United Nations

CRC/C/93/D/139/2021

Convention on the Rights of the Child

Distr.: General

18 August 2023

Original: English

Committee on the Rights of the Child

Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 139/2021 * , **

Communication submitted by:B.J. and P.J. (represented by counsels Maroš Matiaško and Anna Hofschneiderová)

Alleged victims:The authors

State party:Czechia

Date of communication:27 October 2020 (initial submission)

Date of adoption of Views:15 May 2023

Subject matter:Placement in institutional care of two siblings to allegedly ensure their rights to health and education

Procedural issues:Exhaustion of domestic remedies; lack of substantiation

Substantive issues:Best interests of the child; separation of children from parents; right of the child to be heard; right to education; right to health; right to security

Articles of the Convention:3 (1) and (2), 5, 9 (1-3), 12, 16, 18 (1), 20 (1), 24 (1), 28 (1), 29 (1), 37 (b) and (d) and 39

Articles of the Optional Protocol: 7 (e) and (f)

1.The authors of the communication are B.J. and P.J., both nationals of Czechia, born on 24 April 2006 and 25 August 2003, respectively. The authors claim that the decision of the State party’s authorities ordering their placement in institutional care to secure their medical treatment and school attendance violated their rights under articles 3 (1) and (2), 5, 9 (1-3), 12, 16, 18 (1), 20 (1), 24 (1), 28 (1), 29 (1), 37 (b) and (d) and 39 of the Convention. They are represented by counsel. The Optional Protocol entered into force for the State party on 2 March 2016.

Facts as submitted by the authors

2.1In June 2018, the authors’ parents divorced and the authors continued to live with their mother.

2.2On 6 February 2019, the Šlapanice Municipal Office, acting as the local authority responsible for the public protection of children, initiated proceedings for the authors’ placement in institutional care. It submitted a motion for an interim measure before the first instance District Court of Brno requesting that the children be placed in the institutional care of the crisis centre for children and adolescents, under section 74 of Act No. 99/1963, the Civil Procedure Code.

2.3The Šlapanice Municipal Office argued that P.J., who at the time was 15 years old, was not attending school, although he had already fulfilled the obligation of compulsory school attendance, and that he was spending his time mainly on the computer. He had allegedly filed an application to study at a secondary school. He had not applied for jobs from the list administered by the Labour Office, a necessary condition to benefit from State coverage for health insurance. He had therefore accumulated a large debt on his health insurance, which he could not pay.

2.4The Municipal Office argued that B.J., who was nearly 13 years old at the time, was failing to comply with the obligation of compulsory school attendance. She did not take the requisite exams even though the school psychologist had offered her the opportunity to sit for them in the consulting room. The Municipal Office pointed out that, despite its repeated recommendations, the authors’ mother had not ensured any psychological or psychiatric care for the children. It also cited a report dated 6 March 2019 in which the school counselling centre recommended that an expert examination be conducted to assess whether the mother was fully competent to take care of the authors and attend to their upbringing. The centre also expressed concern that the authors were suffering from the beginning of social phobia or childhood depression and recommended immediate psychiatric care, ideally in the form of hospitalization. In its report, the centre mentioned that B.J. did not want to go back to school since her schoolmates hurt her and made fun of her and that she considered that homeschooling was a solution to her situation. The Municipal Office noted that it had filed a criminal complaint against her parents for their failure to secure B.J.’s compulsory school attendance.

2.5On 12 April 2019, the District Court of Brno rejected the motion of the Šlapanice Municipal Office for interim measures. The Court considered that P.J.’s placement in the institutional facility would be completely ineffective since it would not ensure that he would successfully continue in secondary education. The Court considered that the forced removal of B.J. from her mother’s household would probably worsen her mental health and would ultimately be counterproductive. The District Court also recalled that in the past it had ordered the authors’ placement in an institution to have them undergo a diagnostic assessment but that, owing to their mental health situation, the decision was ultimately not enforced (see para. 4.1). The District Court concluded that the authors should be provided with other forms of support, ideally medical assistance, in a setting other than that of the institution for alternative care for children.

2.6At an undetermined date, the Šlapanice Municipal Office, the public prosecutor of the District Public Prosecutor’s Office of Brno and the Municipal Office of Hodonín (the authors’ new place of residence), acting as the authors’ guardians ad litem, appointed by the District Court of Brno to represent the authors in the proceedings before it, appealed the decision of the District Court before the Regional Court of Brno. All appellants explicitly referred to B.J.’s right to education. The Municipal Office of Šlapanice added that it was aware that for B.J. the removal would be traumatizing, but it found no other solution than to place her in a “neutral environment” to ensure her psychological and psychiatric examination and her fulfilment of the obligation of compulsory school attendance. The guardians ad litem argued that the authors did not respect the guidance of their mother and that it was obvious that the mother “was weak for their upbringing” and therefore neglected them. The guardians ad litem also argued that the parents should have respected the recommendations by professionals to ensure expert psychological and psychiatric care for their children, which they had failed to do. The public prosecutor of the District Public Prosecutor’s Office of Brno mentioned that the previous placement order had never been enforced since the authors’ parents actively obstructed it (see para. 4.1). The public prosecutor found it necessary for specialists in the field of child psychology and child psychiatry to start working with both authors as soon as possible. The public prosecutor concluded that she found the “normal development” of the authors to be seriously endangered and that the authors should be placed in alternative care in an institutional setting.

