Presentation by Rachel Hodgkin on the panorama of the international norms governing the rights of children in care.

3rd Thematic Workshop on the role of National Human Rights Structures in the Protection and Promotion of the Rights of Children in Care

“The child, for the full and harmonious development of his or her personality should

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Preamble of the Convention on the Rights of the Child

grow up in a family environment, in an atmosphere of happiness, love and understanding…

be fully prepared to live an individual life in society…

be brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.”

The Convention on the Rights of the Child

Article 7

Article 9

Article 18

The child’s right “to know and be cared for by his or her parents”

Child’s right “not to be separated from his or her parents against their will, except when competent authorities subject to judicial review determine… that such separation is necessary for the best interests of the child”

Recognition that both parents have common responsibilities and “the best interests of the child will be their basic concern.”

The Convention on the Rights of the Child

Article 19

Article 20

Article 25

Protection of child from all forms of physical or mental ill-treatment while in the care of parents or any other person Special protection for children deprived of family environment and “when considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” Right to periodic review for all children in alternative care

Adopted by the UN General Assembly December 2009

Guidelines for the Alternative Care of Children

The Committee on the Rights of the Child: General Comments

No. 2.

No. 6.

No. 8.

No. 9.

The role of independent national human rights institutions in the promotion and protection of the rights of the child

Treatment of unaccompanied and separated children outside their country of origin The right of the child to protection from corporal punishment and other inhuman and degrading treatment or punishment

The rights of children with disabilities

The Committee on the Rights of the Child: General Comments (cont)

No. 10.

No. 12.

No. 13.

Concluding observations

Children’s rights in juvenile justice

The right of the child to be heard

Article 19: the right of the child to freedom from all forms of violence

The Committee’s recommendations following examination of each States’ periodic reports on measures to implement the Convention.

Aim: “to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived or their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.” (Article 1)

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The Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Regular visits made by the Sub-Committee on the Prevention of Torture include social care institutions Ratifying states must also establish “independent national preventive mechanisms” with powers to inspect the treatment of people deprived of liberty, make recommendations and comment on proposed legislation.

Ratified by: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, FYR Macedonia, Georgia, Germany, Liechtenstein, Luxembourg, Malta, Montenegro, Poland, Romania, Serbia, Slovenia, Spain, Sweden, Ukraine and the United Kingdom.

Some other relevant UN documents

Guidelines for the prevention of juvenile delinquency (1990) Convention on the rights of persons with disabilities (2006) Report of the Secretary General’s Study on Violence against Children (2006) Joint report of the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Representative of the Secretary General on Violence against children. (2011)

Council of Europe – binding rights

Article 3

Article 5

Article 6

Article 8

Article 14

Article 2, Protocol 1

Possible action: Individual victim application to court

Right to protection from inhuman and degrading treatment

No deprivation of liberty without due process

Right to fair hearings

Right to respect for private and family life

No discrimination in rights

Right to education

Council of Europe – binding rights

The right to benefit from social welfare services

The right of persons with disabilities to independence, social integration and participation in the life of the community

The right of the family to social, legal and economic protection

The right of children and young persons to social, legal and economic protection

Article 14

Article 15

Article 16

Article 17

Possible action: Collective complaint (available to Belgium, Croatia, Cyprus, France, Georgia, Greece, Ireland, Italy, Netherlands, Norway, Portugal and Sweden)

Council of Europe – recommendations and standards

Council of Europe Guaranteeing the respect for the rights of children living in residential institution – part of its “Building a Europe for and with children” programme (launched in 2006) The guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (adopted 17 Nov 2010) Child abuse in institutions: ensuring full protection of the victims Council of Europe Parliamentary Assembly Recommendation (2010) (with explanatory report by the rapporteur)

Council of Europe – recommendations and standards

Children’s participation in family and social life Council of Europe Committee of Ministers Recommendation (1998) Foster Families Council of Europe Committee of Ministers Recommendation (1987) Council of Europe booklets: The rights of children at risk and in care and for children in care themselves: Children and young people in care: Discover your rights!

