Best interest of the child INTERNATIONAL STANDARDS ALBANIAN EFFORTS TOWORD APPROXIMATING OF LEGAL FRAME AND CASE LAW CHALLENGES OF THE PRINCIPLE OF THE BEST INTEREST OF THE CHILD Faculty of Law, Utrecht PREPARED BY Prof.Dr. Arta MANDRO-BALILI 1
Albania is a small country 1/3 of the population is under 18 years old 2
Flag, population Albanian Institute of Statistics estimated it at 3,152,600 on 1 January 2007, at 3,170,048 on 1 January 2008 and at 3,195,000 on 1 January 2010 3
The capital of the country Tirana 4
Berat, one of the ancient cities
Vlora A sea side City
Why do I have selected this topic? Albania is a small country Children 0-18 years compose 40% of the population Children 0-14 compose 23.6% Children under age 15/820,000 The justice system and legal frame are improved but still there are a lot of difficulties for their implementation 20% of the Albanians live abroad as migrants Presence of Albanian children abroad, is significant Objective that should remain: Through the right and contribution of jurists to realize the children s rights wherever they are! 7
Some figures Children s registration rates: 98% of children under the age of five are registered; Child labour: 12% of children from five to fourteen years old who live with their families work outside the household. In the rural areas this phenomenon is four times higher than in the urban areas; Children s discipline: 49 % of children from two to fourteen years old have been subject to some kind of domestic physical or psychological punishment; Early marriages: about 1 % of the girls marry before the age of fifteen and 8 % under the age of 18; Child development: About 32 % of children under the age of five have books in their households; Child disability: 11% of children from two to nine years old have been reported by their mothers to have impaired sight and hearing difficulties, speech defects and difficulties in learning (according to their mothers concept on disability).
Who is responsible for the child? Parents and the State Children are the today reality and the reality in perpetum for the future; Child protection and child best interest is everybody s responsibility; Lawyers in general and judiciary especially have an increasingly important role to play in child protection and child best interest.
In order to have a clear overview lets have a look on Legal frame Constitution International convention Family code and other Laws Sub legal Acts Rights of minors scattered in many laws and normative acts and there is no «CODE» to sum up all minors rights. Legal practice What to bear in mind Decisions of ECoHR Decisions of Supreme Courte Decisions of Constitutional Courts Best experiences of other courts 10
Actors/components that contributes in the child interest evaluation Parents Child Authority Every one (LI) 1. Legal frame. Do we have a good law for the best of the child? What is the content and what is lacking? 2. Which are the structures in charge and are they adequate? 3. Human resources Are they trained? Are they properly qualified? How is the infrastructure? Is it appropriate? International instruments. Standards Albanian legal frame 11
Child best interest evaluation as a challenge Which protection mechanisms are in place? What are their strengths and weaknesses? What s the role of a particular sector in this process? How can better identify and meet the responsibilities as duty bearers? (Legislation/Policies; Institutions/Structures; Focal points; Specially Qualified Professionals; Services) What s are the standards and obligations to fulfil them? What is needed to strengthen interaction between authorities especially in difficult cases?
To consider children a priority... Principles and Standards Correct implementation of the law Realisation of the best interest of the child Asks that all the actors + + + / - - - Have deeper knowledge of the law and social context 13
Meaning of the highest interest of the child as a first consideration in every decision making Every authority should: Treat and estimate each minor in a special way and as a priority. Principles of unity and diversity. Copy and paste decisions without analysis of the concrete child diversities Children at risk: Children living in extreme poverty; Children with no parental care; Disabled children; Children emigrating to other countries without their parents; Street children. In addition to that, there are children who are victims of violence and - children in conflict with the law. Choose the ideal alternative for the child Such a difficult issue 14
Meaning of the highest interest of the child as a first consideration in every decision making Resolve quick and without delay a case where delays endanger or infringe upon the interests of the minor Case of Bajrami What s wrong with this case? Cases of DV [case of Era and Adi] What seems everybody s main concern? How many times does Era and Adi have to repeat, to different professional, what happened? What psychological support was guaranteed to them during the process? Was the physical examination necessary? Were they prepared properly for the court process? Which is the failure of each agency in handling this case? How they could have worked together in children s best interest? Every authority, comprising the judicial one, should take a final decision not in a hurry but it should use intermediate decisions, giving time to the child to get familiar to the new situation, and giving time to the adults to reflect upon the situation.
