Children and young people

Estonia 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 to guarantee the rights recognised in the Convention.

In Estonia, the function of the independent ombudsman for children is performed by the Chancellor of Justice who monitors that all decisions concerning children proceed from the best interests of the child.

Imposing age limits

During the reporting period, on several occasions the Chancellor’s opinion was sought on issues concerning a child’s age and the related right to take independent decisions. The Convention on the Rights of the Child and the Constitution presume that a reasonable balance is found between the child’s right of participation and protecting the child. On the one hand, due to their physical and mental immaturity children need special protection and care. On the other hand, the child is an independent subject of law with the right to participate in decision-making concerning himself or herself. The underlying basis should be that a child develops and thus their decision-making ability and sense of responsibility also increase.

When imposing age limits, an adequate balance is sought between the need to protect a child and their right to decide. Current legal norms may cause astonishment: a 14-year old young person has capacity for guilt, a 16-year-old may participate in local elections, but still quite recently providing psychiatric care to an 18-year-old without a parent’s consent was not allowed. On 3 April 2021, the Riigikogu, on a proposal by the Chancellor of Justice, amended the Mental Health Act so that an 18-year-old young person with sufficient capacity to reason may seek and receive psychiatric care.

During the reporting year, a debate in Estonian society was held over the age limit for sexual consent. Naturally, children need to be protected from any kind of sexual mistreatment and abuse. If studies and the practice of the prosecutor’s office and the police show that laws do not enable sufficient protection of minors, then the law needs to be revised. However, when raising the age of sexual consent one should also not forget sincere relationships among young people, for the protection of which many countries have excluded from criminal liability cases where the age difference between the person below the age threshold and their partner is not big. The age difference suitable in the Estonian context must be decided by the Riigikogu. According to the Draft Act prepared by the Ministry of Justice, it is intended to raise the age of sexual consent from the previous 14 years to 16 years and the age for marriage from 15 years to 16 years.

Prior to the upcoming population census, the Archbishop of the Estonian Evangelical Lutheran Church, Urmas Viilma, asked for the Chancellor’s opinion whether the census respects the principle of freedom of religion of children since no question about religious belief is asked from children under 15 years old.

The Chancellor did not find a violation of the freedom of religion of children in this case. The Estonian Constitution and international agreements guarantee children’s freedom of religion. Its core is a person’s inner conviction which they may but need not share with others. A parent cannot decide on behalf of their child whether to disclose to the state information about the child’s beliefs. It should also be taken into account that the child’s own response may differ from the response given by their parent. However, a child might not understand what it means to disclose data about themselves to the state and why disclosing data about one’s beliefs is voluntary. Thus, a response given by a child need not be a conscious response.

The Convention on the Rights of the Child emphasises the right of the child to participate in decision-making concerning their life. When making such decisions, the opinion of the child must always be ascertained if their level of maturity enables this even to some extent. The older a child and the better their capacity to reason, the stronger should be the weight given to their opinion. It is almost impossible to regulate each and every case through legal norms or require that a child’s capacity to reason should be assessed when carrying out whatever measure. Therefore, setting a specific age limit is justified in some cases. For instance, a 15-year-old may apply for an identity document and participate in administrative court proceedings.

A specific age limit helps to ensure clarity in legal relationships. Nevertheless, whenever possible, flexible solutions should be preferred which take into consideration every child and their maturity.

A good example of a flexible solution can be found in the provisions of the Law of Obligations Act which regulate seeking a child’s consent for provision of a healthcare service. When providing healthcare services, a child’s right to decide independently depends on their capacity to reason, which is assessed by a healthcare professional (see, in more detail, the chapter “The child and health“).

Children and parental care

The Chancellor often receives requests for assistance from parents who have been unable to agree with each other on matters of child custody, maintenance or access. The Chancellor does not resolve disputes between parents; however, the Chancellor’s advisers do help to clarify matters.

Of course, it would be best if parents would reach agreement between themselves on matters concerning their child. Indeed, 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 in its judgment of the particular circumstances and reach a solution that is in the best interests of the child. Recourse to the court should be a measure of last resort.

National family mediation system

The Chancellor has said on several occasions that, in resolving a dispute, parents need counselling and intermediation concerning their agreements.

During the reporting period, the Ministry of Social Affairs completed the draft Family Mediation Act. Under the Draft Act, a national family mediation service will be created which should help separated parents to reach agreement with a view to the well-being of children. According to the Draft Act, parents can agree on the living arrangements of their child both extra-judicially as well as in the early stages of court proceedings. An impartial specialist would help in reaching agreement.

So long as the family mediation system is not yet available for everyone, many disputes concerning children unfortunately still end up in court. Possible solutions are not necessarily suitable for both parents.

Child maintenance and the child’s right of personal contact

The Chancellor was asked about the compatibility with the Constitution and the interests of the child of a provision in the Family Law Act under which the parent with the right of custody must pay maintenance even if they wish to live together with the child and maintain the child but cannot do so.

The Chancellor found that, if assessed in abstracto, such a provision in the Family Law Act is compatible with the Constitution and the interests of the child.

No law prescribes that the court should grant access rights in favour of the parent with whom the child lives. Nor is it always possible to say that it would be in the interests of the child to live alternately with both parents. The child’s best interests are always the decisive factor. What kind of access arrangements the court assigns for contact between the parents and children may, inter alia, depend on circumstances such as the child’s age, the relationship between the child and the parents, the relationship between the parents themselves and their willingness to cooperate, the parents’ place of residence, and the location of the kindergarten or school. The court must also take into consideration the child’s opinion in line with the child’s maturity. The court’s conclusions might not coincide with a parent’s opinion as to the best interests of the child. The court makes a decision as an impartial adjudicator.

It is in the interests of the child to receive maintenance at any time from both parents, regardless of the relationship between the parents themselves. If a parent is dissatisfied with the amount of maintenance, they may ask the court to reduce or increase the maintenance payment. If a parent wishes greater participation in the life of their child and greater contact with the child, they may ask the court to establish access arrangements or change the existing arrangements. However, a parent must pay maintenance regardless of whether they are satisfied with the existing access arrangements. A parent’s duty to maintain their child has been established in the interests of the child.

The Chancellor was asked to check whether § 143(3) of the Family Law Act was compatible with Articles 26, 29 and 31 of the Convention on Preventing and Combating Violence against Women and Domestic Violence. The petitioner asked whether, if a parent living separately who avoids paying maintenance for a long time and thus leaves to the other parent all the economic duties related to raising the child, this would amount to economic violence against the child and the other parent.

The Chancellor found that in some cases problems may arise with implementing the law but § 143(3) of the Family Law Act is not in conflict with Articles 26, 29 and 31 of the Convention.

Neither Estonian nor international law establishes interdependence between paying maintenance to a child and the access rights of a parent living separately. Both under the Convention on the Rights of the Child (Article 9 para. 3) and the Family Law Act (§ 143(1)) a child is entitled to have direct contact with both parents and, as a rule, maintaining direct contact and relations with both parents is in the interests of the child.

Although according to the Convention domestic violence may be expressed as economic violence, it does not follow from the Convention (including Articles 26, 29 and 31) or from any other international or national legal instrument that depriving a child of maintenance could always be equated to economic violence against the child.

Paying maintenance creates the necessary conditions for the child’s growth and development. If a parent fails to pay maintenance, the child’s needs may be left unsatisfied due to lack of money.

