Human Rights in Ukraine – 2005: XIV. The Rights of the Child

1.   Some general issues

This section provides an overview of only some of the issues connected with the observance of children’s rights in Ukraine. The nongovernmental organizations carrying out monitoring of the observance of children’s rights in Ukraine still have little systematic experience. The information presented here is the result of data gathered from different civic organizations working in the area of children’s rights or providing social support to families and children.

  Up till now the most widespread form of public monitoring of children’s rights was the activity of a coalition of civic organization on preparing alternative reports to the UN Committee on the Rights of the Child. The UN Convention on the Rights of the Child is a fundamental document setting out legal standards for the protection of children’s rights. This Convention was ratified by Ukraine on 27 February 1991 and came into force for Ukraine on 27 September 1991. In contrast to previous Declarations, the Convention on the Rights of the Child is a legally binding document for the states which ratify it, and has a controlling mechanism.  The said mechanism is connected with the Geneva-based Committee on the Rights of the Child, a group made up of 10 experts which reviews the periodic reports from governments regarding their implementation of the provisions of the Convention. 

Ukraine’s current legislation and the related state programs proclaim wide-ranging guarantees for the protection and development of the child. However, any activity in this area should be based on the general observance of human rights and the rights of the child which, unfortunately, is not the case. This is confirmed by the recommendations of the UN Committee on the Rights of the Child on Ukraine’s periodic reports.

“„...The Committee remains concerned however that the State youth policy covers social assistance, health care, education, …  child protection and that it lacks a rights-based approach and does not encompass all rights enshrined in the Convention”[1]

On 11 July 2005 the President of Ukraine issued a Decree “On priority measures for the protection of the rights of the child”, and 2006 was declared the Year of the Rights of the Child in Ukraine. The situation as regards the rights of the child in Ukraine is increasingly coming under the attention of the state however the danger that these will be only high-sounding statements of intention remains. After all, as of today the state, while speaking of systematic changes, is not paying attention to fulfilling elementary tasks and is reluctant to cooperate with the public. For example the texts of the state reports to the UN Committee on the Rights of the Child are still not available to the public. They are there, however there has been no widespread dissemination. There is only an unofficial translation into Ukrainian. Another text which is hard to get hold of is that setting out the Recommendations of the UN Committee on the Rights of the Child on Ukraine’s Second Periodic Report.  Ukraine did, however, by ratifying the UN Convention on the Rights of the Child, commit itself to widely disseminate, among others, the texts of these documents.

The state program for bringing Ukrainian legislation into conformity with EU legislation labels as “high-priority” legislation on the rights of the child.[2]. However the process of implementing international standards in Ukrainian legislation on many points ended in 2003. on 15 May 2003 the Council of Europe Convention on contact concerning children was signed, but not ratified. Nor was the European Convention on the Exercise of Children’s Rights ratified. This is despite the fact that, according to information from the Ministry of Justice, this Convention was among documents which had been worked on in order to prepare them for ratification of the signed documents of the Council of Europe back in 2002-2003.[3]

The problem remains of procedural mechanisms of protection of the rights of the child. The existing system of state institutions which deal with children’s interests are spread out and uncoordinated. There are still no specialized courts (juvenile justice), nor is there an Ombudsperson for Children’s Rights. The institution of the Human Rights Ombudsperson in turn does not have clear powers with regard to defending the rights of the child.

One should also mention the problem of homeless children who often really live in a self-organized way outside any social state institutions. As of the present day, uncared-for children[4], do not effectively have any clearly defined legal status, and are therefore deprived of certain rights. The will of the children involved, their thoughts regarding their status and what happens to them later, their wish to in one form or other put off for a certain period a process of intensive socialization (for example, returning home to their parents or guardians), have no legal base, and are therefore not given any consideration by representatives of state structures, for example, by law enforcement agencies.[5]

According to statistics from the Ministry of Internal Affairs (MIA), in 2005 more than 27 thousand children involved in vagrancy and begging were delivered to law enforcement bodies. At the same time, the MIA believes that the number of children’s shelters in the country at present (93) is inadequate, with by no means isolated instances when they are over-full. The MIA investigated over 30 thousand disadvantaged families and 10.2 thousand of these families were placed on preventive action registers.

22.5 thousand individuals faced administrative liability for not fulfilling their responsibilities as parents or those substituting parents in bringing up children. 3.5 thousand applications with material on depriving people of their parental rights were prepared and submitted to the courts, with the majority of these being accepted by the courts.

