ࡱ> ikh9 7ibjbj"|7el        $`2* @ @ @ @ @ @ @ $  @ @ @ @ @ N  @ @ N N N @ ^ @ @ N @ N N V@  @  0;u@ R[ 00`gx: ^: N     Family Based Care for Children First International Conference in Africa Nairobi 28-30 September 2009-09-16 Policy and Legislative Framework providing Family Based Care. Jaap E. Doek 1. Introduction One of the important features of the human rights of children in the CRC and the ACRWC that distinguishes these treaties from other human rights treaties (by the way equally applicable to children and adults) is the fact, that it formally recognizes the importance of the family for the harmonious development of the childs personality and the primary responsibility of parents in this regard. The CRC does so in its preamble and in, among others , art. 3, 5, 7, 9, 18, 22 and 27. The African Charter (ACRWC) has similar provisions (see e.g. art. 4, 19 and 20) but with a noteworthy difference. In the CRC the importance of the family and its protection and assistance is part of the preamble and can be seen as non-binding guidance. The CRC as such focuses much more on the recognition of the responsibilities of parents and the obligation of States Parties (SPs) to provide parents with support and assistance (art. 18, 27). But the African Charter explicitly presents in art. 18 that the family shall be the natural unit and basis of society and that it (therefore) shall enjoy the protection and support of the State for its establishment and development. Regarding the primary responsibility of parents the CRC and the ACRWC do contain similar provisions. But the ACRWC is some times more explicit, instead of the right of the child to be cared for by her or his parents as far as possible (art. 7 CRC), the ACRWC (art. 19) states that every child shall be entitled to the enjoyment of parental care and protection and shall wherever possible, have the right to reside with her or his parents. In addition the ACRWC contains an article (art. 30) requiring States Parties to provide special treatment for imprisoned mothers with infants and young children, apparently with the aim to protect the mother-child relationship in this kind of situations. It should also be noted that the ACRWC contains a provision, unknown in the CRC, requiring States Parties to take all necessary measures to trace and reunite children with parents or relatives where separation is caused by internal and external displacement arising from armed conflicts or natural disasters (art. 25, par. 2 under b). It goes beyond the scope of this contribution to elaborate on these differences, but the conclusion from both childrens rights treaties is very clear. The States Parties to these treaties have the obligation to provide the family of the child and her/his parents with the necessary support and assistance in order to enable them to provide the child with an environment and opportunities for a full and harmonious development of her or his personality. In doing so the States parties shall, among others, pay special attention to the support and assistance for the care of children with disabilities (art. 23 CRC + art. 13 ACRWC). In this regard other provisions in both treaties are of course relevant, such as the best interest of the child as a primary (art. 3 CRC) and the primary (art. 4 ACRWC) consideration in all actions concerning the child, the right of the child to express her/his views freely in all matters concerning the child and have them taken into account (art 12 CRC and art. 4 and 7ACRWC) (1) and the responsibility of parents and where applicable members of the extended family or community to provide the child with appropriate directions and guidance in a manner consistent with the childs evolving capacities in the exercise by the child of the rights enshrined in the treaties (art. 5 CRC) (2). This legal framework provided by the two treaties requires States Parties to develop and effectively implement a policy that promotes and supports family based care and should determine the content and priorities of such a policy. In the light of the two treaties this policy should in my opinion have two major components: 1. measures to facilitate and support the role of the natural parents and the family of the child in performing their responsibilities for the upbringing and development of the child. 2. measures to provide the child when he or she is deprived of the natural family environment with alternative family care or , if necessary, with care in a suitable institution (3 ) I will make some observations on both components, and because we are focussing on Africa, specific references will be made to the impact of HIV/AIDS. But first some general remarks: a national policy on the promotion of family based care should run for a period of at least 3-5 years. It should be developed with the involvement of the relevant ministries, local authorities/communities, NGOs, UN agencies and other relevant actors (e.g. agencies that provide institutional care). It is also critical that children (and parents) are , as much as possible, involved in both the development and the implementation of this national policy; not only because art. 12 CRC requires such involvement of children but also because some research indicate that policies based in proper consultations with children turn out to be more effective. The implementation requires to put it simply: MONEY and human resources. The national policy should not only contain intended measures, but also budget allocations for a 3-5 years period linked to a prioritisation of the measures the government wants to take. In that regard and where appropriate, seek international cooperation and support within the framework of multilateral or bilateral development assistance. Identify how much and what kind of human resources are needed and plan the recruitment and training of volunteers and professionals. The implementation of the national policy requires coordination of the various measures and actions of different ministries (health, education, social affairs, labour, justice). It is critical for an effective and efficient implementation that one agency. the lead ministry, is charged with and resourced for this coordination and efficient implementation Hopefully such a lead ministry already exists and has a clear and strong mandate to coordinate all policies concerning (the rights of) children. For the best possible implementation it is finally important to involve NGOs and other parts of civil society (e.g. religious groups/traditional leaders, the media) and to agree on and support their respective roles. 