2.7On 28 May 2019, the Regional Court of Brno granted the interim measure motion and ordered the removal of the authors from their home and their placement in institutional care (the crisis centre for children and adolescents). The Regional Court referred to the conviction, in 2018, of the authors’ parents for the criminal offence of endangering the upbringing of a child (see para. 4.3). It argued that the parents did not properly fulfil their role in the upbringing of their children. It further argued that the children’s mother was unable to make the authors take part in organized and productive activities; that she disrespected the recommendations of the elementary school for B.J.; that she was unable to make P.J. continue preparing for future employment or enrol in the list of applicants for a job administered by the Labour Office; and that, when his health insurance had not been paid, still defended him.

2.8The Regional Court of Brno considered that both authors needed psychological and psychiatric care and that, under their mother’s care, they did not have the appropriate conditions for their future development. Their father was not involved in the authors’ day-to-day upbringing and was merely fulfilling his maintenance obligations. The Regional Court therefore concluded that it was appropriate to place the authors in a neutral environment where they would be subjected to proper and careful expert examination of their health, both physical and mental, and where it would be possible to work with them. For each parent, the Regional Court limited contact to maximum of an hour a week so that the parents, especially the mother, would not lose contact with the authors. The Regional Court also expressed the view that the separation from their mother would undoubtedly be very hard for the authors, but it argued that the authors’ parents had to fulfil their parental responsibilities: their mother had to realize that it was not sufficient to make promises yet do nothing to ensure reparation, failing to attend scheduled meetings even without any apology; the father had to understand that as a bearer of parental responsibility, he had not only rights but obligations.

2.9The authors claim that they were not informed about the decision of the Regional Court of Brno, either by their guardians ad litem or by the Court. On 26 June 2019, the authors were placed in the crisis centre for children and adolescents in Brno.

2.10The authors explain that the Ministry of Labour and Social Affairs, as the central body responsible for the funding of placements in the crisis centre, confirmed that the interim measure issued according to the Civil Procedure Code could never have the legal effect of constituting a relationship of alternative care. Such an effect could have been achieved only through an interim measure ordered according to Act No. 292/2013 on Special Judicial Proceedings, which would have provided the children with substantive and procedural safeguards that were adequate to the gravity of the issue concerned. The authors’ placement thus could not be considered, in the Ministry’s opinion, as legal, and therefore it could not be supported by State funding. The Ministry also pointed out that it was unacceptable to use special protection measures in the form of removal of the child from his or her family to ensure the child’s school attendance or to correct the child’s behaviour and recalled that these measures could never result in deprivation of the child’s liberty.

2.11On 25 July 2019, the Municipal Office of Šlapanice filed a new motion for an interim measure to place the authors in the crisis centre for children and adolescents under the special legal provisions of Act No. 292/2013 on Special Judicial Proceedings. The authors note that this was to ensure that their placement in the institution was covered by State funding. On 26 July 2019, the District Court of Hodonín rejected the motion on the grounds that it was not competent and that the previous interim measure ordered by the Regional Court of Brno was still valid.

2.12On 22 August 2019, the authors’ mother filed a constitutional complaint on her behalf and on behalf of her children, challenging the constitutionality of the interim measure ordered by the Regional Court of Brno. She pointed out that the guardians ad litem had not taken into consideration the authors’ views and wishes, filing the appeal which led to their placement in an institutional facility. The authors’ mother objected to the legality of the interim measure applied under the general rules of Act No. 99/1963, the Civil Procedure Code, instead of the special rules of Act No. 292/2013 on Special Judicial Proceedings. She challenged in particular the notion that the right to health and the right to education may constitute legitimate objectives of a forced intervention against them, resulting in their institutionalization.

2.13On 15 October 2019, the Constitutional Court dismissed the complaint as manifestly ill-founded. Having reviewed the decision of the Regional Court of Brno, the Constitutional Court did not find any of the violations alleged by the authors. According to the Constitutional Court, the Regional Court of Brno comprehensively assessed the interests and needs of the authors, and its assessment corresponded to article 3 (1) of the Convention. It found that the challenged decision had a legal basis, was issued by a competent court and was not arbitrary.

2.14 At the time of the submission of the present communication, the authors were still placed in the crisis centre. However, on the decision of the director of the facility, P.J. was staying at a boarding school during the week and visiting his mother during weekends, and B.J. was staying at her mother ’ s house even during the week.

Complaint

3.1The authors claim that their rights under articles 3 (1) and (2), 5, 9 (1-3), 12, 16, 18 (1), 20 (1), 24 (1), 28 (1), 29 (1), 37 (b) and (d) and 39 of the Convention have been violated by the State party.

3.2The authors contend that the domestic authorities relied on a “welfare approach” to children, which is always a breach of the child’s right to have his or her best interests taken as a primary consideration in all actions concerning the child, as guaranteed under article 3 (1) of the Convention. The authors argue that that approach also resulted in a violation of their right to personal and family autonomy, guaranteed under the Convention by a variety of articles that refer to the freedom of the child and his or her family from public direction and control, in particular articles 3 (2), 5, 9 (1), 16 and 18 (1) of the Convention.

3.3The authors also allege that the domestic authorities disregarded the fact that, at the time of the intervention, both of them had already reached adolescence. Even though adolescents have a right to continuing protection, that protection should not be interpreted as allowing public authorities to subject adolescents to coercion. Since the domestic authorities did not respect this principle, their intervention resulted in a violation of the authors’ rights under articles 5 and 12 (1) of the Convention.

3.4The authors state that the Convention does not enable the use of coercion of a child as a means of his or her protection. Neither the non-coercive nature of the special protection of children in general nor the specific standards for the continuing protection of adolescents enable the forcible removal of an adolescent from the place where he or she lives, nor do they make it possible to force an adolescent to live in a certain place, determined by the public authorities, as a measure of his or her protection. Such a forced intervention could be legitimate in the child justice system only if the child were suspected, accused or convicted of having committed a criminal offence, which was not the authors’ case.