Throughout 2005 almost 7.5 thousand reports of missing children were received by law enforcement agencies.  279 of these children remained missing, with 40 of them having been missing for over a year. A third of missing children are from children’s home-educational institutions.  The main reasons for their running away were the lack of professionalism of the staff and managers of the institutions, their indifference, cruelty or violence directed against the children.[6]

2.   FREEDOM FROM HUMILIATING BEHAVIOUR AND PUNISHMENT

“They beat up kids in a children’s home” – this was the message placed on the information website of the Ukrainian Helsinki Human Rights Union on 6 December 2005 in the section “Torture and Ill-Treatment”.  The text reads:

“Teachers of the Slavutsk Children’s Home “Zatyshok” have locked up children in the cellar, beaten them, and also forced them into submission if they wouldn’t go to sleep during the day. The duty police officer took part in the beatings. This is what members of the association “Fighters for justice” have reported.. (…)  The Director of the children’s home, Larisa Rachun fined teachers who made public cases where minors were tortured.  She has now been dismissed, and the staff reprimanded. The Prosecutor’s office for the Slavutsk micro-district has launched criminal proceedings charging the teachers with exceeding their official powers”.[7]

„At the beginning of this year [2005] the Mykolaiv region made a name for itself through a dozen officially registered incidents where children were beaten.  They were taught how to behave through being kicked in the street, within the family, and what is most shameful, in state institutions which are supposed to safeguard the freedom, personal security and dignity of the child. The Ukrainian Centre of Social Research has come to the conclusion that every second (!) child being raised in children’s homes has encountered violations of their rights, being humiliated, insulted, and even beaten.. ”[8]

Article 19 of the UN Convention on the Rights of the Child stresses that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”

On the basis of the special needs of the child, the UN Convention on the Rights of the Child has a fairly large number of articles which prohibit any form of violence. Article 37 of the Convention prohibits torture or other cruel, inhuman or degrading treatment or punishment.  Article 32 contains a prohibition on the economic exploitation of children, including “performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development”.  Article 33 calls on States Parties to “to protect children from the illicit use of narcotic drugs and psychotropic substances … and to prevent the use of children in the illicit production and trafficking of such substances”.  Article 34 is aimed at protecting children from all forms of sexual exploitation and sexual abuse, including prostitution and pornography. Article 35 binds the states to take all measures necessary to prevent the abduction of, the sale of or traffic in children.  The obligation of States Parties “to protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare” is affirmed in Article 36.  Then Article 39 imposes the positive duty to use all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment (…)”.

School discipline, in accordance with Article 28 of the Convention, should be administered using methods based on respect for the child’s human dignity and in conformity with the Convention

The normative provisions given here are reflected both in Ukraine’s legislation, and subordinate normative acts. Any violence against a child is also prohibited by Article 52 of the Constitution of Ukraine, while Article 10 of the Law of Ukraine “On the protection of childhood” stipulates the right of the child to protection from all forms of violence.

In addition, Instruction No. 364 of the Cabinet of Ministers from 16 June 2003 approved a Concept Plan for preventing and eliminating the worst forms of child labour in fulfilment of Article 3 of the International Labour Organization Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (C182).

There are Rules and Procedure for reviewing appeals and reports of ill-treatment of children or a real threat of such treatment. This was approved by Order № 5/34/24/11 of the State Committee of Ukraine on the Family and Young People, the Ministry of Internal Affairs, the Ministry of Education and Science and the Ministry of Health from 16 January 2004, and registered with the Ministry of Justice on 22 January 2004 as № 99/8698.

The case law of the European Court of Human Rights is important within the context of this issue. “Up till the present time the European Court has not issued a clear condemnation of all forms of corporal punishment, on the other hand it has definitely also not once ruled that any form of physical violence is acceptable. In the light of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”), the judgments of the Court with regard to the use of corporal punishment , both in private schools, and at home (the Case of A. v. the United Kingdom, 1998), are crucial, since they unambiguously affirm the state’s responsibility to protect those who are weaker, and children are in this category, from violence whether at home, or in any other place.  It is also significant that the Court has begun to refer in its Judgments to the UN Convention on the Rights of the Child. In the Case of A.v. the United Kingdom, the Court referred directly to Article 37, which just as Article 3 of the European Convention, imposes upon the state the duty to protect against inhuman or degrading treatment or punishment children while in the care of parent(s), legal guardian(s) or any other person who has the care of the child from “all forms of physical or mental violence”.  As a result of judgments from the Commission and the Court on the use of corporal punishment in United Kingdom schools, the UK government was forced to introduce a ban on the use of corporal punishment in state educational institutions (in force since 1987). In 1999 the ban was extended to also apply in private schools”[9].

