Analyze of National Action Plan of Belarus for 2017 – 2021 to improve the situation of children and to protect their rights
- Chapter 1. The realization of children’s right to live and be brought up in a family setting (family support and prevention of social orphanhood).
- Chapter 2. The realization of children’s right to access to genuine justice (prevention of juvenile delinquency)
National Action Plan for 2017 – 2021 (hereinafter-National Plan) to improve the situation of children and to protect their rights is a policy document No. 710 approved by the resolution of the Council of Ministers of the Republic of Belarus on 22.09.2017.
According to the indicated document, the purpose of the National Plan is to provide legal, organizational and institutional preconditions for the improvement of the situation of children in the Republic of Belarus, advancement of a mechanism for implementing and protection of their rights.
Analysis of some of the provisions of the National Plan on the subject of its effectiveness for the improvement of the situation of children and the protection of their rights was conducted in this study.
Chapter 1. The realization of children’s right to live and be brought up in a family setting (family support and prevention of social orphanhood).
Paragraph 64 of the National Plan includes further development of family forms for the placement of orphans and children deprived of parental care, including early age children and children with special developmental needs.
What is meant by “further development” is not specified. However, if to analyze the list of performers for this event (Ministry of Education, local executive committees, the Executive Committee of Minsk), then the following conclusion comes that is only about the increase in the number of substitute families for orphans and children deprived of parental care. No improvement of the legislation of the Republic of Belarus in the regulation of the creation and operation of the family form placement of orphans and children deprived of parental care is planned for the period of 2017-2021.
In the Republic of Belarus, two different branches of the Law: family and labor govern such forms of the family-type settings as a foster family, family-type orphanage. As a result, there are many legal conflicts and their solutions do not respond to the interests of children.
At the moment, the nature of the relationships between the bodies of care, guardianship and foster parents are defined as the labor-based and concluded by the employment contract. The labor law, in particular, rules about the holidays, working hours, work schedules, overtime work, etc., should be applied to these relationships. It seems that such “invasion” in the sphere of labor law does not match the goals of the creation and existence of the Institute of a foster family.
There is no holidays and time to rest from parental duties for any ordinary family; consequently, it is unacceptable for a foster family too. Transmission of foster children to other families on vacation time or to the shelter contradict to the interests of children.
Besides, the assumption of the duties of foster parents should not be an obvious ground for suspension of performance of former or new obligations in an on-the-job employment contract. As now actions of adoptive parents are a labor function, then a foster parent has to define, which of these two employments will be the main job for him/her, and which employment will become a secondary job. For example, if to believe that the duties of foster parents are the main workplace, then it turns out that work on other employment contract should be a part-time job with all consequences following from it.
If the other way around, it is not clear which duties of the foster parent as an employee should be performed partly.
This approach is a restriction of the legal capacity of the adoptive parent, and is an additional obstacle to the creation of a foster family.
We cannot ignore the fact that the presence of several children will put the foster parents or one of them in a situation when they will have to give up their labor functions, which is completely consistent with normal family life when a mother with several children is forced to not work in order to fulfill her parental duties properly.
Payment to the adoptive parent in a form of wages for his/her work in foster care compensates the loss from the termination of his/her labor function to a certain extent.
In addition, based on legislation, the performance of one’s former labor duties does not require the adoption of children in the family on other grounds: adoption, guardianship, and tutelage. Continuity of the performance of parental duties should not be questioned.
It is quite understandable that we protect the rights of foster parents in the sphere of pensions when we refer to the labor relationship between foster parents and tutorship or guardianship agencies. Nevertheless, it would be possible to introduce corresponding changes in the pension legislation, including foster parents in the category of persons entitled to receive pensions on an equal basis with persons working under labor or civil law contracts.
Employment contracts with foster parents, parent-educators (caregivers) are concluded for a specific period. This period, as a rule, is 1 year. At the end of this period, both parties (employer and employee) may not renew the contract without explaining the reasons.
In such a situation, the rights and interests of minor children are not taken into account. As children can be placed both in another family and in a residential institution after the expiry of the term of the employment contract and no renewal of such an agreement for a new term. That is, orphans, children deprived of parental care are constantly under the threat of “secondary orphanhood”.
The confusion of diversified relations (family and labor) within the framework of a single legal relationship seems irrational for addressing the issue of pension provision.
