CHILDREN AND YOUNG PEOPLE
The Riigikogu ratified the UN Convention on the Rights of the Child on 26 September 1991. Under Article 4 of the Convention, States Parties must undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention.
In Estonia, the function of the independent ombudsman for children is performed by the Chancellor of Justice who ensures that all decisions concerning children respect the rights of children and proceed from the best interests of the child.
The Chancellor often receives requests for assistance from parents who have been unable to agree with the other parent on matters of child custody, maintenance or access to the child. The Chancellor does not resolve disputes between parents; however, the Chancellor’s advisers do help to clarify matters.
The laws presume agreement between parents on matters concerning their child. No law or state coercion can mend human relationships. In the absence of agreement, a dispute is resolved by the court, which must take account of the particular circumstances in its judgment and reach a solution that meets the best interests of the child. Recourse to the court should be a measure of last resort.
Claiming legal expenses from a child
The Chancellor made a proposal to the Minister of Justice to amend the Code of Civil Procedure so that procedural expenses in maintenance cases could not be claimed from children. The provisions that enable claiming the defendant’s procedural expenses in maintenance cases from children are contrary to the rights and interests of children and the purpose of awarding maintenance. Minors themselves have no right or opportunity either to lodge or not to lodge an action (an action is lodged by a parent); they also cannot use other procedural rights enjoyed by parents. Thus, children themselves do not cause any legal expenses, yet the law enables claiming those expenses from a child.
The Chancellor explained that the same principles could apply here that apply to family matters on action and to filiation cases. In those cases, each of the parties to the dispute bears their own procedural costs. In a situation where one parent lodges a vexatious maintenance action, the court should be given the right to deviate from this rule and decide that the expenses will be claimed from the parent, not from the child.
The Minister of Justice agreed with the Chancellor’s position and affirmed that he would ask the Ministry to prepare the relevant legislative amendment.
Enforcement of a parent’s right of access to a child
In recent years, the Chancellor has directed attention to problems arising in enforcement of court rulings regulating access arrangements between parents and children. In this connection, the Chancellor made a proposal to the Minister of Social Affairs to prepare legislative amendments protecting the interests of children.
During the reporting period, the Minister of Justice asked for the Chancellor’s opinion on amendments planned to the Family Law Act, the Code of Civil Procedure and the Code of Enforcement Procedure concerning enforcement of court rulings laying down access arrangements between a parent and a child. The plan includes the following:
- empowering the court to apply coercive measures and, ex officio, regulate access;
- introducing fine and arrest of a parent as new coercive measures;
- abolishing the mandatory statutory conciliation procedure following violation of access arrangements;
- enabling the court to appoint a so-called access caretaker;
- speeding up court proceedings.
The Chancellor drew attention in her opinion to the need to specify coercive measures that the court may apply to influence a parent violating access arrangements. The Draft Act should also set out how court rulings on access arrangements are to be enforced in the evenings, at weekends and during public holidays. Bailiffs and child protection workers are not satisfied that they have to work for free at weekends. This has occasionally led to refusal to exercise their official duties, which, however, fails to take into account the interests of the child.
If the intention is that the access caretaker should be a person with specialised knowledge, that requirement should be laid down by law. The law also needs to be supplemented if the powers and responsibility of the access caretaker are expanded. Counselling of parents and intermediation of agreements concerning a child should take place before having recourse to a court. The Chancellor does not consider it justified to apply arrest as a coercive measure regulating access arrangements since this would harm the interests of the child (leaving the child temporarily without one parent).
The right of children in a family house to communicate with their parents
In response to a question whether a family house may prohibit a child from meeting their biological parents, the Chancellor replied that if a child wishes to have that meeting and it is in the best interests of the child, a family house may not prohibit it. The interests and opinion of the child should be ascertained by the local authority as the child’s guardian. The local authority, the parent, and the family house as the child’s carer should reach an agreement on the best meeting place for the child. It is not ruled out that this place is the family house, even where a family house is operating in the personal home of the family parent. In any case, a family house is an institution running on the basis of an operating licence.
Under the Child Protection Act, an institution providing substitute care must support relations between a child and their family. Access rights between a child and a parent arise from the Convention on the Rights of the Child which stipulates that the child has the right to know their parents. The child who is separated from their parents is also entitled to maintain personal relations and direct contact with a parent on a regular basis, unless it is contrary to the child's best interests. However, a family house may refuse to allow a parent into the house if the parent is intoxicated or otherwise dangerous. The local authority should definitely be notified in that situation. A parent also has no right to demand that the meeting should definitely take place in the family house. The choice of meeting place should proceed from the interests of the child.
Results of studies show that the organisation, practices and methods of child protection work vary between Estonian cities and rural municipalities; however, some problems are similar: above all overload and burnout risk of child protection workers. It is not rare to have a situation where a child protection worker works outside their working time (see the Chancellor’s opinion on planned amendment to the Family Law Act, the Code of Civil Procedure and the Code of Enforcement Procedure, para. 6).
