fundamental and human rights
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opportunity to participate in hobbies or other normal activities in or outside the institution. Only
permitting the child to move in the company of
an employee is also considered a restriction of
the child’s freedom of movement. Restricting the
freedom of movement always requires a written
decision subject to appeal.
The children’s movement had been limited to
either a short period of independent outdoor exercise or leaving the unit only in the company of an
adult. Every unit of the residential school restricted the children’s freedom of movement without
a decision. Children could lose their rights to take
walks, or the walks could be shortened as punishment for their behaviour. The arbitrariness of the
rules concerning movement was underlined by
the fact that several children placed into the institution whose freedom of movement was severely
restricted while in the institution were nevertheless permitted to travel independently to home
visits in the weekends. The Deputy-Ombudsman
stressed that restricting a child’s freedom of movement may not be used as a punishment for the
child’s behaviour. She considered that the residential school’s rules restricting the children’s freedom of movement had no basis in law (1353/2018).
The movement of the children in their free
time had been severely limited without individual decisions on the matter. The children were not
permitted to leave the exercise area defined by
the institution and their movement outside the
institution was supervised. It is possible that the
restrictions on the children’s movement constituted restrictions on the freedom of movement
provided for by law, in which case they would
have required individual decisions for each child
(356/2018).
In the Deputy-Ombudsman’s opinion, the
child welfare unit’s rules restricting the children’s
freedom of movement – such as only taking outdoor exercise alone and the related severing of social relationships – had no basis in law. The children’s opportunity to go to school must also be
specifically secured during any restrictions on the
freedom of movement. If this is not possible, the
decision must provide specific justifications for
such restrictions (4099/2018*).
Physical examinations
and bodily searches
The ”justified reason to suspect” justifying a physical examination or bodily search must be recorded
in the child’s documents. Such reasons are always
individual and must be evaluated individually for
each child. The child’s documents must also describe the practical implementation of the bodily
search and physical examination.
The Deputy-Ombudsman has required personnel
conducting bodily searches and physical examinations to take the child’s age, sex, level of development, individual attributes, religion and cultural
background into account. Such searches and examinations must be implemented in the manner
that causes the least harm to the child (1353 and
4099/2018*).
The residential school must make sure that no
unauthorised external persons participate in the
bodily searches or physical examinations of children. With regard to the child’s legal protection,
the Deputy-Ombudsman considered it essential
that the samples of children who give a positive
screening test result and deny the use of the substance be always sent to a laboratory for examination (1353/2018).
Room and mail searches
The Deputy-Ombudsman has specified that a
search of a child’s mail or room must always have
a legal basis, which must be assessed individually
and recorded appropriately in the child’s documents. Regular searches of a child’s mail without
a concrete suspicion of substances or items referred to in the Child Welfare Act are not permitted.
The Deputy-Ombudsman pointed out that the
child has the right to know the reason for the
search and be present during the search (1353 and
4099/2018*).
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