3.5The authors maintain that they were subjected, in the first weeks of their placement, to restrictions on contact with their parents and were not allowed to leave the institution without being accompanied by a staff member. The restrictions imposed on the authors’ contact with their parents constituted a violation of their rights under article 9 (3) of the Convention. In addition, they were deprived of their liberty in violation of article 37 (b) of the Convention, since the special protection of the child is not a legitimate ground for depriving a child of his or her liberty.

3.6The authors consider that the alternative care measure did not provide them any support, but only led to a very intense restriction of their autonomy and freedoms, including personal liberty and the right to family life, having the same effect as if a sanction had been imposed for their behaviour. A special protection measure with such an effect seriously contravened the requirements deriving from articles 20 (1) and 39 of the Convention.

3.7The authors also consider that neither the right to health nor the right to education can legitimize the use of coercion in the form of their institutionalization. In their opinion, the right to health guarantees the child freedom from any interference with his or her integrity, unless such action is taken on the basis of informed consent, as well as the right to such goods, facilities and services that are, inter alia, acceptable for the child and that are compliant with medical ethics, including the principle “first, do no harm”. A forced intervention in the name of the child’s health is a direct violation of the child’s right to health, contravening, therefore, article 24 (1) of the Convention. The authors acknowledge that with respect to interference with the personal integrity of children, substitute decision-making on such interference may be considered as legitimate. Nevertheless, in the event that an intervention becomes necessary, the principle of evolving capacities must still be taken into account. The Committee has emphasized on many occasions that it should be applied as enabling, not disempowering, principle, especially with respect to adolescents. Even though substitute decision-making for a child cannot generally be considered as illegitimate, it should be applied with extreme sensitivity, if at all, in the area of mental health.

3.8In addition, the authors consider that the right to education should never be ensured in a way that conflicts with other rights and freedoms of the child. Even compulsory education should be ensured by such means that it promotes, not restricts, other human rights and freedoms of the child. The authors’ institutionalization was, therefore, an illegitimate means to ensure their right to education, in breach of articles 28 (1) and 29 (1) of the Convention.

3.9The authors also consider that the intervention imposed on them by the domestic authorities not only lacked a legitimate aim but also breached the requirement of legality, in violation of articles 28 (1) and 29 (1) of the Convention. They maintain that the domestic authorities proceeded according to the general rules of domestic law and circumvented the special regulations in the areas of the provision of health services and enforcement of the obligation of compulsory school attendance, even though the special regulations provided the authors with stronger procedural and substantive safeguards. Act No. 372/2011 on Health Services and the Conditions of their Provision covers situations relating to the coerced provision of health services to the child, including involuntary hospitalization (against the child’s will or the will of the child’s parents), and includes the requirement to hear the child’s views on the intended treatment and obtain his or her consent, depending upon the child’s maturity and age and taking into account such procedural safeguards as the requirement for expeditious court review of the legality and proportionality of the deprivation of liberty of the person. Regarding the enforcement of the obligation of compulsory school attendance, the authors argue that the legislation relies on the responsibility of the child’s parents and provides for administrative sanctions of up to 5,000 koruny or criminal sanctions.

3.10Regarding the interim measures for pursuing the placement of a child in alternative care, the authors maintain that, owing to a structural problem in the State party, the special provisions contained in Act No. 292/2013 on Special Judicial Proceedings (arts. 452 (1) and arts. 453-465) are systematically circumvented through the application of the general rules of Act No. 99/1963, the Civil Procedure Code (arts. 74-77). Act No. 292/2013 contains important safeguards, such as limiting the scope of situations in which interim measures may be imposed and the duration of those measures. None of the safeguards contained in Act No. 292/2013 are guaranteed to the child if an interim measure is ordered according to the general provisions of Act No. 99/1963.

3.11The authors allege that the actions of the authors’ representatives, their guardians ad litem, during the proceedings, who appealed the decision of the District Court of Brno against their will, resulted in a violation of their right to access to justice. In the view of the guardians ad litem, their role was to protect the authors’ welfare rather than to provide them with practical and effective opportunities to participate in the proceedings. The guardians ad litem had failed to respect the authors’ views, which they found immature and contrary to the authors’ best interests, and had used the authors’ procedural rights as their own. For a child’s voice to be heard in the proceedings, the guardian ad litem must be the tool to express that voice and assert it by effectively exercising the procedural rights to which the child is entitled as a participant in the proceedings. To comply with that role, the guardian ad litem has to be in regular contact with the child, ascertain the child’s views, both on the merits of the proceedings and on the proceedings themselves, and ensure that the child has all the relevant information about the way the proceedings work. The authors find that the denial of access to justice violated their rights guaranteed under article 3 (1) of the Convention, in its procedural dimension; articles 9 (2) and 12 (2); and, since the intervention took the form of deprivation of their liberty, article 37 (d).

3.12The authors request the Committee to consider the following remedies: (a) to grant them appropriate redress and compensation; and (b) to take all necessary steps to ensure: (i) that the system of protection of children does not result in the coercion of children and the deprivation of their personal liberty; (ii) that the right to health and education are not considered as legitimate grounds for the institutionalization of children; (iii) that, whenever there are legitimate reasons to separate children from their parents on the basis of an interim measure, only special legal provisions are applied; (iv) that interim measures ordering a child’s placement in alternative care are not used for the purposes of forced treatment or the enforcement of compulsory school attendance; and (v) that guardians ad litem exercise their function in a way that supports children’s access to justice and does not deprive them of opportunities to make their views heard in the proceedings.

