The UN Committee on the Rights of the Child, in its first-ever decision against the Czech Republic, defended two adolescents who had been placed in an institution based on an interim measure for neglecting their schooling and their parents’ failure to provide them with psychological or psychiatric support
On 5 June 2023, the UN Committee on the Rights of the Child has ruled on the first-ever individual complaint against the Czech Republic. The communication no. 139/2021 was prepared by Anna Sležková and Maroš Matiaško, counsels at Forum for Human Rights on behalf of B.J. and P.J., two adolescent siblings, aged 13 and 16, who were placed in an institution for children in need of immediate assistance because they were neglecting their schooling (compulsory only in the case of the younger author) and that their parents had failed to provide them with the recommended psychological or psychiatric care. The placement was ordered by an interim measure not under the special provisions of Act No 292/2013 Coll., on special court proceedings, intended for such purposes, but under the general legal provisions contained in Act No 99/1963 Coll., on the Code of Civil Procedure. That deprived children of important substantive and procedural safeguards, especially the limited duration of the measure and the requirement of regular review of its reasonableness. Moreover, the interim measure was ordered on an appeal lodged, inter alia, by the siblings’ guardian ad litem. After the placement, the siblings’ contact with their parents was severely restricted and for the first few weeks, they could only leave the facility accompanied by staff.
The case of B.J. and P.J. v. the Czech Republic is an eloquent example of the most serious shortcomings of the current practice in the field of public protection of children in the Czech Republic, which is based on the application of the welfare approach instead of the one based on rights. The welfare approach confuses the rights of the child with their alleged needs, which it enforces, possibly against the will of the child, in the form of coercive measures and provides the child with only scant legal safeguards. This then leads to the public child protection system being used to circumvent legal guarantees in other laws as well as neglecting children’s procedural safeguards.
In its decision, the UN Committee on the Rights of the Child considered this paradigmatic dimension of the case. It referred to the interdependence of the human rights of the child and the need for a holistic approach. The means are as important as the objectives they are to achieve which means that it is always necessary to take due account of their impact on other rights of the child. The UN Committee criticised the court which decided on the authors’ placement for failing to assess either the previous measures taken by the authorities to support the authors, and in particular, whether these measures were child-friendly, and adopted and implemented taking their best interests as a primary consideration, and whether the children’s views had been considered and given due weight in the choice of the measures taken so far. Nor did it consider any alternative options. Accordingly, the court did not adequately assess the best interests of the authors. Moreover, the general interim measure did not provide the authors with sufficient protection and resulted in an unlimited duration and the obligation to periodically review the reasons for the authors’ placement in the institution. The authors then ended up spending more than a year in the facility. The UN Committee held that these failures constituted a violation of Article 3 (1) and Article 9 (1)-(3) of the UN Convention on the Rights of the Child.
The UN Committee concluded that the authors‘ rights were also violated by the conduct of their procedural guardian ad litem, who had acted contrary to their views by filing an appeal seeking their placement in the facility. The UN Committee stressed that it was the duty of the child’s guardian ad litem to communicate the views of the child accurately. If there is a conflict between the guardian and the represented child in their views, the child should be provided with separate representation. In addition, the authors should have been given the opportunity, given their age, to be heard directly by the court and their views should have been given due weight. The absence of a direct hearing of the authors when the interim measure was ordered could not be remedied by their subsequent hearing in the proceedings on the merits. All these facts led to a violation of Article 12 of the UN Convention on the Rights of the Child.
Lastly, the UN Committee pointed out that the regime to which the authors were subjected in the institution, particularly in the first weeks of their stay, resulted in an unjustified interference with their personal liberty. There has, therefore. also been a violation by the Czech authorities of Article 37(b) of the UN Convention on the Rights of the Child.
“We believe that the UN Committee’s decision is particularly significant in that all parts of its reasoning reflect the requirement that child protection should make sense first and foremost to the children themselves. In line with the UN Convention on the Rights of the Child, the Committee places a very strong emphasis on the involvement of children themselves and the relevance of their views and feelings. This is an excellent way of saying that it is respect for the views of the child that makes them a subject of rights and not an object of care. The Czech authorities have grasped the best interests of the children as the adults’ idea of what is best for the authors, without listening to them. Nor, since they considered that they were acting in the authors‘ best interests, did they consider it important to provide them with adequate procedural safeguards, either in the form of the application of appropriate interim measures legislation or in the form of adequate procedural representation. The Committee’s decision makes it clear that there is no automatic equivalence between what adults consider to be good for the child and the rights of the child, and that the rights of the child stand above their perceived needs. In this respect, it represents an important impulse for the Czech system of public protection of children, which should function much more as a service to children than as repression against them,” said Anna Sležková, a Senior Human Rights Lawyer at the Forum for Human Rights.
The CRC decision is also important in the part of the ruling that opposes the use of general interim measures to separate a child from their parents. This practice, which deprives children of important safeguards contained in the Special Proceedings Act, has been a long-standing problem. It has been addressed at the legislative level by Amendment No 363/2021 Coll., effective from 1 January 2022. However, in practice, some courts continue the long-established practice criticised by the UN CRC Committee in the decision and ignore the new legislation. The UN Committee’s decision is, therefore, still relevant in this part despite the legislative changes.
Finally, the Committee’s decision brings important conclusions for the procedural representation of children in proceedings on the separation of children from their parents. The UN Committee has made it clear that the guardian ad litem cannot act contrary to the views of the represented children.
“In this respect, too, the Committee’s decision upsets the established view of guardianship of children, which is carried out by social and legal protection authorities that fail to differentiate between guardianship and public protection of the child. They do not realise that, while in the latter case, they act as representatives of the State, in the case of procedural guardianship they are primarily representatives of the child themselves and their task is to help the child to exercise their procedural rights so that their views can be heard in the proceedings. In addition, in the conclusion of its decision, the UN Committee mentions among the obligations of the Czech Republic that children should be provided with a legal representative, in addition to a guardian or representative of their views, when there is a potential conflict of interest between the parties in the decision. That would certainly be a step forward, given the serious consequences of a decision to separate a child from their parents, “ Sležková added.
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Anna Sležková, Forum for Human Rights, firstname.lastname@example.org, phone: + 420 725 136 474