Violence against children in the family, in educational institutions and in the penal system unfortunately remains a problem for Ukraine. The situation is complicated by the fact that cases of ill-treatment and of violence against children are very difficult to uncover. Children seldom dare to tell people that they are being subjected to violence. In many cases children can see such ill-treatment as normal, especially if they have been treated in such a way all their life. It can be hard, virtually impossible, to investigate instances of violence in the family. The existence of this problem was focused upon by the UN Committee on the Rights of the Child in its recommendations to Ukraine. 

 “35. The Committee is also concerned at continued allegations of children, in particular Roma children, being ill-treated and tortured by law enforcement officials and that these allegations are not effectively investigated by an independent authority.

36. The Committee recommends that the State party: …

b) Respond to allegations of torture and other cruel, inhuman or degrading treatment or punishment of children; …

d) Undertake measures to ensure follow-up to the recommendations made by the Human Rights Committee and the Committee Against Torture as they relate to the Convention on the Rights of the Child;

e) Take immediate measures to stop police violence against children belonging to minorities, in particular the Roma and challenge the impunity actually prevailing for such acts of harassment;

f) Take all legislative measures to prohibit all forms of torture and other cruel, inhuman or degrading treatment or punishment;

g) Provide care, recovery, reintegration and compensation for victims.”

The procedures for protecting children from cruel or degrading treatment are either insufficient, or do not work in practice.

For example, the Rules and Procedure for reviewing appeals and reports of ill-treatment of children or a real threat of such treatment are virtually not functioning. The document is usually not known, or its importance and their consequent personal liability are not understood by educational workers, medical personnel in children’s hospitals and units of children’s hospitals, law enforcement officers and other representatives of professional groups working in children’s interest.  In fact, according to this normative fact,  if any employees of law enforcement agencies, educational bodies or institutions, health care agencies, departments on the family and young people, centres of services for young people , are approached by a child complaining of being subjected to ill-treatment, the person approached by the child (the state official, doctor, teacher, children’s home employee, social services officer, police officer, etc) is obliged to put the child’s story in writing and pass it to the relevant territorial subdivision of the Service for Minors within a day of receiving the appeal (report).

Ukraine is one of the few states whose legislation has a norm directly prohibiting corporal (physical) punishment. « ...corporal punishment by parents (including adopting parents), guardians, those looking after or bringing up small, under-age children, and those in their care is not permitted»[10].

Similar norms exist in five other European countries.  “A norm of this kind was first passed in Sweden (1979), then in Finland (1984), Denmark (1986), Norway (1987), and Austria (1989). The relevant provision of the Swedish Family Code declares: “Children have the right to care, security and appropriate upbringing. In relations with children, respect must be shown for their personality and individuality. Children must not be subjected to corporal punishment or any other forms of cruel treatment”. It is difficult to tell how such a norm works in practice. However it should be noted that in Sweden the majority of problems are resolved at the level of social and psychological intervention. The Courts adjudicate only in cases of dispute, and where there is an exception to the general rule.

Swedes consider that such a legal regulation has helped to educate society. In 1965 53% of adults who were surveyed believed that corporal punishment was necessary and was designed to help bring children up properly. In 1994 89% of those surveyed were against any form of physical punishment. It must however be noted that Sweden has carried out a widespread educational campaign, and not only in the media, and it is this, to a much larger extent than a legal norm, which has been able to influence the change in social attitudes and awareness that beating a child is a form of behaviour not endorsed by society”[11]

In Ukraine there has not been any similar educational campaign, and this norm remains difficult to implement since “… prosecution of parents who have used physical punishment, provided obviously that it was not at the level of torture … would be difficult to achieve, and possible sanctions would have to apply to the children also … and the possibility of such intervention in the family could as a result cause more harm than a few smacks…”[12]. Another matter when one is looking at ill-treatment and torture which is a crime in the sense of criminal law. However here there have been no examples.

