Het Netwerk in 2008

1. Het Netwerk in 2008 Netwerkmiddag 22 mei 2008

2. Towards UN Guidelines on alternative care for children From concerns to consensus Nigel Cantwell BCN Dutch Chapter, Den Haag, 22 May 2008

3. Grounds for concern • Many care placements are avoidable • Informal care predominant but unsupervised • Lack of a range of care options • Over-use of residential care • Inappropriate conditions in residential facilities, including contact with parents • Inadequacies in foster care systems • Lack of supervision of private facilities • Increasing difficulty to exit care system • Lack of preparedness for independent living • Special problems in emergency situations

4. Developing the draft (1) • UNICEF/ISS briefed the CRC Committee on the need for international standards (2004) • CRC Committee ‘Decision’ calling for Guidelines to be developed (2004) • Commission on HR recognised the need for Guidelines, but did not set out process (2005) • CRC Committee’s Discussion Day recommended expert meeting to prepare draft (2005) • NGO Working Group set up, keeping CRC Committee informed and seeking its inputs… • … and prepared preliminary draft (2006)

5. Developing the draft (2) • Brazilian Government hosted expert meeting (Brasilia, August 2006) • 40 Governments and 3 members of the CRC Committee • Open-ended ‘Group of Friends’ established • Full support for taking the initiative forward • Many amendments suggested • Current revised draft takes account of these and other suggestions • On-going support from CRC Committee • Cooperative efforts to secure adoption by UNGA spearheaded by Brazil

6. Alternative care & the CRC (1) • Where the CRC is clear: • Family environment in an atmosphere of ‘happiness, love and understanding’ is best for the child (Preamble) • Right to be brought up by parents where possible (Art 7.1) • Assistance to parents/legal guardians in upbringing and care (Arts 18, 27 etc.) • Removal from parental care if in best interests, and subject to judicial review (Art 9.1) • State responsibility to ‘ensure’ alternative care for children deprived of family environment (Art 20) • Family-based alternative care is preferable (Art 20) • Basic conditions for residential care provision (Art 3.3) • Periodic review of placements (Art 25)

7. Alternative care & the CRC (2) • Where the CRC is less clear: • Relationship between ‘parental care’ and child’s ‘family environment’? • Obligations regarding ‘informal’ or ‘kinship’ care • ‘Best interests’ principle: from ‘the paramount consideration’ (1986 Declaration) to just ‘a primary consideration’ by default in CRC Art 20? • What are the goals of alternative care? • What does the term ‘institutions’ cover? … • … what determines their ‘suitability’?… • … and what makes their use ‘necessary’?

8. Alternative care and adoption • 1986 Declaration of Principles • On foster care and adoption, but… • ‘Foster family care, though temporary in nature, may continue, if necessary, until adulthood but should not preclude either prior return to the child’s own parents or adoption.’ • So adoption is seen as a potentially desirable outcome, not a form, of alternative care (e.g.: it is not subject to periodic review…) • CRC: adoption dealt with as alternative care?

9. ‘Necessity’ and ‘suitability’ • Only explicitly mentioned in the CRC in relation to placement in an institution, but should apply to all alternative care options • The working title of the draft Guidelines: ‘appropriate use and conditions of alternative care…’ • Clear focus on having recourse to alternative care only when it is really needed and only in suitable forms

10. The ‘necessity principle’ in the draft Guidelines • ‘Appropriate use’ of alternative care • Consulting with family and child • Upgrading family support, enabling family reintegration • Preventing avoidable relinquishment • Stopping unwarranted removal • Addressing negative societal factors • Ensuring effective gate-keeping • Regulating private care providers

11. The ‘suitability principle’ in the draft Guidelines • ‘Appropriate conditions’ of alternative care • Does the care option meet certain general standards? • Human resources • Access to basic services • Appropriate contact with parents/family • Protection from violence/exploitation • Does the care option meet the specific needs of the child concerned? • Catering to his/her characteristics and situation • Promoting appropriate long-term stable solution

12. Controversial drafting issues • Defining the family • State role vis-à-vis informal care • Child-headed households: a care option or ‘family preservation’? • Children in prison with mothers • Hierarchy of care options or the best option for this child? • Residential care for under-3’s • De-institutionalisation

13. Some key thrusts of the draft • Major emphasis on promoting parental care, preventing family breakdown and facilitating family reintegration • Consultation with the child at all stages • Child never without a legal guardian • A care strategy relying as little as possible on institutions • Permanency planning (stable and durable solutions) • Preparation and support for those leaving care • Role of civil society • Oversight of all care providers • Special concern for children abroad and in emergency situations

14. Moving the process forward • Now mainly in governmental hands: • Brazil in charge • ‘Group of Friends’ • Good implication from CRC Committee • High NGO interest • Dealing with feedback from governments • Human Rights Council and… • … UNGA – but when?