null Commissioner for Fundamental Rights Takes Stand on Launching a Case on Establishment of Paternity and Approval of Adoption

In the currently effective regulation, it is not ensured that the public guardianship authority, which acts in matters of adoption, is notified of the launching of a paternity case that concerns a certain child in each case, as Ombudsman Dr. Ákos Kozma concluded after he had inquired into a related complaint. The Commissioner requested the competent ministry to clarify the respective statutory provisions.

A father turned to the Commissioner for Fundamental Rights with a complaint regarding the adoption procedure of his daughter under legal age. He complained that since his child was born, he had attempted to give a paternity statement of full legal force before the public guardianship authority on several occasions but the latter was not cooperative, his petition had not been registered. Finally, the child was declared suitable for adoption, then a decision on her removal from state care was adopted, then the adoption was approved. The complainant lodged a petition for the establishment of his paternity at the court, which was, however, rejected. It was explained in the reasoning that no legal case can be launched for the establishment of the paternity of another man if the status of the father is filled through adoption.

In his report on case No. AJB-1152/2021, Dr. Ákos Kozma pointed out that when examining the questions brought up in the complaint, one should start out from the requirements set out in the Child Protection Act. This means that if approving the adoption depends on the preliminary establishment of paternity, then the public guardianship authority will suspend the procedure for the approval of the adoption until the ongoing case on the establishment of paternity is concluded with a decision of binding effect. However, in the case under review, the procedure for the approval of the adoption was not suspended by the public guardianship authority, despite the fact that the complainant had filed a petition for the establishment of paternity. The status of the father had not been filled before filing the claim, according to the child’s birth certificate but by that time, the adoption of the child had already been approved by the public guardianship authority.

According to the information provided by the public guardianship authority, the procedure launched for the adoption of the child had not been suspended because they were not aware of the claim filed by the complainant at the court. In his response, the chair of the court emphasized that the court has no obligation to inform the public guardianship authority of any legal cases related to a personal status affecting a child. Based on the response given by the decision-maker, the competent ministry also recognized the concerns regarding the requirement of legal certainty and the enforcement of the rights of the affected child in this case.

The Ombudsman emphasized that in order for the quoted provision of the Child Protection Act to be able to fulfil its purpose and function, it is of critical importance that the public guardianship authority become aware of the launching of the case for the establishment of paternity.

Dr. Ákos Kozma concluded that the currently uncertain legal situation, the incidental nature of the authority’s becoming aware of the procedure for the establishment of paternity are both incompatible with the requirement of legal certainty, the principle of procedures that take the child’s best interests into account, thus, in its effect, this situation is suitable for causing an impropriety with regard to the children’s right to protection and care.

The Commissioner for Fundamental Rights requested the Minister of Justice to propose the amendment of the Act on Civil Procedures in order to ensure that the authorities are officially informed of the cases for the establishment of paternity that are launched, or are in progress after the adoption takes place.

Please, find the respective report at: AJB-1152/2021.