Even if a parent knowingly evades paying maintenance and lack of money may affect the child, banning contact between child and parent might not be in the child’s best interests. The child might not perceive the meaning of the parent’s action, but it is difficult for the child to bear if they cannot be in contact with the parent. Measures other than preventing contact between child and parent have been established for sanctioning a parent who evades paying maintenance (e.g. § 169 of the Penal Code).

Failure to pay maintenance is not equivalent to economic violence but sometimes non-payment of maintenance may be a form of domestic violence.

When determining access arrangements between the child and the parent living separately, the court must primarily keep the child’s best interests in mind. The child’s will (opinion) must be ascertained during judicial examination, and that information is essential. Proceeding from the child’s best interests also means that no such responsibility for deciding access arrangements is placed on a child that does not correspond to the child’s age and maturity, especially if the relationship between parents is already tense. The final decision on access arrangements is made by adults and this may differ from the child’s own opinion.

It should be taken into account that access arrangements can only be implemented if the child themselves wishes to be in direct contact with a separated parent. Thus, a child cannot be forced to be in direct contact with the parent living apart (see Supreme Court judgment No 3-2-1-95-14, para. 21).

Maintenance reform

The Ministry of Justice has prepared a Draft Act envisaging a change in granting maintenance to a minor child. It is intended to replace the currently applicable minimum maintenance amount with more flexible grounds for calculating maintenance.

The downside of the change seeking greater flexibility is an implementing provision attached to it, under which maintenance amounts set by the court prior to entry into force of the new law would also change automatically.

The Chancellor found that court decisions cannot be changed in this way through implementing provisions of a law. This is not compatible with the child’s best interests since it fails to take account of essential circumstances ascertained in court or the child’s actual needs. Such a change may also contravene the principle of the force of law of a court decision arising from § 10 of the Constitution, which protects the constancy of state decisions and guarantees that they cannot be arbitrarily changed retrospectively.

International child protection cases

In recent years, the Chancellor has received increasing numbers of petitions from parents whose child has been separated from parents in a foreign country. Often, parents in such a situation expect more assistance from the Chancellor of Justice and the Estonian state. Unfortunately, neither the Chancellor nor other officials in Estonia can intervene in the work of foreign authorities and courts. Estonian officials can only give advice and clarify matters. Similarly, officials from other countries cannot intervene if a case of separating a child from the family is adjudicated by an Estonian court.

Everyone who has set up residence in a foreign country must observe all the laws of that country and keep in mind that disputes are resolved in line with the procedure applicable in that country. A person’s country of origin cannot intervene in the activities of foreign officials or administration of justice there.

Contact between a child and a parent who is a prisoner

For many years, for children whose parent is in a place of detention a problem has been very limited opportunities for contact with their parent. For instance, a place of detention lacks child-friendly rooms to arrange visits, nor are a child’s needs in line with their age taken into account in organising visits. Limited opportunities for contact and lack of child-friendly working methods and rooms in places of detention damages a child’s relationship with their parent.

During this reporting year, the Chancellor again received complaints concerning limited opportunities for contact between a child and their parent who is a prisoner. For example, Tartu Prison erroneously interpreted § 31(3) of internal prison rules, finding that it prohibits a minor from coming for a visit alone. The Chancellor explained that § 31(3) of the internal rules, in combination with § 40, regulates the number of people coming for a long-term visit but does not prohibit a minor from meeting with a prisoner alone. The Ministry of Justice reached the same opinion in its reply to the Chancellor.

Viru Prison allowed a prisoner to have a long-term visit with their child only on the basis of written consent of the other parent or guardian. The prison also required the consent of the other parent or guardian to be able to carry out a strip search of a child.

The Chancellor emphasised that the prison must also comply with the rules laid down by the Family Law Act, for instance that a child may maintain personal contact with their parent and a parent has the duty and the right to maintain personal contact with their child. The prison must ascertain essential facts to allow and organise a visit between a parent in prison and their child. For this, the prison may ask the parent with the right of custody raising the child, or the child’s guardian, to submit an opinion about personal contact between the child and the parent in prison. When organising a visit between a child and their parent in prison, the parent or guardian taking care of the child and the prison must communicate and cooperate with each other. Asking merely for written consent may not necessarily provide sufficient information to the prison, for example about how best to arrange the visit and how to support the child before, during and after the visit. If it is found that the parents or the guardian are of a different opinion regarding contact between the child and their parent in prison, the prison may refuse to allow a visit until the parties concerned reach agreement (§ 25(11) clause 4 of the Imprisonment Act). If a parent seeking a visit is unable to exercise their rights of access, they may apply to the court to determine the conditions of access (§ 143(21) and (3) of the Family Law Act).

The Chancellor emphasised that it is extremely important that parents or the guardian are provided with information about the visit, including any search. If a child comes for a visit together with the other parent and if the child consents, it is considered good practice that the parent is present during procedures carried out with the child. If a child comes for a visit alone, prison officers and staff have a decisive role in guaranteeing the child’s physical and mental well-being. The prison must make every effort to avoid searches where a child is forced to strip. Such a search is not allowed; alternative search methods must be used. Erroneous practice of searches is not rendered lawful even by the presence of a parent with the right of custody or the guardian, nor by written consent to this procedure.

Alternative care

A child’s natural environment for growth and development is their family. In order for a child to be able to grow up in a family, the state must support parents in raising children. Unfortunately, even with state support not all parents are able to ensure a safe environment or parental care to their children. In those cases, the state must ensure suitable alternative care for a child outside their family.

Care for a child outside their birth family is called alternative care. Forms of alternative care include adoption, guardianship, and substitute care service (in a foster family, family house, and substitute home). After having received alternative care, a young person entering independent life is entitled to support in order to cope independently and continue their education. This assistance is called continuing care.

Many children under alternative care wish to maintain contact with their biological parents, relatives and other next of kin. This wish must be understood and respected and considered as the child’s right which may only be restricted by the court.

Even if a child cannot communicate with their birth family, they still have the right to know about their origin and family. For a child growing up in a substitute family, such information is important for creating their identity. When giving a child information about their original family and arranging contact between them, the interests and rights of all parties must be taken into account and a solution found which is in the child’s best interests.

The right of a child in a family house to contact with parents

The Chancellor was contacted by the mother of a child in a family house whose right of custody had been suspended by the court while her access rights had not been restricted. The mother was dissatisfied with the decision of Kohtla-Järve city authorities allowing her to meet with the child only in the presence of a specialist, nor was it allowed to leave the child in the care of the mother’s cohabitant for the night.

The Chancellor found that Kohtla-Järve City Government had not violated the right of access between mother and child. The Family Law Act entitles the child to be in personal contact with the parent (§ 143(1) of the Act). The right of contact between a child under alternative care and their parent cannot be restricted by the local authority as the child’s guardian unless the court has imposed such a restriction (§ 143(3) Family Law Act). At the same time, it is important that the guardian, family, parent and child should agree how to arrange contact. Rules which proceed from the child’s everyday needs are reasonable. The child must be able to study and rest. In the interests of the child’s mental security, the presence of a specialist during a meeting between parent and child should sometimes also be considered necessary: for instance, if the child themselves wishes it.

In this case, the city government enabled the mother to meet with the child in private. If a local authority is the child’s guardian, it may decide on what conditions the child may communicate with the mother’s cohabitant. The child staying in the care of the mother’s cohabitant for the night would not have served the aim of contact between mother and child.

Confidentiality of adoption

The Chancellor was asked why an adoptive child may ask the Social Insurance Board for information about their family of origin, but not vice versa.