Child protection workers are mostly engaged with resolving problems. On the other hand, according to study results, not enough time is left for prevention, which in the long term would help to alleviate the workload. Child protection cases are often emotionally extremely exhausting. In view of the heavy workload and emotional strain, as well as the public’s high expectations and negative public attention attracted by more difficult cases, it is no wonder that people do not last long in this job and staff turnover is high.
Child protection workers would be motivated by higher wages, but even more than money they value well-functioning teamwork and recognition. Due to the particular nature of child protection work, officials need constant feedback and support. Therefore, it is important that all child protection workers should have an opportunity to regularly meet with colleagues and discuss cases. The child protection unit of the Social Insurance Board should continue organising case-based discussions and offer support and guidance to child protection workers in resolving more complicated (including international) cases. Better cooperation between local authorities would also be of help, for example in arranging services for children and families or in order to find a replacement for a child protection worker during vacation. Child protection workers feel that they lack legal expertise, so they would need more support from lawyers in cities and rural municipalities.
Every year, child protection workers deal with thousands of cases, for the majority of which a positive solution is found for the child and the family. Year by year, there has been an increase in the number of children in connection with whom assistance of a child protection worker is sought. In 2018, the number of those children was 9488. Success stories usually do not reach the news threshold, unlike some isolated cases where something went wrong.
Parents, indeed, often contact the Chancellor when dissatisfied with the activities of a child protection worker for their city or rural municipality. Mostly, complaints concern work by child protection bodies in disputes between parents on the right to custody or access rights.
When resolving one such petition, the Chancellor found that Pärnu City had violated the requirements of the Child Protection Act by failing to hear the children and carry out an all-round assessment of the interests of the children before submitting an opinion to the court. In a recommendation sent to Pärnu City Government, the Chancellor explained that a local authority involved as a participant in court proceedings must:
- ascertain the best interests of the child in line with the requirements of § 21 of the Child Protection Act;
- hear the child and document the interview carried out with the child;
- collect information on the situation of the child and the relationship between the child and the parents, including, where necessary, visit the home;
- submit to the court a neutral and detailed overview of the situation of the child and family, including desirably a report or transcript of the interview with the child;
- avoid expressing judgements in opinions submitted to the court.
The head of the social department of Pärnu City Government affirmed through the media that Pärnu City would change the procedure for dealing with child protection cases in line with the Chancellor’s recommendations.
Many of the questions sent to the Chancellor about education concerned the well-being of children and young people in kindergartens or schools. People expressed concern about lack of security but also about inadequate pedagogical skills of teachers. Many petitions also demonstrated the heightened expectations of parents for the activities of kindergartens and schools or financial support provided by local authorities.
Educational institutions must support the development of children and young people, so that everyone has the opportunity for self-realisation. That is, support should also be offered where an unconventional approach in respect of a child is needed in a kindergarten or school. Support may be expressed in a good word said by a teacher, resolving a concern, or adapting the school environment to a pupil’s needs.
Access to pre-school education
The issue of access to pre-school education concerns receiving a kindergarten place as well as exclusion of a child from kindergarten.
The Chancellor was asked whether a rural municipality must provide financial support to families whose child under three years old attends a childcare facility in a private kindergarten. A parent wanted their child to receive childcare in a private kindergarten with whom the rural municipality had not entered into a contract for support of a childcare place fee. The Chancellor replied that a local authority must, at the request of a parent, enable a child at the age of one-and-a-half to seven years old to receive a place in a kindergarten within its service district. At the same time, a rural municipality may replace the kindergarten place of a child between one-and-a-half to three years old with a place in childcare, if the parent consents to this. It is for the rural municipality to decide whether it offers a family a place in a municipal or a private kindergarten. A rural municipality may also choose with which private kindergarten it enters into a service contract. If a local authority does not offer a parent a kindergarten place within a reasonable time, the parent may have recourse to an administrative court.
The Chancellor was asked to assess whether the conditions established by Jõgeva Rural Municipal Government for exclusion of a child from a kindergarten were in conformity with the Preschool Childcare Institutions Act. Under the procedure applicable in the municipality, a child could be excluded from a kindergarten if they had been absent from the kindergarten for over a month, the parent had not notified the kindergarten about the child’s absence, and the kindergarten had been unable to contact the parent in order to clarify the reason for absence. According to the Chancellor’s assessment, the procedure established by the rural municipality can be interpreted and implemented so that the result is lawful. That is, when deciding on exclusion of a child from a kindergarten the municipality must have previously ascertained that the parent does not wish to have a kindergarten place for their child. However, the procedure established by Jõgeva Rural Municipal Government did not support such an interpretation. Above all, the right of the child to pre-school education should be respected. This should also be done when a parent has not notified the kindergarten of the reasons for the child’s absence. Jõgeva Rural Municipal Government annulled the respective conditions on exclusion in its regulation.