There is a tendency to send kids from school-orphanages to psychiatric hospitals. Studies of the problem have shown that in the majority of cases these children need psychological assistance. Most school-orphanages are themselves unable to provide full psychological assistance, and send children for treatment to psychiatric hospitals. However even in the best cases (if the educational staff do not make such actions a form of punishment, the doctors do not make any diagnosis), the child perceives this as punishment and experiences serious psychological trauma.

3.  THE RIGHT TO RESPECT FOR PRIVATE LIFE

  In the course of monitoring on “Human rights in Ukrainian school-orphanages” and “Human rights in family-type children’s homes”[13], many incidents were recorded where children’s right to respect for their private life was infringed. The main such infringements were: the practice of looking over children’s personal belongings in the presence of others, or without the owner of the things being present; reading correspondence; public discussion of personal problems and family matter; living conditions which violate privacy (bedrooms with transparent glass walls, the lack of privacy during hygiene procedures, etc).

  There is a problem with confidentiality of private medical information in the conditions of today’s schools. Usually the school journals which can be read by students, parents and other teachers have a health page which contains medical diagnoses for all members of the class.

  During 2005 the situation remained virtually unchanged.

4.   THE RIGHT TO INFORMATION AND THE RIGHT TO KNOWS ONES RIGHTS

A serious problem is the low level of awareness of children, their parents or legal representatives as to children’s rights.

According to Ukrainian legislation, the state in guaranteeing the right to information is obliged to provide conditions for free access to such information.

In the context of international law, the right to information as to ones rights is a special form of the right to information. Article 42 of the UN Convention on the Rights of the Child reads: “States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”.  According to the Parliamentary Assembly of the Council of Europe’s Recommendation on a European strategy for children[14]: „... The Committee of Ministers should strongly urge these states… to inform children and also their parents of their rights by widely publicising and disseminating the text of the Convention on the Rights of the Child, by all possible means, including the use of the media and by introducing education on children’s rights and responsibilities into the school curriculum from primary level onwards; …. to inform children about the means and remedies available to them in the event of violation of their fundamental rights…”

Contemporary Ukrainian schools are very limited in their ability to ensure an adequate level of education on human rights. There is virtually no information of an educational nature regarding human rights and the rights of the child in the Ukrainian mass media.

The level of public education in the area of human rights in Ukraine remains quite low, and requires serious change. There is no integrated program of education on human rights in Ukraine in the school system and in higher educational institutes.  There is a single program on teaching human rights for the 10th and 11th grades for the non-fixed part of the curriculum.  This program is virtually not used. The components of different subjects “The Fundamentals of Law”, “Practical Law”, “Civic education”, do not provide a whole program of studies.  Furthermore, with the exception of “The Fundamentals of Law”, these subjects do not have to be taught and are seldom chosen for a particular school curriculum.  Human rights are usually taught through the nature of conflicts, within the context of the primary nature of the duties of the citizen in regard to human rights, in the context of general law, rather than through a system of general human values, mechanisms of protection and security. A large number of teachers, who have mastered theoretical material very well, have gaps in methodology when it comes to teaching human rights.

The charter of an educational, medical or other institution in which a child spends a certain amount of time is not only a document defining the status of a legal entity, but is also intended to be an effective mechanism for preventing or overcoming potential situations of conflict. The information which the charter contains directly concerns the child (as a school student, patient or as one of the children in care). It should therefore be available to both the child, and to his or her parents or guardians, and to others representing the child’s interests.  This is also envisaged by Ukrainian legislation. However, in practice the provisions of the charter in many cases are not available to the children, parents or guardians. In most institutions, the charter plays the role of a document which defines merely the legal status of the institution.

A significant shortcoming is the fact that Ukrainian legislation, while guaranteeing the right to information, and in particular for children especially access to such information as will promote social, spiritual and moral wellbeing, the healthy physical and mental development of the child, does not specify those people through whom the state fulfils its function.  This situation with legislation particularly applies to the system of health care. However the lack of such norms does not absolve the state bodies and officials of the responsibility to provide information about the internal regulations of the institution, since these norms also constitute information which has impact on the health and wellbeing of the child.

For the health care system typical problems are those with access to the form of provision of information, access to information which could cause harm to the child, protection of the child from information which could damage his or her health and wellbeing, as well as the confidentiality of medical information. Although Ukraine’s legislation regulates all of these issues, in practice these norms are often not adhered to. In this context it should be mentioned that the low level of knowledge among medical personnel with regard to legal standards for providing medical assistance is also a problem.

