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Ombudsman Takes Stand in Relation to a Protracted Proceeding Concerning the Temporary Placement of a Child

The proceedings of the guardianship office of first instance and that of second instance, along with the latter’s interpretation of the law – which caused an impropriety related to the right to fair administration of official matters – violated the requirement of legal certainty and the principle of the best interests of the child. By their effects, they were also liable to cause an impropriety related to the child’s right to protection and care, as well as to pose an imminent danger thereto, Ombudsman 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. According to the information provided in her petition, by its decision of 12 February 2020, the Budapest Capital 13th District Guardianship Office had ordered the temporary placement of her child in a shelter home, against which she had filed an appeal. She objected that the guardianship office of first instance had not informed her about the possibility of her child’s temporary placement with another family, and she also complained about the fact that the guardianship office of second instance had not adjudicated on her appeal by the time of submitting her petition to the Ombudsman’s Office.

In his report on Case No. AJB-5156/2020, Dr. Ákos Kozma concluded that based on the information provided by the Vác Family and Child Welfare Centre on 26 July 2018, the guardianship office of first instance was aware of the fact that the child had been taken care of by the petitioner’s elder sister before, and that she would be willing to undertake that responsibility again if the temporary placement of the child became necessary. In the Ombudsman’s view, the child’s temporary placement was reasonable already in December 2018, at the time of the petitioner’s hearing and the report filed against her for endangering a minor. In light of the statement made by the child’s separated father, the guardianship office of first instance should have examined whether the child could temporarily be placed with another relative or person. Nonetheless, the guardianship office of first instance did not inform the petitioner about the possibility of the child’s temporary placement, nor did it arrange for a hearing of the petitioner’s elder sister by contacting its counterpart having competence over the elder sister’s domicile. What is more, the guardianship office of first instance decided about the child’s temporary placement only on 12 February 2020, without taking into account the order of priority laid down in the Child Protection Act.

The Commissioner for Fundamental Rights found that the guardianship office of second instance had decided on the appeal filed against the decision made on the child’s temporary placement nearly six months after its submission, i.e. its proceeding had multiply exceeded the 20-day time limit available for adjudicating on such appeals. The Ombudsman pointed out that the temporary placement of the child had simultaneously been terminated, and therefore the petitioner had become able to exercise her parental custody over the child in its full extent.

The Commissioner for Fundamental Rights concluded that the proceedings of the guardianship office of first instance and that of second instance, along with the latter’s interpretation of the law – which caused an impropriety related to the right to fair administration of official matters – violated the requirement of legal certainty and the principle of the best interests of the child, and, by their effects, they were also liable to cause an impropriety related to the child’s right to protection and care, as well as to pose an imminent danger thereto.

In order to prevent the future occurrence of the fundamental rights-related improprieties exposed, Dr. Ákos Kozma turned to the heads of the authorities proceeding at first and second instances. With respect to the given inquiry, the Ombudsman pointed out that his Office regularly receives complaints that concern the belated proceedings of the Guardianship and Justice Division of the Government Office of the Capital City of Budapest. Taking into account that most recently – in his report on Case No. AJB-5917/2020 – the Ombudsman requested the Government Delegate of the Government Office of the Capital City of Budapest to take measures for eliminating the fundamental rights-related improprieties arising from delays in proceedings, in his report made on the given complaint, he did not take any specific measures against the supervisory authority relating to the delay occurred.

For the report, please click on the following link: AJB-5156/2020.