European Union

EU Agenda for the Rights of the Child (Feb 2011) Implementation of the European Union’s Strategy on the Rights of the ChildState of Play (November 2009) Also presented at the EU Parliament in 2007: Quality4Children Standards for out-of-home child care in Europe (developed by NGOs: SOS, FICE & IFCO)

The importance of the child’s family

Placement must be an exceptional measure taken with the child’s best interests and following a multi-disciplinary assessment

Placement must not last longer than necessary and must have as its primary objective the best interests of the child and his or her social integration or reintegration as soon as possible

Where possible, preventive support measures for children and families, tailored to their specific needs, should be implemented. The child’s family should be involved in the planning and organisation of the placement and receive the necessary support to permit the harmonious reintegration of the child in the family and in society.”

“It is universally acknowledged that the family is the best place for a child’s development and well-being…

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(Council of Europe: Guaranteeing respect for the rights of children living in institutions)

Poverty or disability never grounds for care

“Financial and material poverty, or conditions directly and uniquely imputable to such poverty, should never be the only justification for the removal of a child from parental care, for receiving a child into alternative care, or for preventing his/her reintegration, but should be seen as a signal for the need to provide appropriate support to the family.”

(UN Guidelines for the Alternative Care of Children) “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.”

(Article 23(4) of the Convention on the Rights of Persons with Disabilities)

Effective procedures for abused children

“Children voiced their lack of confidence in existing services and the fear that these may disclose children’s privacy and put them at risk of further harassment and reprisals… “It is urgent to develop effective, child sensitive counselling, reporting and complaint mechanisms, universally available and accessible by all children, without discrimination of any kind… Children need to feel reassured that they will be listened to in an ethical, safe and confidential manner, that their testimonies will not be disclosed or misused, and that their protection will not be put at risk.. Children must be confident that no information will be shared without their consent and their confidentiality will not be breached, unless there is a well-founded belief that doing so would be necessary to protect them or others from serious harm.”

(Joint report of the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Representative of the Secretary General on Violence against Children)

Best interests of the child

Convention on the Rights of the Child

Article 3

Article 9

Article 20

“In all actions of concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures that such separation is necessary for the best interests of the child.” “A child temporarily or permanently deprived of his or her family environment or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance by the State.”

Children’s rights to be consulted from the beginning

In all investigations of suspected harm the responsible authority must:

(Section 53, Children Act 2004, England and Wales)

“… so far as is reasonably practicable and consistent with the child’s welfare –

ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; andgive due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.”

(a)

(b)

Children’s participation rights in proceedings“The right to be heard is a right of the child, not a duty on the child. Children should be provided with all necessary information on how effectively to use the right to be heard. However, it should be explained to them that their right to be heard and to have their views taken into consideration may not necessarily determine the final decision... “The reference made to the term “capable of forming his or her own views” should not be seen as a limitation, but rather a duty on the authorities to fully assess this capacity. Instead of assuming too easily that the child is unable to form an opinion, states should presume that a child has in fact this capacity. It is not up to the child to prove this.” (Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice)

Characteristics of people in institutions

“In total institutions there is a basic split between a large managed group, conveniently called inmates, and a small supervisory staff… Each grouping tends to conceive of the other in terms of narrow hostile stereotypes, staff often seeing inmates as bitter, secretive, and untrustworthy, while inmates often see staff as condescending, highhanded, and mean. Staff tends to feel superior and righteous; inmates tend, in some ways at least, to feel inferior, weak, blameworthy, and guilty.”

(Asylums, Erving Goffman, 1961)

Characteristics of people in institutions

“Generally speaking, the risk of child abuse seems to be higher in “closed” systems, from tight-knit families to boarding schools and orphanages, independent of the institution in charge of running the latter, as power and proximity generate similar behaviour patterns which sometimes bring with them a greater risk of abuse. While relationships marked by a certain degree of dependence can be found in all institutions, some institutions are more exposed to them, as recent national evidence has shown…” (Explanatory memorandum by Ms Rupprecht, rapporteur, to Council of Europe Parliamentary Assembly Recommendation 1934 (2010) Child abuse in institutions: ensuring full protection of the victims.)

Laws to prohibit all inhuman and degrading treatment

“States are asked to ensure legislative protection by… defining as illegal and excluding certain practices with regard to the punishment of minors in institutions which are contrary to their rights and dignity.” (2010 Recommendation by the Council of Europe Parliamentary Assembly Child abuse in institutions: ensuring full protection of victims.)

Running away and forms of restraint

Children who run away from care:

Children who risk harm to people or property:

are they treated in any way as criminals (for example, can police arrest them)?do they have safe places to go?are they punished for running away?are they ever locked up as a result?are the reasons for their running away identified and remedied?

are staff trained in defusing these situations?were all alternatives to restraint exhausted?did the restraint use minimal force?are restraints that cause pain or humiliation prohibited in law?are all restraint episodes recorded and reviewed (including with the child)?

