Introduction

Child protection systems across the globe are daily handling complex cases involving families and children in difficult and dire life circumstances.¹CRC Article 19 obliges States to protect children against abuse and maltreatment without treading on or violating children’s and parents’ right to family life. This is the context in which two Czech nationals submitted their case under the Optional Protocol to the Convention on the Rights of the Child on a Communication Procedure, on 27 October 2020.

The complainants, siblings, were B.J. (a girl) and P.J. (a boy), who at the time of their complaint were 13 and 15 years respectively. Their complaint took issue with a care order by which they were moved from their home to a residential unit for treatment of their psychological and psychiatric needs and to ensure school attendance. The CRC Committee gave their views on the merits 15 May 2023 and concluded that Czech authorities had violated Article 3 § 1 (the principle of the best interests of the child), Article 9 §§ 1, 2 and 3 (non-separation of children and parents), Article 12 (the right to be heard) and Article 37 (b) (prohibition of deprivation of liberty). The Committee urged the Czech Republic to provide the complainants with effective reparation and to adopt measures to secure a child-sensitive practice in removal cases.

Summary of the facts

The parents of B.J. and P.J. divorced in 2018, and the children stayed with their mother. In February 2019 the local child welfare authority sought to place them temporarily in the care of a crisis centre for children and adolescents. P.J. did not attend school and did not register as a job seeker, which by law led to the accumulation of debt on his health insurance. B.J. failed in compulsory school attendance and exams. Authorities thought that the siblings were on the verge of social phobia or childhood depression and recommended immediate psychiatric care (para. 2.2-2.4).

The first instance court 12 April 2019 rejected the motion. The children’s court-appointed guardians appealed to the appeals court, which ordered B.J. and P.J.s removal. The appeals court found it appropriate to place the children in institutional care for expert examination of their physical and mental health. Each parent was initially granted contact for a maximum of one hour per week. While the court agreed that the children’s separation from their mother would be hard for them, this must be weighed against the need to secure the children’s well-being and development in the face of both parents’ inability to undertake their responsibilities (paras. 2.5-2.9).

B.J. and P.J. moved to the centre on 26 June 2019. After an initial adaption phase of some weeks, the children were able to spend time outside the institution, including staying with their parents, on weekends and during school holidays. During the Covid-19 pandemic lockdown measures, when distance learning was implemented, they were on a long-term leave with their mother until 3 May 2020. Their stay at the centre was discontinued as at 29 June 2020 (para. 4.5).

Their mother on 22 August 2019 unsuccessfully appealed to the Constitutional Court, which on 15 October 2019 found that the appeals court had acted in line with CRC Article 3 § 1 and Czech law.

Findings

The Committee considered Articles 3 and 9 jointly. It referred to para. 61 of General Comment No. 14 (2013), which cautions against the practice of removal of children from their parents save from that being the last resort and necessary for the protection of the child. It also relied on UN General Assembly resolution 64/142, annex on Guidelines for the Alternative Care of Children, para. 14, which stresses the need for such measures to be temporary and regularly reviewed (para. 8.3). The Committee further referred to the European Court of Human Rights’ (ECtHR’s) Grand Chamber ruling in Strand Lobben and Others v. Norway (2019) that there is broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (para. 8.4). Noting its General Comment No. 20 (2016) paras. 52, 53 and 58, that since there is “significant evidence of poor outcomes for adolescents in large long-term institutions, as well as in other forms of alternative care”, institutionalization should be used only as a measure of last resort, and that mental health problems of adolescents should be based on “public health and psychosocial support rather than overmedicalization and institutionalization” (para. 8.5). In para. 8.6. the Committee emphasised the need to look for alternative measures, that the best interests of the child should be a primary consideration, that removal from the home should be for the shortest duration and with reunification in mind, and that measures should be regularly reviewed.

The Committee observed that the realization of children’s right to education and health, in line with the general obligation to implement CRC rights in Article 4, must be weighed against other obligations, so 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” (para. 8.9).

The Committee found that Czech authorities had not sufficiently explained the criteria used to assess the best interests of the children. It was also “not satisfied” that the appeals court decision “was accompanied by the safeguards required” and noted 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 safeguards as the limitation of the duration of the interim measure and its regular review by the court,” which in this case entailed a placement at the crisis centre for more than a year (para. 8.12).

Regarding the right to be heard (Article 12), the Committee noted (para. 8.13.) that B.J. and P.J. were never heard in the judicial proceedings and that their guardians ad litem appealed to the appeals court against their wishes. It recalled that children have “the right to be heard in civil judicial proceedings”, as stated in General Comment No. 12 (2009) paras. 53 and 54, and that an assessment of the child’s best interests must include the child’s right to express their views freely with due weight being given to those views (General Comment No. 14 (2013) para. 43). It also stated that “the evolving capacities of the child – recognized in Article 5 of the Convention – must be taken into consideration when the right to be heard is at stake” (relying on General Comment No. 14 (2013) para. 90).