Children whose age would already allow them to understand the situation are often not informed about a review of the issue of their care.

Minors seldom have the opportunity to find out about their case in court and are not always informed about the course of the proceedings, and the appropriate procedural rights.

5.   THE RIGHT TO EDUCATION

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”, Article 2 of Protocol № 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms affirms.

  The right to education is enshrined in Articles 28 and 29 (the objectives of education) of the UN Convention on the Rights of the Child.  Article 31 of the same Convention affirms that children have the right to rest and leisure, and to participate freely in cultural life and the arts

Article 53 of the Constitution of Ukraine and Article 19 of the Law of Ukraine “On the protection of childhood”, adopted in 2001, guarantee each person the right to education. Educational issues are regulated in more detail by the Laws of Ukraine “On education” (1991), the “On general secondary education” (1999) and “On pre-school education”.

In accordance with Article 28 of the UN Convention on the Rights of the Child “States Parties shall … take measures to encourage regular attendance at schools and the reduction of drop-out rates”

Point 3 of Article 37 of the Law of Ukraine “On education” states “… for children requiring long-term medical treatment, pre-school educational institutions, general education school-sanatoriums, children’s homes shall be created. Lessons for these children shall also be undertaken in hospitals, sanatoriums or at home …”

However, despite positive trends, according to statistical information, over 20 thousand children do not attend school. The most acute situation can be observed in the Dnipropetrovsk, Donetsk, Zaporizhya, Kirovohrad, Luhansk, Lviv and Kharkiv regions, as well as in the Autonomous Republic of the Crimea.

Access to pre-school education is a problem in rural areas. The broadening of access to education will be aided by, among other things, improving organization of regular transportation of children to educational institutions. At the present time in rural areas 83% of those students needing help to travel to school (there are 257 thousand such students in the country) receive this service.

There is a serious problem in Ukraine with achieving the full compulsory education of children with psychological disorders or children with impaired physical possibilities (disabled children). The individual approach proclaimed in many instances does not work. It is a fact that today’s schools do not have the real capability to organize studies for these children within the institution. There are no special personal for this, and such staff are not allowed for. Educators in practice are also not ready to organize the teaching and upbringing aspects, to create an atmosphere of tolerance in the school community in conditions where disabled children with the difficulties mentioned study within the community of a general school.

The system of individual studies at home is also virtually not functioning.  At best the school restricts itself to having the children periodically take tests or other course requirements which the children are prepared for by their parents. . The refusal to undertake any kind of teaching even at home is typical. The practice is also widespread of refusing to teach these children on the grounds that the particular child’s condition is “such as to not be suited to learning”.  The only positive thing in this remains the fact that there are no legal grounds for making these claims. Such conclusion are a grave violation of Ukrainian legislation and a flagrant violation of human rights. At the present time there are no special programs, virtually no specialists trained in one-to-one teaching of children with developmental impairments, and the relevant funding is also not available. The sole possibility for such children is in specialized state institutions. The state has thus not created conditions for the social integration of children with developmental impairments.  These children are often forced to be brought up outside the family which constitutes a major limitation in their rights without any reasonable grounds for this whatsoever.

There is no normative document on the organization of studies in a health care institution, with only Order № 732 of the Ministry of Education and Science from 20 December 2002 which approved “Provisions on an individual form of studies”. In accordance with Point 17 of these Provisions, school students who because of their state of health cannot attend an educational institution have the right to individual tuition. However an individual form of tuition does not allow for the holding of lessons on the basis of a health care institution.  „... Individual tuition for students who need to undergo treatment in a health care institution for more than one month shall be organized on the basis of the educational institution nearest to the place of treatment, as determined by the local body of the department of education, and shall begin no earlier than 3 – 5 days after the patient has entered the health care institution. Should there be five or more individuals, the studies shall be carried out in group form (as per need during the academic year)…”[15]

There remains a problem with the unsatisfactory supply of materials for general educational institutions. The declarations from state officials claiming that each student today is provided with textbooks are far from the truth. The state is not exercising the necessary control over the process of preparing nor over the real situation with provision of materials.  The main levers for such control fall in the main to the educational institutions themselves, while a part of the materials allowed for “disappear”, without reaching the said institutions.