State party’s observations on the merits

Factual clarifications

4.1In its observations dated 25 October 2021, the State party submits that the decision for institutional care was ordered only after prolonged unsatisfactory engagement with the family. It explains that the Office for the Social and Legal Protection of Children of the Šlapanice Municipal Office began to monitor the family in December 2017 after they had been notified by the primary school that, although school attendance was compulsory, the children had been missing a significant number of days. The Municipal Office started working intensively with the family in January 2018. It held meetings with the parents and the authors, organized case conferences and developed individual child protection plans. The State party submits that cooperation with the parents was difficult and that the mother kept excusing herself from meetings scheduled with the municipality and the school. On 26 April 2018, the District Court of Brno ordered, with the consent of the parents, a two-month placement of the children in institutional facilities for a diagnosis assessment. However, B.J. stayed for only two days in an educational care centre and P.J. for only a day in a diagnostic assessment institute for children. Professionals diagnosed the children with problems requiring expert attention. P.J. was developing social phobia; the psychiatrist found disharmonious personality development, signs of addiction and mild signs of an autistic spectrum disorder. B.J. was diagnosed with an adjustment disorder and later also with social phobia. At the case conference of 12 June 2018, the head of the educational care centre recommended B.J.’s hospitalization and a comprehensive psychological and psychiatric examination of the children and their parents. The psychologists of the centre for diagnostic assessment of children offered outpatient cooperation to P.J.

4.2The State party indicates that, in its judgment of 22 June 2018, the District Court of Brno ordered the Šlapanice Municipal Office to supervise the children’s upbringing, including support so the mother could ensure contact between the children and their father and cease her overprotective parenting; so the father could be more involved in the children’s upbringing; and so the parents could, as promised, accompany the children to outpatient sessions. The parents were informed at the case conference held on 10 August 2018 that if they failed in their parenting role, a motion seeking placement in institutional care would be filed. On 25 October 2018, the Šlapanice Municipal Office filed a motion seeking an urgent interim measure under article 452 (1) of Act No. 292/2013 on Special Judicial Proceedings. On 26 October 2018, the Municipal Office was appointed as guardian ad litem to the children. The District Court rejected the motion by its decision of 26 October 2018, holding that there were no grounds for urgent child arrangements. In its decision of 16 November 2018, the Regional Court of Brno upheld the decision.

4.3On 9 November 2018, the District Court of Hodonín convicted the authors’ parents of the criminal offence of endangering the upbringing of a child and sentenced them to a conditional prison sentence of eight months.

4.4On 26 November 2018, the authors’ guardians ad litem carried out the first examination of the family situation; and their situation was examined again on 3 January and 7 February 2019. During an interview on 11 February 2019, the authors were informed about the motion seeking an interim measure filed on 6 February 2019 by the Šlapanice Municipal Office (see para. 2.2). Another interview was carried out on 25 April 2019. Cooperation with the mother was deemed complicated, as she had not solved the children’s problems despite repeated warnings. Despite their refusal to cooperate with the guardians, both children received clear information from the guardians on the progress of the ongoing proceedings relating to the motion for an interim measure, including an understanding of the consequences of their parents’ behaviour.

4.5Following the decision of the Regional Court of Brno of 28 May 2019 (see para. 2.7), the authors were placed in the crisis centre for children and adolescents on 26 June 2019. After supervised contacts with their parents were terminated, they regularly spent time outside the institution and stayed with them, on so-called weekend leave and leave during school holidays. After an adaptation phase, the children could go out on their own, including outside the premises of the crisis centre, every day. When distance learning was implemented, owing to the coronavirus disease (COVID-19) pandemic, the children were on a long-term leave at home until 3 May 2020. The authors’ placement in the crisis centre continued only until 29 June 2020.

4.6The State party also submits that on 23 July 2019, the District Court of Hodonín issued a second criminal order, sentencing the mother to 200 hours of community work on account of her failure to secure B.J.’s compulsory school attendance.

4.7On 25 November 2020, the authors’ mother was awarded custody of the children by the judgment of the District Court of Hodonín. The authors had previously expressed their views, during the hearing related to the merits of the case held on 24 August 2020. At the same time, the court maintained in place the supervision order that had been issued under the judgment of 22 June 2018, discontinued the proceedings on placement in institutional care and terminated the interim measure of the Regional Court of Brno of 28 May 2019 on placement of the children in the crisis centre. This judgment formally terminated the order for the children’s placement in the crisis centre, effective 11 January 2021.

4.8The State party maintains that, during their stay at the crisis centre, the authors were under the care of a psychologist and that P.J. also received psychiatric care. Their mental health stabilized and they achieved some positive changes. In the 2019/20 academic year, B.J. successfully completed year 7 of compulsory school attendance and established relationships with her peers; the following year, she duly attended school. B.J. continued to comply with her school obligations in the 2020/21 academic year. In the 2019/20 academic year, P.J. completed the first year of secondary school and started the second year. He became more self-reliant and responsible and built relationships with his peers. The parents also started communicating more often with the teaching staff. P.J. was demotivated by distance learning, and despite all the support available he decided not to take part in it. His school attendance ended on 31 March 2021.

Observations on the merits

4.9The State party notes that the authors claim a violation of numerous articles of the Convention, often without due justification, and considers that only articles 3, 9 and 12 of the Convention are of particular concern in this case.

4.10Regarding the placement of the authors in an institutional facility, the State party submits that under article 971 (1) of the Civil Code, institutional care is a measure of last resort; the court always considers whether it would be preferable to entrust the child to the care of a natural person. By placing the authors in an institutional facility, the domestic authorities followed the children’s best interests. The decision to place the children in an institutional facility was preceded by many less intrusive measures that, however, proved fruitless owing to the family’s lack of cooperation. It reiterates that the Šlapanice Municipal Office had worked intensively with the family since January 2018. The Office had established intensive contact with the parents and the children, organized several case conferences and cooperated with the schools. Individual child protection plans had been prepared and there had been repeated attempts to arrange for professional help (see para. 4.1). Despite all the efforts, the children’s situation was worsening: they continued to be absent from school and have mental problems and addictions (electronic devices).

