XVI. Children’s rights
Previous reports have covered the situation of children’s rights observance in such spheres as education, health care, rights to rest, leisure and physical development, participation in public life, protection against cruel treatment and violence, access to social services etc. Certainly, all previous conclusions and recommendations are still topical even today.
However, since the outbreak of hostilities in the territory of Donetsk and Luhansk regions leading to a large number of victims among civilians and Ukrainian military men, Ukraine has faced yet another problem — thousands of forcibly displaced persons from these regions started to move to other regions of Ukraine. This phenomenon caused new social and economic threats. That is why this problem is the main focus of this report.
According to data of the UNHCR as of November 28, 2014, there are 490,046 of internally displaced persons in Ukraine. Most of them concentrate in the following regions:
— Kharkiv region — 117,188 persons (24%);
— Donetsk region — 72,887 persons (14.8%);
— Zaporizhzhia region — 48,527 persons (9.9%);
— Dnipropetrovsk region — 41,922 persons (8.5%);
— City of Kyiv — 39,047 persons (8%);
— Luhansk region — 30,120 persons (6.1%);
— Odesa region — 19,783 persons (4%);
— Kyiv region — 16,971 persons (3.5%);
— Poltava region — 15,373 persons (3.1%).
1. Protection of rights of children who are in need of protection
by the state due to the armed conflict
Anxious moods, fears and disappointment are spreading in the society. In view of a difficult social and political situation there have been few purposeful or concerted actions on part of the government institutions. In such situation, the most vulnerable are families with children, citizens (including children) with special needs, elderly people — both those who were forced to leave their places of residence and those who stayed in cities and villages in the action area of the Anti-Terrorist Operation (ATO).
There are over 8 million children living in Ukraine. As of the start of 2014, residential care facilities in all jurisdictions had over 90 thousand children being raised within its premises including nearly 14 thousand of orphaned children and those deprived of parental care. At the beginning of the ATO, social care institutions and orphanages of Donetsk and Luhansk regions homed 2.8 thousand children (1.6 thousand children in Donetsk region and 1.2 thousand in Luhansk region). In 25 facilities and institutions of the AR of Crimea and the city of Sevastopol there were 588 orphans and children deprived of parental care.
Over the period of the ATO, over 1,500 children living in residential care facilities located directly in the ATO area left the hazardous zone. However, we cannot say with assurance that all children have been evacuated from the said territory, since every day there are more and more children getting deprived of parental care.
At present, for the internally displaced persons it is utterly important to receive timely and full information regarding protection of their rights guaranteed by the Constitution of Ukraine: starting from the right to employment or education and up to the right of receiving any social benefits.
The most effective instrument in this area is the National hotline on prevention of domestic violence, human trafficking and gender-based discrimination as well as the National hotline for Children, which operate on the basis of the La Strada — Ukraine International Women’s Rights Centre. So far, over the period from March to November 2014, the national hotlines received 524 calls directly from the internally displaced persons or those who planned to move somewhere safer within Ukraine and 2,615 calls from residents of those regions where majority of citizens from Donetsk and Luhansk regions now live.
Up till now, there is no solution to the issue of protection of housing and property rights of orphans and children deprived of parental care who are registered in the AR of Crimea but temporarily moved to the other regions of Ukraine. Unfortunately, the effective legislation of Ukraine stipulates that such children may be housed only in the places of their origin. Apart from that, it is fair to expect that under such circumstances the number of families with children as well as children in difficult life circumstances and, therefore, in the situation of social orphanhood, will continue to grow. As a result, we can expect escalation of child homelessness and neglect as well as a spike in the number of orphaned children and children deprived of parental care. That is why we must adjust the effective legal and regulatory framework on placing orphans into family-type care facilities and providing services to families with children in difficult life circumstances, to the existing wartime circumstances.
At the UNICEF initiative, an express assessment of social and psychological condition of children was conducted in four cities of Donetsk region, which was aimed at determining the impact of the current crisis on the life of children and their families by gathering information on the child stress level and its primary causes, compensation mechanisms as well as the ability of local community representatives to help such children.
