August 13, 2025
By Sophie Girardini
In B.T. and B.K.Cs. v. Hungary, the ECtHR addressed the removal of a Romani child from his mother just three days after birth. The Court found a violation of Article 8 of the Convention due to the flawed decision-making process of the Hungarian authorities in removing the child from family custody. However, it deemed the Article 14 discrimination claim inadmissible as ‘manifestly ill-founded’, citing insufficient evidence of an organized racist policy or intentional racial motivation. The ruling further underscores the undue evidentiary burden placed on applicants pursuing racial discrimination claims before the ECtHR and overlooks the potential role of stereotyping in the national authorities’ assessment of the applicants’ parental abilities.
In early May 2014 (the parties dispute the exact date), the first applicant, B.T., a mother of Roma origin, was not allowed to take her newborn son B.K.Cs., the second applicant, home when she wanted to leave the hospital three days after giving birth.
The child was retained in the hospital on a recommendation from the child welfare services, which had relied on a report filed by a local health visitor during B.T.’s pregnancy. This report recommended the separation on the grounds that, inter alia, all of B.T.’s other children had been placed in foster care, and that she had been uncooperative with child protection services. It also noted that B.T. had an ‘unplanned’ pregnancy with her sixth child, was living alone, received social benefits, smoked during pregnancy, and failed to attend regular medical check-ups. Neither B.T. nor her partner, the child’s father, had been informed about this report nor about the existence of any formal decision on which the separation was based.
Allegedly only one day later, on 7 May 2014, the district guardianship authority suspended the parental rights of both B.T. and the child’s father and placed the child in temporary foster care. Drawing from the report, the district guardianship authority concluded that B.T. had an “irresponsible lifestyle”, three of her children had been committed to State care because of her “living conditions”, and “the baby’s physical, mental and emotional development would be seriously endangered in his family environment” (§11).
B.T. appealed the decision of the district guardianship authority, maintaining that the statements about her irresponsible lifestyle and her living conditions were based on an outdated situation and that a disproportionate number of Romani children were taken into temporary foster care in the area. However, the county guardianship authority, acting as an appeal body, upheld the decision.
B.T. had the guardianship decision reviewed by the Administrative and Labour Court, appealed to the Kúria (Hungarian Supreme Court), and lodged a constitutional complaint, all of which ultimately upheld the child’s separation from his family. According to the courts, the measure had been proportionate and was decided in the best interests of the child. Ultimately, on 25 March 2016 the district guardianship authority decided to return the child to his parents due to their improved living conditions, their cooperation with child protection services, their regular contact with their children in foster care and regular income. The second applicant was two years old at this point.
The ECtHR found a violation of Article 8, relying on two main grounds. The Court first recalled that the removal of a child from parental custody, particularly in the context of removal at birth, requires “extraordinarily compelling reasons” (§72). Secondly, it assessed a diligent balancing of competing interests by the national authorities.
Regarding the first issue, the Court did not consider that the reasons set out in the health visitor’s report, which were later relied on by the domestic decision makers, amounted to sufficient extraordinarily compelling reasons. However, it recognised that B.T.’s smoking, her missed prenatal check-ups and the failure to provide her older children with adequate care may have been relevant considerations.
The Court then turned to assessing whether the authorities had conducted a diligent balancing of competing interests, giving primary importance to the best interests of the child. It highlighted that there had been no indication that the authorities had ever “carried out any evaluation of whether less stringent measures […] would have sufficed” (§80). For example, the authorities did not sufficiently consider that the first applicant consistently reaffirmed her intention to resolve the situation concerning her older children, and moreover, took steps to that end by inter alia improving her living conditions. Furthermore, the ECtHR believed there was no real risk of life-threatening or imminent harm of parental neglect in the present case (§87). Finally, the Court considered the parents had not been sufficiently involved in the decision-making process and lacked access to information. All in all, the Court saw no attempt by the Hungarian authorities to carry out a genuine balancing between the interests of the child and those of his parents andconcluded that the decision‑making process at the domestic level of separating B.T. from her child was seriously flawed.