4.11The State party submits that, when deciding on the children’s stay, the Šlapanice Municipal Office considered the options of temporary grandparents’ care or foster care. However, given the situation and the children’s strong attachment to their mother, placement in the crisis centre appeared to be the most appropriate solution, as the crisis centre could provide all the necessary services to the children. The Office’s aim in filing motions for the ordering of institutional care was to arrange health, educational and diagnostic care for the children during their placement outside the family and to secure their integration with their peers. Other objectives were to rehabilitate the family, encourage the mother to cooperate with professionals, support the relationships between the father and the children and arrange for regular supervised contact between the children and the parents. The ultimate intent was to successfully return the children to the family, in accordance with the children’s best interests. The State party notes that the Regional Court of Brno justified its decision of 28 May 2019 by referring to the need for the children’s physical and mental health to be duly and thoroughly evaluated by professionals.

4.12The State party maintains that less intrusive interventions in family life had been exhausted, such as outpatient care, diagnostic assessment of the children in school facilities and supervision ordered by the court. Even the Regional Court of Brno observed in its decision of 28 May 2019 that the previous motion, of 25 October 2018, for the delivery of an urgent interim measure for the authors’ placement in institutional care had been rejected, in particular on the ground that it followed shortly after the judgment of 22 June 2018, in which the District Court of Brno had ordered supervision of the children. Placement in the crisis centre was the next motion that the Regional Court granted, in its decision of 28 May 2019, and only after supervision had proved ineffective.

4.13The State party concludes that the authors’ placement in the crisis centre was lawful, pursued a legitimate aim, that is, the children’s best interests, and was proportionate to the aim pursued. It was necessary to protect their healthy development and, therefore, complied with article 9, read in conjunction with article 3 of the Convention. The State party concludes that the level of interference with the authors’ family life cannot be considered disproportionate.

4.14Regarding the authors’ claim that their placement in the crisis centre was unlawful, as it was done under the general provisions of the Civil Procedure Code (the State party refers to “regular interim measure”) and not following the Act on Special Judicial Proceedings (the State party refers to “urgent interim measure”) (see para. 3.10), the State party submits that even if in general it can be agreed that special provisions prevail over general provisions, in the present case the applicability of the Civil Procedure Code is not ruled out and the laws are complementary.

4.15The State party admits that, in practice, at the time of the events, no sufficient clear distinguishing criteria existed for applying “regular” or “urgent” interim measures. The State party notes, however, that the amendment to the Act on Special Judicial Proceedings No. 363/2021, effective from 1 January 2022, sets out clear distinguishing criteria between the two types of interim measures and limits their duration to one year. According to the amendment, a child may be placed outside the care of his or her parents only on the basis of an urgent interim measure under article 452 (1), and only on the motion of the Office for the Social and Legal Protection of Children of the Municipal Office.

4.16The State party acknowledges that it is unfortunate that the regular interim measure issued by the Regional Court of Brno on 28 May 2019 was not limited as to its duration and eventually led to the children’s long-term placement in the crisis centre without the possibility of regular review of the conditions for such an intervention. However, the State party considers that as a result of the long-term work of the professionals at the crisis centre, the children’s stay in the facility achieved its purpose (see para. 4.8). The State party therefore considers that the requirement of lawfulness of interference with the rights protected by the Convention has been satisfied, and the institutional care met its purpose.

4.17Regarding the authors’ claim that they were not heard during the court proceedings that led to their institutionalization, the State party states that the right of a child to be involved in matters affecting him or her is enshrined in article 867 of the Civil Code. The State party refers to the decision of 15 October 2019 of the Constitutional Court, whereby it held that, taking into account the time limits within which a decision must be delivered, when considering motions for interim measures courts cannot deal with all the factual claims of the parties to the same extent and as thoroughly as when they are deciding on the merits of the case. The court may decide without a hearing and without taking evidence, and it will therefore focus on whether all the prerequisites for an interim measure have been met and whether the situation requires an immediate preliminary solution rather than one taken on the merits of the case.

4.18The State party observes that the authors also alleged that the guardians ad litem acted without their consent and against their wishes when appealing the decision of the District Court of Brno of 12 April 2019 denying the motion for their placement in institutional care. The State party notes that the guardian ad litem is not a mere messenger who conveys the views of the child to the court without any added value. Rather, the role of the guardian ad litem is to find out the child’s view and to represent him or her in the proceedings, while protecting the child’s interests and independently assessing the relevance of the child’s opinion, taking into account his or her maturity. The State party considers that the role of the guardian ad litem is to provide the child with the necessary information about the court proceedings and the potential consequences if the child’s opinions are complied with, and advise him or her that the final decision will not necessarily fully correspond to his or her views. The State party asserts that the guardians ad litem fulfilled this role.

4.19The State party acknowledges that it is unfortunate that the authors were not directly heard by the courts in the proceedings on their placement. Although the law sets out a relatively short time frame (seven days) for issuing a decision on the motion seeking a regular interim measure, in the case at hand it was not impracticable to give the children an opportunity to express their views on the proposed decision, considering their age.

