“Best interests of the child” and “right to family life”

Stefania Kulaeva

What purpose does withdrawal of children from the family by the state serves, that of protecting the rights of the child or the suppression of the rights of family? In what cases public guardianship authorities can exercise their power and take children from suspicious parents, and in what cases they should not do this? How can we avoid traumatic damage to children, who are “saved by the state” from their loved ones? What should be done to protect the child from violence and, possibly, even death in a situation when it becomes dangerous for him or her to live at home? Are the guardianship agencies, where children are being taken, always a panacea against accidental deaths, violence, suffering and social problems facing children?

These questions are impossible to ignore when literally every day of the year, which had just started, brings us yet more news reports about withdrawal of a one-year-old girl from an Uzbek labor migrant, who had lost her documents, or about guardianship authorities taking adopted children from a father of a multiple child family on charges of beating, or a married and pregnant Roma underage girl taken to an orphanage, or a boy, who had been supposedly stolen from hospital after his birth, but found a couple of years ago in a loving family and then taken away from it…

Recently the media reported that the Moscow authorities finally decided to demolish the abandoned hospital in Khovrino district, which had never been used for its intended purpose, but had become a favorite hangout place for teens looking for extreme and dangerous fun, who had used to run on the stairs and jump across the gaps in the dark and elevator shafts. Local police and emergency medics told reporters that by now dozens of children died there. This happened in Moscow, not in Aleppo. And these were children who had families, they were not homeless. A lot of people knew about the problem… These children had the right to life, even if they themselves did not know about it or did not want to know.

The very concept of “children’s rights” often arouses protests or creates confusion, and in the worst cases it becomes a subject for speculations and arbitrary interpretations.

Supporters of the “classical theory” of human rights do not recognize the rights of children as a separate topic: “Why do you come up with some kind of children’s rights? Isn’t a child a person? And if he is a person, he should have the same rights as any other person, as it is outlined in the Universal Declaration of Human Rights!” Those who are familiar with the UN Convention on the Rights of the Child, also sometimes do not understand why there should be some special protection of children from violence, starvation, denial of treatment, because these rights are already guaranteed to all people. But not all people are guaranteed the right to be saved from aggressive parents or “legal representatives” who are unable to create safe environment. However, this right is necessary for children, and not only this right, but some other as well.

To my surprise, I have repeatedly faced with the belief of many Russian citizens and even government officials, who work in the so-called “childhood sphere”, which includes the state bodies in charge of registration of children, childcare and education, that the UN Convention on the Rights of the Child is not applicable in Russia and that the Russian authorities do not recognize it. Formally, the Russian authorities, same as the authorities of almost all of the other countries in the world, recognize children’s rights and even report to the UN Committee on the Rights of the Child on a regular basis. (The UN Convention on the Rights of the Child is the only international convention ratified by all governments, except the US government, but even the USA moves closer to its ratification.)

But in reality, the provisions of the Convention itself are interpreted arbitrarily by various governments and the very progressive recommendations of the UN Committee on the Rights of the Child for the most part are not observed.

The Committee has more than once pointed out the need to respect the rights of migrant children, obligation of the states to treat them as all other children in the country, regardless of his or her immigration status, availability of identity documents and the situation of parents. However, the harsh practice of detention of migrant children, separation of them from their parents, placement in special institutions (such as orphanages “Transit”, children’s detention centres or hospitals) continues in Russia. Some of the most dramatic cases involve children born in Russia to migrant mothers: difficult life situation often makes these mothers abandon their children, guardianship authorities declare these children orphans and offer citizens of the Russian Federation to adopt them. But later these children can be taken away from the new parents and transferred to the authorities of the country origin of their mother.

A blatant case of this kind involved withdrawal of a beloved adopted child from Yegorov family. The child was transferred to children’s orphanage in his mother’s country of origin at the request of the Tajikistan authorities. This case was described in report prepared by ADC “Memorial”, which dealt with problems of non-compliance of the Tajikistan authorities with observation of children’s rights.

There is no doubt that the officials of Tajikistan, same as the Russian authorities, cared the least about the right of the poor child to family life and happiness in his new family, when they condemned him to loneliness and suffering during the long trip to a country where no one was waiting for him and where he had never lived himself.

The most difficult right to observe, which is outlined in the Convention, is the right to resolution of any matter concerning the child in his or her “best interests”. (As for Russia, these words “best interest” turned out difficult to translate, and even in the official UN version of the article it was translated not quite accurately.)

