The children from the case in question clearly and persistently refused contact with the abusive parent throughout, which was also their right. During the procedure, they expressed their opinion several times and did not change it despite the psychotherapeutic treatment. The advocate is not a person who can help in establishing contacts, but a person who helps the child express his opinion and then conveys this opinion to the competent authorities and institutions. In cases of domestic violence in which children are also victims, finding the most appropriate solution to secure the child's best interests while simultaneously taking into account the parents' right to contact with the children is primarily the task of the professional services of the competent Centre for Social Work and the court. At the same time, it must be emphasised that the abusive parent must take responsibility for his actions and change his behaviour, and at the same time make an effort to establish contact with the children. It is not the task of children to change their clearly expressed opinion and adapt to the inappropriate behaviour of their parents.

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The Ombudsman dealt with the proposal of the district court (proposal) to appoint an advocate for two children in connection with proceedings for divorce, determination of upbringing and protection, and alimony. It emerged from the initiative that the child refuses contact with one of the parents and that they are involved in psychotherapeutic treatment, so the initiator suggested that advocacy should begin after the end of psychotherapeutic treatment (when the contact will also cease), so that the child would not be exposed to so many different treatments at the same time. At the same time, the proposer stated that, before he can make a decision in relation to the aforementioned legal proceedings, his task is to establish contact between the children and the parent. The consent of both parents was attached to the proposal.

The Ombudsman asked the competent Centre for Social Work for reports on the treatment of the mentioned family, records of conversations with the two children, information on whether the two children are still involved in psychological treatment, an explanation about the possible establishment of contact with the father, and the Centre's position on the reasonableness of appointing an advocate in the case in question. From the obtained report, it emerged that the two children were victims of domestic violence while the family was still living together. One of the parents had a restraining order against the other parent and the children for seven months, after which the contact with the children was under supervision, but the children always refused. For this reason, the two children were included in psychotherapeutic treatment, within the framework of which contacts were then established between the children and the abusive parent, but it emerged from the psychologist's reports that the two still refuse contact, that they do not relax during contact, and that they want it to be over as soon as possible. In several conversations at the competent Centre for Social Work, too, the children refused contact with the parent, they reported on the parent's previous violent behaviour and expressed fear, and they clearly refused contact with the violent parent throughout. The parent with whom the children lived reported the same about the children's response. In conversations, the violent parent denied the violence and claimed that it was a false report, but later cited mutual violence by the parents. He greatly simplified what was happening in the family and saw problems only in others, while acting quite uncritically of himself and his own behaviour. In relation to the appointment of a child advocate, the competent Centre for Social Work stated that the two children found themselves in a situation in which they were (and still are) involved in various procedures of professional services at the Centre for Social Work, and at the same time they were also involved in psychotherapeutic treatment, in the framework of which they are forced to talk repeatedly about the abusive parent and about contact with him, while both still resolutely reject him. In the conversations, both of them expressed their tiredness at the fact that they have to constantly talk about past events with an abusive parent, and at the same time, their opinion was constantly checked. Because of this, they often expressed distress and discomfort. The competent Centre for Social Work expressed concerns regarding the appointment of an advocate for these children, as this would mean more involvement in conversations with experts, with whom the children would have to talk additionally about themselves, their parents or family, and once again painful experiences. This could possibly give the impression that they are not believed, especially considering that they have already talked about all of the above many times. Both children have repeatedly spoken clearly about their contact with an abusive parent. Repeated conversations about the same topic or the same issue could give them the impression that they are not being taken into account, and possibly that adults (experts) are urging or persuading them to contact the abusive parent, even though they have repeatedly stated that they do not want this.

On the basis of Article 25a of the Human Rights Ombudsman Act (ZVarCP), the purpose of advocacy is for the advocate to provide professional assistance to the child, so that he or she can express his or her opinion in all procedures and matters in which he or she is involved, and pass on the child's opinion to the competent authorities and institutions, who decide on his rights and benefits. The proposal to appoint an advocate can be submitted by anyone who believes that the child cannot exercise the right to express his or her opinion.

In the case in question, the Ombudsman assessed that there were no conditions for appointing an advocate for the children and that the appointment of an advocate would not follow the principle of their greatest benefit. Namely, the two children clearly expressed their opinion about contact with the violent parent on several occasions, which means that they were able to exercise their right, which derives from Article 12 of the Convention on the Rights of the Child. The children clearly and consistently refused contact with the parent and did not change their opinion in the conversations. Given that the violent parent had a ban on approaching not only the other parent, but also the children due to his violent behaviour, the two children, as victims of violence, refused contact, which is also their right in the situation. The Ombudsman assessed that by appointing an advocate, a situation could arise in which the child could get the feeling that they are not believed, but this does not in any way follow the purpose of advocacy, which derives from Article 25a of the ZVarCP. In addition to the above, the fact that the two children are already included in psychotherapeutic treatment, within the framework of which they have enough help to relieve their distress, could not be overlooked. Otherwise, the two children also refused legal representation. The advocacy process can only be successful when the child is ready to participate in advocacy, regardless of their age. The Ombudsman assessed that the appointment of a child advocate in the above-mentioned case would only represent an additional burden, but not relief and assistance, which is the purpose of advocacy based on Article 25a of the ZVarCP. The Ombudsman also stated that the advocate is not a person who can help in establishing contacts, but a person who helps the child express his own opinion and then conveys this opinion to the competent authorities and institutions. Although the Ombudsman understood that in the mentioned case it was a complicated family situation, he believed that the advocate would not be able to reach a solution to the problems that had arisen. When violence occurs in the family, of which children are also victims, finding the most appropriate solution to ensure the child's best interests while simultaneously taking into account the parents' right to contact with the children is primarily the task of the professional services of the competent Centre for Social Work and the court. The Ombudsman assessed that in the situation that arose, the main task of the abusive parent was to take responsibility for his actions and change his behaviour, and at the same time to make an effort to be able to establish contact with the children. It is not the task of children to change their clearly expressed opinion and adapt to the inappropriate behaviour of their parents. On the basis of the above, the Ombudsman did not decide to appoint an advocate and closed the case. (13.4-45/2024)