Communicated on 19 March 2019
FOURTH SECTION
Application no. 4581/16
B.T. and B.K.Cs.
against Hungary
lodged on 21 December 2015
STATEMENT OF FACTS
The applicants are Hungarian nationals. The first applicant, B.T. was born in 1976. The second applicant, her son, B.K.Cs. was born in 2014. They live in Kesznyéten. They are represented before the Court by Mr A. Ujlaky, a lawyer practising in Budapest.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is of Roma origin and the second applicant is considered by his parents to be Roma.
On 13 December 2013, when the first applicant was four months’ pregnant with the third applicant, the local health visitor (védőnő) drafted a report on the applicant to the Kesznyéten Child Welfare Service (gyermekjóléti szolgálat) explaining that the applicant had an “unplanned” pregnancy with her sixth child. Moreover, the report mentioned, in the applicants’ view in an unfavourable tone, that the applicant was living alone, received social benefits and were participating in the public work programme since it was obligatory, she had been “hysterical” about raising her children at home, and endangered the unborn baby by smoking. The report recommended that the baby should not be allowed to be taken home from hospital after delivery by the first applicant.
The applicants maintain that they were not informed about this letter.
On 11 February 2014, during the six month of the first applicant’s pregnancy, the local health visitor sent a note to the Borsod-Abaúj-Zemplén County Hospital recommending that the baby was not to be taken home by his mother following delivery. The reason for this recommendation was that, to the health visitor’s knowledge, all of the first applicant’s children were placed in child care. The parents were allegedly not informed of this note.
On 3 May 2014 the first applicant gave birth. She was discharged from hospital on 6 May 2014, but she was not allowed to take the third applicant with her. In the first applicant’s submission she was not informed of the reasons for this measure and was never shown any decision allowing her child to be taken away from her.
On 6 May the Child Welfare Service sent a note to the Borsod-Abaúj-Zemplén County Government Office reiterating that, on the basis of the heath visitor’s assessment, the child should not be sent home to a mother in “crisis”, due to this latter’s irresponsible behaviour.
On 7 May 2014 the Tiszaújváros District Guardianship Authority decided to suspend the parental rights of both the first applicant and the child’s father, M. Cs. and placed the child in the temporary care of a foster mother, B.H (ideiglenes hatályú elhelyezés). The decision stated that the first applicant had an irresponsible life-style and because of her living conditions three of her children had been placed in child care. Furthermore, the child’ physical, mental and emotional development would be seriously endangered in his family environment.
The first applicant, having received the decision on 12 May 2014, appealed. She maintains that during this period, she was not aware of her child’s whereabouts.
On 24 June 2014 the Borsod-Abaúj-Zemplén County Guardianship Authority, acting as a second-instance authority, upheld the first-instance decision. It emphasised that the mother had not given up smoking during pregnancy and had not attended the medical checks suggested by the health visitor. It also noted that the parents had not ensured that their other children attend school and kindergarten regularly or receive the adequate medical care. Furthermore, the first applicant had also been negligent concerning the educational development of the children. They had been unprepared for school and often had worn dirty cloth. They developed pulmonary diseases due to the mother’s smoking, and were wandering around unattended in the neighbourhood. Since the counselling of the child protection authorities was unsuccessful, the children were first placed under child protection than into child care. The authority dismissed the argument that the child’s father had a high and regular income, stating that he did not live in the same household as the first applicant. Neither did the authority find it relevant that the first applicant participated in the public work programme, since this was a precondition to qualify for social benefits.
On 5 August 2014 the first applicant requested the judicial review of this decision before the Miskolc Administrative and Labour Court arguing that the administrative decisions infringed her and the child’s right to private and family life. On 9 September 2014 the first applicant also requested the court to suspend the enforcement of the decision placing her child in temporary care.
On 9 October 2014 the Administrative and Labour Court dismissed the first applicant’s claim. Relying on the previous reports on the first applicant’s attitude towards her other children, on her living conditions, and on the fact that the second applicant had his regular workplace in Budapest and therefore seemingly did not participate in the upbringing of the children the court found that B.K.Cs. could not be taken home and his placement in temporary care was justified.
The first applicant lodged a petition for review with the Kúria. In a judgment of 13 May 2015 the Kúria dismissed the first applicant’s petition and confirmed the lower court’s judgment. It held that there were positive developments in the first applicant’s situation, amongst others, her living conditions ameliorated and she had regular contact with her other children, however these developments had taken place after the first-instance administrative decision and therefore could not be taken into account when assessing the lawfulness of that decision. Moreover, according to the Kúria, these circumstances had been taken into account in the administrative decision and were not sufficient to exclude the necessity of the child’s placement in temporary care. The judgment was served on the first applicant on 22 June 2015.
The first applicant lodged a constitutional complaint against the Kúria’s judgment requesting the Constitutional Court to review the lawfulness of the judgment. The complaint was dismissed on 26 January 2016 on the merits. The Constitutional Court found that the restriction of the first applicant’s parental rights were necessary and proportionate and in the best interest of the baby.
On 7 July 2015 the Tiszaújváros District Guardianship Authority reviewed B.K.Cs.’s placement in temporary care and decided to place him in foster care (nevelésbe vétel). According to the assessment of the Guardianship Authority it could not be deducted from the positive developments in the first applicant’s circumstances that her attitude would also change concerning the upbringing of her children, and until the parents could not provide evidence in this respect, the children could not be taken home.
This decision was upheld on appeal on 7 September 2015 by the Borsod-Abaúj-Zemplén County Guardianship Authority, finding that the positive developments in the parents’ living conditions and their regular contacts with their children did not constitute sufficient basis on the merits to conclude that the children’s care by the parents would be adequate.
In August 2015 B.K.Cs. was allowed to spend two weeks with his parents and with his siblings.
On 25 March 2016 the Tiszaújváros District Guardianship Authority decided to return the child to his parents.
COMPLAINTS
The applicants complain that the refusal to allow the first applicant to leave the hospital following delivery together with the second applicant and the child’s placement into care constituted inhuman and degrading treatment and an interference with their right to family life. They contend that these measures were taken as a result of a distinction based on their Roma ethnicity. They rely on Articles 3 and 8 read in conjunction with Article 14 of the Convention.
The applicants further submit that the second applicant was taken away from his mother on 6 May 2014 without a formal decision, which made it impossible to challenge the measure. They allege in this respect a violation of Article 13 read in conjunction with Article 14 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the Hungarian authorities’ decisions removing the second applicant from the care of the first applicant amount to an inhuman and degrading treatment in breach of Article 3 or a violation of the applicants’ right to family life under Article 8, both taken in conjunction with Article 14 of the Convention?
2. Did the applicants have effective domestic remedies at their disposal for their complaints under Articles 3 or 8 of the Convention as required by Article 13 of the Convention?
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