Social and Legal Protection of Children – General Introduction
What does „social and legal protection of children“ mean?
Social and legal protection of a child consists in securing the child‘ right to life and favourable development, to parental care and family life, to the child’s identity, freedom of thought, conscience and religious conviction, education and employment, it also includes protection of a child from any physical or mental violence, neglect, abuse or exploitation. Child protection, which constitutes a wider concept than social and legal protection, thus involves protection of an extensive range of rights and rightful interests of the child, therefore it is regulated by various legal disciplines and pieces of legislation of various legal force. It constitutes a subject matter of activities of numerous authorities, legal and natural persons, depending on their competences. The concept of child protection and enforcement of child’s rights is reflected by legal regulations applicable in the sphere of family law, social welfare, education, health, taxation, civil law, criminal law etc., which also implies the range of entities implementing this protection. Due to these facts the legal regulation of child protection obviously cannot be contained in a single legal instrument. The Declaration of the Rights of the Child adopted by the UN General Assembly on 20 November 1959 and the Convention on the Rights of the Child adopted in 1989 declare the family as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, which must be entitled to the necessary protection and assistance so that it can fully assume its responsibilities. According to the mentioned international instruments the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. The Charter of Fundamental Rights and Freedoms, which forms a part of the constitutional order of the Czech Republic (hereinafter referred to as “Charter”), pays attention to children and families in Article 32 by providing parenthood and the family with the statutory protection and guarantees special protection to children and adolescents. Therefore the legislation also respects one of the key principles of functioning of a family, namely the parents’ right to care for and bring up their children and to ask for assistance in case of need. Any interventions into private and family life are admissible only if requested by the parents or persons responsible for the upbringing of the children or if these persons are unable or unwilling to care for the children.
In addition to the mentioned substantial documents the concept of child protection is regulated also by other international conventions and the below stated legal regulations.
The concept of social and legal protection of children is explicitly specified in Act No. 359/1999 Coll., on social and legal protection of children, as amended (hereinafter referred to as “SLP Act“), which in s. 1 defines the social and legal protection of children as follows:
- protection of the child’s right to a favourable development and proper upbringing,
- protection of the rightful interests of the child including protection of the child’s assets and
- activities aimed at recovery of disrupted family functions,
upon which the Act emphasizes that this is without any prejudice to special legislation regulating the issue of protection of rights and rightful interests of the child.
This definition contains the wider concept of social and legal protection by specifying that the Act is without any prejudice to special legislation regulating the issue of protection of rights and rightful interests of the child. The SLP Act regulates only certain actions aimed at protection of children, other actions are specified in numerous legal regulations targeted at specific areas. These include, inter alia, the Family Act, Civil Procedure Code, Criminal Code, Rules of Criminal Procedure, Act No. 218/2003 Coll., on juvenile courts, as amended, Act No. 109/2002 Coll., on the provision of institutional education or protective education, as amended, social welfare regulations, Act No. 379/2005 Coll., on measures aimed at protection against harm caused by tobacco products, alcohol and other addictive substances and amendments to related acts, Act No. 202/1990 Coll., on lotteries and other similar games, as amended, and others.
From the above specified legal regulations the below stated key principles of legislation in the sphere of social and legal protection of children may be derived:
- Priority factor of providing social and legal protection to children consists in the best interest, prosperity and well-being of children.
- Social and legal protection shall be afforded to all children in general, without any discrimination based on grounds of race, colour, gender, language, religion, political or any other opinion, national, ethnic or social origin.
- Social and legal protection shall be granted free of charge.
- Social and legal protection shall be granted to all children below the age of eighteen years unless they attain majority earlier.
- The state shall be responsible for the protection of children from physical or mental violence, for the protection of their healthy development in physical, mental and moral terms and the protection of other aspects of integrity of a child as a holder of rights guaranteed by the Constitution and the Charter and rights ensuing from international commitments of the Czech Republic. However, the state shall neither substitute for discharge of parental obligations and responsibilities not intrude into the position of parents as holders of parental responsibilities, unless the child’s rights or development are at risk.
- The bodies having general jurisdiction in the sphere of child’s protection are courts and entities specified by the SLP Act, i.e. the Ministry of Labour and Social Affairs, regional and municipal authorities and in the sphere of foreign affairs the Office for International Legal Protection of Children, seated in Brno. Tasks in the field of social and legal protection of children are also accomplished by regions and municipalities with separate powers and natural and legal persons, if authorized to exercise of social and legal protection.
- The leading rule for activities of the authorities providing for social and legal protection consists in the principle of preventive influence on family relations, if the latter are affected in an extent allowing for a public authority intervention. Social and legal protection measures are hierarchically arranged in an interlinked set enabling selection of tools according to the particular situation of the child and the relevant risk intensity.
- Emphasis is also given to the protection of children from social pathological phenomena (i.e. prevention of risky development of children and minimization of impacts of social pathogenic factors).
- Children temporarily or permanently deprived of their family environment or children, who cannot be left in such environment, are entitled to a special protection and assistance granted by the state in one of alternative care forms.
- Upon selecting the relevant solution the desirable continuity of the child’s upbringing and the child’s ethnical, religious, cultural and language origins must be duly taken into account.
- In case of inter-country adoption the principle of subsidiarity must be respected, i.e. the inter-country adoption may be considered as an alternative means of a child's care, if the child cannot be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child's country of origin. For this situation international conventions and the SLP Act formulate a comprehensive set of rules for inter-country contacts in matters related to social and legal protection of children.
- Authorities charged with social and legal protection of children are obliged to monitor the course of institutional or protective care, without intruding into the management and operation of the institutional or protective care facility; the monitoring aims to ensure respect for the children’s rights, development of the children’s mental and physical abilities and to ascertain whether the reasons for the child’s stay in the facility continue and how the relations between the parents and the children are developing.
- Aims of the social and legal protection of children also include recovery of disrupted family functions.
- Natural and legal persons may voluntarily participate in exercise of the social and legal protection of children within the statutory limits, provided that these persons must acquire an authorization for such activities. However, specific tasks constituting a major interference with the position of the child or persons responsible for the child are reserved solely to state agencies or public administration authorities with delegated powers.