The ICCI “Our House” campaign “Non-Children Play” was a response to the Presidential Decree No. 18 “On additional measures for state protection of children in disadvantaged families“, adopted in Belarus in 2006. This normative act was supposed to be aimed exclusively at protecting the rights and legitimate interests of children and families in a difficult life situation. However, it became the reason for numerous removal of children from families for economic (e.g. for parents’ utility debts) and political reasons, and an instrument of revenge against parents who have an active civic position.
Protection of children’s rights and lawful interests is declared as one of the priorities of the state policy. The country ratified the Convention on the Rights of the Child (01.10.1990), as well as the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (23.01.2002) and the Optional Protocol on the involvement of children in armed conflict (12.12.2005). The Law on the Rights of the Child was adopted in 1993.
Nevertheless, the many years of experience of the “Non-Children Play” campaign have shown that children’s rights in Belarus are systematically violated by state authorities. And the situation with Decree 18 is only one aspect of the global problem. Based on the cases in which activists and human rights defenders «Our House» took an active part to restore the rights of children, the group of experts of the campaign formulated practical recommendations for the Belarusian authorities, which will help to remedy this situation.
General Recommendation:
Highlight the constitutional status of the child from the total number of articles of the Constitution on the rights and freedoms of citizens, combining the norms into a single normative legal act.
Recommendations in the field of children’s rights to a life in a family and decent living conditions:
1. Eliminate the practice of forcible removal of children from families without trial, as this violates the Constitution of the Republic of Belarus (art.32).
– In order to stop state arbitrariness in making decisions on the removal of children from their families, clarify in the legislation the concept of “inadequate performance by parents of their duty to raise and support children”;
– Clearly define what is meant by “other cases” of “failure to fulfil parental responsibilities” (the wording of Decree no. 18);
– Provide for the punishment of public officials for the unjustified/unjustified removal of a child from the family (biological or foster);
– Stop persecuting socially and politically active women and their children as a way of punishing their activism/political views;
– Ensure the parental rights of people with disabilities and introduce appropriate amendments preventing the removal of children from such parents into Article 116 of the Belarusian Constitution, the Law “On guarantees of social protection of orphans, children left without parental care, and persons from among orphans and children left without parental care” and other relevant laws.
2. Introduce a legal provision that will oblige State authorities to provide parents, at their request, with copies of all documents relating to the decision to remove a child from the family in order to ensure the right of parents to justice.
3. To improve the system of financing social services for families with children in difficult circumstances, including through the development of a transparent and equitable market for social services (simplification of the mechanism of social ordering).
4. At the legislative level, the conclusion of an agreement on the maintenance of minor children is a prerequisite for the divorce of spouses in the absence of a maintenance claim in court.
5. The institution of joint custody of children after divorce of parents shall be provided for in the legislation of the Republic of Belarus.
For orphans and children left without parental care:
1. Children whose parents are unknown should be able to enjoy the rights to survivor’s benefit.
Relevant changes should be made to Article 35 of the Law «On pension provision of the Republic of Belarus»;
2. Improving legislation on family arrangements for orphans and children deprived of parental care by eliminating the application of the principle of territoriality as an impediment to family organization, especially for orphans, Children deprived of parental care with psychophysical development.
3. Legislate foster care as a form of family arrangement for a child deprived of parental care and the conclusion with foster parents of a reimbursable agreement on the terms of the child’s upbringing. As a form of participation in upbringing, legislate to regulate the guest (adaptive) family.
4. To take effective measures to promote the universal development of family forms of placement of orphans, children deprived of parental care and to implement the planned plans for the maximum closure of orphanages.
5. Provide for liability, including criminal liability, for officials who violate the procedure or deadlines for providing information about a minor in need of placement in a family (for adoption), under guardianship (guardianship) or in a foster family, or to an institution for orphans or children left without parental care, or to provide knowingly false information about such a minor.
In the field of juvenile justice:
1. Introduce into the Criminal Code of the Republic of Belarus the imposition of a conditional sentence for juveniles who have committed criminal offences;
2. Provide for voluntary and confidential reconciliation between the offender and the victim (mediation) at the legislative level, with a view to improving the mechanism for exempting juvenile offenders from criminal liability;
3. Establish specialized juvenile panels;
4. Specify the list of «living conditions and upbringing» to be established in each criminal case of juvenile offences;
5. Prohibit the involvement of minors in the operational and investigative activities;
6. Increase the punishment and responsibility of investigative bodies for mass violations of children’s rights during the pre-trial stages, the unjustified use of the most severe preventive measure (detention), torture, physical and psychological violence, and the fact that often evidence of the guilt of a minor is obtained illegally and in violation of Belarusian law;
7. Make it an offence for investigating and other authorities not to provide medical, psychological or other assistance, including in cases of suicide by minors in places of detention.
In the field of the right to education and the prohibition of forced labour:
1. Recognize that every child can learn and has the right to attend school (amend laws accordingly);
2. Instruct all educational institutions to take appropriate steps to ensure that education is accessible to children with disabilities/children with special needs. Remove restrictions on employment (established by the Ministry of Health) and ensure working conditions appropriate to individual needs.
3. Prohibit child slave labour, in other words, eliminate the practice of involving minors in any agricultural or other work, especially during the school year. All forms of child labour, including work outside penal institutions, must be regulated by the Labour Code.