When establishing a procedure for exclusion from kindergarten, a rural municipal or city government must observe the requirements laid down by law. Under the law, a child may be excluded from a kindergarten when the child goes to school or upon a parent’s application. However, several rural municipal and city governments have decided that a child may be excluded from kindergarten if a parent has failed to pay the kindergarten fee for two months. Conditions for exclusion have also included situations where a child has been absent from kindergarten without health reasons for more than two months or where a parent has repeatedly and seriously violated a kindergarten’s internal rules. The Chancellor found that the conditions for exclusion from kindergarten should be laid down by law without any ambiguity, so as to ensure protection of the interests of children. The Ministry of Education and Research agreed with the Chancellor’s opinion, noting that this would be taken into account when drafting the Pre-school Education Act.
Rest time in a kindergarten
The Chancellor was asked to assess a kindergarten’s rest time arrangements. From four years of age on, a child should be enabled to choose between a nap and another quiet activity during the rest time. If a parent wishes that their child should be able to do something else quietly instead of a nap (such as browse a book, draw), a kindergarten must allow this. This opportunity should be given to a child even where it would be difficult to arrange because of shortage of space. The obligation to quietly lie in bed does not offer the child an opportunity to choose another quiet activity. That requirement fails to respect a child’s well-being. Naturally, during the time designated for a midday nap a child engaged in any activity should be quiet so as not to disturb others. Other children, too, are entitled to a rest time.
A child in need of support in kindergarten and school
On several occasions, the Chancellor has been asked to assess use of inclusive education in kindergartens and schools.
The Chancellor has explained to the parents the duties of a kindergarten in assisting a child with behavioural problems. Schools and kindergartens implement the principle of inclusive education. This means that, as a rule, children with special needs, including children with behavioural problems, attend the same kindergarten group or the same class with other children. Supporting a child with special needs in a kindergarten requires functioning teamwork, for which the head of the kindergarten is responsible. Educational specialists must assess the nature of a child’s behavioural problems and adjust their work accordingly.
Finding solutions may be impeded by the fact that the parents of a problematic child do not acknowledge their child’s need for assistance. In that case, educational specialists should explain to the parents the problems related to the child’s behaviour and advise contacting a psychologist, psychiatrist or other specialist, if they believe this to be necessary. If, despite this, the parents do not take any steps, the kindergarten should contact a child protection worker from the city or rural municipality and inform them of the child’s need for assistance. If the parents also disregard the precepts issued by a child protection worker and, by doing so, harm the well-being and development of their child, the child protection worker may have recourse to the court for restriction of the parent’s right of custody.
Several parents have contacted the Chancellor with a concern that a school has recommended choosing another school for their child on account of the child’s special needs even though it would be possible for the child to attend school based on their place of residence. Since schools have also involved officials in making the recommendation, parents feel themselves under pressure. An opportunity to attend another school may be offered to a child only if no suitable conditions for study exist at the school of the child’s place of residence. The Chancellor has proposed to schools to change the current practice (see the 2018 and 2019 proposals).
A school must proceed from the principle of inclusive education and offer the necessary support to a pupil while also ensuring the safety of everyone at school. Although some pupils’ behaviour may occasionally cause an unsafe situation, it should be understood that those pupils themselves need assistance too. A pupil’s inappropriate behaviour definitely needs a response. The school must find a solution which would be good for a child in need of assistance as well as for other children. A solution cannot be that a pupil is not invited to a school event (Christmas party, theatre performances and excursions).
One parent asked the Chancellor whether the school or local authority may require that a child should take medication as a precondition for the child to attend school. No situation may occur where a child at the age of compulsory school attendance is not admitted to school because of their health condition or where a pupil is not enabled to attend school because they do not take medication. However, a parent must take into account that due to a health condition a child must sometimes endure some inconvenience (e.g. medical examination at a hospital in order to ascertain the need for treatment). Experts dealing with a child (e.g. a doctor and school staff) have the duty to assess the child’s need for assistance and, if necessary, help the child. If a parent does not allow their child to be assisted and thereby endangers the child’s well-being, specialists dealing with the child have the duty to notify the rural municipal or city government of the child’s residence or the court. To ensure a child’s well-being, the court may issue decisions arising from the right of custody in respect of the child, for example oblige a parent to take the child to a hospital for a medical examination.
Teachers as supporters of a child’s development
Kindergartens and schools must prevent situations endangering the child (§ 6 Child Protection Act). Decision-making must keep in mind a child’s well-being, meaning also the requirement to support the development of the child (see the definition of child well-being in § 4 of the Child Protection Act).
A child’s coping in a kindergarten depends to a large extent on a teacher’s attitude to their work. The Chancellor was asked how it is ensured that kindergarten teachers and the staff assisting them take into account children’s well-being. Teachers must have higher education and pedagogical knowledge and skills. Their skills also include the ability to monitor, assess and value one’s own physical, mental and emotional health and well-being. This is a basis for children to feel well in a kindergarten. No qualification requirements have been set for staff assisting teachers but they, too, must ensure children’s well-being by their behaviour.
