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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC |
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/83/Add.2 25 October 2000 ENGLISH Original : FRENCH |
COMMITTEE ON THE RIGHTS OF THE
CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES
UNDER ARTICLE 44 OF THE CONVENTION
Second periodic
reports of States parties due in
1999
Addendum
BELGIUM[∗]
[∗∗]
[7 May 1999]
CONTENTS
Paragraphs Page
I. INTRODUCTION 1 - 80 8
A. Main thrust of the report
2 – 10 8
B. Replies to the suggestions and recommendations of the Committee 11 -
80 10
1. Children seeking asylum 11 - 16 10
2. Placement in
care 17 - 25 10
3. Consideration of the interpretative declarations
26 - 38 11
4. Coordination and cooperation
mechanism 39 13
5. Permanent data-collection mechanism 40 -
48 13
6. Harmonization of national legislation with the provisions
of the Convention; abolition of the death penalty; prohibition
of corporal punishment within the family 49 -
56 14
7. Participation of children 57 - 66 15
8. Dissemination of
the principles of the Convention 67 - 72 16
9. Incorporation of these
principles in training programmes 73 - 75 17
10. Signing of the
International Convention on the Protection
of the Rights of All Migrant
Workers and Members of
their Families 76 -
77 18
11. Publication of the initial report 78 -
80 18
II. GENERAL MEASURES OF IMPLEMENTATION 81 –
214 18
A. Measures taken to harmonize Belgian law and policy with the
provisions of the Convention: specific actions in the field of child
protection against all forms of violence or sexual exploitation
(arts. 34 and 35) 81 – 157 18
1. At the federal level 81
– 144 18
2. In the Flemish Community 145 – 154 28
3. In
the German-language Community 155 – 157 30
B. Existing or
planned mechanisms at national or local level for
coordinating policies
relating to children and for monitoring the
implementation of the Convention 158 – 201 30
1. At the
federal level 158 – 171 30
2. In the French Community 172 –
177 33
3. In the Flemish Community 178 –
201 33
C. Measures taken or foreseen to make the principles and
provisions
of the Convention widely known to adults and children alike 202 –
214 37
1. At the federal level 202 – 203 37
2. In the French
Community 204 – 205 37
3. In the Flemish Community 206 –
212 38
4. In the German - language Community 213 – 214 39
CONTENTS (continued)
Paragraphs Page
III. DEFINITION OF THE CHILD 215 – 232 39
A. Definition 215 – 217 39
1. At the federal
level 215 39
2. In the French Community 216 40
3. In the Flemish
Community 217 40
B. Legal minimum age for the exercise of certain
rights
and obligations 218 – 232 40
1. Consultation of a lawyer
without parental consent 218 – 224 40
2. Freedom to testify before
the courts 225 – 231 41
3. Deprivation of liberty:
imprisonment 232 42
IV. GENERAL PRINCIPLES 233 – 305 42
A. Non - discrimination (art. 2) 233 – 260 42
1. At the
federal level 233 – 237 42
2. In the French Community 238 –
241 42
3. In the Flemish Community 242 – 260 43
B. Best interests of the child (art. 3) 261 – 286 45
1. At the
federal level 261 – 277 45
2. In the French Community 278 –
282 47
3. In the Flemish Community 283 – 286 48
C. The
right to development (art. 6) 287 – 291 48
D. Respect for the views of the child (art. 12) 292 –
305 49
1. At the federal level 292 49
2. In the French
Community 293 – 295 49
3. In the Flemish Community 296 –
303 49
4. In the German - language Community 304 –
305 50
V. CIVIL RIGHTS AND FREEDOMS 306 – 352 51
A. Name
and nationality (art. 7) 306 – 308 51
B. Freedom of expression (art. 13) 309 – 318 51
1. In the
French Community 309 – 312 51
2. In the Flemish Community 313
– 315 52
3. In the German - language Community 316 –
318 52
CONTENTS (continued)
Paragraphs Page
C. Access to informaton (art. 17) 319 – 333 53
1. In the
French Community 319 – 320 53
2. In the Flemish Community 321
– 333 53
D. Freedom of thought, conscience and religion (art. 14) 334 –
338 55
1. In the French Community 334 55
2. In the Flemish
Community 335 – 337 55
3. In the German - language
Community 338 56
E. Freedom of association and of peaceful assembly (art. 15) 339 –
340 56
1. In the French Community 339 56
2. In the Flemish
Community 340 56
F. Protection of privacy (art. 16) 341 – 346 56
1. In the
French Community 341 – 344 56
2. In the Flemish
Community 345 56
3. In the German - language
Community 346 57
G. The right not to be subjected to torture or other
cruel, inhuman
or degrading treatment or punishment (art. 37 (a)) 347 –
352 57
1. At the federal level 347 – 350 57
2. In the Flemish
Community 351 – 352 57
VI. FAMILY ENVIRONMENT AND ALTERNATIVE
CARE 353 – 496 58
A. Parental guidance (art. 5) 353 – 365 58
1. At the federal
level 353 – 354 58
2. In the French Community 355 –
359 58
3. In the Flemish Community 360 – 363 59
4. In the
German - language Community 364 – 365 59
B. Joint obligation of
both parents to raise their children
(art. 18, paras. 1 and 2) 366 – 375 60
1. At the federal
level 366 – 369 60
2. In the French Community 370 –
371 60
3. In the Flemish Community 372 – 375 61
C. Separation from parents (art. 9) 376 – 397 61
1. At the
federal level 376 – 385 61
2. In the French Community 386 –
392 62
3. In the Flemish Community 393 – 395 63
4. In the
German - language Community 396 – 397 63
CONTENTS (continued)
Paragraphs Page
D. Family reunification (art. 10) 398 –
401 64
E. Recovery of maintenance for the child (art. 27, para.
4) 402 64
F. Children deprived of a family environment (art. 20) 403 –
415 64
1. In the French Community 403 – 404 64
2. In the
Flemish Community 405 – 411 65
3. In the German - language
Community 412 – 415 66
G. Adoption (art. 21) 416 – 429 66
1. At the federal
level 416 – 421 66
2. In the French Community 422 67
3. In
the Flemish Community 423 – 427 67
4. In the German - language
Community 428 – 429 68
H. Illicit transfer and non-return (art.
11) 430 68
I. Abuse and neglect (art. 19), including physical and
psychological
recovery and social reintegration (art. 39) 431 –
488 68
1. At the federal level 431 – 434 68
2. In the French
Community 435 – 463 68
3. In the Flemish Community 464 –
487 72
4. In the German - language Community 488 74
J. Periodic review of placement (art. 25) 489 – 496 75
1. At
the federal level 489 – 492 75
2. In the French
Community 493 75
3. In the Flemish Community 494 75
4. In the
German - language Community 495 – 496 75
VII. HEALTH AND
WELFARE 497 – 586 76
A. Survival and development (art. 6, para.
2) 497 – 499 76
B. Disabled children (art. 23) 500 – 530 76
1. At the federal
level 500 – 508 76
2. In the French Community 509 –
521 77
3. In the Flemish Community 522 – 530 79
C. Health and medical services (art. 24) 531 – 551 80
1. At
the federal level 531 – 536 80
2. In the French Community 537
– 541 82
3. In the Flemish Community 542 – 551 83
CONTENTS (continued)
Paragraphs Page
D. Social security and childcare services and facilities
(art. 26 and art. 18 (para. 3) 552 – 574 85
1. Social
security federal level) 552 – 561 85
2. Childcare services and
facilities 562 – 574 86
E. Standard of living (art. 27, paras. 1 - 3) 575 –
586 88
1. At the federal level 575 88
2. In the French
Community 576 – 577 88
3. In the Flemish Community 578 –
584 88
4. In the German - language Community 585 –
586 89
VIII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES 587 –
645 90
A. Education, including vocational training and guidance (art. 28) 587
– 620 90
1. In the French Community 587 – 604 90
2. In
the Flemish Community 605 – 614 92
3. In the German - language
Community 615 – 620 94
B. Aims of education (art. 29) 621 – 634 95
1. In the French
Community 621 – 628 95
2. In the Flemish Community 629 –
634 96
C. Leisure, recreation and cultural activities (art. 31) 635 –
645 97
1. In the French Community 635 – 638 97
2. In the
Flemish Community 639 – 645 98
IX. SPECIAL PROTECTION
MEASURES 646 – 759 99
A. Children in situations of emergency 646 – 684 99
1. Refugee
children (art. 23) 646 – 674 99
2. Children in armed conflicts
(art. 38), including physical and
psychological recovery and social
reintegration (art. 39) 675 – 684 102
B. Children in conflict with the law 685 – 724 104
1. The
administration of juvenile justice (art. 40) 685 –
699 104
2. Children deprived of their liberty, including any form of
detention, imprisonment or placement in custodial settings
(arts. 37 (b), (c) and (d)) 700 – 724 105
CONTENTS (continued)
Paragraphs Page
C. Children in situations of exploitation, including physical
and psychological recovery and social reintegration 725 –
758 109
1. Drug abuse (art. 33) 725 – 732 109
2. Sexual
exploitation and sexual abuse (art. 34) 733 –
758 110
D. Children belonging to a minority or an indigenous group
(art. 30) 759 113
I. INTRODUCTION
1. The Government of
Belgium presents its second report on the implementation of the Convention on
the Rights of the Child, pursuant
to article 44, paragraph 1 (a), of the
Convention. This report deals with the measures taken by Belgium to give effect
to the rights
recognized in the Convention and indicates the progress achieved
in the enjoyment of those rights.
A. Main thrust of the report
2. In the light of the
tragic events that shook Belgium in August 1996, new emphasis has been placed on
the child and the need to
protect the child against all forms of violence or
sexual exploitation. It is this guiding principle that has been the focus of the
Government’s action in recent years.
3. Various measures have been
taken, some of which, in direct response to the recommendations made by the
Committee on the Rights
of the Child when Belgium submitted its initial report,
can now be highlighted and will be described in greater detail later in this
report.
4. At the end of August 1996, a national commission of experts
was given the task of examining questions pertaining to the prevention
of the
sexual exploitation of children. Its work resulted in the preparation of a final
report containing various proposals. At the
request of the Communities, the
Inter-ministerial Conference on the Protection of the Rights of the Child was
created to ensure the
follow-up of these proposals, with the aim of considering
the issues that required closer cooperation among the different levels
of
government.
5. In addition, the Council of Ministers created the
National Commission on the Rights of the Child, consisting of representatives
of
the Ministries of Foreign Affairs, Justice and the Interior and representatives
of the three Communities. Its principal task is
to prepare the five-year reports
that Belgium is required to submit to the Committee on the Rights of the Child
in the future, although
the Inter-ministerial Conference on the Protection of
the Rights of the Child may also request it to consider certain specific
questions.
From the outset, the National Commission was expected to secure the
involvement of parastatal bodies, non-governmental organizations
(NGOs) and
experts.
6. These structures were built primarily so that a coherent and
effective policy to protect the rights of the child could be introduced,
in
response to the recommendation of the Committee on the Rights of the Child:
“... to establish a permanent mechanism of coordination, evaluation,
monitoring and follow-up for policies aiming at the protection
of the child to
ensure that the Convention on the Rights of the Child is fully respected and
implemented, at the federal and communities
levels. In this respect and as part
of the ongoing efforts of the State party to promote and protect the rights of
the child, the
Committee suggests that ways and means be established to
facilitate regular and closer cooperation between the federal and communities
governments in cooperation with non-governmental organizations involved in
monitoring the respect for the rights of the child in
the State party”
(CRC/C/15/Add.38, para.13).
7. Academics and representatives of NGOs were
therefore directly involved in the preparation of this report. Meetings were
held, initially
at Community level, with representatives of the relevant NGO
coordinating bodies (both French and Dutch-speaking). After those preparatory
meetings, a meeting was held at national level. Members of the National
Commission, academics and representatives of the NGO coordinating
bodies were
invited to attend. It was primarily these groups that were given the opportunity
to take the floor; they provided an
objective and constructive evaluation of the
report, which stimulated
genuine dialogue both about the report and about other fundamental issues
concerning children (the minutes of the various meetings
are contained in the
annex).
8. During the debate, it became clear that the established
structures, as they stood, failed to meet the expectations of all parties.
It
was thought that reviewing the respective roles of the Inter-ministerial
Conference and the National Commission, as well as their
organization and
working methods, would serve to rectify these shortcomings.
9. Other
child-protection initiatives taken by Belgium include, at the international
level:
- The introduction of four joint measures with the European
Union; and
- The approval procedures for the Hague Conventions on the Civil Aspects of
International Child Abduction and on the Protection of
Children and Cooperation
in Respect of Intercountry Adoption.
At national level:
- The creation of a private European centre for missing and sexually
exploited children;
- The preparation of an action plan to prevent disappearances;
- The
introduction of the 1995 laws on sex crimes;
- The reform of the
Criminal Code;
- The establishment of a working group to prepare a set of guidelines
relating to recorded children’s hearings; and
- The negotiation of
cooperation agreements on aid to victims.
10. Significant measures have
also been taken at Community level. For example:
- In the French Community, the Observatory on Children, Youth and Assistance
to Young People was set up, responsible, inter alia,
for giving views on all
questions relating to children and youth and for assessing the implementation of
the Convention. A decree
was also adopted to provide assistance to abused
children and to give official status to a telephone helpline for children.
- In the Flemish Community, a decree was introduced providing for the
preparation of an impact report on the child and an annual
assessment of
Government policy on the rights of the child; the Commission on the Rights of
the Child was created, and a minister
was appointed to coordinate activities
relating to children’s rights; and an inter-departmental working group on
the rights
of the child was established.
- In the German-language Community, the Decree on assistance to children was
adopted, guaranteeing the right of any young person
living in the
German-language Community to organized assistance, and establishing the Youth
Assistance Council.
B. Replies to the suggestions and recommendations of the Committee
1. Children seeking asylum
11. At the oral submission of
the Belgium’s initial report, the Committee expressed concern
“... about the application of the law and policy concerning children
seeking asylum, including unaccompanied children. It is
particularly concerned
that unaccompanied minors who have had their asylum request rejected, but who
can remain in the country until
they are 18 years of age, may be deprived of an
identity and denied the full enjoyment of their rights, including health-care
and
education. Such a situation, in the view of the Committee, raises concern as
to its compatibility with articles 2 and 3 of the Convention”
(ibid.,
para.9).
12. The statistics appended to this report show that the number
of minors seeking asylum is on the increase: the figure rose from
1,009
applications in 1994 to 1,833 in 1998.
13. It must be recognized that
there are still no specific regulations relating to the care of unaccompanied
minors seeking asylum.
In theory, public social assistance centres are
responsible for such care but, in practice, they do not provide it. Nor are
there
any regulations regarding minors whose application for asylum has been
rejected but who are “allowed” to stay on Belgian
territory.
14. The Belgian authorities are trying to resolve this issue and have
taken part in several international symposiums. The Inter-ministerial
Conference
on Immigration Policy set up a working group to make proposals for improving the
care provided for unaccompanied foreign
minors. Thus, the group implemented a
series of initial measures relating to the systematic identification of minors,
the care provided
for them and their legal representation throughout the asylum
procedure.
15. A school-age child residing illegally in the French
Community has the right to receive education and may be taken into account
for
the purposes of calculating staffing levels and subsidies, on the condition that
the child has regularly attended an educational
establishment over a period of
four months.
16. Children residing illegally in the Flemish Community
also enjoy the right to education, even if they cannot prove their identity.
A
working group on undocumented migrants (Mensen zonder papieren) has been set up
in the Flemish Community, as well as a contact
point (aanspreekpunt) for
unaccompanied minors; childcare is provided by centres registered to give
special assistance to young people.
These minors, like all other minors living
in Flanders, can count on the aid and assistance provided by the Flemish
assistance services.
2. Placement in care
17. “With
regard to the provisions of article 2 of the Convention, the Committee is
concerned that children belonging to disadvantaged
groups of the population
appear more likely to be placed in care. In this regard, the Committee recalls
the importance of the family
in the upbringing of a child and emphasizes its
view that the separation of a child from his or her family must take the
child’s
best interest as a primary consideration” (ibid., para.
10).
18. Parents are the natural guardians of children, a principle that
all levels of Government endeavour to apply.
19. The Communities have
been involved with a working group, headed by the Minister for Justice, on the
abolition of the Act concerning
the abandonment of under-age children. It is
felt that the benefits of this
act are minimal and that its implementation has given rise to abuse. The
focus of this debate was the issue of placement in care for
reasons of
poverty.
20. The French Community is considering a reform of the sector
that provides care in crisis situations, based, in particular, on the
fact that
no child must be placed in care or separated from his or her family for reasons
of poverty and on the premise that it is
in the child’s best interest to
be brought up in his or her own family environment.
21. A general report
on poverty prepared in 1994 revealed that many children were still separated
from their families purely because
of material difficulties. The aim of the
French Community is to find ways of putting its intentions into practice by
undertaking
a thorough review of the private services in the youth assistance
sector that it has authorized to provide care for young people
in difficulty. A
review of the current system of funding is called for, a system which, on the
whole, continues to support the placement
of children in care.
22. In
the Flemish Community, the proportion of community-based assistance provided to
families increased from 24.75 per cent of the
total special aid for young people
in 1994 to 30 per cent in 1997. The Executive Decree of 13 July 1994 provides
that, on average,
one support session may be held per week, usually at the
minor’s home.
23. Parents may address their questions to Kind en
Gezin (Child and Family) or to district nurses. In every region, there is a
centre
with someone on duty every day to answer parents’ questions about
nutrition, care, education and some medical issues.
24. The aim of the
Gezin en Welzijnsraad (Family and Welfare Council) is to monitor family and
welfare policy and any developments
in that field, to determine the social needs
in the area of family and welfare, to evaluate the measures provided at that
level and
to make proposals on issues affecting family and welfare.
25. In the German-language Community, the Dienst für Kind und
Familie (Child and Family Service) provides assistance to all families
from the
moment a child is born until it reaches the age of three. In recent years, it
has given priority to disadvantaged families
and those at risk (families in
which there is a risk of neglect or abuse).
3. Consideration of the
interpretative declarations
26. “The Committee wishes to
encourage the State party to consider reviewing the declarations made upon
ratification of the
Convention with a view to considering withdrawing
them.” (ibid., para.12).
27. The Ministry of Foreign Affairs held
two meetings in June 1997 and November 1998 respectively, to discuss the
possible withdrawal
of the interpretative declarations made by Belgium upon
ratification of the Convention. The first declaration reads:
“With regard to article 2, paragraph 11, according to the
interpretation of the Belgian Government non-discrimination on grounds
of
national origin does not necessarily imply the obligation for States
automatically to guarantee foreigners the same rights as
their nationals. This
concept should be understood as designed to rule out all arbitrary conduct but
not differences in treatment
based on objective and reasonable considerations,
in accordance with the principles prevailing in democratic
societies.”
28. The Belgian Government considers it necessary to
retain this interpretative declaration.
29. In fact, the purpose of the provision of article 2 is to rule out
arbitrary conduct and not differences in treatment based on
legitimate
considerations. The given interpretation of the concept of
“discrimination” is in accordance with the now
universally accepted
doctrine regarding the term, in other words, the criterion used to constitute a
breach of the principle of equality
of treatment is the absence of an objective
and reasonable justification for distinction. Such a justification is more
likely if
the purpose is to achieve a legitimate goal and there is a reasonable
proportional link between the means used and the goal to be
achieved.
30. The Belgian institutions constantly endeavour to ensure the
non-discriminatory treatment of persons on Belgian territory.
31. For
example, the Court of Arbitration recently ruled that social assistance must be
granted to a foreigner residing illegally
on Belgian territory, whose
application for asylum had been rejected and who had been issued with an
expulsion order (Decision 43/98
of 22 April 1998).
32. Another example
concerns the creation of a centre, attached to the Prime Minister’s
Office, for equal opportunities and
the fight against racism (Act of 15 February
1993, which entered into force on 1 March 1993). This centre has legal
personality;
its aim is to promote equal opportunities and to combat all forms
of discrimination, exclusion, restriction or preference based on
race, colour,
extraction, origin or nationality.
33. With regard to the provision of
personal assistance, and within the scope of its mandate, the centre is
authorized to help any
individual seeking advice about his or her rights and
obligations. Like other bodies, and pursuant to amended article 5 of the Act
of
30 July 1981, it can also institute legal proceedings in any case that may arise
as a result of the enforcement of this Act.
“Articles 13 and 15 shall be applied by the Belgian Government within
the context of the provisions and limitations set forth
or authorized by the
said Convention in articles 10 and 11 of the European Convention for the
Protection of Human Rights and Fundamental
Freedoms of 4 November 1950.
“The Belgian Government declares that it interprets article 14,
paragraph 1, as meaning that, in accordance with the relevant
provisions of
article 18 of the International Covenant on Civil and Political Rights of 19
December 1966 and article 9 of the European
Convention for the Protection of
Human Rights and Fundamental Freedoms of 4 November 1950, the right of the child
to freedom of thought,
conscience and religion implies also the freedom to
choose his or her religion or belief.”
34. These two interpretative
declarations respectively concern articles 13 and 15 and article 14, paragraph
1, of the Convention.
The Belgian Government would like to point out that,
although the reservations entered by a State party serve to exclude or amend
the
legal effect of certain provisions of a convention in their implementation in
that State party, the aim of the interpretative
declarations is, theoretically,
not to exclude or to limit the application of a provision, but simply to clarify
its meaning.
35. The Belgian Government does not intend to withdraw
these two interpretative declarations. Belgium is bound by various international
instruments and committed to the development of corresponding case-law (European
Convention on Human Rights); the Government considers
that all the rights
contained in the Convention on the Rights of the Child are complemented by
certain provisions of these instruments,
which therefore provide better
protection of the rights of the child.
36. Article 14, paragraph 1 of
the Convention on the Rights of the Child, which reaffirms, inter alia, the
right to freedom of religion,
is less comprehensive than the corresponding
articles of the International
Covenant on Civil and Political Rights (art. 18) and the European Convention
on Human Rights (art. 9), which refer to the individual’s
freedom to
choose his or her religion.
“With regard to article 40, paragraph 2 (b) (v), the Belgian
Government considers that the expression “according to law”
at the
end of that provision means that:
(a) This provision shall not apply to minors who, under Belgian law, are
declared guilty and are sentenced in a higher court following
an appeal against
their acquittal in a court of first instance;
(b) This provision shall not apply to minors who, under Belgian law, are
referred directly to a higher court such as the Court of
Assize.”
37. The Belgian Government also considers it necessary to
retain the interpretative declaration concerning article 40, paragraph 2
(b)
(v).
38. This reservation makes it possible to dispel any ambiguity that
might arise regarding the referral of cases to higher courts.
Furthermore, it
provides some clarification about cases involving minors whereby the
jurisdiction has been relinquished by the juvenile
court under article 38 of the
Act of 8 April 1965, and, if necessary, referred to a higher court such as the
Court of Assize.
4. Coordination and cooperation
mechanism
39. This issue is discussed above, in the section
addressing the main principles behind the report.
5. Permanent
data-collection mechanism
40. “The Committee recommends that
Belgium envisage the creation of a permanent mechanism of data collection at the
national
level, in order to have an overall assessment of the situation of
children in the country and to ensure a comprehensive and multidisciplinary
evaluation of progress and difficulties in implementing the Convention”
(ibid., para.14).
41. In the wake of the 1993 reforms, Belgium became a
federal state in which responsibilities are shared between the Federal
Government,
the Communities and the regional authorities. The Communities are
largely responsible for cultural affairs, education, languages
and the area
known as “personalized matters”, which includes policy on health and
social welfare. The federal authorities,
however, retain responsibility for
certain issues relating to civil law, criminal law and the legal system applying
to young people.
42. The Communities deal with all matters relating to
the protection of young people at risk, drafting and applying legal and related
texts, implementing protective measures for young offenders and the building of
the necessary infrastructure. The division of responsibilities
is based on the
desire to make the protection of young people the responsibility of an authority
focusing more on social than legal
aspects.
43. In this context, it is
becoming clear that putting a national data-collection mechanism in Belgium is
an extremely complex operation.
44. However, the Communities have all
taken measures for organizing data collection and monitoring the implementation
of the Convention.
45. The Government of the French Community has
therefore established the Observatory on Children, Youth and Assistance to Young
People,
an objective evaluation tool aiming, inter alia, to provide an
accurate assessment of the problems affecting children and young people, to
maintain an up-to-date list of services and agencies and
to promote all possible
initiatives in that field. The Observatory also gives its opinions on all issues
relating to children, youth
and assistance to young people and evaluates the
implementation of the Convention.
46. In the Flemish Community, a decree
provides for an impact report on the child and an assessment of the
Government’s policy
on the rights of the child. This report must describe
the situation of the child in his or her immediate surroundings and the
foreseeable
impact that a decision and its alternatives has on the situation.
47. The Decree that provides for the impact report comprises a second
element, the aim of which is to monitor Government policy on
the Convention.
This second element requires the Government to prepare two types of annual
written report: a report on the implementation
of the Convention (making
reference, at the very least, to measures taken to respect the rights guaranteed
by the Convention, any
useful information about upholding the principle of
non-discrimination with regard to children, the right of the child to perform
certain acts and the right of participation, health and welfare indicators,
aspects concerning education, leisure and cultural activities,
specific measures
relating to the protection of the child, an annual evaluation of the impact
reports on the child and the link between
the latter and reports on
emancipation; and another report on compliance with the Convention in countries
and regions with which
the Flemish Community has cooperation agreements.
48. The Communities have indicated their agreement to pool their data;
the work could be carried out by a coordinating unit, and the
National
Commission on the Rights of the Child could become responsible for identifying
the appropriate data and for setting the
criteria for the collection process.
49. The Committee is of the opinion that
“efforts to harmonize national legislation with the provisions of the
Convention should
be further pursued, in particular as regards articles 38 and
53 of the Young Person’s Protection Act of April 1965 with a view
to
ensuring its full conformity with the Convention. The Committee wishes to
encourage the State party to continue to take steps
with a view to ensuring the
abolition of the death penalty in peace as well as in wartime. The Committee
further encourages the State
party to consider reforming its legislation with a
view to ensuring the prohibition of corporal punishment within the
family.”
