Was the placement of your child into social care without withdrawing your parental rights lawful?

The placement of a child into social care without withdrawing of parental rights must be allowed by law. The Family Code exhaustively lists all the situations when taking a child into social care without withdrawing parental rights is allowed. 

If the child being taken into social care without the withdrawal of parental rights is not allowed by law, your right to family life has been violated. There is then no need to examine the other questions.

The child being taken into social care without the withdrawal of parental rights has to be aimed at the protection of legitimate interests. These legitimate interests are protection of the life, health or inviolability of the child and implicitly, the protection of the child’s interests.

example If a parent is abusive, the child may be taken into social care without withdrawing parental rights to ensure the protection of the child’s health and his/her interest in developing in a safe environment.

If a child being taken in social care without the withdrawal of parental rights does not have a legitimate aim, it is not lawful and your right to family life may have been violated. There is no need to examine the necessity and the proportionality of the placement of a child into social care without the withdrawal of parental rights.

The suspension of parental custody over a child must be necessary and suitable for the protection of other legitimate interests, usually the child’s interests. 

The following questions should be asked to evaluate its necessity,:

a) Is there a serious threat to the child’s life, health or development?

The a child being taken in social care without the withdrawal of parental rights over a child must be necessary and suitable for the protection of other legitimate interests, usually the child’s interests. 

The following questions should be asked to evaluate its necessity:

• these threats are caused by the parent in question

• the child would suffer from violence from the parent if he/she were to stay with the parent

example A serious threat from a parent that would warrant immediate removal of the child from the parent’s presence would be where there are strong suspicions of sexual abuse by that parent.

• the child would suffer from the effects of insufficient care, educational deficiencies and lack of emotional support from the parent if he/she was to remain with the parent

example This requirement would be met if the parent suffered from alcohol addiction and did not provide the necessary care and support for the child.

• there are other specific reasons why the parent is incapable of taking care of a 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 for a child.

• threats could be overcome by financial and social assistance and effective counselling by competent authorities, so that the child could stay with the parent.

example The parent’s poverty and/or lack of adequate housing is an issue which may be solved by providing support from competent authorities, and as such, is not a sufficient and lawful reason for the placement of a child into social care without the withdrawal of a parent’s rights.

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 the placement of a child into social care without the withdrawal of a parent’s rights.

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 that the child could stay with the parent?

• Was it possible to manage that the other parent, a relative or a close family friend could help to take care of the child?

c) Was the decision to place the child into social care without the withdrawal of parental rights issued urgently?

An urgently issued decision to place the child into social care without the withdrawal of parental rights is an especially severe restriction of the parent’s right to family life. However, such a measure is lawful if there are sufficient reasons for such action.

example The urgency of the particular situation, such as the endangerment of a child’s life and health, requires an immediate reaction from authorities.

Both competing interests – your right to family life and the legitimate interests of other persons, such as your child and those of the other parent - 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.

The placement of a child into social care without the withdrawal of parental rights is serious interference, as it splits up a child-parent relationship for a certain time. There should be sufficiently sound and weighty considerations in favour of 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 his/her ties with his/her family members 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 a child’s best interests. 

example A child’s wish to stay with parents will not be decisive where he/she would be likely to suffer from domestic violence from the parent in question. In such a case, it should be objectively assessed, whether it is in the child’s best interests to be away from that parent to ensure the child’s development in a safe and secure environment.

The child’s age, mental and physical state play a particular role in the decision-making procedure. The younger the child, the stronger the possibility that after the placement of a child into social care without the withdrawal of parental rights, when the child is placed in the care of the other parent, legal guardian or foster parents, or social care that he/she will establish a close relationship with them. It may then be in the child’s best interests not to interrupt the new relations. In such a case, it may make it difficult to re-establish the suspended parental care and relationship with the child. In other words, the placement of a child into social care with the withdrawal of parental rights over a younger child may lead to alienation from the parent in question with much more limited possibilities of reuniting and renewing the parent-child relationship.

example The placement of a child into social care without the withdrawal of parental rights over a new-born baby is an extremely harsh measure and must be taken only after very careful consideration.

b) What are the parent’s characteristics and conduct towards the child and the other parent?

• Does the parent suffer from a disease or an addiction which makes it impossible or excessively difficult to sufficiently care for a child?

• Has the parent neglected the child, been abusive and/or violent towards the child and other family members?

• If the parent has had these problems, was he/she motivated to accept treatment and/or assistance from authorities before the placement of a child into social care without the withdrawal of parental rights?

• Has the parent been motivated and cooperative towards the authorities in order to find the best solution for the situation?

• Has the parent wilfully prevented the other parent from access to the child, even though access rights were not restricted by the authority or the court?

c) Has the parent been treated differently on the basis of certain aspects related to his/her personality? 

example A child’s placement into social care without the withdrawal of parental rights have been decided on the basis of his objective characteristics or beliefs such as his/her sexual orientation, religion or age.

If the mere fact of a parent’s personality, for example, belonging to a certain religion, is the decisive factor for the placement of a child into social care without the withdrawal of parental rights, it may violate the prohibition of unequal treatment. However, there will be no violation if the authority has carefully examined all evidence, and concluded that the influence of certain personal aspects may threaten the child’s best interests.

d) Is the parent allowed to contact the child and exercise his/her access rights after the placement of a child into social care without the withdrawal of parental rights?

The opportunity to contact and meet the child while the child was placed in social care without the withdrawal of parental rights lessens the harsh effect on the parent’s right to family life, caused by the this measure interfering parental rights.

Read more about the lawfulness of restrictions of parental access rights.  

e) Was the child taken into care by the other parent, a relative or a close family friend after the placement of a child into social care without the withdrawal of parental rights? 

Such a measure is a milder restriction than placing the child into the care of an unrelated person or a specialized care institution. For example, in such a situation the right to contact and visit a child may generally be easier to negotiate and exercise.

f) 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 to present arguments against the  placement of a child into social care without the withdrawal of parental rights

• 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: 

• 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?

This includes an examination of all factors and evidence of a factual, emotional, psychological, material and medical nature, and a balanced and reasonable assessment of both the child’s and the parent’s interests.

g) What was the length of the decision-making process?

Effective protection of family life requires that future relations between a parent and a child should be determined as soon as possible. Proceedings should not be unnecessarily delayed due to the authority’s fault.

h) Was the decision to lift the child up from the family taken for urgent reasons?

An urgently issued decision of the local guardian authority to take the child into social care is a particularly severe restriction of the parent’s right to family life but it is necessary when there is a danger to the life, health and inviolability of the child. After that the decision shall be communicated to the prosecutor in no less than 24 hours. The local guardian authority may file a case in court to withdraw parental rights or to take the child into social care without the termination of parental rights within 3 working days. The extraction of the child however, is lawful in such situation, if there are sufficient reasons for it.

example The urgency of the particular situation, such as the severe endangerment of a child’s life and health, would require an immediate reaction from authorities and would justify such an emergency decision. 

Read more about how to complain in a situation where your child was placed into social care without the withdrawal of parental rights.