The mission of the judiciary and of the other actors for achieving the best interest of the child It is not an easy and simple issue; Remains a delicate one; It is a challenge; The court has to estimate comprehensively all physical, emotional, educational, economic, and health needs of the child. The court must make an actual and perspective assessment The case of removal of a child to Canada The case of parenting invalidity 16
(Anyone) Court should make an assessment of consequences that any of its decision might change the life of the child. (Anyone) Court should make an assessment of the concrete possibility of execution of the decision given by it, in order that, the child s interest to become a reality. 17
Estimation of the highest interest from the child itself. Right of each child to be heard. Taking into account the minor s opinion; Taking into account the minor s feelings; Seeking the consent of the minor; Making interventions during a process; Presence of the minor; Its legitimating as a direct applicant in a court process. 18
Alex, who you are talking to, is in Rodos Assessment of sayings (opinions and feelings, attitudes) of the minor from the psychologist in order to realize the highest interest of the child. Mandatory presence of the psychologist in each procedure with the minor. 19
Educational and awareness role of law and authorities A decision has a wider impact than who are the parties involved in it? A law article or provision constitutes an educational process Children are all equal Pla and Puncernau against Andorra (2004) &Haas against Holland; Merger and Cros against France Görgülü against Germany (2004) - (inheritance); Education process of parents (Parent s agreement) Surname after dissolution of marriage (until delicacy) Relations with children (right of non-custodian parent and limitation or deprivation of liberty of parent) Zawadka against Poland (05), Siemianowski against Poland (05); Bove against Italy and Reigado Ramos against Portugal (05), Bajramaj against Albania Sabouk and Pîrcălab against Rumania (05) Right of inhabitation (decision of Constitutional Court of Italy) 20
Children agents of positive change (emigration) In a foreign country and foreign juridical environment or in a foreign country and non-foreign juridical environment? this is the question! By means of rights to be improved the living of minors and their families, which often find themselves in a foreign juridical environment, because of several conditions independent by them. Those children can be agents of positive change. Children in emigration emigration the other side 21
Unification and harmonization. A ius commune for minors It is noted a tendency to shrink the statecentrist character of the family law and minors regulations. Care is increased to facilitate the integration of non-member countries into the EU. Comparative view shows that we have more similarities between legislations of different countries. 22
Unification and harmonization In the framework of Council of Europe ECHR (Article 8 and 12); European Court of Human Rights jurisprudence; Family Law expert committee (CJFA); Scientific meetings; Recommendations. In the framework of EU Directives, regulations (Brussels I and II) and recommendations Tendency of influence with soft law (code of conduct) In the framework of UN CRC [KDF], protocols, guides Committees on children s rights In the framework of Hague Conventions Every efficient instrument in framework of PIL 23
Why are Conventions important? They unify standards and laws of countries ratifying them. They are directly implemented in order to avoid the adversary between a national rule of a smaller value and an international one; They fill a vacuum of national legislation (see article 122/2 of Constitution of RA); They facilitate interpretation of the national law in light of the international law. They help in establishment of a principles by their judgments (see unifying decision of the High Court and their nature), inspired from the international law. In front of vacuum or impreciseness of national written law, a judge is inspired from an international standard (generally ratified) to initiate the existence of juridical regulation to resolve court cases. 24
Albanian minors abroad Minors abroad can be: Accompanied, minors entrusted formally up to third degree cousins with regular sojourn; Are entitled to: education, health assistance, work (if!!); etc. Unaccompanied, minors without parents or without adults legally responsible for their representation or assistance. Are entitled to: protection and assistance (placed under custody); not to be expelled, permission of sojourn, asylum etc. Risks: See Siliadin against France (2005) 25
Family union and right of movement. Articles 9 and 10 of CRC Article 16 of Constitution as a guarantee for foreigners or persons without citizenship in Albania Articles 38-40 of Albanian Constitution See from Law no.8492/27.5.1999 On Foreigners (articles 6,9,14,15,56,77) in Law no.9959, dated 17.7.2008 See from Law no.7939/25.5.1995 On migration (article 6.c.i prevention of illegal deportation of minor children) in Law no.9668/18.12.2006 On emigration of Albanian citizens for employment purposes Law 8432, dated14.12.1998 On asylum in RA changed (article 6 family reunion), convention on status of refugees and Protocol. 26
What can be noticed Lack of bilateral agreements (we have with Greece, Cech Republic, Bulgaria, Turkey and in process with Russia Flux of requests in albanian court for juridical assistance in civil cases increased The important basis remains HCC Children are abroad, marriage is dissolved in Albania. How can they be asked? How can the opinion or consent of minor be taken? When children are left with one parent and the other is abroad, how can the visiting rights be implemented, or the supervision of exercise of parental responsibility? Difficulties of determination of alimony. Difficulties of execution of court decisions. 27
Institutional Frame of the System of Administration of DM in Albania tructures of JJ system Court System Social Service Ministry of Justice Prosecution office Attorneys, advocates Physiologic assistance State police Detention and prosons Analysis of current situation Legal basis of activity Structures, units for minors Required international standards Problems noticed by the legal basis analysis, structures, infrastructures and activity of institution and (in) compatibility with standards Judicial police High Council of Justice Peoples Attorney School for Magistrate and Faculties of Law 28
Children are above everything... Principles and Standards Corrent attitude towards the law Realization of child s interest Requires from all actors + + + / - - - Deep knowledge of law, familiarity with social context 29
Children are not dolls just to play with them. However, we should not think we lose time by playing with them! 30
T H A N K Y O U! 31