It is unacceptable to perceive these relations as labor ones since the relationship between foster parents and tutorship or guardianship agencies are formed within the framework of family relations as one of the forms of child-rearing in a family.
The existence of an employment contract in these relations leads to the emergence of the “territoriality” principle when placing orphans and children deprived of parental care in substitute families.
Orphans and children deprived of parental care can be placed in foster families and family-type children’s homes only in the territory of their district. Thus, there are often situations that there are people who want to take a child (children) to a foster family in an area where no children’s residential care facility is available. At the same time, in the area where children’s residential care facility exists no persons wishing to accept to rear a child (children). That means that existence of the “territoriality” principle violates the child’s right to a family. This is especially acute concerning children with the special developmental needs.
The procedure of placing a child (children) in the family for guardianship also requires some improvements. Thus, in accordance with clause 4.4 (“List of Administrative Procedures Implemented by State Bodies and Other Organizations on the Application of Citizens”, approved by the Decree No. 200 of the President of the Republic of Belarus on April 26, 2010) for the adoption of a decision on appointment as guardian (trustee), the candidate for guardians (trustees) must provide documents that confirm the absence of the parents of the child or the existence of another reason for the appointment of guardianship (tutorship) together with other documents. However, a person cannot provide such documents due to their absence. In this case, in accordance with Art. 17 of the Law No. 433-З of the Republic of Belarus adopted on October 28, 2008, on the “Basics of Administrative Procedures,” failure to provide the necessary documents is the basis for refusal of a person’s application.
The presence of legal conflicts retards the development of such a form of family organization.
Thus, the development of family forms for the placement of orphans and children deprived of parental care, including early age children and children with special developmental needs, will not lead to the expected result without improving the legislation. The national plan does not intend to introduce changes and amendments regulating the creation and functioning of the family-type settings to the legislation.
Paragraph 66 of the National Plan provides development, approval, as well as the subsequent monitoring of the implementation of regional plans for restructuring and reforming children’s residential care facilities that aim at ensuring the creation of conditions for the transfer of children placing in families and the establishment of family-type conditions in institutions.
Currently, the children’s village (town) is the residential institution that responds the most to family-type conditions.
Therefore, in the Minsk region, there is a children’s village “Istoki”, which was established in 2009. 21 families work in this children’s village who promote foster-care of orphans and children in the age of 1-18 years deprived of parental care.
It is believed that conditions in this institution are as close as possible to family ones. However, the apparent imperfection of the legal regulation of this form of placement of orphans and children deprived of parental care does not allow considering these conditions as the maximum proximity of living conditions to family ones.
Thus, parents-educators are not legal representatives of children placed in their upbringing. The responsibilities of parents-educators are only included in the homecare. As parents-educators are not custodial parents (legal representatives of children), they are obliged to coordinate their actions regarding children with the director.
That is, despite the desire to give the children’s village the appearance of a family form, the total lack of authority (except for home care) does not form a correct understanding of the family for children.
In accordance with the Regulations on an orphanage and a children’s village (town), parents-educators live together with children. However, it is not specified anywhere where workplace “ends” and the place of residence “begins”.
The issue of the inviolability of the home, the right to personal property, the right to privacy, etc. is important in terms of such basic rights.
The employment contracts with the parents-educators are concluded for 1.5 rates (12 hours) per family, + 1 (8 hours) for an assistant.
12 + 8 = 20 hours.
There are 24 hours in a day. No one pays for 4 hours, which, in fact, parents-educators work out, living with children.
The existence of a fixed-term employment contract for a specific period, as well as the existence of such contracts in the foster family and the family-type children’s home, gives a possibility of the termination of the functioning of a particular family only after the expiration of the employment contract. Such circumstances create a threat of “secondary orphanhood” for orphans and children deprived of parental care.
Thus, it is impossible to create family-type conditions without improving the legal regulation of the functioning of residential institutions. Attempts to create “family-type conditions” in residential institutions will become fictions.
Paragraph 67 of the National Plan provides measures to improve the adoption system and the mechanism for accompanying the foster families.
Based on the analysis of the list of performers of this event, it also follows that no improvement is expected in the legal regulation of the adoption procedure. At the same time, in order to improve the adoption procedure, it is possible to simplify it for people who want to adopt their foster kids, wards that already brought up in the families of candidates for adoptive parents for a long period.
There are no indications in the National Plan for an analysis of the advisability of further legislative consolidation of the right to the secrecy of adoption. The statutory requirement to preserve the secrecy of adoption violates the child’s right to receive information about biological parents and relatives and the preservation of their individuality.
