Protecting Children Should Not Have to Wait Until a Serious Accident Occurs

In an article published by Delfi on 19 October 2026, prosecutor Maarja Gustavson raises an important question: are decisions necessary to protect children sometimes made too late?

As a lawyer specialising in family law, I must acknowledge that sometimes they are. In practice, there are situations where a child's unsafe living environment has been known for a considerable period, the family has repeatedly received attention from child protection services, and various support measures have been implemented, yet no meaningful improvement has followed. Only after a serious accident or another harmful event does the question arise whether the child should have been removed from the family earlier or the parent's custody rights should have been restricted.

However, it is important to understand why such decisions are so difficult. Under Estonian law, family autonomy enjoys strong protection, and state interference in the relationship between a parent and a child must be justified and proportionate. This is not merely a matter of officials being cautious or wishing to give parents repeated opportunities. It is a principle arising from the Constitution and international legal instruments.

Nevertheless, family autonomy cannot mean that children's rights and safety are overshadowed by parental rights.

Family Autonomy Is Not Absolute

Under § 27 of the Constitution of the Republic of Estonia, the family is under the protection of the state, and parents have both the right and the duty to raise and care for their children. Section 26 of the Constitution also protects the inviolability of private and family life.

These provisions establish the principle that the state must not interfere unjustifiably in family matters or take over decisions concerning how children should be raised. Parents must have the freedom to organise their family life according to their own beliefs, values and parenting principles.

Consequently, the state cannot intervene merely because an official believes that a parent could raise a child better or that another family might offer more favourable living conditions.

Section 7 of the Estonian Child Protection Act likewise establishes that the family is the natural environment for a child's development and growth, and that the primary responsibility for ensuring the child's rights and well-being rests with the parent.

However, the Constitution does not protect parental rights alone. A child is also an independent holder of fundamental rights, including the rights to life, health, safety and development. A parent's right to raise their child does not entitle them to endanger the child's well-being.

Decisions concerning child protection must therefore strike a balance between two important principles: the parent's right to respect for family life and the child's right to a safe living environment.

When these rights come into conflict, family autonomy cannot serve as a justification for leaving a child without protection.

Why Should Removing a Child from Their Family Be a Last Resort?

Under § 134 of the Estonian Family Law Act, a court must take the necessary measures to protect a child if the child's physical, mental or emotional well-being is endangered, for example through the abuse of parental custody rights, neglect or a parent's inability to fulfil their obligations, and the parents are unwilling or unable to prevent the danger.

Importantly, the law does not prescribe removing a child from their family or completely withdrawing parental custody rights as the first response.

On the contrary, under § 135 of the Family Law Act, a court may separate a child from their parents only if the risk of harm to the child's interests cannot be prevented through other supportive measures. The complete withdrawal of parental custody rights is permitted where other measures have proved unsuccessful or there is reason to believe that they would be insufficient to prevent the danger.

This legal framework reflects the principle of proportionality. Wherever possible, the state must favour measures that protect the child while interfering less extensively with family life.

Such measures may include parental counselling, the appointment of a support person, parenting skills training, the imposition of specific obligations or restrictions on parental custody rights only to the extent necessary.

In general, this is a justified approach. Separating children from their parents can be extremely traumatic and may have lasting consequences for their emotional development and sense of security.

Moreover, inadequate parenting skills or difficult social circumstances do not automatically mean that a parent is incapable of raising their child with appropriate support.

The problem arises, however, when providing support becomes an end in itself.

A Child Cannot Wait Indefinitely for a Parent to Change

In the cases described in the original Delfi article, the families were already known to child protection services and support persons had been assigned to the parents. Nevertheless, the children ended up in situations that endangered their lives and health.

This highlights the need to distinguish between two fundamentally different questions:

Has the parent been helped? Has that made the child's living environment safer?

These are not the same thing.

The fact that a parent attends counselling, communicates with a child protection officer or promises to change their behaviour does not necessarily mean that the child's well-being is secured.

