The Centre of Thematic Expertise on Rule of Law and Fundamental Rights
FACTSHEET 22 - FOCUS ON….. DEINSTITUTIONALISATION OF
CHILDREN
1. What is the issue?
Institutionalisation of children involves placing children in orphanages or similar residential
care institutions.
Children in institutional care constitute one of the most marginalised,
underserved, and vulnerable groups. A disproportionate number of children who are
placed in institutions have disabilities.
While there is variability in both living conditions and caregiving environments across
different alternative care settings,
placement in institutions is now widely recognised as
harmful and inherently a human rights violation. Research has provided strong and
consistent evidence indicating that
nearly all domains of development are profoundly
affected when children experience institutional care. These impacts include severe impaired
social, emotional, behavioral and interpersonal impairment, physical underdevelopment,
delayed motor skills, and/or stunted cognitive and language development. All of this leads
to
irreparable damage to the physical and psychological well-being of children.
Institutions may be overcrowded, clinical environments with highly regimented routines,
unfavourable care-giver to child ratios, and unresponsive, usually underpaid, staff.
Institutions also display a
grim record of neglect and violence. Numerous reports have
highlighted cases of
violence, physical and sexual abuse, the use of cage beds and other
physical restraints, the overuse of medication and violations of the right to privacy and
family life. Reports have also exposed inhumane living conditions including lack of heating,
malnutrition, unhygienic sanitation and otherwise poorly-maintained buildings. The 2006
UN Secretary General’s study on Violence against Children1 found that children in
institutions were at a higher risk of all forms of abuse than those raised in families. Human
Rights Watch reported in 2017 that staff in institutions in India, Indonesia, Greece, Russia,
and Serbia used physical and chemical restraints on.2 Contemporary evidence from different
countries also demonstrates how orphanages are central participants in a web of modern
slavery and trafficking of children3.
It is also important to note that
many adults currently living in institutions entered
institutions as children. Studies have shown that the harmful effects of institutionalisation
are likely to continue after the child reaches adulthood, triggering a range of problems and
affecting adaptation to social and professional life. They are also
over-represented in
negative circumstances as adults, e.g. in conflict with the law/homeless, etc., underlining
the need for early intervention and robust family support systems.4
According to international human rights law, children have the right to grow up in family-
based settings. The
UN Convention on the Rights of the Child recognises that the ideal
setting for a child to grow up is within a family environment that provides the care,
protection and love which every child needs in order to thrive. Standards on
deinstitutionalisation have also been captured in the
UN Convention on the Rights of
Persons with Disabilities (CRPD) which recognises the equal right of all persons to live in
1 UN Secretary-General, Report on Violence against Children, 2006, par. 112
2
https://www.hrw.org/news/2017/03/07/children-disabilities-deprivation-liberty-name-care-and-treatment
3 Doore, K.E.V. (2016). Paper orphans: Exploring child trafficking for the purposes of orphanages. The International
Journal of Children’s Rights. Volume 24, Issue 2
4
http://www.equalrightstrust.org/ertdocumentbank/err9_mulheir.pdf
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the community.
The UN Guidelines for the Alternative Care of Children represent an
essential reference, clarifying that 'States should develop and implement consistent and
mutually reinforcing family-oriented policies designed to promote and strengthen parents’
ability to care for their children'.
2. How to address the issue?
The
Common European Guidelines on the Transition from Institutional to
Community Based Care5 refer to deinstitutionalisation as the process of closing institutions
and developing services in the community in order to eliminate the need for institutional
care. These Guidelines “provide practical advice about how to make a sustained transition
from institutional care to family-based and community-based alternatives". In order to
accelerate progress towards ending institutional care for children, the following conditions
are necessary: political commitment, funding, capacity to implement reforms, and
cooperation with civil society. The Guidelines call for:
Making the case for developing community-based alternatives to institutions
Assessment of the situation
Developing a strategy and an action plan
Establishing the legal framework for community-based services
Developing a range of services in the community
Allocating financial, material and human resources
Developing individual plans
Supporting the individuals and communities during transition
Defining, monitoring and evaluating the quality of services
Developing the workforce
The 2010
UN Guidelines for the alternative care of children outline key principles that
should be adhered to in all care and protection options for children. These stipulate that:
Efforts should primarily be directed at enabling children to remain in, or return to, the
care of their parents or, where necessary, of other close family members;
The removal of a child from his or her family should be considered an option of the last
resort and for the shortest possible duration;
The State is responsible for ensuring alternative care only where the family is unable,
even with appropriate support, to provide adequate care for the child;
Any alternative care placement should be decided and provided on a case-by-case basis,
by qualified professionals, and should respond to the best interests of the child;
Alternative care for all children, especially those under three, should be provided in
family-type settings within the child’s community, rather than in residential institutions.
