You should examine the questions below to evaluate whether your child has been separated from their family lawfully and whether your right to family life has been sufficiently respected. If your answer to any of these questions is negative in your situation, your right to family life may have been violated. In such a case, you have the right to complain. Read more about how to complain.
Read more about the suspension and withdrawal of parental custody, if your child has been taken out of your family as a result of the suspension or withdrawal of your parental custody.
Read more about access rights, if they have been restricted while your child is in out-of-family care.
Taking a child away from a family is only permitted in the situations which are specifically provided for by law. The Protection of the Rights of a Child Law exhaustively lists all the situations when a child’s separation from their family is allowed.
If your child has been separated from your family on grounds that are not provided for by law, your right to family life has been violated. There is no need then to examine the other questions.
A child’s separation from their family should be aimed at the protection of certain legitimate interests. Generally, these are the child’s interests.
example A child may be separated from their family to protect his/her health or in the interests of their development within a safe environment.
If there is no legitimate aim for taking a child out of a family, it will not be lawful and your right to family life may have been be violated. There is no need then to examine the necessity and the proportionality of the child’s separation from their family.
Separating a child from their family and placing him/her into out-of-family care must be necessary and suitable for the protection of legitimate interests.
The following questions should be asked to evaluate whether there really was such a need:
a) Is the child’s life, health or development seriously threatened?
Firstly, there must be sufficient specific evidence for such threats such as a medical statement or the opinion (statement) of the child.
Secondly, there should be an evaluation of whether:
- these threats were caused by the parent
- the child would suffer from violence from the parent if he/she stayed in the family
example A child’s separation from their family may be necessary if there is strong suspicion of sexual abuse by a parent.
- the child would suffer from insufficient care, educational deficiencies and a lack of emotional support from the parent if he/she would stay in the family
example A parent who suffers from alcohol addiction may not provide the necessary care and support for a child, which may warrant the child’s separation from their family.
- there are other specific reasons why the parent is incapable of taking care of the child and these reasons are independent of the parent’s behaviour
example The parent suffers from a mental or physical disease which makes it impossible to take sufficient care of the child.
- the state of a child’s physical or mental condition requires their placement in specialized care or a medical institution
- the threats could be overcome by financial or social assistance to the parent and effective counselling by competent authorities, so that the child could stay in their family.
example If the parent’s poverty and/or lack of adequate housing is an issue which may be solved by providing support from competent authorities, then, this in itself, would not be sufficient and lawful reason for the child’s separation from their family.
important The mere fact that a child could be placed in a more beneficial environment for his/her upbringing is not a sufficient reason for a child’s removal from their family.
b) Are there other alternative and less restrictive methods available to achieve the legitimate aim?
- Was it possible to provide the necessary financial and social assistance, so the child could stay in their family?
- Was it possible to organize for the other parent, a relative or a close family friend to take care of the child instead of an unrelated person or a care institution?
- If the child has been taken out of their family at the same time as the initiation of an adoption procedure for that child - was it possible to separate the child from the family without initiating an adoption procedure?
important If a child has been taken into out-of-family care and an adoption procedure has been initiated, then such a measure is considered particularly severe. This is so because the adoption procedure ends with a final and irreversible removal of the child from their family.
c) Was the care order issued urgently?
An urgently issued care order (emergency order) is a particularly severe restriction of a parent’s right to family life. However, such a measure is lawful, if there are sufficient reasons for it.
example The urgency of the particular situation, such as the endangerment of the child’s life and health, would require an immediate reaction from the authorities and would justify such an emergency order.
Both competing interests – your right to family life and the legitimate interests of other persons, such as those of your child - have to be balanced against each other and the state institutions must find a fair balance. There have to be sufficient arguments why the interests of others outweighed your rights in the particular case.
A child’s separation from their family is very serious interference, as it splits up a family. There should be sufficiently sound and weighty considerations in the best interests of the child. The following aspects should be evaluated within the balancing process:
a) the child’s best interests
It is in the child’s best interests that ties with members of his/her family are maintained except in cases where it would harm the child’s health and development. To identify the child’s best interests in each particular case, the authorities must take into account the child’s age, maturity and wishes. Read more about the principle of the child’s best interests.
example A child’s wish to stay with their family will not be decisive if staying in the family would mean that he/she would be likely to suffer from domestic violence. In such a case, it should be objectively assessed, whether it is in the child’s best interests to ensure his/her development in a safe and secure environment out of their family.
The child’s age, mental and physical state play a particular role in a decision-making procedure. The younger the child, the stronger the possibility that after his/her separation from the family, when the child is placed in the care of a legal guardian or foster parents, that he/she will establish a close relationship with them and it may be in the child’s best interests not to interrupt the new relations. In other words, the separation of a younger child from a family may lead to an alienation from the parents with much more limited possibilities of reuniting and renewing the family relationship.
example The taking of a new-born baby into public care is an extremely harsh measure and must be taken after very careful consideration.
b) What are the parent’s characteristics and conduct towards the child?
- Does the parent suffer from a disease or an addiction which makes it difficult to sufficiently care for a child?
- Has the parent neglected the child, or been abusive and/or violent towards the child and other family members?
- If the parent has the aforementioned problems, was he/she motivated to accept treatment and/or assistance from the authorities before the child’s separation from their family?
- Has the parent been motivated and cooperative towards the authorities in finding the best solution for the situation before the child’s separation from their family?
c) Was the child taken into care by a relative or close family friend?
Such a measure is considered a milder restriction than the taking into care of the child by an unrelated or unknown person or specialized care institution. For example, if the child is taken into the care of a relative, the right to contact and visit the child may generally be easier to negotiate and exercise.
d) Is the parent allowed to contact the child and exercise his/her access rights?
An opportunity to contact and meet your child while he/she has been taken into care lessens the harsh effect on the parent’s right to family life, caused by the child’s separation from their family.
Read more about the lawfulness of restrictions on parental access rights.
e) Was the decision-making procedure fair?
Was the parent involved in the decision-making procedure?
The involvement of the parent ensures that the decision is not one-sided and arbitrary. The parent has a right:
- to be heard and present arguments against the child’s separation from the family
- to be fully informed about the situation and have access to all the relevant evidence which the authorities have collected
The situation and its consequences should be explained to a parent who suffers from mental disease or intellectual disabilities in a manner that he/she understands. This may also include providing legal assistance, and if necessary, advice and guidance in seeking it.
If the parent has no opportunity to be involved and heard in the decision-making procedure, it may lead to a violation of the parent’s right to family life. However, the participation of the parent in the decision-making process is not needed in exceptional situations, such as:
- where the parent cannot be found
- the parent’s physical or mental condition is such that he/she cannot understand the situation
- in other circumstances where it would be impossible or excessively difficult
Have the authorities examined the entire family situation thoroughly?
A thorough examination includes the examination of all factors and evidence of a factual, emotional, psychological, material and medical nature, and a balanced and reasonable assessment of the child’s and the parent’s interests.