Kristel Valk

Three real developments for the protection of children’s rights have taken place in the last few years. As of January 1st, 2009 it is possible to notify of a child in danger by calling the phone number 116 111, which is uniform in all of Europe. A department of children and families was created in the Ministry of Social Affairs in 2010. Child protection services also started work in Police and Border Guard prefectures in 2010. In addition to that several different discussions (written and oral) on the topic of protection of children’s rights have taken place.

In 2006 a division was created for appraising the human right standards and obligations of the UN Member States, which reminds the states of their obligation to fully respect and implement all of the human rights and basic freedoms. The purpose of the division is to analyse data of all 192 UN Member States regarding human rights every four years. The state has to present a report on the implementation of human rights obligations in the course of the periodic monitoring. The report also has to entail issues regarding children’s rights and what has been done to ensure children’s rights in the state. Estonia presented its first report in 2011. The government of the Republic of Estonia approved Estonia’s state report, according to which the state’s child protection entails health care, education, work, spending of free time, hobby activity and children’s social care. The state guarantees the presence and monitoring of relevant legislation, develops the area of child protection, works out strategies and development plans and participates in international cooperation.

The report discusses, among other things, the need for amending the Child Protection Act as well as the topic related to violence against children and the creation of the institution of children’s ombudsman. The Ministry of Justice commenced work on “Development plan for children and families for years 2011–2010”, which aims to better guarantee the rights of children and to raise the quality of life for families.

On April 1st, 2010 the government approved the “Development plan for reducing violence for years 2010–2014” and its implementation plan for years 2010–2014. The purpose of the development plan includes as its purpose the reduction and prevention of violence against children. A framework against family violence was created within the development plan, which entails representatives of various ministries, state offices, the police, prosecutor’s office, non-profit organisations, shelters, support centres and institutions of higher education. The purpose of the cooperative framework is to improve exchange of information and cooperation between various organisations and to provide an overview of the developments inside the field in order to gain input for perfecting the development plan. The framework will convene regularly and the meetings are to take place at least once a year. The first meeting took place on December 6th, 2010.

The next sections will focus on the main recent developments such as the Child Protection Act, prohibition of physical punishment of children and the creation of the institution of children’s ombudsman.

The Child Protection Act

There is not much legislation on protection of children in Estonia. Rearing and treatment of children is one of society’s priorities, which is why the protection of children’s rights and preventative measures should be given special attention to avoid later negative consequences. Existence of relevant legislative regulation and its effectiveness could, among other things, be considered preventative measures.

The Republic of Estonia Child Protection Act was passed 8 June 1992 and entered into force 1 January 1993.[1] The biggest weakness of the Child Protection Act has been considered to be its general wording and declarative nature, which make implementation of this act ineffective. In 2003 the UN Committee on the Rights of the Child recommended that a child protection act must be effective, and implementation guidelines and money in the budget ought to be provided in order to implement the act. It must be assured that the rights of children are evaluated according to relevant legislation and principles. The need for working out a new draft act for a Child Protection Act was discussed in Riigikogu already in 2001.

 “Child protection concept” timeline that had been approved by the government 27 January 2005 stated that the new Child Protection Act will have entered into force by January 1st, 2007. The former Chancellor of Justice Allar Jõks expressed his opinion in 2009 that „the Minister of Social Affairs who is capable of preparing the new child protection act deserves, without any irony, a statue“.Chancellor of Justice Indrek Teder even stated in his 2010 presentation to Riigikogu that “one gets the impression that children’s rights are like a dusty corner of legislative drafting, where the draft maker doesn’t much care to look […] It is high time Estonia had a necessary and a realistically functional Child Protection Act.“

One of the reasons why the adoption of the new act has stalled for so long is certainly the lack of state strategy in that field. § 68 of the Child Protection Act states that “details concerning the implementation of this Act shall be regulated by the Government of the Republic of Estonia”. This presupposes establishment of detailed guidelines that are based on a state strategy. The UN Committee on the Rights of the Child has drawn attention to the lack of state strategy in its 2003 recommendations.[2] The last state strategy in the field stems from 2004 (“Lapse õiguste tagamise strateegia 2004–2008”), which was established until 2008, which means there has been a vacuum in the field for two years.

A development plan for children and families for the years 2011–2010 is in drafting stages at the Ministry of Social Affairs. One can only hope the development plan will be passed in the near future.

The aforementioned clearly illustrates the fact that Estonia lacks a strategy for protection of children’s rights and an updated and effective Child Protection Act that provides children realistic protection. The absence of a legal background is certainly one of the reasons why guaranteeing and protecting children’s rights is so problematic in Estonia.

