Rights of the child

Helika Saar

Children are the group of population, whose welfare is central in terms of their general condition and quality of life as well as in the context of investment in the future.^[1] The child’s welfare is expressed in the extent that his or her human and citizenship rights are guaranteed, as well as social justice and participation in civil society.^[2]

If to exclude local rural centres and rural municipalities surrounding them, there are around 30% fewer children living in the rest of the municipalities than there were ten years ago.^[3] According to the Estonian Human Development Report 2012/2013 many good average indicators conceal unreasonably large variations within the society – whether regional differences, gender gaps or the divide between Estonians and other nationals.^[4] Those who suffer are predominantly the more vulnerable groups, including children. According to the statistics the relative poverty of children in various local municipalities differs nearly six and a half times (Harjumaa versus border areas in North-eastern Estonia and Southern Estonia).^[5] The economic recession along with increased unemployment and impoverishment of the population has decreased children’s opportunities to take part in recreational activities ^[6] Studies show that favouring schools based on market principles recreates the phenomenon of the so-called good and not-so-good schools by concentrating children based on the background characteristics of their parents, their registered address and pre-schooling,^[7] and that the weaker academic results of schools with Russian language tuition are partly due to lower social standing of their students.^[8] Children’s poverty, discrimination and social exclusion are one of the most severe hindrances to application of the rights of the child.^[9]

At the same time each child has the right to a well-rounded development and protection, regardless of his or her area of residence in Estonia and his/her parents’ economic standing. The state is obliged to guarantee this right according to the Convention on the Rights of the Child^[10] ratified in 1991. According to § 28 of the Constitution it is unacceptable that the guarantee of social fundamental rights of the child varies so significantly in different parts of the country. The Supreme Court has emphasised in its 16 March 2010 judgment no 3-4-1-8-09 point 67: “Therefore, a situation is not acceptable, according to the principle of § 28 of the Constitution, where the level of guarantee for main social fundamental rights, which the local governments are responsible for, varies to a significant degree in various geographical areas of the state /…/.”

The society is in a constant state of change, constantly presenting new challenges in the area of child protection, which require solutions fast.^[11] According to the audit published by the National Audit Office in 2013 the following shortcomings need the state’s participation for a solution: the small number of child protection officials, organisation of preventative work, and quality requirements for social services.^[12] The quality of child protection must be such that it guarantees the child’s right to a safe growing environment, to a balanced and varied development and a special protection. Therefore, in addition to updating the Child Protection Act, measures aimed at children and families also need developing, which in turn requires review and improvement of legislative acts in the field. Harmonisation of ongoing reforms – the administrative reform (draft act to local government organisation reform), the child protection reform (draft act to the Child Protection Act), the reform on underage offenders and special schools (draft act amending the pre-school establishments act) – in the planning stages is also necessary in order to guarantee achieving the common goals and to avoid time and money consuming rearrangements at a later stage. The effectiveness of child protection, however, largely depends on the social policy, which is directly influenced by the economic policy and the opportunities stemming from it.^[13] Therefore, in addition to the state and local governments’ cooperation in the field, a shared understanding of the integrity of the child’s rights, and a raise in social protection is also necessary.

Legislative developments

The UN Committee on the Rights of the Child mentioned in its concluding observations about Estonia^[14] already in 2003 that the Child Protection Act, which has been in force since 1992 cannot be sufficiently implemented. It was stated during drawing up of the “Strategy of Children and Families 2012-2020” that in addition to a new Child Protection Act the entire child welfare needs to be updated. The Ministry of Social Affairs concentrated on drawing up of the draft act in 2013 – keywords were: analysis (basis analysis for updating organisation of child protection, and analysis of the effects of the draft act to the Child Protection Act), inclusion of cooperation partners and learning from the experience of other states. At the end of December the draft act to the Child Protection Act along with its explanatory memorandum and implementing provision were sent to government authorities and non-governmental organisations for approval, and it is expected that 2014 will bring about active discussion about the draft act.