The Chancellor explained to a parent that preparation and knowledge of kindergarten teachers must be of the kind that enables them to choose appropriate educational methods that also respect and support a child. A kindergarten teacher’s compliance with qualification requirements is assessed by the head of a kindergarten. The director needs to assess a teacher’s professional skills regularly: when hiring a person, during the probationary period, and also afterwards. To draw any substantive conclusions, a teacher’s activity needs to be monitored, and guidance and counselling should be provided where necessary. The Preschool Childcare Institutions Act stipulates that kindergartens must prepare an internal evaluation report analysing the competence of teachers and problems arising in the course of work.
A teacher is a person whom both the child and the child’s family must be able to trust. The Chancellor was asked about the possibilities for supporting children and families in a situation where a child has become a target of harassment by a teacher. Trust means a feeling of security that the school must create by preventing situations endangering the child. Under § 20 of the Child Protection Act, the director of a school or other childcare institution may not hire as a teacher a person who is banned from working with children.
The school must also support a child’s mental, physical, moral, social and emotional development through various educational activities, thereby helping to improve pupils’ knowledge about their rights. Being aware of misbehaviour contributes to creating a safe school environment. It is important that children should be able and have the courage to seek assistance in the event of ill-treatment, for example by talking about it to the school psychologist or calling the child helpline.
A pupil who becomes a victim of ill-treatment is entitled to protection and support by the school. The school can, for example, offer the assistance of the school psychologist or ask a psychologist from the Rajaleidja counselling network to help the child. A parent may notify harassing behaviour to the police, who are able to offer a legal assessment of the specific case.
Teachers and school management must consider whether all steps have been taken in the interests of the child and in compliance with the law. If necessary, the director must terminate the employment of a person whose mental health or pedagogical skills are not suitable for work with children and who may therefore endanger the well-being of children. The activities of a school or kindergarten can be assessed by the board of trustees, local authority as manager of the kindergarten or school, and the Ministry of Education and Research.
Parents as supporters of a child’s development
A parent contacted the Chancellor as their letter to the school director had not received a reply. A parent is entitled to receive information and explanations from the school about organisation of school life and the rights and duties of pupils. On the other hand, parents, too, must cooperate with the school to ensure the well-being of the child. The precondition for cooperation is an understanding attitude towards each other. A class teacher had given explanations to a parent and offered opportunities for discussing the situation that had developed, but no agreement on this was reached. The parent did not find the class teacher’s written reply to be sufficient either, so that they still expected a letter from the director. The Chancellor found that, in order to resolve the situation, the parties should meet so that the parent could receive relevant answers to outstanding questions.
One parent asked the Chancellor to assess organisation of home schooling for their child. The child was being home schooled at the request of the parent. Home schooling at a parent’s request presumes the parent’s greater responsibility and ability to draw up an individual curriculum for the child in cooperation with the school. By agreement with the parent, the school itself may also draw up an individual curriculum for a pupil. The parent was of the opinion that the school had failed to honour the agreements. Understandably, a combination of different circumstances may annoy a parent, but in the specific case the school had resolved the disagreements and apologised to the parent for the misunderstandings. According to the Chancellor’s assessment, it is in the child’s interest that a parent and the school cooperate, which implies the parent contributing to this.
The right of pupils to feedback
Over the years, the Chancellor has often been asked about the procedure for planning tests at school, which is laid down by a Minister of Social Affairs regulation. Pupils in their petitions have pointed out that schools do not respect the rules on planning tests laid down by the regulation. The Chancellor’s attention has also been drawn to the fact that the definition of a test used in the regulation causes confusion and the norms applicable to this are outdated.
Motivated by these problems, on 9 May 2017 the Chancellor sent a letter to the Minister of Health and Labour with justifications as to why the regulation needs to be revised. However, to date the regulation has not been amended.
As updating the procedure for carrying out tests has been delayed without any substantive reason, the Chancellor asked the Minister of Social Affairs to initiate amendment of the regulation at least insofar as concerns organisation of tests.
Assessment supports pupils’ development and gives them feedback on progress in a particular subject. A pupil asked whether a teacher is entitled to give them an unsatisfactory mark because of having been absent from class without a good reason. A teacher may lower a pupil’s conduct and diligence mark for absence without reason. A mark “1” means that a pupil has not made progress in the subject. Absence may result in lagging behind in studies but skipping a class without reason cannot lead to the conclusion that a pupil’s knowledge and skills are inadequate.
A pupil who has been absent or received a negative mark for a test is entitled to re-take the test as prescribed by the school curriculum. The Chancellor was asked to assess the legality of the procedure for retaking tests in Tallinn Art Gymnasium (Tallinna Kunstigümnaasium). Tallinn Art Gymnasium has given pupils a ten-day period for retaking tests. According to the Chancellor’s assessment, when laying down the time limit the school should also take into account that it is not always possible for a pupil to retake a test within ten days (e.g. when absent for an extended period). The aim is that a pupil should acquire the material as well as possible and that their knowledge and skills would not lag behind their peers.
If a pupil does not go and retake the test, the teacher may give them a negative mark since the pupil has not given an opportunity to assess their knowledge and skills. The right to retake a test also exists if a pupil has been absent from class without reason, has used dishonest means while taking the test, or has received an unsatisfactory mark for work in class or for homework.
