The present research shows that there are cases where a child is not placed with relatives because the legal institution of relative foster care is not commonly known in everyday life and the parties involved are not aware of it during the guardianship proceedings. The legal institution of foster care by a relative can, if properly regulated, create the possibility in many individual cases for a child to be brought up by his or her family until one of the parents is able to take him or her back, or even permanently, since fostering can be maintained until the child becomes independent, in which case it can also provide a post-foster status or financial support for the young adult’s start in life. For this to happen, however, the parties involved must be aware of the option. Read more… (Eszter Hegedüs)
The situation of foster parents and kinship carers
Recently, the term foster parent has become a buzzword in the news, but according to the latest data from 2021 (KSH data table on foster parents), 5863 foster parents have a child protection license in Hungary, of which 5379 have fostered at least 1 child in state care, which is a very good proportion compared to the few problematic cases. These persons are employed as foster parents, regulated by a specific government decree, and are remunerated for their work. The basic salary of a foster parent is at least 30% of the current minimum wage, which is paid even if no child or young adult is placed in the household. In addition to this, each foster carer is entitled to at least 20% of the statutory minimum wage, which is an additional payment, and an additional payment of at least 7% of the statutory minimum wage for children with special needs (which cease to be assessed when the child reaches the age of majority), except in the case of GYED. In addition, the foster carer is entitled to a childcare allowance – the legal regulation of which changed at the beginning of 2023 – which must be used to meet the child’s needs (food, schooling, health care, etc.) and to maintain the foster carer’s accommodation, as well as the family allowance for the child.
In contrast, the legal institution of kinship care in Hungary, regulated in Sections 4:187-189 of the Civil Code – although the two are similar in that they are intended to provide for the temporary upbringing of the child outside his or her own family – has a different structure, since the state presence is much less significant here, the order to take the child into care is made only by a decision of the guardianship authority, and the kinship carer who takes the child into care cannot claim remuneration for his or her work, nor does he or she receive any special benefits to support and educate the child in this case.
To sum up, this means that a kinship carer can take on this task responsibly, and this form of placement will be in the best interests of the child, if the financial situation of the person concerned allows the family to raise, care for, educate and possibly treat the child in difficulty at their own expense.
The relative foster parent
Compared to the situation described above, the situation of the relative foster parent is special. The above-mentioned Government Decree defines what is colloquially referred to as relative foster care, which is the definition of the child’s “relatives under the Civil Code (Section 8:1 § (1) 2 of the Civil Code), a person who would take care of the child, to whom the child is attached, but who can only take care of the child as a foster parent without endangering his or her own family and the child’s financial situation”.
In this case, it is possible – and justified – to deviate from the rules on the age difference between the child and the foster parent, as well as from the qualification requirements for becoming a foster parent. The legislator’s intention was therefore to ensure that the child would not be removed from the ties of his/her biological family in the absence of financial conditions, as it made it possible for a relative to become a foster parent with far more lenient conditions. In this case, the only requirements to be met are that the foster relative must be at least twenty-four years of age, have no criminal record and be able to act, and must pass an aptitude test, which does not, however, raise the bar too high. It should be stressed that there is no obligation for a foster relative to obtain a qualification. In other respects, the legal relationship of a foster relative is governed by the same rules and benefits as the general provisions from the moment of becoming a foster parent, with the exception of the rules on substantive law mentioned above.
Similarities and differences between the two types of child care
Among the similarities between the two legal instruments, it should be noted that neither of them is intended to change the family status of the child, so that the child returns to his or her own family when he or she leaves these arrangements, except for adoption, in accordance with the basic rule and the basic purpose of the instrument.
The difference is in the legal representation of the child, since, in the case of kinship care, the guardianship authority appoints the kinship carer as a guardian, while the legal representative of the child in the care of a foster parent is, as a rule, a so-called child protection guardian, who belongs to a network operated by the National Child Protection Service. In this case, the foster parent can only apply for the so-called “shared guardianship” to be able to participate in certain aspects of the child’s legal representation.
The most significant difference is that the kinship guardian – under the benefit rules mentioned earlier – does the same, and even more work at his or her own expense that a relative foster parent does for a fee, not to mention the additional benefits related to the cumulatively disadvantaged status of children long-term foster care, such as free school meals, scholarship programmes and other advantages.