2013 can be considered to be an active year in terms of legislative development on the whole. Statistics show that the number of criminal offences regarding human trafficking^[15] increased by ten cases compared to the previous year (32 cases in 2012, 42 cases in 2013). The number of criminal offences of human trafficking has mainly increased on the account of cases of abuse of minors (6 cases in 2012, 18 cases in 2013).^[16] It is therefore a pleasure to see that the adoption of the EU Directive (2011/36/EU)^[17] on Trafficking in Human Beings (the act amending the Victim Support act and other appropriate acts came into force 28 April 2013)^[18] has supplemented the framework of services and the order of providing services aimed at victims of human trafficking and sexual offences, including minors and victims who are foreign nationals, and substantially altered the organisation of reception of unaccompanied minors. Now the unaccompanied minors, victims of human trafficking and sexually abused minors are also eligible for substitute home services and for being cared for in families.

The act amending the Penal Code and other relevant acts^[19] brought 12 acts into accordance with the Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. The amendment also increased penalty for sexual crimes against children, including a parent’s, person having parent’s rights or a grandparent’s sexual relations with a descendant; it set a prohibition for having sexual relations for money or for other benefit or other sexual activity with a person of under 18 years of age; it criminalised knowingly entering websites containing child porn and watching pictures, films, etc there; it increased the circle of people working with children who have to be checked before hiring that they have not been punished for sexual crimes (child protection officials and other persons coming in direct contact with children in their work, also volunteers and trainees working with children). A general principle was adopted from the aforementioned directives and stated in Estonia’s Child Protection Act that if the person’s age is not known and there is reason to believe the person is under 18 years of age, the person is considered to be a minor until detecting his or her real age.

“Human Rights in Estonia 2012”^[20] had to admit that Estonia is the only European Union Member State that has not ratified the Optional Protocol of the Convention on the Rights of the Child concerning inclusion of children in armed conflicts. The contradictions in the national law were eliminated and at the end of the year (18 December 2013) Riigikogu adopted the Act on Ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.

Court proceedings and court practice

The importance of considering the rights and interests of the child as a subject of law is emphasised in Article 3 of the Convention on the Rights of the Child, Article 24 of the EU Charter of Fundamental Rights^[21] and § 3 of the Child Protection Act, according to which the interests of the child must come first in all kinds of activities involving state or private social welfare institutions, courts, executive or legislative organs and children.

Taking the interests of the child into consideration is also emphasised by the concept of child-friendly justice, which states that protection of the rights of children has to be guaranteed in contact with the law as they are the more vulnerable group.^[22] According to the international rules – for example, Article 37 of the 2007 UN Convention on the Rights of the Child and point 79 of General Comment No. 10 (on children’s rights in juvenile justice) and the Committee of Ministers of the Council of Europe Recommendation^[23] – use of deprivation of liberty of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.^[24] A positive occurrence is that the number of children in special schools and prisons has decreased: in 2005 there were 143 children in special schools, in 2012 there were only 67 (a decrease of 53%), and the number of children in prison has reduced by more than 50% within the past eight years.^[25] There has also been progress regarding one of the priorities of the Estonian criminal justice system – guaranteeing of childrens rights in relation to shortening of court proceedings. The statistics show that, for example, the time spent in pre-trial procedure for children suspected of a criminal offence has decreased by more than two times within six years – from more than 5 months to 2.5 months.^[26] The concept of child-friendly justice is also supported by creating child-friendly options for questioning (questioning rooms with video recording facilities) in Jõgeva and Kuressaare prefectures, and putting together assisting materials for child witnesses in court proceedings.^[27]

The Supreme Court once again emphasised in its 2013 judgments the rights of children entitled to alimony – the right of the child to file an action against the parent he or she is living with if the latter does not fulfil his or her maintenance obligation;^[28] in designation of alimony to also consider the child’s necessity to use the housing.^[29] There was also a judgment about the child’s inviolability of private life,^[30] according to which the data breaching the child’s privacy cannot be published on the agreement of one parent if the other parent is expressly against it. The Supreme Court en banc^[31] stated that the order of implementation of specific judgments regulating communication between the parent and the child has not been sufficiently clearly regulated in the Code of Enforcement Procedure, which is why this regulation, along with § 563 of the Code of Enforcement Procedure needs to be improved or amended in order to guarantee a clear order of implementing judgments regulating communication between the parent and the child, and effective and fast implementation of such judgments.

European Court of Human Rights accepted an application from an Estonian citizen in 2013, according to which the court proceedings and execution proceeding regarding the child’s alimony had lasted a total of over ten years. The ECtHR has emphasised that the interests of the child depend on specific circumstances, especially the age of the child and the level of his or her maturity, the presence or absence of his or her parents, the environment surrounding the child and the experiences (in judgment no. 14737/09 Šneersone and Kampanella v. Italy). The Grand Chamber of the European Court of Human Rights made two judgments regarding breach of Article 8 (right to private and family life) in 2013 (in judgment no. 27853/09 X. v. Latvia^[32] and in judgment no. 19010/07 X. et al v. Austria^[33]).