The Chancellor was asked to assess the lawfulness of a reprimand issued to a pupil with the school director’s decree. When returning to school after being absent, the pupil presented a medical certificate. According to the director’s explanations, the reprimand was issued to the pupil for being absent without reason since at the time of preparing the decree no reason for the absence had been given. The parent had not complied with their duty to notify the school about the child’s absence and the reasons for it on the first school day when the child was absent. This does not mean that the pupil was absent without reason.
The school’s social pedagogue tried to contact the parent only after the reprimand had already been issued to the pupil. However, the school should promptly begin to find out reasons for a pupil’s absence. If it is unknown whether a pupil was absent with or without a reason, no basis exists to issue a reprimand either. A parent’s conduct cannot be transferred to their child who was absent from school due to illness.
When giving marks to pupils, it should be borne in mind that these are personal data. The Chancellor explained to the school director that the school report and the mark sheet appended to the school-leaving certificate provide a summary feedback on the pupil’s academic progress. Thus, they constitute the pupil’s personal data, access to which would seriously harm the inviolability of the pupil’s private life. Persons entitled to know a pupil’s marks are the parent and guardian. However, on the basis of a written application, a legally competent pupil may prohibit the school from notifying their parent or guardian about their marks. In justified cases, information about a pupil’s marks may also be given to other persons, such as the school’s support specialist.
Meals in childcare institutions
The Chancellor was asked to assess the procedure for provision of meals in Alasniidu Kindergarten in Harku rural municipality, under which all obligations relating to children’s special diets had been imposed on parents.
A kindergarten must cooperate with a parent when providing meals to a child having a different diet for health reasons. According to the Chancellor’s assessment, no cooperation can be said to exist in a situation where parents themselves must ensure that a child has food suitable for their diet with them. Although parents have been made responsible for a child’s special diet, the parents do not have full control over food selection in a kindergarten. Heavy staff workload or lack of skills in preparing a special menu cannot be given as justification for a solution that fails to take into account a child’s well-being. Alasniidu Kindergarten promised to change their internal rules and expressed hope that Harku rural municipality would find an opportunity in autumn 2019 to provide meals to children needing a special diet for health reasons.
The Chancellor was asked whether Maarjamaa Education College may prohibit children from eating food that they have brought with them from home. The main concern of the person writing to the Chancellor was that four regular meals at school were insufficient for active young people at their growing age. In the evenings, young people also wanted to eat food they had brought from home.
The Chancellor recommended that the institution provide additional food to children. The Chancellor recommended that the rules on eating food brought from home should be laid down in the internal rules of the boarding school facility. The school is entitled to regulate pupils’ living arrangements in the internal rules of the boarding school facility and pupils are obliged to comply with the rules.
Safe way to school
Several parents have written to the Chancellor that many school buses and local public buses on which children travel to school are not sufficiently safe. Buses have no seat belts and in some places children have to stand in buses on roads outside built-up areas due to shortage of seats. Buses taking children on excursions have also been criticised for lack of seat belts.
The law does not regulate whether buses driving on highways must have seat belts. The Traffic Act only lays down the requirement that a passenger must wear a seat belt in a vehicle equipped with seat belts. That condition applies equally for regular bus services (e.g. school buses, rural municipality bus lines, county bus lines, long-distance lines) as well as non-regular transport (e.g. excursion buses). However, the prohibition on children standing on a bus applies only for non-regular transport (§ 36(3) Traffic Act). Thus, the law does not prohibit transporting children standing on a school bus or a local regular public bus.
Since the law has left it for local authorities to specify safety requirements for school buses driving on roads outside built-up areas as well as local regular buses, the Chancellor asked local authorities to provide an overview of the transport conditions for children.
By the time of drawing up the report, the Chancellor had received replies from 59 local authorities. In general, local authorities considered it important to establish requirements ensuring safety of passengers. Some of them found that the requirement for seat belts and prohibiting standing in a bus are important issues that should be regulated by law.
Several rural municipalities have already ensured that their children always have a seat and can fasten the seat belt on regular and school buses.
Several rural municipalities affirmed that, in the future, public tenders for bus transport would include the condition of buses being equipped with seat belts and would take into account the expected number of passengers. In addition, several rural municipalities noted that bus drivers have to monitor and remind children of the obligation to fasten seat belts.
Although buses operating on local regular and school lines in Harju County are mostly equipped with seat belts, it is a major problem that during peak hours people have to stand on buses as there are not enough seats for all passengers. Almost all Harju County rural municipalities (except Kiili rural municipality where passengers can sit on a bus) have noted that no buses with more seats can be sent to operate the routes as there is not enough space for larger buses to manoeuvre or turn around. Kohila rural municipality in Rapla County faces the same problem. Those rural municipalities asserted that additional money needs to be found for additional buses.