(ibid., para.15).
a) Harmonization of national
legislation
50. At present, minors who are under 16 years of age at
the time of the offence cannot receive a prison sentence. The only exception
to
this rule is article 53 of the Act of April 1965, which provides for temporary
placement in a detention centre for a maximum 15
days (the 1998 figures on the
implementation of article 53 are contained in the annex). The repeal of article
53 has already been
addressed in article 53 bis adopted by Parliament,
although the repeal date has not yet been set. In cases involving minors aged
16-18, the juvenile court may, if the available correctional measures are
considered inadequate, relinquish jurisdiction of the case
and refer the minor
to the public prosecutor, who will decide whether the case must be referred to
an adult court.
51. A national commission for the reform of youth
welfare legislation (known as the Cornelis Commission) conducted a study and
submitted
a report in 1996; subsequently, the Ministry of Justice created a
working group to prepare a preliminary draft law on the reform
of youth welfare
legislation. The work is still in the drafting stages, but it is already certain
that if a decision needed to be
taken to retain the
option of relinquishment of jurisdiction, the circumstances of a minor
subjected to such a measure would, in any case, be reassessed,
so that any
sentence passed following a relinquishment of jurisdiction would take his or her
special status of the minor into account.
52. In the French Community,
in view of the imminent repeal of article 53, the Delegate-General for
Children’s Rights has advocated
the creation of a committee of experts to
examine various alternatives to the imprisonment of minors.
53. The
Flemish Community, as far as its field of competence allows, has repealed
article 53 of the Protection of Young Persons Act
of 8 April 1965; article 53 no
longer applies except in cases where minors have committed a punishable offence,
as this falls within
the competence of the federal authorities. Considerable
efforts have been made to ensure that, in the context of assistance, the
detention capacity is adequate; additional resources were allocated in the 1999
budget to address the new social needs.
b) Abolition of the death
penalty
54. The death penalty was abolished in Belgium by the Act of
10 July 1996, however, the abolition affected only adults because, contrary
to
what was incorrectly stated in the 1995 report to the Committee on the Rights of
the Child, article 77 of the Criminal Code already
provided minors with a
statutory excuse, which meant that they could not be given a death
sentence.
c) Prohibition of corporal punishment within the
family
55. A Criminal Code reform bill has been prepared. It aims to
strengthen child protection, inter alia, against neglect, starvation,
abandonment and all forms of physical and sexual abuse within or outside the
family.
56. The bill also contains a specific provision to condemn
genital mutilation and amends the rules relating to breaches of professional
secrecy. Persons normally bound by professional secrecy will now be able to
reveal to the competent authorities any incidences of
physical and sexual abuse
and any genital mutilation performed on a minor under the age of 14, without
risking prosecution for breach
of confidentiality.
7. Participation of
children
57. “The Committee would also like to suggest that
further consideration be given in the light of article 12 of the Convention
to ways of encouraging the expression of views by children and those views being
given due weight in the decision-making processes
affecting their lives, in
particular in family life, at school and local levels as well as within the
judicial system, including
in situations where the child participates in the
proceedings as a witness.” (ibid., para.16).
58. The Act of 30
June 1994 amending article 931 of the Judicial Code and the provisions on
divorce (Moniteur belge, 21 July 1994) supplemented the Judicial Code to
give effect to article 12 of the Convention. A minor capable of forming his or
her
own views can now be heard, in any proceedings in which he or she is
involved, without the presence of the parties to the case. A
request to that
effect, made by a minor to the judge or Crown Procurator, can only be dismissed
on the grounds of a well-reasoned
decision, based on the child’s inability
to form his or her own views. If the judge decides on a hearing, the minor may
refuse
to be heard.
59. Even in the case of divorce proceedings by mutual consent, instigated by
agreement between husband and wife, the judge may decide,
proprio motu, to hear
the minor, pursuant to the rules of the new article 931 of the Judicial Code.
60. On the issue of adoption, the new draft legislation, at its current
stage of preparation, provides for reducing from 12 to 15
the age at which
persons must consent to their own adoption, on the condition that they are
capable of forming their own views, are
not under judicial disability and are
not mentally retarded. They do, however, have to be heard by the court.
Therefore, the child’s
opinion in this field is becoming a determining
factor, in advance of the national legislation.
61. The Protection of
Young Persons Act of 8 April 1965 now includes a new article 56 bis
providing that minors over the age of 12
years must be summoned before the
juvenile court in civil proceedings in which matters affecting their personal
interests, the administration
of their property, rights of access or the
designation of an unofficial guardian are at stake.
62. The Act also
provides the minor with greater protection in the pre-trial stage; the law
foresees that the minor should have a
genuine role to play in his or her own
trial and therefore guarantees the right of the minor to be heard in person
before any measure
affecting him or her is taken or amended. When the Crown
Procurator’s Office decides to bring a matter before the juvenile
court
involving a minor over the age of 12, both the minor and the parents, guardians
or the person who has custody of the minor
have to be called before an open
court, non-observance of which leads to nullity.
63. The French
Community adopted the Decree of 4 March 1991 guaranteeing increased
participation of children and young people and
respect for their rights. Under
this Decree, therefore, no assistance measures can be taken unless the child is
heard in advance,
irrespective of his or her age. In the area of education, the
Mission Decree of 24 July 1997 provided for the creation of “participation
councils” in schools, giving student representatives a say in the work
plan of their own schools.
64. In addition to the Decrees relating to
special assistance to young people, the Flemish Community approved the Decrees
of 15 July
1997 on the preparation of an impact report on the child and on the
monitoring of Government policy on the rights of the child, and
establishing the
Commission on the Rights of the Child.
65. A working group on recorded
children’s hearings has been set up to review the situation and to prepare
a directive to standardize
the techniques used to record hearings in criminal
procedures (primarily those concerning children who are victims of or witnesses
to offences against public decency). An amendment to the draft legislation to
regulate the audio-visual recording of hearings has
been lodged. When the Court
deems it necessary for the determination of the truth to request the appearance
of the minor, the hearing
will be held by videoconference so that the child is
not confronted with his or her alleged abuser.
66. Belgium is one of the
12 pilot countries selected by the United Nations Children’s Fund (UNICEF)
to take part in its “What
do you think?” programme. The aim of the
project is to encourage the participation of children in all aspects of life in
society
which affect them. The idea is to start involving children in the
process of preparing the report on the rights of the child; this
initial
involvement of children should serve as an example and elicit positive
reactions. The Ministry of Justice subsidized the
launch of the project in
Belgium.
8. Dissemination of the principles of the
Convention
67. The Committee encourages the State party to develop a
system to make “the principles and provisions of the Convention widely
known to children and adults alike. In addition, the Committee
recommends that the principles and purposes of the Convention be made widely
known in the languages spoken in Belgium, and translated
also into the languages
of major refugee and immigrant groups. In view of the adoption by the General
Assembly of resolution 49/184
proclaiming the United Nations Decade for Human
Rights Education, the Committee encourages the State party to consider using
this
opportunity to promote the incorporation of education about the Convention
on the Rights of the Child in school curricula. It is
the view of the Committee
that it is important that the teaching methods used in schools should reflect
the spirit and philosophy
of the Convention and the aims of education laid down
in its article 29” (ibid., para. 17).
68. As explained
below, a compendium of the initial report of Belgium, the summary records of the
sessions of the Committee and its
concluding observations has been published,
and includes the text of the Convention.
69. In the French Community,
information on the rights of the child falls specifically within the purview of
the Delegate-General
for Children’s Rights. The Community has taken a
range of measures. For example, on 20 November 1998 (Children’s Rights
Day) a decision was taken to provide teachers with a child’s rights
training guide and a poster displaying some of the articles
of the Convention.
These posters will also be available in the offices of all youth assistance
services. The National Bar Association
launched the “Lawyer at
School” project for pupils in the sixth grades of primary and secondary
education.
70. On the issue of school curricula, the educational
objectives were clearly set out in the Decree of 24 July 1997; one
such objective
was to prepare all pupils to become responsible citizens capable
of making a contribution to the development of a society that is
democratic,
inclusive, pluralistic and open to other countries. A “Democracy or
Barbary” unit has been created and is
responsible for coordinating
awareness-raising activities; it has prepared some booklets on human rights, a
compendium of official
human-rights documents and various brochures on human
rights and democracy.
71. In the Flemish Community, the Commission on
the Rights of the Child will be responsible for the important task of informing
adults
and children alike of the principles and provisions of the Convention. To
date, information has been disseminated by sector. The
creation of the Flemish
Centre for the Promotion of Child and Family Welfare is also noteworthy; its
main task is to serve as an
independent monitoring body for the well-being of
children and families in the Flemish Community. It is responsible, inter alia,
for organizing the annual United Nations International Children’s Rights
Day and the United Nations International Day of the
Family. The Children’s
Rights Centre in Ghent also plays an important role in providing training about
the rights of the child
in Flanders and elsewhere.
72. On the subject of
school curricula, the Flemish Community is in the process of setting its final
targets and development goals.
Generally speaking, these goals encompass the
minimum level of knowledge, comprehension, skills and attitudes that a pupil
should
achieve. Education on the rights of the child is one of these specific
requirements; pupils must be able to illustrate the importance
of fundamental
human rights and the rights of the child.
9. Incorporation of these
principles in training programmes
73. The Committee is also of the
view that “consideration should also be given to incorporating education
on the provisions
and principles of the Convention in training programmes for
various professional groups, including teachers, social and health workers,
immigration officers, law enforcement personnel, judges and personnel in care
and detention institutions” (ibid., para.18).
74. This
recommendation is still to be implemented in the French Community, however, the
Decree of 16 March 1998 on assistance to
victims of child abuse is a partial
response to this recommendation as it
gives the Standing Committee on Child Abuse the task of formulating a set of
proposals concerning basic and continuous training programmes
for the parties
concerned.
75. In the Flemish Community, the training and
awareness-raising activities provided by Child and Family highlight the fact
that the
message of the Convention on the Rights of the Child must be
disseminated, in addition to information on education, nutrition and
health-care. Numerous leaflets providing a clear explanation of the letter and
the spirit of the Convention and drawing on examples
from everyday family life
have already been produced and widely distributed.
76. The Committee
encourages the State party “to ensure that applications for the purpose of
family reunification in the cases
of refugees and migrant workers are dealt with
in a positive, humane and expeditious manner.” The Committee
“encourages
the Government of Belgium to consider signing and ratifying
the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families” (ibid., paras.19 and
20).
77. The Belgian Government has not yet signed the International
Convention on the Protection of All Migrant Workers and Members of
their
Families. However, a series of measures are being taken to ensure that the
children of refugees or migrant workers enjoy maximum
protection.
11. Publication of the initial report
78. The
Committee “appreciates the willingness of the Government of Belgium to
publish the initial report of Belgium, as well
as the summary records of the
meetings with the Committee and the concluding observations of the Committee on
the report, and recommends
that these documents be disseminated as widely as
possible in the languages spoken in Belgium” (ibid.,
para.21).
79. The Belgian Government has printed the text of the initial
report of Belgium, the summary records of the meetings with the Committee
and
the Committee’s concluding observations in the three national languages
(French, Dutch and German).
80. The document was made available free of
charge on request from the Ministry of Justice.
II. GENERAL MEASURES OF IMPLEMENTATION
A. Measures taken to harmonize Belgian law and policy with
the provisions of the Convention: specific actions in the field of child
protection against all forms of violence
or sexual exploitation (arts.
34 and 35)
1. At the federal level
a) European
initiatives
81. During its presidency of the European Union in 1993,
Belgium had submitted recommendations focusing on police and diplomatic
cooperation
in the fight against the traffic in human beings. Accordingly, there
has been a steady increase in the number of liaison officials
responsible for
centralizing information on infractions committed inside and outside the borders
of the Union. Moreover, as part
of the Europol Convention designed to facilitate
effective cooperation among the police forces of the member countries of
the European Union, including the exchange of personal data, our country made
sure that the fight against the traffic in human beings,
including sexual
exploitation of children, was included among Europol’s priority targets
from the outset. During the second
half of 1996, Belgium introduced four Joint
Actions (a Joint Action requires the governments of Member States to take
certain measures
and submit texts establishing obligations within the ambit of
the Legislature to their respective parliaments).
82. The first Joint
Action (96/748/JAI) extended the mandate of the Europol Drugs Unit (EDU) to the
fight against the traffic in human
beings, including sexual exploitation of
children. This unit is based in The Hague and processes non-personal data in
fields such
as drugs, clandestine immigration and traffic n nuclear materials.
The common action was adopted on 16 December 1996.
83. The second Joint
Action (96/747/JAI), adopted on 29 November 1996, was designed to draw up a
systematic list of centres of excellence
in the member countries of the European
Union with regard to operational, scientific and technological policing to
combat the sexual
exploitation of children.
84. The third Joint Action
(96/700/JAI), also adopted on 29 November 1996, was intended to use the budget
of the third pillar to finance
a number of research programmes, studies,
traineeships and exchanges for persons involved in the fight against the traffic
in human
beings and the sexual exploitation of children; namely, judges,
prosecutors, police officers, public officials, public services for
preventing
and combating those phenomena, services of assistance to victims or treatment of
the perpetrators. As part of this programme,
entitled STOP, two projects
introduced by the Ministers of Justice were accepted. The purpose of the first
was to study the advisability
and feasibility of a European databank on missing
minors, minors who were victims of the traffic in human beings and of sexual
exploitation,
and sex offenders. The second project concerned the prevention of
recidivism and the conduct of a study to determine the situation
regarding
specialized, structured care of sex offenders within the European Union. The
idea was to discover whether there was a common
methodological core among the
various countries so that guidelines for the future could be
established.
85. The fourth Joint Action (97/154/JAI) was intended to
harmonize criminal legislation within the European Union with a view to more
effective penal, judicial and police cooperation. It emerged that sexual
exploitation of children was the motive for a variety of
provisions of criminal
law in the Member States of the Union, and also in third countries. The dual
objective was to discover how
far the countries of the European Union agreed to
harmonize criminalization of the sexual exploitation of children and do away
with
the requirement of criminalization of such acts both in the country where
the prosecution occurred and in the country where the acts
were committed. It
was adopted on 24 February 1997.
b) Ratification of the Hague
Conventions
86. On 10 August 1998 Parliament passed the Act ratifying
the 25 October 1980 Hague Convention on the Civil Aspects of International
Child
Abduction. It will enter into force on 1 May 1999. This convention will serve as
an additional tool in the search for children
illicitly displaced by a parent.
Its purpose is to ensure the immediate return of children under 16 illicitly
displaced or retained
in any contracting State and to ensure that the right of
custody and visiting rights are effectively respected.
87. The purpose of
the Hague Convention on the Protection of Children and Co-operation in Respect
of Intercountry Adoption of 29 May
1993 was to establish collaboration among
States with a view to guaranteeing that international adoptions took place in
the best
interests of the child and with respect for the fundamental rights
conferred on children in international law. It also aims to prevent
the
abduction and sale of – or traffic in - children. It therefore fulfils the
commitments contained in article 21 of the Convention
on the Rights of the Child
which require, on the one hand, that a child is adopted only if it cannot in any
suitable manner be cared
for in his country of origin and that, on the other
hand, it respects the rights of the child and
those of his parents, who must have given their informed consent. It also
prohibits any improper financial gain.
88. A working group, comprising
federal and community administrations and ministries concerned, prepared the
preliminary draft approval,
which was to contain a basic reform of private
international law and those the Civil Code that domestic adoption. This
preliminary
draft was approved by the Council of Ministers.
89. The
philosophy behind this reform is to ensure that a child to be adopted enjoys all
the guarantees of respect for his fundamental
rights and that the fundamental
rights of the parents are also respected.
c) Creation of a private
European centre for missing and sexually exploited children
90. On 20
October 1996 - the day of the White March, in which nearly 300,000 persons took
part - the Prime Minister announced the
creation of a European centre for
missing and sexually exploited children. Following a briefing visit to the
American Centre in Washington
(NCMEC), a working group prepared the
specifications for the centre, which was officially inaugurated on 30 March
1998. It operates
under the name Child Focus and is totally independent
of the Government. The Centre is recognized as a public utility
establishment.
91. The protocol governing collaboration between the
Centre and the judicial and police authorities clearly states that
investigations
are to be conducted exclusively by the judicial authorities and
the police. Like its American counterpart, its purpose is to assist
the parents
of missing children and encourage public cooperation.
92. Calls to the
European Centre for Missing and Sexually Exploited Children are made to a free
nationwide emergency number 110, which
can be reached 24 hours a day. Child
Focus also has an international number for calls from abroad.
93. The
Centre’s action in cases of disappearance or sexual exploitation
comprises:
– collecting data and transmitting them to the judicial authorities
and keeping abreast of their developments;
– disseminating other missing-person messages (large and small
posters, broadcast notices, etc.);
– contacts by the case manager with the investigating
authorities;
– supporting the missing or sexually exploited child’s family,
including in their representations to the authorities,
and putting them in
contact with victim-assistance services or specialized
associations.
94. In six months of operation, Child Focus received
a total of 14,737 calls and opened 603 files, 196 of which concerned cases with
which the Centre was not competent to deal
or which could be solved directly by
the operators.
95. Of the remaining 407 cases, 174 were runaways, 131
parental abductions, 60 alarming disappearances, and 42 sexual
exploitation.
96. By 30 September 1998, 328 files had been
closed.
d) Missing-persons plan
97. General guidelines
were prepared for the search for missing persons. Their purpose is, naturally,
to enhance the chances of finding
the missing person safe and sound, but also to
identify and apprehend the perpetrators if a crime has been
committed.
98. The primary aim is to issue precise and mandatory
instructions to the police and magistrates and provide them with an instrument
in support of their work by drawing on lessons from past omissions and using
constructive initiatives as a model.
99. The guidelines thus comprise
instructions, a vademecum and a training manual. Their content is quite vast and
concerns, inter
alia:
a) Organization of the activities of persons
responsible for specific missions both in the police and the judiciary. For
instance,
the circular will require the existence of reference judges who will
be responsible for coordination on the bench and for directing
the
investigations. Once a judicial inquiry has been ordered it is, of course, the
examining magistrate who will lead the investigation;
b) Definition of
seven criteria for determining whether a disappearance gives cause for alarm,
which is important in that it imposes
obligations additional to those generally
imposed.
c) Immediate fulfilment of various obligations, such as
official publication of a full statement, collection of as much evidence
as
possible, etc. In the event of a disappearance that gives, or might give, cause
for alarm, the duty officer in the Procurator's
Office must be immediately
informed and, if he confirms that there is such cause, additional obligations
must compulsorily come into
play (immediate transmission of the report,
notification of the national missing-persons bureau, which will in turn notify
the national
judiciary, etc.);
d) organization of the judicial inquiry
as such, which is directed by the prosecuting magistrate; once the case is being
investigated,
the examining magistrate will personally assume direction of the
investigation, but the prosecuting magistrate in charge of the file
will
continue to follow its development closely;
e) reception of victims and
their relatives, which must be a major concern of the police and judicial
authorities, as soon as the
disappearance is reported;
f) organization
of follow-up on all missing-persons files with particular attention to
disappearances deemed to be alarming.
e) National commission of
experts to study sexual exploitation of children
100. Following the
decision of the Council of Ministers of 30 August 1996, a national commission of
experts to study the issues involved
in fighting sexual exploitation of children
was set up for a one-year term at the round table that brought together, on 18
October
1996 at the Royal Palace, the families of missing and murdered
children.
101. The National Commission against Sexual Exploitation of
Children:
a) has three objectives:
– to gain a better understanding of the scope and incidence of the
phenomenon of sexual exploitation of children;
– to evaluate the policy implemented thereon in Belgium;
– to formulate specific proposals in the light of the
above;
b) focused on five priority areas:
– the social
and legal status of the child victim;
– approach to the
phenomenon and its international dimension;
– assistance to child
victims;
– the role of the justice
system;
– perpetrators of sexual exploitation of
children;
c) based its work on certain guiding principles:
– the children themselves and their experience are the starting point
and permanent reference for reflection on the subject;
– sexual exploitation and murder of children deserve special
attention and are the extreme expression of a child’s fragile
social and
legal position in society;
– a reactive policy is important but is not enough;
– sexual exploitation of children must, first and foremost and as far
as possible, be prevented;
– each and every person bears that responsibility, which must be
respected and assumed at all levels;
– in a constructive spirit, initiatives already taken with regard to
the ill-treatment and legal protection of children must
be further enhanced and,
where necessary, improved or supplemented.
102. The National Commission
has endeavoured to organize a broad consultation with a view to fulfilling its
mission. To that end,
it has organized, inter alia:
– a national
forum entitled “Our children appeal to us” (Brussels, 25-28 May
1997);
– a youth forum (Brussels, 10 September
1997);
– a chat page on the Internet via Jeugdnetwerk.
103. Thanks to these initiatives, the Commission witnessed a number of
individual and institutional reactions.
104. In its final report, adopted
on 23 October 1997, it opted for concrete proposals on many areas at the
national and international
levels:
– prevention, which includes
strengthening children’s social and legal position;
– aid
and assistance both to child victims and to the perpetrators of sexual
exploitation;
– the legal approach, not only in the criminal and civil area, but
also with regard to youth assistance and protection;
– recognition
of children’s rights.
105. The task did not end with the
Commission’s work. Its final report was, rather, an invitation, and an
opening for further
discussion and for genuine attention to the question of
sexual exploitation of children at all levels.
106. It should be
mentioned that the Inter-ministerial Conference on the Protection of the Rights
of the Child (referred to in Part
II, A. 2) was responsible for the follow-up of
the proposals framed by the National Commission against Sexual Exploitation of
Children,
and adopted a plan of action on 17 December 1997.
107. This
plan of action provides, inter alia, for:
a) The Government’s
commitment to submit to Parliament a draft declaration for amendment of the
Constitution in order to include a provision guaranteeing the right to moral,
physical, psychological and sexual integrity.
b) The proclamation of 20
November as Children’s Rights Day.
c) The meeting of an
inter-ministerial working group at the initiative of the Minister for Justice in
order to study the Commission’s
proposals on procedures for dealing with
the ill-treatment and protection of child victims. The proposals examined by
this working
group were:
– active “dejudicialization”, entailing transfers of
responsibility to the psycho-social and medical
institutions;
– equal ranking of judicial and social
action;
– recognition of the conditions for social action on the margins of
professional confidentiality and the possibility for the
courts to give priority
to social action;
– establishment of links between sectors and of
action models;
– creation of advisory services for ill-treated
children in each district;
– affirmation of the role of SOS
teams, youth- and victim-assistance services;
– the right to
choose the means of access to action;
– the right to confidential assistance, and assistance in exceptional
circumstances;
– the right to be housed in a place kept secret
from parents;
– the right to be examined by a multidisciplinary team and the
creation of specialized teams within the judiciary;
- the possibility
of producing in court a report drawn up by an assistance
service.
108. The purpose of this working group is the preparation of
guidelines for the judicial authorities (magistrates and police) and
instructions for the competent federal, Community and regional departments, as
well as for private medical and social services. If
necessary, cooperation
agreements can be drawn up to stipulate the modalities of the required
collaboration among sectors, respecting
the authority of each echelon and the
institutional-reform laws.
109. A working group piloted by the
Communities will study the Commission’s various proposals regarding the
training of professionals.
f) The 1995 sex offences
Acts
110. The Moniteur belge of 25 April 1995 published three
Acts relating to questions of morals: one Act on the advertising of sexual
services, one concerning
trafficking in human beings and child pornography, and
another on sexual abuse of minors.
111. The Act of 13 April 1995 on
punishment of trafficking in human beings and child pornography covers various
areas:
a) Trafficking in human beings. Criminal legislation has been
enacted to punish trafficking in human beings, which is defined as
“the
act of permitting a foreigner to enter or stay on Belgian territory and to use
fraud, violence or constraint against that
foreigner or to abuse the extremely
vulnerable situation in which that foreigner finds himself owing to his legal
situation, a woman’s
pregnancy, or a person’s illness, infirmity or
physical or mental deficiency”;
b) Prostitution. As was the case
under the old law, prostitution itself is not a crime, but its exploitation by
others is punishable.
The legislator has sanctioned most severely any form of
exploitation of immorality or prostitution of minors;
c) Child
pornography. Child pornography is now explicitly prohibited by law. Article
383 bis of the Criminal Code, which prohibits
the distribution, sale or
manufacture, as well as the knowing possession of child pornography material, is
a valuable tool in the
fight against the sexual exploitation of children.
However, it must be recognized that the age of 16 stipulated in that article
poses
a problem of compatibility with article 34 of the Convention on the Rights
of the Child, which protects children up to the age of
18.
d) Extraterritoriality clause. Under an extraterritoriality clause,
any person in Belgium who has committed abroad immoral acts stipulated
as such
by the legislator against a minor aged under 16 may be
prosecuted.
112. In December 1995, the Ministry of Foreign Affairs
instructed all diplomatic and consular missions to systematically obtain the
police report when a Belgian was arrested for sex offences against minors
under 16; it was the first time that specific instructions were given on
that subject. These guidelines have been further refined
and expanded: the
mission is required to inform the department in Brussels not only of the arrest,
but also of all developments in
the judicial proceedings. All these facts should
enable the Belgian courts to deem whether it is competent to act under the
principle
of extraterritoriality; the information is transmitted to the Belgian
courts through the national judiciary, which in turn ensures
that it is
communicated to all competent services.
113. The principle of
extraterritoriality has already been invoked in several cases against persons
who have committed immoral acts
abroad.
114. Furthermore, embassies and
consulates abroad have received instructions from the Minister for Foreign
Affairs requiring them
to approach the local authorities for information
concerning any sexual abuse of a Belgian minor.
115. The Ministry for
Foreign Affairs also published a brochure entitled Tourism without risk,
containing useful hints for Belgian
tourists abroad, specifying, inter alia,
that in the event of sexual abuse of a child abroad, proceedings may be
instituted in Belgium.
