Rights of the child

Helika Saar

According to the census there were 246,346 children living in Estonia in the beginning of 2012, making up a little over 18% of the population. In comparison to ten years ago there are approximately 17% fewer children, whereas the entire population of Estonia has decreased by 2%.[1] Nevertheless, it must be conceded that every fourth child in Estonia is living in poverty or in risk of poverty; 1520 children under the age of 15 are of undefined citizenship; approximately 40,000 youths are neither studying nor working; the number of unaccompanied children (whose rights are not guaranteed for faulty guardianship system) is in the rising trend, and victim support was turned to because of violence against children on 243 occasions. Necessity of preventative work has been talked about for years. According to the calculations of Nobel prize laureate J. Heckman the money spent on strengthening the human capital in early childhood is twice as effective in productivity as later investments.[2] On the other hand, the concept of happy childhood needs to be considered when handling children “as an investment in the future”, as the present is just as important as the future for the children as well as the society, especially when it regards rights of the child.

Political and institutional developments

Children’s needs and rights cannot be separated. Considering children’s rights and their advancement must be connected to measures which are aimed at satisfying children’s fundamental needs. According to the audit carried out by the National Audit Office in 2012 the following significant problem areas need to be solved with the participation of the state: the small number of child protection officials, organisation of preventative work and quality requirements of social services.[3] A worrying fact from the perspective of protection of children’s rights is that approximately 60% of Estonian children live in local governments where there is no child protection official or there are too few of them. The UN Convention on the Rights of the Child emphasises the role of the state in addition to the parents in protecting the rights of the child and creating necessary conditions for development.[4] In addition to cooperation in the area, the state and the local government “being in step” is also necessary, especially considering that at the moment the content and quality of services and the service reaching those who need it depend on the economic opportunities of the local government.

The activities aimed at children and families are contained in the development plan for children and families for 2012–2020, which has been confirmed by the government.[5] One of its strategic goals is to guarantee children’s rights and develop an effective system for protection of children. In 2012 the work began on developing the complete concept for family allowances and services, or the green book. The Child Protection Act, which handles children’s rights and organisation of protection of children, is being drafted. It will hopefully be presented to the government by the end of 2013. The implementation of the development plan and organisation of activities require a system and a system requires stability, which also active civil organisations can help provide in addition to the state and local governments.

The activeness of the institution of ombudsman for children, which started work in 2011, in analysing and monitoring guaranteeing of rights stated in the UN Convention on the Rights of the Child can be pointed out as a positive. Independence of the institution of ombudsman for children is indicated by the fact that the Chancellor of Justice, as ombudsman for children, was accepted as a full member of the European Network of Ombudspersons for Children 14 September 2012. However, more attention needs to be paid to introducing the institution of ombudsman for children as guardian of rights of children in the society as a whole, especially considering that children personally make use of the right of appeal still very rarely.

Legislative developments

The content of rights of children in the current judicial area has acquired a different meaning than only twenty years ago. Even though children are socially dependant in everyday lives, it is necessary to recognise children’s right of self-determination.[6] The Child Protection Act adopted in 1992 has dated wording, is much too declarative and abstract.[7] A new up-to-date act that is implementable has been talked about for years. Regulation regarding children should not be a second-rate and forgotten area of legislative drafting.[8]

It was conceded in the course of drawing up of the development plan for children and families that in addition to a new Child Protection Act the entirety of child welfare would have to be modernised. In 2012 the work was continued on implementing and systemising the gathered material while the importance of evidence based approach was emphasized. The goal of the new act is to guarantee the rights of the child and increase effectiveness of monitoring on various levels of administration (on the state and local government level) and promote cooperation between areas involving children (welfare services, education, health, legal protection).