The Chancellor explained that data on adoption are covered by the confidentiality of adoption with the aim of protecting primarily the child, adoptive parents and the child’s biological parents from disclosure of adoption data against their will since their lives are most affected by adoption.

Previously, the Chancellor has found that in the case of constitutionally-conforming interpretation the Family Law Act does not prohibit an adoptive parent or an adopted child from sharing information on adoption. However, an official can obtain adoption data only if necessary for performing official duties: for instance, if an adopted child asks about their adoption. Nevertheless, even in that case the adopted child can be given information about their biological parents, grandparents and siblings only if these people consent to it.

In the case of disclosure of the data of an adopted child, the will of the adopted child is decisive because adoption is their story and the basis of their identity. Only an adopted child themselves can say whether they wish participation by biological relatives in their life or not. However, unless an adopted child has notified their wish to the Social Insurance Board, officials do not have the right or possibility to bring members of the family of origin into contact with them.

The right of the child to know their parents

The Chancellor was asked when is the right time to tell a child living with their mother who their father is. The Chancellor explained that no legislation lays down the ‘right time’ for this. Nor can the law determine the moment when a child should be told that they have been adopted.

The best solution for the child depends on the specific situation. As a rule, parents know their child best and can thus choose the right time and place when to tell the child. If parents fail to reach consensus on this matter, the dispute is resolved by the court and the court will make the best decision for the particular child and their family.

Kindergarten and school

The Chancellor has received many letters concerning problems of kindergartens and schools. Several questions recur from year to year. For instance, people ask what is a reasonable time within which a local authority must give a family a kindergarten place; and parents are also interested in the conditions of the childcare service.

During the reporting period, many questions arose in connection with distance learning and other corona restrictions imposed in schools. A number of petitions did concern organisation of study in the conditions of combating the spread of the virus. There were also recurring questions, for instance concerning school food and use of smart devices.

Distance learning

Distance learning − when a pupil communicates with teachers only online during instruction – is nothing unprecedented in itself. It can be seen as a different and enriching way of study, which also helps pupils to develop skills for independent work. While distance learning was applied on a small scale before the emergency situation in force in spring 2020 − for instance, project days were organised based on e-learning − then during the second wave of the corona outbreak distance learning lasted for a week or several weeks without interruption, and sometimes even for a month or two.

Despite the experience gained during the emergency situation, many questions this year concerned the lawfulness of applying distance learning and its quality. For instance, the Chancellor had to form an opinion whether distance learning lasting for weeks and months is in conformity with legislation (see e.g. distance learning at Jüri Upper Secondary School, distance learning at Oru School, distance learning at Tallinn Järveotsa Upper Secondary School).

The Chancellor explained to parents, schools and local authorities that, in order to apply distance learning, a relevant legal basis must have been established in school internal rules or the curriculum. If distance learning is applied to combat the spread of the coronavirus, then the measures taken to protect everyone at school, as well as the organisation of those measures, must be reflected in school internal rules.

Distance learning for protection of health cannot be imposed if no such measure is laid down in school internal rules. Nor, of course, can distance learning be applied if it has been laid down as a health protection measure in school internal rules but, in view of the actual situation, use of such a measure is not justified.

The legal basis for distance learning may also be laid down in the school curriculum. Regulating distance learning in the school curriculum would be especially useful in those cases where the school intends to apply e-learning as part of ordinary instruction. In the curriculum, the school can lay down the essential conditions and procedure for organising e-learning, which is carefully planned and discussed with everyone at school.

A legal basis should be understood as the right to act provided by a law or a regulation. Consequently, a school may not base its decision on legally non-binding guidelines or recommendations (see distance learning at Rahumäe Basic School). Recommendations are intended for practical organisation of distance learning. Orders given by the owner of a school − as a rule a local authority − can be seen as orders given in the frame of the school’s internal relations, compliance with which may be mandatory for the head of the school as a local authority employee. However, such orders cannot be applied directly in respect of persons outside the administration, i.e. pupils. For this, a decision by the school is needed, and the school, in turn, proceeds from a law or a regulation when adopting that decision.

In one case, the Chancellor had to assess whether the school was allowed to refer pupils to distance learning because there were not enough teachers at school (see “Distance learning at Järveküla School“). It was decided to apply distance learning not for protection of those staying in the school building but because a large number of teachers could not work in the school building due to national restrictions on movement. The Chancellor found that the law does not allow all pupils to be referred to distance learning for this reason. When making this decision, the school cannot rely on an emergency plan because under the Basic Schools and Upper Secondary Schools Act temporary absence of teachers from school cannot be interpreted as an emergency. Nor had the school declared an emergency under the Emergency Act.

In most cases, the Chancellor assessed the application of distance learning on the basis of a petition, but in one case she also initiated proceedings herself (see distance learning at schools in Jõgeva rural municipality). The Chancellor found that two-day (in one school three-day) distance learning immediately before the school holidays did not breach pupils’ rights.

Assessment of distance learning also revealed that it is unclear who is actually competent to decide on applying distance learning (see “Distance learning at Tabasalu Ühisgümnaasium“).

The Chancellor explained that, in order to combat an infectious disease, the law allows imposition only of those restrictions which are unavoidably necessary to prevent the spread of the infection. It is necessary to assess each restriction individually as well as the aggregate of all the restrictions simultaneously imposed. Prohibitions and orders must have a causal link to decrease of the infection in view of their anticipated effect.

Decisions on the risk arising due to the epidemic spread of the coronavirus are made by the Health Board relying on epidemiological, laboratory and clinical data. Depending on the situation, the Health Board or the Government of the Republic may impose measures laid down by law: for instance, temporarily closing a school or restricting freedom of movement in a school. However, neither the Health Board nor the Government can decide that a school should (partially) transfer to distance learning. The school itself must decide on the best educational organisational measure in the conditions of the spread of the virus. For example, if the Health Board temporarily closes a school, in principle the possibility of referring all or some pupils to distance learning may need to be considered.

There was also a case where the decision on transfer to distance learning was made by the owner of the school (see distance learning at Kuusalu Secondary School). The Chancellor explained to the owner of the school that making such a decision is not within the competence of the school owner, so that it was void. A decision to apply distance learning may be made by the school director if the possibility of distance learning is stipulated by school internal rules. Even if the owner of the school gives guidelines for action to a school as its establishment, ultimately the school (director) is responsible for the lawfulness of the decision to transfer to distance learning.

The Chancellor has been asked whether education was accessible during distance learning in the manner required by law. Legislation does not regulate what extent of instruction provided by a school may be made up of e-learning. It is also unclear how exactly e-learning must be carried out. Even during distance learning, schools must ensure that teachers provide sufficient guidance and instruction to pupils. This means that a subject is explained and pupils have an opportunity to ask the teacher for clarification when they do not understand the study material. A parent must not take a teacher’s place (see e.g. “Distance learning in schools in Tallinn“).

On several occasions, the Chancellor had to assess whether a school’s decision to refer a specific pupil to distance learning was lawful.

In one case, a school prohibited a child who had returned from a trip to Greece to take up studies at the school even though under the Government of the Republic Order in force at the relevant time people arriving from Greece did not have to self-isolate. The Chancellor explained to the school that a school may neither disregard the Government Order nor impose restrictions other than those established by the Government on people arriving from abroad. The Chancellor recommended that the school should allow the child to attend classes taking place in the school building.