Obviously, the ideas of what is really better for the child can be very different. Some educators believe that spanking is actually in the interests of the child, while others believe that children must be protected from all the trials and tribulations in life, even from school. A person’s own experience as a child often somehow becomes for him not subject to any revisions: “If we were brought up this way, then so be it like this forever”. Others, on the contrary, seem to make a cult out of their own problems of childhood: “The school didn’t do any good to me, I felt really miserable there, so my children should not be sent to school to learn”.

One can only feel pity for the parents who violate their children’s rights, but who at least are aware of this and suffer: unable to withstand the stress, parents can sometimes yell at their kids, even verbally threaten them sometimes, or in some cases, intolerable as it is, to even slap their children. All this is wrong and undesirable, but children are quite easy in forgiving the adults if the latter realize themselves that they are to blame for what they have done, that they themselves have been wrong or have overreacted. What is terrible is that many parents and teachers are convinced that they are always right.

Family is the most closed social institution. The child may be tormented day and night, but no one will know. Children themselves are afraid to complain, they are often ashamed of the troubles they face, and often they do not know that this should not be approached this way. If something gets noticed by teachers, neighbors or relatives, they too are often afraid to intervene. And the alternative – an orphanage or similar institution – is something you cannot wish even for your worst enemy. Nowadays there are many discussions in Russia on whether it is possible to report crimes to the police, even if one is aware of an unquestionable crime, because people can end up in jail for some minor offense, such as, say, stealing a purse, and they could end up being tortured there. Reporting to the authorities in case of parental cruelty is even more complicated: not only adult people can end up suffering and being tortured in prison, but their children also could end up in state institutions.

Public opinion is almost always on the side of the parents, as was the case in the above mentioned story of a multiple child family and adoptive parents, although abusing children with a grave medical diagnosis is unsupportable in any case. But the champions of “parents’ rights” have immediately began to claim that it was unacceptable to base the accusations on the testimonies of a six-year-old.

I think that the principal matter at the heart of any decision to be made in “the best interests of the child” should always be the opinion of the children themselves, of course, if the children are already capable to express their views and opinions. (Surely it is difficult with very small children, they can’t be properly asked.) Children who reported beatings in the family must be saved from this. Immediate withdrawal of these children from their family is sometimes the only way to prevent the worst from happening. But it probably is a much better idea to put them into another family, possibly in another house, where their relatives or friends live, not into a children’s orphanage or a hospital, until all the circumstances of the incident are being properly investigated. The fight against domestic violence should not be expressed only in deprivation of parental rights. International experience shows that social work with families, trainings for parents, attention paid by a permanent curator and a family psychologist can positively contribute to complete abandonment of the habit of spanking and other violent reactions, and this can further result in return of children to their loving, peaceful parents.

There are somewhat different situations when children of more conscious age do not complain, no matter what, although their families do not fully meet the requirements of the law. A striking example was the case of a Roma girl, who had married at age 12, being already pregnant, who was happy and satisfied with her life. It was not strange for her to marry so early, as it was a common practice in her community, but she ended up being locked up in an orphanage, and was prohibited to even talk with members of her family.

Early marriages, supported and approved by the parents, and in some cases even betrothal, is an outrageous phenomenon. Measures should be taken in order to change this practice, as well as the beliefs of even the most traditionally minded people, through persuasion that they need to give their children the opportunity to grow up first and to get education, so that they can make choices for themselves. But while we condemn the practice of traditional early marriages, we should clearly understand what is really effective in the fight against them, and what is not. It is necessary to think about the interests of particular children, whose fates were first defined by one set of adults (their parents and community), and then suddenly by the other adults (those of guardianship authorities and public institutions). By taking away from the family their pregnant daughter-in-law, who has been already persuaded that she was an adult, a young wife who loves her husband, an expectant mother, and to put her in an orphanage the state condemns her to suffering a difficult pregnancy and injuring an unborn child. Young wife and expectant mother wants only one thing – to return to her family. Torture by placement in an orphanage is meaningless, and the only conclusion that, I’m afraid, may be made by a traditional community will be to never again report to the authorities, not to approach doctors even in case of serious health troubles, to build an impenetrable wall against everything coming from the outside. One cannot try to solve the problem of harmful traditional practices by excluding even more the people, who are already excluded.

Children need to be protected from the stupidity, barbarity and aggression of parents, but this should be done humanely, respectfully, taking into account the views and wishes of the children themselves. An alternative to the cruelty in family should not be the brutality of the state. However, rejection of the rights of children for the sake of preserving “traditional values” is also not the way to achieve this.

First published in the blog of “Radio Liberty”

Photos by A. Demenkova