The express assessment showed that:
— every fifth respondent child aged 13–18 years has the anxiety level exceeding the norm;
— children aged 3–6 years demonstrated a much higher level of fear of blood or sudden harsh sounds as compared to the norm. Besides, boys had a higher level of fear of death and girls — of fear of pain as compared to the norm for their age.
— every sixth child aged 7–12 years and every fourth child aged 13–18 years showed an increased level of social stress as compared to the norm.
By the results of this assessment, recommendations were given to the Government of Ukraine as well as to the international and national non-governmental organizations.
2. Legislation on protection of children’s rights
By considering a child as an object for protection rather than a holder of his or her own rights, the state policy leads to the merely declarative nature of the Ukrainian legislation on children’s rights, due to which far not all of the children’s rights stipulated in the Convention on the Rights of the Child are supported by the relevant laws. The state lacks a systematic approach where a child’s opinion would be considered at all levels of social life. The principle of the best interests of the child forms the basis for the state policy only in the sphere of childhood protection and family relations regulation. The state policy is not aimed at active countermeasures against discrimination of vulnerable and marginal groups, primarily, in their access to education or medical services. State programs and plans on children’s rights are financed rather by the “left-over principle” than through allocation of a fixed share from the total budget, which would be spent on their implementation.
Even though in 2011 the Concept for Development of Criminal Justice regarding the Underage in Ukraine and the action plan for its implementation were approved, no ombudsman institute on children’s rights has been established till today as well as no juvenile justice as a comprehensive legal system for the underage has been implemented. National legislation does not fully correspond to the needs and problems of children, as regards, first of all, to the general approach of state policy to guaranteeing children’s rights when a child is not seen as a holder of its own rights but only as a person to be protected. Many legislation provisions regarding children’s rights remain purely declarative, and far not all children’s rights stipulated in the Convention of the Rights of the Child are supported by proper laws. For example, there is no way to implement the child’s right to participate in making decisions directly related to such child. Besides, today a new category of children should be singled out — children affected by occupation of the Ukrainian territories and the ATO. Inferiority of the legal and regulatory framework in Ukraine in the sphere of protecting children from sexual abuse impedes the efficient and comprehensive protection of children from getting them involved in prostitution and other forms of sexual abuse.
Starting from 2013, certain state-run targeted programs are implemented in Ukraine, which are aimed at counteracting violence and cruel treatment of children. For example, in 2013 the Cabinet of Ministers of Ukraine approved the National Targeted Social Program for Family Support up till 2016. The objective of this Program is to set a value orientation for people where having a family and children will be a priority, as well as to increase the efficiency of supporting families in difficult life circumstances. Before 2016, the Ministry of Social Policy together with the Ministry of Internal Affairs plans on bringing the national legislation into compliance with the Convention of the Council of Europe on Preventing and Combating Violence against Women and Domestic Violence. However, financing of the said measures is insufficient. For example, 1,605.2 thousand hryvnias budgeted by the Ministry of Social Policy for outdoor poster campaign on prevention of domestic violence have never been allocated.
Also, in 2012, by the Order of the President of Ukraine a certain strategy for prevention of social orphanhood for the period of up till 2020 was approved. Thus, the act stipulates the change of a focus area from combating the consequences of difficult life circumstances to preventing the families from getting into such circumstances. Before 2019, it is planned to introduce new social technologies aimed at early detection of families with children in difficult life circumstances and cultivation of responsible parenthood.
During 2011–2014, the La Strada — Ukraine Centre supported by UNICEF in Ukraine developed a series of draft laws which were laid before the Verkhovna Rada (No. 9540, No.7390, 7391, 9135, 9136, 4099а). Later, several round-table conferences were organized to introduce these draft laws and discuss them with a wide range of experts as well as to align positions regarding counteraction to child prostitution at the legislative level. Ukrainian MPs confirmed their intention to support these legislative initiatives, however, regardless of the conducted work, the said draft laws have not been considered by the parliament.