Prohibition of physical punishment. Violence against children

The lyrics of a well-known Estonian children’s song say that good children do not need a rod, however, reality attests to the fact that many believe that physical violence is a part of child-rearing process. It was revealed in the 2009 gender equality report that 47% of the people who participated in the survey agreed with the statement that physical punishment of children is sometimes unavoidable. Any activity where physical force is used to cause a child pain or discomfort should be considered physical punishment of a child. Physical punishment is understood among other things as pulling children by their hair, pushing and shoving, forced swallowing of food, forcing to stand in uncomfortable poses etc.

The general legislative regulation prohibits physical punishment of children. The Convention on the Rights of the Child[3] adopted by General Assembly 20 November 1989 has been acceded to by Estonia with the 26 September 1991 decision of the Supreme Council, and entered into force for Estonia 20 November 1991. According to Article 19 of the Convention

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, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Estonia ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms[4] in 1996. Article 3 of the convention states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The ECtHR has found in several judgments that physical punishment of children is in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Estonian Constitution also states that every person has the right to dignified treatment, safety and protection from any physical or mental mistreatment or violence, injustice, cruel or demeaning treatment. § 121 of the Penal Code[5] prescribes a punishment for damaging another person’s health, or beating, battery or other physical abuse which causes pain, but does not provide special provisions for the case where an adult uses violence on a child for the so-called punitive purposes. If legislation cannot allow violence in relationships between adults it cannot be conceivable to use it on a child. Use of physical violence on children has been prohibited ever since the Constitution came into force 3 July 1992, if one were to look at it from a legal point of view.

In addition to the UN Committee on the Rights of the Child, other monitoring bodies of UN’s international treaties, including the Committee on Economic, Social and Cultural Rights, the Human Rights Committee and the Committee against Torture have also condemned physical punishment of children. The prohibition of physical punishment of children became a global objective in 2006. The report presented to UN General Assembly also contained a UN Secretary-General’s survey of violence against children. It established 2009 as the time limit when violence against children must be prohibited globally. The main message of the survey presented to the UN General Assembly by the Secretary-General in October of 2006 was the following: “Any form of violence against children cannot be justified and every form of violence can be prevented. “

Use of violence in child rearing has been habitual in our society for a long time (either in the form of tweaking child’s hair or spanking). Yet the use of violence against a child may result in serious mental problems, it also teaches the child that violence is an inseparable part of solving a problem. Surveys have proved that being a victim of physical mistreatment or neglect increases the probability of committing offences as an adolescent by 59%, of committing offences as an adult by 28% and of committing violent crimes by 30%. According to the aforementioned survey the persons mistreated as children suffered much more often from mental health problems, including attempted suicides and posttraumatic stress, problems with advancement in school (including reading difficulties etc), problems with employment (unemployment, being employed in positions of very low pay etc) and deviant behaviour in later life (prostitution, alcoholism).

Prohibition of physical punishment of children has been discussed in the media[6] for at least as long as the need for the new Child Protection Act. Even though physical violence is prohibited by several aforementioned legal acts, several experts are of the opinion that the current legislative framework is insufficient and requires additional regulation, which directly addresses the prohibition of violence against children. The need for a direct prohibition has been confirmed by experts in the field, politicians and the officials of the Ministry of Social Affairs. And despite all that the amendment of the Child Protection Act with relevant provisions or the adoption of the new child protection act (with the necessary norms regarding violence against children) has stalled.

A department for children and families was created in the Ministry of Social Affairs in the first months of 2010 and one of the objectives of the department was going to be prohibition of violence against children. It cannot be precluded that inserting the relevant elements for an offence in the act (presumably into the Penal Code or the Child Protection Act) may result in reduction of violence. But is this a suitable means for achieving this purpose? Is it the objective to punish as many offenders as possible? Or should the objective be raising awareness of social consequences of mistreatment of children?

In the spring of 2010 the Chief Justice of the Supreme Court presented Riigikogu an overview of administration of court, administration of justice and uniform application of acts. The Chief Justice claimed in his presentation that he is not remotely justifying beating of children, but he does not see the enforcement of the punitive norm as the solution.

“Clearly, the objective of such separate casuistic norm cannot be a punitive one, but rather it is attempting to change the public opinion via a punitive act. […] State’s interference in a very delicate relationship between a parent and a child is unnecessary if parental duties have been fulfilled and the child isn’t physically mistreated. I doubt the children are happier if a large portion of parents figures in the punishment register.”[7]

It isn’t possible to prevent or substantially decrease the number of offences purely via the criminal or justice system or by the authority of the state; preventative work has to include local governments, economic communities and social organisations. Each person’s own responsibility and duty to educate himself and to raise his children as responsible members of the society is, however, of utmost importance.

According to the Developments in Criminal Politics[8] adopted by Riigikogu 16 June 2010 the Ministry of Social Affairs in cooperation with local governments has to develop the parental skills of the parents and improve the cooperation of experts in the field. The purpose of the aforementioned point is to prevent crimes committed by minors. As the occurrence of violence against children depends on rearing of children, this measure will help reduce offences committed by minors and also reduce occurrence of physical punishment (violence).