The Chancellor will continue dealing with the topic. It is necessary to analyse what else could be done to make children’s way to school safer. The Ministry of Economic Affairs and Communications replied to the Chancellor that it was not planning a legislative amendment to make seat belts on buses transporting children on roads outside built-up areas mandatory or to prohibit transporting children standing on the same buses. The Ministry is of the opinion that public transport in Estonia is sufficiently safe as traffic accidents with buses are relatively rare. The Ministry also considers implementation of such requirements impossible.
Nevertheless, many local authorities have been able to do what the Ministry considers impossible to implement. Where a rural municipality has established a requirement of seat belts on a school or local bus, the bus drivers also monitor that seat belts are fastened. The main issue is where to find additional money to make school and regular local buses safer.
Benefits provided by local authorities
Benefits offered by local authorities to families are very important. The Chancellor was asked whether, after merger of local authorities, the new local authority must still compensate a pupil’s public transport and school lunch expenses if the child attends a school in another local authority.
A local authority is entitled to decide whether and to what extent it compensates a pupil’s public transport expenses. The school must organise meals for pupils and the state budget contains earmarked support to cover school lunch expenses of pupils acquiring basic and secondary education and enrolled in full-time study in a municipal or private school. A local authority is not required to cover the balance not funded from state support. A local authority may also pay school meal support, for example, based on need depending on a family’s income.
The Chancellor was asked whether a parent must pay a hobby group participation fee even when the child is temporarily not participating in the work of the group. If participation in the hobby group was ensured to the child even when the child was not attending the group, the duty to pay the fee for the time the child was absent is not contrary to the child’s interests. It should be kept in mind that, in covering the expenses of a hobby group, the local authority takes into account the monthly participation fee paid by parents.
Restricting the rights of students in vocational educational institutions
On several occasions, the Chancellor has been asked whether a vocational educational institution may impose different requirements for better organisation of school life. To ensure the safety and health of everyone at school, the school must establish guidelines on conduct and possible sanctions where guidelines are not complied with.
Everyone has the right to free self-realisation, while respecting and taking into account the rights and freedoms of others and abiding by the law. For example, students must comply with safety and hygiene requirements laid down by the school for practical classes with a view to ensuring the safety of themselves and others. Vocational educational institutions have laid down rules in their regulations on organisation of study for situations where a student’s behaviour endangers the safety of everyone at school to the extent that they have to be expelled. However, the provisions regulating the conditions on expulsion of students from school in the Vocational Educational Institutions Act are inadequate. On that basis, the Chancellor made a proposal to the Minister of Education and Research to supplement the law. The Minister of Education and Research agreed with the proposal and promised to find a suitable solution at the first opportunity.
A teacher’s instruction to students to deposit their telephones for the duration of a test interferes with the rights of students. The Chancellor assessed the legality of that requirement. The teacher decided that only those students can take the test who comply with the instruction to deposit their phones for the duration of the test. With that requirement, the teacher wanted to prevent cheating. Under the school’s internal rules, students may not use their mobile phones at school without a teacher’s permission. However, a ban on using a phone and a requirement to deposit it are not the same instructions in substance. The Chancellor emphasised that an instruction to deposit a phone must have a legal basis. If necessary, the school is entitled to lay down in internal rules the requirement to deposit a phone which students and teachers must observe. Laying down the requirement must be justified.
During meetings with the Chancellor’s advisers, healthcare professionals have often asked at what age a child may independently make decisions concerning their health. That question may arise, for instance, when a child’s consent is needed for vaccination or psychiatric treatment. Therefore, the Chancellor’s Office analysed the current legislation and prepared information materials on legal aspects relating to provision of healthcare services to children. The guidance materials („Informed consent of the child patient“, „Child-friendly healthcare. Information leaflet for the child“, „Child-friendly healthcare. Information leaflet for the adult“) are accessible on the Chancellor’s website.
Consent by a patient who is a minor
The Riigikogu has left it for the doctor to assess whether a particular child or young person is mature enough to be able to decide independently on their medical treatment. That is, the Law of Obligations Act lays down the principle that a child patient enjoys patient’s rights in so far as the child is unable to consider the pros and cons responsibly. This is similarly regulated in several other European countries, such as Austria, Germany, Belgium and Sweden.
If a healthcare professional deems a child capable of deliberating the matter, the child themselves gives consent to treatment or a medical procedure. In that case, a parent cannot make the decision on the child’s health and treatment instead of the child. That rule applies with regard to most health matters – be they vaccination, dental care or consultation with a general practitioner. An exception is psychiatric treatment of children for which the law requires that, besides the child’s own consent, the parent’s consent is also always necessary.
Psychiatric treatment of minors
Currently, in no case does the law enable providing psychiatric care to a minor without the parent’s consent. It is natural that, as a rule, parents should be involved, but there may be cases where this is not in the interests of a minor (e.g. where a child is a victim of domestic violence) or is not possible (e.g. the parent is abroad). In those cases, timely assistance cannot be provided, for instance, to a 17-year-old young person suffering from depression, eating disorder or addiction who has themselves contacted a psychiatrist, whose need for care is medically justified and whom the psychiatrist deems to be sufficiently mature to give consent.
