The Legal Aid Network of National Network for Children expressed a position on the repeal of a provision allowing Bulgarian children to travel abroad without the consent of the non-Bulgarian parent.
On April 5, 2022, the Supreme Administrative Court (SAC) issued a decision revoking the possibility of taking Bulgarian children out of the country without the consent of their parent, who does not have Bulgarian citizenship. The first instance decision, subject to appeal before a five-member panel of the SAC, was rendered on appeal against the provision of Art. 48, para 1 of Instruction №8121h-813 of July 9, 2015 on the procedure and organization for carrying out the border checks at the border checkpoints, issued by the Minister of Interior, promulgated. DV. No. 55 of July 21, 2015 (the “Instruction”). The complaint was filed by an American citizen, whose disagreement with his child to travel outside the country was not registered by the Ministry of Interior. Procedural representative in the proceedings is a lawyer Yordanka Bekirska, who is a member of the Advisory Board of the NNC Legal Aid Network.
The case has the following genesis: A father, who is an American citizen and whose child with Bulgarian citizenship is in the country, files an application and a notarized declaration expressing his explicit disagreement with the child to leave Bulgaria. However, the Border Police refused to register his application on the grounds of Art. 48, para. 1 of the Instruction, which reads as follows: “In case of border inspection of minors and underage Bulgarian citizens leaving the territory of Bulgaria unaccompanied by parents, the accompanying person or the person himself is required written consent for travel from the absent parent / parents, guardian or trustee – Bulgarian citizen”. The justification for the refusal is the lack of a legal requirement when leaving the country by a child – a Bulgarian citizen, to require the consent of the parent who is not a Bulgarian citizen.
The arguments presented in the appeal to the court regarding the refusal are that the above-cited text of the Instruction directly violates a number of normative acts of a higher degree. However, the violation of the procedural rules for the adoption of the Instruction, regulated in Art. 26 of the Law on Normative Acts. In particular, the omission to publish on the website of the Ministry of Interior a draft of the Instruction, together with the reasons, respectively the report to it, together with the provision of interested parties at least 14 days for proposals and opinions on the project. Failure to comply with the above rule results in the issuance of a bylaw in violation of the principles of legality, equality and accessibility, publicity and transparency, as well as the principles of reasonableness, stability, openness and coherence in the drafting of regulations. At the same time, the presented reasons for the adoption of the Instruction are schematic and essentially do not fulfill the role they are intended to serve, which is why the court practically accepts that such are missing. On this ground, the SAC annuls the text of the disputed provision of the Instruction. It remains to be determined whether the Ministry of Interior will appeal the text of the decision or whether it will enter into force.
Regardless of the outcome of the dispute, however, the question of the future of the Instruction and the amendments that should inevitably be made in it remains open. Based on the current text, the Legal Aid Network of the NNC proposes that with regard to children – Bulgarian citizens or with habitual residence in Bulgaria, there should be the consent of both parents to leave the country through either is from the border checkpoints. In view of this, we at the Legal Aid Network believe that the current provision should be amended as follows, namely:
In case of border inspection of minors and underage Bulgarian citizens or minors whose place of residence is in the country, who leave the territory of Bulgaria unaccompanied by parents, the attendance or written consent to travel from the absent parent/ guardian or trustee is required.
Adopting urgent changes in the above direction would have the effect of bringing the by-laws in line with higher-level regulations, which require the consent of both parents to be given in order for a child to leave the country. The latter has as its justification the enhanced protection that the state exercises in relation to children. The best interests of the children are directly monitored by the administration and the court. The Legal Aid Network will not only continue to follow the topic, but will also actively participate in the expert debate on the necessary changes in the way Bulgarian children travel abroad.