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Staffing in children’s homes

“Conditions inside the institution should be organised so as to ensure the child’s best possible, mental, emotional and physical development. Small, family-style living units should be encouraged. A diversified, competent, stable staff is important. Teams should be multi-disciplinary, have sufficient resources and comply wit a code of ethics describing standards of practice consistent with the UN Convention on the Rights of the Child”

(Council of Europe Guaranteeing respect for the rights of children living in residential institutions)

Right of siblings to stay together

“Siblings with existing bonds should in principle not be separated by placements in alternative care unless there is a clear risk of abuse or other justification in the best interests of the child. In any case, every effort should be made to enable siblings to maintain contact with each other, unless this is against their wishes or interests.” (UN Guidelines for the Alternative Care of Children)

“Children… have the right to be placed together with siblings” (Council of Europe Guaranteeing respect for the rights of children in living in residential institutions)

Right of siblings to stay together

“Warning signs [that this right is not being fully respected]:

(Quality4Children Standards for Out of Home Child Care in Europe)

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Siblings are separated.The reasons for separating siblings are neither justified nor in the best interests of the children.The care organisation does not have an adequate structure to care for siblings.Separated siblings have little or no contact.Caregivers have no information about the child’s siblings.”

Continuity in the child’s culture etc

“…When considering [alternative care] solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”

(Article 20, Convention on the Rights of the Child)

Continuity in the child’s culture etc

“Children should be allowed to satisfy the needs of their religious and spiritual life, including by receiving visits from a qualified representative of their religion, and to freely decide whether or not to participate in religious services, religious education or counselling. The child’s own religious background should be respected, and no child should be encouraged or persuaded to change his/her religion or belief during a care placement.”

(UN Guidelines for the Alternative Care of Children) “All children… have the right to respect for their ethnic, religious, cultural, social and religious background.”

(Council of Europe Guaranteeing respect for the rights of children in living in residential institutions)

Access to personal files

“The records on children should be complete, up to date, confidential and secure… [and]… could be made available to the child, as well as to parents or guardians, within the limits of the child’s right to confidentiality, as appropriate. Appropriate counselling should be provided before, during and after consultation of the record.”

(UN Guidelines for the Alternative Care of Children)

Access to personal files

“In the opinion of the Commission ‘the file provided a substitute record for the memories and experience of the parents of the child who is not in care’. It no doubt contained information concerning highly personal aspects of the applicant’s childhood, development and history and thus could constitute his principal source of information about his past and formative years. Consequently lack of access thereto did raise issues under Article 8... The Court agrees with the Commission. “The records contained in the file undoubtedly do relate to Mr Gaskin’s ‘private and family life’ in such a way that the question of his access thereto falls within the ambit of Article 8. In the Court’s opinion, persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development…Accordingly, the procedures followed failed to secure respect for Mr Gaskin’s private and family life as required by Article 8 of the Convention. There has therefore been a breach of that provision.” (Case of Gaskin v the United Kingdom, European Court of Human Rights judgement July 1989)

Foster care

“The use of residential care should be limited to cases where such a setting is specifically appropriate, necessary and constructive for the individual child concerned and in his/her best interests… In accordance with the predominant opinion of experts, alternative care for young children, especially those under the age of 3 years, should be provided in family-based settings. Exceptions to this principle may be warranted in order to prevent the separation of siblings and in cases where the placement is of an emergency nature or is for a predetermined and very limited duration, with planned family reintegration or other appropriate long-term care solution as its outcome.” (UN Guidelines for the Alternative Care of Children)

After care

“Statistics from Russia reveal that… every fifth orphan who leaves an orphanage develops a criminal career, every seventh becomes a prostitute and ten per cent of previous orphans commits suicide.” (Final report by B Gudbrandsson, Council of Europe Working group on Children in institutions: prevention and alternative care) “I know a lot of my friends in care that have been moved out at 16 into their flat and have been really happy – “yes, I’m out of care, I’m on my own now” – but then they mess up again because they’re on their own and then they start doing drugs because they’re on their own. I’m not saying they need to stay in care longer or anything. They just need more support becoming independent and going into a flat on their own.” (Young person in UK care, Children’s Rights Alliance for England, 2008)