2. Support for the natural family environment Measures to support parents/the family of a child are often set in the key of prevention of abandonment, neglect or abuse and thereby of the prevention of situations in which alternative care may become necessary. This usually means that a lot of financial and human resources are invested in so-called vulnerable or at risk families, multi problem families and single parent families. Nothing wrong with that, although sometimes little or no attention is paid to the root causes of the problems with the result that children are placed in alternative care too quickly and for longer periods. But I like to emphasize the importance of establishing an infrastructure of easy accessible services that can support and advise all parents in the upbringing of their children. For instance: use existing local community centres (or establish them) where parents can go for advice, where parenting courses can be organized and that develop home visiting activities e.g. for first time parents in which volunteers can play an important role. This centre should develop engaging and when necessary outreaching activities. A special challenge in this regard is the impact of HIV/AIDS on the life of parents and their children. Community centres can play an important role in that regard, including efforts to prevent discrimination, stigmatisation and isolation of these families. They should provide information and support with the involvement of local doctors, to improve the health of HIV-infected parents and keep them alive as long as possible. If a parent is diagnosed with HIV regular treatment of common infections and proper nutrition can keep the parent healthier longer. Access to anti-retroviral (ARV) therapy is for most people too expensive. Government must undertake maximum efforts to have access to low-cost or free ARV. At the local level community centres should in close cooperation with the available health professionals undertake efforts to effectively administer the ARV to parents and children who need them. Develop and implement home-based care programmes; see in this regard as an example the National Home based Policy Guidelines (2002) of the Kenyan Government (4 ) Schools can also play an important role in supporting and protecting children living in households affected by HIV and AIDS, offering a sense of normality and belonging and an opportunity to form friendship. They can set an example to the community by promoting understanding, solidarity and a positive attitude towards these children. Programmes like the Window of Hope in Namibia provide 10-14 years olds with the skills to cope with HIV and AIDS in their personal lives, in schools and in the wider community. In short: if you want to keep a family (parents and children) together as long as possible get the community involved to the maximum extent possible. That also applies to child-headed-households. Whether these households are a legitimate form of care for children is a matter of current debate. I am not going to enter into that debate but like to observe that it is about children who have experienced the impact of HIV and AIDS in their families and have often taken care of their parents and siblings. If these children make an informed choice to stay together without direct adult care this choice should generally be respected and supported, as has been proposed by the Law Reform Commission in South Africa. The Commission proposed a legal recognition as a placement option for orphaned children in need of care with adequate supervision and support ( 5 ). Communities should provide social and material support for child-headed households and protection for the children from abuse and discrimination. This support should include access to health care, to social grants available for families, education, housing and the protection of their inheritance rights. The appointment of a legal guardian or another responsible person is necessary to ensure access to services and where necessary adequate protectection. The child who is acting as the head of the household retains all the rights inherent to her/his status as a child, including access to education, leisure and recreational activities (art. 31 CRC) Although one may consider child headed households as a form of alternative care, I like to emphasize that it can be for the children themselves an important way to maintain their natural family environment, their belonging together and their place in the local community. I am aware of the fact that this Conference is focusing on alternative care for children without parental care, but I felt it necessary to start with some remarks about the importance and in fact the legal obligation of States Parties to the CRC and the ACRWC to support to the maximum extent possible the natural family environment of the child and that her/his right to be cared for and reside with her/his parents is fully respected. But lets move to the second component of a national policy on family -based care, the alternative care. 3. Alternative care According to art. 30 CRC and 25 ACRWC any child who is permanently or temporarily deprived of his or her family environment for any reasons shall be entitled to special protection and assistance provided by the State which also shall ensure alternative (family, art. 35 ACRWC) care for such child. This alternative care could include among others, foster placement, Kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children (6 ) The order in which the forms of alternative care are presented indicates that the CRC has a strong preference for family-type alternative care, as confirmed by the CRC Committee in the Recommendation adopted after the Day of General Discussion in 2005 on Children without Parental Care (7 ). Regarding the legal framework for alternative care, both the CRC and ACRWC contain only a few specific provisions, not so much on the content of this care but more on procedures. Both treaties require that special attention must be paid to the desirability of continuity in the childs upbringing and to the childs ethnic, religious or linguistic background (art. 20, par. 3 CRC and art. 25, par. 3 ACRWC) No separation of a child from her/his parents should take place against their will except when competent authorities determine that