Court/Judicial body::Supreme Court of Hungary
Date:October 15, 2008
Instrument(s) cited:Act XXXI of 1997 on the Protection Of the Child (Section 83: Periodic review of placement; Section 105: Supervision of the completion of the guardian’s tasks); Government Decree 149/1997. (IX. 10.) on guardians and proceedings concerning child protection (Section 105/A: Alteration of placement).
The director of an orphanage removed a child from the custody of foster parents because of allegations that they had sexually abused another child previously in their care. The foster parents filed a suit to regain custody of the child, citing the lack of proof against them. The Court found that removing the child from the foster parents’ care was necessary to protect the physical and mental health of the child. Although the allegations of sexual abuse had not been clearly proved, the court found it was better to remove the child from the custody of the foster parents than to risk the child suffering emotional hardship. Excerpts: as translated by CRIN:”Although it was not proved in the procedure that the previously fostered child was endangered, it is better to change the custody of the child than to risk that he or she suffers irreparable emotional distress. Therefore, change in the custody of the child and the appointment of another guardian is favourable. (The fact that the formerly nursed child had access to pornographic videos in itself amounts to the risk of suffering emotional and moral distress with respect to the second child.)…Under Section 83 (3)(a)-(b) and Section 105(1) of Act XXXI of 1997 on the Protection Of the Child, the child cannot stay with the foster parents because that would be contrary to his or her interest. Furthermore, under Section 15(8), the foster parent cannot continue to act as a foster parent since a criminal procedure has been initiated against him.” “The court stresses that the judge’s reference to Section 83(3) of Act XXXI of 1997 on the Protection Of the Child was correct. Under this section, the custody of the child can be altered if the circumstances on which the decision was based have materially changed. The ruling issued by the judge did not clearly state that the [foster parents’] custody was against the child’s best interests. On the contrary, it found that there were no justifiable concerns regarding the guardian’s actions. It follows that the reference to Section 83(3)(b) of Act XXXI of 1997 on the Protection Of the Child, which enables the alteration of the child’s custody if it is against his or her best interests, is not founded, and that therefore the judge’s decision was wrongly made. However, the statement that the guardian was deprived of the custody of the [previous] child is well-founded. This fact in itself justifies the need to alter the child’s custody. Consequently, the judge’s ruling was in accordance with Section 83(3)(a) and (5) of Act XXXI of 1997 on the Protection Of the Child.”