116. The Act of 13 April 1995 concerning sexual
abuse of minors relates to the extension of the period of limitation, the
hearing
of the minor by the authorities, the option of a trial in a correctional
court for rape of a child under 10, the establishment of
an increased penalty
for failure to come to the aid of a child in danger, the compulsory requirement
of the opinion of a specialized
centre before sexual aggressors are released,
the obligation of counselling or therapy for a person released conditionally
and, lastly,
the terms of a banning order:
a) Sexual abuse of minors
abroad. The Minister for Justice and the Delegate-General for Children’s
Rights together devised
and disseminated the brochure A child is not a sexual
partner. The Minister for Justice and the Flemish Community also circulated
another brochure;
b) Limitation. Under the law, the period of limitation
begins, with regard to a victim of indictable offences in the articles referred
to, only when he or she reaches the age of 18;
c) Banning. The law
establishes that banning orders may be imposed on convicted persons and
prisoners; these orders concern activities
involving time spent with young
people, or the authority to take decisions regarding them, not necessarily for
gain, thus covering
both professionals and volunteers;
d) Failure to
come to the aid of a child in danger. The new Act has increased the penalty when
the victim of failure to assist is
a child;
e) Rape of a minor under
10. Prior to 1995, rape of a minor under 10, punishable by hard labour for life,
was one of the rare crimes
not tried in a correctional court. The extension of
the concept of rape to any act of sexual penetration by the Act of 4 July 1989
resulted in an increase in the number of files designated as pertaining to rape,
but did not correspond to a real increase in the
number of sexual attacks on
children. Moreover, the compulsory competence of the Court of Assize was riddled
with shortcomings such
as the inappropriateness of the oral procedure to this
type of act, the slowness and cost of the procedure, and the congestion of
this
jurisdiction as a result of the increased number of files outside the competence
of the correctional court. That had been the
reasons for closures of files and
more systematic recourse to imprisonment. These various reasons justified the
legislative change
made to the Act of 13 April 1995. The Minister for Justice,
in a circular of 17 May 1995 concerning morality laws, recalled, however,
that
in cases of organized crime (paedophile rings) or acts accompanied by violence,
the Court of Assizes was still the
correct jurisdiction. Furthermore, even in a correctional court, rape of a
minor under 10 could lead to a sentence of 10 years in
prison and, in the event
of legal recidivism, to a penalty of 20 years in prison.
g) Reform of
the Criminal Code
117. The courts enforce the criminal laws that form
the juridical framework of their action. It is therefore important for that
framework
to be adapted to the situation in society.
118. In Belgium, the
main criminal provisions governing assault, like the Criminal Code, date back to
1867. They were, however, the
subject of fundamental amendments in 1912 (vote on
the Child Protection Act), 1989 (rape) and 1994 (see
above).
119. Following the tragic events of the summer of 1996, it became
a matter of urgency to analyse provisions of criminal law concerning
offences
against children.
120. Research was conducted on the basis of the
recommendations of the National Commission against Sexual Exploitation of
Children,
a study carried out at the request of the Minister for Justice by the
team of Professor Jacobs of the Faculty of Law of the Free
University of
Liège, and, with regard to domestic violence and sexual mutilation, on
studies conducted at the request of the
Minister for Employment and Labour,
responsible for the policy of equal opportunity, by Professor Hutsebaut of the
Catholic University
of Louvain and Professor Kellens of the Free University of
Liège.
121. In order to complement the legal analysis, an
extremely detailed questionnaire (of 38 questions) was sent, through the senior
presidents and procurators-general at the courts of appeal, to magistrates and
public prosecutors involved in cases of abduction
and ill-treatment of children.
The legal analysis needed to be supplemented with lessons drawn from their own
law-enforcement experience.
The consultation also provided the opportunity to
discover the status of practices relating to the hearing of child victims (use
of audio-visual recordings, availability of appropriate premises, presence of a
person of trust, assistance from an external psychologist
responsible for
interpreting the child’s speech, etc.).
122. It was on the basis of
those three actions that a bill was prepared and approved by the Council of
Ministers on 18 December 1998.
The Commission of Justice of the Chamber adopted
it on 2 March 1999.
123. This bill is meant to strengthen child
protection in the Criminal Code; it was discussed in a working group composed of
representatives
of the Justice and Employment and Labour cabinets, experts, and
members of the National Commission.
124. It includes provisions
strengthening the protection of children against the various forms of sexual
exploitation, abduction,
neglect and starvation, and abandonment; among other
things it extends the notion of trafficking in human beings to exploitation
of
the victim’s minor status; it also extends to minors aged 16-17 the
protections provided for those under 16 in the areas
of exploitation of
debauchery and prostitution, as well as child pornography.
125. The
principle of extraterritoriality, which should, inter alia, allow prosecution of
“sex tourism” and human-traffic
networks will become more flexible
with withdrawal of the requirement of similar criminal provisions in the two
countries concerned
and will be extended to acts of public immorality committed
against minors over 16; the perpetrator need not be in Belgium.
126. The
intention of the bill is to continue efforts to prevent recidivism by sex
offenders. In the first place, it spells out and
improves the regime of banning
orders on persons convicted of immoral acts from working in any area involving
children, stipulating
the date from which the order runs, providing for a
sanction in the event that the suspension is not respected, and spelling out
the types of activities prohibited. Next, the bill extends
to cases of
suspension of the terms of the sentence, the suspended sentence, probation and
release of convicted persons the requirement
of prior notification of a
specialized service of counselling and treatment of sex offenders, as well as
the modalities of monitoring
the counselling or treatment of the persons
concerned, as provided for in the Act of 5 March 1998 on conditional
release.
127. The Government also decided to amend the criminal procedure
to keep pace with the specific needs of child victims of sexual offences:
on the
one hand, it will spell out the modalities and legal consequences of
audio-visual recordings of the hearing of minor victims
of sexual offences; on
the other, it will provide for derogation from the principle of oral hearings in
the Court of Assize so as
to avoid confronting the child with the accused at the
hearing.
128. The bill includes a draft bill on domestic physical and
sexual violence, proposed by the Minister for Employment and Labour,
who is
responsible for the policy of equal opportunity, in consultation with the
Minister for Justice.
129. In order to make it clear that acts of
indecent assault and rape must be deemed to be sexual aggression against persons
rather
than against law and order, the bill characterizes these offences as
“sexual attacks”, and indecent assault is replaced
by the new notion
of violation of sexual integrity.
130. The bill defines indecent assault
as any sexual act committed against or with the assistance of, a person who does
not consent
to it. Consent or lack of consent to a sexual act is the main
criterion of the crime. In order to strengthen the protection of individuals,
especially minors, the bill also explicitly stipulates the situations in which
consent to a sexual act cannot be envisaged.
131. The bill also provides
for additional protection from sexual acts with minors, whether within or
outside the family context.
132. As for sexual acts with minors outside
the family context, the bill stipulates that a minor under 14 cannot consent to
a sexual
act. In other words, any sexual act committed against a minor under 14,
with or without the minor’s consent, is an offence
punishable under
criminal law. The bill also intends to relax ultimate protection from the age of
14. Sexual contacts between young
people are entirely outside the criminal
sphere, unless a question of abuse arises. In the case of relations with an
adult, specific
protection is provided for minors aged 14-16. The point of this
special protection is that in the event of a considerable age difference
(more
than five years), the assumption is that the young person could not give valid
consent to sex acts.
133. Lastly, all minors under 18 also receive
additional protection: the bill provides that a sexual act with a minor made
possible
by abuse of authority, trust or dependence is a crime.
134. All
sexual acts with minors within the family are explicitly prohibited. In that
regard, the age of 16 is increased to 18 in
order to extend protection to all
minors. This means that any sexual act committed against a minor by persons
living in the family
are automatically punishable, whether the victim consented
or not. The age-old concept of family has been adapted to social developments.
Accordingly, the bill extends the notion to adoptive and foster parents,
brothers and sisters, visiting relatives, parents-in-law
and any other person
who normally lives with the minor and has authority over him or
her.
135. The bill also takes up the aggravating circumstances of
deliberate assault, linked to the fact that the authors of violence are
children
against their parents and parents against their children.
136. Genital mutilation occupies an important place in assaults against women
and girls; such violence is specifically aimed at women
and girls. The Criminal
Code currently permits prosecution for deliberate assault resulting in the loss
of an organ; the bill sets
forth a specific provision unequivocally
criminalizing genital mutilation.
137. Lastly, the bill amends the
criminal provisions relating to professional secrecy. Under the current Act,
doctors, carers and
social workers, among others, are bound by professional
secrecy. They may not disclose information relating to physical and sexual
violence. Although the law provides for two exceptions (in testimony before a
judge and in cases of assistance to persons in need),
their legal situation is
ambiguous.
138. Better legal security and better protection of minors
call for more transparent legal provisions. The bill provides persons normally
bound by professional secrecy with the opportunity to disclose to the
appropriate services acts of physical and sexual violence and
genital mutilation
committed against a minor under 14, without being liable to
prosecution.
h) Children’s recorded
statements
139. A working group on children’s statements has
been set up on the initiative of the Ministry of Justice. Its aim is to assess
the situation and prepare, for the police and magistrates, a guideline
standardizing the techniques for taking recorded statements
in criminal
proceedings (mainly with regard to child victims of immoral
acts).
140. The working group was formed in order to encourage video
recordings and techniques that do not smack of an official hearing where
children are concerned; they guarantee better quality of the hearing, avoid the
need for multiple and repeated hearings, provide
greater transparency and more
reliable statements from children.
141. The judicial authorities are
trained at the same time so as better to conduct the hearings.
142. The
bill concerning the criminal protection of minors has been expanded to include
the principle of audio-visual recording of
a minor’s hearing in the Code
of Criminal Procedure and to stipulate the modalities and legal consequences.
When, for establishing
the truth, the Court deems it necessary summon a minor,
his or her appearance will take the form of a video conference in order to
prevent the child from coming face to face with the alleged
abuser.
i) Cooperation agreements on assistance to
victims
143. Cooperation agreements have been negotiated between the
Federal Government and the Flemish Community and between the Federal
Government
and the French Community and the Walloon region.
144. Inasmuch as powers
regarding assistance to victims are shared between the State and the
Communities, cooperation was deemed necessary
for effective coordination of the
resources for victim assistance.
2. In the Flemish
Community
145. The Flemish legislator aims at greater conformity of
Flemish regulations with the policy implemented by the authorities and with
the
provisions of the Convention.
146. On 17 October 1997, two important Decrees of 15 July 1997 entered into
force in the Flemish Community. The first concerns the
drawing up of the impact
report on the child and monitoring of Government policy with regard to
children’s rights. The second
was for the creation of a commission on the
rights of the child, as well as the position of commissioner for the rights of
the child.
These two Decrees were prepared in the spirit of the Convention, on
the joint initiative of five Flemish representatives of the various
democratic
political parties. While the impact report on the child was somewhat
anticipatory, the monitoring of Government policy
regarding the rights of the
child and the creation of a commission on the rights of the child were mainly
inspired by the Convention.
For this reason, these latest initiatives will be
discussed in Part II (below); at the same time, it is opportune to examine the
impact report on the child in this part.
147. The Decree defines the
impact report on the child as one describing the child’s situation in his
immediate milieu and the
foreseeable impact consequences of a planned decision
and its alternatives on the situation. It was pointed out during the
parliamentary
discussions that it is the family that must be regarded as the
child’s immediate milieu. This is in keeping with the Convention.
The
decree states that the impact report on the child must contain at least the
following information:
– the effect the planned decision would
have on the child;
– alternative solutions to the proposed decision, particularly a
description of measures envisaged in order to avoid the adverse
consequences of
the decision, to restrict and, if possible, remedy them;
– a list of the difficulties encountered in the collection of the
requisite data.
148. The obligation to establish an impact report on the
child, as provided in the Decree, means that each draft decree must be
accompanied
by such a report when it is submitted to the Flemish Parliament, so
that the planned decision is clearly and directly in the child’s
interests. The Government may depart from this provision on the advice of a
competent commission. This commission comprises five
permanent members, three of
whom are nominated on the basis of their experience in impact reports on
children, and two on the basis
of their familiarity with children’s
rights, as stated in the Convention (Executive Decree of 14 July 1998). The
members of
the commission have already been appointed.
149. The decree
explicitly provides that the decision to waive the obligation to draw up an
impact report on the child will be evaluated
by Parliament during the debate and
vote on the acceptance or rejection of the draft decree.
150. Article 11
of the Decree provides for gradual enforcement of the obligation to establish an
impact report on the child, so that
the Decree will come into force in its
entirety on 17 October 2002. This gradual enforcement will make for progressive
acquisition
of the necessary experience and competence.
151. The Decrees
of 15 July 1997, directly inspired by the Convention, are not alone in their
explicit reference to the Convention.
Mention should be made of the Decree of 12
May 1998 concerning the recognition of national youth organizations, which
includes among
the general conditions of recognition: “with regard to its
activities and statutes, to accept the democratic principles and
rules and to
sign the European Convention on Human Rights and the international Convention on
the Rights of the Child”. The
statement provides that if a national youth
association does not respect the aforementioned Conventions in its normal
functioning,
the recognition may be withdrawn. The decree recently approved by
the Flemish Parliament on supervision centres for pupils also explicitly
requires them to respect the Convention (see below, Part IV. D).
152. The remarks about special assistance to young people, contained in the
initial report – paragraphs 15 to 19 – still
apply.
153. The
Decree of 24 July 1991 concerning general social assistance, mentioned in
paragraphs 39 to 46 of the initial report, have
meanwhile been replaced by the
Decree of 19 December 1997. One of the underlying principles is to make social
workers more accessible
to young people and children and to give more detailed
attention to the preventive aspect of front-line care for children and young
people as well. In this context, the following actions are envisaged:
organization of training and coaching to strengthen children’s
and young
people’s moral resistance, the introduction of methods focusing on early
detection of sexual harassment and violence
against young people, continued
development of young people’s active commitment to preventive assistance
to youth of the same
age, development of a specifically child-centred attitude
with a view to making information accessible to all children, especially
with
regard to their rights.
154. In accordance with the Committee’s
recommendations, a consultation with NGOs represented in the Child Rights
Coalition
took place in the Flemish Community on 17 September 1998, under the
leadership of the Minister coordinating children’s rights.
The
Commissioner for the Rights of the Child attended as an observer. Following this
consultation, the verdict was in favour of increased
self-criticism by the
authorities and greater diversification of the issues and powers discussed.
There was a frank exchange of ideas
on the question of whether the Child Rights
Coalition should not be structurally and financially supported by the Flemish
authorities.
3. In the German-language Community
155. The
Decree on assistance to children announced in the initial report, was adopted by
the Council of the German-language Community
on 20 March 1995, published in the
Moniteur belge on 26 April 1995 and entered into force on 1 May
1995. It gives rise to a right to organized assistance for any young person
living
in the German-language Community.
156. The aim of this decree is
to provide assistance to young people in danger, through an agreement between
the interested parties
and the Youth Assistance Service. Measures can be imposed
by a juvenile court only after the failure of voluntary aid.
157. The
Youth Assistance Council was created by this same decree; it is composed of 19
representatives of the social services involved
with children and young people.
This Council takes and coordinates youth-assistance initiatives and supervises
their implementation.
It studies young people’s development and produces a
report on assistance to young people at the end of its term of office
(six
years). It proffers advice at the request of the Government of the Community or
on its own initiative. The Council’s committee
supervises the work of the
Youth Assistance Service and confirms or rejects the Service’s decisions
for individual measures.
B. Existing or planned mechanisms at national or local
level for coordinating policies
relating to children and for
monitoring the implementation of the Convention
1. At the federal level
a) The National Commission on
the Rights of the Child
158. On 13 September 1996, the Council of
Ministers decided to create, at the federal level, a National Commission on the
Rights of
the Child. It requested the Minister for Foreign Affairs and the
Minister for Justice to prepare the establishment of the Commission
and to
report once more to the Council of Ministers.
159. Following two preparatory meetings, on 6 December 1996 the Council of
Ministers gave its assent to the establishment of the proposed
body.
160. The National Commission on the Rights of the Child comprises
permanent members, representing departments directly concerned with
child-rights
issues.
161. They include a bureau composed of the Minister for Foreign
Affairs and the Minister for Justice, who take turns to chair the
meetings, as
well as the Minister for the Interior and those of the three
Communities.
162. The main mission of the National Commission is to
prepare the forthcoming five-yearly reports that Belgium is required to submit
to the Committee on the Rights of the Child. However, it may be entrusted with a
number of particular issues at the request of the
Inter-ministerial Conference
on the Protection of the Rights of the Child.
163. For instance, the
Conference has already requested the National Commission to study Belgian
interpretative declarations on the
Convention on the Rights of the Child and the
question of young people’s freedom of expression. It has also asked the
National
Commission to give consideration to children’s social and
economic rights and labour rights.
164. Another project was for the
National Commission to secure the cooperative efforts of parastatal bodies,
non-governmental organizations
and experts.
b) The Inter-ministerial
Conference on the Protection of the Rights of the Child
165. The
Inter-ministerial Conference on the Protection of the Rights of the Child was
established at the Communities’ request,
for the purpose of studying
certain topics that posed particular difficulties, requiring better coordination
of the various levels
of authority, and possible policy
decisions.
166. The Council of Ministers gave its assent to the principle
of creating the Conference on 15 November 1996. It was set up by the
Consultation Committee on 18 December 1996 and inaugurated on 5 March 1997. It
decided to place the following topics on its agenda:
a) Ill-treatment of
children and sexual abuse:
– prevention
policy;
– assistance to and treatment of perpetrators and
victims;
– training of the intervening
parties;
b) Finalization of a statistical tool for a coherent approach
to child policy;
c) Youth assistance and protection:
– monitoring of federal and Community laws (including the Protection of Young Persons Act with regard to offenders, particularly the issue of placement in a detention institution);
– the Brussels issue of assistance to young people, the Act of 1965
having always been enforced in the absence of an order
of the General Assembly
of the Joint Community Commission;
– coordination and consistency of social assistance and support
policies among the various levels of authority;
d) National and
international adoption;
e) Right to personal relationships (including in
cases of separation, imprisonment, international abduction,
etc.).
c) Scientific studies
167. A number of ongoing
scientific research projects were undertaken in response to the request by the
Prime Minister’s Federal
Department of Scientific, Technical and Cultural
Services.
168. Two studies were conducted as part of the programme,
“The citizen and the protection of rights”.
169. The first,
entitled “From the right to protection to the protection of the law. The
link between protection of young people
and the rights of the child, an
exemplary case”, was conducted by Professor Verhellen of Ghent University.
It identified the
most pressing tasks involved in an effective protection policy
on rights, comprising:
a) Establishment of a system for taking account
of the interests of children;
b) A systematic effort at human rights
education, both for children and adults with regard to information, especially
in connection
with children’s rights;
c) Continued development of
scientific investigation.
170. The second study, “Guarantees during
court proceedings for minors, and alternative procedures in the treatment of
young
offenders”, was conducted by Professor Eliaerts of the Brussels Free
University. The purpose of this study is to provide better
protection for the
rights of minors, on the one hand, regarding cultural, social and economic
development and, on the other, the
influence of the internationalization of
young people’s rights. After resituating and clarifying the procedure
before the juvenile
court, the researchers distinguished between the specific
guarantees of the trial and the more fundamental guarantees of the
law.
171. At the present time, in the framework of the
“Inter-university poles of attraction”, a study on “The rights
of the child. An inter-university scientific team is conducting Implementation
and monitoring through participation". Participating
in this project are
Professor Verhellen and Professor Vande Lanotte of the Ghent University,
Professor Tulkens of the Catholic University
of Louvain-la-Neuve and Professor
Alen of the Catholic University of Louvain. With all the activities and from the
multidisciplinary
viewpoint, the purpose of the research is to focus on
implementation and monitoring of international and national regulations on
promotion and protection of human rights and children’s rights. The study
deals with six different points, namely human rights
education, participation,
rights protection, normative scope, legal significance and binding force and
protection of young people.
2. In the French
Community
172. By Order of 24 July 1997, the Government of the French
Community established an Observatory on Children, Youth and Assistance
to Young
People.
173. This Observatory serves the French Community as an objective
evaluation tool and is responsible, inter alia, for preparing an
up-to-date list
of problems affecting children and young people, keeping an up-to-date list of
services and bodies, and promoting
any initiative in that regard. It is also to
express views on all questions relating to children and assistance to young
people and
assess the implementation of the Convention on the Rights of the
Child.
174. Another Executive Decree of the Government of the French
Community of 22 December 1997 amends the Executive Decree of 10 July
1991
creating a Delegate-General for children’s rights and assistance to young
people. It simplifies the name of the institution
to “Delegate-General for
Children’s Rights of the French Community” and increased from five
to nine the staff assigned
to the Delegate-General, including criminologists and
jurists.
175. On 16 March 1998 the French Community also adopted a Decree
centred on the following priority fields:
a) the obligation for all
psychological, social and medical personnel working in child institutions to
render assistance to an ill-treated
child or to the person in whose home they
suspect the ill-treatment occurred and, if they are unable to render this
assistance to
the child on their own, to call upon the authorities of the French
Community, such as the counsellor for assistance to your people,
the SOS
Children teams or the psychological, social and medical
centres;
b) officialization of the telephone helpline for children,
which is constantly available to take calls from
children;
c) organization and general coordination of the fight against
ill-treatment by judicial district from an official standing
agency;
d) obligatory training in the approach to ill-treatment of
children for all actors from child-related sectors.
176. In Brussels, the
College of the French Community Commission created an Observatory on Children by
Executive Decree of 27 July
1991. This is a permanent programme of action
defining and developing the specific place occupied by children in the
Brussels-Capital
region. Through it, special indicators for children aged 0-12
concerning the qualitative and quantitative aspects of the establishments
that
receive have been drawn up. Its aims are to provide a reliable view of the
situation of children in the Brussels-Capital region
and to contribute to the
development of an explicit child policy.
177. The Observatory has been
recognized as a fulcrum of Community policy by a convention signed in June
1994.
3. In the Flemish Community
178. A number of
initiatives were taken in Flanders during the period under consideration in an
effort to coordinate activities in
favour of children and monitor implementation
of the Convention.
a) Coordination Minister for activities relating to child-rights
issues
179. Given the particular importance of such issues, on 18
February 1997 the Flemish Government appointed one of its own to serve
as
Coordination Minister. He is the Minister responsible for assistance to young
people and will undertake general coordination of
activities, with a view to
global follow-up of child-rights issues. Accordingly, the Coordination Minister
is responsible for reports
on the implementation of the Convention. The Family
and Social Welfare Department is required to support the
Minister.
b) Rights of the Child working group
180. On the
initiative of the above-mentioned Coordination Minister, an interdepartmental
working group Kinderrechten (Rights of the Child) was set up within the
Flemish Community. This working group comprises representatives of the Flemish
ministers,
departments of the Ministry of the Flemish Community, and Flemish
public bodies. The Child-Rights Unit of the contact point, Family
and Social
Welfare Department, serves as the secretariat of the working
group.
181. The working group’s meetings are restricted to sectors
that have an obvious link with children’s rights. Hence, the
social-assistance and public-health sectors are represented by the
Minister’s administration and cabinet, and education and
the media by the
cabinet. Other policy areas are rarely represented.
c) Monitoring of
government policy on children’s rights
182. The Decree of 15
July 1997 instituting the impact report on the child is a second facet that
monitors government policy on respect
for the Convention. This second facet
requires the Government to establish two types of written annual
reports.
183. The annual report on implementation of the Convention must
be transmitted to the Flemish Parliament and to the Commissioner for
the Rights
of the Child by 30 September of each year. In accordance with the Decree, it
must contain at least the following information:
– measures taken
for the exercise of the rights enshrined in the Convention;
– any useful information concerning respect for the principle of
non-discrimination against children and the right of the child
to subscribe to
certain deeds and his right to participation;
– health and welfare
indicators;
– aspects relating to education, leisure and cultural
activities;
– special measures for child protection;
– annual evaluation of the impact reports on the child and the
connection between the impact reports on the child and the impact
reports on
emancipation.
It must also be accompanied by specific political
conclusions formulated by the Government.
184. Pursuant to the Decree, a
point of contact or a child-rights specialist official was appointed in each
administration and each
Flemish public institution linked in any way with
child-rights issues. In this context, the Flemish Community Commission was not
forgotten. Attention should be drawn to the fact that Flemish
administration or public institution concerned must not have any direct link
with the rights of the child. Indeed, a single link suffices.
This will help
each body acquire child-rights expertise applicable in their respective areas of
competence. The contact points were
recently designated. They have only just
made it into this report, so that the information provided could be expanded, as
requested
by the NGOs.
185. With the institution of contact points on
children’s rights within the various political areas of the Flemish
administration,
the Flemish Community is weaving a network intended to enhance
the status of the child.
186. The second type of report concerns respect
for the rights enshrined in the Convention in the countries and regions with
which
the Flemish Community has concluded a general and exclusive cooperation
agreement, approved by decree. That report must be submitted
to Parliament
before 31 March and comprises documents relating to the countries in
question, papers made public by the Committee
on the Rights of the Child.
However, the fact that the Committee itself draws up a report only every two
years for the General Assembly
of the United Nations could make it difficult for
the Government to Furnish Parliament with new data each year. This report must
also be accompanied by specific policy conclusions formulated by the
Government.
d) Creation of a Commission on the Rights of the
Child
187. The first Flemish Commissioner for the Rights of the Child
assumed duty on 16 June 1998. The appointment was made by the President
of the
Flemish Parliament following a scrupulous selection procedure carried out by the
Permanent Recruitment Secretariat (which
is the federal public body responsible
for recruiting statutory officials), which guaranteed the objectivity of the
procedure.
188. The first Flemish Commissioner for the Rights of the
Child is a woman. A jurist and criminologist by training, she also worked
as a
pro deo lawyer at the Centre for Children’s Rights in Ghent and at
the Kinderrechtswinkel (a body comprising Dutch-speaking NGOs active in
the field of children’s rights). She went on to coordinate the mediation
service
of Child and Family, an institution in which she also served as a
child-rights specialist.
189. During the preparation of the Decree by
Parliament, it paid particular attention to the Committee’s recommendation
to Belgium
to establish “a permanent mechanism of coordination,
evaluation, monitoring and follow-up to ensure that the Convention is
fully
implemented, at the federal and Community levels”. It could also refer to
a similar recommendation by the Council of
Europe.