In Estonian legal system the position of international rules is set by the Constitution of Republic of Estonia,^[34] and according to paragraphs 3 and 123 the Convention on the Rights of the Child is an inseparable part of Estonian legal system and directly applicable in court. Despite the increase in referring to the Convention on the Rights of the Child in judgments of the Supreme Court (13 instances from 1996 to 2013, whereas just 3 instances from 1996 to 2006)^[35]it is still surprisingly low. Various surveys (Valma,^[36] Nauts^[37]) also refer to the need to educate judges regarding the rights of the child in principles of international protection and on the Convention on the Rights of the Child. Hopefully the implementation of the principles in the future was contributed to by the training that was organised in 2013 for the judges on the nature of the child’s wellbeing, which focused on hearing the children in custody debates between the parents in civil proceedings.

Statistics and surveys

The ratification of the Convention of the Child in 1991 placed the duty on the state to submit the Committee on the Rights of the Child reports every five years on measures taken by the state in order to realise the rights recognised with the convention, and on progress in using the rights. Similarly to what was stated in “Human Rights in Estonia 2012” it must be said that there is still no official overview of the obligations fulfilled by the state, as Estonia failed to submit the report in 2013 as well. Therefore, despite the committee’s recommendations^[38] and the confirmation of the Ministry of Foreign Affairs claiming that Estonia does regularly submit reports on application of ratified conventions,^[39] Estonia has submitted a report on application of the Convention on the Rights of the Child on just one occasion.^[40] The welfare of the child has become a central concept of the legal status.^[41] The Statistical Office, in cooperation with the Children’s Rights Department of the Office of the Chancellor of Justice, published a compilation on child welfare,^[42] which observes the topics directly influencing the child welfare: children’s growth environment, education, health, safety and opportunities for supporting children. From the point of view of promoting rights of the child such compilations ought to be published consistently and regularly.

The survey carried out by the Ombudsman for Children analysing the substitute home service^[43] revealed among other things that the capitation fee paid to children of substitute homes is insufficient for meeting all basic needs of the child (in two thirds of substitute homes the ratio of educators to children is not adhered to; in agencies, where the personnel requirements are met the other important opportunities for children’s development were not provided, such as recreational activities, school excursions, etc) and that the children are not sufficiently included in discussing case plans. The topic of inclusion of children as a whole is current and needs the public’s attention and to be discussed. The NGO Estonian Union for Child Welfare, in cooperation with Association of Estonian Cities and the ENL carried out a wide-based survey from October 2012 to May 2013 (688 children and 115 local governments answered the survey) on the topic of supporting inclusion of children and  the inclusion in decision-making processes.^[44] The survey revealed that children had lots of suggestions about organising the local life and most local governments consider the participation of children and young persons necessary, but it is not always implemented in practice. The interaction between local governments and children and young persons must become a natural way of functioning for the society. The survey also revealed that although Estonia had ratified the UN Convention on the Rights of the Child in 1991 and the national curriculum for basic schools entails presenting the convention, 61.3% of respondents (more than 75% of Russian-speaking young respondants in Ida-Virumaa) had not even heard of the convention.

Good practices

Articles 19 and 34 of the UN Convention on the Rights of the Child emphasise the child’s right to protection form abuse – regardless of the environment. Children spend more and more time in the constantly developing digital environment, which is why it is necessary to pay more attention to developing children’s digital capacity and providing quality age-appropriate content in order to avoid dangers related to data protection and privacy and guaranteeing safety of children.^[45] The development plan for reducing violence 2010-2014^[46] measure number three relates to protection of children from violence committed via the internet.

An example of a good practice is the project “Targalt internetis”, which supports solving the aforementioned needs.^[47] The activities of the project until 2015 are aimed at providing children relevant knowledge, skills and competence as well as producing age-appropriate content – in 2013 there were 443 topical informative activities in 163 general education schools and kindergartens across Estonia: for children and students (12,660), for the teachers (514), and for the parents (900). There was also a conference “Minu jalajälg internetis“, students’ competition “Minu õigused ja kohustused veebis“, and a handbook “Kaitske mind kõige eest“ was published, which provides information for specialists working with children and in the interest of children on the internet and digital media’s part in sexual abuse of children. The external experts of European Commission gave their assessment on the activity and progress for achieving set goals of the 2013 project “Targalt internetis” as “excellent”. Very good and productive cooperation between various institutions and interest groups on national ^[48] and international level was specifically noted.

