The Ombudsman on the fundamental-right-breaching breakdown of an adoption procedure
Inquiring into an adoption case involving a same-sex couple, the Commissioner for Fundamental Rights has established the violation of the right to due process and the principle of equal treatment. According to László Székely, the child protection guardian has made an arbitrary decision, and the guardianship authority has made an omission. In the Ombudsman’s opinion, certain rules of adoption have to be revised, that is why he has requested the competent ministry to take the necessary measures.
According to the complainant, the adoption procedure, already in the “getting to know each other” phase, was probably thwarted after the potential adopter, having been found qualified earlier, had openly admitted living in domestic partnership with a person of the same sex. The human rights defender organization representing the complainant has turned to the Commissioner for Fundamental Rights, explaining that the procedure was thwarted based on an abusive legal technicality, and the legal remedy proceedings were not lawful, either.
The Commissioner has concluded that the child protection guardian and the potential adopter’s joint request was withdrawn without any substantial justification and legal basis, at the late phase of the procedure, which is in breach of the prevailing legal regulations. The investigation has uncovered that both the first and second instance guardianship authorities failed to notice this excess of powers and, acknowledging the joint request’s withdrawal, rejected the complainant’s application for formal reasons. Although the child protection guardian was aware of the fact that the applicant lived in a steady relationship with a same-sex partner, when withdrawing the joint request, she failed to refer either to the potential adopter’s having become unqualified or to the rights or interests of the child. The Commissioner has pointed out that, due to the amount of time spent together, the interruption of the adoption procedure had a demonstrably adverse effect on all those concerned, the child in particular.
The report states that neither the guardianship authority nor the child protection guardian indicated that the complainant’s sexual orientation constituted the cause for rejection. The competent authority had earlier declared the potential adopter as qualified; however, the decision on rejection did not contain any substantial argument or reason as to whether the relationship the adopter was living in, her circumstances or conduct of life would infringe upon any right or interest of the child. Due to the absence of any explanation and the coincidences in time, the Commissioner has concluded that the guardianship authority’s proceedings and decision infringed on the prohibition of discrimination.
The Ombudsman has reviewed the preference specifications related to the adoption procedure and noted some problems in connection with their interpretation. Based on the Child Protection Act and the Civil Code, the prevailing adoption rules specify three criteria for preferential treatment: residents before foreigners, locals before persons living in other parts of the country, and married couples before single persons. According to Ombudsman László Székely, there is an unjustified redundancy in the regulation of conditionality, and its elements are stipulated in different legal acts. The present situation, caused by the vague regulations, violates the principle of legal certainty and may lead to the arbitrary application of the law by the competent authority.
With the child’s rights and interests in mind, the Ombudsman has examined whether it is justified to give married couples on the national waiting list priority in the adoption procedure over legally single local applicants. In the current practice of the adoption authority, local adoptions are given priority over adoptions by married couples. According to the Commissioner, it cannot be disputed that the interests of the child are usually served the best by the earliest adoption by a qualified person and the preservation of his/her cultural-local identity. Consequently, in the process of selecting the adoptive parent, there are strong arguments in favor of giving preference to local residency.
The Commissioner for Fundamental Rights has suggested that the Minister of Human Capacities should review the contradicting rules of preference related to adoptions and, in order to eradicate uncertainties, initiate the clarification of the relevant regulations. He has requested the heads of the competent Guardianship Authority and Government Office to proceed and also make all other parties involved proceed within the existing legal frameworks, keeping in mind the concerned parties’ right to due process and the children’s best interests. The Commissioner for Fundamental Rights has also made a recommendation to the director of the competent county-level authority to consider organizing children’s rights training sessions for all child protection guardians working in the county.