In another case, a school referred the children of a family to distance learning although on the day when the family returned from abroad no restriction of movement was imposed in Estonia on travellers arriving from the country in question. Thus, there was no need for the children to self-isolate. The Chancellor found that no legal basis existed for referral of these pupils to distance learning and the school’s decision was based on mistaken circumstances. The school should have established the conditions for referral to distance learning beforehand in school internal rules or the curriculum. The school should also have first contacted the parents of the children and not started to ascertain the potential need for self-isolation through a child as intermediary.

The Chancellor also had to explain whether a(n) (upper secondary school) pupil is entitled to demand the possibility of distance learning if by doing so they wish to avoid infection of their family members with the coronavirus.

The Chancellor explained that studying in a school building is still the standard form of instruction for schools. Thus, a pupil must attend instruction taking place in a school building. However, a school should be understanding as to a pupil’s problem and try to resolve it. In the specific case, the school’s decision would have been correct in either case: both when allowing a pupil to use distance learning or when obliging them to attend instruction taking place in the school building.

Thus, a need has arisen to apply distance learning to combat the spread of the coronavirus (or some other virus in the future), but several schools also plan to increase the share of distance learning in so-called ordinary study. Instruction might no longer take place mostly in the school building.

In any case the quality of education must be guaranteed, no matter what form of instruction the school uses. For this, the Riigikogu must establish by law all the essential norms and set the limits within which a school and the owner of a school may operate. Under rule of law, no situation may arise where the public power acts without a legal basis even though that action may be motivated by the best intentions. That is, not every individual step necessarily amounts to a violation but in a combination of several factors high-quality education may become inaccessible. The limits for action by schools and school owners should be so precise and clear that pupils and parents understand what a school may and what it may not do.

Schools and school owners must be left sufficient autonomy for organising instruction. This means that too detailed regulation should be avoided. Nevertheless, the necessity to amend and supplement the law and the national curricula should be considered, so that nationwide understanding exists as to what e-learning is and under what rules it may be applied. Education must be uniformly accessible everywhere in Estonia, and the rights and duties of pupils and parents must be laid down comprehensibly and clearly.

In that light, the Chancellor sent her opinions on distance learning both to the Riigikogu Cultural Affairs Committee and the Ministry of Education and Research.

Preparatory course for state examination

The Association of Estonian Student Representative Bodies asked the Chancellor to assess whether, in provision of free preparatory courses for the state examination in mathematics, pupils are treated equally if those courses are only organised in Estonian.

The Chancellor found that the state has relatively broad freedom in deciding how to offer preparatory courses to pupils as long as equal opportunities for school leavers are provided in this. Pupils must receive support first and foremost from their school. A secondary school leaver must understand Estonian at least at proficiency level B2.1, which means that they should be able to follow the course in Estonian. Since this was a review course, it means the pupils already had to be familiar with the material beforehand. Thus, the state is not obliged to offer all school leavers preparatory courses in Russian as well.

Smart devices at school

The Chancellor was asked once again what rules a school relies on when it prohibits the use of smart devices during the school day. A parent asked whether a school may lay down in its internal rules that at the beginning of a lesson all children must place their mobile phones in a depository in the classroom and refusal to do so is interpreted as a violation of internal rules.

The Chancellor found that school internal rules which oblige all pupils to deposit their mobile phone before a lesson, and treat refusal to do so as violation of internal rules, are not compatible with the Basic Schools and Upper Secondary Schools Act. The law allows a school to request deposit of items (including smart devices) if a pupil uses them in violation of internal rules. However, preventively depositing the phones of all pupils is not compatible with the letter or the spirit of the law, nor is it fair in respect of those pupils who do not violate internal rules.

Since restriction on the use of smart devices is also a topical issue in other schools, the Chancellor’s adviser wrote an article on this for the teachers’ newspaper Õpetajete Leht.

Grouping of pupils in a physical education lesson

The Chancellor was asked whether a school may divide pupils into stronger and weaker groups in a physical education lesson and give different tasks to those groups.

The national curriculum allows differentiation of physical education learning tasks according to substance and level of difficulty. This enables taking into account pupils’ abilities and increasing their learning motivation. At the same time, the substance of learning and the results sought are uniform for all pupils (except pupils with special educational needs).

When organising instruction, a school must also proceed from the needs and interests of pupils and, where possible, take into account proposals by pupils and parents. Each child must be treated with respect, regardless of their abilities in one or another field of sport. No child may be disparaged or degraded. Learning tasks should be differentiated so as to increase a child’s motivation to study, and not reduce it.

School transport

Jõhvi rural municipality changed a bus route in the middle of the school year, so that a child from a neighbouring municipality attending the school was 10–15 minutes late for school every day. Although planning of bus routes cannot take into account the interests of all passengers, when introducing changes a local authority must nevertheless analyse their impact on families.

Where a local authority has given a child a place in a school based on the child’s residence, it is not required to organise transport of pupils to school in a neighbouring local authority and back. If a local authority does not ensure a place in a school, the rural municipality, town or city must organise a possibility for a pupil’s transport to and back from a school outside its boundaries or compensate the pupil’s transport expenses.

Narva City Government organised a pupil’s transport to school and back home on the basis of a schedule. In the event of a trip outside the schedule, the city government compensated expenses related to public transport tickets or use of a personal car. The Chancellor found that the local authority must also find a solution where a pupil must travel to school or from school back home outside the schedule, for instance due to illness, but they cannot use public transport and the parent does not have a car. Narva City Government agreed with the Chancellor’s assessment. In the future, in such a situation the inhabitants of Narva can apply, for example, for compensation of taxi expenses and social transport expenses.

School food

According to the law, school meals for pupils are organised by the local authority. Due to distance learning, some pupils were sometimes deprived of organised school food.

According to the Chancellor’s assessment, provision of meals to pupils under distance learning is a voluntary decision by local authorities, and certainly such support to pupils and their families deserves recognition. However, when providing that benefit, cities, towns and rural municipalities must ensure that the rules for providing meals to those studying outside the school are established by a municipal council. All pupils must be treated equally when providing school food. For example, it is difficult to justify why a local authority distributes food parcels to pupils under distance learning but not to pupils studying at home due to quarantine. However, pupils living further from the school may be deprived of school food because going to pick it up would take an unreasonably long time.

The Chancellor explained that cities, towns and rural municipalities must also organise an appropriate and varied school lunch for pupils needing different food for health reasons. If a local authority has decided to distribute a free school lunch to everyone, the greater expense related to special food must be borne by the local authority.

When setting the time of the meal break, schools must take into account the best interests of children and ascertain, assess and consider how best to organise meal breaks with a view to reasonable solutions.

Thermal cameras in school

Unlike the use of monitoring devices, the law does not regulate installation of thermal cameras in schools. In principle, a school is entitled to install and use a thermal camera but this must be previously regulated by internal school rules. A pupil can go to a school nurse and have them assess their health on the basis of the camera measurement results. If a pupil does not go to a school nurse or fails to observe the advice given by the nurse, then depending on circumstances the school, with the knowledge of a parent, may ask the pupil to leave the school building or ask a parent to pick up their child.

A thermal camera may be adjusted so that it also fulfils the function of a monitoring device. In that case, the school may use monitoring only to check entry and exit to the school building or school grounds and to prevent a situation endangering the safety of pupils and school staff. A dangerous situation must be resolved in accordance with the provisions of internal school rules. No parental consent is needed to monitor a child.

Hobby education

The Chancellor was contacted by a parent with a concern that their child living in Toila rural municipality wanted to take up studies at Jõhvi music school but Toila rural municipality did not agree to cover the music school tuition costs. The municipality justified its refusal by asserting that the parent had been late in applying. At the same time, people had not been informed by what deadline they had to notify the municipal government of their wish.