Kinship care only confers disadvantaged status if the child is actually at a disadvantage. As a result, while fostering of a subsidiary nature does not result in a disadvantage in the child’s personal circumstances, it creates a more favorable situation in the child’s living conditions and in the financial circumstances of the child and the family compared to foster care. This is illustrated by the fact that if a child ceases to be a foster child at the age of majority and has been fostered in the care for at least three years, he or she may be entitled to a home support allowance, which can be a great help in becoming an adult, whereas the same is not possible with kinship care.
The practical problem of subsidiarity
Article 7(1) of the law on child protection and guardianship administration (Gyvt.) states that children may be separated from their parents or other relatives only in their own interests and prohibits separation for purely financial reasons. It follows that efforts should be made to ensure that, where this is possible, the child is placed with his or her parents or, where this is not possible, with other relatives, even in the absence of financial conditions.
The legal institution of relative foster care, although subsidiary, should be given priority over foster care by a family unknown to the child, or other residential care, if temporary placement with another parent or third party relative, is not possible, on the basis of the above.
I make the assumption, which is regular in practice and absolutely reasonable in view of the life situations, that the first thought that occurs to a relative when a parent or guardian approaches him or her to foster a child of a relative is that the relative in question does not have adequate financial means to raise the child without endangering his or her own or his or her family’s livelihood. As a rule, this is the reason why the parent is unable to identify a suitable person to take the child into his or her care. In the case of children who cannot be declared adoptable, this often results in many years in child protection care, as confirmed by a study on the practice of guardianship offices (Cseh-Sáfrány, 2021).
The other case is when the relative agrees to take the child into the family, fearing that the child will be placed in a strange place, even if he or she can only provide very limited financial conditions, around the minimum subsistence level.
As explained above, the mentioned Government Decree provides for the possibility of a relative of a child becoming a relative foster parent if his or her financial situation is the only obstacle to taking care of the child, but no regulation provides for the obligation to inform the relative about this opportunity, so that the persons involved in the situation in question are often deprived of this alternative. In the case of a child who cannot be fostered by a relative, this could ensure that the requirement in the Gyvt. that there must be no financial grounds for separation from relatives is repeatedly met.
The practical problem could be avoided by introducing a regulation on the guardianship procedure, which stipulates that if, before or during the foster care procedure, the guardianship authority becomes aware of a person to whom the child is related and who would take care of the child, but is unable to do so due to financial circumstances, the relative must be informed about the possibility, conditions and procedure of becoming a foster parent, as well as the contact details of foster networks operating in the area. I also consider this regulation to be justified, taking into account the best interests of the child, in cases where the child is taken into care or fostered by a relative whose monthly income and financial situation can be defined as being below a certain minimum.
Summary
The present research therefore shows that there are cases where the child is not placed with relatives because the legal institution of relative foster care is not commonly known in everyday life and the parties involved are not aware of it during the guardianship proceedings. This legal institution, as described above, creates appropriate financial conditions for the family taking the child into care, but does not result in genuine unqualified foster parents, since a person who is not qualified cannot take care of a child who is not a relative of his or hers. The situation of the child placed in this way is also easier to monitor by the authorities, child protection services or foster networks, which is in the child’s best interests, as the child can receive appropriate and professional help more quickly in a problematic situation, and psychological support from the foster network, while the foster parent can also receive direct support from the fostering advisors of the network. In this type of placement, the child can also benefit from additional advantages provided by the State to help him or her escape from his or her disadvantaged social situation.
The legal institution of foster care by a relative can, if properly regulated, create the possibility in many individual cases for a child to be brought up by his or her family until one of the parents is able to take him or her back, or even permanently, since fostering can be maintained until the child becomes independent, in which case it can also provide a post-foster status or financial support for the young adult’s start in life. For this to happen, however, the parties involved must be aware of the option.
I do not claim that there is a problem with the child’s care as a form of kinship care, as it is known and proven to go well over the years, and if the financial circumstances are suitable for the child in the short and long term, it relieves the burden on the foster system.
Summarizing these observations, I believe that the proposal I have drafted would strike the right balance between the two legal institutions, as it would not affect the subsidiary nature of fostering but would emphasize placement with a relative foster parent over needing a third party foster parent, or even a foster home.
Author: Eszter Hegedüs, law student, University of Debrecen, Faculty of Law
List of sources:
Cseh Gergely – Sáfrány Laura: A rendszeresen előforduló gyermekvédelmi hatósági intézkedésekről a miskolci járási gyámhivatal gyakorlatában (CSJ, 2021/3.)
Repponi Felícia Laura: Az alacsony foglalkoztatottság jelenségének és a gyermekek hátrányos helyzetének néhány kapcsolódási pontja (GI, 2020/1-2.)