More specifically, to implement the transition from a system of long-stay residential
institutions to a system of family- and community-based services—deinstitutionalisation—
successfully requires that
governments create sustainable strategies and action plans.
This transition is a complex, medium to long-term process. It requires careful planning with
a wide range of cooperating organisations and individuals to ensure a coordinated approach.
A key challenge is ensuring that deinstitutionalisation is carried out in a way that respects
the rights of the user groups, minimises risk of harm and ensures positive outcomes for all
individuals involved. C
losing institutions hastily and without developing high quality
alternatives can be very dangerous for children, and even subject them to worse
5
http://enil.eu/wp-content/uploads/2016/09/Guidelines-01-16-2013-printer.pdf
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violations of their rights. The decision to move a child from an institution to a new
placement requires individual needs assessment, careful planning and support.
Contrary to what is likely to have been the child’s prior experience,
the child must be
included in a meaningful way in any decisions and actions that concern him or her. One of the worst failures has been the requirement for a child to slot into an available place
in an institution irrespective of what that was, and the failure to meet the child’s individual
needs is a delicate transition that needs careful planning and support.
Many governments believe that providing care and protection through institutions is the
most cost-effective option. However, evidence clearly shows
6 that systems that rely on
institutions are more expensive to run than those which provide community-based
services. An analysis of care provision in Romania, Ukraine, Moldova and Russia concluded
that the cost-per-user for institutional care is six times more expensive than providing social
services to vulnerable families or voluntary kinship carers.
3. Are there international standards/EU acquis?
United Nations:
According to the
UN Convention on the Rights of the Child (CRC) outlines a range of
children’s rights which, taken together, suggest that most children should live with and be
cared for by their birth families (
Articles 9 and 7). It is the primary responsibility of parents
to raise their children and it is the responsibility of the state to support parents in order that
they can fulfil that responsibility
(Article 18). Where their family cannot provide the care
they need, despite the provision of adequate support by the state, the child has the right to
substitute family care
(Article 20). Children with intellectual or physical disabilities have a
right to live in “conditions which ensure dignity, promote self-reliance and facilitate the
child’s active participation on in the community” (
Article 23).
Article 19 of the
UN Convention on the Right of Persons with Disabilities (CRPD) recognises the equal right of all persons to live in the community. It sets out the right of all
persons with disabilities to choose their place of residence and where and with whom they
live on an equal basis with others and are not obliged to live in a particular living
arrangement. It requires States to ensure that people with disabilities have access to
community services “necessary to support living and inclusion in the community; and to
prevent isolation or segregation on from the community”. This cannot be achieved if
countries continue to place individuals in institutional care.
In addition to the above mentioned instruments, the
UN Guidelines for the Alternative
Care of Children provide the framework for tackling the harmful institutionalisation of
children. They set out two fundamental principles (necessity, suitability) and desirable
orientations for policy and practice grounded in the UN CRC regarding the protection and
wellbeing of children deprived of parental care or who are risk of being so.
The 2030 Agenda for Sustainable Development is built around the principle of leaving no
one behind.7 It recognises the essential role that families play in achieving this principle and
calls for greater disaggregation of data related to disability and other factors in order to
meet needs of those who are most vulnerable, including children.8
6http://www.hopeandhomes.org/wp-content/uploads/2016/12/DI-Myth-Buster-QA.pdf
7 UN General Assembly. (2015)
. Transforming our World: the 2030 Agenda for Sustainable Development. (Preamble, p. 26)
http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E [accessed 23 Jan 2017].
8 Ibid, Preamble, p. 25, p. 19, p. 23
The Centre of Thematic Expertise on Rule of Law and Fundamental Rights
Council of Europe
Article 3 of
the European Convention on Human Rights (ECHR) states that “No one
shall be subjected to torture or to inhuman or degrading treatment or punishment” without
any exceptions. Infringement of this Article may occur where the practices of an institution
have such an impact on the person’s life that the threshold is met.