The Chancellor asked the Minister of Social Affairs to consider amending § 3 of the Mental Health Act so that a young person under 18 years of age who is sufficiently mature and capable of deliberation would themselves be entitled to give informed consent to receiving psychiatric care. The Chancellor also asked to specify the provision so that it would be unequivocally clear and understandable to psychiatrists, children and their parents how to act when a child is not yet sufficiently mature to give informed consent for arranging psychiatric care.
The Minister of Social Affairs agreed with the Chancellor’s reasoning and promised to take the Chancellor’s proposal into account when amending the Mental Health Act.
Dentist at school
A parent asked the Chancellor how the school should organise dental check-ups for children. It was found that the school had failed to inform the parent in time about a dental check-up for children, so that the parent could not notify the school about dispensing with the check-up.
The Chancellor explained to the school that parents and children should be informed in time about the opportunity for a dental check-up, so that a parent could notify their consent or refusal to the school. A dental check-up is not part of school healthcare services and a parent is entitled to choose a dentist for their child.
The director explained that the school had learned a lesson from the incident and, in the future, parents would be notified about the opportunity for a dental check-up well in advance.
Protection of children’s data in schools and kindergartens
The Chancellor received information that the information system for the management of Estonian schools had made documents containing personal data of children freely accessible to the public.
In order to prevent similar situations the Chancellor addressed all kindergartens and schools with a request to take particular care when processing children’s data. The Chancellor emphasised that the law prohibits third persons from gaining access to data describing children’s health, disability, special needs, academic achievement, behaviour, development, the family’s coping and conditions at home, and data describing other personal aspects. The same principles also apply to processing the data of school and kindergarten staff and parents.
The Chancellor drew attention to the preparation of documents and pointed out the grounds for restricting access to documents. She also emphasised that publicly accessible information in a document register should not disclose a person’s name or other data in the title of a document enabling an understanding of whom the document deals with.
Protection of children’s health data
The Chancellor was contacted by a parent who was concerned that they had not been informed about the results of a dental check-up carried out at school.
After the check-up, the dentist’s nurse informs the school secretary about pupils who need dental treatment. The school secretary passes on the information to the class teacher, who informs the parent. That is, at least two people have access to a child’s health data before the information reaches the parent.
The Chancellor explained to the school that dental check-ups for children are a healthcare service. Healthcare providers and persons participating in provision of healthcare services must maintain confidentiality of data about a patient and their condition which they learned in the process of exercising their work-related duties. Therefore, a dentist has to give information about the results of a child’s dental check-up directly to the parent. The school is entitled neither to receive nor intermediate that information. A Chancellor’s adviser explained the same to the dentist carrying out the dental check-up at school.
Discussing a pupil’s family life in parents’ mailing list
The Chancellor was asked whether a school had violated personal data protection rules when the class teacher and director of studies sent letters to the mailing list of the class parents concerning the problems of a child and their family. Although the teachers did not mention the pupil’s name in their e-mails, the recipients of the letters could understand whom the matter concerned. The Chancellor found that the teachers should have been able to resolve the situation differently without involving the other parents. The school removed the conversation from the mailing list and the class teacher apologised to the parents.
Children as beneficial owners
Rules on combating money laundering require obliged entities (e.g. banks) to know their clients and so-called beneficial owners. To this end, clients must disclose as beneficial owner a natural person who, taking advantage of their influence, performs a transaction, act, action, operation or step or otherwise exercises control over a transaction, act, action, operation or step or over another person and in whose interests or favour or on whose account a transaction or act, action, operation or step is made.
The Chancellor was contacted by the board of a company which is part of a group, since under the law minors who are beneficiaries of a foundation which is part of a group should be identified as beneficial owners of the foundation.
The Chancellor found that minors cannot take advantage of their influence to perform a transaction, act, action, operation or step or otherwise exercise control. Under § 8(2) of the General Part of the Civil Code Act, minors have restricted active legal capacity, so that, as a rule, they have a legal representative. Since a minor cannot perform a transaction, act, action, operation or step or otherwise exercise control without their legal representative, this means that only their legal representative can be a beneficial owner, i.e. the person exercising actual control. Thus, treating minors as beneficial owners is not, as a rule, purposeful or justified, so that it is also not justified to disclose their data. Consent for disclosure of the data of minors should be given by their legal representative where necessary.
On several occasions, the Chancellor has been asked about employment opportunities for children and young people. The Chancellor has explained that work corresponding to a young person’s age and capabilities, and which they can do in safe conditions, is permissible and fully commendable.
Children’s employment is mostly regulated by the Employment Contracts Act and the regulations adopted on that basis. The rules laid down in this legislation are to a large extent based on values agreed by society. The Employment Contracts Act enables children to work on conditions proceeding from the child’s age, obligation to attend school, and whether it is currently school time or holiday.
Work by children is not prohibited but tighter restrictions have been imposed on work by younger children. The purpose of the restrictions is to protect children’s health and enable them to have enough time for studying, rest and hobbies.