The Chancellor found that support for hobby education by rural municipalities, towns and cities deserved recognition. However, a municipal council should establish rules for supporting hobby education, so that the inhabitants know who can receive support and on what conditions, and that distribution of public benefit is transparent.

Once again, problems for a child and their family were caused by the wish of the child’s former football club to receive a thousand euros transfer fee from the new club. The problem of the specific family was resolved temporarily: the child was registered as a player for the new club for one year without the club having to pay the transfer fee claimed.

A few years ago, the Chancellor analysed the problems related to change of sports clubs and sent recommendations for proper dealings to sports clubs and federations. The majority of sports clubs are legal persons in private law, so that the Chancellor cannot intervene in their disputes. If necessary, these disputes are resolved in court.

The Chancellor was also asked to assess whether a school may restrict a pupil’s participation in a camp. A school allowed a third-year pupil to participate in a language immersion camp organised by the school only together with a support person. The condition of a support person was imposed immediately before the camp was to take place. Prior to this, the school had advised the family that they should abandon the wish to attend the camp. According to the information available to the Chancellor, the school did not offer any adjustments to the child for participation in the camp, and justified its decision by the fact that the child was in need of special support during studies. In doing so, the school violated the child’s rights both while preparing the camp and when deciding on the child’s participation.

Organising a camp presumes offering equal opportunities. That is, a camp must be organised for as many children as possible; in case of necessity an individual approach must be considered and if the parent so requests then also reasonable adjustments. The child is also entitled to express their opinion as to what should be done so as to enable them to attend the camp. However, if the school still finds that the school’s own adjustments would be too burdensome or would compromise the well-being of other children, the justifications by the school must be based on objective criteria. Since the school is responsible for the well-being of all the children in a camp, in that case it is entitled to refuse to allow a child to attend the camp.

The right to a kindergarten place

Many parents complained against local authorities who declined to give their child a place in a kindergarten.

Under the Preschool Childcare Institutions Act, a rural municipality, town or city must give a kindergarten place to each child at least 1.5 years old whose residence is within the boundaries of that rural municipality, town or city and coincides with the residence of at least one of the parents. The law does not require that a child must receive a place in a kindergarten of their parents’ choice, but a rural municipality, town or city must ensure a place in the kindergarten of its service district.

A rural municipality, town or city has complied with its duty if it gives a family a kindergarten place within a reasonable time. Merely placing a child in a queue for a kindergarten place is not sufficient. In case-law, as a rule, a reasonable time has been considered to be two months after applying for a kindergarten place.

Parents who contacted the Chancellor with concerns about a kindergarten place were given an explanation of how to protect their rights through the court. According to case-law, reference to rapid population growth, lack of money or other similar justifications do not relieve a local authority of the duty to ensure a kindergarten place. The court has stated that if a family is not given a kindergarten place in time and the family has incurred additional expenses for this reason (e.g. a higher fee in a private kindergarten in comparison to the municipal kindergarten, or a fee for childcare), the local authority must compensate those expenses to the family.

The Chancellor explained to parents that a rural municipality, town or city may replace a kindergarten place with a place in childcare only with parental consent. The activities of a rural municipality, town or city are not lawful if a parent is forced to find a place in childcare for their child because the local authority fails to ensure a kindergarten place to a family by breaching the law.

Many questions about the duty of ensuring a kindergarten place were received from Saue rural municipality, so that the Chancellor checked the regulations concerning kindergartens in that municipality. The Chancellor found that a provision in Saue Rural Municipal Government regulation on “The procedure for admission to and exclusion from preschool childcare institutions in Saue rural municipality, and the period of operation of a childcare institution“, which links a child’s right to use a kindergarten place to reaching three years of age, contravenes the law and the Constitution since, in the case of the parents’ wish, a kindergarten place must be given to a child who is at least 1.5 years old. The regulation also lacked a procedure for applying for a kindergarten place for a child aged 1.5–3 years. The Chancellor asked that Saue Rural Municipal Government should bring the provisions of the regulation into line with the law and the Constitution. The rural municipal government said that it was prepared to amend the regulation.

The Chancellor also examined the procedure for ensuring a kindergarten place in Saku rural municipality. The basis for this was a complaint by a parent saying that Saku rural municipality had failed to give their child a place in a municipal kindergarten for the requested period. Because of this, the parent sought a place in childcare for their child. The Chancellor found that it is not lawful that a kindergarten place is first of all ensured to children aged 2–7 years. The law allows offering a place in childcare for a child aged 1.5–3 years, but if the parent does not consent to this a kindergarten place must be given to the child. Therefore, the Chancellor proposed to Saku Rural Municipal Government that such a violation should be avoided in the future and a kindergarten place should be given to all the children who are entitled to it by law.

The Chancellor proposed to Saku Rural Municipal Government that some provisions of the regulation on “The procedure for provision of social welfare assistance“ should be brought into line with the law and the Constitution. The Chancellor found unconstitutionality in the provision of the regulation under which the childcare service of a child aged 1.5–3 years is partially financed from the budget of Saku rural municipality if a parent has applied for a kindergarten place at a kindergarten in Saku rural municipality but, due to the absence of a place, agrees to childcare service. Apart from this, the Chancellor saw a problem in a provision under which the highest rate of that compensation is approved by the rural municipal government. The maximum rate of compensation or the criteria for paying compensation should be approved by the municipal council. Saku Rural Municipal Council amended the regulation in line with the Chancellor’s proposal.

On several occasions, the concern of a person contacting the Chancellor was resolved in the course of proceedings. For example, in one case it was found that the local authority was able to offer a suitable kindergarten place to the family so that their child could start going to a kindergarten. The misunderstanding was caused by the complexity of the system of the queue for a kindergarten place and granting a kindergarten place. In another case, the kindergarten annulled the decision by which a child had been excluded from the kindergarten. The local authority also brought the provisions of its regulation concerning exclusion from a kindergarten into line with the law. Namely, the Preschool Childcare Institutions Act stipulates that a child may be excluded from a kindergarten only if the child goes to school, or on the basis of an application by a parent.

No other bases are stipulated by law, and a local authority may also not establish any such bases.

Suitability of a kindergarten place

In some cases, parents contacting the Chancellor saw a problem in the unsuitability of a kindergarten place offered by a rural municipality, town or city. If a local authority offers a kindergarten place, it must be accessible to the family in terms of its location, so that the family would be able to use the place in reality. In rapidly developing residential areas, the problem may be acute, so that in those places a local authority must find flexible solutions to increase the number of kindergarten places.

For instance, the Chancellor assessed the distribution of kindergarten places in Harku rural municipality. The Chancellor found the activities of Harku rural municipality to be lawful in this case. The law requires that distributing kindergarten places should also involve taking into account, if possible, whether children of the same family already attend that kindergarten. Harku rural municipality had done so. The Chancellor explained that although the law does not require that a kindergarten place should be given as close to a family’s residence as possible, the needs of a particular family must be taken into account when offering a place. For example, it cannot be considered lawful if a rural municipality, town or city offers a family a place in a kindergarten but reaching it takes unreasonably long and/or is too expensive.

The availability of a kindergarten place was also dealt with in a recommendation which the Chancellor sent to Häädemeeste rural municipality in connection with closing down the building of Kabli Kindergarten.

Kindergarten fee

The Chancellor also received many questions concerning the kindergarten fee. Parents asked whether it was compatible with the principle of equal treatment that in Saue rural municipality parents had to pay the kindergarten participation fee for a child under three years old at twice the amount payable for a child over three years of age.