190. Following the
Norwegian example, the Flemish Parliament opted for a Commission the Rights of
the Child that formed part of the
Parliament rather than the Government, making
it a more democratic body and consequently endowing it with greater
independence, which
is also guaranteed for the budget and staff.
191. The
Decree entrusts the Commissioner with three main tasks, all intended to defend
the interests of the child:
– respect for the Convention on the
Rights of the Child;
– follow-up, analysis, evaluation and dissemination of the
child’s living conditions;
– defence of children’s
rights, interests and needs.
192. In the performance of those tasks, the
Commissioner, on the basis of the Convention, is required to pay special
attention to
the following:
– dialogue with the child and with organizations active in the field
of individual and collective services to children, and
defence of their
interests;
– children’s social participation and accessibility for all
children to services and organizations that concern them;
– monitoring conformity with the Convention of the acts, decrees,
executive decrees and orders, including the procedure regulations
on matters
falling within the competence of the Flemish Community or the Flemish
region;
– dissemination of information on the content of the Convention,
particularly in the interests of the child.
193. In performing those
tasks, the Commissioner is empowered to investigate, on her own initiative or at
the request of the Flemish
Parliament, any question relating to respect for the
Convention and to examine any complaint of failure to respect the Convention
and, as far as possible, refer it to the competent institutions. The
Commissioner enjoys a broad ex officio right, which she may
invoke at any
moment, to gain access to data on any subject in her remit. The Commissioner,
like the members of her staff, are bound
by professional
secrecy.
194. The Commissioner submits to the President of the Flemish
Parliament an annual report on the way in which she defends children’s
rights and serves their interests. The report is discussed in plenary session.
On request, she may also submit intermediate reports
to the President for
discussion in plenary. She transmits her reports to the federal authorities so
that they can take them into
account when preparing the five-yearly report to
the Committee on the Rights of the Child.
e) Gezin en
Maatschappelijk Welzijn (Family and Social Welfare)
Department
195. The Family and Social Welfare Department of the
Ministry of the Flemish Community was reorganized by Executive Decree of 17
March
1996 of the Flemish Community. Its role as a unit for information on
children’s rights within the Flemish Government was confirmed,
a mission
it had already been fulfilling since the autumn of 1997 at the request of the
Coordination Minister. The official, who
for that purpose had been allowed to
work half-time, is responsible for supporting the Coordination
Minister.
196. Within the Family and Social Welfare Department, the
Centrum Voor Bevolkings-en Gezinsstudies (Centre for Studies on
Population and the Family) examines questions relating to the population and the
family. It renders opinions
on population and family policies; it plays an
important role in the preparation of the impact reports on the child and the
impact
reports on the family as an assessment instrument both in the Flemish and
the international contexts.
197. The Family and Social Welfare Department
participates in welfare policy and the issue of opinions by labour
representatives,
particularly through the agencies Gezins-en Welzijnsraad
(Family and Social Welfare Council), Vlaamse Intersectorale Commissie
Armoedebestrijding (Flemish Intersectoral Commission to Combat Poverty),
Interdepartementale Commissie Ethnisch-Culturele Minderheden
(Interdepartmental Commission on Ethnic and Cultural Minorities) and the
Consultative Appeal Commission. A group dealing with youth
is active in the
Flemish Intersectoral Commission to Combat Poverty. It is a multidisciplinary
group, comprising officials (youth
leadership, special assistance to young
people and education), experts (De Cirkel) and coordination bodies in the
assistance sector.
f) Kind en Gezin (Child and Family)
198. The Flemish
public institution Kind en Gezin (Flemish equivalent of the Births and
Children Office) has been reorganized. As of May 1996, it comprises three basic
sections: Preventieve Zorg (Preventive Assistance), Kinderopvang
(Child Reception) and Positie van het Kind (Position of the Child),
general-services, computer-science and computer-technology sections, as well as
five provincial sections.
The preventive assistance section and the
child-reception section (including extra-curricular activities), focuses
attention on children
aged 0-3 and 0-12 respectively.
199. Specialized
have been appointed in the institution’s main fields of activity. They
devote themselves to more specific subjects
(child reception, ill-treatment,
children’s rights, etc.). Throughout the institution, but more
particularly in the new section
Positie van het Kind (Position of the
Child), priority attention is assigned to the child, both as an individual and
as a member of the social category
of children, and with regard his rights,
interests and needs. Together with the content of the Convention, this principle
is the
leitmotiv of the institution’s functioning.
200. The
mediation service referred to in the initial report has, after several changes
of staff and the appointment of its Coordinator
as the first Flemish
Commissioner for the Rights of the Child, been reduced to a single mediation
official. To clarify what was said
about this mediation unit in the initial
report (para. 31), attention should be drawn to the fact that the Child and
Family mediation
unit must not be considered to be the only child-mediation unit
in Flanders. That task was recently conferred on the Commission on
the Rights of
the Child (see above). The Child and Family ombudsman service functions under
the Commissioner’s authority.
201. Each year Child and Family
publishes an activity report in which, since the 1995 report, a chapter is
devoted to data concerning
the universe of children, including demographic data,
composition of the families in which they live, contacts with parents, the
reception and school situations, disadvantaged children, parents’
professional situation, contacts with grandparents, television
habits and other
aspects of young children’s daily life (up to age 12).
C. Measures taken or foreseen to make the principles and provisions of the Convention widely known to adults and children alike (art. 42)
1. At the federal level
202. A compilation was published on
the initiative of the Ministry of Justice. It includes the initial report of
Belgium, the summary
records of the Committee’s meetings and the
Committee’s concluding observations on the report. This compilation is
available
to the public in the three national languages.
203. Moreover,
the Ministry of Justice has also co-financed with each Community a brochure on
the prevention of sexual exploitation
of children.
2. In the French
Community
204. While information on children’s rights is one of
the specific missions of the Delegate-General for Children’s Rights,
a
more specific activity deserves mention: the operation Lawyer at School. This
activity, initiated by the National Bar Association,
which operates in primary
class 6 and secondary form 6, focused its attention on children’s rights
in 1996 and 1997.
205. In Brussels, all the work of the Observatory on
Children is designed to create in-depth and continually updated knowledge of
the
status of children in the Brussels-Capital region. Two major lines of
action may be underscored. The first aims at greater accessibility of all
children to Community reception centres. The second develops
campaigns for
raising awareness of the child’s place in the city. Known as child-place
contracts, these campaigns are founded
on partnership with the public
authorities at various levels and with the associations sector.
3. In
the Flemish Community
206. The Vlaams Centrum voor de Bevordering
van het Welzijn van Kinderen en Gezinnen (Flemish Centre for the Promotion
of Child and Family Welfare) was created by Decision of 13 November 1994 of
the Flemish Government
(Moniteur belge of 7 February 1995) and it is
a not-for-profit legal entity. It is composed, on an equal basis, of the
Gezinswetenschappelijk Documentatiecentrum (Centre for Scientific
Documentation on the Family) linked to the Catholic University of Louvain, and
of the Centrum voor de rechten van het Kind (Centre for the Rights of the
Child) linked to the University of Ghent. The Centre’s overall mission is
independently to ensure
the welfare of children and families in the Flemish
Community. It is responsible for the annual organization of a Children’s
Rights Day and a Day of the Family, in keeping with the United Nations’
agenda.
207. The Ghent centre plays an important role in child-rights
training, both in and outside Flanders. It organizes courses for students
and
persons working with children (postgraduate training). It is also closely
involved in the organization of international training
programmes (International
Interdisciplinary Course on Children’s Rights, ERASMUS/SOCRATES Network on
Children’s Rights).
Flemish officials also attend courses at the Centre as
part of their professional duties.
208. The Family and Social Welfare
Department took the following initiatives:
a) Three study mornings in
1998 for staff on children’s rights;
b) In collaboration with the
Ghent Centre, organization of a study day devoted to children’s rights for
persons involved in
youth special assistance (17 October
1997);
c) Practical training in children’s rights for consultants
to the committees for special assistance to young people, which,
on order of the
pertinent coordinated Decrees, are responsible for
prevention;
d) Subsidies to certain projects:
- Minorius: improved juridical position of minors in youth special
assistance institutions; preparation of a code on minors, assistants and
parents; the right to assistance and the rights therein;
- Kinderrechtswinkel (a body comprising all Dutch-speaking NGOs
active in the field of children’s rights);
- Kinderrechten en de rol van het gezin (The rights of the child and
the role of the family);
- The training project De rechten van het kind: een taak voor iedereen (The rights of the child: a universal mission), a joint project of the Belgian Committee for UNICEF and other Flemish and French-speaking non-governmental organizations, with subsidies from the Flemish and French Communities;
- Over de muren heen: gedetineerden, naastbestaanden en hum kinderen
(Beyond walls: detainees, their relatives and their children);
- Het kind van de rekening (The child of the accounts), composition
of a book of pictures;
- Kinderrechtenfestival (Child rights
festival).
209. Brochures were prepared for young people and are intended
for clients of the service of special assistance to young people; they
give
young people clear information about their rights (e.g. Jij en de
jeugdrechtbank (You and the juvenile court). They were produced in
collaboration with the Kinderrechtswinkels and the President of the Union
of Juvenile Court Magistrates. Some brochures for parents are
planned.
210. The Kinderrechtswinkels recently joined Child and
Family in order to guarantee the continuity of their work.
211. Within
Child and Family, personnel training and awareness-raising (for instance,
training of child-rights team leaders) stressed
the fact that the message
contained in the Convention on the Rights of the Child must also be
disseminated, in addition to information
on education, food and care. In that
context, several pamphlets were put together and widely disseminated and in them
the spirit
and content of the Convention are clearly explained with the aid of
daily family situations: Ouder zijn, niet zo gemakkelijk (Parents, a
difficult task), which uses games to explain why infants behave as they do, and
Het boekje dat NEE zegt (The book that says NO), which deals with
children’s right to express their views on certain topics concerning
them.
212. Lastly, attention should be drawn to the fact that one of the
main tasks of the Commissioner for Children’s Rights (see
above) is
“to disseminate information concerning the content of the Convention,
particularly in the interests of the child”.
4. In the
German-language Community
213. An information campaign on the
Convention was inaugurated in 1998.
214. With regard to young people, the
youth information services are responsible for implementing this
programme.
III. DEFINITION OF THE CHILD
A. Definition
1. At the federal level
215. The bill on criminal
protection of minors adds to the Criminal Code a definition of minority as it is
to be interpreted in the
Criminal Code and particular Acts and regulations. The
minor is defined as “an individual who has not yet attained the age
of 18
years”. This definition is based on the concern to avoid reference to the
personal status of a young person of foreign
nationality in determining whether
he is a minor or not.
2. In the French Community
216. In the French Community, the
Decree of 4 March 1991 concerning youth assistance provides a definition of the
child which corresponds
to that of the Convention, when it speaks of a young
person aged under 18. This Decree’s field of application extends to
children
whose health or safety is endangered or whose conditions of education
are jeopardized by their behaviour or that of their families
or relatives, even
if by their personal status they have attained majority before the age
of 18.
3. In the Flemish Community
217. In accordance
with the Flemish Government’s Decision of 13 July 1994 on recognition of,
and subsidies to, youth special
assistance institutions, a minor is deemed to be
any individual receiving assistance from the Youth Special Assistance Committee
up to the age of 20 or 21, depending on the assistance granted (20 for persons
living in a room under constant supervision, 20 for
individuals staying at a
person’s home or in a family of trust or in an appropriate open
establishment, and 21 for persons
living alone but receiving support). The
person concerned may, however, decline any further assistance or request general
social
assistance. Since 1 January 1995 the Executive Decree of 13 July 1994 has
replaced the Flemish Government’s Decision of 22
May 1991 referred to in
the initial report.
B. Legal minimum age for the exercise of certain rights and obligations
1. Consultation of a lawyer without parental
consent
a) In the French Community
218. Under the law
in the French Community, the youth-rights services organize duty rosters of
legal advisers for minors. They take
over certain judicial activities to help
young people, especially in juvenile court proceedings, actions under
educational law, etc.
219. There is also provision for the youth
assistance counsellor to authorize assumption of the costs relating to judicial
proceedings
or court actions as part of assistance programmes established with
minors and families.
220. In the medical domain, psychological, social
and medical centres work in close cooperation with schools, and maintain duty
rosters.
Minors are therefore able to consult the centres on both medical and
psychological matters.
b) In the German-language
Community
221. There is no legally established minimum age. Children
and young people of any age may consult the psychosocial and medical centres
that organize duty rosters in schools. This regularly occurs, especially in the
medical, social and psychological area.
222. In the legal domain, youth
information services organize consultations accessible free of charge to
children, young people and
their parents, with the support of the Ministry of
the Community.
223. On the basis of a Decree of 20 March 1995 on youth
assistance, the Youth Assistance Service, when asked for help, must support
and
advise the young person and other persons concerned and inform them of their
rights and obligations.
224. The Decree of 20 March 1995 requires that young persons should be heard
on any matter concerning them by the Youth Assistance
Service from the age of 12
and that they should give their written consent to any measure concerning
them.
2. Freedom to testify before the courts
225. The Act
of 30 June 1994 amending Article 931 of the Judicial Code and the provisions
relating to divorce (Moniteur belge of 21 July 1994) expanded the
Judicial Code so as to implement article 12 of the Convention on the Rights of
the Child.
226. Henceforth, in any procedure concerning them, minors
capable of due discernment may, at their request or by decision of the judge,
be
heard, in the absence of the parties, by the judge or by the person designated
to do so by the judge.
227. When the minor so requests the judge or the
Crown Procurator, the hearing may only be ruled out by a decision on special
grounds,
on the basis of the child’s lack of due discernment. If the judge
imposes the hearing, the minor may refuse to be heard.
228. Minors are
heard alone unless the judge decides that they should be assisted in their own
interest; the hearing of a minor does
not confer on him or her the status of
party to the proceedings; it takes place wherever the judge deems appropriate; a
record of
the hearing is attached to the file of the proceedings and no copy can
be issued to the parties.
229. The Protection of Young Persons Act of 8
April 1965 now contains a new article 56 bis providing for the juvenile
court to summon
a minor over the age of 12 to be heard in civil proceedings when
the question is one of authority over his person, administration
of his
property, the exercise of visiting rights or the designation of a legal
representative. It must be stressed that the judge
may not delegate his task of
hearing the child; however, he freely decides on the modalities of the hearing,
including the place
and time. The young person must be entirely free to make a
personal statement or be silent. Should the minor not appear, the juvenile
court
may summon him if it so deems appropriate.
230. It emerges from articles
1290 and 1293 of the Judicial Code, amended by the above-mentioned Act of 30
June 1994, that even in
the case of proceedings in a divorce by mutual consent
of both spouses, the judge may decide, of his own accord, to hear the minor
against the parents’ wishes, in accordance with the provisions of the new
article 931 of the Judicial Code. In those circumstances,
if the hearing of a
child shows that the measures adopted by the parents concerning him or her are
not in his or her interest, the
judge may propose that the parents alter them,
or even oblige them to do so. Since the reform introduced by the Act of 20 May
1997,
the judge may exercise those powers even without first hearing the
child.
231. On the matter of adoption, the new draft legislation provides
that, as things stand at the moment, the age from which an individual,
if not
deemed to lack discernment, is not under judicial disability or in a state of
prolonged minority, must give his consent to
any adoption proposed for him
should be lowered from 15 to 12. The court should also hear him. In this area,
the child’s views
become a determining criterion earlier than under the
current legislation. Various measures also aim to guarantee that
children’s
consent reflects their real feelings and is freely expressed,
whether the adoption procedure takes place in Belgium or the child
is sent
abroad. If the child is under 12, the provision is that if the procedure takes
place in Belgium he or she must be free to
express his opinion in a manner
similar to that described above (art. 931 of the Judicial Code).
3. Deprivation of liberty: imprisonment
232. See Chapter IX.B
(Children in conflict with the law), Section 2.
IV. GENERAL PRINCIPLES
A.
Non-discrimination (art. 2)
1. At the federal level
a) Establishment of paternal
and maternal filiation by recognition
233. Paragraph 3, subparagraph
1, of article 319 of the Civil Code concerning paternal recognition provides
that, if the child is
a non-emancipated minor, the recognition is only
admissible with the prior consent of the mother. Subparagraph 2 provides that
the
child’s prior consent is also required if he or she is 15 years of
age.
234. The Court of Arbitration, in its ruling No. 36/96 of 6 June
1996 (Moniteur belge of 10 July 1996), stated that the fact that
emancipated 15-year-olds may not refuse consent to recognition by a woman, while
they
may do so in the case of recognition by a man, runs counter to the
principle of equality and non-discrimination enshrined in articles
10 and 11 of
the Constitution.
235. It is pertinent to point out that rulings on
preliminary matters by the Court of Arbitration have only limited authority. The
legal provisions in question continue to exist and continue to form part of the
legal order. However, a judge may decide not to invoke
them if he considers that
the question of constitutionality raised before him is identical to that decided
by the Court of Arbitration.
b) The status of young foreigners with
regard to the protection of young persons
236. The Centre for Equal
Opportunity and the Fight Against Racism maintains that past investigations show
that young foreigners are
not treated the same as young nationals where the
protection of young persons is concerned. The former are allegedly more readily
subjected to stricter measures and, in particular, have in practice less easy
access to various forms of support and are more readily
placed in
institutions.
237. Steps involving intercultural mediators (unfortunately
all too rare) are being taken to put forward a suitable alternative
solution.
2. In the French Community
238. In the French
Community, article 3 of the Decree of 4 March 1991 concerning assistance to
young people institutes an objective
right to specialist help for any young
person in difficulty or danger. This assistance must enable the young person or
child to develop
in conditions of equal opportunity for a life in keeping with
human dignity. The comment on this article specifies that this objective
is
conceived in the spirit of the Convention on the Rights of the
Child.
239. The Code of Ethics, adopted in 1997, under article 4 of the
same Decree, is based on this fundamental principle of non-discrimination;
the
same is true of the general regulation of public institutions, whether open or
closed, for the protection of young people, as
foreseen in article 16, a
regulation also adopted in 1997.
240. The result is that actors lending support, under this Decree, are
required to provide special assistance to young people and
children, even if
they are in the country illegally, without making any distinction on the basis
of their own characteristics or
those of their families.
241. Likewise,
the Births and Children Office (ONE) ensures that the services which they
approve or control should protect children
against all forms of discrimination.
This takes the form of specific measures to help make services accessible to the
general public:
diversity of services, free consultations, parents’
income-related financial contribution to the reception services, training
of
personnel on the ground in issues such as extreme poverty and
immigration.
3. In the Flemish Community
242. To supplement
paragraph 83 of the initial report, we may point out that a non-discrimination
clause comparable to the one in
force in the regulations of Kind en Gezin
(Child and Family) also appears in other regulations relating to special
assistance to young people, disabled persons, radio and television
broadcasts,
etc., as well as in certain decrees now in force in the health-care and welfare
sector.
243. Within the Bijzondere Jeugdbijstand (Youth Special
Assistance) Division, agreements were concluded with certain
immigrant-assistance teams, which support the special
youth-assistance services
and institutions as part of their support for national minors. In 1998, the
subsidies were increased from
BF 7,675,000 to 12,675,000, some of which was
used to extend the field of action of existing teams and create a team for the
Flemish
Brabant province and for Brussels, so that the entire Flemish territory
now has access to the services provided by these teams. the
Ghent team also
received subsidies from the provincial administration of Eastern Flanders.
Certain prevention projects focusing on
vulnerable target groups are also under
way in this sector.
244. In the Jeugdwerk (Youth leadership)
sector, it was found that the participation of the poorest children and young
people and that of the disabled,
the ill-educated or immigrants was not always
easy and remained somewhat rare. A study should be conducted on the subject in
order
to obtain an in-depth evaluation and determine what measures should be
taken.
245. On the basis of the Decree of 9 June 1993 regulating
subsidies to communal administrations and to the Flemish Community Commission
for implementing a youth-support policy, it was requested, as part of the
1999-2001 community policy plan, that the disadvantaged
social situation should
be studied. Enforcement of an Order of the Flemish Government of 21 April 1998
concerning the granting of
an additional subsidy to the community
administrations for implementing a youth-support policy for socially
disadvantaged children
and youth (Moniteur belge of 12 June 1998) is yet
to be assessed.
246. The Decree of 17 November 1997 governing the
granting of subsidies to the provincial administrations for implementing a
youth-support
policy requires the incentives of the provincial pilot plan for
youth-support, and the opportunities offered to hard-to-reach target
groups (the
disabled, unskilled, poor, etc.) to be demonstrated.
247. The Decree of
12 May 1998 concerning the approval of national youth organizations mentions of
four categories of particular target
groups. These are young people who, owing
to poverty, low level of education, handicap or immigrant origin, are at a
social disadvantage.
The commentary accompanying the Decree shows that work with
a special target group will not be approved and subsidized as such unless
the
objectives, method and programme clearly show that the work is likely to favour
participation. Complementary programmes focusing
on young people in compulsory
and part-time education are also
accepted. Given the employment problem, holders of an upper-secondary
vocational certificate or diploma may also be considered to
be
under-educated.
248. In Child and Family, additional initiatives are
taken on behalf of persons requiring extra assistance, such as illegal
residents,
nomads, immigrants and disadvantaged persons.
249. The
Department of Education has taken numerous initiatives to prevent discrimination
against young immigrants.
a) Declaration of
non-discrimination
250. This declaration, signed on 15 July 1993 by
the Flemish Minister for Education and the coordination bodies of the organizing
authorities, aims at providing a solution to the absence of spontaneous
integration of immigrant pupils into the education system.
251. The first
part of the non-discrimination declaration provides that education must have an
intercultural dimension and include
all pupils. The signatories undertook to
introduce this intercultural dimension in both the content and organization of
education.
Next, the coordination organs of the organizing authorities committed
themselves to devising a standard code that will explain how
these principles
are translated into the education scheme itself.
252. The second part of
the declaration concerns the presence of immigrants in schools. There are plans
to organize a local consultation
seeking a proportionally more representative
presence within the commune. This must be prepared by the various organizing
authorities
in the communes and will be established by
agreement.
253. Through the non-discrimination declaration, the
coordination organs of the organizing authorities also undertook to deal, in
common consultation, with complaints of discrimination. If the problem finds no
satisfactory solution at the local level, the complaint
may be transmitted to
the Vlaamse Onderwijsraad (Flemish Education Council), which is the
evaluation and mediation commission that transmits the file together with an
opinion to
the coordination organ. When the complaint cannot be resolved
satisfactorily or in the necessary time frame, the education inspectorate
takes
up the problem and an inquiry is opened.
254. In primary education, 26
communes comprising many immigrants have already approved non-discrimination
agreements involving some
640 schools. In secondary education, there are
12 communes involving some 267 schools that have approved them.
b) Reception of newly-arrived immigrants of non-Dutch mother tongue into
the education system
255. The purpose of this reception policy is to
provide newly-arrived immigrants to our country with a sufficient knowledge of
Dutch
to promote their social integration. To that end, an additional number of
class hours and an allowance are granted to primary and
secondary schools for
each newly-arrived immigrant of non-Dutch mother tongue. In order to gain
entrance to these reception centres,
the pupil must not have been born in
Belgium, must not hold Belgian or Dutch nationality, must not have Dutch as a
mother tongue
and must not have been taught in Dutch for an entire academic
year. He must also be insufficiently fluent in the language taught
to be able to
follow the regular courses successfully.
c) Extra teaching of Dutch in normal courses
256. This extra
tuition is part of the priority education policy. Under certain conditions,
schools may obtain extra class hours to
be used for intercultural education,
learning of the Dutch language or prevention and solution of developmental or
study problems.
257. The initiatives taken in the context of this
priority education policy is designed for children belonging to the target
groups.
These are pupils whose maternal grandmother was not born in Belgium and
holds neither Belgian nor Dutch nationality by birth. In
addition to this
criterion of descent, there is a social criterion: the mother had, at the most,
received education up to the end
of the school year during which she reached the
age of 18. This definition of the term pupil belonging to target groups is
designed
for a wider group of pupils than those covered by education for new
arrivals.
d) Schools' ability to choose to teach in the person’s own language
and culture (OETC)
258. In primary and secondary education (including
special education), a school may apply for an OETC teacher, following
consultation
with the parents and when the demand is sufficient. The purpose is
to facilitate the integration of immigrants by including a limited
number of
hours devoted to their own language and culture in the syllabus.
259. The
European Community has opened the way to Member States by subsidizing certain
OETC projects. Teachers are recruited and paid
through the embassy or consulate
services.
260. OETC is meant for all immigrant groups: it is proposed de
facto for Italian, Spanish, Greek, Turkish, Moroccan, Aramaic and Hebrew.
Some
50 primary schools and nine secondary schools are involved in this
project.
B. Best interests of the child (art. 3)
1. At the federal level
261. In all decisions concerning
children, their best interests must be a prime consideration. However, it should
be noted that the
concept of best interests of the child is not set forth as
such in our legislation. The Civil Code uses the form “interests
of the
child”, but this difference in terminology has no legal import (see also
above, paras. 221-224).
a) Divorce proceedings
262. The
Act of 30 June 1994 amending Article 931 of the Judicial Code and the provisions
relating to divorce proceedings and the
Act of 20 May 1997 amending the Judicial
Code and the Civil Code as they related to divorce proceedings (Moniteur
belge of 27 June 1997) have considerably reworked these procedures in an
effort at simplification and humanization, and with concern for
effectiveness.
Since these legislative amendments, the principle of best interests of the child
has been explicitly mentioned in
certain divorce
provisions.
i) Divorce by mutual consent
263. From now on,
parties only appear have to twice before the Court of First Instance to announce
their wish for a divorce to the
President of the Court of First Instance or the
judge performing that duty.
264. In advance, the parties must have submitted to the Court a request
containing their agreements on a divorce by mutual consent.
These agreements
must contain the measures concerning minor children with regard to parental
authority, administration of the children’s
property and the right to
personal relationships, and each of the parties’ contribution to the
maintenance, education and proper
training of the children. The Crown Procurator
issues an opinion on the content of the agreements relating to minor children.