such separation is necessary for the best interest of the child (7). The child separated from her or his parents (and placed in alternative care) has the right to maintain personal relations and direct contact with both parents on a regular basis (art. 9 CEC; art. 19 ACRWC) The child placed in alternative care has the right to a periodic review of the treatment provided and all other circumstances relevant to his or her placement according to art. 25 CRC; the ACRWC does not contain such a provision. However, other articles of both treaties are applicable to all decisions to place the child in alternative care and all actions regarding the child while in alternative care , in particular the provisions on the best interest of the child (art. 3 CRC; art. 4 par. 1 ACRWC) on the right to express her or his views, particularly in judicial or administrative proceedings (art. 12, par. 2 CRC); art. 4, par. 2 ACRWC) and on the right to protection from all forms of violence (art. 19 CRC; art. 16 ACRWC) But the legal framework leaves us with a lot of questions when we try to develop and implement a national policy on alternative care for children. For instance: the treaties dont contain provisions regarding the informal arrangements of alternative care in the setting of the extended family, the network of friends of the family or the community. But the reality, and not only in Africa, is that many children live in these informal forms of alternative care. Furthermore, the treaties dont provide more specific rules or regulations for the providers of alternative care except for the assumption that they will act in accordance with the provisions of these treaties. Only the CRC (art. 3) is a little more specific: States Parties shall ensure that institutions, services and facilities for the care or protection of children shall conform with established standards, particularly in the areas of safety, health, suitability of their staff as well as competent supervision. But the UN, with the Brazilian government in the driving seat, is preparing Guidelines for the appropriate use and conditions of alternative care for children. These Guidelines, hopefully adopted by the UN General Assembly before the end of this year , provide very concrete guidance and directions for a practice of alternative care in compliance with the internationally recognized rights of the child. I am not going to present these Guidelines (it is 27 pp long) but will give some examples. Most of the guidelines are dealing with formal alternative care defined as all care provided in a family environment which has been ordered /authorized by a competent administrative or judicial body and all care in institutions, including private facilities. In line with art.9 CRC the guidelines underscore that a decision on alternative formal care must be based on a rigorous assessment of the needs and best interests of the child. This includes the immediate safety and well-being of the child as well as her/his long term care and development, Furthermore it is emphasized: - that frequent changes in care settings should be avoided as much as possible because they have a negative impact on the childs ability to form attachments and on the childs overall development; (unfortunately there is a lot of information showing that children in alternative care (both formal and informal) are frequently moved from one alternative care setting to the other in relatively short periods of time). - that efforts have to be made right from the beginning to find a permanent solution for the child (permanency planning), first via reintegration in nuclear or extended family and if that is not possible via an alternative stable family setting or in residential care, but the latter only when it is specifically appropriate, necessary and constructive for the individual child; - that regular review of the placement e.g. every 3 or 6 months takes place in order to assess the adequacy and necessity of the current placement with the full involvement of the child and other relevant persons in the childs life (see art. 25 CRC); - that the quality of care and of agencies and professionals involved should meet specific standards and that an oversight body (inspectorate) is established.; - that a document is developed and published containing the rights of children in alternative care. Many more rules and guidelines are presented in the document but I like to underscore the importance of the establishment of independent monitoring body (e.g. childrens ombudsperson) where a child in formal alternative care (and informal care) can file a complaint about her/his treatment, a body with a clear mandate to investigate such complaints and to make specific recommendations for the improvement of the treatment. Some special attention is given in the (draft) Guidelines to informal care. This is defined as any private arrangement provided in a family environment, whereby a child is looked after on an ongoing or indefinite basis by relatives, friends or others at the initiative of the child or her/his parents or other persons: States should recognize the role played by this form of care and support its optimal provision, should encourage carers to notify the care arrangements to a designated body and offer them counselling, support and access to all available services and benefits. Although the recognition of informal care comes with some support, there seems to be at the same time some reluctance. This may have to do with concerns about the degree to which the best interests of the child are served with informal care. It is at least necessary according of the draft guidelines to devise special and appropriate measures to protect the child from abuse, neglect or exploitation. This is vague enough to allow for measures adjusted to national, or perhaps even local, cultures and traditions and available resources. Authorities should try to encourage and support a specific role in this regard for the community instead of developing something like a full blown professional inspectorate for informal care. The degree to which this informal care is further regulated by law or e.g. ministerial decrees is left to the States, The CRC and the ACRWC do not provide specific obligations in that regard. The Guidelines do not extend to the care of adoptive parents from the moment the child is effectively placed in their custody pursuant to a final adoption order. From that moment the child is