Reduction of violence against children would also be helped by existence of an institution that mistreated children could turn to and which is capable of expertly handling these cases. The same institutions should systematically stand for children’s rights and carry out various surveys and social campaigns. The institution of ombudsman for children performs that role in several states. Creation of this institution in Estonia has recently been considered more and more.

Ombudsman for children

Article 4 of the UN Convention on the Rights of the Child obligates the States Parties to create an independent state-wide institution for monitoring children’s rights (ombudsman for children), which shall monitor implementation of the convention in the state.

The first position for ombudsman for children in the world was created in Norway in 1981. The ombudsman for children is an independent, autonomous and a politically neutral organ created by a special act. The main purpose of the ombudsman is the protection of children’s rights in the society as a whole and monitoring of developments of conditions for child rearing.

In 2003 the Committee on the Rights of the Child accused Estonia of lacking an institution authorised to accept appeals regarding children’s rights and solving them based on the interest of the child. The Committee recommends the States Parties to consider creating an institution separate from the institution of Chancellor of Justice or a department or a special body belonging to Chancellor of Justice to monitor and appraise implementation of the convention on a state and local level. The body should be well-supplied, accessible for the children, authorised to receive appeals of violations of children’s rights and investigate and solve them in a child sensitive way.[9] A separate institution for monitoring children’s rights is set up in the following EU Member States: Finland, Sweden, Denmark, Norway, Lithuania, Poland, Austria, France, Ireland, Luxembourg, Belgium (separate Flemish and Walloon institutions), Cyprus and Malta. Children’s right divisions incorporated into the institution of general ombudsman are set up in Latvia, Slovakia, Slovenia, Hungary, Greece, Portugal and Bulgaria. There are just 4 states out of 27 Member States in the European Union (Estonia, Czech Republic, Romania and Germany) that do not have a monitoring body for children’s rights or an ombudsman for children. In the committee’s appraisal it is best to develop a state-wide well-rounded inclusive human rights institution that affords special attention to children in those states that have less money. The well-rounded inclusive institution should either include a special commissioner or a special department for children’s rights.

The topic of creating an ombudsman for children in Estonia has been discussed for years. On May 14th, 2009 the Legal Affairs Committee of Riigikogu reached a unanimous decision that children’s rights need a better protection in Estonia and that function could be fulfilled by a special division to be created with the office of Chancellor of Justice. The Legal Affairs Committee decided to start a working group that would devise the authorities and obligations of the institution of ombudsman for children so that a process for amending legislation could be commenced based on it.

At the beginning of 2010 the Estonian Union for Child Welfare made a note to the President of Riigikogu, which stated that the creation of the institution of ombudsman for children would help substantially increase the influence of children in shaping the society, promote participation of children in various decision-making processes and thereby increase cohesion of society. Until there is an institution of ombudsman for children the Legal Chancellor Act should be amended and the Chancellor of Justice should be given wider authority.

Chancellor of Justice Indrek Teder supported the proposal of the Union for Child Welfare and found that Riigikogu should finally decide whether to create an independent institution of children’s ombudsman or to broaden the authority of the Chancellor of Justice.[10] It was decided at the June 2010 parents’ assembly of the Union for Child Welfare that a draft will be passed on to Riigikogu amending the Legal Chancellor Act to widen his authorities to include guaranteeing and monitoring of basic rights of children. On November 9th, 2010 the Constitutional Committee of Riigikogu discussed the potential broadening of the authority of the Chancellor of Justice to include duties of ombudsman for children. The president of the Committee stated prior to the discussion that “there may be a specific proposal to broaden the Chancellor of Justice’s authorities, but it might as well transpire that the current legislation enables the Chancellor of Justice to tackle these questions”. It stems from the shorthand notes that the positions expressed at the discussion will be noted. The topic of creating a children’s ombudsman was also covered in the 2009 overview of the Chancellor of Justice.

Chancellor of Justice was active in the field of children’s rights even earlier, but it was a sideline to the duties of an ombudsman carrying out constitutional review of legislation of general application, preventing mistreatment. 11 January 2011 the Constitutional Committee of Riigikogu initiated the draft act to amend the Legal Chancellor Act, which aims to amend the act in a way to afford the Chancellor of Justice clear authority to deal with children’s rights. This act was passed 17 February 2011.