The law does not prohibit giving children home assignments which they are able to manage, such as doing the dishes or cleaning. Quite the opposite, the Family Law Act lays down the obligation to assist one’s parents. The law stipulates that, as long as a child resides together with their parents and the parents raise or maintain that child, the child is required to assist the parents in the household in accordance with the child’s abilities and possibilities.
Restrictions on working as a coach
The Chancellor was contacted by an individual who could not participate in a training course for football coaches on account of their prior criminal record, since the training was intended for coaches dealing with children and practical training sessions with children took place during the training course.
The Chancellor found that refusal to admit the individual to the training course had been justified as children are under the special protection of the state, and the Constitution allows restricting a person’s choice of an area of activity, profession and place of work. For example, qualification requirements may be imposed for certain areas of activity (e.g. doctors, judges, lawyers), as well as requirements for prior experience or language proficiency (e.g. a requirement of sufficient proficiency in Estonian). A ban on activities in specific areas may also be imposed on people punished for particular offences. For that reason, under the Child Protection Act the state has laid down restrictions in dealing with children on persons punished for certain criminal offences. The aim of the restrictions is to protect the security of the person of children, to ensure their security and to prevent possible ill-treatment of children.
The Chancellor’s tasks also include raising awareness of the rights of children and strengthening the position of children in society as active participants. As Ombudsman for Children, the Chancellor prepares analytical studies and surveys on the rights of the child and, on the basis of these, makes recommendations for improving the situation of children. The Ombudsman for Children represents the rights of children in the law-making process and organises a variety of training events and seminars on the rights of the child.
In order to encourage and support children to understand the substance of their rights and duties, an advisory body to the Ombudsman for Children has been established at the Chancellor’s Office, comprising representatives of children’s and youth organisations. During the reporting period, the advisory body to the Ombudsman for Children discussed the rights of children and young people in the digital world and in healthcare.
During the reporting period, the Chancellor’s Office joined the “Let’s Talk Young!” project of the European Network of Ombudspersons for Children (ENOC). The project aims to give children and young people an opportunity to have a say in issues concerning them. Each year the project focuses on a different topic. This year’s discussions focused on the rights of children and young people in the digital environment. Eleven young people from Estonia aged 12-17 years participated in the project. The Estonian Union for Child Welfare also contributed to the success of the project. Young people visited Telia House; the Estonian Film Museum; the Baltic Film, Media, Arts and Communication School of Tallinn University; and attended a thematic discussion „Libastudes libauudistele“ on fake news at the National Library. University of Tartu Professor of Media Studies, Andra Siibak, talked about what research tells us about young people and the internet. Police officer Maarja Punak introduced the work of web-constables.
Based on the meetings, the young people prepared their recommendations on how to ensure the rights of children and young people in the digital world. It was emphasised that young people should not stay alone with problems they have experienced in the digital world but should mention it to their parents, another adult or a friend, contact the web-constable or call the children’s helpline. Young people need skills to cope in the digital environment, which should be taught to them at school already early on and in a playful context. With the help of instructors, a video clip was prepared summing up project activities, as well as a piece of social advertising expressing the thoughts of young people themselves. Two young people attended a meeting of ENOC youth counsellors in Brussels in order to present the recommendations by young people in Estonia. Based on opinions from young people from several countries, the European Ombudspersons for Children prepared proposals for international organisations and decision-makers in their own countries.
The Chancellor’s advisers carried out several training events on the rights of the child and delivered lectures in kindergartens and schools. The advisers explained to child protection and social welfare workers the rights of custody and access, as well as rules and international recommendations regulating separation of children from their family.
Presentations on informed consent of by child patients were made to paediatricians and general practitioners. The Chancellor’s advisers also attended several meetings of the ethics committee of Tallinn Children’s Hospital. Meetings were held with paediatricians, general practitioners, gynaecologists and representatives of patients in order to get feedback on the guidance materials prepared by the Chancellor’s Office.
Also this year the children’s and youth film festival ‘Just Film’, held as part of the PÖFF Film Festival, included a special programme on the rights of children, prepared in cooperation between Just Film, the Chancellor of Justice, the Ministry of Justice, the Ministry of Social Affairs, the Police and Border Guard Board, and the Estonian Union for Child Welfare. A special programme on the rights of children has become a tradition and this year featured for the eighth time. Screening of selected films was followed by debates with experts and well-known personalities discussing the films together with viewers. A total of 3373 cinema-lovers went to see the films within the special programme on the rights of children.
The Ombudsman for Children can further contribute to making society more child-friendly by recognising good people who have done something remarkable either together with children or for children. The merit awards event „Lastega ja lastele“ [With and For Children], which was brought to life by organisations championing the interests of children, was held for the sixth time in 2019. On the International Day for the Protection of Children, the President of the Republic and the Chancellor of Justice recognised those who have significantly contributed to the well-being of children through their new initiatives or long-term activities.
(For inspection visits carried out to childcare institutions, see the chapter „Inspection visits“.)