Article 8 of the ECHR
guarantees the right to respect for private and family life and requires that any interference
with this right by a public authority be justified as being in accordance with the law and
necessary in a democratic society. This Article can be applied in cases where children are
arbitrarily separated from their family or where a placement interferes with the child’s or
adult’s ability to remain in contact with their family.
Article 5(1) of the ECHR states that no one shall be deprived of their liberty save the listed
cases in the article and in accordance with a procedure prescribed by law – the cases
provided in the article do not include any of the main drivers of institutionalisation, such as
poverty or lack of services. Furthermore, in order to determine whether someone has been
“deprived of his/her liberty” within the meaning of
Article 5 ECHR, the starting point must
be his/her concrete situation and account must be taken of a whole range of criteria such as
the type, duration, effects and manner of implementation of the measure in question. The
notion of deprivation of liberty within the meaning of
Article 5(1) 1 contains both an
objective element of a person’s confinement in a particular restricted space for a non-negligible
length of time, and an additional
subjective element in that the person has not validly
consented to the confinement in question.
The
Revised European Social Charter sets out “the right of persons with disabilities to
independence, social integration and participation in the life of the community” and requires
parties to develop the necessary measures to achieve this right (
Article 15). Rights of the
child are set out in
Articles 16 and 17, which state the importance of promoting family life
and the child’s right to grow up in an “environment which encourages the full development
of their personality and of their physical and mental capacities.
The
Council of Europe 2005 Recommendation9 on the rights of children living in
residential institutions establishes important principles to be applied whenever a child is
placed outside the family. In its
Strategy on the Rights of the Child (2016-2021)10, the
Council of Europe has also committed to paying specific attention to the situation of children
in all forms of alternative care and providing guidance to professionals in this field in
implementing a child-rights based and participatory approach to their work.
EU:
Within the EU, the promotion of quality alternative care for children (in line with the UN
Guidelines) and the de-institutionalisation of children are a priority and are considered as a
case of social investment in the best interests of the child. Capacity-building is prioritised for
integrated child protection systems to prevent, address and respond to all forms of violence
against children, in line with the 10 principles for integrated child protection systems.11
The
Charter of Fundamental Rights sets out the right of persons with disabilities to
benefit from measures designed to ensure their independence, social and occupational
9
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805daac2
10
https://rm.coe.int/168066cff8
11https://ec.europa.eu/info/policies/justice-and-fundamental-rights/rights-child/child-protection-systems_en
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integration and participation in the life of the community (
Article 26) and the child’s right
to such protection and care as is necessary for their wellbeing. It also stipulates that the best
interests of the child are a primary consideration in all actions relating to children, as well as
the respect for the child’s right to be heard (
Article 24).
The
EU’s social investment package and 2013 Recommendation on investing in
children: breaking the cycle of disadvantage12 provide guidance on de-institutionalisation
and call for a broad approach combining prevention and quality services. They emphasise
the need to prevent family separation unless so required in the best interests of the child and
recommend to MS to stop the expansion of institutional care settings for children.
The
European Expert Group on the Transition from Institutional to Community-
Based Care (EEG) convened in 2009 by the Commissioner for Employment, Social Affairs
and Equal Opportunities delivered a report that identified common basic principles for
promoting the rights of people living in in institutions and issued the Commission and MS
with recommendations as to how to support the transition from institutional to family-based
and community-based care. The group released Common European guidelines on the
transition from institutional to community-based care and an accompanying ‘Toolkit on the
use of EU Funds for the development of community care.13
On 7 December 2017, the Council adopted
Conclusions on “Enhancing Community-Based
Support and Care for Independent Living”. The Conclusions show the commitment of
Member States to continue investment in community-based social support services.
Financial assistance
Following criticism of the
European Structural Funds (ESIF) for funding the construction
of new institutions or renovation of existing institutions, the regulation governing ESIF for
2014–2020 includes specific protections to ensure that funds are used to support
deinstitutionalisation. This built on an earlier policy commitment in the European Disability
Strategy 2010–2014 to “promote the transition from institutional to community-based care
by using ESIF to support the development of community-based services”.