Noteworthy public discussions

As the number of children without citizenship in Estonia is very large the Chancellor of Justice Indrek Teder has repeatedly (in 2012 and 2013) raised the issue of the necessity to amend the Citizenship Act. Council of Europe Commissioner Nils Muižnieks who visited Estonia in March also stated that in a situation where there are still around 1200 children without citizenship in Estonia and the absence of citizenship is a hindrance to their participation in society as a full and valuable member, it is necessary to review the Citizenship Act in order to better protect the interests of these children.^[49]

According to basic principles of the UN Convention on the rights of the child the child is an independent and active carrier of rights regardless of their age. This principle is expressed in Article 12 of the Convention on the Rights of the Child, which states the child’s right to an opinion in every question that concerns him or her and the right to be heard and considered depending on his or her age and maturity. Inclusion of children and youths on a national level is also stated in the “Strategy of Children and Families 2012-2020” approved by the government of Republic of Estonia.^[50] In addition to the aforementioned survey on inclusion of children and participation, the Ombudsman for Children also drew attention to the need to include children before the local government  council elections that took place in October.^[51] The topic of inclusion of children and youths was discussed with the participation of children at the 21st youth forum “101 last Toompeale”^[52] and at the eight pre-forums all over Estonia.

Trends in 2013

Promoting and teaching human rights (including rights of the child) is the duty of every democratic state and society. Respect for humanist values and a functioning society requires teaching of human rights (including rights of the child) at all stages of education starting from pre-school level.

Child welfare at pre-school or school and the child’s right to education are guaranteed if simultaneously also the other fundamental freedoms of the child are guaranteed. According to the students bullying and school violence are a big problem, which is caused by a hierarchical and discriminating school environment.^[53] Therefore, it is extremely important to promote values: tolerance, respect, caring and courage starting from pre-school. A positive trend worth mentioning is that pre-schools in Estonia have started to place an emphasis on teaching values, including supporting child wellbeing and safety, and avoiding bullying.^[54] By the end of 2013 317 pre-schools over Estonia had joined the anti-bullying project^[55] organised by the NGO Estonian Union for Child Welfare. In combat against school bullying 25 pilot schools all over Estonia started implementing the method “Kiusamisest vaba kool” and 20 pilot schools all over Estonia started implementing the method “Kiusamise Vastu” in the 2013 academic year.

The holistic method for teaching human rights is also supported by the Estonian Institute of Human Rights’ project “Human rights in educational system – networking, teacher training and empowerment of the youth”,^[56] which foresees creation of a network of human rights friendly schools consisting of 12 schools in the 2013/2014 academic year.

The UN Committee on the Rights of the Child has referred to the shortcoming that none of the institutes of higher education in Estonia has offered a systematic study program on the rights of the child.

It is a pleasure to see that at a time when the necessity to guarantee the rights of the child is talked about more and more, a study module on the rights of the child (21 European credit points) was compiled on the initiative of the NGO Estonian Union for Child Welfare within the framework of the project “Lapse hääl!” in cooperation with University of Tartu department of Sociology and Social Policy and the Faculty of Law.

Recommendations

• Raise awareness of the rights of the child in the society even more (including in Russian), and introduce the Convention on the Rights of the Child to adults, minors and children alike.

• Include children in decision-making processes more, increase the opportunities for children to speak about matters influencing the society, the community and the school life.

• Review the curriculums of child protection officials and social workers at universities and institutions of professional higher education, pay more attention to development of the child and study of legislation in the curriculums.

• Guarantee a more effective implementation of the UN Convention on the Rights of the Child (including social fundamental rights of the child). Systematically gather statistical data (and regularly submit reports), analysis of which would be the basis for policy making regarding guaranteeing rights of the child.

• Adopt a Child Protection Act, which is in accordance with the UN Convention on the Rights of the Child and which puts the interests of the child first. Make prohibition of physical punishment more explicit in the Act.

• Create minimum standards for substitute home services listing the fundamental needs of the child, which absolutely have to be met.

• Review the Citizenship Act in order to better protect the interests of the child.