Strategic lawsuit against illegal family separations

The Equality Project of the Hungarian Civil Liberties Union works for the legal protection of the most vulnerable minority groups in Hungary, including the fight against the systemic discrimination of Roma people.

Roma people regularly face institutional racism in every aspect of life, a vast number of them live in extreme poverty, they suffer from housing and social crisis and in many cases, they are unable to participate in education and in the labour market, further augmenting their injuries all of which then create a vicious cycle of discrimination.

One-tenth of the population of Hungary is of Roma origin, a third of whom live in villages. Most of the Romas are undereducated, a large portion of them are unemployed or working in public employment and the number of Romas earning a degree is very low. Children in Roma families are born into poverty, face difficulties in the education system and in overall start from a disadvantageous situation from the moment of birth due to the accumulated social obstacles.

As a result, Roma children are much more often separated from their families than their non-Roma peers. Although both the UN Convention on the Rights of the Child and the Hungarian Child Protection Law forbid family separations on the basis of poverty, such practices are widespread in the country for a long time. The Hungarian child protection system is indeed discriminatory, a fact that has been established by renowned scholars of the subject and by three targeted researches conducted by the European Roma Rights Centre. In a 2017 inquiry, the Hungarian ombudsman also established that every third child gets into state care due to poverty violating their right for equal treatment and right to family life.

The illegal practice could be managed by a transparent equalisation policy that aims to reduce social disadvantages, however such measures have not been implemented in Hungary for years. In fact, family and social policy processes that further increase social inequalities can be observed.

In recent years the HCLU picked up the fight against the systemic discriminatory practice via several methods.

  • After a year of preparation, on 1 June 2016 we launched a strategic lawsuit representing two Roma families in which we contested all elements of the complicated process of family separations. We sued the local government who maintains the public child care and the nurses’ service, since instead of receiving proper child and family care, as well as nursing support to better their social circumstances, the families concerned lost care of their children due to threats and constant controlling by the authorities. We also filed a claim against the county’s guardianship office because they made the contested decisions rather than compelling the public child care service to operate lawfully and ensuring that the children receive proper care while staying with their respective families. Finally, we brought a claim against the Miskolc public hospital because they separated the infants from their parents after only a few days without any official decision from a competent authority. The families were represented by advocate dr Márk Pető.

Although we launched this lawsuit in the name of only two families, it was an important strategic lawsuit since such unnecessary and unlawful family separation policy is a rather widespread and institutional practice in the country. Although in this lawsuit we could only hope that the court would rule the separation of the applicant families illegal, we believed that the judgment could then serve as a precedent in following cases. It was also the first time in Hungarian jurisprudence when the unlawful practice of family separations was brought to court. We launched the lawsuit in partnership with the European Roma Rights Centre.

  1. In parallel with our strategic lawsuit we launched administrative procedures and lawsuits in order to return the children to the two applicant families. These procedures were successful and the two families’ seven children can since live with their respective parents and families

  2. To raise awareness to the unlawful but widespread practice, we launched a campaign in Autumn 2016 called Missing Memories (Hiányzó Emlékek). As part of the campaign we prepared professional material in order to contribute to the elimination of the unlawful practice.

    THE STRATEGIC LAWSUIT

    On behalf of the two applicant families we launched our lawsuit on 1 June 2016. We implored the Miskolc Regional Court to establish the infringement of the fundamental rights of the applicants by

    • local government as the local child care service failed to provide basic child care to the families and instead contributed to the separation of the children acting in a quasi-authority role, whereas according to the Hungarian Child Protection Law, they have the complete opposite function. The local government was obligated to constantly monitor the lawful functioning of the child care service, however it failed to do so;

    • the county’s guardianship office who failed to secure the lawful functioning of the local basic child care service and by separating the children from their families instead of ensuring family care, they violated the principle of gradation as well. We also asked the court to establish that the guardianship office made their decisions with several months of delay and without proper reasoning;

    • the local hospital who by retaining the infants without a competent authority’s decision, de facto separated mothers from their babies;

    • the employees of the respondents who communicated with the applicants in a manner that violated their human dignity.

    We requested the court to award 2 million forints as reparation to both families.

    On 1 April 2019 after a three-year procedure and several hearings the Regional Court dismissed our claims. We based our arguments on 26 witness testimonies and hundreds of pages of evidence but the court rejected all of them and – in our opinion – gave credit only to the witnesses brought by the respondents.

    As a result of our appeal against the first instance decision, on 23 January 2020 the Debrecen Regional Court of Appeal revised the first instance decision and in many important aspects ruled in our favour. All three respondents were condemned for their unlawful operations and both families were awarded almost 1 million forints as reparation.

    The Regional Court of Appeal

    • established that the local government violated the applicants’ right to family life by not employing family care personnel in the required number of hours through one and a half year and by not completing the compulsory family care and nursing plan;

    • established that the county’s guardianship office violated the applicants’ right to family life by not ensuring the lawful functioning and by proceeding with delay in respect to one of the children;

    • established that the local hospital violated one applicant family’s right to family life by separating their baby from them right after the first nursing without a competent authority’s decision and that it violated the mother’s human dignity by forbidding her from further nursing her child;

    • prohibited the respondents from further violation of rights;

    • obliged the respondents to pay 900 000 forints to one applicant family and 800 000 forints to the other family as reparation.

    The Regional Court of Appeal made an important and progressive decision in many aspects of the case, for instance that typical serious failures of the child protection system, such as overload and insufficient funding cannot serve as an excuse for default, hence delay by the authorities are to be considered unlawful.

    While several parts of the court’s decision were progressive, we weren’t completely satisfied with it. The court missed the opportunity to determine the infringement of the applicants’ right to equal treatment which would have been a very important step in the fight against discrimination. For this reason, we filed an action for review with the supreme court of Hungary, the Curia. However, the Curia upheld entirely the second instance decision, bringing an end to our strategic lawsuit. The final decision means a significant progress in child protection case law even without finding the unlawful practice discriminatory.

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