Access to education in Ukraine to a large extent depends on the economic position of the parents. The state in its turn has taken on the commitment to provide compulsory general secondary education at the level of constitutional law.

A component part of the problem is the authority of educational staff who work in conditions which do not promote a high quality of educational service. Very little attention is given to teaching educational staff about the rights of the child, or to training specialists able to work with children with impaired possibilities. The excessive load on teachers lowers not only the quality of education, but also the level of safety of the children.

In its attitude to the work of educational staff in Ukraine, an absurd situation has been created which looks as though the state does not trust itself.  While controlling and carrying out training of educational workers, their professional level is at the same time placed in doubt, given the limitations placed on these workers as to any independent choice of form and methods of teachings. For example, the choice of textbooks remains fairly limited.  The existence at the same time of state standards of general secondary education, of responsibility of educational staff, and state “censorship” in the mechanisms of approving textbooks and other educational manuals (“recommended” or “permitted” by the Ministry of Education and Science) place obstacles in the way of using, creating or choosing alternative textbooks, and provide scope for corruption among civil servants.

Children in private shelters cannot attend school for long since the lack of clearly defined legal status does not allow the school to accept these children. It is however a drawn-out procedure to gather all the documents needed, in accordance with legislation, to establish this legal status of the child  As a rule the procedure in practice is virtually impossible to achieve within the legally stipulated time limits.

6.  THE RIGHT OF CHILDREN, DEPRIVED OF THE OPPORTUNITY TO GROW UP WITH THEIR BIOLOGICAL PARENTS, TO CARE IN FOSTER FAMILIES AND IN FAMILY-TYPE INSTITUTIONS

In 2004 a coalition of civic organizations working for the good of children was formed in Ukraine. It members were the representative office of the International Charity “Hope and homes for Children”, “Every child in Ukraine” and the Christian Children’s Fund..

These organizations adapted and introduced into Ukraine the best experience from other countries and developed a range of new models and technology for social work with families and children. These included:

creating models for working with families in crisis on rehabilitation of their parental role;

introducing models to prevent mothers giving up their newly-born babies;

creating centres “Mother and Child Together” in the Kherson, Kyiv and Chernihiv regions;

undertaking training, creation and backup for foster families

supporting the creation of family-type children’s homes;

involving local communities in providing social services to children and families;

implementing a model for reintegrating children living in children’s homes with their biological families;

Among the important achievements of civic organizations has been the preparation / adaptation and testing of programs for training foster parents and staff of family-type children’s homes which was carried out by the Christian Children’s Fund, the organization “Hope and homes for Children”, and also the organization “Sunshine”.  Over several years now, despite the lack of state standards or programs, these organizations have been actively working to develop family-type forms of bringing up orphans and children without parental care.

In February 2006 the Ministry of Ukraine on Family, Youth and Sport, the State Social Service for Family, Children and Youth, and the Institute on Family and Youth Issues began an accelerated program to run training courses for trainers preparing potential foster parents, and to draw up a National Program on the training of foster parents without taking into consideration the experience acquired over the last years and the resources of Ukrainian NGOs in the given area.

  Among potential trainers for foster parents, the preparation of whom the Ministry and Institute began “from scratch”, there are a very limited number of people with any experience at all either in running training courses or of direct work with foster parents. And this is when the above-mentioned civic organizations, taken together, have over 100 qualified trainers and specialists precisely in work with foster parents, parents in family-type children’s homes, orphans and children deprived of parental care.

  One can thus conclude that, instead of drawing upon the existing potential, resources and experience of civic organizations, a squandering of state budgetary funding is underway. The activities of civic organizations in this sphere are being entirely ignored by the state. At the present time, the activity of the Ministry has demonstrated lack of any interest in cooperating with civic organizations (although, thanks to the lobbying of these same civic organizations, there has been move in Ukraine towards reforming the state system of care for orphans and children deprived of parental care).  The worst thing, however, is that it is precisely the children who will in the first instance suffer from the state’s activities, since the concentration on showings, as experience has taught, only causes further trauma to children who are already in a situation of crisis.

Another example of such “beneficial” activities of the state is the Draft Concept for reforming state institutions of care for orphans and children deprived of parental care, presented in December.  According to this document, the state plans to ensure the right of each child to live in a family environment by closing orphanages for 250 – 300 children and opening new orphanages for 50 kids. The document is presently under review by the Cabinet of Ministers. Civic organizations were invited to discuss the document at a stage when any amendments or additions were already impossible[16].