Under its
PROGRESS programme the Commission has funded social innovation projects
which sought new ways of supporting young children living in care. The successor
European programme for employment and social innovation is supporting initiatives on
de-institutionalisation led by the European Social Network. Under the
Rights, Equality
and Citizenship Programme, the EU has funded projects aiming at building integrated
child protection system capacity, and also specifically in the sub-sector of alternative care.15
Regarding external action, the ‘EU Guidelines for the Promotion and Protection of the
Rights of the Child (2017)16 Leave no child behind’ include institutionalisation among the
risks for children in vulnerable situations. The document highlights the importance of
appropriate alternative care for children that allows them to participate in community life..
12
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013H0112&from=EN
13 http://www.enil.eu/wp-content/uploads/2014/07/Toolkit-07-01-2014-WEB.pdf
14 European Commission (2010),
European Disability Strategy 2010-2020: A renewed commitment to a barrier-free
Europe, COM(2010) 636 final, Brussels, 15 November 2010, p. 6.
15
http://ec.europa.eu/newsroom/just/document.cfm?doc_id=40298
16
https://eeas.europa.eu/sites/eeas/files/eu_guidelines_rights_of_child_0.pdf (page 4).
The Centre of Thematic Expertise on Rule of Law and Fundamental Rights
It further recommends improving coherence in the EU’s external action on children,
including that carried out by Member States.
In February 2018, a call for proposals under the Investing in People thematic Instrument for
13 million EURO was launched by DG DEVCO on
Quality Alternative Care for Children
and De-Institutionalisation". The main objective
is to ensure better outcomes for children
by ensuring better implementation of the UN
Guidelines for the alternative care of children.
EU support in Enlargement and Neighbourhood countries
The Commission is supporting projects in enlargement and neighbourhood countries that
aim at promoting de-institutionalisation of children. Some of these aim at preventing the
separation of families, strengthening the systems of alternative care or enhancing the social
protection system for vulnerable families and children. There are also projects that seek to
improve the social inclusion of children with disabilities, as well as their inclusive education.
In addition to national and local governments and institutions in charge of children, such
activities usually involve civil society or international organisations such as UNICEF.
Activities are mainly conducted at bilateral level, through IPA for Enlargement countries
and ENI for Neighbourhood countries, as well as through EIDHR. There are also projects
supported by the Development Cooperation Instrument. The EU is currently funding
initiatives on deinstitutionalisation in BIH, Serbia, the former Yugoslav Republic of
Macedonia, Montenegro, Kosovo, Ukraine, Belarus, Moldova, Azerbaijan, Georgia,
Armenia, Egypt, Morocco, Algeria, Tunisia, Jordan and OPT.
In addition to providing funding, during rights of the child peer reviews (Serbia, Albania,
and Montenegro) this was always an area of focus. Moreover, all progress reports in the
context of the Enlargement Package (under chapters19 and/or 23) report on the
deinstitutionalisation of children. This is also the case for 2018. The rights of the child are
also raised in human rights dialogues and the issue of institutionalisation of children has
been discussed with countries such as Belarus, Moldova or Georgia.
4. What more could be done to promote deinstitutionalisation of Children?
All enlargement and neighbourhood states have ratified the UNCRC. Countries thus have a
responsibility to protect children and to support parents/caregivers which demand that they
address the fundamental reasons as to why children end up in institutional care rather than
family-based care, or to remain within their family with appropriate supports. In addition, all
DG Near countries have ratified the UNCRPD and have a duty to tackle the physical and
societal barriers faced by children and adults with physical and mental disabilities.
The context of enlargement and neighbourhood policies provides a real opportunity for the
EU to ensure a human rights and child rights based approach in driving forward societal
change. EU focus on deinstitutionalisation has had an enormous impact within the EU and
can do so again for NEAR countries through the combination of policy guidance and
programming prioritisation, grounded in European values. Experience gained in EU
countries in the last decade can contribute and EEG experts could be involved through
TAIEX or other mechanisms to help, with a focus on national/local capacity-building to
generate ownership and real and sustainable change. If major changes and reforms are to
happen, the DG NEAR framework is the most conducive to making it happen. Simply put, if
the EU focuses on deinstitutionalisation, making good use of guidance and tools enumerated
above, change will happen.