4.20Nevertheless, the State party concludes that, considering the role of the guardians ad litem and the children’s actual participation through the Municipal Office, the Convention has not been violated. The Municipal Office, which was in regular contact with the children, assured their right to be heard, conducting regular interviews with each author. Interviews with the children were also repeatedly conducted by the guardians ad litem who informed them, among other things, about the ongoing proceedings on the interim measure. The social worker assigned to them by the Municipal Office also informed the authors of the decision of the Regional Court of Brno of 28 May 2019 on the day of enforcement of the decision, that is, on 26 June 2019, and she then conducted an interview with them. The guardians ad litem were also present at the enforcement of the decision, and it is clear from the record of enforcement that the children were informed of the Regional Court’s decision. In addition, this requirement was met in the end, as the authors were directly heard by the District Court of Hodonín on 24 August 2020.

Authors’ comments on the State party’s observations on the merits

5.1In their comments dated 14 January 2022, the authors contend that the State party fails to address the central issue of the communication, namely, whether a person’s alleged “needs” can be secured in a way that will result primarily in coercion of the children.

5.2Regarding the State party’s statement that in the authors’ case only articles 3, 9 and 12 of the Convention are relevant, the authors consider that the State party denies the very principle of the interdependence, interrelatedness and indivisibility of human rights and insist that its approach corresponds to the welfare approach to children, where the rights perspective is not relevant. The authors stress the relevance of the rights to education and health in a situation in which a coercive intervention was justified by their alleged need for professional educational, health and diagnostic care. Furthermore, the State party ignores the further consequences of its action against them in relation to their autonomy and their personal liberty.

5.3The authors note that the State party, to support the argument that its action against the authors was legitimate, points out that the intervention fulfilled its objective and brought “positive” results for the authors. Nevertheless, the State party’s assessment seems to once again completely ignore the actual views of the authors as well as the rule that the process of realizing the rights of the child must be as important as the result. The State party fails to recognize that any act of coercion is a form of violence against the concerned person and that the experience of that violence may have repercussions for that person in the future. Only the authors know what the they had to go through and how they feel about the result of the actions to which they were subjected or how they will be able to deal with their lives in the future. The principle of the best interests of the child and the child’s evolving capacities may in certain cases require the adoption of coercive action, against the child’s will, in the name of his or her other rights. Such action should occur only in exceptional cases, especially when the child would face, without the coercive action taken in his or her interests, even greater violence. This was, however, not the case of the authors.

5.4The authors observe that the State party tries to mitigate the failure of the guardians ad litem by signalling many occasions where the authors were either present or directly heard by the court. However, the major failure of the guardians ad litem – appealing the decision of the District Court of Brno against the authors’ will – could not be remedied by the authors’ presence at any case conferences or court hearings, when the forced placement had already been ordered. The State party also argues that the guardians ad litem did not fail to inform the authors about the interim measure issued by the Regional Court of Brno, since the guardians ad litem were present at the enforcement of the decision, which took place nearly a month after it was ordered. This argument shows again the State party’s lack of understanding of the authors’ right to access to justice. At the moment when the decision was being enforced, what they needed in particular was the information about available remedies and not merely the information that the decision had been adopted.

State party’s additional information

6.On 2 February 2023, the State party submitted the judgment of the European Court of Human Rights in the case of Hýbkovi v. Czech Republic (Application No. 30879/17, judgment of 13 October 2022), in which the Court held that article 8 (right to privacy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) had not been violated.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of the rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol.

7.2The Committee takes note of the authors’ claim that they have exhausted all available domestic remedies by filing a complaint before the Constitutional Court. Since the State party has not raised any objections in that regard, the Committee concludes that article 7 (e) of the Optional Protocol does not constitute an obstacle to the admissibility of the communication.

7.3The Committee considers that the authors have failed to sufficiently substantiate their claims under articles 3 (2), 16, 18 (1), 20 (1), 24 (1), 28 (1), 29 (1), 37 (d) and 39 of the Convention and declares them inadmissible under article 7 (f) of the Optional Protocol.

7.4However, the Committee is of the opinion that, for the purposes of admissibility, the authors have sufficiently substantiated their claims under articles 3 (1), 9 (1-3), 12 and 37 (b) of the Convention, in that the decision of the Regional Court of Brno of 28 May 2019, by granting an interim measure motion which ordered their forced removal from their home and their placement in institutional care, violated their rights under the Convention. The Committee therefore declares those claims admissible and proceeds with their consideration of the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

8.2The main issue before the Committee is whether, in the circumstances of the present case, the forced removal of the authors from their home and their placement in institutional care to ensure their psychological and psychiatric care and their school attendance resulted in a violation of their rights under articles 3 (1), 9 (1-3), 12 and 37 (b) of the Convention.

8.3The Committee recalls that under article 9 (1) of the Convention, States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The Committee also recalls its general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, in which it states that, given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child. Before resorting to separation, the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family’s capacity to take care of the child, unless separation is necessary to protect the child (para. 61). The Committee also notes that, according to the Guidelines for the Alternative Care of Children, removal of a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest possible duration. Removal decisions should be regularly reviewed and the child’s return to parental care, once the original causes of removal have been resolved or have disappeared, should be in the best interests of the child.

8.4With regard to the European Court of Human Rights jurisprudence submitted by the State party, the Committee notes that the Court, in its Grand Chamber decision in the case of Strand Lobben et. al. v. Norway found that the refusal to discontinue the public care of the child, X, and the deprivation of X’s mother’s parental responsibilities, as well as the authorization granted to X’s foster parents to adopt X, had violated X’s right to respect for family life under article 8 of the European Convention on Human Rights. While the criteria for violation of that provision are different from those of article 9 (3) of the Convention on the Rights of the Child, the Court reiterated that, insofar as the family life of a child is concerned, there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance.