The Court found the Article 14 ECHR claim to be inadmissible. While the Court mentioned the group vulnerability of Roma, it considered the submitted evidence was “not sufficiently strong” to establish “an organised [racist] policy or that the conduct of hospital staff or the domestic authorities was intentionally racially motivated” (emphasis added, §112) referring mutatis mutandis to V.C. v. Slovakia. Notwithstanding statistical evidence of over-representation of Romani children in institutional care in Hungary, the Court considered that such evidence was not decisive here, as the child “had never been in institutional care but instead in foster care” (§111). As such, the Court concluded that the Article 14 complaint was ‘manifestly ill-founded’.
In his Partly Concurring, Partly Dissenting Opinion Judge Derenčinović believed the lawfulness of the separation under Article 8 should have been examined more thoroughly, as the high threshold in Hungarian domestic law needed for the separation was not met in the present case. Further, he argued Article 14 should have been admissible weighing in the statistics on discrimination in the Hungarian child welfare system, even though the child had been placed in foster care. The Court’s analysis should have been more far-reaching, considering “the fact that the Roma community has been disproportionately affected by the application of the radical measure of temporary removal of the child from parental care” (§5).
While Judge Seibert-Fohr agreed with the majority’s finding of a violation of Article 8, she disagreed with the high evidentiary standard for Article 14 set by the majority. She believed it was inappropriate, and also in sharp conflict with the Court’s established case law, to require the existence of an organised racial policy or an intentional racial motivation of the domestic authorities in the present case. She found the reference to V.C. v. Slovakia “if not misleading, at any rate inappropriate in the present context” (§125) as in that case the Court ultimately did not find it necessary to separately examine Article 14. Moreover, in V.C. the ECtHR had explicitly considered serious shortcomings liable to particularly affect members of the Roma community relevant under Article 14.
The Court’s assessment under Article 8 is notably thorough. The Court highlights the procedural flaws of the present case and underscores the authorities’ obligation to support “persons in difficulty” (§85), confirming that family assistance for the first applicant during her pregnancy had been inadequate.
By contrast, under Art 14, B.T. and B.K.Cs. clearly illustrates how the Court imposes a requirement of racial intent at the admissibility stage. The ECtHR, effectively required proof of racial intent on the part of the Hungarian child welfare authorities or the existence of an organised racial policy in order to find the discrimination claim admissible. The Court’s reliance on V.C. v Slovakia to impute such a requirement was especially unfortunate. V.C. was a case widely criticised for its failure to separately assess Article 14, with one scholar asking what additional evidence could ever be required from a victim of such serious human rights violations in order to prove discrimination (see here) as well as dissenting Judge Mijovic calling sterilization with no medical necessity the ‘strongest form of discrimination’ (see here). While some believe the Court was ‘hiding’ its racial discrimination analysis under Art 8 in V.C. (see here), this did not happen in the present case.
In B.T. and B.K.Cs., the applicants produced statistical evidence to show that a disproportionate number of Roma children were placed in institutional care in Hungary, which should have been enough to find the discrimination claim admissible (see also Committee on the Rights of the Child Concluding Observations from 2006 and 2014). Regardless of whether the child in this specific case was placed in foster or institutional care, the evidence shows a broader pattern of over-representation of Romani children strongly pointing to a structurally discriminatory issue (cf. D.H. v. Czech Republic). Yet, by dismissing the statistical evidence and narrowly focusing on proving intent, the Court failed to analyse a possible stereotyped view of the mother’s parental abilities in the decision-making process.
A careful assessment of compounded stereotypes would have been especially beneficial. Compounded stereotypes are stereotypes that build on multiple layers of overlapping stereotypes, a notion rooted in intersectionality. Romani women, for example, are not only stereotyped due to their ethnicity and gender, but might face additional compounding stereotypes. By avoiding commenting on the statements of the Hungarian authorities with regard to B.T.’s ‘irresponsible lifestyle’ the Court failed to discursively name possible underlying stereotypes of her parental abilities. It did not assess whether those statements were appropriate or whether there was an undue focus on B.T.’s socio-economic status, her gender intersecting with her Roma identity as well as her family situation (she considered a single mother due to her partner’s distant work place). Those factors were similarly not depicted in the Court’s vulnerability assessment. Instead, the Court concluded there was no racial bias or stereotypes deducible from the statements of the Hungarian authorities and stated it cannot “discern any particular statement, direct or implied, related to her ethnic origin” (§110). According to the Court there was no evidence “the second applicant had been taken into care solely due to his Roma origin” (§110) as the placement was motivated by “what the authorities considered to have been in the child’s best interests at the relevant time” (§109).
