The Simplest Way to “Formalize”

29.12.2019
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The question of what protection a child needs is often the subject of heated debate. Society is divided into those who firmly support parents who know “what is best for the child” and those who almost always support government interference and supervision of family conditions and circumstances. This question usually comes up in relation to troubled families, and people hold forth on it as follows: “If parents cannot provide a child with regular meals, care, or a safe environment, then that child is better off in a children’s home.”

It’s a little more complicated with wealthy and successful parents, who cannot be reproached for providing an impoverished material life for their children. A glaring example is the case of a girl whose parents spent an enormous amount of money to keep her in a private clinic for years, even though she had no actual medical need for treatment. Attempts to secure the government’s protection of the girl’s right to a full-fledged life were met with incomprehension: The parents paid, the clinic provided a clean, safe environment, nurses looked after her, and cooks fed her, so “the right to life was not violated.” But is a sated, clean, and safe life the only thing children need? It is difficult to prove the obvious: A child also needs emotional development, the love of a family, the friendship of peers, and real life experience with all its pains and dangers.

But what if it’s the other way around? What if a child is loved, given every freedom, but is raised in poverty, in poor living conditions, with shabby clothes and primitive toys? Or what if parents knowingly expose a child to dangers or violence? Clearly, this is unacceptable. People often try to protect these children but are unable to. Here’s another case: When the mother of a young girl was arrested for “attempted pickpocketing,” her daughter was left with acquaintances living in extreme poverty in a temporary structure who could only provide her with basic nutrition. But she had a kitten to play with and was free; she had what the wealthy girl in the clinic had been deprived of. This girl was finally discharged from the clinic six years after overcoming the resistance of her strange, wealthy parents, while the poor daughter of a loving mother who had been arrested was moved to a children’s home, declared “abandoned,” and offered up for adoption.

The practice of documenting children who clearly have blood parents as “abandoned children” is not unusual. Police even prefer to label a child torn from their mother’s arms as “abandoned” because this makes it possible to get rid of the child more quickly by calling an ambulance and sending the child to the social welfare department at a children’s hospital. This is exactly what happened to five-month-old Umarali Nazarov, who was taken from his mother in Saint Petersburg in 2015 after both he and his mother were detained during a raid to detect people who had violated migration rules. Umarali’s story became widely known—his parents never saw him alive again and the circumstances of his death have never been fully explained (the parents, whose healthy infant was taken from them, are not convinced by the investigator’s version that Umarali died because of a virus). What we do know for sure is that Umarali was taken from his mother, that he was not returned to his father and grandmother, who quickly arrived with the infant’s documents, and that the police wrote a report on an “abandoned child,” called an ambulance, and sent Umarali to the hospital. Repeated attempts to appeal the illegal separation in court produced no result. Like other government bodies, the court apparently believed that it could and even had to act this way (even in relation to a child whose legal representatives had not been deprived of their parental rights).

Every Russian city has “social welfare” hospitals or hospital departments that hold healthy children brought there from police departments, not for testing or treatment, but for temporary placement. This means that hospitals (and, apparently, the Ministry of Health’s budget) are used as places of confinement for children who have for some reason been removed from their families, taken from migrants, or separated from their guardians. If the parents are accused of violence or failure to perform their obligations, then their children await their fate, which most likely involves deprivation of parental rights, in hospitals. And if the authorities have no reason to deprive parents of their parental rights, or if this proves too complicated, then these children are recorded as “abandoned” so that children’s institutions can later seek a new family for them. But who here is thinking about the rights of the child or knows their history, relatives, or background?

It is extraordinarily difficult to determine the fate of a child is cases when there is an ongoing dispute between parents. The Kutaisi City Court recently handed down an interesting decision in the case of a conflict between the parents of a child from Belarus who was taken to Georgia by his father against the mother’s wishes. The court noted that it believed its governing principle was to view the child not as an object of rights, but as a legal person, and cited the position of the Parliamentary Assembly of the Council of Europe: “Children must no longer be considered as parents’ property, but must be recognized as individuals with their own rights and needs.” The Court of Appeals reversed the previous court decision recognizing the father’s right to live with his son in Georgia. Even though it was established that the child was living in good material conditions in Georgia and that he was provided with housing, clothes, toys, and activities, the Court of Appeals ruled that it was much more important to consider the emotional and social factors of the child’s development. The court noted that the child had close emotional ties with both parents, that he also had other relatives in Belarus, including grandparents and stepbrothers, that it was important to observe his right to communicate with these relatives, and that this child had been socialized in Belarus, attended kindergarten there, and communicated with his peers there. The court considered all these factors to be of extreme importance and recognized that it would be better for the child to return home, where he could live in his accustomed environment (including linguistic environment) and maintain his connections with his family.

The court’s decision in this complicated case is notable in particular for its statement of reasons: the judges based their decision not just on the laws of Georgia and decisions in previous cases (including in Belarus), but also to a large degree on norms of international law. Proceeding from the UN Convention on the Rights of the Child, judgments of the European Court of Human Rights, and other norms, the court deemed it necessary to consider the interests of the child in the first place, as well as the child’s social and emotional interests and not just his material interests. A psychological assessment of the boy’s condition was also important for the court, which noted the psychologist’s conclusion that “The child is not as happy and spontaneous as is generally characteristic for his age.”

It would be nice if other courts and other people who make decisions that determine a child’s fate could consider the needs of the individual over the needs of those for whom it is more convenient  to “formalize” the child and shuffle this child off onto someone else, or, on the contrary, possess this child.

 

Stephania Koulaeva – expert of the Antidiscrimination Center Memorial