The Chancellor found that the fee concession does result in different treatment of parents but, in view of the aims of the concession and the local authority’s right to decide, it was not arbitrary or unconstitutional.

However, the Chancellor recommended that Saue Rural Municipal Council in its regulation on ”The procedure for supporting pre-school private childcare institutions and provision of the childcare service“ should unequivocally and clearly lay down whether the municipality supports attendance of children in a private kindergarten and childcare voluntarily or whether, by paying the support, it fulfils a statutorily imposed duty (see the proposal to Saue rural municipality). If this constitutes fulfilment of a duty imposed on a local authority, it should be ensured that families are not placed at a disadvantage in paying for the service.

For example, the amount of support for a private kindergarten and childcare cannot depend on whether both parents are registered as inhabitants of the municipality, because the amount of a municipal kindergarten fee does not depend on it. However, if support for a private kindergarten and childcare is deemed to be a benefit voluntarily provided by the municipality, issues of constitutionality would disappear.

The Chancellor expressed a similar position in a letter to Viimsi rural municipality. A parent who was left without a kindergarten place and therefore had to put their child in a private kindergarten asked to check the procedure for supporting private kindergartens in Viimsi rural municipality. The Chancellor found that support paid under the regulation on private kindergartens can be deemed as support voluntarily provided by the municipality and thus is constitutional. Rural municipalities, towns and cities are not required to finance private kindergartens or support families whose children attend them.

While the petition was being resolved, Viimsi rural municipality adopted a new procedure for supporting private kindergartens. The new procedure did equalise the fee for children attending private and municipal kindergartens, but for the petitioner’s child this would have meant a change of kindergarten. Therefore, the Chancellor recommended that it should be kept in mind that, in assigning a kindergarten place, similarly to all the decisions concerning children, the best interests of the child should be given primary consideration.

The Chancellor also had to answer the question whether the kindergarten fee may be higher if a child attends a municipal kindergarten in another local authority. The Chancellor found that if the municipality voluntarily supports attendance of its residents in a municipal kindergarten of another municipality, this constitutes an additional benefit offered to the municipality’s own residents. The precondition is that the municipality should be able to offer a kindergarten place in its own municipality to all its residents. In that case, the municipality may determine the amount of kindergarten fee that families must pay in a municipal kindergarten of another municipality and what benefits are granted to them.

Treatment of children in kindergarten

Similarly to previous years, the Chancellor was asked whether a kindergarten may oblige a child to sleep in kindergarten during lunchtime.

A regulation applicable to kindergartens stipulates that children from four years of age on should be enabled to choose themselves whether they wish to have a nap or engage in another quiet activity during rest time in kindergarten. However, in practice problems exist with compliance with this regulation.

Whether a child needs daytime sleep is primarily for the parent to decide based on the child’s need for sleep and other interests. The parent and the kindergarten must reach an agreement as to rest time arrangements.

The Chancellor also received a letter about an incident where a kindergarten teacher had placed a paper tape on a child’s mouth. No criminal proceedings were initiated in this matter but the local authority responded swiftly and terminated the employment relationship with the teacher who had committed the act. Ill-treatment of children, including degrading or punishing a child in any manner that endangers their mental, emotional or physical health is prohibited under the Child Protection Act.

Restrictions in kindergarten due to the spread of the virus

The epidemic spread of the coronavirus also affected the operation of kindergartens and the Chancellor received several petitions in this connection.

In one case, a kindergarten refused to let a child come to the kindergarten even though the child was not ill nor had been in close contact with staff who had fallen ill. The Chancellor considered it reasonable that a kindergarten advised not to bring children to the kindergarten if possible. Nevertheless, the kindergarten had no right to refuse to let the child into the kindergarten because the child had no symptoms of a disease nor was the child required to self-isolate. The Chancellor recommended that the kindergarten should avoid such a mistake in the future. If the teachers of the child’s group could not go to work, the child should have been temporarily included in another group.

The Chancellor conceded that perhaps it would be reasonable to introduce a provision in the Preschool Childcare Institutions Act that would enable temporarily closing a kindergarten in exceptional cases. That decision can be made by the Riigikogu.

A petitioner wanted to know whether a kindergarten may ask a parent why they bring their child to a kindergarten where the Government of the Republic has strongly recommended that children should not be taken to a kindergarten or a childcare facility without absolute necessity. Another enquiry related to whether a kindergarten may ask about a child’s health if there is reason to believe that someone in the child’s immediate circle has become infected with the coronavirus.

The Chancellor explained that even though the Government has recommended that a child be taken into a kindergarten only in case of absolute necessity, doing so is not prohibited. This means that in such a situation a kindergarten may not refuse to let the child come to the kindergarten. A kindergarten is not competent to enquire about absolute necessity on the part of the parents, let alone make decisions on that basis.

Kindergarten and school boards of trustees

The Chancellor was repeatedly asked to what extent a local authority or a director must take into account the opinion of school and kindergarten boards of trustees.

When assessing the facts of several complaints, the Chancellor found that the rights of a board of trustees had not been violated. For instance, a local authority may decide who and how establishes the conditions for waiving a meal. Thus, it may be considered justified that Tartu city wishes to regulate waiving a meal on a uniform basis in all the city’s childcare institutions. A kindergarten board of trustees may propose to the city government to change the conditions, but this does not mean that changing the conditions lies within the competence of the board of trustees and that the city government must agree with proposals by the board of trustees.

No matter whether a decision concerns educational reform, reorganisation of schools, adoption of statutes of an establishment, transfer of instruction to another building, or reorganisation of the work of kindergarten teachers – that decision must be made by a local authority or school director. In any case, a local authority must fulfil the functions arising from law, for instance ensuring that education meets the national curriculum, that the learning environment is safe and that pupils in need of support do receive that support. A board of trustees cannot assume responsibility for fulfilling the functions of a local authority, kindergarten or school. Many decisions have a monetary dimension, i.e. the choices must be made by the local authority.

The child and health

During the reporting period, a problem was resolved to which the Chancellor had already drawn attention in July 2019. Namely, on a proposal by the Chancellor of Justice, the Riigikogu amended the Mental Health Act so that a young person under 18 years of age who is sufficiently mature and has capacity to reason may themselves provide informed consent to receive psychiatric care. While in the case of other healthcare services, for many years a young person’s right to decide independently depends on their capacity to reason, which is assessed by a healthcare professional, then in order to obtain psychiatric care a young person with capacity to reason can give independent consent only as of 3 April 2021 when amendments to the Mental Health Act entered into force.

The issue of parental consent is also topical in vaccination against the coronavirus. During the reporting period, the Chancellor was asked whether parental consent is needed to vaccinate a child at the school.

The Chancellor explained that the same rules apply to vaccination against Covid-19 as in vaccination against other infectious diseases. Vaccination is voluntary. The principle of voluntariness applies equally to adults and young people.

As a general rule, a patient may be examined and healthcare services provided to them (including vaccination) only with their consent. This means that a healthcare provider must duly inform the patient (including about the availability, nature and purpose of the necessary healthcare service, the risks and consequences entailed in its provision) and then the patient has the right to decide whether they accept or refuse the service offered.