Republic of Estonia, as a member state of the UN Convention on the Rights of the Child, has recognized that children with mental or physical disabilities must live a full and satisfying life in conditions that guarantee self-respect, facilitate development of self-assurance and allow children to actively participate in society. Well-being of a child with disability depends on what we value.[9] Riigikogu ratified the United Nations Convention on the Rights of Persons with Disabilities 21 March 2012,[10] which President of the Republic of Estonia had signed already in 2007. Unfortunately, the situation of rising number of children with special needs in schools and kindergartens has many problems, which need to be solved quickly to implement inclusive education – for example, early detection of educational special needs, timely interference by special education teachers, teacher training, educational support services for children with special needs, and physical access. Estonia has been praised for a cost-effective education system, but it is time to focus on the child and its needs.

The problem of sexual abuse, more specifically fight against crime against minors, first of all violent and sexual offences with child victims, is the joint priority of Minister of Justice and Minister of Interior Affairs in the Laulasmaa declaration[11] signed in 2005. This is also supported by development plan for reducing violence for years 2010–2014.[12] Unfortunately, the number of violent and sexual offences with child victims in Estonia continues to be large (Penal Code, § 145, sexual intercourse with child – 11 cases in 2010, 20 cases in 2012; Penal Code, § 146, satisfaction of sexual desire with child – 28 cases in 2010, 38 cases in 2012), and the recent trend of passing sentences for persons who committed a sexual offence against a child in compromise procedure is certainly thought provoking.

An important development in the field are the provisions against human trafficking in the Penal Code, which came to force in April of 2012 (§ 175, human trafficking in order to take advantage of minors; § 178, manufacture of works involving child pornography or making child pornography available; §178´, making a proposal for meeting a person of less than 18 years of age for sexual purposes),[13] which is a big step in the fight against organised crime and providing a better legal protection for the victims (see the chapter on prohibition of slavery and forced labour for more).

Estonia is the only Member State of the European Union that has not ratified the optional protocol of Convention on the Rights of the Child concerning inclusion of children in armed conflicts. Considering Estonia’s promise, which is based on General Assembly of the United Nations resolution 60/251,[14] ratification of this document is more than necessary, as Estonia will show good faith and will to promote protection of children’s rights, international humanitarian rights and show solidarity with efforts of other states trying to limit recruitment of child soldiers and their use in war.

Court practice

The concept of child friendly justice, which guarantees protection of rights of the child upon contact with judicial area, is discussed more and more these days.[15] Guaranteeing a child friendly judicial area calls for modernisation of the judicial area, considering the interests of the child and asking for their opinion predominantly upon their contact with the justice system. This is also emphasized by Article 24 point 2 of Charter of Fundamental Rights of the European Union, which states that In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.[16] Considering the child’s best interests in also referred to by the European Court of Justice, among other things, in its 26 April 2012 judgment in the case C-92/12 PPU-C,[17] its 22 May 2012 judgment in the case C-348/09 I[18] and in its 6 December 2012 judgment in the case C-356/11 O and S.[19]

The position of international law in Estonia’s legal system is determined by the Constitution of Republic of Estonia;[20] its paragraphs 3 and 123 state that the UN Convention on the Rights of the Child is an inseparable part of Estonian legal system and directly applicable in court. Despite increased referrals to the convention it can be said that the principles and articles of the convention are predominantly applied by just some certain judges. This refers to the need to educate judges about principles of international protection of children’s rights and the UN Convention on the Rights of the Child. The need to train judges and to develop a method for finding out the child’s best interest has been referred to by Kati Valma in her Master’s thesis “Finding out the best interests of the child in civil proceedings in disputes over care rights between parents” [21] defended at the Institute of Social Work at Tallinn University and by Kiira Nauts in her Bachelor’s thesis “Hearing of the child in civil proceedings in disputes over care rights between parents”[22] defended at the faculty of law at University of Tartu, which received an honourable mention at Ministry of Justice’s competition for scientific works in private, administrative and state law and in legislative drafting in 2011/2012.