Until now a large portion of duties of the ombudsman for children wasn’t fulfilled by any institution in Estonia. Chancellor of Justice was not the one to introduce the Convention on the Rights of the Child in Estonia. Chancellor of Justice did not carry out polls or surveys to unveil the opinions of children nor did he present the children’s positions. It wasn’t in the competence of Chancellor of Justice to council persons and establishments, nor did he participate in devising of legislative acts regarding children’s rights. The opportunities of the Chancellor of Justice to carry out training regarding children’s rights and surveys on children’s rights were limited.[11]

There are advantages and disadvantages to extending the authority of the Chancellor of Justice and affording him the function of ombudsman for children. On one hand, this change makes sense as Chancellor of Justice has partially performed the functions of an ombudsman for children and the public is aware of the fact that one may turn to the Chancellor of Justice with his problems. On the other hand, the Chancellor of Justice has to remain politically independent, and shaping the politics regarding children’s rights would not be in accordance with the essence of the institution of Chancellor of Justice. The institution of ombudsman for children requires, in addition to legal measures, also a large extent of psychological and preventative measures.

Chancellor of Justice Indrek Teder in his presentation to Riigikogu in September 2010 regarding 2009:

“Estonia belongs among the few Member States that do not have the institution of ombudsman for children nor a clear political will to create it. In practice, the rights of children do not matter and it is just a topic full of hot air to be ventilated at conferences and political discussions. In addition to introducing children’s rights, the activity of ombudsman for children is necessary and useful for the society through specific projects. Take the topic of children with dependence disturbance for instance – if the Chancellor of Justice had the authority of ombudsman for children he would be able to deal with this topic not on just legal level but more generally. Namely, it would be possible to contribute much more to conceptional directions that are the basis for compiling the regulation via inclusion of experts in the field, child psychologists, for example. It would make it much more likely for the society that the dependence disturbances will be eliminated. Another argument in our money-centric world, other than humanistic and social sustainability, is that successful activity of ombudsman for children would result in fewer clients for courts, prisons and the social system, which results in smaller costs. However, a thesis could be proposed – since children do not vote, anything concerning them does not interest politicians? I hope this is not the case.”

Amendment of the functions of Chancellor of Justice with the duties of ombudsman for children in the beginning of 2011 certainly refers to a positive development in this field.

Conclusion

Estonia lacks a plan for guaranteeing children’s rights. The Child Protection Act is dated and declarative in nature

The Chancellor of Justices composes a systematic annual review of various fields. The Chancellor of Justice has been forced to admit in his 2008 and 2009 reviews that there have been no developments in legislation regarding children’s rights.[12] If activities keep stalling in the same way the Chancellor of Justice as well as the editors of the annual Human Rights report will be forced to admit that also the next year.

Recommendations

–          Devise a renewed strategy for guaranteeing children’s rights.

–          Amend the current Child Protection Act or devise a new child protection act, review its principles and most importantly, make it possible to implement.


[1] Republic of Estonia Child Protection Act. RT 1992, 28, 370 … RT I 2010, 41, 240.

[2] “Noting that the 1992 Child Protection Act reflects some principles and provisions of the Convention, it remains concerned that many of the provisions have not been fully implemented through detailed regulations, in accordance wit article 68 of the Act, and with adequate budgetary allocation.” – The Committee on the Rights of the Child Concluding observations, p 2.

[3] The Convention on the Rights of the Child. Estonia joined 21.10.1991. Published: RT II 1996, 16, 56.

[4] Convention for the Protection of Human Rights and Fundamental Freedoms. Adopted in Rome 4.11.1950. Estonia signed it 14.05.1993. Ratified 16.04.1996.

[5] Penal Code. RT I 2001, 61, 364 … RT I, 12.11.2010, 1.

[6] For example: Klaas, Urmas (1996). Lastevastane vägivald aktualiseerub []. Postimees, 13.09.1996. Available at: http://arhiiv2.postimees.ee:8080/leht/96/09/13/uudis.htm#neljateistkymnes; – (2004). Küsitlus: Kas laste füüsiline karistamine tuleks keelustada? [Survey: should physical punishment of children be banned?] Eesti Päevaleht, 22.11.2004. Available at: http://www.epl.ee/artikkel/279079; – (2006). Laste väärkohtlemine on globaalne problem [Mistreatment of children is a global problem]. Õpetajate leht, 24.11.2006. Available at: http://www.opleht.ee/Arhiiv/2006/24.11.06/elu/7.shtml; Raun, Alo (2010). Online-väitlus: Eesti peaks keelama laste füüsilise karistamise [Online discussion: Estonia should ban physical punishment of children]. Postimees, 12.03.2010. Available at: http://www.postimees.ee/?id=236015.

[7] Rask (2010), p 8.

[8] Kriminaalpoliitika arengusuunad aastani 2018 heakskiitmine [Approval of Developments in Criminal Politics until 2018]. RT III 2010, 26, 51, point 13.

[9] Lapse õiguste komitee lõppjäreldused, p 3.

[10] Teder (2010).

[11] Aru (2009), pages 12–13.

[12] Õiguskantsleri 2009. aasta tegevuste ülevaade [An overview of activities of Chancellor of Justice in 2009], p 49.

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