considered to be in parental care. However, the Guidelines are applicable to pre-adoption and probationary placement of a child with the prospective adoptive parents. In this regard the matter of permanency plays an important role. In other words when do you decide that adoption is the option that will provide the child with an alternative stable and permanent family. Although the Guidelines recommend that planning of care and permanency should be carried out from the earliest time possible, ideally before the child enters the alternative care, it does not give specific criteria for the option of adoption. I am aware of the fact that much depends on the immediate and long term advantages and disadvantages of this option, but it would have been helpful if some specific guidance in this regard had been provided in the Guidelines. For instance should the adoption only be available in case the parents agree or are their circumstances in which that requirement may seriously hamper the childs right to a stable family environment. Within their policy States should have clear guidelines for the use of adoption as a form of alternative care. Both treaties contain specific requirements for both national and inter-country adoption and the ACRWC (art 24) explicitly presents inter-country adoption as an option of last resort. Inter-country adoption is an option if the child cannot be placed in a foster or adoptive family or cannot in a suitable manner be cared for in the childs country of origin. In this regard a key question is: what is a suitable manner of care if a foster or adoptive family is not available? For instance how much time do we take to find such a family in the country of origin for a very young child in an institution? The concerns regarding possible abusive practices in inter-country adoption are unfortunately confirmed by various incidents. But from the childs perspective it should not result in a complete prohibition of inter-country adoption and that is particularly true for children who otherwise are left to a life in institutions. Finally some observations on the placement in residential or institutional care. Both treaties consider this form of alternative care as a last resort but do not explicitly state that such a placement should be for the shortest appropriate period of time (compare art. 37 CRC on deprivation of liberty)(8). But does it mean that we always must try other options, and for how long, before a child can be placed in an institution? Often the life in institutions is described in very negative terms, with among other things, reference to the serious risk or even practice of abuse. To suggest that life in institutions is always and only terrible is not fair to many professionals working in these institutions and confirms and supports the negative attitude towards and the discrimination of children living in institutions. It is relatively easy to also give a dark picture of the life in a family environment; many millions of children in this world suffer from all kinds of abuse and neglect by parents or relatives. But again it unfair to generalise this picture. In this regard I like to quote the CRC observations in its report on the Day of General Discussion I mentioned before: The question was raised whether the dogmatic implementation of the principle that placement in an institution must be the last resort may result in stigmatisation of children in, or about to be placed in, such institutions. Such practice may harm the development of the child in need of alternative care and leave the institution in which the child is ultimately placed with an impossible mission. In other words the careful and multidisciplinary assessment of the needs of the child in need of care and protection may result in the decision to place the child in an institution without trying for a long period of time to find a family type of care. But in that regard it is imperative to include in that decision the obligation to undertake all possible measures to find for this child as soon as possible an family type of alternative care. The guidelines contain detailed provisions regarding the quality of care of children in alternative care including measures to protect the chid from e.g. abuse and abduction. Much can be said on the various forms of alternative care for children but the bottom line of all the things we do in that regard has to be determined and guided by our obligation to ensure that these children enjoy to the full extend their rights as enshrined in the CRC and the ACRWC. NOTES 1. It should be noted that the ACRWC does not contain a provision similar to art. 12 par.1. Art. 7 ACRWC contains the right to express opinions freely but without the requirement that they have to be taken into account. The second paragraph of article 12 CRC can be found in art. 4, par. 2 ACRWC. 2. The general provision of art.5 CRC cannot be found in the ACRWC. The reference to the evolving capacities of the child and the duty of parents to provide guidance and directions is in the ACRWC linked only to the right of the child to freedom of thought, conscience and religion (art. 9 ACRWC; see art. 14 CRC). But since all African States have ratified the CRC the provisions of that treaty prevail. 3. It should be noted that art. 20, par. 2 CRC requires States Parties to ensure alternative care but that art. 25 ACRWC uses the term alternative care. 4.  HYPERLINK "http://www.policyproject.com/pubs/countryreports/KEN-HBC_pdf" www.policyproject.com/pubs/countryreports/KEN-HBC_pdf. See also: Community Based Home Care in Resource Limiting Settings: A Framework for Actions; WHO 2002 Geneva. 5 . See Kinship Care: an issue for international standards, Working Paper, International Social Service and UNICEF; New York 2004. 6 . It should be noted that art. 25, par. 2 under a ACRWC does not mention Kafalah in Islamic law. But since it does not present an exhausting list of alternative care (among others) Kafalah is not excluded. 7. UN Doc. CRC/C/153, 17 March 2006, par. 665. 8 . Art. 19 ACVRWC does not require that a decision to separate a child from her/his parents can be subject to judicial review. 9. The text of art. 37 CRC clearly indicates that this requirement only applies to arrest, detention or imprisonment, but it is recommended to apply the same standard to other children placed in institutions (outside of the juvenile justice system). 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