Similarly to what was stated in the 2011 human rights annual report the Supreme Court recognizes the child as subject of law more and more. For example, the Supreme Court has emphasized that according to § 19 subsection 1 of the Consitution and § 29 of the Child Protection Act the child has the right to know its origin and has indicated that only if communication with the separated parent were not in the best interests of the child (would have a harmful effect on the child), can the parent hinder interaction with the separated parent to protect child’s well-being.[23] The Supreme Court has emphasized the rights of the child who is entitled to alimony, which will not be without protection because of the bankrupt of the obligated person;[24] the obligation of the parent to maintain the child also when the parent’s income and financial condition do not enable to maintain the child without harming the usual needs of the parent;[25] and the child’s right to file an action to obtain alimony from the parent the child is living with if the parent does not fill the maintenance obligation.[26]

Statistics and surveys

According to the EU action plan on rights of the child the Member States have a shortage of reliable, comparable and official data, which hinders drawing up of evidence based politics, and its implementation. Ratifying the UN Convention on the Rights of the Child created the obligation of the state to submit reports to the Committee on the rights of the Child every five years about measures applied by the state to realize the rights recognized in the convention, and about advancements in using the rights. Despite committee’s recommendations[27] and the claims of the Ministry of Foreign Affairs that Estonia regularly submits implementation reports for ratified conventions,[28] Estonia has submitted the implementation report for the UN Convention on the Rights of the Child on just one occasion.[29] Compiling of the report on the convention has been initiated, but the report will not be submitted in 2012 either, which is why there is no current overview of state’s fulfilling of obligations.

The public opinion poll on human rights in Estonia organised by Estonian Institute of Human Rights in 2012 placed children in the most vulnerable group and pointed out a number of problems regarding rights of the child (physical punishment of children; long time-limits of proceedings in court cases regarding children; insufficient knowledge of rights of the child; lack of child protection officials or their excessive work load).[30]

The need for promotion of democratic values (especially of rights of the child) in Estonia was confirmed by the “Monitoring of the Rights of the Child and Parenting 2012”[31] carried out by Praxis and ombudsman for children, published 1 June 2012, which states that 23% of adults and 16% of children have never heard of rights of the child. Monitoring once again indicates the tendencies that arose from “”Estonian Human Assets Report 2010” and “Estonian Human Development Report 2010”, such as increasing becoming of periphery and unavailability of systematic information. North-eastern Estonia where 67% of children did not agree with the statement that all children have the same rights, and Western Estonia, where children had heard of rights of the child to a somewhat lesser extent than children of other regions stood out.

Children’s poverty, discrimination and ostracization are some of the most serious hindrances to enforcement of rights of the child.[32] The Chancellor of Justice, as ombudsman for children, compiled an overview of children’s poverty in Estonia[33] based on statistics and in-depth interviews carried out with child protection officials, which revealed that 18,6 % of children below the age of 18 – more than 45,000 children – were living in absolute poverty. If we were to add children living at risk of poverty (7.4%) to those living in absolute poverty we could say that a fourth of children in Estonia live in poverty or in risk of poverty. The overview emphasizes that more assistance and services need to be taken directly to the child. Estonia has the obligation to work on reducing poverty of children as it stems from the state’s obligation to guarantee realization of rights guaranteed by the UN Convention on the Rights of the Child.

“Analysis of international regulation on rights of the child and international court judgments concerning rights of the child”[34] commissioned by the Ministry of Social Affairs was published in April, which, among other things, emphasizes Estonia’s need to join Council of Europe’s Convention on Contact concerning Children (2003), which handles the communication rights of the child and parents.

