Placement of a child immediately after its birth
Spendenbutton / Faire un don
Gender Law Newsletter FRI 2025#3, 01.09.2025 - Newsletter abonnieren
EUROPE: HUMAN RIGHTS (CHILD REMOVED FROM ITS MOTHER)
European Court of Human Rights, judgment of 10 June 2025, B.T. and B.K.Cs. v. Hungary (Application no. 4581/16)
The European Court of Human Rights (hereinafter ‘the Court’) has identified a lot of procedural and material violations of art. 8 ECHR in the decision of the authorities to remove a child from its parents at its birth.
Summary of the facts and of the pleas in law from the press release of the Court clerk:
“At the time of B.K.Cs.’s birth, B.T. had already had five children, born between 1997 and 2010, who had been placed under child protection in September 2010 because the older children had not gone to school and the two youngest children had not received necessary medical care. They had been placed in various childcare institutions before being placed in temporary foster care [...].
The case concerns the placement of B.K.Cs. in temporary State care immediately after birth. Relying on Articles 3 (prohibition of inhuman and degrading treatment), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights [ECHR], the applicants complain that B.K.Cs. was unjustifiably separated from his mother and placed in temporary State care and that they had no effective avenue to raise their complaints with the national authorities”.
The Court finds that there has been a violation of the right to respect for family life (Art. 8 ECHR) for the following reasons:
1.) Material violation
a) Principles
The Court states that there must be “extraordinarily compelling reasons before a baby can be physically removed from its mother against her will immediately after birth as a consequence of a process in which neither she nor her partner has been involved”, because it is an “extremely harsh measure”, “traumatic for the mother” and “depriv[ing] the newborn baby of close contact with its natural mother”. Furthermore, the decision has to be based on “a careful assessment of the impact of the proposed care measures on the parents and the child, as well as of the possible alternatives to taking the child into State care, prior to the implementation of the measure” (§§ 72, 77 and 88; emphasised by the redaction).
b.) Application
In the present case, the reasons of the removal given by the authorities consisted in the failure of the mother to provide adequate care to her children, that she continued smoking, and that she had not attended recommended antenatal check-ups. These reasons are not sufficient for the Court (§ 78). Furthermore, there is “no evidence that the first applicant was monitored by the childcare authorities during her pregnancy or that her attitude towards her unborn child was questioned after that visit, or that she was warned about her behaviour and the consequences that might follow” (§ 84). The national courts have stated themselves that the family assistance of the social authorities to the mother had been inadequate (§ 85). Since her other children had been removed from her before the birth of B.K.Cs., the mother had taken steps to resolve that situation. The authorities had noticed positive changes. One of the children had returned to the mother the year before the birth of B.K.Cs. No assessment has been made of these positive progresses before the removal of B.K.Cs. at its birth (§ 86). There is also no indication that an evaluation of less stringent measures has been made (§ 80).
Conclusion: the measure constitutes a disproportionate interference with the mothers and childs’ right to respect for their family life (§ 93).
2.) Procedural violation
a.) Principles
The natural parents must “obtain access to the information which is relied on by the authorities in taking [...] decisions relevant to the care and custody of a child”. Furthermore, their views and interests must have been “made known to, and duly taken into account by, the authorities” and they must have been able “promptly to exercise any remedies available to them” (§ 73-74).
b.) Application
In the present case, “the retention of the second applicant in the hospital and his subsequent temporary placement with a foster parent were essentially based on the local health visitor’s report” and there is no indication that this report has been given to the mother before the decision-making (§ 91). Furthermore, while domestic law requires to hear the parents before the decision (excepted if there is a serious danger directly putting the life of the child at risk, which was not the case here), there is no indication that such a hearing took place (§ 92).
Conclusion: the decision-making process was “seriously flawed”.
Direct access to the judgement (https://hudoc.echr.coe.int)