The mentioned draft laws related to the issue of the age of puberty, the fact of which is currently determined by the forensic test, and practice of the courts indicates a rather unspecified age of 14–16 years as the age of puberty. Within the framework of the abovementioned draft laws, it was suggested to make amendments to article 155 of the CC of Ukraine (sexual relations with a person under the age of puberty) with respect to determining the minimum age of consent, which would deliver from the necessity of doing a mandatory forensic test to establish the puberty of a victim less than 16 years of age. Also, the draft law suggests keeping the provision which prescribes expert opinion if needed to establish the puberty of a person over 16 years of age if there are any doubts regarding puberty of such child. Lack of understanding of this problem on part of the MPs as well as low political will with respect to protection of children’s rights add substantial complexity to the process of legislators’ approving the relevant amendments.
The anti-terrorist operation in Eastern Ukraine also requires improvement of legislation in the sphere of protection of children’s rights.
In April 2014 the National Hotline Service for Children received a call from a mother of four underage children regarding mobilization of her husband due to which her family was left without a breadwinner since the woman was on her childcare leave. The La Strada — Ukraine Centre initiated making amendments to the Law of Ukraine “On mobilization training and mobilization” for promoting the protection of children’s rights in the period of mobilization preparation and mobilization. This law was signed by the President of Ukraine on August 12, 2014. From then on, all males subject to military service who are in charge of three or more children under the age of 18, as well as females who are in charge of children under the age of 18 may not be called to military service under mobilization. Besides, those women and me, who independently raise children under the age of 18 or are in charge of disabled children of I or II disability groups, are also relieved from military service until their children attain 23 years of age. Such citizens may be called to military service if they consent thereto and only at the place of their residence. In addition, females who are in charge of children under 18 years are subject to exemption from military service in a particular period if they wish to discontinue their service.
Also, in order to promote the protection of rights of children who reside or resided in the areas of anti-terrorist operation, the following has been approved:
— Law of Ukraine “On ensuring rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine”;
— Law of Ukraine “On ensuring rights and freedoms of internally displaced persons”;
— Procedure for granting a monthly targeted aid to persons moving from the temporarily occupied territory of Ukraine and action areas of the anti-terrorist operation to cover living expenses, including payment for housing and public utility services”;
— Procedure for registration of persons moving from the temporarily occupied territory of Ukraine and action areas of the anti-terrorist operation;
— Interim Procedure for financing the state-budget institutions, payment of social allowances and granting financial aid to certain enterprises and organizations of Donetsk and Luhansk regions;
— amendments to resolutions of the Cabinet of Ministers of Ukraine No. 57 dated January 27, 1995 and No. 1251 dated December 21, 2005 on strengthening control over departure beyond the territory of Ukraine of orphaned children and children deprived of parental care under the age of 16 residing in the action areas of the anti-terrorist operation;
— amendments to resolution of the Cabinet of Ministers of Ukraine No. 866 dated September 24, 2008 on peculiarities of activities of the guardianship authorities with respect to protection of rights of children displaced from the temporarily occupied territory or action areas of the anti-terrorist operation.
3. Coordination of activities of government authorities
Destruction of the institutional mechanism of children’ rights protection due to the administrative reform is a real challenge to the stability of policy and programs aimed at the children’s benefit. The administrative reform hurt the sphere of children’s rights leading to new problems and challenges as well as to the need of enhancing activities of governmental authorities and improving the national policy on childhood protection. This tendency could be observed in 2014 too.
Today there is no statutory provision regarding the number of staff of childcare services (due to adoption in 2012 of the Law of Ukraine “On amendments of certain legislative acts of Ukraine regarding activities of the Ministry of Agrarian Policy and Food of Ukraine, the Ministry of Social Policy of Ukraine, and other central governmental bodies, the activities of which are directed and coordinated by the relevant ministers”).