8.5In respect of adolescents in alternative care, the Committee recalls that there is significant evidence of poor outcomes for adolescents in large long-term institutions, as well as in other forms of alternative care, such as fostering and small group care, albeit to a much lesser degree. States are urged to ensure that institutionalization is used only as a measure of last resort. It also recalls that, with regard to the mental health and psychosocial problems of adolescents, States should adopt an approach based on public health and psychosocial support rather than overmedicalization and institutionalization.

8.6The Committee considers that decisions ordering the removal of a child from his or her family are extreme measures that should be taken only after having assessed the social support measures previously adopted by the domestic authorities and any viable alternative measure that could still be taken to avoid the child’s placement. The best interests of the child should be a primary consideration in such decisions, which have a particularly significant impact on children’s lives and development. The Committee also considers that removal orders should be issued for the shortest duration, be subject to regular review and appeal and be discontinued as soon as possible. The continued contact of a child with the parents should be ensured during the placement period, unless it is considered against the child’s best interests in accordance with article 9 (3) of the Convention. States parties should take measures to support families, with a view to their reunification with the child as soon as it is deemed in their best interests.

8.7In the present case, the Committee takes note of the authors’ claims that, by placing them in institutional care, the domestic authorities relied on a welfare approach, in breach of the authors’ right to have their best interests taken as a primary consideration; that the authorities disregarded the fact that the authors were already adolescents at the time of the decision (B.J. was nearly 13 years old and P.J. was 15 years old); that the authorities should not have resorted to coercion as a means of their protection, forcing them to live in an institution to ensure their right to education and health; and that during the first weeks of their placement they were subjected to restrictions on contact with their parents.

8.8The Committee also takes note of the State party’s argument that the removal of the authors from their parent’s care was lawful, pursued a legitimate aim (their placement in the crisis centre was necessary for protecting their healthy development); was proportionate to the aim pursued; and was decided taking into consideration the children’s best interests. In addition, it takes note of the State party’s argument that the removal decision was ordered only on 28 May 2019, after the domestic authorities had attempted less intrusive measures over a prolonged period of time. In that regard, the Committee particularly notes the State party’s contention that, from January 2018, the Office for the Social and Legal Protection of Children of the Šlapanice Municipal Office had been working intensively with the family, cooperating with schools, attempting to arrange for professional help and developing child protection plans; despite all those measures, however, cooperation with the family remained complicated and the situation of the children worsened as their failure to attend school and serious mental health problems continued. In that regard, the Committee notes the authors’ argument that the decision on their placement should not have been adopted, even if less invasive solutions had failed, as the need for education and provision of psychological or psychiatric care to an adolescent does not constitute a sufficient ground for taking such a coercive measure, which should only be taken in exceptional cases, such as when the child would face severe violence, which was not their case. The Committee also notes the State party’s argument that, as a result of their stay at the crisis centre, the authors’ mental health had stabilized and they had achieved some positive changes. However, the Committee further notes the authors’ claim that alternative care did not provide them with any support, resulting instead in very intensive restriction of their autonomy and freedoms, including their personal liberty and their right to family life, and that any act of coercion is a form of violence that can also have repercussions in their future lives. In that regard, the Committee notes that, according to the Ministry of Labour and Social Affairs, removal of a child from his or her family to ensure the child’s school attendance or to correct the child’s behaviour was “unacceptable”, as such measures could never result in deprivation of the child’s liberty (para. 2.10).

8.9The Committee takes note of the State party’s efforts to ensure the realization of the authors’ rights to education and health. It recalls that, under article 4 of the Convention, States parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention. The Committee also recalls the interdependent nature of the rights recognized in the Convention and the holistic concept that must guide its implementation, in compliance with the general principles. The Committee considers that decisions aimed at ensuring that children receive treatment and education need to consider carefully the potential infringement on other Convention rights, in particular when it comes to determining measures that have such a profound impact in children’s lives as are placement measures.

8.10.In the present case, the Committee observes that, according to the information available, the Regional Court of Brno noted that the parents were failing in their upbringing role, in particular by failing to ensure access to psychological and psychiatric care for both authors, and acknowledged that the separation from their mother would be detrimental to the authors. The Committee also observes, however, that the Court failed to assess the consequences of that separation for the authors, in the short and long term, particularly considering their mental health situation. The Committee notes that the Regional Court did not assess the previous measures taken by the authorities to support the authors, in particular, whether those measures were child-friendly, whether they were adopted and implemented taking the authors’ 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 to that date. The Committee further observes that the Regional Court, when reaching a decision on the authors’ placement, does not seem to have carefully considered any alternative options or any other family-based or community-based type of care that might have been more favourable to the children before resorting to institutionalization. The Committee hence concludes that the Regional Court failed to take the authors’ best interests as a primary consideration when reaching its decision.

8.11The Committee notes the authors’ argument that the order for interim measures for their placement was issued under the general rules of Act No. 99/1963, the Civil Procedure Code, and not under Act No. 292/2013 on Special Judicial Proceedings, and that they therefore could not benefit from important legal safeguards, such as the limitation of the duration of the interim measure and its regular review by the court. The Committee also notes that, while affirming that the applicability of the regular interim measure under the Civil Procedure Code in the authors’ case was lawful, the State party acknowledged that it was unfortunate that the measure was not limited as to its duration and eventually led to the children’s long-term stay in the crisis centre without the possibility of regular review by the court of the conditions for such an intervention. In that regard, the Committee observes that the interim measure decision, by not establishing a fixed duration for the authors’ placement or a regular review by the court, resulted in their placement in the crisis centre for an unjustifiably prolonged period, from 26 June 2019 to 29 June 2020.