7.   RECOMMENDATIONS

WITH REGARD TO FREEDOM FROM DEGRADING TREATMENT AND PUNISHMENT

1  A system should be created of specialized courts (juvenile justice). This will help improve the practical efficacy of the procedure for protecting the rights of the child, as well as the liability for the non-observance of these rights by those with responsibility.

2  Normative acts regarding the prohibition of corporal (physical) punishment should be made to work, and need to be accompanied by broad-ranging educational and information measures, training courses among professional groups working with children or in their interest, parents or those replacing them.

3  Changes are needed in procedure for criminal investigation and court proceedings. The child should communicate with those running the investigation via a psychologist in a safe environment. The conditions should minimize the degree to which the child takes direct part in court proceedings or the investigation. To achieve this, it is important to use audio and video recordings, a “Venetian mirror” during questioning to avoid having to repeat testimony many times.

4  Rehabilitation and treatment programs for victims of violence, as well as the offenders themselves, should be developed or improved, and implemented. Any suspended sentences passed down should be directly contingent upon the offender’s participation in treatment.

5  The resolution of situations of conflict and methods of upbringing in educational institutions must comply with standards for observing the rights of the child.

6  “Status” punishments, that is, those where minors can be punished for acts which an adult would not be held legally liable for and would not therefore face punishment for, should not exist either at the level of legislatively imposed norms, or in the practice of preventive upbringing measures.

WITH REGARD TO THE RIGHT TO INFORMATION

1  Children able to understand their circumstances need to be guaranteed access to information concerning them in school, children’s homes, at the doctor, or in the case of court proceedings.

2  More attention needs to be paid to teaching children about human rights and the rights of the child. Human rights education is an important component of civic education. Programs need to be developed for children of different ages, textbooks should be written and there needs to be the possibility of choice.

3  Representatives of professional groups working with children or in their interest should have special training on the rights of the child.

WITH REGARD TO THE RIGHT TO RESPECT OF PRIVATE LIFE

The private life of children in educational, health care or other institutions must be protected. The staff of these institutions should respect the privacy of students, children in care and young patients, especially where they are living in group conditions.

WITH REGARD TO THE RIGHT TO EDUCATION

1  All children must have equal possibilities for gaining general secondary education. Equality of educational chances should begin with pre-school education.

2  The state should pay particular attention to ensuring access to.education for children with impaired possibilities, with the maximum level of socialization for these children within general education schools, and should provide individual tuition for those children needing it.

3  Children in hospitals and similar should have the opportunity to continue their education if their state of health allows.

4  Proper financing needs to be provided for educational institutions, with payment of salaries for educational staff and provision of the necessary materials in schools.

5  The state authorities should develop and introduce a separate program for children who have dropped out of school and do not wish to continue their studies.

WITH REGARD TO THE RIGHTS OF ORPHANED CHILDREN[17]

Discrepancies in the laws on orphaned children need to be eliminated, specifically:

1.  According to the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care” from 13 January 2005, the right to full state support in educational institutions is guaranteed to orphaned children and children deprived of parental care up to the age of 18, and to those children in this group if continuing their education, to the age of 23.  The end of this provision is linked with completion of studies (not age). At the same time, in accordance with the Order of the Ministry of Education and Science and the Ministry on Family, Children and Youth  “On approving Provisions on children’s homes and general education school-orphanages for  orphaned children and children deprived of parental care” from 21 September 2004, the said children remain in general education school-orphanages until they finish their basic or full general secondary education, or where necessary until they come of age (reach 18).  It is thus not clearly established up to what age young people can remain in such institutions.

2.  A child’s documents only set down the person who is responsible for keeping any property remaining after the death of the parents. Those responsible for maintaining any other property are not indicated.

3.  In accordance with the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care” from 13 January 2005 the main function with regard to protecting a child’s property rights and interests is vested in bodies under the jurisdiction of the Ministry on Family, Children and Youth, while according to the “Rules of care and guardianship” from 26 May 1999 – in bodies under the Ministry of Education and Science.