Reformation of the MIA of Ukraine also led to liquidation of the Department of Criminal Militia for the Children-Related Matters and to establishing instead two weak and little-related subdepartments in different departments — for prevention of offences and for criminal detection. Wholesale redundancy also took place at the local level of the IAA, including at the cost of such services. After some time, in view of the criticism on part of the public and international organizations, a separate Department of Criminal Militia for the Children-Related Matters was established.
Besides, the State Department for Supervision over Labour Legislation Observance was also liquidated. At the same time, the on-going process of reorganization and transfer of functions to other authorities took place; however, we can say that no coordination of work regarding the legislative control of child labour and avoidance of its exploitation is taking place.
The system for protection of children’s rights in Ukraine still remains uncoordinated. Responsibility for children is distributed among different ministries and agencies, cooperation between them being of little efficiency, sometimes even no cooperation between them at all. The coordinating body which shapes children-related policy and ensures its implementation is the Ministry of Social Policy.
In conditions of reformation of local government and territorial organization of power in Ukraine, which was commenced with the approval by the Cabinet of Ministers of Ukraine of resolution No. 333-p dated April 1, 2014 on delineation of powers between the executive and local authorities by the principle of decentralization of power, it is important to maintain the stability of functioning of structural subdivisions of regional, district, city/town state administrations which are entitled to implement measures on protection of the children’s rights, and namely that of childcare services and centres of social services for family, children and youth.
In 2012 a new institute of social work specialists was established in Ukraine. This enabled to introduce a conceptually new approach to solving problems of the Ukrainian families in difficult life circumstances. As of the beginning of 2014, the number of such families amounted to 12 thousand persons. However, after escalation of the political situation, the government passed a resolution on reduction of expenses from the state budget for maintenance of such specialists, which, as a matter of fact, levelled all previous achievements: over 140 thousand families raising almost 300 thousand children, who have been supervised by specialists on a case management basis, will not be able to receive the relevant social services since the employees resource of centres of social services for family, children and youth is insufficient for covering such a large number of clients. This step caused increase in the number of children who are granted the status of children deprived of parental care; increase in the number of children placed in residential care facilities at the parents’ request; increase in homelessness and neglect.
In view of the above, it is clear that Ukraine must proactively implement the policy of high priority child care, which would be based on: prevention of social orphanhood; introduction of new technologies of social work; raising social significance of a family etc. In this context, it is important to activate cooperation between the governmental authorities and the non-governmental sector in social and legal protection of children and families with children in difficult life circumstances.
It should be noted that during 2014 there was only one meeting of the Interagency Committee for Childhood Protection though the Regulations stipulate that meetings of such Committee must take place at least once in three months. At the same time, taking into consideration the fact that Ukraine has faced cardinally new problems related to internal displacement of persons and the necessity of taking measures on protection of people’s rights, especially those of children who opted to stay in the area of armed conflict, it would be reasonable to consider this question at the level of Interagency Committee for Childhood Protection in particular.
There is also much concern about situation with the function of policy on families and prevention of domestic violence. Before the administrative reform of 2011, the said functions had been falling within the competence of departments for family, youth and sport, which are currently not specified in the Reference list of structural subdivisions of regional, Kyiv/Sevastopol city, district, district in the city of Kyiv/Sevastopol state administrations. At present, functions of these departments have been assigned in random manner to different structural subdivisions, and in some regions there are no responsible authorities for implementation of family policy at all. This makes it impossible to ensure high quality implementation of the family policy either at the central or at the regional level.
Herewith, the system of central executive bodies responsible for formation and implementation of the state policy in the family matters and in the sphere of domestic violence prevention still has the Ministry of Social Policy of Ukraine in its structure. The order of the Ministry of Social Policy No. 741 dated 26.11.2012 approved Recommended practices for development of provisions on social security structural subdivisions of local state administrations, pursuant to which the Social Security Department of regional, Kyiv/Sevastopol city state administrations shall ensure implementation in the relevant territory of powers stipulated by the legislation of Ukraine in the sphere of improving the condition of families and preventing domestic violence.
4. National action plan on implementation of the UN Convention
on the Rights of the Child
The effective legislation on protection of children’ rights needs a comprehensive revision since the whole Ukrainian legislation is oriented at protection of rights only in peacetime.
