보호 대상 아동의 원가정 분리와 사법적 통제 = Judicial Review of the Separation of Children in Need of Protection from Their Original Families

다국어 초록 (Multilingual Abstract)

Article 9(1) of the UN Convention on the Rights of the Child provides that a child shall not be separated from his or her parents against their will except in cases where special circumstances exist—such as parental abuse or neglect—and only when the competent authorities, subject to judicial review, determine in accordance with due process that such separation is necessary for the best interests of the child. Most European countries faithfully adhere to the spirit of the Convention, recognizing the separation of children from their original families as a measure of last resort. Accordingly, they have established procedural safeguards to prevent excessive separation and ensure periodic reviews aimed at the timely reunification of children with their original families. Nevertheless, the procedures and degree of judicial review applied to medium- or long-term separation measures and emergency separation measures vary across countries. In particular, compared to medium- or long-term separation measures, emergency separation measures tend to involve a broader recognition of administrative authority or a relaxation of judicial review.
In Japan, which has a child welfare and child abuse protection system similar to that of Korea, a system of prior judicial review has long been in place with respect to medium- and long-term separation measures. Unless consent is obtained from the holders of parental authority, such measures may be initiated only upon approval by the family court, and they are subject to periodic review every two years. By contrast, judicial review of emergency protection measures was introduced only after prolonged debate, through a legislative amendment in 2017. Even then, taking into account the urgent need to secure children’s safety and the insufficient institutional capacity of child guidance centers and courts, the initiation of temporary protection was left to the discretion of administrative authorities. Judicial approval by the family court was required only when it was necessary to continue temporary protection beyond two months.
However, following recommendations issued in 2019 by the UN Committee on the Rights of the Child, Japan revised its Child Welfare Act once again in 2022, introducing a system of ex post judicial review that requires an application for a temporary protection order to be filed with the family court within seven days of the initiation of temporary protection. Nevertheless, due to concerns regarding the increased administrative and judicial workload resulting from the new system, its implementation was repeatedly postponed and ultimately came into effect only on June 1, 2025.
In Korea, there do exist medium- or long-term and emergency separation measures subject to prior judicial review, such as victim protection orders and temporary protection orders under the Act on Special Cases Concerning the Punishment of Child Abuse Crimes, which are designed to separate abused children from abusive caregivers. However, in addition to these measures, administrative authorities are empowered to separate children from their original families without prior judicial review through other mechanisms, including medium- or long-term separation measures under Article 15(1) of the Child Welfare Act, emergency measures under Article 12 of the Act on Special Cases Concerning the Punishment of Child Abuse Crimes, and emergency temporary protection measures under Article 15(6) of the Child Welfare Act. In such cases, institutional arrangements for periodic review aimed at reunification with original families are also insufficiently developed. Accordingly, further research is required on how a system of judicial review concerning the separation of children in need of protection from their original families should be designed and implemented.