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Commissioner for Fundamental Rights Takes Stand in Relation to a Protracted Proceeding Concerning School Change

A protracted proceeding of the guardianship office of second instance concerning the school change of children caused an impropriety related to the right to fair administration of official matters. It violated the requirement of legal certainty and the principle of the best interests of the child, and, by its effects, it was also capable of causing an impropriety related to the children’s right to protection and care, as well as of posing an imminent danger thereto, Commissioner for Fundamental Rights Dr. Ákos Kozma concluded.

A mother submitted a petition to the Office of the Commissioner for Fundamental Rights in which she complained about the protracted proceeding of the guardianship office of second instance in Budapest. According to the information provided in her petition, the Budapest Capital 5th District Guardianship Office had granted her request for changing the school of her children by its decision of 5 September 2019. However, the children’s father, who has been living separately from them, filed an appeal against the decision which was not adjudicated on by the guardianship office of second instance by the time of the mother submitting her petition to the Ombudsman’s Office.

In his report on Case No. AJB-5917/2020, Dr. Ákos Kozma found that the guardianship office of second instance had initiated the review of the decision made at first instance with an almost 2-month delay following the referral of the relevant documents of the case. According to the expert opinion requested from the pedagogical-professional services, completed as of 16 January 2020, it was recommended that the children change school. In the Ombudsman’s view, all the necessary information was available to the guardianship office of second instance by January 2020 for making a decision on the merits. Moreover, none of these pieces of information substantiated that ordering the parents to avail of a mandatory mediation procedure on 9 July 2020, almost 10 months after the proceeding at first instance, would have served the best interests of the children. Owing to the time elapsed, a decision serving the best interests of the children cannot be delivered on the basis of the earlier psychological recommendations and pedagogical opinions. Not even one year after the initiation of the proceeding has the guardianship office of second instance reached a decision on the merits.

The Commissioner for Fundamental Rights concluded that the protracted proceeding of the guardianship office of second instance caused an impropriety related to the right to fair administration of official matters. It violated the requirement of legal certainty and the principle of the best interests of the child, and, by its effects, it was also capable of causing an impropriety related to the children’s right to protection and care, as well as of posing an imminent danger thereto.

In order to prevent the future occurrence of the fundamental rights-related improprieties exposed, Dr. Ákos Kozma called upon the Government Delegate of the Government Office of the Capital City of Budapest to conduct an extraordinary review concerning the guardianship office’s backlog of cases and the current number of its staff. He also recommended that they take the necessary measures to remedy the potential shortage of staff or other circumstances impeding the performance of the guardianship office. Furthermore, the Ombudsman invited the head of the guardianship office of second instance to make a decision without delay on the children’s school change.

For the report, please click on the following link: AJB-5917/2020.