Limits of Public Discretion of Guardianship and Custody Authorities
Bibliographic Data
| ID | 22434682 |
|---|---|
| Authors | Kirill Vital'evich Zotov (0009-0000-3630-0943, corresponding author) |
| Year | 2026 |
| Issue | 7 |
| Pages | 76-100 |
| Publication date | 2026-07-01 |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Право и политика (JOURNAL) |
| Journal identifiers | ISSN: 2454-0706 • E-ISSN: 2454-0706 |
| Publisher | Aurora Group, s.r.o (PUBLISHER) |
| DOI | 10.7256/2454-0706.2026.7.80886 |
| OpenAlex | W7168102058 |
| Language | EN |
| References cited | 22 |
The article examines the limits of public discretion of guardianship and custody authorities when they adopt decisions affecting minors, legally incapacitated adults and persons with limited legal capacity. The research focuses on discretion not as an administrative freedom of choice, but as a constitutionally bound form of authoritative judgment, in which the public authority must connect the measure chosen with the purpose of protective competence, the established factual circumstances, the specific risk to the ward, the ward’s subjectivity and the possibility of judicial review. Special attention is paid to the distinction between genuine risk and social disadvantage, protective intervention and administrative paternalism, a reasoned decision and a pseudo-reasoned departmental formula. The methodological basis includes formal legal, constitutional legal, systemic, comparative legal and doctrinal-reconstructive methods, applied together with the analysis of judicial practice. The scientific novelty of the article lies in substantiating a three-threshold model of the limits of public discretion. The first threshold concerns the admissibility of intervention and requires a specific, current and verifiable risk of violation of the ward’s rights. The second threshold determines the intensity of intervention and requires the choice of a minimally sufficient protective measure, including verification of less restrictive alternatives. The third threshold concerns the reviewability of intervention and requires reasoning that allows the addressee and the court to reconstruct the transition from facts to a legal conclusion. The article also proposes a typology of defects of public discretion: competence-related, factual, risk-related, alternative-related, subjectivity-related and motivational defects. The conclusion is made that the proposed standard requires three-level normative concretization: general requirements for decisions of guardianship authorities, clarification of the content of guardianship opinions in child-related disputes, and revision of the form of the living conditions inspection act.
Discretion · Judicial discretion · Judicial review · Legal guardian · Normative · Novelty · Standard of review · Governance, Compliance, and Sustainability · Legal and Policy Issues · Psychodrama and Leishmaniasis Studies
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Children’s Participation in Child Welfare
To Reform the Child Protection System in Portugal—Stakeholders’ Positions
Children's participation in child protection—How do practitioners understand children's participation in practice
Dilemmas of children’s participation and the role of practice guidelines
Embedding children’s participation in child protection
| Highly cited | No |
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