When
they first appear before the judge, he may propose that they alter the
measures concerning their minor children, which seem to him
to be contrary to
their interests. He may decide ex officio to hear the children, in accordance
with article 931, paragraphs 3 to
7, of the Judicial Code. The judge may
order the deletion or amendment of provisions contained in the prior agreements,
which are
manifestly contrary to the interests of the minor
children.
265. Provision is made for the revision and modification of the
agreements. When the spouses testify to new and unforeseeable circumstances
in
their situation, the circumstances of one or the other of them or of their
children, they may submit, during the proceedings,
a proposal for amendment of
their initial agreements to the judge. The competent judge may always review
provisions concerning children
(parental authority and maintenance contribution)
after the divorce. If the situation changes after the divorce, the parties are
therefore no longer bound perennially by the content of pre-divorce
agreements.
266. With these legislative modifications, the interests of
the child are taken into account throughout the procedure of divorce by
mutual
consent and even after the pronouncement of the divorce, if the situation were
to change.
267. Even before the reform introduced by the Act of 30 June
1994, the majority case-law had admitted the possibility of a judicial
review of
agreements relating to children when their interests were seriously threatened
but, paradoxically, at the same time as
the case-law enshrined this principle of
review, the Act of 30 June 1994 was more restrictive, subjecting the judicial
review to
the need for new and unforeseeable circumstances which considerably
altered the situation of the children. On the one hand, the concept
of
unforeseeable circumstances is more restrictive and, on the other, a change in
the parents’ situation, such as loss of employment
or increase in the
income of the parent owing maintenance, is not taken into consideration. The law
therefore created discrimination
with regard to the children of parents who had
divorced for a specific reason, children whose situation could be changed in
their
interests alone.
268. The Act of 20 May 1997 subjected the review
of agreements relating to children to the emergence of new circumstances
independent
of the will of the parties and substantially altering their
situation or that of their children. This law also provided that the
judge, in
granting the divorce, recognized the measures relating to minor children. These
measures are now an integral part of the
judgement and are equally binding.
Consequently, when the agreements are privately made, the parties may not appeal
to the courts
for them to be enforced.
269. Authors are divided on the
question as to whether this new provision, aimed at any later amendment of the
agreements relating
to children, must receive the Court’s
approval.
(ii) Divorce for a specific reason
270. The Acts
of 30 June 1994 and 20 May 1997 also amended the procedure of divorce for a
specific reason.
271. It will be noted that it is now possible to have
the judge at the hearing introducing the divorce confirm a total or partial
agreement by the parties concerning the provisional measures relating to the
person and effects of children and their maintenance.
If there is no agreement,
the judge refers the case to be heard by the President deciding the case on
trial in chambers. The President
of the Court (or the judge performing
those functions), deciding in chambers on the provisional measures relating
to the person and effects of the children during the divorce
proceedings, must
take account of the children’s expressed opinions (in the conditions
provided for in Article 931, paragraphs
3-7 of the Judicial Code) and of their
interests.
272. The Juvenile Court, the natural judge of parental
authority and the child-parent relationship, is now competent from the moment
of
the transcription of the divorce judgement (article 387 bis of the Civil
Code).
b) Adoption
273. As the legislation now stands,
adoption must be based on fair motives. The Court required to decide on adoption
must, when it
has assessed the motive, take account of all legitimate interests,
first and foremost the best interests of the child.
274. The bill now
being prepared for ratification of the Hague Convention on Protection of
Children and Co-operation in Respect of
Intercountry Adoption of 29 May 1993
(see below, art. 21) makes explicit reference in a number of provisions to
the best interests
of a child and to the fundamental rights which with children
are endowed in international law. In the wake of the Convention, the
attention
given to the interests of the child is even greater.
c) Parental
authority
275. The Act of 13 April 1995 concerning the joint exercise
of parental authority is entirely based on the interests of the child,
although
they are not explicitly mentioned in the texts.
276. It will be noted,
however, that article 374, paragraph 2, of the Civil Code authorizes the judge
to entrust the exercise of parental
authority exclusively to one of the parents
when he deems that an agreement on certain matters relating to the child
(housing, health,
education, etc.) is contrary to the child’s
interests.
277. It is with those interests in mind that the Juvenile
Court may, at the request of one or other of the parents, or the Crown
Procurator,
order or modify any provision relating to parental authority
(article 387 bis of the Civil Code) and that, in default of agreement
between the parties, he can grant the exercise of that right to the
grandparents, or any other person who can prove a special emotional
link, to
enjoy a personal relationship with the child (article 375 bis of the Civil
Code).
2. In the French Community
278. Each of the
provisions of the code of ethics applicable to the youth-assistance sector
enshrines the principle whereby all persons
must act in the interests of the
beneficiary.
279. Regarding adoption as well, Article 50 of the Decree
concerning Assistance to Youth, which deals with the recognition of adoption
services, establishes that adoption must take place with respect for the
fundamental rights guaranteed in the Convention on the Rights
of the Child. The
Order of 19 July 1991 concerning the recognition of adoption parties, which
enforced this article of the Decree,
was largely inspired by the principles
contained in article 21 of the Convention and in the Hague Convention on
Protection of Children
and Co-operation in Respect of Intercountry Adoption.
Since then, the best interests of the child must be the prime concern of such
bodies and of all recognized services in the youth-assistance sector.
280. In all its regulations, the Births and Children Office (ONE) ensures
respect for the interests of the child, his pace of life,
his safety and
projects’ suitability to his level of development.
281. In the
child-reception sector for which the ONE is competent, application of this
principle calls for particular vigilance. The
preponderance of initiatives and
the diversification of financing sources rely on sometimes contradictory logic
(employment, work
flexibility, child-reception) and should not prejudice the
interests of the child. A special effort needs to be made to ensure the
coordination of the initiatives and the monitoring of the quality of services on
offer, including the age of the children concerned.
282. A draft
amendment of the Decree establishing the Births and Children Office is being
studied. Among other things it will entrust
to the Office the task of defining
quality criteria for receiving children aged 0-12.
3. In the Flemish
Community
283. Reference was made in paragraph 93 of the initial
report to decrees governing special assistance to young people. Article 23,
paragraph 2, as well as other provisions in Chapter IV of these coordinated
decrees, entered into force on 27 September 1994.
284. The establishment
of compulsory drafting of an impact report on the child (see above) is one
significant example of the form
the Flemish Community wishes to give to the
child’s interests at the structural level, including by
decree.
285. On 10 February 1997, the Jolijn line was installed in
the Youth Special Assistance section of the Family and Social Welfare Department
of the Ministry of the Flemish
Community. Jolijn is a telephone line that
allows children and parents interested in special assistance to young people to
obtain information and lodge
complaints. The purpose of this line is to provide,
as part of the special assistance to young people, opportunities for young
people
and parents to participate in the modalities and quality of the
assistance on offer. Hence, the possibility of lodging complaints
is provided
for in an organized framework in which priority is given to the interests of the
child. The initial results show that
it is parents and third parties that most
avail themselves of this opportunity. It is less frequently used by young
people.
286. Thanks to a local offer of some 6,000 quite varied
initiatives for motivating young people, which can be freely implemented,
youth
mobilization in Flanders adopts a proactive approach that works in favour of the
interests of children and young people. This
mobilization takes the form of
various sociocultural initiatives aimed at groups of young people during their
leisure time, organized
with the educational support of special youth
associations or local public authorities (Decree of 9 June 1993 governing the
granting
of subsidies to communal administrations and to the Flemish Community
Commission for implementing a youth-mobilization policy).
C. The right to development (art. 6)
In the Flemish Community
287. The psychological, medical
and social (PMS) centres work in close collaboration with
schools.
288. These centres help parents and children with problems and
give advice. The decision on the measures to be taken is left to the
parents’ or the pupil’s discretion. There is also access to PMS
centres when education problems arise.
289. The centres possess a team of specialists, psychologists, educationists,
psychology assistants, doctors, nurses and social workers.
Also available is
complete documentation on existing studies and training courses in day and
evening courses, scholarships and vocational
skills training. The PMS centres
cooperate with the schools on study support. All these activities are free and
confidential.
290. The centres are accessible every working day of the
year except official holidays, during the Christmas and Easter holidays and
during part of the summer vacation and are open to all interested persons.
Interpreting assistance is available.
291. In the future,
pupil-supervision centres that will include school medical examinations (see
below) will replace these centres.
D. Respect for the views of the child (art. 12)
1. At the federal level
292. Concerning free testimony to
the courts, see above, (Part II.B). The question of the right of asylum is
explained in Part IX.A.1
below.
2. In the French
Community
293. With regard to institutionalization, increasingly
numerous initiatives are emerging to allow children to express themselves not
only about their own situations, but also on group life. Active methods and
institutional practices of meetings set up in certain
private housing
institutions have been emulated in other institutions.
294. The overall
regulations for public institutions for the protection of young persons (IPPJ)
guarantees that the young person entrusted
to them plays an active part in the
relevant programme; he is also invited to meetings called to draw up written
reports concerning
him, so that he can be heard and informed on the subject of
these reports.
295. The Code of Ethics applicable to the youth-assistance
sector ensures that the beneficiary completely understands the need, nature
and
purpose of the assistance and its consequences and that he can then exercise his
rights. Proposals and decisions concerning that
assistance must be formulated in
a comprehensible and legible language.
3. In the Flemish
Community
296. The Flemish Decrees of 15 July 1997 referred to in
Part I, concerning respectively the Commission on the Rights of the Child
and
the impact report on the child and monitoring government policy on respect of
children’s rights, is designed to ensure
that adequate importance is
assigned to the views of the child, within the sphere of the Flemish
authorities’ competence.
297. The Flemish Parliament recently
adopted a Decree aimed at integrating psychosocial and medical centres and teams
responsible
for school medical examinations into some 100 pupil-supervision
centres. Each centre is required to respond to any supervision request
from a
parent or child, on condition that the latter is attending a school supervised
by the centre, and that the request falls with
the supervision offer that the
centre must propose under the Decree. A school may not request a centre to
supervise a pupil unless
there is parental consent if the pupil is under 14. The
pupil personally consents if he or she is 14 or more. The Decree also provides
for parents or a pupil over 14 to refuse to allow a doctor of the centre to
carry out a general or specific examination.
298. A structural mode of participation was prepared, both for Community
education and subsidized education. While local boards were
established for
community education, the Medenzeggenschap (Participation) Decree
institutionalized the participation boards in subsidized education. The
membership of these participation
structures is relatively similar: principals
of schools or representatives of the constituent authority, teachers’ and
staff
representatives, representatives of parents and pupils and representatives
of local, social, economic and cultural groups.
299. Compared with the
1988 ARGO Decree, the new Special Decree of 14 July 1998 on community education
provides for wider pupil involvement
in secondary education, while leaving the
school board to bear all the responsibility. Under article 10 of the Decree, the
school
board determines the manner in which pupils may participate in its
functioning; to that end, it may establish a council of student
delegates.
300. In subsidized education, pupils form a particular
category of participants. They may be heard on questions concerning them, and
the school is required to submit any amendment of the school regulations for the
parents’ signature.
301. However, it must be admitted that the
minor pupil enjoys only an accessory role under the domestic recourse procedures
for discipline
and evaluation in education. However, it is to be hoped that in
the case-law of the Council of State there are indications that do
not totally
exclude interruption of procedural incapacity. It might deduced, in effect, from
this case-law that the independent procedural
capacity of the minor is admitted
as part of a personal right granted in accordance with the law to the concerned
minor, as long
as he has attained the age where he can be assumed to possess
sufficient discernment to exercise this right and provided that his
legal
representatives do not wish to or cannot intervene or that there is a potential
conflict of interests with them.
302. On the other hand, a project of the
King Baudouin Foundation concerning pupil participation, entitled Jouw school
is onze school. Naar een leerlingbetrokken school (Your school is our
school, towards a school of concerned pupils) is being implemented in education.
For the last five years, the
King Baudouin Foundation, in collaboration with the
Department of Education and education networks, has been proposing to secondary
schools an offer relating to pupils’ participation in school. This offer
is directly aimed at pupils, whether they are members
or not of the
pupils’ council and to supporters interested in pupil participation. Four
hundred secondary schools have already,
in one way or another, given their
support. The purpose of the project is to establish whether it is desirable to
implement on a
permanent basis an initiative on the pupil participation
plan.
303. Respect for the opinion of children means for the Centrum
voor Bevolkings – en Gezinsstudies (Centre for Population and Family
Studies) that with the assistance of appropriate research methods they can be
associated in an adult
manner with the study that concerns them. The study
conducted by the centre has shown the credibility of children when they speak
about themselves and their life situations.
4. In the German-language
Community
304. In the field of youth voluntary assistance, the Decree
of 20 March 1995 stipulates that no individual assistance measure can
be decided
unless the people concerned have first been heard, unless it is not possible
because of the person’s age, state
of health or in case of extreme
emergency. Any person who is heard may be accompanied by a person of his or her
choice. In the interests
of the young person, separate interviews may be
held.
305. At the same time, a new decree on educational reform is being
prepared. This draft Decree provides for a structure for the participation
of
pupils from secondary education.
V. CIVIL RIGHTS AND FREEDOMS
A. Name and nationality (art. 7)
306. In Belgian law, the name of a person stems from filiation; when
there is a marriage, paternal filiation stems from the presumption
established
in article 315 of the Civil Code.
307. If paternal and maternal
filiations are established simultaneously, the child bears the name of its
father. If they are established
successively, the child bears the name of its
mother, but the parents may together declare to the registrar of births that the
child
will bear the father’s name. However, article 335, paragraph 3,
subparagraph 2, of the Civil Code confers on the spouse of
an adulterous father
the right to refuse the latter’s transmission of his name to adulterine
children through a declaration
to the registrar of births and deaths. By an
Order of 19 May 1993 (Moniteur belge of 9 June 1993), the Court of
Arbitration considered that this provision made a distinction between adulterine
children a patre and the other children whose maternal filiation was
established prior to the paternal filiation. The Court pointed out that the
change
of name was no more than an effect of filiation and that in order for it
to be established, the legislator had intended to accord
priority to the
child’s fundamental right to respect for its family life vis-à-vis
the interests of the conjugal family.
The Court implicitly deemed that the
effects of filiation must be appreciated in the light of this fundamental right
of the child.
308. In the matter of full adoption, the rules concerning
the patronymic are similar; on the other hand, in the event of simple adoption,
Belgian law offers several possibilities. For example, the adopted child may
choose to take the name of the adoptive parent, keep
its own name or keep its
own name followed by the name of the adoptive parent. A bill concerning reform
of the procedure governing
adoption is currently being studied. It contains
innovations regarding the patronymic, in that it provides for a fourth
possibility:
the adopted child may choose to take the name of the adoptive
parent, followed by its own name.
B. Freedom of expression (art. 13)
1. In the French Community
309. A decision of the
Government of the French Community of 24 August 1997 established, on the
proposal of the Minister for Culture,
the French-speaking Youth Council which is
a key advisory organ providing young people with the assurance that they will be
heard
by the Government and public opinion on all problems which they consider
to concern them and whenever decisions concerning young
people are
taken.
310. This Council also has the responsibility to liaise among all
the recognized youth organizations, local councils and public
authorities.
311. On the other hand, the French Community subsidizes
youth organizations that contribute to the development, among young people,
of
their personal responsibilities and skills, with a view to helping them become
active and critical responsible citizens (CRAC)
within society. These
organizations must devise and carry out their activities with respect for
democratic values and rules and the
principles enshrined in the Universal
Declaration of Human Rights.
312. The Youth Section of the Department of
Culture also develops programmes and operations encouraging young people to
express themselves.
One such example operation is Forum J, which allows young
people, whether organized or not, to express their opinions on any subject
that
touches them.
2. In the Flemish Community
313. In the Decree of 9 June 1993
governing the granting of subsidies to communal administrations and to the
Flemish Community Commission
for implementing a local policy on youth
mobilization, it was intended that children and young people should be involved
in the planning
of such local policy, which must be based on their needs and
requirements. In this context, the difficulty lies in the quest for
good
participation and forms of involvement of the different groups of children and
young people, given the limited resources, in
an effective implementation of
aims and priorities (possibly in various phases). In recent years this
participation emerged on three
occasions with varying degrees of success.
Fortunately, the Minister did not follow up the communal authorities’
suggestion
to abolish it.
314. Increasingly, children are becoming
personally involved in the projects carried out by assistants implementing the
Decrees concerning
special assistance to young people. Children’s
participation is increasing in prevention projects. Thus, the Brussels committee
for special assistance to young people is conducting an experimental study among
children in large towns. The Halle-Vilvorde committee
organized a day for young
people aged 12-15 during which they could express themselves in words, dance,
painting or sound. Older
participants were invited to attend.
315. During
1998, a campaign was launched (pamphlets, brochures, work files, televised spots
and exercise material for children based
on the programme) on the initiative of
the Minister responsible for Children’s Rights and the Family and Social
Welfare Department.
Its purpose was to attract attention to children’s
right to participate and become involved. It was supervised by a committee
of
experts composed of representatives of Algemeen Welzijnswerk (General
Social Assistance), of the Youth Special Assistance, youth support, Child and
Family, Volksontwikkeling (Popular development) and the Rights of the
Child contact point of the Family and Social Welfare Department. The campaign
was conducted
in close collaboration with the Kind en Samenleving (Child
and Society) Study Centre.
3. In the German-language
Community
316. The German-language Youth Council is composed of
delegates from the various centres, organizations and political parties for
young people in the German-language Community.
317. Its aims are to
define the interests of all young people in the Community, promote all
activities likely to guarantee the participation
of young people in decisions or
measures concerning them and to coordinate youth work in the
Community.
318. In order to realize its objectives, the Youth
Council:
– takes an interest in young people’s problems, reactions, needs
and expectations;
– takes a stance regarding these questions
through reports;
– takes measures to study and resolve youth
problems;
– collaborates with the French- and Dutch-speaking Youth
Councils;
– facilitates inter-Community and international contacts among young
people, for instance by proposing exchange programmes;
– affords
contacts and exchanges among the various youth organizations;
– organizes training courses and events that are open to all young
people, for instance the Youth Day;
– pursues an active information policy via information centres, the
youth broadcast Contra-Re and the monthly Einblick;
– allows young people to express their views in these
publications.
C. Access to information (art. 17)
1. In the French Community
319. Regarding assistance to
young people, it should be pointed out that the code of ethics applicable to
this sector specifies that
the beneficiary has the right to be fully informed
about the material, medical and psycho-social assistance
available.
320. The Decree of 16 March 1998 on assistance to ill-treated
children requires schools, public-interest organizations, institutions
(including the Belgian radio and television company of the French Community) and
the associations subsidized or recognized by the
French Community to disseminate
information for children concerning the child helpline services and the bodies
competent to deal
with ill-treatment. These bodies are the youth assistance
counsellors, the SOS Children teams, the psychological-medical-social (PMS)
centres and the School Medical Inspectorate centres.
2. In the Flemish
Community
321. In Flanders, children and young people have access to
information via the Jongeren Informatiepunten (Youth Information
Points) created in connection with youth mobilization.
322. There are
also several specific publications for children and young people.
Youth-mobilization publications include: De Jongerengids (Young
People’s Guide), Loslopend Wild (Compilation of measures and
regulations relating to safe, environment-friendly camping), a publication
issued in 1996 in collaboration
with the King Baudouin Foundation and the
Algemene Dienst voor Jeugdtoerisme (General youth tourism service) and
the Repertorium Kampeercentra (List of youth campsites and hostels
that conform to the most basic standards of hygiene, published in
1996).
323. With regard to education, during the 1997-1998 school year,
the Flemish Community began monthly publications of Klasse voor Ouders
and Klasse voor Jongeren (Class for parents and Class for children).
The articles deal with education as well as social problems and current news. A
central
topic is developed each month, for instance drugs, leisure or study
choices. It is prepared in a manner that is easy for children
and parents to
understand.
324. The Flemish authorities also encourage children to
read:
– free access to libraries for children under 14;
– 75% of the 2,200 lectures given by children’s authors, at an
annual cost of 11 million Belgian francs, are given in
schools at the various
levels of education: nursery, primary and secondary. It has had a considerable
impact; in Europe, Flemish
literature for children and young people is very
widely sold and loaned, and the content and translation are of very high
quality.
They are easily accessible since no contribution is required.
325. The Flemish Community also encourages the use of information and
communication technology (ICT) in education:
a) During the 1997-1998
school year, 175 Flemish schools were the targets of a Flemish Government
project to promote the Internet
among teachers as a channel of communication and
a means of obtaining educational information;
b) During the 1997-1998
school year, the Rivieren project, an ICT project for environmental
education at the third stage of primary education, organized workshops for
teachers. The
project was implemented in collaboration with the Vlaamse Radio
en Televisie (Flemish Radio and Television) and the King Baudouin
Foundation; the Department of Education closely follows developments in the
fields of information and communication technologies and the policy conducted in
that regard in other European countries (European
Schoolnet, Netd@ays 98 of the
European Commission);
c) The Department of Education is also active in
the field of educational software: Dutch-Flemish program matrix (in
collaboration
with the Netherlands, educational software databank for primary
education); project designed to provide additional support to a number
of pilot
schools using educational software in their general work for children who are
behind or are having learning difficulties
(beginning in the 1998-1999 school
year);
d) Multimedia equipment: on 2 June 1998, the Flemish Government
approved the PC/KD programme. The purpose of this programme is to
provide by
2002 for the last three years of primary education and the throughout secondary
education multimedia PCs at the rate of
one computer per 10 pupils (intermediate
objective: 1 PC for 15 pupils by 2000);
e) Study of the existence and
use of information and communication technologies in primary and secondary
schools, commissioned from
the University of Ghent;
f) Initiatives of
third parties: Digikids project, an initiative designed to familiarize
young people and teachers with ICT through Internet training, software and free
connections
(in collaboration with the private sector and the media) and
Initiatief PC (PC Initiative), the purpose of which is to recycle the
private sector’s obsolete PCs (a Flemish employers’
initiative).
326. Radio and television must certainly not be ignored in
the framework of the right to information. The Vlaamse Radio en Televisie
(Flemish Radio and Television) is one of the first channels to have signed, on
26 September 1995, the Children’s Television
Charter. Under this Charter,
children’s programmes must not only be amusing, but must also afford them
maximum physical, mental
and social development.
327. The Flemish
Community implements a dual policy in the area of audio-visual
material.
328. First and foremost, protection measures are established.
Specifically, radio and television companies may not broadcast programmes
capable of seriously harming the physical, mental or moral development of
minors, especially programmes containing scenes of pornography
or wanton
violence. This provision applies unless broadcasting times are chosen or
technical measures are taken so as to ensure that
minors normally do not watch
or listen to such programmes, which, if not encoded, must be preceded by a
spoken warning. These measures
are actually a translation of the provisions of a
European directive, Television without Borders.
329. In addition to the
provisions on programme content, media regulations also provide protection of
minors in advertising, tele-sales
and sponsorship announcements. Specifically,
no advertisement may be broadcast in close proximity to children’s
programmes,
in other words five minutes before and after them.
The age limit is set at 12 years in the definition of children’s
programmes. The Flemish regulation is stricter than the European
directive,
which provides that only children’s programmes of under 30 minutes’
duration may not be interrupted by advertisements.
330. The Vlaams
Commissariaat voor de Media (Flemish Media Commission) was created by Decree
of 17 December 1997 in order to monitor enforcement of these
measures.
331. The Flemish policy also comprises positive stimuli, in
addition to protection and prohibition.
332. In its management contract
with the Flemish Community, the Vlaamse Radio en Televisie (Flemish Radio
and Television) was entrusted with the task of providing high-quality
programmes, especially for children and young
people. On 1 December 1997, it
launched a new production, KETNET, which includes the youth information
programme Studio K. KETNET
is a production by and for young people, broadcasting
34 hours of programmes per week for children and teenagers. These broadcasts
are
voluntarily exempt from any publicity or sponsorship.
333. In 1998, the
Flemish Community also established a prize for the best programme for young
people and the Fonds Film in Vlaanderen (Films in Flanders Fund)
subsidizes productions for children.
D. Freedom of thought, conscience and religion (art. 14)
1. In the French Community
334. In the French Community,
this principle is mentioned in both the code of ethics applicable to the entire
youth assistance sector
and the general regulations on public youth-protection
institutions. The latter provide that the young person is not only authorized
to
perform rites connected with his beliefs and the religion of his choice, but
that the institution is also required to facilitate
the performance of these
rites, particularly with regard to diet and observance of fasting
times.
2. In the Flemish Community
335. Freedom of thought,
conscience and religion is guaranteed by various declarations of
non-discrimination. There is also a broad
array of initiatives in the different
social-assistance sectors flowing from existing ideological and philosophical
currents.
336. Paragraph 143 of the initial report made reference, in the
framework of special assistance to young people, to a Flemish Government
Order
of 22 May 1991. That Order was replaced by an Order of 13 July 1994, under
which minors must be able to continue their moral
education and practise their
religion where appropriate, in accordance with its precepts and requirements
(article 11, D.4).
337. The non-discrimination measures and
initiatives discussed in Part III (I) also guarantee the freedoms enshrined in
article 14
of the Convention. In that regard, it should be pointed out that
information on the minor’s ideological, philosophical or religious
convictions are often provided by the holder of parental authority, with the
result that sufficient discernment is not always exercised
in considering the
convictions of the minor himself.
3. In the German-language Community
338. The Decree concerning
assistance to young people of 20 March 1995 stipulates that any person
contributing to the implementation
of this Decree shall be required to respect
the religious, philosophical and political convictions of the minor and the
rights he
or she is recognized to have.
E. Freedom of association and of peaceful assembly (art. 15)
1. In the French Community
339. When young people decide to
form into a group in order to organize a cultural or sports activity, they may
receive subsidies
from the public authorities. Article 2, paragraph 1, of the
Decree of 20 June 1980 establishes: “Organization of young people
as
understood in the present Decree refers to a voluntary association of physical
or moral persons”.