Taking into account results of the Monitoring report of non-governmental organizations with respect to fulfilment in 2010–2013 of the national action plans on implementation of the Law of Ukraine “On the state program “The national action plan for implementation of the UN Convention on the Rights of the Child” for the period until 2016” regarding the state’s having no clear vision of the reform of system of protecting children and supporting families with children, the Cabinet of Ministers of Ukraine must develop a long-term state program which would be based on thorough analysis of the situation and would be aimed at achieving strategic priorities in reformation of child protection system with consideration of problems of internally displaced persons and families with children staying in the occupied territories and the ATO action areas.
As noted in the monitoring results, “the analysis has shown that the process of developing annual action plans was in itself inefficiently conducted. Thus, substantial portion of important tasks, performance of which constituted an objective necessity and which had been even performed, was not included into such plans. From our point of view, such situation is due to insufficient coordination of activities between different central executive authorities, lack of attention to development of the program measures, certain formalism, as well as to the fact that there is no strategic planning whatsoever”. National plans are developed on an annual basis in order to implement provisions of the UN Convention on the Rights of the Child, but, at the same time, significant portion of the Convention articles and provisions have never been reflected in the Program or plans. Besides, the formulated measures do not always comply with the set objectives.
As of 01.11.2014, the Government approved no such action plan for 2014. This is primarily due to escalation of the political situation in Ukraine and frequent changes of the leaders in the central executive authorities. However, this year the draft state budget allocates only 222.1 million hryvnias for fulfilment of the action plan, which is 17% less than in 2013.
In view of the current financial and economic crisis in Ukraine, the mere possibility of financing measures aimed at protection of children’s rights is rather positive. But substantial cutback on financing bears certain risks. For example, now a large number of children that have been in the ATO action area for some time will need psychological support. Unfortunately, there are no qualified specialists in Ukraine, who would work with such children, nor there are any programs for their rehabilitation. Also, today none of the governmental institutions disposes of the accurate data on the number of such children or on their needs. Therefore, starting from 2014, the annual action plans for implementation of the “National program “The national action plan for implementation of the UN Convention on the Rights of the Child” for the period until 2016” must contain an issue regarding protection of children’s rights in the circumstances of emergencies, namely in the circumstances of the anti-terrorist operation.
5. Best interests of the child
The issue of considering the best interests of the child when planning the state policy and programs is still pending.
The Law of Ukraine “On childhood protection” emphasizes that children are objects but not subjects of protection. The same tendency may be observed in legislation on the whole. Moreover, no comprehensive analysis of the state policy and programs is carried out with respect to observing the best interests of the child as well as assessment of impact that such actions have on children. No proper coordination of activities is ensured between the relevant ministries and agencies on protection of children’s rights, dissipation of the allocated budget funds is tolerated.
It must be noted that the Expert Board for Children’s Rights Observance at the Representative of the Commissioner for Children’s Rights Observance, Non-Discrimination and Gender Equality as well as the Public Council at the Ministry of Social Policy of Ukraine have no members under 18 years of age and no members representing any children organizations, which evidences that no children are involved into the decision-making process and the process of state policy development.
The principle of consideration of the child’s opinion neither is included into the Law of Ukraine “On education”, which stipulates that “pupils, students, education workers may establish within the educational institutions the original centres of public organizations that they are members of”. And as reported by the Ministry of Education and Science of Ukraine, there are self-governance bodies formed by school and university students functioning in the country.
However, students’ self-governance and children’s public organizations may not be considered as identical notions. Even more so, today in Ukraine there is a whole range of proactive public organizations, either local or nationwide, which deal with protection of children’s rights and awareness-building by the peer-to-peer principle as well as with formation of social policy as, for example, Zhytomyr City Children’s Public Organization “Vse Robymo Sami” (“All by ourselves”). But the state action plans do not contain any provisions aimed at support or development of children’s organizations.