The Committee observed that no public authority sufficiently had ensured the children’s right to be heard in the proceedings, having regard to the fact that they disagreed with the decision to appeal the first court instance decision. Domestic authorities failed to appoint separate representation for the children to ensure that their views were adequately expressed in the proceedings. Also having regard to the children’s age, they should have been given the opportunity to be heard directly by the court and their views should have been given due weight. The Committee concluded that Article 12 was violated on account of “the failure to have heard the children during the domestic proceedings leading to their placement in institutional care” (para. 8.14.).

As to Article 37 (b), the Committee held that Czech authorities had not provided “detailed information to rebut the authors’ affirmation that during their stay at the crisis centre they had been deprived of their liberty, particularly at the beginning of their stay”. Relying on the Human Rights Committee’s General Comment no. 35 (2014) on liberty and security of the person paras. 5 and 62, the CRC Committee stated that “considering the way in which care institutions operate, children in institutional care may be deprived of their liberty”. It acknowledged that, “after an adaption phase, the children could go out on their own outside the premises of the crisis centre every day” and that eventually they “regularly spent time outside the institution, staying with [their parents]”. The Committee nonetheless found that Article 37 (b) was violated on grounds of it “having concluded that the decision to place the authors in institutional care violated their rights under the Convention” (para. 8.15).

Commentary

Child protection is an important, but also often a controversial part of the welfare state. It has an inherent potential for conflicting rights and interests between the family members, and the state authority can restrict freedoms of both parents and child, against their will. B.J. and P.J. v. Czech Republic is the first individual case where the Committee addresses the balancing of children’s family ties and the protection of their development and well-being. It is a welcoming addition to the Committee’s practice, and it provides some insight as to how essential dilemmas may be viewed from the perspective of the CRC. There are, however, shortcomings that deserve scrutiny, and we have five main points of observation.

Firstly, the Committee’s consideration of Articles 3 and 9 obviously underscores the need to assess measures against what is the best interests of the child. It is not clear why the Committee independently finds that the principle set out in Article 3 § 1 can be violated, as this appears superfluous in the light of the conclusion that the measures also violated an acknowledged set of rights proper in Article 9. It is not common to make principles the basis for a conclusion that a treaty has been breached. In considering whether the removal of B.J. and P.J. violated Article 9 §§ 1, 2 and 3, the Committee further cited the Strand Lobben and Others v. Norway judgement. The European Court of Human Rights (ECtHR) is well versed with removal of children from parental care from the standpoint of the right to family life in Article 8 of the European Convention on Human Rights (ECHR). The ECtHR’s case-law, stressing the centrality of procedural obligations, could have served as inspiration for the Committee. Surprisingly, the Committee refers to Strand Lobben only insofar as it states that “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” (para. 8.4). This makes sense for ECHR purposes, since it has no special regulation of children’s rights. But the point is moot in the CRC, where the best interests of the child is not only an “idea”, but positive law, as Article 9 (and most CRC provisions) testifies. The Committee also does not connect the ECtHR’s procedural approach and its own rudimentary statements on procedural obligations (para. 8.12). It is a curious omission, also in the light of the Czech Republic’s submission that the Committee should have regard to the ECtHR’s 2022 judgment in Hýbkovi v. Czech Republic, which has many similarities with B.J. and P.J.’s case.

Secondly, the Committee concludes that the right to be heard was violated. Just the mere fact that the children were 13 and 15 years old makes it obvious that their views should be heard and seriously considered. The Committee states that the children should have been directly heard by the court, although it is not clear from the facts provided that Czech law provides for this. In other jurisdictions, for example in England and Norway, it is within judge’s discretion to allow for direct hearing of children. Studies show that judges’ practices vary, however. ²

While the Committee´s conclusion regarding Article 12 seems foregone, it is not clear what it expects from guardians ad litem. It is commendable that the Czech Republic, unlike many other countries, has established a guardian arrangement in child protection cases. The Committee appears to criticise the guardians for voicing an opinion about the children´s best interests, but in many countries this is a mandatory task for guardians, and as we are informed this is the requirement in the Czech Republic. The Committee could have taken this into account, and it could also have explained why, specifically, legal guardians should serve as legitimate representatives for children under Article 12. Instead, the Committee rather inflexibly requests the following from Czech authorities: “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.” (para. 9(c)).

Legal representatives may well be a good solution as they have in-depth expertise on the law and the legal system. However, the competency to gain trust and to tease out a child´s view may be better done by professionals having training and skills in communicating with children as well as understanding how they develop and handle adversaries. From research on guardians, there is ample evidence that lawyers are not regarded the best suited to represent children. ³ As for the conflicting interests, there clearly are different models to how this can be solved, and a simple solution would be to mandate the guardian to present the child´s views on the matter and distinguish it from their best interest considerations. In our view an advice to practice would be to require an explicit justification on how their best interests consideration has accounted for the child´s view in their assessment and conclusion. Stating, as the Committee does, that a lawyer always should be available together with the guardian is the same as the English tandem model for representing children. Here a guardian has the responsibility and is working together with a lawyer when needed. The English tandem model is good for children and it would be great if implemented across the world, but it is ill-advised if the message from the Committee is that its only lawyers that can represent a child´s opinion and handle conflicting interests. There are ongoing debates on how to best protect and respect Article 12, as discussed in the recent official report on due process and rule of law in Norwegian child protection. ⁴