2. In the Flemish
Community
340. Youth mobilization guarantees this freedom. It is
defined as “sociocultural initiatives for youth groups, during their
leisure, organized or with educational supervision by particular youth
associations or municipal authorities”.
F. Protection of privacy (art. 16)
1. In the French Community
341. In the French Community,
the principle of respect for professional secrecy to which practitioners are
held, is explicitly referred
to in the code of ethics applicable to the
youth-assistance sector.
342. Such respect must be interpreted as a
contractual obligation to the beneficiary and guarantees the trust that he must
be able
to find among practitioners and services. Disclosure of information
among persons held to secrecy is authorized within the necessary
limits of the
care provided.
343. As regards the general regulation of public
institutions for the protection of young people, it guarantees secrecy of
correspondence
despite the fact that these institutions house only young
offenders. Monitoring measures must be taken, in the presence of the young
person, with regard to packages containing more than letters.
344. As the
point of reference for child policy, ONE aims to give children visibility. As
part of its medical and social prevention
activities (including the fight
against ill-treatment) and the reception of young children, it has decided to
collect a large amount
of data for evaluating the impact of its action. The
compilation of these anonymous data is carried out in conformity with
established
privacy rules (Act of 8 December 1992: declaration of files,
file controller, information given to the public concerned). Measures
are also
taken to ensure that the child’s booklet and that of the future mother
remain the property of the parents and remain
confidential.
2. In the
Flemish Community
345. Decrees relating to quality, applicable in the
welfare and health sector in the Flemish Community, guarantee respect for
privacy
through the intervention of the aid and assistance
services.
3. In the German-language Community
346. The
Decree of 20 March 1995 concerning assistance to young people stipulates that,
in the context of assistance to young people,
all persons contributing to its
implementation of is obliged to treat confidentially any information entrusted
them in the performance
of, or relating to their duties.
G. The right not to be subjected to torture or other
cruel, inhuman
or degrading treatment or punishment (art.
37(a))
1. At the federal level
347. Minors under 16 at the time of
the events may not be imprisoned. The only exception to this principle is
article 53 of the Act
of 8 April 1965 which provides for temporary placement in
a detention centre for a maximum of 15 days. The repeal of that article
53 has
already been envisaged in an article 53 bis voted by Parliament, which,
however, has not yet fixed the date on which it should
come into
force.
348. For minors aged 16-18, the juvenile judge may relinquish the
file and refer the youngster to the public prosecutor, who may decide
to refer
the case to the adult jurisdiction if he deems that the educational measures
available are inadequate.
349. The death penalty was abolished in Belgium
by the Act of 10 July 1996 and was replaced by either rigorous imprisonment for
life
or ordinary imprisonment for life. This abolition concerned adults only,
however, because article 77 of the Criminal Code (abrogated
by the Act of
10 July 1996) had earlier established for minors a legal ground for
mitigation, which meant that they could not be
sentenced to
death.
350. Furthermore, the report of the National Commission for the
Reform of Youth-Welfare Legislation (the Cornelis Commission), submitted
before
the abolition of the death penalty, proposed the introduction of a general
ground for mitigation for minors, expanding that
continued in article 77 of the
Criminal Code. On the initiative of the Ministry of Justice, a working group was
set up to prepare
a preliminary draft law to reform the Protection of Young
Persons Act. If this draft were to opt for maintaining the possibility
of
relinquishment, the situation of a minor subjected to such a measure would, in
any event, be reconsidered so that any penalty
to which he or she may be
sentenced in the context of the relinquishment takes account of his or her
special status as a minor.
2. In the Flemish
Community
351. The Executive Decree of 13 July 1994 concerning
measures relating to special assistance to young people provides that any
penalty
imposed on a minor must take personality factors into account and that
no order can be given to inflict corporal punishment or withhold
meals (see
paragraph 159 of the initial report).
352. In institutions providing
special assistance to young persons in the Flemish Community, a minor may be
placed in solitary confinement
only if absolutely necessary and for a maximum of
five days. A minor in solitary confinement is placed under the direct charge of
an educator. A special, reasoned authorization of the management is required for
any prolongation of the period of isolation.
VI. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Parental guidance (art. 5)
1. At the federal level
353. Article 203 of the Civil Code
was amended by the Act of 13 April 1995 concerning the joint exercise of
parental authority (Moniteur belge of 24 May 1995). Under the new
provision, “fathers and mothers are bound, to the best of their ability,
to house, raise, monitor,
educate and train their children”. If the
training is not completed, the obligation continues after the child’s
majority.
354. The new provision governs an effect of biological or
adoptive filiation and applies to all parents. It contains two new duties:
to
the duty to support, educate and train their children is added the duty to house
and monitor them. It has replaced the early criterion
of adequate training with
a quantitative criterion of proportionality. This criterion formerly applied
only to divorced parents (Civil
Code, art. 303, abrogated).
2. In the
French Community
355. Parents are the natural educators of their
children, and the various medical and social prevention services open to them
must
serve to enhance parental competence. Home visits by medical/social workers
and individual or collective health education meetings
facilitate the
establishment of optimal conditions for strengthening parental competence.
Reception services are deemed complementary
to the family
environment.
356. Various services are on offer in situations of family
crisis. A reform of the crisis-reception sector (maternal homes, reception
centres, day nurseries) is under study and is based on the following
principles:
a) Subsidies must not lead to an extension of the stay of
children or mothers beyond real needs;
b) Supervision and qualification
standards must be spelled out (professionalization);
c) The quality of
education must be appropriate to the child’s needs and be regularly
assessed;
d) Partnership with other childcare services must be promoted
with a view to limiting the length of the stay;
e) No child must be
placed in, or withdrawn from, a family because of poverty (cf. Report of the
King Baudouin Foundation on poverty)
and boarding facilities in sufficient
numbers must be provided.
357. In a guideline note on reform of the
youth-assistance sector dated 20 December 1996, the minister responsible for
this issue
outlined her intended policy for reviewing the standards for
recognition of the private services normally available to young people.
Starting
from the principle that the interests of the child required that he should be
brought up in the family as a matter of priority,
this policy aims, above all,
to diversify modes of admission to care, so as to afford support to parents and
encourage young people
in difficulty to remain in their family environment, as
stipulated in the Decree of 4 March 1991 and the Convention on the Rights
of the
Child.
358. A general report on poverty conducted in 1994 by the King
Baudouin Foundation at the request of the Minister for Social Integration
showed
that, despite declarations of intent formulated in recent texts inspired by the
Convention, children were often still separated
from their families on purely
material grounds.
359. The French Community must therefore find the means
to implement the options selected by conducting an in-depth reform of recognized
private services taking charge of children in difficulty. To do so, it must,
inter alia, substantially change not only the criteria
for recognition of these
services, but also the way in which they are subsidized, which remains,
generally speaking, favourable to
institutionalization, although it may include
attempts at family reintegration under the guidance of the shelter institution.
In
this regard, the review of the Order of 7 December 1987 cited in paragraph 92
of the initial report is about to be finalized; it
is the realization of the
will expressed by the parent Minister to see the above-mentioned reform
implemented.
3. In the Flemish Community
360. As a
complement to what was stated in paragraph 163 of the initial report about the
possibility of counselling in the home in
the framework of the special
assistance to young persons, the Order of 13 July 1994 provides for one
guidance session per week on
average, in principle in the family to which the
minor belongs.
361. Parents may also put questions to Kind en
Gezin (Child and Family) and regional nurses working in teams throughout
Flanders are available to them. In each region, there is a house
that is open
daily and where parents may ask questions concerning food, care, education,
certain medical problems, etc. The nurses
may visit the parents of young
children in their homes, and parents may go at regular intervals to the
Consultatiebureau voor het
Jonge Kind (Children’s Consultation Office),
where they will be helped by nurses and doctors (see Chapter
IV.C).
362. On 15 September 1998, Child and Family and Vlaams Fonds
voor Sociale Integratie van Personen met een Handicap (Flemish Fund for
Social Integration of the Disabled) signed a protocol of cooperation on measures
and the distribution of tasks
relating to counselling for mentally disabled
parents of young children. The protocol is intended for persons cared for by the
Begeleid Wonen (Supervised Housing Services), namely the slightly
mentally handicapped and their children (who are monitored by Child and Family).
It should help to promote better coordination in the functioning of the various
services. The objective is to ensure that the children
of mentally handicapped
parents who receive guidance form a Begeleid Wonen service can, as far as
possible, live with their own families and be monitored for rapid detection of
any potential developmental
problems and to encourage the families to become
more actively involved in their children’s education.
363. The
mission of the Gezin en Welzijnsraad (Family and Welfare Council),
established on 6 April 1998, is to ensure follow-up of family and welfare
policy and its developments,
to identify society’s family and welfare
needs, to assess the measures provided in that sphere and make proposals. The
Commissie Gezinsbeleid (Family Policy Commission) created in the
framework of the Family and Welfare Council provides counselling for families in
all relevant
policy sectors. It focuses on the effects of family policy and is
mainly intersectoral. Moreover, this Commission also advises on
family policy as
such.
4. In the German-language Community
364. The Service
of Assistance to Young People studies all requests it receives. Under the Decree
of 20 March 1995, it is bound, on
any request for assistance, to support and
counsel the young person and other interested persons and inform them of their
rights
and duties. Should the need arise, it steers the parties concerned
towards the appropriate services for consultation, counselling,
support, therapy
or guidance.
365. The Dienst für Kind und Familie (Service for Children and
the Family) offers its assistance to all families, from the birth of the child
up to the age of 3. For
some years it has been assigning priority to
disadvantaged families or families at risk (families in which there is a risk of
neglect
or ill-treatment).
B. Joint obligation of both parents to raise their children (art. 18, paras. 1 and 2)
1. At the federal level
366. Joint exercise of parental
authority. The Act of 13 April 1995 on the joint exercise of parental authority
introduced in Belgium
the legal principle of joint exercise of parental
authority by both parents. This means that, as long as the exercise of parental
authority is not organized according to different modalities by an agreement
concluded between the mother and father or by a court
ruling, the parents,
whether or not they are married, separated, exercise jointly – that is to
say, both parents (or even one
equally with the other) – the various
prerogatives of parental authority. The father and mother both enjoy custody of
the child
and, if they are separated, share that custody. Custody is no longer
divided into a right of custody and visiting rights (or, according
to the new
terminology, a right to personal relations). Each parent also shares the right
to raise the child and, if they are separated,
plays his or her part in
important educational decisions concerning the child. If, by an agreement
concluded between the parents
or by a court ruling, the exercise of parental
authority is regulated differently, authority over the child can be divided, so
that
one parent has the right of custody and education, while the other
continues to enjoy the right to a personal relationship and monitoring.
The
right to a personal relationship can be withdrawn only on very serious
grounds.
367. When a father and mother jointly exercise authority over
their child’s person, they administer his property and represent
him
together. Otherwise, as a general rule, the person exercising that authority
over the child has the sole right to administer
the child’s property and
represent him, while the other maintains the right to monitor the
administration.
368. Lastly, fathers and mothers responsible for
administering their children’s property are accountable for that property
or
the enjoyment of that property, it being understood that they have enjoyment
until the children’s majority or emancipation.
369. In this regard
as in others, the child’s interests is paramount in any decision or
measure concerning him or her. The Act
of 13 April 1995 grants the juvenile
court the ability to order or amend, in the child’s interests, at the
request of the father
and mother, or either of them, or of the Crown Procurator,
any provision relating to parental authority, without prejudice to the
competence of the interim relief judge in a case of divorce on specific
grounds.
2. In the French Community
370. As for the sector
of assistance to young persons, it must be added to what was stated in the
initial report that the youth-assistance
counsellor may only intervene with the
parents’ consent. Even when the assistance provided for in the Decree of 4
March 1991
on Assistance to Young Persons is imposed, the parents are associated
with the decision via the director of assistance to young people.
In all cases,
assistance measures must, first and foremost, aim at supporting the parents in
the exercise of their parental responsibilities,
rather than at relieving them
of those responsibilities by institutionalizing the child.
371. When the
child’s removal from the family environment is necessary in his own
interests, youth-assistance counsellors and
directors ensure, as far as
possible, that the removal does not sever their ties and that the parents
continue to enjoy the social
advantages accessible to all families to help them
exercise their responsibilities.
3. In the Flemish
Community
372. With regard to paragraph 180 of the initial report,
Child and Family, particularly the unit responsible for preventive health-care
for children, is not active in rural areas alone. In towns, the institution
specializes in urban issues. Regarding paragraph 182
of the initial report, it
must be noted that the Centra voor Kinderzorg en Gezinsondersteuning
(Childcare and Family Support Centres) and the Diensten voor Private
Gezinsplaatsing (Placement in Private Families) have replaced crèches
and reception centres. See annex for statistical data on the Childcare
and
Family Support Centres.
373. Child and Family recognizes and subsidizes
the reception of, and assistance to, families in crisis. The aim of this service
is
to help them over a limited period. The care is both ambulatory and
residential, but the aim is to give priority as far as possible
to ambulatory
family assistance.
374. The Centra voor Integrale Gezinszorg
(Centres for Integral Family Care) provide ambulatory, out-patient, residential
or semi-residential support for parents and children
and future parents. This
reception and support is designed to prevent the break-up of the family unit,
increase the ability of the
family members to bear burdens, the
relationship-forming abilities, emancipation and social integration (see para.
183 of the initial
report).
375. Family problems requiring prolonged
monitoring are dealt with more substantially as part of the special assistance
to young persons
(see para. 189 of the initial report).
C. Separation from parents (art. 9)
1. At the federal level
a) Separation from parents and the right to a personal relationship with
grandparents, or any other person who can prove a special
emotional
link
376. Reference must also be made to developments regarding
article 3 on divorce.
377. Article 374, paragraph 4, of the Civil Code,
included by the Act of 13 April 1995, enshrines the right of a parent who does
not
exercise parental authority to maintain a personal relationship with the
child. This personal relationship may not be refused except
for very serious
reasons. A parent not exercising parental authority maintains the right to
oversee the child’s education.
He or she may obtain, from the other parent
or a third party, any information useful in that regard and may appeal to the
juvenile
court in the interests of the child.
378. The Act of 13 April
1995 amended article 302 of the Civil Code, which provided that following the
dissolution of the marriage,
in the absence of an agreement between the parties
recognized by the court or in the absence of an order of the President, deciding
the case in chambers, on the administration of children’s persons and
property, the administration falls to the one who obtained
the divorce on
special grounds (“blame”). As to divorce following a five-year
separation, the judge decides, even ex
officio, which of the two spouses would
secure that administration.
379. Henceforth, after dissolution of a
marriage by divorce, authority over the child’s person and the
administration of his
or her property are exercised jointly by the father and
mother or by the one to whom they were entrusted by decision of the judge
in
chambers, or the agreement of the parties at the preliminary hearing and
approved by the judge, without prejudice to article 387
bis, included in
the Belgian Civil Code by the Act of 13 April 1995.
380. Article 387 bis confirms, by and large, the juvenile court’s
competence in actions relating to parental authority. From
now on, this Court
may, at the request of both parents, of one or other of them, or of the Crown
Procurator, order or amend any provision
concerning parental authority. However,
this regime is not prejudicial to the competence of the justice of the peace in
regard to
urgent and provisional measures during the marriage (article 223 of
the Civil Code), or of the President of the Court of First Instance
with regard
to provisional measures ordered by him during the divorce
proceedings.
381. The Act of 13 April 1995 introduced an article
375 bis into the Civil Code. This provision explicitly grants grandparents,
or
any third party that can prove a special emotional link to the child, the
right to maintain a personal relationship with the child.
In default of any
agreement between the parties, the exercise of this right is regulated in the
interests of the child by the juvenile
court at the request of the parties or of
the Crown Procurator.
b) Foreign children
382. Regarding a
child who comes to stay in Belgium with one or other of his parents or a third
person, the Aliens Office verifies
the willingness of the parents or the other
parent by requiring a document establishing guardianship of the child, or a
document
in which the parent or parents consent to the child’s arrival in
Belgium. If such consent cannot be obtained because the parent
concerned has
disappeared, the decision is taken in the best interests of the
child.
383. When one of the parents is, exceptionally, kept pending
repatriation in a closed centre for asylum-seekers whose applications
have been
refused or for illegal aliens, the child is informed, at his or her request, of
the centre’s location and visiting
hours.
384. However, if the
child himself has no right to stay in Belgium, the person accompanying him will
be issued with an order to return
him to his country, and measures will be taken
to ensure that he is repatriated at the same time as his parent or
parents.
385. Regarding unaccompanied minors under 16 not seeking asylum,
the juvenile court is contacted. In Brussels, if no person to whom
the child is
verifiably related comes to find him, the judge decides to place the child in a
specialized institution. For their part,
the Communities have established a
special procedure by decree. In parallel, intensive searches are conducted in
the child’s
country of origin to find his parents or a specialized
institution that can take the child in. If this search is successful, the
child
returns home accompanied.
2. In the French
Community
386. The French Community is, in principle, competent to
assist unaccompanied minors under 16. For the French Community, assistance
to
these young people must be subsidiary. The young people concerned must have
access to specialized social assistance, in accordance
with the Decree of 1991
on assistance to young persons. This Decree is still not in force in the
Brussels-Capital region, on which
territory the young people concerned are
mostly to be found. Community decrees relating to assistance to young people, in
default
of an Order of the joint Community Commission, are not applicable in
this region, which explains why the judicial authorities take
charge of these
situations.
387. Concerning in particular article 9, paragraph 3, of the
Convention, which aims at respect for the right of the child who is separate
from one or both parents to maintain personal relationships and direct contact
with both parents on a regular basis, except if it
is contrary to the
child’s best interests, the French Community more specifically studied the
question of maintaining personal
relations between children and
an imprisoned parent, especially on the basis of the conclusions of a working
group set up to discuss the matter by the Delegate-General
for Children’s
Rights and the Births and Children Office.
388. This issue concerns both
the question of reception of infants housed with their imprisoned mothers and
that of the maintenance
of contacts between a child and his or her imprisoned
parent or parents. Various proposals were made.
389. Concerning the
reception of infants with their imprisoned mother, priority recourse to
alternatives to detention should be encouraged.
In any event, if the infant must
be housed with his imprisoned mother, certain penitentiary institutions must be
equipped so as to
foster the infant’s development and to guarantee his
security.
390. In particular, an assistance programme established on an
experimental basis in 1996 by the youth assistance counsellor in Liège,
in partnership with the prison and the Births and Children Office, made it
possible to hire, from the youth assistance budget, a
nursery nurse in the
Lantin prison to help imprisoned mothers look after their children under three
who stay with them, as well as
paying nursery fees for those children outside
the prison and their transport costs. Consultations were organized by the ONE in
collaboration
with the administration of the penitentiary institutions in the
Lantin and St Gilles prisons.
391. Moreover, an association entitled
Relais Enfant-Parent (Child-Parent Link) supported by the Houtman Fund is
working on improving
children’s visiting conditions. Regarding the
appointment of buildings to allow children to visit an imprisoned parent, an
initiative of the King Baudouin Foundation, in collaboration with the Prisons
Administration, supports projects in 12 prisons throughout
Belgium.
392. As for the general prison regulations, the right of the
child to maintain contact with his or her imprisoned parent must be more
specifically recognized. Hence, when the children of imprisoned parents are
older and are placed in the charge of the youth assistance
services, the latter
must ensure, unless instructed otherwise, that these children may visit their
parents in prison. A training
module for warders and wardresses is under study
by the Prisons Administration and the Births and Children
Office.
3. In the Flemish Community
393. In the context of
special assistance to young people, positive trends are emerging for the period
under consideration for this
report: a large tendency towards voluntary
assistance, increased ambulatory assistance, reduction of the duration of
placement and
more rapid passage (statistics attached).
394. In closed
community establishments of special assistance to young people, the visiting
rights of parents and persons of trust
have been increased from once per weekend
to two to three visits per week. Regarding the plan for organizing reception of
parents
and relatives in closed community establishments, greater attention is
assigned to people: equipment of a children’s corner,
a survey among 30
minors and their families with a view to improving the reception, a welcome
brochure, etc.
395. On the matter of divorce, the Centra Algemeen
Welzijnswerk (General Social Assistance Centres) intervene in the interests
of the child. Child and Family can also help parents through nurses
in the event
of divorce; it considers whether projects concerning visiting space could be
subsidized in this framework.
4. In the German-language
Community
396. The Decree concerning Assistance to Young People of 20
March 1995 stipulates that in youth protection measures, both at the level
of
assistance to young people and that of the juvenile court, to keep a
young person in his normal family environment must be the aim of any measure,
except when this would not be in the best interest of
the
child.
397. Likewise, the person or institution harbouring a child must
maintain and encourage contacts with the family of origin, except
if those
contacts are harmful to the full flowering of the child.
D. Family reunification (art. 10)
At the federal level
398. Regarding non-asylum-seeking
foreigners or recognized refugees, the legal provisions governing family
reunification were explained
in Belgium’s previous report (p. 56, paras.
211-214).
399. As already stated, the wish of the parent who stayed
behind in the country of origin is verified through judicial reports or
documents establishing his or her consent.
400. The Aliens Office does
not have statistics on the number of children having asked for family
reunification.
401. As for the right of the child whose parents reside in
different countries to maintain contacts with both parents, it was stated
in
Belgium’s previous report (p. 56, para. 215), that the parent not residing
in Belgium could request permission to spend
a maximum of three months in the
country in order to visit his or her child (with the necessary, possibly
multiple entry, visa, unless
the parent has been exempted). On the other hand, a
child holding a residence permit in Belgium may leave the country and return,
and the return depends only on the possession of a passport and his valid
residence permit (article 19 of the Act of 15 December
1980 on Access to Belgian
Territory, Residence, Establishment and Removal of Foreigners).
E. Recovery of maintenance for the child (art 27, para. 4)
At the federal level
402. The bill relating to the
procedure for collective settlement of debts contains provisions designed to
protect the rights of the
maintenance creditor. In particular, different
treatment is given to the terms of pensions not yet due and pension in arrears.
Accordingly:
a) a ruling of admissibility of a demand for collective
settlement of debts prohibits the debtor, unless authorized by a judge “to
perform any act likely to favour a creditor, except payment of a maintenance
debt, but with the exception of arrears” (Judicial
Code, art. 1675, 7,
para. 3);
b) the judge may not grant a remission of maintenance debts
not yet due on the day of the decision ordering his plan of judicial
settlement
(Judicial Code, art. 1675, 13, para. 3).
F. Children deprived of a family environment (art. 20)
1. In the French Community
403. Paragraph 236 of the
initial report must be reviewed insofar as article 40 of the Decree was not
specifically implemented. In
fact, research on relations between sheltered
children and their families, conducted in 1994, jointly by the Administration of
Assistance
to Young People and the “Right and Security of Life”
Centre of the Faculty of Law of the Notre-Dame de la Paix Faculties
at Namur,
showed that links between the child and his original family broke down
essentially when the child was placed in a foster
home,
and very little when he was institutionalized. Since only placements in an
institution are covered by article 40 of the Decree as
likely to create
situations of abandonment harmful to the child, the administration refused to
implement this article systematically,
in accordance with its supervisory
authority.
404. This decision is based on the observation, supported by
research, that the risk of real abandonment in institutions is minimal,
and all
the more so since the Decree obliges the placement authority to conduct a
periodic review of the situation, thus also enabling
it to be rapidly informed
of potential situations of abandonment that might occur despite everything and,
therefore, take the measures
needed to curtail them, in accordance with articles
41 and 42 of the Decree. In this regard, a study was made of article 25 of the
Convention. On the other hand, a special effort is made for foster families and
the recognized services that assist them, so that
the bond between the child and
the family of origin are maintained.
2. In the Flemish
Community
405. The Special Fund mentioned in paragraph 238 of the
initial report was abolished in 1996 (see below, Part
VII.E).
406. Concerning paragraph 239 of the initial report, it must be
observed that article 37 of the Protection of Young Persons Act of
1965 was
repealed in the Flemish Community with the entry into force of the judicial part
of the Decrees on special assistance to
young people, on 27 September 1994 (see
above, Part IV.B). Article 22 of the aforementioned Decrees stipulates the
conditions in
which the juvenile court must hear a “situation of
problematical education”. The regulations, mentioned in paragraph
242, on
the assistance provided by the social services of the committee for the welfare
of young persons are similarly provided for
in the judicial part of the Decrees
for the juvenile court. Also, regarding paragraph 240, the 1991 Executive Order
has been replaced
by the 1994 Executive Order.
407. A minor may only be
placed in a closed community institution for special assistance to young persons
in the context of problematical
education as an exceptional measure, on the
ruling of the juvenile court, for a maximum period of three months provided that
he or
she has attained the age of 14. Moreover, it must be proven that the minor
has repeatedly evaded other less restrictive placement
measures and that this
measure is necessary for safeguarding the integrity of his or her person. In
order to limit to a minimum the
number of persons placed in these institutions,
a variant, 1 bis, was provided for in category 1 guidance homes providing
residential
care. Unlike the other private initiatives in this area, these homes
are designed exclusively for minors aged 12 or more and are
obliged to receive
them. Their overall reception capacity is 383.
408. Initiatives have been
taken for immigrant minors in closed community institutions. A study day on the
topic of intercultural
communication in community institutions for youth special
assistance took place on 25 June 1997. A model file was also prepared during
1997 as part of the work of the group responsible for studying the policy on
minorities in community institutions. In connection
with this model file, and in
collaboration with the coordinator from the ministry, a study group on
intercultural communication was
created in Bernem, with a view to improving the
progress of minors by intensifying cooperation with the Ghent immigrant-support
team
(see above). In the community establishment De Zande, a project was
launched to improve contacts with the family environment. To that end, a
half-time immigrant educator was engaged.
409. The Onderzoeksgroep
Jeugdcriminologie (Study Group on Youth Crime) of the Catholic University of
Louvain conducted a study on social action to develop a model for closed
community institutions that would help keep the minor as occupied as possible
during his stay in the establishment. In that regard,
a programme of reasonable
therapy and continued monitoring after the stay was devised. Unsupervised
immigrant minors , and particularly minors requesting asylum and young
gypsies, are accorded special attention.
