Family Law Act ensures the right of the child to receive care from his or her parents. In order
to ensure the right of the child to know his or her parents, § 143 of the Family Law Act also
establishes the right of the child to maintain personal contact with his or her parents and the
right and duty of the parents to maintain personal contact with their child.
With regard to contesting the activities of a child protection official, the Chancellor found that
a reply to the question under which procedure the activities of a child protection official should
be contested can be found in the Administrative Procedure Act and the Code of Administrative
Court Procedure, and depending on the legal nature on the contested activity also in the Code
of Civil Procedure. The Chancellor explained the competence of civil and administrative courts
and found that with regard to the choice of the court it is of decisive importance what
specifically is being contested. If the person contests the activity or omission of a child
protection official within administrative proceedings, for example finding that the statutory
deadline for assessing the need for assistance was violated or the concerned person was not
heard in the process of issuing an administrative act, they should have recourse to the
administrative court. However, if the person contests interference in his or her own parental
right of custody, for example finding that the child was separated without justification, it is a
matter of custody rights and the person should have recourse to the civil court.
With regard to § 33(1) of the new Child Protection Act which gives child protection officials
the right to restrict the communication between the child and the parent for 72 hours in case of
separation of the child from the family, the Chancellor found that the Child Protection Act is a
lex specialis in relation to the Family Law Act as regards the competence of the child protection
official in the case of separation of the child from the family. The Chancellor emphasised that
restriction of the right of communication is a temporary and exceptional measure – the child
protection official may determine the procedure of communication between the child and the
parent for a maximum of 72 hours, after which the official should have recourse to the court.
Establishing any more permanent restrictions on the visiting rights and determining the
procedure of communication will still remain within the competence of the court under § 143
of the Family Law Act.
§ 33(1) clause 2 of the new Child Protection Act establishes that a child in danger may be
temporarily separated from the family if he person exercising the right of custody over the child
refuses the temporary placement of a child with a service provider. The Chancellor found that
this provision should be interpreted in combination with § 32(4) of the same Act, which
establishes that a child in danger shall be placed in safety at a social, health care or educational
institution or person providing such service (i.e. service provider) or at a person who is safe for
the child depending on the child’s needs and the situation. As in the case of separation of the
child from the family it is inevitable that the child is placed in an institution providing the
relevant service, it is obvious that by allowing, in case of existence of the bases provided for in
§ 135(4) of the Family Law Act, separation of the child from the family without a court’s
authorisation the law should also allow the placement of the child in the necessary institution
(e.g. a shelter, hospital) without the court’s authorisation. At the same time, the Chancellor
expressed the opinion that § 33(1) of the new Child Protection Act could be worded more
clearly and in its present form it is confusing. In the opinion of the Chancellor, § 33(1) clauses
1 and 2 of the new Child Protection Act lack an independent regulative effect because the legal
basis for a child’s separation from the family is the danger to the child’s life or health as
established in § 33(1) (first sentence) of the same Act.
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