1. In view of the current complicated social and political situation in Ukraine as well as forecast of 10% increase in the number of orphans and children deprived of parental care due to the ATO, the following vectors of the state’s activities must be seen as the most urgent:
— preparation of specialists for treating consequences of the post-traumatic stress disorder of the internally displaced persons;
— introduction of methodologies for working with families whose members died during the ATO as well as with families and children who will come back to their places of permanent residence after the ATO completion;
— regulation of the issue of social benefits payment to families with children;
— adaptation of the legislation on protection of rights of orphaned children and children deprived of parental care with consideration of the temporary occupation of the AR of Crimea and the city of Sevastopol and the ATO areas;
— engagement of international experts experienced in working with persons residing in battle zones to development of methodologies and programs;
— creating proper conditions for children and families with children from among the internally displaced persons willing to return to the places of their permanent residence, including repairs and reconstruction of institutions, buildings and apartments ruined during the ATO;
— holding advocacy campaigns in the Eastern regions of Ukraine for the adoption and foster placement of orphans and children deprived of parental care;
— high quality preparation of candidates for guardians, caregivers, adopting parents, raising parents, and further case management of such families;
2. When planning the work on prevention of social orphanhood in Donetsk and Luhansk regions it is important to consider the possibility of increase in the number of homeless and neglected children. This may be caused by the increase in the number of parents, who, due to social and economic problems in the regions, will not be able to duly perform their duties. In order to mitigate this, it is necessary to introduce programs for rehabilitation and adaptation of families in difficult life circumstances, where there is a risk of the child’s removal. Prime importance must be also attributed to ensuring employment for parents as well as the relevant benefits and welfare payments (if eligible or introduction of the new ones).
3. Priority areas of work on integration and reintegration of the forcibly displaced persons among orphans, children deprived of parental care, families with children in difficult life circumstances, must be as follows:
— enhancing work on social orphanhood prevention;
— ensuring family-like upbringing for orphans and children deprived of parental care;
— ensuring protection of housing rights of orphans and children deprived of parental care;
— introduction of high quality services for families with children in difficult life circumstances aimed at restoration of the parental potential;
— encouraging families who moved from the temporarily occupied territory of Ukraine and the anti-terrorist operation action areas, to return to places of their permanent residence after the ATO completion.
 The section is prepared by specialists of the La Strada — Ukraine IWRC: K. A. Borozdina; O. A. Kalashnyk; L. H. Kovalchuk, Cand. Sc. (Education); K. B. Levchenko, Doctor of Law; M. M. Lehenka; L. B. Mahdiuk; V. V. Mudrik.
The report also employs the materials of Monitoring report of non-governmental organizations with respect to fulfilment in 2010–2013 of the national action plans on implementation of the Law of Ukraine “On the national program “The national action plan for implementation of the UN Convention on the Rights of the Child” for the period until 2016”, namely the materials authored by A. M. Beh, N. P. Bochkor, M. V. Yevsiukova.
 Resolution of the Cabinet of Ministers of Ukraine No. 346 dated March 28, 2011 “On liquidation of governmental bodies”: http://zakon2.rada.gov.ua/laws/show/346-2011-%D0%BF
 This relates to sections “International cooperation”, “Liquidation of child trafficking” and others.
 Monitoring report of non-governmental organizations with respect to fulfilment in 2010–2013 of the national action plans on implementation of the Law of Ukraine “On the state program “The national action plan for implementation of the UN Convention on the Rights of the Child” for the period until 2016” [Electronic resource]. — Access mode http://www.la-strada.org.ua/ucp_mod_library_showcategory_34.html
 Letter of the Ministry of Education and Science of Ukraine to the La Strada — Ukraine Centre No. 1/11-12370 dated 04.08.14
 Monitoring report of non-governmental organizations with respect to fulfilment in 2010–2013 of the national action plans on implementation of the Law of Ukraine “On the state program “National action plan on implementation of the UN Convention on the Rights of the Child” for the period until 2016” [Electronic resource]. — Access mode http://www.la-strada.org.ua/ucp_mod_library_showcategory_34.html