Thirdly, this is the first case where the Committee has considered the merits of an Article 37 (b) complaint. ⁵The reasoning for concluding that B.J. and P.J. were deprived of their liberty is obscure; it does not guide future practice and lacks factual clarity. The children submitted that they were deprived of their liberty “in the first weeks of their placement” (para. 3.5). The Czech government acknowledged that following their placement, B.J. and P.J. were for some weeks confined to the premises (para. 4.5). But the Committee does not clarify the duration of that initial, and possibly crucial, phase. This is unfortunate, as the duration of strict physical confinement would generally be a significant factor in determining whether deprivation of liberty has occurred. The Committee in any event appears not to have confined its conclusion to those first weeks. Rather, it says that the respondent state did not provide “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” (para. 8.15, emphases added), thus appearing to embrace a notion that while the initial phase clearly breached Article 37 (b), the remainder of their stay also amounted to a deprivation of liberty (but less emphatically so). B.J. and P.J. quite early on enjoyed liberty to go as they pleased and – for a lengthy part of their overall stay – appear to have been only nominally attached to the institution. Is it prudent to conclude that the whole stay amounted to a deprivation of liberty? The international law basis for this is dubious. The Committee adds a rather curious argument to support its conclusion: a breach of Article 37 (b) was found due to the Committee “having concluded that the decision to place the authors in institutional care violated their rights under the Convention” (para. 8.15, emphases added). In other words, the Committee’s conclusions regarding other provisions entailed, automatically, that Article 37 (b) was breached. Seemingly emptying the prohibition of deprivation of liberty of independence does not resonate with the practice of other international human rights bodies. The Committee is in B.J. and P.J., however, in their obvious unfamiliarity with basic principles of treaty interpretation, fully in line with its own practice. ⁶

Fourth, the Committee appears to avoid the inherent dilemma of determining the best interests of B.J. and P.J., and the weighing of conflicting rights and considerations by stating in para. 8.8 that: “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.” This makes a narrow case for best interest considerations for children that are not attending school and are having mental health illness; not handling such problems may have severe consequences for the children. It would be worth discussing how authorities should proceed in a situation when in-home services do not work – when child protection authorities have difficulties coming into position to help and work with a family, and parents decline involvement. It is a well-known challenge for social workers across jurisdictions to continue being involved when parents do not realise that their children’s interests must come first.

The Committee also chooses to mention (in para. 8.8) “severe violence” as the only articulated exceptional case that may legitimately permit coercive measures, an approach also familiar from the ECtHR, ⁷and this is arguably a narrow platform for protecting children from abuse and neglect. Clearly, there are other reasons for restricting rights and individuals’ freedom in child protection situations as is evident in a range of child protection systems across the world. ⁸

An advice to the Czech government on how to improve child´s best interest considerations would be to suggest a list of best interest elements (as is done in General Comment 14 (2013)), that must be considered in cases of children removed from their home. A study examining child protection legislation in all OECD countries shows that a majority operated with a list of four or more elements that should be considered for child´s best interest decisions, and almost all had the opinion of the child as an element for consideration. ⁹The Czech law only operates with three elements to consider, and the child´s opinion is not one of them. ¹⁰

Fifth, the Committee expresses dissatisfaction with the children´s placement in a residential unit, referencing para. 8.5 of General Comment No. 20 (2016): “(T)here is significant evidence of poor outcomes for adolescents in large long-term institutions, as well as in other former of alternative care”, institutionalization should be used only as a measure of last resort, and that mental health problems of adolescents should be based on “public health and psychosocial support rather than overmedicalization and institutionalization” (para. 8.5.).” Committing governments to secure family and community-based alternative care for children is in accordance with the UN General Assembly´s unanimous resolution on the Rights of the child from 2019. Emboldening the importance of creating a family environment for children in public care is necessary and praiseworthy, as the reality is that many societies traditionally use residential units as the main option for children. However, the fact is that this tradition persists, sometimes out of necessity but also because children may prefer it, and /or it is medically recommended. The Committee’s critique of institutionalisation – from the vantage point of supporting the family environment – may be questioned. In Residential Care of Children: Comparative perspectives from 2009. ¹¹ the authors discuss the trends in out-of-home care and how wealthier countries increase the use of foster homes to care for children that are in public care. However, they also show that there is a myriad of reasons related to traditions, political ideologies, religion, and education, to use residential units – and countries like Brazil, South Korea and Israel continues to primarily use residential units. Thus, the Committee’s rather uncompromising stance on residential units does not comport with empirical realities of welfare states, and in particular with regard to the Czech Republic: after the fall of Communism in 1989 the political goal was to change the use of residential units for children in public care. ¹² Transformation was slow, however, and a sizeable portion of children still have residential units as their only option. Also, considering the age and described needs of B.J. and P.J., it is not unlikely that placement in a residential unit would be the preferred option in other countries as well.