410. In December 1997, the
Flemish Minister for Finance, the Budget and Health Policy entrusted to
Professor Dr. Jannes of the Faculty
of Psychiatry and Neuropsychology of the
Ghent University Hospital the project on Onderzoek naar psychiatrische
problematiek bij minderjarigen in Vlaanderen (Study of psychiatric problems
among minors in Flanders). The project was two-tiered. First of all, a study was
made on existing
serious psychiatric problems among minors in Flanders,
particularly young people on whom guidance was imposed, for the population
that
is the target of ambulatory and residential private initiatives of special
assistance to young people and mental-health establishments.
Next, the Minister
wished to have an exact idea of the current and future juridical framework for
forced admission and treatment
with regard to the rights of the
child.
411. The Communities were associated with a working group, chaired
by the Ministry for Justice, on the abolition of the law on the
declaration of
abandonment. On the one hand, it appeared that the benefit provided by this law
was minimum, if not non-existent.
On the other, it was subject to abuse. This
discussion was held in connection with the issue of placement for reasons of
poverty.
3. In the German-language Community
412. The
Decree of 20 March 1995 on assistance to young persons endows every young person
with the right to organized assistance under
the Decree.
413. The Decree
stipulates that minors must participate, from the age of 12, in consultations
concerning them with the Youth Assistance
Service and must give their written
consent to any measure concerning them.
414. It also states that in
youth-protection measures, both with the Youth Assistance Service and with the
juvenile court, the purpose
of any measure must be to keep young people in their
normal family environment, except where it would be contrary to their
interests.
415. Likewise, the person or institution harbouring a child
must maintain and encourage contacts with the family of origin, except
if those
contacts are harmful to the full flowering of the child.
G. Adoption (art. 21)
1. At the federal level
416. In view of the imminent
ratification of the Hague Convention on Protection of Children and Co-operation
in Respect of Intercountry
Adoption of 29 May 1993, work has started on an
in-depth reform of Belgian adoption legislation.
417. This Convention has
three aims: to establish guarantees that international adoptions are in the best
interests of children and
respect the fundamental rights guaranteed them in
international law, to establish a system of cooperation among contracting States
to ensure respect for those guarantees and so prevent the abduction, sale of, or
trafficking in, children, as well as recognition,
in the contracting parties, of
adoptions conducted in conformity with the Convention. The Convention intends to
attain these objectives
through the creation of central authorities within each
State and the establishment of strict conditions for adoption.
418. The
main objective of the above-mentioned Belgian legislative reform is to fully
meet the requirements of the Hague Convention
and establish conditions for its
enforcement by making the necessary
legislative and administrative adjustments. However, there are plans to
enable all children to enjoy the same guarantees whether or
not the adoption
falls within the scope of the Convention.
419. The Convention assigns
special importance to the verification of the prospective adoptive
parents’ qualifications and adoption
capacity. This verification is done
through the introduction of an individual approval procedure. There are plans to
introduce this
approval into Belgian law, as a basic condition for adoption,
whether or not it falls within the framework of the Convention, or
is carried
out in Belgium without the child moving to or from another
country.
420. In parallel, the reform is designed to fill in some of the
gaps in the current legislation or solve certain problems stemming
from its
enforcement and to renew or simplify some aspects of the procedure or the very
concept of adoption.
421. The planned amendments include the abolition of
the act of adoption and the procedure of official approval. Adoption will take
place through a procedure of ruling that is non-adjudicative when the persons
called upon to grant their consent agree, and adjudicative
when consent is
refused, lowering the age at which children must consent to their adoption, and
the possibility of a new adoption
following an initial full
adoption.
2. In the French Community
422. Effective
monitoring of adoption agencies in the French Community has been problematical,
especially when they practise inter-country
adoption, which most of them do.
Complaints lodged by prospective adoptive parents and adoptive parents with the
Delegate-General
for Children’s Rights against some of these agencies
induced the parent Minister to cancel recognition of several of them.
Also
envisaged is a reform of the pertinent regulations, in connection with the
Belgian State’s imminent ratification of the
Hague
Convention.
3. In the Flemish Community
423. The Flemish
Community recently ratified the Hague Convention on Protection of Children and
Co-operation in Respect of Intercountry
Adoption; Child and Family (Kind en
Gezin) has been designated the central authority for
Flanders.
424. Also, in July 1997 the Flemish Parliament passed an
Executive Decree on intercountry adoption, which addressed, inter alia, the
preparation of prospective adoptive parents, authorization in principle,
selection and matching, and follow-up.
425. At the federal level, a
working group is currently drafting the provisions of the Civil Code to be
modified. The new legislation
is to be the subject of a federal debate, and
introduces the notion of authorization in principle. Only then can the new
Flemish
laws demonstrate their full effects.
426. Adoption is complicated
owing to the distribution of authority in Belgium. The general conditions for
adopting and being adopted
are set out in the domestic legislation (Civil Code).
However, anything relating to preparation, selection, matching and follow-up
is
considered to be assistance to persons and therefore falls within the
Community’s remit. All the authorities concerned are
endeavouring to
harmonize the regulations as far as possible, but the task is not a simple one.
Even so, there has been a perceptible
development in attitudes: adoption is no
longer considered the miracle solution, and it is now accepted that it is
important for
every child to grow up within his own family. As time goes by,
adoption is becoming a last resort.
427. Statistics on adoption are appended to this report.
4. In the
German-language Community
428. In view of the imminent ratification
of the Hague Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect
of Intercountry Adoption, the German-language Community
is considering a cooperation agreement with the country’s two other
Communities.
429. The Government of the German-language Community is
preparing the pertinent regulations and will entrust the appropriate services
with the task of selecting and training prospective adoptive parents.
H. Illicit transfer and non-return (art. 11)
At the federal level
430. A bill concerning approval of the
Hague Convention on the Civil Aspects of International Child Abduction of 25
October 1980 will
shortly be submitted to Parliament.
I. Abuse and neglect (art. 19), including physical and
psychological recovery
and social reintegration (art. 39)
1. At the federal level
431. In the Belgian Criminal Code,
the child still appears as an object of parental authority to which respect is
due. Nowadays, the
child is recognized as a human person and the subject of
rights and obligations.
432. This recognition needed to be emphasized in
the Criminal Code, which is the reflection of a society’s fundamental
values.
A draft bill proposes the review of the provisions of the Criminal Code
protecting minors, in order to adapt them to current
requirements.
433. The most significant amendments concern indecent
assault and rape; these two infringements are joined in a chapter entitled
“Assaults
on sexual integrity”. The crime is, evidently, not
sexuality, but its abuse, and account has therefore been taken of both factors:
author and victim.
434. It was seen fit to establish an age of reference,
which was set at 14. This in no way refers to sexual majority, but rather to
a
system of maximum protection of a minor up to a certain age, because where a
minor is concerned, there is an unassailable assumption
of lack of consent in
the bill (see also paras. 110-116 above).
2. In the French
Community
435. On the subject of ill-treatment, the French Community
has adopted new provisions by decree. The Decree of 29 April 1985 on the
protection of abused children was repealed and replaced by the Decree of 16
March 1998 on assistance to abused children.
436. The absolute principle
of the right of an abused child to receive assistance, and the obligation on the
intervening party or
any professional working with children to come to their
aid, is a pillar of the text. It therefore imposes on all psychological,
medical
and social personnel in child sectors the obligation to assist an effective or
suspected abused child.
437. The Decree provides for screening coordination and improved provision of
care in situations of ill-treatment. A coordination
committee in each judicial
district regulates coordination, so that exchanges among actors on the ground
may be harmonized and promoted.
It provides for the establishment of a standing
committee on child abuse. It has retained the current multidisciplinary teams
recognized
by the Births and Children Office and, based on conclusive
experience, provides for use of the title SOS Children teams in other
services.
It also advocates training in the approach to child abuse for all persons
working in child sectors and underscores the
role that psychological, medical
and social centres and school medical inspection centres can play in this
area.
438. Lastly, the Decree establishes the institutional framework of
the French Community’s telephone helpline for children; its
principal
activity is to assist children through the organization of a helpline, and the
free number to be dialled is 103.
439. A collaboration protocol jointly
prepared by representatives of the SOS Children teams and youth assistance
counsellors was approved
by the Minister-President of the French Community in
February 1997. This protocol has been transmitted to all SOS Children teams
and
youth assistance services for counsellors, to serve as a guide for action in
situations of abuse.
440. In its regulations concerning the placement of
children, the Births and Children Office makes sure that it secures all the
necessary
guarantees on the morals of adults who come into contact with
children. Child-minders are required to produce a certificate of clean
living
and morals for each person over 18 forming part of the household or required to
have frequent contact with children. This
regulation, already in force in
subsidized reception centres, has been extended to private child-minders and
wardens of children’s
homes (Executive Decree of the Government of the
French Community of 23 September 1994).
441. The Article 34 campaign
was launched in the French Community in the spring of 1994, on the initiative of
the Delegate-General
for Children’s Rights. It was so named in reference
to the article of the Convention on the Rights of the Child that condemns
the
ill-treatment and sexual abuse of children. The campaign included a petition
comprising some 20 specific requirements distributed
over three main
chapters:
– Prevention, which must be assigned
priority;
– Legislative reforms, regarding both procedure and
punishment;
– Concrete measures to be taken in order to promote treatment of the
phenomenon.
442. Prevention, which falls within the Community’s
purview, has yielded results, and a number of activities have been
conducted.
443. For instance, prevention and awareness campaigns have
included a variety of campaigns of education in personal safety for children,
in
the form of the pamphlet You too must think of your safety! and the illustrated
book Mimi, cactus flower, accompanied by a confidential
card.
444. The
idea is for children to acquire reflexes of personal safety and be able to avoid
dangerous situations and react to danger
as appropriately as possible. These
various brochures were very widely disseminated to children. The campaigns,
launched well before
the dramatic events of 1996, were subsequently continued
and intensified.
445. More recently, in June 1998, a new instrument was
created to help parents and child-sector professionals respond to the many
questions children ask about paedophilia and child abductions. It was
with this in mind that the story Zoë, the little princess was written.
The story deals with adoption, child disappearances and
children’s rights
in general. Its purpose is to help adults talk to children who so wish about
these subjects, which must no
longer be taboo, without frightening or
overprotecting them.
446. The story ends with a short guide for children
reminding them of the telephone helpline Ecoute-Enfants, which they may
call 24 hours a day, on which anonymity is fully guaranteed and professionals
listen to them and can help them.
447. The book also includes a file for
adults wishing to reply to questions from children. This short guide for parents
and childcare
professionals furnishes useful information about certain
children’s rights appearing in the Convention on the Rights of the
Child,
and in some special legislation in our country and in the French Community. It
also furnishes information on the various services
and authorities that can help
children and families, and lists their addresses and telephone numbers. Thanks
to the support of a
private partner, 18,000 copies were distributed free of
charge to child-sector professionals wishing to use the story in their
work.
448. As far as awareness and information are concerned, as part of
the Article 24 campaign, a variety of tools such as posters, pamphlets
and
brochures were published for three different types of public – children
themselves, child-sector professionals and the
general public.
449. Where
children are concerned, a wide-ranging awareness activity was organized with
posters, the central theme of which is “Do
not stay on your own”.
The aim is to make children understand that they should dare to discuss problems
they encounter with
professionals or in their immediate environment. The
campaign’s general message that a child is not a sexual partner was
illustrated,
depending on the target public, by a drawing for a child or a
teenager. Lastly, the poster mentions the helpline number, which children
can
call free of charge. This poster campaign was conducted as a matter of priority
in schools, but also in all children's institutions
(infant, youth assistance
and juvenile sectors among others).
450. This invitation to children and
young people to confide abuses they may have suffered must be accompanied by
information, awareness
and training of the various child-sector professionals,
in whom they may confide and who can detect problem situations. One cannot
overstate the importance of training for professionals coming into contact with
children, in order to perfect their capacity to listen
to and take care of them.
It is this awareness that induced the French Community in Belgium to target
child-sector professionals
first and foremost and as a matter of
priority.
451. As far as they are concerned, the aim of the campaign is
to develop an appropriate attitude to a child who reports sexual abuse
or who is
suspected of being sexually abused. Every worker receives a pamphlet and may
obtain a brochure containing more specific
information. Since the dramatic
events that rocked our country in August 1996, child-sector professionals have
increasingly sought
information and training. The brochure was therefore
reprinted many times and, on the initiative of the crisis unit, inspired by
the
ONE Committee for the Care of Abused Children, discussion and training sessions
were organized for the ONE’s medical and
social workers, personnel in the
public and private services of the youth-assistance sector and staff in the
psychological, medical
and social centres and school medical inspection
centres.
452. Indeed, some 400 agents in the above-mentioned centres
received specific training in their approach to situations of abuse. In
addition, each school in the French Community was invited to appoint a person of
reference to whom the information needed to react
effectively to cases of abuse
could be sent.
453. Lastly, since information for prospective
child-sector professionals is equally fundamental, an agreement was drawn up
with the
Minister for Higher Education to disseminate the brochure among
final-year students in these sectors: schoolmasters, teachers, social
workers,
educators, nurses, etc.
454. It was also important to alert parents and the general public to these
problems and provide them with information. To that end,
an awareness and
information brochure and a poster were published with the financial support of
the Minister for Justice. The poster
invites people to procure the brochure,
which contains basic information about sexual abuse of
children.
455. This brochure is a veritable mine of information: it
contains definitions, the addresses and phone numbers of the services
specializing
in the care of abused children, organization of the youth
assistance sector, judicial procedures, etc. In the aftermath of the events
of
August 1996, demand for this brochure soared to such an extent that the original
50,000 copies were quickly exhausted. Thanks
to further support from the
Ministry for Justice and private partners, over 100,000 copies of the brochure
Article 34 were reprinted and distributed, including to the French
Community services (assistance to young people, social assistance to litigants
and the ONE SOS Children teams), in the Law Courts via the justice assistants
and through private partners. It will certainly give
everyone a better grasp of
child sexual abuse and help inculcate the most appropriate attitudes for
protecting and helping their
children.
456. It should be pointed out that
the use of all these tools was supervised by accompanying scientific committees
comprising, among
others, academics, judicial experts and persons dealing with
child abuse.
457. Another demand expressed in the appeal to fight
paedophilia was the availability across the entire French Community of the
telephone
helpline for children, which they can dial directly.
458. This
requirement became increasingly important as the scientific committee for the
Article 34 campaign had insisted that the
telephone number displayed on the
posters for children should refer to a service with the following
characteristics: a single central
service, professionally managed and free of
charge 24 hours a day. The choice, therefore, was the Ecoute-Enfants
helpline, which already possessed two of those characteristics, in that it was
free and professionally staffed.
459. Ecoute-Enfants is a service
that answers, on the telephone, questions from children, young people, and
persons worried about themselves or others.
Since 1 October 1996, thanks to a
partnership with the French Community, the service now operates 24 hours a
day.
460. The institutionalization of this helpline has moved into a new
phase since the Decree on assistance to abused children provides
for the
organization of a helpline for children. This telephone service will be
accessible 24 hours a day, so that children who find
themselves in difficulty,
isolation or danger at times when they cannot consult an adult they know can
call qualified staff. A further
improvement was made with the simplification of
the number to 103.
461. Lastly, in addition to the initiatives already
taken, the question of training for professionals in contact with children is
even better set forth in the Decree on assistance to abused children, which
explicitly provides that the initial training of actors
in the child sectors
must include an approach to this problem.
462. The achievements of the
Article 34 campaign include the institution of a procedure between the judicial
authorities and the French
Community for the transmission of sentences and
notices of prosecution in order to stop persons prosecuted or sentenced for
immoral
acts against children continuing to have direct contact with children in
the course of their professional duties.
463. In addition, the regulation
concerning the preventive suspension of teachers was recently amended in the
French Community with
a view to making it automatic in the event of a charge of
immoral acts against children.
3. In the Flemish Community
464. Article 36, 1° and
2°, and article 37 of the Act of 1965 referred to in paragraph 277 no
longer apply (see above).
In accordance with the provisions of the Decrees
concerning special assistance to young people (arts. 22 et seq.), the juvenile
court
may take a compulsory pedagogical measure with regard to a minor with
educational problems.
465. During the period 1991-1996, the number of
declared cases increased by 92 per cent in the Vertrouwenscentra
Kindermishandeling (Confidential centres for abused children). Over 25,000
children, some of them more than once, appealed to these centres in connection
with a serious problem, a risk of ill-treatment or a situation of crisis for the
child, in which it was unclear what the problem
really was. The increase
continued in 1997 (see statistics attached). What emerges is that child abuse is
increasingly discussed
(not necessarily because the problem occurs more often)
and that people are more likely to find the courage to lift the taboo and
call
on outside assistance. These statistics also demonstrate the centre’s,
explained by the fact that they can be approached
even in the case of mere
presumption and that totally confidential assistance may be found there. Even
perpetrators have been known
to seek such advice.
466. In Flanders,
various actors intervene in prevention, screening and assistance in cases of
ill-treatment inflicted on children.
In order further to reinforce existing
services and better harmonize their activities, in 1997 the Flemish Government
prepared a
plan of action for prevention and assistance, releasing a total
supplement of BF 140 million for the problem. This plan stresses
the
important role of confidential centres. Other sectors also receive financial
support: they include the centres for general social
assistance (help for
victims and perpetrators, legal social assistance, etc.) and the mental health
centres, which provide treatment
and support for victims and their
families.
467. Within Child and Family, the competent body on child
abuse, including prevention and assistance, which is the authority that
recognizes and subsidizes the confidential centres, a specialized official was
appointed to the Children’s Place section in
1996. Intensive consultation
with the confidential centres and the quest for an effective response to the
public’s basic questions
made it possible to establish a policy vision on
the subject. In 1997, the budget for the six confidential centres increased from
BF 60 million to BF 81.64 million.
468. The mental health
centres’ mission is to provide direct assistance to patients with
psychological problems, who can be
treated as day patients, including diagnosis.
In towns and communes in which several centres are recognized, specialization is
possible
in consultation with the other centres. Hence, six of the total 84
centres currently deal exclusively with minors, it being understood
that adults
are also taken into consideration in a family-therapy approach. Moreover, some
50 centres assigned some of their staff
to work with minors (teams for children
and young people). The minors’ group accounts for one quarter of the total
number of
patients of the mental health centres (1994-1996 figures: see annex).
An additional sum of BF 80 million was allocated to the 19
mental-health
centre networks as part of the above-mentioned plan of action. The purpose is to
step up, and improve the quality of,
abused children.
469. Regarding to
prevention and assistance, the role of the Comités voor Bijzondere
Jeugdzorg (youth special assistance committees) and the school medical
inspection service cannot be ignored.
470. In addition, the Flemish
Government has strongly urged the conclusion of protocols of cooperation among
the units of the various
sectors and the establishment of a regional
consultation on social assistance. In the meantime, a framework protocol was
concluded
on cooperation between the confidential centres and the networks of
mental-health centres.
471. Furthermore, on 17 February 1998 the Flemish Government ratified the
cooperation agreement on assistance to victims between the
State and the Flemish
Community. This agreement must guarantee a smooth transition of victims from the
police and judicial services
to the services of the Community’s
youth-assistance services.
472. The Flemish Community recognizes and
subsidizes an independent general social- welfare centre in each district.
Assistance to
victims has been entrusted to them as an additional task under the
Decree concerning general social assistance of 18 December 1997
(see above) and
they support and help victims.
473. In accordance with the cooperation
agreement, the data on most victims are communicated on a form that is
transmitted to the
general social-assistance centres. A volunteer from the
centre then contacts victims. In fact, it has become apparent that the
involvement
of volunteers makes for more effective recovery of confidence in
people and in society instead of the involvement of professional
social workers
and police services.
474. Inasmuch as victims do not request assistance
as a matter of course and police officers are not always familiar with the
functioning
of the social-assistance and health services, attempts were made to
find an appropriate standard model for interdepartmental transfers,
at the
request of the police, the judiciary and the victim-assistance centres
recognized by the Flemish Community.
475. The cooperation agreement
provides that, when a statement is being taken or a complaint is lodged, the
police fill out a form
and communicate it to the judicial district’s
victim-assistance centre. If the victim does not agree to that arrangement, the
police provide a brochure with the nearest victim-assistance centre’s
address and telephone number, and the victim may contact
the centre later of he
or she so wishes.
476. In case of an emergency, the police may refer
victims (such as women and children who are victims of serious violence or
trafficking
in human beings) to residential institutions. A referral through the
confidential centres for abused children is advocated in the
case of a minor
victim of domestic or sexual violence.
477. The cooperation agreement
also provides for the necessary consultation structures for implementing the
agreements concluded and
ensure follow-up.
478. In each judicial
district, cooperation is guaranteed through the district council, which
comprises local actors in the field
of abuse.
479. At the same time,
cooperation among professionals of the various justice, police and
social-assistance services requires the
establishment of a social-assistance
team to help victims. This team must fully implement cooperation on the ground.
Case management
may be used as a social-work tool so as better to process a file
in which several services and persons intervene simultaneously.
480. The
Nationaal Forum voor het Slachtofferbeleid (National forum for policy
with regard to victims) was entrusted with the mission of assessing the
cooperation agreement every two
years and reporting to the competent
ministers.
481. The provision of a contact point at the Family and Social
Welfare administration of the Flemish Community facilitates ongoing
dialogue and
cooperation with the administrations of the Federal Ministries of the Interior
and Justice.
482. Given this cooperation agreement, recognition was conferred in 1997 on
the hitherto unrecognized general social assistance centres
for victims. The
total number of subsidized posts for this mission increased from 15 to
36.5.
483. At the request of the Minister for Education, the
not-for-profit association Limits (OSGW Consultancy) launched an information
unit Ongewenst Seksueel Gedrag (Sexual Harassment) in November 1997. The
project targets sexual harassment in all its forms in education, that is to say
not only
in child-teacher relations, but also harassment among adults.
484. The following four elements are taken into consideration:
– a telephone helpline service three half-days per week is staffed by
three sexologists from the association Limits;
– advice and information are provided at the request of all persons
concerned with education (teachers, managers, parents and
pupils);
– informal processing of complaints is instituted if the school
management specifically requests and consents to it;
– the revising of a scenario useful in crisis situations for schools
and all educational personnel.
485. Regarding physical training in
self-defence, reference should be made to Refleks Weerbaarheidscentrum
(Reflex Resistance Centre). With the help of the King Baudouin Foundation, among
others, this centre has prepared an integral approach
for basic education.
Refleks goes much further than the physical aspect of resistance and is,
first and foremost, an integral approach. It endeavours to stimulate
children’s long-term resistance, promote a bond of confidence with adults
and help adults better to detect the signs. The Limits
contact person thus makes
regular referrals to this centre.
486. The Flemish public agency
Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap
(Flemish Fund for the Social Integration of Disabled Persons) has undertaken
within the child rights working group (see above, Part
II) to develop a plan of
action for prevention and assistance regarding the sexual abuse of disabled
children in institutions. Thanks
mainly to the existence of a complaints
procedure and a users’ advisory body, handicapped children may in most
cases, through
their legal representatives, disclose, denounce or attempt to
avoid intolerable situations (see above).
487. For radio and television,
please refer to the statements made with regard to article 17 (see above, Part
V. D).
4. In the German-language Community
488. In the
German-language Community there are two multidisciplinary working groups dealing
with questions of abuse in order to provide
better protection for children.
These groups form part of the Youth Assistance Council and its members are drawn
from various social
services working with families (parents, children or
adolescents).
a) The Arbeitsgruppe zur Vernetzung von
Kinderschutz (Working Group for integrated protection of children) is
concerned with improving screening of situations of abuse, care for the
persons
concerned and coordination among the actors in cases that arise within the
various social services. The group favours a network
approach rather than one of
increasingly specialized institutions. Since 1992, the
group has been supervising professionals faced with cases of child abuse in
their work. This supervision helps to provide guidance
for persons involved with
this issue;
b) The Berufsübergreifende Vorbeugung von
KindesmiBhandlung (Inter-vocational prevention of child abuse) is a
multidisciplinary platform on which the representatives of the social services,
education and the forces of law and order work on prevention: reciprocal
information and coordination of particular initiatives,
common reflection, joint
initiatives and evaluation. The Ministry established this group in October
1996.
J. Periodic review of placement (art. 25)
1. At the federal level
489. The Act of 2 February 1994
amended article 60 of the Protection of Young Persons Act of 8 April
1965.
490. The juvenile court may at any time, in a minor’s
interest, amend the measures concerning not only the persons responsible
for
young people but the minor himself.
491. The plan is now that the
measures on minors imposed by the court must be reviewed before the end of one
year from the day on
which the ruling became final.
492. Moreover, the
competent authorities must each quarter transmit to the juvenile court an
assessment report on a minor who has
been the subject of a custody measure in a
closed educational system.
2. In the French
Community
493. Paragraph 289 of the initial report must be reviewed
in the light of the statements concerning the consideration of article
20.
3. In the Flemish Community
494. It was stated in
paragraph 290 of the initial report that Title IV of the coordinated Decrees on
special assistance to young
persons of 4 April 1990 had not yet entered into
force. Those Decrees took effect in Flanders in their entirety on 27 September
1994.
4. In the German-language Community
495. An initial
placement is always provisional, and the decision must be reviewed after one
year at the latest. Measures to extend
an institutional placement must be
reviewed every two years.
496. Parents and young people aged 12 or more
have the right to introduce a procedure challenging the placement at any
time.
VII. HEALTH AND WELFARE
A. Survival and
development (art. 6, para. 2)
In the Flemish Community
497. A working group responsible
for issues of safety at school was established within the Ministry for the
Flemish Community for
young people attending school. A brochure setting out the
principles of security was about 15 others will be established in the next
two
years. Pedestrian crossings near schools will also be better
protected.
498. A campaign was launched, in collaboration with the
federal authorities, to encourage young cyclists to wear helmets; approximately
16,000 children in basic education participated.
499. Lastly, the Flemish
public transport firm De Lijn pays special attention to children in its training
of staff members (“anticipatory
or defensive driving”).