8.12In the light of the foregoing, the Committee notes that the State party has not provided substantial explanations of the criteria used to assess the best interests of the child nor any information on the systematic monitoring of their best interests during the removal and placement procedures. The Committee is not satisfied that the decision of the Regional Court of Brno of 28 May 2019, ordering the placement of the authors in institutional care, separating the authors from their parents and limiting contact with their parents to one hour a week, was accompanied by the safeguards required to protect their rights under the Convention, nor that it was commensurate with the gravity of the consequences of their separation from their parents. In the circumstances of the present case, in particular the lack of an adequate assessment of alternatives to separation from the parents; the lack of an adequate assessment of the children’s best interests; and the fact that the court’s decision did not contain such important safeguards as the limitation of the duration of the interim measure and its regular review by the court, which resulted in the children’s placement in the crisis centre for more than a year, the Committee concludes that the authors’ separation from their parents and limitation of contact with their parents resulted in a violation of their rights under articles 3 (1) and 9 (1-3) of the Convention.

8.13The Committee takes note of the authors’ allegations that they were never heard in the judicial proceedings leading to their placement in institutional care and that their guardians ad litem had not respected their views, since he found them not to be in their best interests, and had appealed the decision of the District Court of Brno against their will. The Committee recalls that the child has the right to be heard in civil judicial proceedings, such as in those proceedings relating to placement in alternative care. The Committee also recalls that the assessment of a child’s best interests must include respect for the child’s right to express his or her views freely and due weight given to said views in all matters affecting the child and that the evolving capacities of the child (art. 5) must be taken into consideration when the child’s best interests and right to be heard are at stake.

8.14The Committee also takes note of the State party’s argument that the guardians ad litem had fulfilled their role, which was to provide the authors with the necessary information about the courts’ proceedings and represent them in the proceedings, and that the authors’ right to be heard was also ensured by the Municipal Office and by the fact that the children were finally heard in the proceedings on the merits of the case on 24 August 2020. However, the Committee notes that the authors consider that the guardians ad litem, who appealed the decision of the District Court of Brno against their will, failed to ensure their right to be heard, and that this failure could not be remedied by the role of the Municipal Office nor by the court hearing on the merits. The Committee recalls that where the child wishes to express his or her views and where this right is fulfilled through a representative, the latter’s obligation is to communicate accurately the views of the child. In situations where the child’s views are in conflict with those of his or her representative, a procedure should be established to allow the child to approach an authority to establish separate representation for the child (for example, a guardian ad litem), if necessary. Taking into account that the views of the guardians ad litem appear to have been in conflict with the authors’ views, the Committee considers that the domestic authorities failed to appoint separate representation for the children to ensure that their views were adequately expressed during the judicial proceedings. The Committee also considers that, in view of the ages of the children, they should have been given the opportunity to be directly heard by the court and that their views should have been given due weight. Failure to have heard the children during the domestic proceedings leading to their placement in institutional care amounts to a violation of article 12 of the Convention.

8.15The Committee takes note of the authors’ claims that during the first weeks of their placement in the crisis centre they were not allowed to leave the institution without being accompanied by a staff member, in violation of article 37 (b) of the Convention. The Committee notes the State party’s submission that, after an adaptation phase, the children could go out on their own outside the premises of the crisis centre every day and that, after the supervised contacts with their parents were terminated, the children regularly spent time outside the institution, staying with them. However, the Committee also notes that the State party has not provided detailed information to rebut the authors’ affirmation that during their stay in the crisis centre they had been deprived of their liberty, particularly at the beginning of their stay. The Committee notes that, considering the way in which care institutions operate, children in institutional care may be deprived of their liberty. Having concluded that the decision to place the authors in institutional care violated their rights under the Convention, the Committee considers that such placement was an unlawful or arbitrary deprivation of their liberty, in violation of article 37 (b) of the Convention.

8.16The Committee, acting under article 10 (5) of the Optional Protocol on a communications procedure, finds that the facts before it disclose a violation of articles 3 (1), 9 (1-3), 12 and 37 (b) of the Convention.

9.The State party is therefore obliged to provide the authors with effective reparation for the violations suffered. The State party is also under an obligation to prevent similar violations in the future. In that regard, the Committee requests the State party to:

(a)Ensure that all proceedings aiming at removing children from their parents, including decisions on interim measures, are in conformity with the Convention and the findings contained in the present Views and, in particular: (i) that a best-interests assessment is conducted; (ii) that the children’s views are considered and given due weight, including in relation to the type of placement under consideration, to the medical treatments and access to education to be provided, and to contact with their parents during their placement; and (iii) that procedural safeguards are established to ensure the protection of the rights of children under the Convention;

(b)Ensure that removal orders are a measure of last resort after having tried other child-friendly, less invasive measures, in consultation with the children and their parents, on the advice of a multidisciplinary team of professionals. They should be issued for the shortest period of time, should be subject to regular review and appeal and should be discontinued as soon as possible. Regular contact between the children and their parents during the placement should be ensured. The State party should take measures to ensure the reunification of the child with his or her family as soon as it is deemed in their best interests;

(c)Ensure that the child always has appropriate legal representation during the proceedings. The child should be provided with a legal representative, in addition to a guardian or representative of his or her views, when there is a potential conflict between the parties in the decision;

(d)Provide training to staff of social service entities, members of the public prosecution service, judges and other relevant professionals on the rights of the children subjected to a removal order from their parents, including on the grounds of access to health services and, in particular, on the Committee’s general comments No. 12 (2009), No. 14 (2013), No. 15 (2013) and No. 20 (2016).

10.In accordance with article 11 of the Optional Protocol, the Committee wishes to receive from the State party, as soon as possible and within 180 days, information about the measures it has taken to give effect to the present Views. The State party is requested to include information about any such measures in its reports to the Committee under article 44 of the Convention. The State party is also requested to publish the present Views and to disseminate them widely.