In addition, the procedure for giving consent to parents for the adoption of their own children has not been developed sufficiently in the Republic of Belarus. Moreover, Article 127 of the Code of the Republic of Belarus provides that the adoption of the child requires the consent of his/her parents. Parents can consent to the adoption of a child by a specific person or without specifying a specific person.
Paragraph 68 of the National Plan provides the implementation of measures to support the family in prevention and reduction of cases of deprivation of parental rights, measures to support parents and guardians in order to improve their ability to fulfill their parental duties.
As a result, the reduction of cases of deprivation of parental rights is expected.
This event lacks specificity, how should measures for guardians support lead to a reduction of cases of deprivation of parental rights?
Paragraph 68 of the National Plan, as well as other items, does not provide activities aimed at reducing the number of children withdrawn from their parents, without deprivation of parental rights.
The withdraw of children without deprivation of parental rights is carried out in the same manner as the deprivation of parental rights.
Paragraph 72 of the National Plan provides the implementation of measures aimed at improving the activities of the guardianship and trusteeship bodies on the protection of the rights and legitimate interests of minors, the establishment of regional and urban social and pedagogical centers in Minsk.
However, the establishment of the responsibility of the guardianship authorities for violating the rights and best interests of the child is not envisaged. There are no assessment criteria for the unreasonable determination of the status “Need for State Protection” to the child. As a result, children are taken away from their parents without valid reasons.
The absence of the legally established responsibility of the guardianship authority for infringement of the best interests and rights of the child leads to the cases of “secondary orphanhood” due to the fault of officials. The creation of regional and urban social and pedagogical centers in Minsk does not eliminate this problem.
Chapter 2. The realization of children’s right to access to genuine justice (prevention of juvenile delinquency)
Paragraphs 84-90 of the National Plan provide a number of measures and activities aimed at:
– The improvement of the legislation and enhancing children’s access to friendly conditions for participation in criminal and civil proceedings;
– The development of instructions on the provision of psychological assistance and social and pedagogical support for convicted minors;
– The support of minors released from the institutions of the penal system, returned from educational and medico-educational establishments, with a purpose of their further socialization;
– The study of the issue of introducing amendments and additions to the legislative acts that provide a wide implementation of recovery procedures for rehabilitation and social reintegration of juvenile offenders, etc.
It seems that it implies the study of the issue of the need to consolidate mediation in the criminal-legal sphere in relation to minors.
However, when analyzing paragraph 88 of the National Plan, there is an inconsistency between the planned activities and the expected result. Thus, only the “Study of the issue of the need to introduce amendments and additions to legislative acts” cannot be the net result of improving legislation in the field of rehabilitation and social reintegration of juvenile offenders. “Study of the issue” may entail proposals for introducing changes and amendments to the legislation, but not the improvement of legislation.
In addition to improving the legislation on “recovery procedures that promote the rehabilitation and social reintegration of juvenile delinquents,” it is necessary not only to further study but also to improve the criminal procedure legislation on issues of:
– A professional judge and two people’s assessors (Currently, a panel of one professional judge and two people’s assessors are considering criminal cases on juvenile crimes in the Republic of Belarus. It should be mentioned that in the Republic of Belarus, there are no judges who are specialized in dealing with crimes of minors and trained not only in law but also in pedagogy, psychology, or sociology. People’s assessors who are involved in such cases do not have special professional competencies too.)
– Confidentiality of the court proceedings in cases of minors. (The confidentiality of the juvenile court proceedings (closed trial) is not unconditional and does not extend to the proclamation of the verdict. The decision to hold a closed hearing refers to the discretionary powers of the court);
– Participation of legal representatives of minors in criminal proceedings. It is necessary to fix in the Criminal Procedural Code of the Republic of Belarus the criteria that the actions of the legal representative for and against the interests of the accused (suspect) minor can be determined based on.
Summarizing the analysis of some provisions of the National Plan, it should be pointed out that in this plan does not contain really planned effective activities for realizing the right of children to live and raise in a family environment (family support and prevention of social orphanhood).
The measures and activities foreseen by the National Plan for the realization of the right of children to live and raise in a family environment are bureaucratic fictions.
The inadequacy of the planned measures and activities aimed at realizing the children’s right to access to fair justice should also be noted (prevention of juvenile delinquency).