and deeply impact the psychology and emotions of the members of such families. The nature of the cause (incurable disability, the death of a parent) is the justification for the Government to step in in order to ensure some relative equality of the care that any child needs. Conversely, the general form of granting family allowances is based solely on the need to achieve the desired justice with regard to the conditions in which children are raised and brought up.
It is impossible to provide equal treatment within the framework of a broad group with no regard to the causes that left a child in the care of one parent. The privilege that is codified in the challenged FAA texts and that is to be enjoyed by families where a parent died and the parent who outlived him/her brings up a child as a single parent does not lead to injustices. On the contrary, the deletion of the word “outlive” would have had such an effect. To provide one and the same treatment to a heterogeneous group of cases would be tantamount to similar treatment of dissimilar cases in defiance of the principle of equality before the law and would lead to injustices.
The reasons on account of which the FAA allows privileges within the general mode of granting family allowances fall beyond the thorough catalog of Art. 6, para 2 of the Constitution of social factors that preclude the curtailment of rights or the award of privileges. The Lawmaker assumes that the outcome calls for the interference of the Legislature in order to fulfill the obligation assumed under Art. 47, para 1 of the Constitution. Inasmuch as family allowances are a matter of State policy which is financed by the National Budget, the law may set some further criteria of eligibility for privileges to be enjoyed by certain categories of families, within the framework of the general scheme, providing Art. 6 of the Constitution is not infringed on. In other words, such privileges should not be discriminatory which will mean that different treatment is justified by the differences from case to case where a parent raises and brings up his/her child as a single parent.
To give solidification to his position the Ombudsman referred to the Convention on the Rights of the Child. Its Article 3 reads that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Hence the avowal of the State to ensure the child protection and care as is necessary for his/her well-being, taking into account the rights and duties of his/her parents, legal guardians or other individuals legally responsible for him/her, and, to this end, to take all appropriate legislative and administrative measures. However, the texts challenged leave no doubt that the Lawmaker was guided by the best interests of the child whose mother/father is dead and codified a family allowances scheme to guarantee the childcare as is necessary. Besides, it is important to note that Article 3 of the Convention makes it binding on the State to ensure the child such protection and care as is necessary for his/her well-being, taking into account the rights and duties of his/her parents/legal guardians or other individuals legally responsible for him/her and thus allows to recognize, to a varying extent, the specifics of the legal status of children, including children who are not complete orphans.