“The best interest of the child in removal decisions – a parliamentary perspective”

“The best interest of the child in removal decisions – a parliamentary perspective”

“The best interest of the child in removal decisions – a parliamentary perspective”

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Good afternoon ladies and gentlemen,

First of all, allow me to introduce myself: My name is Valeriu Ghiletchi, and I am a parliamentarian from Moldova. I have the honour to chair the Committee on Social Affairs, Health and Sustainable Development of the Council of Europe Parliamentary Assembly, and I would like to talk to you today about a report the Committee has been working on for the last two years, and which we hope to adopt in Committee in January, for a debate in the Plenary Assembly in April 2015.

The report is entitled “Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States”. This may seem a rather long and complicated title, but what the report is really about is how to ensure  that the best interest of the child is put first when the initial decision is taken – usually by social services – to remove a child from his/her birth family.

Our Rapporteur, Ms Olga Borzova, from Russia, undertook three fact-finding visits in the last 18 months to better prepare the report, to Finland, Romania and the United Kingdom. The Committee also received 30 replies to a parliamentary research questionnaire, so we have quite good data at our disposal.

What the Committee first set out to establish is whether there is an increase in unwarranted removal decisions in Council of Europe member States. The next question was whether there is a pattern to these decisions: are migrant parents, parents belonging to national minorities or minority religious groups or from poor socio-economic backgrounds disproportionately victims of such unwarranted removal decisions? Should this be the case, how can the national laws or implementing guidelines be improved in order to improve decision-making at the level of the social services, with a view to guaranteeing the rights of children and parents alike, while effectively protecting children? Are there good practices in some member States which could inform other member States?

In answering these questions, the Committee considers that a misunderstanding (and sometimes abuse) of the concept of the “best interests of the child” is one of the prime factors in unwarranted removal decisions. While the concept of the “best interests of the child” has been key to all international and European treaties and recommendations since 1989, this concept is also one of the most widely misunderstood concepts of the Convention, as the UNCRC has lamented frequently in its reports, which led it to issue “General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)” last year.

The Committee considers that the “best interests of the child”-principle should be applied in a way that not only laws and regulations, but also the actors on the ground (in this case social services) truly put the best interest of the child first in removal, placement and reunification decisions.

Our Rapporteur has concluded that on the one hand, in some countries (or regions thereof) social services take some children into care too rashly, and do not make enough effort to support families before and/or after removal and placement decisions. These unwarranted decisions usually have a – sometimes unintended – discriminatory character to them, and can constitute serious violations of the rights of the child and his or her parents, all the more tragic when the decisions are irreversible (such as in the cases of adoption without parental consent).

On the other hand, in some countries (or regions thereof) social services do not take children into care quickly enough, or return children too rashly to abusive or neglectful parental care. These decisions can constitute equally – or more – serious violations of the rights of the child, and can put a child’s life and health in danger.

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Allow me to present you with the key recommendations the Committe is likely to adopt in January in this context:

First of all, it will be necessary to make visible and root out the influence of prejudice and discrimination in removal decisions, including by appropriately training all professionals involved. Professionals are human too, and – particularly in the wake of much-mediatised cases of children dying at the hands of their parents – there is going to be a lot of pressure for social workers to err on the side of caution. Unfortunately, being human, we are all influenced by stereotypes, and depending on the situation in our particular country, we may feel that it is more likely that, for example, poor and uneducated families, or foreigners, or families belonging to a minority, will treat their children badly. This is why the European Court of Human Rights has underlined that “it is in the child’s best interests that his ties with his family be maintained except where the family has proved particularly unfit… It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

Second, families need to be supported in an appropriate way (including financially and materially) in order to avoid the necessity for removal decisions in the first place, and in order to increase the percentage of successful family reunifications after care. To take an extreme example encountered by Mrs Borzova, the solution for a hungry child is not to take him or her into care, but to ensure that the child’s family has the resources to feed the child.

Third, there are some practices which should be avoided, except in exceptional circumstances. These are: severing family ties completely, removing children from parental care at birth, basing placement decisions on the effluxion of time, and having recourse to adoptions without parental consent (particularly when these become irreversible).

Fourth, it is important to ensure that the personnel involved in removal and placement decisions is suitably qualified and regularly trained, has sufficient resources to take decisions in an appropriate timeframe, and is not overburdened with a too high caseload.

Fifth and finally: we need better data collection. Data should be collected on the care population in member States which is disaggregated not only by age and gender, and alternative care type, but also by ethnic minority status, immigrant status and socio-economic background, as well as by length of time spent in care until family reunification. Then we will have a clearer picture of how we can better help children who need our protection, while also better protecting the rights of the birth families.

I believe that only when these recommendations will be implemented will we have really put the best interest of the child first.

Thank you for your attention!

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