A parent's willingness to cooperate cannot be assessed solely based on promises or participation in support services. The decisive question must be whether the child's circumstances have genuinely improved.

A child's development continues every day. While an adult may be given months or even years to change their behaviour, that same period may represent a significant part of a child's childhood.

This is particularly important for very young children, who depend entirely on their parents for supervision and care and have little or no ability to protect themselves from danger.

We must therefore ask how long it is reasonable to continue existing support measures when it is already apparent that they are failing to ensure the child's safety.

In my view, the principle of prioritising supportive measures must not become a justification for indefinitely postponing a necessary decision.

The Law Does Not Require Authorities to Wait Until a Child Is Injured

It is important to emphasise that Estonian law does not require child protection authorities or courts to wait until a child has suffered serious harm.

Section 134 of the Family Law Act allows intervention when a child's well-being is endangered. In other words, the harmful consequences do not have to have materialised.

Similarly, § 135(2) of the Family Law Act allows parental custody rights to be withdrawn completely where there is reason to believe that less restrictive measures would be insufficient to protect the child.

Where the danger is immediate, § 33 of the Child Protection Act permits a child to be temporarily separated from their family before a court order is obtained. Under the statutory conditions, such temporary separation may last up to 72 hours, during which the need for further judicial intervention must be assessed.

The legislator has therefore established mechanisms for both preventive and urgent intervention.

The question is not merely what legal power and options the authorities have, but how those powers are exercised in practice.

Naturally, not every accident can be predicted. The mere fact that a child has been involved in an accident does not automatically establish parental negligence or justify restricting parental custody rights.

However, where a parent's inability to provide adequate supervision has previously become apparent, the parent has received repeated guidance, and similar dangerous situations continue to occur, there must be a substantive assessment of whether the existing measures are sufficient.

Protecting a child must not depend on waiting for a foreseeable risk to become an actual injury.

The Best Interests of the Child Must Be More Than a Formal Principle

Article 3 of the United Nations Convention on the Rights of the Child and § 5 of the Estonian Child Protection Act establish that the best interests of the child must be a primary consideration in all decisions concerning children.

However, referring to the best interests of the child cannot replace a genuine assessment of the circumstances.

Generally, it is in a child's interests to grow up within their family and maintain relationships with their parents. Equally important, however, is the child's right to a safe living environment, adequate care and protection.

Therefore, it cannot automatically be assumed that leaving a child within their family will always be in their best interests.

Nor can the opposite assumption be made removing a child from a family experiencing difficulties does not necessarily guarantee a better future.

Each case requires an individual assessment of the specific circumstances, the child's needs and the risks involved, as well as whether the available measures can effectively mitigate those risks.

This is precisely where one of the most difficult tensions between family autonomy and child protection arises.

On the one hand, the state must avoid unjustified interference in family life. On the other hand, it cannot abandon its duty to protect children's rights simply because intervention may be unpleasant or difficult for the parent.

We Need Timely Decisions, Not Merely More Drastic Ones

The question raised in the article cannot be answered simply by proposing that parental custody rights should be withdrawn more frequently.

Such an approach would be inconsistent with both family autonomy and the principle of protecting the child's best interests.

What is needed instead is a more critical assessment of whether the assistance provided to children and parents is achieving its intended purpose.

If the support is not working, it is not enough to simply continue providing it or to accept yet another promise that the situation will improve.

The state must also ensure that less restrictive support measures are genuinely accessible. The principle of supporting parents cannot function effectively if the necessary services are unavailable or subject to unreasonably long waiting lists.

Protecting family autonomy is essential in a democratic society governed by the rule of law. However, that protection is not absolute. Its limits are reached where a parent's actions or omissions endanger the well-being of a child.

Giving a parent another chance must not mean that a child must pay for that chance with their safety.

Removing a child from their family must remain a measure of last resort. But being a last resort must not mean being a measure taken too late.