A patient with restricted active legal capacity (including a child) enjoys patient’s rights (including the right to give or refuse consent) insofar as they are capable to consider responsibly all the arguments for and against. If, according to assessment by a healthcare professional, a minor is incapable of independently considering all the arguments for and against, then the minor’s legal representative − usually a parent − is entitled to give consent. Even when consent for vaccination is given by a parent, the child themselves must also agree with vaccination (read, in more detail, paras 17 and 18 of the guidelines). If a healthcare professional deems that a young person has sufficient capacity to reason, the doctor must proceed from the young person’s own decision. In that case, a parent may not decide on the child’s vaccination.

Prior to providing a service, a healthcare professional is obliged to assess a young patient’s capacity to reason if the minor came to the appointment without their parent. Age may be one criterion based on which a child’s capacity to reason can be assessed, but it cannot be the only criterion. It cannot be presumed that a patient who is a minor necessarily lacks capacity to reason and responsibility, but similarly it cannot be presumed that in any case they are capable of weighing all the risks themselves. A young person’s capacity to reason must be ascertained on the basis of the specific case. A child’s capacity to reason is assessed similarly to an adult’s capacity to reason.

In order for a patient to be capable of weighing the circumstances and reaching a decision with regard to them, the patient must understand the nature of their illness and the choices they are faced with. They must be able to understand the information given to them and be capable of drawing conclusions on that basis. A patient must also be able to come to a decision based on the information received and their own value judgements, and notify the healthcare professional about it. The larger the risks entailed in a decision, the greater the capacity to reason presumed for making the decision. If a healthcare professional has misgivings that a young person is not capable of responsibly weighing all the risks, parental consent must be sought.

Vaccination of school-aged children and young people is mostly organised by a school nurse.

A special regulatory framework currently applies in school healthcare. A school nurse may vaccinate a pupil only on the basis of consent given in a format reproducible in writing by the pupil’s parent or other legal representative. Under the Minister of Social Affairs regulation, a school nurse must inform a pupil’s parents about vaccination and also seek the pupil’s own consent, and this is done at least one week before the planned vaccination. The pupil’s legal representative must notify in a format reproducible in writing whether they agree to vaccination or not, and that reply is retained among the pupil’s health records.

Thus, a pupil’s vaccination at the school requires consent from both the child and their parent. If one of the parents provides consent, a healthcare professional may also presume consent from the other parent. If the other parent has expressed opposition to the child’s vaccination, the child cannot be vaccinated on the basis of consent by one parent.

Under the legislation, a school cannot oblige children to be vaccinated but it may provide information about organisation of vaccination at the school.

Refusal of medical treatment

Paediatricians asked the Chancellor how to ensure the child’s best interests when the child’s need is medically justified but the parents refuse the child’s treatment.

Paediatricians are concerned that child protection and court proceedings initiated for protecting a child’s life and health take too long. Paediatricians also find that shortcomings exist in the work of child protection specialists, due to which a child’s best interests are sometimes left unprotected in such a complicated situation.

During a roundtable held in the Chancellor’s Office on 15 June 2021, with participation by paediatricians, judges, child protection specialists and representatives from the Social Insurance Board, the Ministry of Justice and the Ministry of Social Affairs, it was noted that, if a child’s life or health is endangered, intervention to protect the child is required and all parties must act swiftly. A healthcare institution may contact a local authority child protection worker or have direct recourse to the court to protect a child’s interests. To protect a child’s interests, the court may restrict a parent’s right to decide in respect of health issues and appoint a special guardian for the child.

In a situation where saving a child’s life and health requires a very quick response, it is reasonable that the healthcare institution itself has recourse to the court. It is also important that the healthcare institution should submit to the court evidence concerning the child’s health status. Such evidence may include an opinion by the child’s attending doctor or a transcript from the medical record.

Preventive health checks

A family medicine centre asked the Chancellor whether a parent of a child born at home may waive the child’s postnatal health check as well as the child’s subsequent health checks at a general practitioner’s.

In her reply, the Chancellor explained that a preventive health check of a patient at a general practitioner’s can only be carried out with patient’s consent (in the case of a child, usually with parental consent). Although the legislation does not explicitly stipulate that a parent must take their child to a general practitioner for a preventive health check, monitoring a child’s health in this way is in the child’s best interests.

The Chancellor found that if a parent refuses a child’s preventive health check, the general practitioner might ask the parent the reason for refusal, try to convince the parent of the necessity for the health check and, in cooperation with the parent, find a possibility to monitor the child’s health (e.g. a home visit). If the parent fails to cooperate with the general practitioner or refuses a preventive health check without a compelling reason, it is justified to contact a child protection worker. A general practitioner should immediately notify a child protection worker if there is reason to believe that a child’s health may be endangered.

Prevention and promotion

The Chancellor’s tasks also include raising awareness of the rights of children and strengthening the position of children in society as active participants and contributors. As Ombudsman for Children, the Chancellor organises analytical studies and surveys concerning children’s rights, and on that basis makes recommendations and proposals for improving children’s situation. The Ombudsman for Children also 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 preventive work concerning the rights of children, meetings with the Chancellor have also played an important role. Unfortunately, restrictions due to the spread of the coronavirus did not enable organising as many face-to-face meetings as in previous years. Nevertheless, in summer, after the restrictions were relaxed, the Chancellor did manage to organise some meetings with young people while observing all the safety rules.

The Chancellor’s Office received a visit from a few dozen young people participating in a summer camp organised by the Estonian Union for Child Welfare and the Social Insurance Board, and the development programme organised by the Estonian Association of Substitute Home Workers. Discussions during the meeting focused on the rights and duties of children, and young people were given an overview of the work of the Ombudsman for Children. Additionally, meetings took place with the Estonian National Youth Council and the Association of Estonian Student Representative Bodies.

On the initiative of the Chancellor’s Office, audio clips and “recipes” were prepared on what kinds of parents children need. The “recipes” for a good parent were prepared by children as part of the creative writing process, which the Estonian Children’s Literature Centre helped to organise. Opinions expressed by children were presented at a seminar organised in the frame of the adoption week by the non-profit association Oma Pere, the National Institute for Health Development, the non-profit association SEB Charity Fund, and the Office of the Chancellor of Justice.

The voice of young people in local elections

In October 2021, elections for municipal councils will take place again. Young people at the age of 16 to 17 can also vote in local elections, so that care should be taken that schools should remain politically impartial when organising events during the election period. For this purpose, on the initiative of the Estonian National Youth Council and with support from the Ministry of Education and Research and the Office of the Chancellor of Justice, agreements on best election practice were updated. Best practice includes principles on how to speak about elections honestly and freely and ‘in a cool manner’ at school. The Chancellor also participated in a debate where the principles of best practice were introduced.

In connection with the upcoming elections, online lessons and a photo hunt “The voice of children and young people in organising local life“ took place under the leadership of the Chancellor’s Office, the Estonian Union for Child Welfare, and the Estonian Centre for Applied Anthropology. To collect ideas from children and ascertain their expectations concerning their everyday life and local living arrangements, online lessons were organised at different schools in Estonia where these topics were discussed together with children.

It was found that children and young people want more diverse leisure opportunities, an organised environment, a feeling that security is ensured in public spaces and playgrounds; they also want pavements and traffic lights, and signs to mark play areas. Children and young people expect better communication about events and undertakings intended for them, more varied and richer school food, more support to participation in hobby education, and support for economically needy children and families. Very many children spoke of the need for psychological support and wanted it to be more accessible than currently.

In children’s opinion, it is more difficult for younger children, such as those under ten years old, as well as children and young people with a mother tongue other than Estonian, and also children and young people with mental and health problems or special needs, to make their voice heard in organising local life. In order to make the voice of children better heard, children and young people consider it necessary to meet regularly with adults who could encourage them to speak and seek their opinion, and not ridicule children’s ideas. If necessary, specialists could be involved for this purpose.