However, if, as the Court rightly found, no “in-depth and careful assessment” on “both the short-term and long-term aspects affecting the child” had been undertaken and the authorities “were instead satisfied with the mother’s previous conduct” (§88) – on what grounds was the separation based on then, if not on a preconceived notion of the mother’s parenting abilities? A closer reading suggests that stereotyped views of what constitutes a ‘good mother’ or proper parenting may have shaped how authorities interpreted the child’s best interests in the present case.
This is not the first case in front of the ECtHR in which compounded stereotypes of Romani women appear in the national authorities’ reasoning before the Court. After the well-known sterilisation case law, stereotypes about Romani women – such as being ‘bad mothers’, likely to ‘kidnap children’, or raising children in a ‘criminal environment’ – had inter alia surfaced in Terna v. Italy, which concerned a Romani girl denied contact with her grandmother. Even though the Court recognised that the statements of the child’s guardian reflected prejudices, “in themselves they provided an insufficient basis to conclude that the [Italian] courts’ decisions had been motivated by the child’s and her family’s ethnic origin” (§ 90). The Court found no violation of Article 14 ECHR (see here).
In my opinion, it is time that the Court addresses compounded stereotypes on Romani motherhood. It should have done so in the present case, as the applicants claimed that “the health visitor had made a number of hostile comments concerning the first applicant as a result of her Roma origin” and alleged that “the head of the child protection authority was known among the local Roma community to have made it clear that Romani children in Kesznyéten ‘would not be allowed home’”(§101). In light of this alledged racial bias, compounding factors should have been assessed thoroughly.
The Hungarian government explicitly argued the child welfare services had noted the family’s poor living conditions “not due to financial deprivation, but rather the applicant’s inability or unwillingness to provide proper care for her children” (§67). This statement alludes to a stereotypical assumption that persons in socio-economic disadvantage or receiving social benefits are responsible for their own destitution as poor parents are often stereotyped as ‘indifferent to their children’s health and education, dishonest and undeserving’. (see here) Per the Hungarian statements: “The father’s absence and the applicant’s employment were also assessed in terms of their relevance to the applicant’s commitment to responsible parenting” (§67). Here again underlying ‘harmful stereotypes about persons living in poverty which portray them as lazy, irresponsible or neglectful of their children’ (see here) seem to shine through and should have been addressed by the Court.
Especially the references to B.T.’s ‘unplanned’ sixth pregnancy as well as a further statement that she had been ‘hysterical about raising her children at home’ (emphasis added; see communicated case while not mentioned in the judgment) seem to portray an additional gender aspect of B.T.’s stereotyped parental abilities. Often, we find an ‘assumption that poverty is caused by [poor women’s] sexual irresponsibility or that poor women are unfit to care for children’ (see here). In combination with the alleged statements on B.T.’s Roma identity, a compounded stereotyping of racialised mothers as ‘overly reliant on public assistance’ or ‘lacking emotional capacity’ seems relevant in the present case (see for example here).
From the limited case facts it appears that the district guardianship authority had assumed B.T.’s ‘irresponsible lifestyle’ inter alia on the basis of her economic situation and living conditions, accompanied by the fact that she was living alone, B.K.Cs. was her sixth child and ‘unplanned’. This caused other factors such as her smoking, missed medical checkups and the vague knowledge (§8) that her other children had been in social care suddenly to reach the high threshold necessary for separation in Hungarian law. More updated information such as the fact that two of her children had already been returned, B.T.’s attendance in a working program, and her improved financial and housing situation were not sufficiently weighed in. The actual harm to the child’s development resulting from the early separation from his mother immediately after birth – a crucial stage in his life – was no longer the centre of the authorities’ analysis.
It is especially problematic that the ECtHR did not recognise that discrimination in Romani child removal cases is deeply connected to stereotyped notions of Romani women as ‘unfit caregivers’. Such stereotypes obscure the structural and intersectional discrimination Romani women face in custody proceedings and serve to normalise the state’s failure to address their disadvantage. Confronting and dismantling these compounded stereotypes is essential to ensure that stereotypes do not persist as mechanisms for justifying human rights violations at the Court. The ECtHR should have more carefully examined the structural overrepresentation of Romani children in state care in Hungary, accepting the provided statistical evidence to, at the very least, find the discrimination claim admissible. This becomes especially relevant in light of recent legal developments in Hungary (see here).
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