Research works defended at universities focus on the best interest of the child and the child’s well-being more than before, and point out the need for in-service training of the relevant specialist. In addition to the aforementioned research by K. Nautsi and K. Valma the need for in-service training of specialists has also been emphasized by Karmen Toros, who defended her Doctoral thesis “Assessing child’s wellbeing in the practice of Estonian child protection work”, which reveals that supporting and assisting a child who needs help, appraisal of its situation and decisions to intervene depend on the well-being of the specialist.[35]

Good practices

An example of good practice are the guidelines compiled by Data Protection Inspectorate in cooperation with specialists in the field on notifying of a child in need and data protection.[36] The special programme on rights of the child at Tallinn Black Nights Film Festival’s subprogramme Just Film (15-25 November 2012), which took place for the 12^th time can also be pointed out. Estonian Union for Child Welfare and ombudsman for children in cooperation with the Ministry of Justice took part in compiling of the programme.

Cooperation between Ministry of Education and Research, Ministry of Social Affairs and Ministry of Justice jointly preparing a common programme for risk children and youths in 2012 is worth mentioning. It will be funded from the support fund of Norway and European Economic Area in the following years. The ministries are planning several projects and horizontal activities in the course of the programme to reduce the risks of children and youths through education, youth work, child welfare and legal system.

Noteworthy public discussions

At the roundtable[37] that took place in March the ombudsman for children introduced the overview of children’s poverty in Estonia, drew the attention of decision makers and the society to problems accompanying children’s poverty and offered the opportunity to find solutions for these problems together.

The other public discussion concerned prohibition of physical punishment of children.[38] Despite the fact that physical punishing of children violates fundamental principles of human rights – right to physical integrity and human dignity, data from the Monitoring of the Rights of the Child and Parenting show that a third of parents considered physical punishment understandable in certain circumstances.[39] Therefore, it is necessary to pay more attention to increasing awareness of human rights and supporting parenting skills, because a society free from violence is only possible if today’s children and tomorrow’s parents grow up without violence.

Trends in 2012

Estonia stands out for intensity of internet use, but more attention should be paid to smart and safe internet use. Children spend more and more time in digital environment, and it is constantly evolving, which is why the dangers regarding data protection and inviolability of private life occur more frequently (including misuse of personal data, unwanted distribution of information on the profile of a social network, cyber bullying). Children are increasingly the direct target of advertising campaigns and serious criminal offences.

The keywords for decreasing mistreatment of children on the internet are raising children’s and parents’ awareness and international cooperation of agencies. A positive occurrence from 2012 is the active operation of the project “Targalt internetis”[40] – 150 training days, 10 new training and informative materials (curriculums, educational games, information flyers, web-based game) for children, youths, teachers and parents, and events (and other enterprises) celebrating Safe Internet Day. Increasing numbers of web police officers in web portals popular with minors is also a positive occurrence, as well as Estonia joining Global Alliance against Child Abuse Online[41] created on the initiative of the European Commission, and acceptance of Estonian hotline[42] as a full member of international network INHOPE.

European Commission emphasizes in its notice “European Strategy for a Better Internet for Children”[43] published in 2012 the need for developing children’s media competence and necessity of producing age-appropriate quality content. It is a pleasure to see that the project “Targalt internetis” helps solve this problem; its activities until 2014 are aimed at providing children adequate knowledge, skills and competence, as well as producing age-appropriate quality content.

Recommendations

• Guarantee a more effective implementation of the UN Convention on the Rights of a Child (including submitting regular reports), and gathering of statistical data to analyse and base politics guaranteeing rights of a child on.
• Prohibit physical punishment of children in acts of law more clearly.
• Improve cooperation with and among domains (educational institutions, health system, protection of children) for protection of child’s best interests.
• Review study programmes of child protection officials and social workers at universities and vocational schools and pay more attention to development of children and legal studies in study programmes. Teacher training (including kindergarten teacher training) should be amended with the topic of children’s rights and support of participation.
• Include children in decision-making processes more, thereby increasing children’s opportunities to participate in issues of the society, community and school life.
• Do even more work on raising awareness of rights of the child and the relevant institutions (including that aimed at Russian speaking population).