4.   According to the Family Code from 10 January 2002 and the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care” from 13 January 2005, the child retains the right of use to the accommodation in which he or she lived before being placed in a school-orphanage. That is, the child is entitled to the accommodation either on the basic of collective ownership, or as private owner. In addition, according to the Law “On protection of childhood” from 26 April 2001, the premises are retained in the children’s name for the entire period during which they are in state care, regardless of whether the property where the children have come from is now lived in by other members of the family. At the same time, the Housing Code states that living premises are retained for the children if there are other members of the family living in the house or flat (or part of such). There is thus a contradiction, since it is not set down whether there must be somebody from the family of the child living in the accommodation to ensure that the property is retained in the child’s name.

5  The Law ““On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care” states that the child is provided with housing “in the event of his or her lack of right to housing”, this being an incorrect formulation since, according to the Constitution (Article 47) all citizens of Ukraine have the right to housing. One may lack housing, but not the right to it.

6.   According to the Civil Code a person from the age of 14 to 18 is considered to be a minor, while under the “Rules of care and guardianship” – from 15 to 18.

WITH REGARD TO THE RIGHTS OF CHILDREN DEPRIVED OF THE POSSIBILITY OF BEING BROUGHT UP IN THEIR BIOLOGICAL FAMILY, AND THE RIGHT TO CARE IN FOSTER HOMES AND IN FAMILY-TYPE CHILDREN’S HOMES

There is an urgent need for a reform to the system of care in Ukraine and such reform needs to take place at a pace which is as intensive as is feasible. However this process must be phased and professional. Broad public discussion of the reform is needed at the stage of formulating a plan of possible changes, with the use of the experience already gained by nongovernmental organizations which are working in this area.

The state must create conditions for early identification of “crisis” families in order to organize timely social backup. A significant number of children could remain in the family environment if such families received more financial and psychological support.

The training of foster parents needs to be compulsory and take place at a professional level. The responsible state authorities should develop programs for such training. During the process of preparation of such programs, experts from nongovernmental organizations should be consulted in order to organize a comprehensive process of preparation and to base the process on principles of the rights of the child.

[1] “Review of reports presented by participating states in accordance with Article 44 of the Convention”, CRC/C/15/Add. 191, 2002., Section D 1.

[2] On the program for adapting legislation (in Ukrainian) see the official website of the Ministry of Justice : http://minjust.gov.ua/?do=d&did=2039&sid=about_int_adapt

[3] The official website of the Ministry of Justice: : http://minjust.gov.ua/?do=d&did=201&sid=about_int_2

[4]  This is the term used in the legislation [the Ukrainian is безпритульний – literally, without shelter, without care – translator]

[5]  “Report on the observance of the rights of children living in self-organized conditions”, The International Society for Human Rights. Ukrainian Section. Kyiv, 2006.

[6] The Criminogenic situation in Ukraine in 2005. Information from the Department for Public Relations of the Ministry of Internal Affairs from 24 January 2006. Available (in Ukrainian) on the official website of the Department: http://mvsinfo.gov.ua.

[7]  The text in Ukrainian is available at UHHRU Website: http://helsinki.org.ua  (also referred to at: www.prima-news.ru)

[8] Olena Ivashko, Ivan Illyash, Mykolaiv. The Newspapers “Holos Ukrainy” № 1108 from 11 August 2005.

[9] Elzbieta Czyz, the Helsinki Foundation for Human Rights (Warszawa, Poland) – Warsaw, 2003 (Unofficial translation from the Russian version).

[10] Article 289 of the Civil Code of Ukraine.

[11] Elzbieta Czyz, the Helsinki Foundation for Human Rights (Warszawa, Poland) – Warsaw, 2003 (Unofficial translation from the Russian version)..

[12] ibid

[13]  More detail can be found in “Human Rights in Ukraine – 2004. Report of Human Rights Organizations”.  Kharkiv: Folio, 2005. Available in English and Ukrainian at: www.helsinki.org.ua.

[14] Recommendation № 1286, adopted at the regular session in 1996.

[15] Point 2.2 of. Order № 732 of the Ministry of Education and Science from 20 December 2002.

[16]  Information on the situation regarding the right of children deprived of the possibility of living with their biological family to care in foster families and family-type children’s homes was provided by the Christian Children’s Fund (Kyiv, Ukraine).

[17] Recommendations on the observance of the property rights of orphans were prepared by Olena Hrabovska (The Regional Charitable Fund “Resonance”, Lviv) on preliminary findings of monitoring of the property rights of orphans in Ukraine, undertaken with the financial support of the International “Renaissance” Foundation.