Legal Conditions for crossing the state border of a minor

During the period of summer holidays, as an interesting question arising so many dilemmas is the right of parent/s, as well as other relatives and friends to transfer a minor across the state border.

The answer, though legally given in one provision of the Law on Border Control, however, causes a lot of doubts in its practical application. The legal provision in question stipulates that during the border check of minors, the police officer pays special attention to whether the minor travels alone or accompanied by another person. To cross the state border, a minor until the age of 16, who is a citizen of the Republic of Serbia, when traveling alone or accompanied by another person who is not his parent or legal representative, must have the certified consent of both parents, if jointly exercising parental rights, or his/her legal representative”.

In the practical application of this provision, however, it usually happens that either the travel of a minor is accompanied by additional costs in order to obtain unnecessary documentation or ends with the  denial of the child’s right to leave the state border.

Security in the application of this rule, stems partly from the fact that this area has not been specifically regulated for a long time, so it was depended on the free assessment of border officials, who, in addition to passports, could seek certified parental consent or allow minors to cross only with a travel document. With the entry into force of the Law on Border Control (“Official Gazette of RS”, No. 24/2018) on April 3, 2018, the obligation to have certified parental consent was introduced for the first time, thus harmonizing the practice with binding EU regulations and the Schengen Borders Code.  On the other hand, it remains imprecise how shall an attempt of older minor (16-18 years old)  to cross the state be treated.

Consent is a statement that is verified before a Public Notary, in the form of verification of the authenticity of the signature. However, in the event that one parent is granted custody by a court decision, crossing the state border will be possible on the basis of that court decision,  without the consent of the other parent.

On the other hand, although this may often seam as an unnecessary and purely administrative procedure, in the practice of police and courts it is not uncommon that one parent reports child abduction, and police to find the child at a state border, crossing accompanied by another parent, or in situations when parents have disrupted partnerships, which ends before the Center for Social Work and even constitutional complaints.

As an illustration of the seriousness of the consequences that may occur, if border control do not strictly adhere to these rules, we will illustrate with the example set out in the Decision of the Constitutional Court Decision Uz 708/2021 of 9.12.2021. which was initiated by the father of minor children, over which the mother independently exercises parental rights, while the defendant, as a father, has the right to maintain personal relations with them. Namely, after gaining custody over children, the mother made an independent decision to move to Australia with the children, but the father did not agree on the relocation. Due to the untimely reaction of police officers and the inactivity of the Center for Social Work, the juvenile plaintiffs – the defendants, accompanied by their mother, left the Republic of Serbia, from where they flew to Istanbul and Jakarta. Their further location was not determined until the end of the procedure, despite the fact that Interpol took over the jurisdiction in their search.

“Starting from the fact that taking minor children to an unknown location abroad undoubtedly caused the interruption of any contact between the father and the minor children, and that contact cannot be made until the location of the children is determined, which is all a consequence of failure court and Social workers regarding the father’s proposal to issue a temporary measure, which could reasonably be expected to prevent the said illegal act of the mother, the Constitutional Court finds that the constitutional complainant violated the rights of parent (father) under Article 65 of the Constitution, and the right of child under Article 64. St.1  of the Constitution”.

The extent to which border officials are motivated to determine and correctly interpret the declaration of each court decision granting one parent the independent right of custody, remains ambiguous. The suggestion that could greatly alleviate the existing uncertainty in application of law in this point, is establishment of a centralized database of minors whose movement across the border is especially conditioned, and then there would be no arbitrariness in the application of the law and at the same time constant doubts about the application of this important legal rule would be avoid.