During the photo hunt, children and young people were invited to collect observations about the child-friendliness at the place where they live. Participants were asked to photograph places in their home community which could be made more child-friendly, which are either inconvenient or downright dangerous for children, or conversely, find good examples of places where the needs of children have been taken into account and where children feel comfortable.

Information materials

The Chancellor’s advisers helped to prepare various video and printed materials introducing the rights of the child. Video lectures were prepared on child-friendly proceedings and child-friendly healthcare. Both videos were made in cooperation with the Ministry of Justice and the Social Insurance Board. A video lecture “Why do we keep talking about the rights of the child“ was prepared together with the non-profit association Mondo. At the instigation of the Youth Council of the Estonian Union for Child Welfare, the Chancellor of Justice and her advisers introduced their activities in the journal Märka Last.

Under the leadership of the Chancellor’s Office, a diverse volume “Lapsed Eesti ühiskonnas“ [Children in Estonian society], exploring different areas, was published. More than 40 experts were involved in compiling the volume. The structure of the volume proceeds from the underlying principles of the rights of the child and describes how Estonian children are doing. Nine chapters provide an overview of the general principles of the rights of the child, the child’s right to health, family, education, security and protection, as well as children’s living standards, their contacts with the law enforcement system, offences by children, and the rights of stateless and unaccompanied children.

The authors of the volume have analysed the situation of children in different walks of life and suggest how to improve the life of children in Estonia. The rights of the child form a part of the legal system and, with the help of suitable and feasible measures, the state must introduce the principles of the Convention to both adults and children. This volume offers a good opportunity to do so.

Since data about the situation of children is fragmented among several agencies, a considerable asset of the volume is also publication of statistics concerning children. The volume is intended for policy-makers and specialists working with children, as well as a wider readership and children themselves. The volume is published on the website of the Chancellor of Justice. Articles also provide direct links to studies, legislation and scientific articles. The volume was introduced in the radio programme „Vikerhommik“, the teachers’ newspaper Õpetajate Leht and the journal Sotsiaaltöö.

In cooperation with the Data Protection Inspectorate, the Chancellor’s Office updated the guidelines “Notifying about a child in need, and data protection“. This could serve as a small handbook for everyone who notices a child or a young person in need of support and must notify this. The guidelines provide an overview of the cases in which notification should be given about a child in need, as well as who should do it and via what channels. It also contains specific references to legal provisions on which a person may rely in doing so, taking into account personal data protection requirements.

The guidelines are necessary since unfortunately many people do not yet know that a concern about children should first of all be notified to the children’s helpline at 116 111 or a local authority child protection worker. During the reporting period, the Chancellor’s advice about this was sought, for instance, by a young person in need themselves, as well as by a person noticing a child in need in the social media, and an adult who had experienced harassment by a teacher as a child, as well as specialists working with children. It is particularly important to notice a child in need and notify this during isolation caused by the pandemic when a child’s relationships outside home, and thus also the possibilities to speak about their problem, are either limited or excluded. The media have published stories about children who for years suffered from ill-treatment at home without anyone noticing it.

Training and events

The Chancellor’s advisers regularly train child protection and social workers. During the reporting year, training on the rights of the child was also offered to judges, attorneys, youth workers, supervisory officials of the Social Insurance Board, and medical students. A Chancellor’s adviser delivered a presentation “Võrdsed võimalused – kas kättesaamatu ideaal või igapäevane tegelikkus“ [Equal opportunities – an unattainable ideal or everyday reality] at the 13th conference on values education organised by the University of Tartu Centre for Ethics.

In order to contribute to implementing the principles of child-friendly proceedings in police work, the Chancellor’s Office in cooperation with the Police and Border Guard Board, the Prosecutor’s Office, the Social Insurance Board, and the Ministry of Justice continued organising seminars for police officers and prosecutors. The seminars offered practical advice on how to take the needs and interests of the child into account in day-to-day police work, i.e. how to ensure the well-being of the child. At the seminars, materials were also introduced on which police officers can rely in arranging child-friendly proceedings: guidance for police officers on treatment of children; an agreement among prosecutors on special treatment of minors in criminal proceedings; a reminder on child-friendly proceedings; the Chancellor’s guidelines on the rights of children on first contact with the police.

During training, answers were also provided to questions about child-friendly proceedings which people had asked the Chancellor during the previous year. For example, it was explained how important it is to involve a parent substantively and as quickly as possible in discussing an offence committed by a child. It would be good to inform the parent about the situation even before the child is interviewed, and if the parent so wishes they could be enabled to be present during the interview. In that case, the parent could ensure that the rights of their child are fully protected during contact with the police. In any case, a police officer must weigh and justify excluding a parent from an interview with the child. When planning an interview with a child, a police officer must take into account that the time chosen for the interview should be suitable for the child, so that it does not interfere with the child’s studies or other activities important for the child (e.g. hobby education).

For the first time, one of the debates at the days of legal scholars in Estonia was dedicated to the rights of the child.

The debate was led by advisers from the Chancellor’s Office, with participation by representatives from the Social Insurance Board, the Bar Association, the bailiffs’ office Ühinenud Kohtutäiturid, and the University of Tartu. During the panel, topics such as child-friendly proceedings, the right of custody and access rights, and the inviolability of family life were discussed. In the course of the debate, explanations were given as to the meaning of child-friendly proceedings, the complexity and possibilities of ensuring a relationship between a child and parents were explored, and based on the experience of different countries the limits of interference with family life were analysed.

The autumn 2020 meeting of the advisory body on human rights was also dedicated to the rights of children and young people. Topics included possibilities for supporting the mental health of babies and infants, the introduction of an information leaflet on this and the outlook of young people on mental health. A flashback was taken in terms of how the restrictions imposed in schools and kindergartens during the emergency situation affected young people and children. Studies were introduced on accessibility of public space for children and on school bullying. A debate was held on the rights of the child in the healthcare system, including as regards access to psychiatric care. The debate also touched upon the rights of the child to a family and contact with a parent who is in prison.

Also this year the children’s and youth film festival ‘Just Film’, held as part of the PÖFF Film Festival, included a programme on the rights of children, prepared in cooperation between Just Film, the Office of the Chancellor of Justice, the Ministry of Justice, the Ministry of Social Affairs, the Social Insurance Board, the Police and Border Guard Board, and the Estonian Union for Child Welfare. The programme on the rights of children featured already for the ninth time. Screening of selected films was followed by debates with experts and well-known personalities discussing the films together with viewers. To increase the interest of young people with Russian mother tongue, more and more films in the programme have also been translated into Russian. In 2020, several debates following the films were held in Russian.

A total of 2932 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 eighth time in 2021. President Kersti Kaljulaid and Chancellor of Justice Ülle Madise thanked those who have significantly contributed to the well-being of children through their new initiatives or long-standing activities. Also a television programme was made featuring this year’s merit awards event, screened on 1 June, the International Day for Protection of Children, on the public ETV channel. As of 2021, the Day for Protection of Children has been officially declared a flag day.

At a joint public debate of the Riigikogu Social Affairs Committee and the Study Committee to Solve the Demographic Crisis, the Chancellor’s adviser drew attention to the need to aim support and assistance directly to children. Solutions must proceed from the child’s need and support the child’s development regardless of the opportunities of the family. Providing state assistance should include ensuring that it is not discriminatory, alienating or stigmatising.