B. Disabled children (art. 23)
1. At the federal level
500. Recognition of the specific
characteristics of mentally or physically disabled children, in circumstances in
which their autonomy
may be stimulated or their active participation in the life
of society can be facilitated, was contained in the February 1998 report
of the
Advisory Council on Functional Rehabilitation, a consultative organ concerned
with compulsory health-care insurance.
501. This report, which deals
mainly with functional rehabilitation, is founded on certain principles based on
the identity of the
child. Such children, contrary to popular belief, are not
“small” disabled adults, but children, in full growth and
development,
in a fundamental relationship with their parents or educators. They
acquire knowledge and go through crucial life phases the impact
of which will be
felt throughout their lives. The official position of the above-mentioned
council is that disability in children
is manifest throughout their growth at
all levels of human functioning and therefore calls for assistance at all
levels.
502. In recent years, special forms of care have been devised
under the sickness-insurance regime.
503. Thus, adolescents’
psychical problems, although linked in some ways to that period of their lives,
may be sufficiently
serious for some of them to end up in adult psychiatric
services, with the risk of bearing that stigma for the rest of their lives.
A
first-phase residential therapeutic unit in an urban environment and independent
of the psychiatric hospital, has been created
for them The idea is to
reintegrate them as rapidly as possible, which is very important for young
people attending school.
504. A great deal of attention has also been
paid to abused children who need to be separated from their normal environment.
Attempts
are made to rehabilitate such children who have suffered trauma, in a
spirit of reintegration or integration into a new family setting,
outside the
hospital environment, in an atmosphere as similar as possible to a child’s
normal milieu (school and friends) and,
if possible, gradually involving
parents.
505. Lastly, paralysed children often end up in a specifically
rehabilitation system, for both school and work, even if their intellectual
faculties are normal. In recent years, sickness-insurance action has been
increased for a number of initiatives aimed at reintegration
into the normal
environment, so that, thanks to
high-quality care, the chances of reintegration, so passionately desired by
these children and their parents, are very high.
506. Specific measures
in favour of disabled children have also been taken through increased insurance
benefits, exemption from cost-sharing
on social grounds, and chronic
diseases.
507. As of 1 July 1997, disabled children have been receiving
higher family allowances and are entitled to preferential reimbursements
if the
taxable gross annual income of the household to which they belong is lower than
an established ceiling (currently BF 465,211,
increased by BF 86,123
per dependant person). Such children may also be exempted from cost-sharing on
social grounds, which means
that over a specific financial year they will pay a
maximum of BF 15,000 in personal contributions.
508. As part of the
measures taken with regard to chronic diseases, such children are entitled to a
lump-sum payment of BF 10,000
if they paid BF 10,000 of treatment
costs in 1997 and in 1998.
2. In the French
Community
509. A considerable effort has been expended to promote the
integration of the disabled in existing structures in order to assure
them of
access to leisure and culture.
510. Certain youth associations
specifically provide assistance to disabled youngsters. These organizations also
strive to help the
young disabled learn about their rights and understand
them.
511. In the Walloon region, the functioning of early assistance
services is regulated by the Decree of 12 July 1990.
512. An
Executive Decree of the Walloon Government of 13 April 1995 establishes
standards to which services must conform in order
to gain official recognition
and a subsidy that becomes recurrent as a result. More than a simple statutory
provision, this measure
is considered by service leaders as additional and
essential recognition of the quality of their action.
513. A Decree of 6
April 1995 on the integration of the disabled in Wallonia defines certain
principles, including possibilities of
reception and shelter in day
establishments or in residential or semi-residential institutions equipped to
take charge of supposedly
uneducable children or those not attending
school.
514. Under these same provisions, in certain conditions the
region may assume part of the schooling costs, once it takes place in
ordinary
education; the same is true of certain benefits, known as “material
assistance”, designed to facilitate the
disabled child’s autonomy
and integration into society.
515. In the French Community Commission, an
Order of the College of the French Community Commission of 25 January 1996
regulates the
individual grants for facilitating the disabled person’s
autonomy and integration.
516. Thus, a disabled person following a course
of study or an apprenticeship recognized by the authorities may benefit from
individual
material assistance (it is important to stress that the situation of
children not yet subject to compulsory education has been assimilated
thereto).
517. Certain children require medical, social or educational
supervision during their schooling, or educational support when their
disability
prevents them from attending school. In some cases, this support is supplemented
with some form of accommodation.
518. The French Community Commission accredits and subsidizes the staff,
operation, infrastructure and costs (linked to the presence
of disabled persons
and their transport) of different facilities:
a) Residential
institutions. These provide accommodation, education and social, medical,
paramedical and psychological support for
the disabled child, with the
assistance of an interdisciplinary team. Follow-up is carried out in
collaboration with the family,
an ordinary or special educational institution
and other partners outside the institution. Admission to a residential
accommodation
is open to young people aged 0-21;
b) Semi-residential
institutions. They also accept children aged 0-21 five days a week, but only in
the daytime. They provide individual
medical, psychological, paramedical and
social guidance. To ensure the child’s optimal integration and education,
close relations
are maintained between the semi-residential institution and the
family, the school, the family doctor or other specialized services
outside the
institution. There are also semi-residential institutions with activities
particularly geared to children who cannot
attend school;
c) Family
placement services. A third type of accommodation is provided by the family
placement services, which deal with placement
in volunteer families, so as to
provide the disabled child with accommodation in a convivial atmosphere. The
family placement services,
comprising psychological, medical and social workers,
monitor the disabled child’s well-being within the host family and liaise
with the other services (semi-residential or ordinary or special-education
establishments). This liaison facilitates coordination
of the treatment and
education of disabled children. The host family provide accommodation,
maintenance and general education for
the children in its charge; each family
accommodates up to five children.
519. The French Community Commission
subsidizes early-assistance services, the general aims of which are
to:
a) provide, with the help of a multidisciplinary team, educational,
psychological and social support for the disabled children through
individual
activities in the home and in the various places in which they are called upon
to live;
b) support the family, from the detection of the disability,
through psychological and social assistance that will enable it to accommodate
the disabled child to the best of its ability;
c) provide educational or
technical advice for organizing the life of the children’s lives and their
integration into their
families and later into school;
d) pursue
pre-school and school support by meetings and training of educational
personnel;
e) promote, in collaboration with a functional rehabilitation
centre, the prevention and screening of any type of deficiency before,
during
and after pregnancy and, if necessary, steer the family towards medical
support.
520. The child-protection activities of the youth-assistance
sector of the French Community Commission is one component of a global
social
policy. One example is the global social action conducted by the centres of the
same name.
521. Family planning centres, which are competent in anything
to do with emotional and sexual life, also have a role to play (prevention
of
domestic violence, marriage counselling, etc.). Their action, which is geared to
the family, naturally benefits children. A family
planning centre has developed
specific action for
the victims of sects. Family assistance services may come to the aid of
families in difficulty (single parents, seriously ill children,
etc.). The
social integration and cohabitation programmes, also run by the French Community
Commission, afford support to various
associations dealing with the more
disadvantaged population groups. Some programmes are specifically designed for
young people, such
as Eté Jeunes (“Young People’s
Summer”), which caters as a matter of priority to minors aged
12-18.
3. In the Flemish Community
522. Integrated
education in the Flemish Community aims at bringing pupils with a disability or
learning and education problems into
regular education, with the assistance of a
special school. Integrated education may be seen as a tool for cooperation
between regular
and special education. One of the admission criteria is that the
pupil should possess a special education certificate (see statistics
attached).
523. As part of the zorgverbreding (broadening of
concerns), attempts are made to provide optimum support to children from
disadvantaged backgrounds in their transition
from nursery to primary school.
They would appear to end up in special education more readily than
others.
524. The Decree of 24 May 1984 creating Kind en Gezin
(Child and Family) includes among the agency’s tasks that of
monitoring the development of sick and disabled children and paying
considerable
attention to prevention in that field. A special preventive childcare package
for parents of disabled children is currently
being prepared.
525. The
Decree of 27 June 1990 creating the establishment of the Flemish Fund for the
Social Integration of Disabled Persons contains
no special provisions for
disabled children except for additional support for education (individual
placements are reimbursed if
they are necessary; a form of education for
children who cannot attend school is provided in the medical-pedagogical
institutes and
semi-residential institutions), and specific provisions on
individual material assistance (either through specific child benefits
-
provision of buggies, wheelchairs, bicycles and tandems, and specially adapted
chairs and tables - or through special attention
to certain target groups,
including autistic children).
526. At the Community level, the following
categories of infrastructure are aimed specifically at children:
– residential institutions for minors (60 establishments providing
5,033 places);
– semi-residential institutions for minors (57 establishments
providing 3,508 places);
– psycho-pedagogical observation, guidance and support centres for the
disabled (six centres providing 327 places);
– family placement
services (12 services);
– rehabilitation centres (143 centres, 25 of them specifically
catering for children with developmental problems, and two child
psychiatric
centres).
527. Moreover, the inspraakbesluiten (participation
Orders) guarantee the rights of disabled persons who receive assistance under
the rules of the Fund. These Orders
guarantee more participation and juridical
security for users and members of their families:
a) Any service in
which disabled persons use shared facilities (with the exception of protected
workshops, family placement services
and ambulatory services) must possess rules
of procedure that cater
to the service’s and its users’ reciprocal rights and
obligations. These rules of procedure must make a number of provisions,
notably
on the way in which complaints, suggestions and comments may be formulated, on
how they are dealt with by the service and
on the circumstances that gave rise
to a redirection or referral of the service;
b) Any reception, treatment
or support service for disabled persons (with the exception of the protected
workshops and ambulatory
services) must conclude with the user a protocol of
sojourn, reception, treatment or support, which determines the individual
modalities
of the services to be provided. This protocol must contain the plan
of individual treatment service provision;
c) Every service (with the
exception of the protected workshops) must be equipped with a complaints
procedure and, to that end, have
a complaints commission, on which users are
also represented. Complaints may be lodged on various aspects of this service,
including
reception, treatment or support. More specifically, they may concern
physical or psychological abuse. Although the consumers are
not always satisfied
with the way a complaint is dealt with, they may write to the official in charge
of Vlaams Fonds (the Flemish Fund);
d) In the case of a
long stay (more than two years) any service must provide for the users’
participation, either individually
(previous agreement in the event of a change
in the services to be provided), or collectively through a consumer council and
a delegate
of that council, who will attend, as an observer, the meetings of the
board of directors of the authority organizing the
service;
e) Individually, there is a right to information. The consumers
or their legal representatives have the right to be fully and accurately
informed of the reception, treatment and support concerning
them.
528. The consumer council may guarantee collective participation.
This council must be created in homes for disabled adults, in the
medical-pedagogical institutes, semi-residential institutions and day centres
for each of the service’s separate, independent
and operational units.
Each consumer council has at least three members, elected by the consumers from
among themselves or by their
legal representatives for a term of four
years.
529. The number of minors who received a favourable ruling in the
period 1994-1998 (up to 23 November 1998) is stated in the annex
to this
report. It should be pointed out that a favourable decision does not imply the
effective reception or support of the person
concerned.
530. Moreover,
the Flemish transport company De Lijn has purchased low-platform buses and
trams; pedestrian crossings are increasingly
provided with equipment to help the
blind and sight-impaired (rubber casings, sound systems); the Flemish housing
society also has
social housing, specifically designed for disabled persons. If
a prospective tenant or a member of his or her family suffers from
a particular
disability, and an available housing unit was specially designed for a family
with one or more disabled members, the
prospective tenant will have absolute
priority in the allocation.
C. Health and medical services (art. 24)
1. At the federal level
531. Although not explicitly based
on the Convention of the Rights of the Child, the actual practice of the rights
established in
article 24 of the Convention is an essential element of federal
health-care policy. It is also inherent in the adoption of the series
of
Executive Decrees of 20 August 1996 concerning neonatal and perinatal
care.
532. An ad hoc working group on maternal and childcare is being prepared as
part of the National Council of Hospital Institutions,
a project compiling the
norms for, among other things, guaranteeing the quality of hospital equipment
for children.
533. Various measures were recently taken to further
improve accessibility of sickness-insurance. As of 1 January 1998, the status
of
dependent child of a titular member of the health-care scheme is granted to all
children under 25 who cannot themselves be titular
members without paying
contributions: the only remaining condition is age. However, if a child so
wishes, he or she may claim the
status of disabled titular member or titular
member resident in Belgium.
534. Access to health care is thus guaranteed
for children, including those whose parents are not officially
insurable.
535. In addition, a number of specific measures were taken in
the past few, as part of compulsory health-care insurance:
a) A number
of initiatives on cot-death syndrome were taken in the past few years at various
levels. Ranking was introduced among
centres involved with this problem, with
the centres of reference on the one hand, and local centres, which are expected
to cooperate
on the other. Compulsory health-care insurance validates this
policy by restricting of reference any action with regard to monitoring
in the
home to the centres. Indications concerning home monitoring, which is fully
reimbursable, are regularly updated and the number
of babies monitored annually
in Belgium is critically assessed;
b) Intensive support systems have
been prepared for diabetic women wishing to become pregnant and for pregnant
diabetics to help
them obtain permanent normoglycaemia. Use of equipment to
control glycaemia levels, intensive specialized support by doctors with
the
required training and daily diabetology experience and by a team of educators
and dieticians specializing in diabetes are fully
reimbursable. Free portable
insulin pumps are provided, with the necessary specialized support.
c) A
system for diabetic children was prepared, using specialized teams in which, in
addition to education in diabetes and the provision
of the necessary equipment
for self-monitoring, specialized support is provided at home and at school.
Here, too, equipment is free;
d) In 1998 the competent authorities
decided to create and finance multidisciplinary reference centres for children
suffering from
metabolic illnesses, mucoviscidosis and neuromuscular ailments;
all the necessary knowledge about these infections will be collected
at those
centres;
e) In the matter of metabolic diseases, compulsory health-care
insurance will henceforth participate in the cost of medical feeding
needed for
their normal development by, among others, patients suffering from
phenylketonuria, who are monitored by the reference
centres;
f) As for
mucoviscidosis, extension of medication to fat-soluble vitamins reimbursable
under the health insurance scheme is foreseen,
and will afford widespread
prevention of the consequences of malabsorption, which is also a characteristic
of this disease;
g) Mucoviscidosis patients will receive, as far as
possible, the various antibiotic therapies needed in the home, even
intravenously,
or possibly through ambulatory care. In case of home therapy, the
reference centres in question will provide support for patients
in order to
prevent resistance to the medication;
h) Children suffering from AIDS are all too often children abandoned to
their fate without the necessary specialized support. Special
multidisciplinary
structures, both residential and ambulatory, have received official approval and
provide intensive support to such
children and their parents or to those looking
after them.
536. Lastly, since 1995, various measures have been taken in
favour of children as regards medicines and medical
equipment:
a) Hearing specialists: for a child who has received a
box-type aid before the age of three may be given an additional device of
a
different type before the expiry of the renewal period;
b) Implants:
testing with electrical stimulation is no longer obligatory for cochlear
implants for children, and the College of Physicians
may exceptionally authorize
a replacement if there is a compelling reason;
c) Truss suppliers and
orthopaedists: since 1 February 1993 the renewal period for orthopaedic footwear
has changed from one year
to nine months for children up to the age of
18.
2. In the French Community
537. Organization of health
in the French Community is regulated by the Decree of 14 July 1997 (summary
attached), pursuant to which
the Government adopted, on 28 July 1998, a
five-year programme defining the main lines of the health-promotion policy, as
well as
the collective aspects of the preventive-medicine policy envisaged.
Action programmes in favour of newborn babies, infants and the
school population
in general are assigned priority and must be given precedence.
538. It is
the task of the Births and Children Office (ONE) to ensure that any newborn
child will benefit from appropriate monitoring,
whether provided through
consultations at the ONE or elsewhere.
539. The increasingly brief
post-delivery hospitalization calls for particularly vigilant follow-up at home
(home visits by medical-social
workers), and effective coordination with the
professionals concerned (especially midwives).
540. The main objectives
are to:
a) Reduce infant and child mortality. This objective is included
in the priority prevention programmes and is widely echoed in the
organization
of preventive monitoring in prenatal examinations and in children’s
consultations. More precisely, health-education
campaigns dealing with
infants’ sleep, and the prevention of cot deaths and accidents in the home
have been put in place. Special
attention is also paid to preventing premature
births and low birth weights. Other routine activities are performed for this
purpose;
among them are vaccination campaigns, promotion of healthy eating
habits and prevention of tobacco use by mothers-to-be. The indicators
relating
to premature births, low birth weights, tobacco use by pregnant women, infant
feeding, vaccinations, deaths – including
cot deaths – and accidents
in the home are routinely assessed for all children monitored at the ONE (ONE
computer databank);
b) Provide all children with medical assistance.
This is a routine activity inherent in all ONE consultations. An initial contact
visit is made to the home to ensure preventive monitoring of this
kind;
c) Combat disease, malnutrition, risks of pollution of the natural
environment, etc., using easily available technologies. The activities
of Health
Education take into account the resources available to all parents, including
the most disadvantaged. More specific activities
are brought to bear on more ad
hoc
difficulties or problems, including activities to combat lead poisoning
(saturnism) and carbon-monoxide poisoning (especially in winter),
and prevention
of tuberculosis, etc.;
d) Provide mothers with appropriate antenatal and
postnatal care. Private initiatives are thus supplemented by the activities of
the Births and Children Office (ONE). ONE antenatal examinations cover about 25
per cent of pregnancies in the French Community.
The ONE offers a variety of
consultant services: perinatal centres, district consultations, hospital
consultations, etc. These services
are very widely used by pregnant women from
the most disadvantaged population groups. In this area, the ONE initiative takes
the
form of the establishment of priority programmes (priority objectives) and
the issue of a practical guide for doctors and medical-social
workers. The
manual for pregnant women is about to be revised; in addition to information
concerning the antenatal monitoring programme,
the manual will contain
information concerning all social measures surrounding the birth, as well as
health-education messages;
e) Provide information on child health and
nutrition. These objectives are attained through the progressive institution of
priority
programmes, including promotion of healthy living and breastfeeding.
All these programmes appear in the Guide to Preventive Medicine
for Babies and
Infants;
f) Advise parents as part of the health-education activities
conducted through the ONE antenatal consultations, in coordination with
the
competent non-ONE bodies. The ONE supports the objective of a pre-conception
visit. It has a medical/social databank, which it
uses to assess the quality and
accessibility of perinatal prevention services. During their activities on the
ground, in close contact
with the population, the medical-social workers collect
information concerning the continuous monitoring of mothers and children,
and
social data concerning children and their families. Anonymous data are compared
to a set of social and demographic indicators;
g) Strengthen prevention.
Prevention calls for involvement of different partners in the school milieu:
parents, the educational community
and the organizing authorities. But it may
also require increased dialogue with non-school actors and with the local
authorities.
It should be initiated early in the education cycle (from nursery
school) and constitute one of the pillars in the struggle against
injustice in
the area of health. Priority is given to health-promotion experiments that are
part and parcel of a global, coherent
school education project.
541. The
French Community Commission of the Brussels-Capital region exercises no
authority in the area of children’s rights,
but it forms part of a working
group on sex offences, especially those linked to children and adolescents.
There are plans to establish
a specialized Brussels centre, whose tasks will
include collaboration with the mental-health services and infant-reception
centres
regarding both secondary and tertiary prevention missions and the
curative care given by these institutions.
3. In the Flemish
Community
542. The strategic plan Preventie Kinderzorg (Prevention
health care for children) was implemented within Child and Family in 1996.
The
purpose of this plan is to bring about a qualitative improvement in the
assistance on offer and expand the area of care from
the strictly medical to the
psychosocial. Moreover, concepts such as “teamwork” and
“parental participation”
have become more important for
disadvantaged families.
543. A variety of services adapted to each
family’s individual needs and requirements are proposed for parents of
children aged
0-3. A specific care package has thus been developed, in addition
to the basic package, for disadvantaged families, families in which
there is a
risk of child abuse, or families displaying other individual risk indicators
(post-natal depression, multiple births,
disabled children, non-integrated
immigrant parents, etc.).
544. The first component is the children’s clinics created by various
organizing authorities and approved and subsidized by
Child and Family. There,
parents may seek a consultation with a Child and Family doctor (or
paediatrician) and nurse. While the doctor
addresses the medical side (growth,
development, vaccinations, etc.), the nurse provides psychosocial and
pedagogical counselling
and information. Child and Family’s vaccination
programme provides inoculations against polio (compulsory by law), diphtheria,
whooping cough, tetanus, measles, mumps, rubella, meningitis (Haemophilus
influenzae B) and hepatitis B. Child and Family does not impose this
vaccination programme as such, finding it more helpful to alert parents and
provide them with clear information, and drawing their attention to its
benefits.
545. Preventive-care centres have been established in regions
that are home to large numbers of disadvantaged families and are backed
up by
teamwork and other activities. Statistics on poverty in Flanders and on the
consultation offices’ field of activities
are annexed
hereto.
546. The Child and Family nurses also provide home support. In
many cases, they had already visited recently delivered mothers in
the maternity
ward, and agreements reached for a few home visits during the child’s
first months. When necessary, the nurse
is assisted in her work by an
intercultural collaborator or a person with experience in issues concerning
disadvantaged milieux,
so as better to coordinate the supply and offer of
assistance. It has become apparent that these collaborators brought an added
benefit
to the services provided for specific target groups of immigrants, who
might be disadvantaged.
547. The nurses work in teams by region (some 60
in Flanders) and do a daytime shift at the regional home, to which parents can
come
to ask all the questions they wish about education, feeding, care and other
matters. Child and Family also disseminates general information
in the form of
brochures, video recordings, periodicals, etc.
548. Prophylactic care is
then taken over by the School Medical Inspectorate (IMS) for children attending
school. The Flemish Government
Order of 30 July 1985 referred to in paragraph
315 of the initial report is still in force. The Flemish Community sees to it
that
the recognized centres and IMS teams provide young people with high-quality
care. The IMS does not merely conduct clinical examinations,
but is mainly
involved in primary, secondary and tertiary prevention. There is an absolute
separation of preventive health-care and
curative health-care: no IMS centre or
health-care centre may be dependent on a health institution.
549. The
psychological-medical-social centres and the school medical inspection centres
will be integrated by the new Decree on guidance
centres for pupils (see above).
The definition of the School Medical Inspectorate’s mission will remain in
force in its entirety.
550. The Flemish Community subsidizes a study
Jongeren en Gezondheid (Young people and health), which is linked to an
international study conducted under the aegis of the World Health Organization.
Its
purpose is better to detect young people’s attitudes and behaviour
with regard to health and the milieu in which they develop.
Its purpose is also
to keep an up-to-date data system on young people’s lifestyle and health.
Scientists or persons working
on the ground may use these data to refine their
activities.
551. Furthermore, an international network of experts in that
field will be set up and the continuation of health education and promotion
will
be encouraged.
D. Social security and childcare services and
facilities
(art. 26 and art. 18, para. 3)
1. Social security (federal level)
552. The right to family
allowances has been divorced from parents’ occupation or social situation
in the regulations on family
allowances for providing families with children
with extra income. In view of the current trend to ensure individual
social-security
rights, the right to family allowances is inherent in the
child.
553. New, more realistic principles have been in force since 1
October 1997 with regard to the regrouping of child beneficiaries.
Regrouping no
longer depends on the financial status of the recipient (status of employer,
guaranteed family allowances, self-employed
persons, and government officials);
regrouping around the beneficiary has become the general rule. For children
brought up by different
beneficiaries, mention of the name of the beneficiaries
in the national register and the existence of a legally recognized bond between
them (spouses, live-in partners and relatives to the third degree)
suffices.
554. The range of circumstances in which allowances may be paid
to the child himself is being extended so as to prevent loss of the
right to
family allowances. Such allowances are now paid when children attain the age of
16 (previously 18), when they have a separate
principal residence or when they
are themselves beneficiaries for their own children.
555. Generally
speaking, certain provisions of the regulations were adapted following the
introduction of a new concept in civil law:
that of “joint
parenthood”, meaning the shared exercise of parental authority, even when
the parents do not live together,
and regardless of the parent with whom the
child resides. A legal fiction was instituted as if the family were the same and
still
a single unit (according to the principle: assignee father and beneficiary
mother). When parents have opted for the exclusive exercise
of parental
authority by one or other of them, that de facto situation will be taken into
account.
556. The “joint parenthood” rules were further
refined in 1998 with the extension of the legal fiction’s field of
application to the parent outside the child’s family, on the one hand, and
to the parent or any other potential beneficiaries
(new partner or grandparents,
for instance), on the other. Moreover, the father with whom the children
actually stay may request
the Labour Tribunal to appoint him
beneficiary.
557. A number of amendments have been made in favour of
adopted children and children placed in foster homes. Thus, as of 1 January
1993, an adoption bonus is paid to the adoptive parent in replacement of limited
right to the birth grant, and the criteria for payment
of this bonus have been
broadened. The adoption certificate no longer needs to be established during the
year following the adoption,
and the bonus may be paid even when a birth grant
has already been paid for that child. The right to the birth grant has also been
extended, in certain conditions, to children in foster homes.
558. As of
1 April 1995, each child of a multiple birth is deemed to be a first-born child
for purposes of the birth grant. A check
is no longer carried out to discover
whether such children are the first-born of their father and mother: the highest
birth grant
will always be paid.
559. The family-allowance regulations
were also recently adapted to the special case of missing children, and children
absent against
their will, of whom there is no news and who probably did not die
following a catastrophe or an accident. In these cases, the National
Family
Allowance Office for Wage-earners may, as of 1 April 1996, continue to pay those
allowances to the family in certain conditions.
This right may be exercised over
a period of five years following a disappearance. These new regulations are
retroactive for five
years and also apply to public officials.
560. In
1998, special measures were also taken to compensate for the absence of a parent
or spouse. The right to an additional orphans’
allowance and the right of
the surviving spouse were expanded: the condition whereby six monthly allowances
had to have been received
in the name of the departed person, must now be
fulfilled during the 12 months preceding the de facto absence as opposed to the
12
months preceding the official declaration of that absence.
561. A
legal basis for granting the disability-insurance supplement to female workers
recovering from giving birth to a child was
established in 1998 retroactively to
1 January 1990. The required six-month waiting period may cover ordinary
sick-leave and the
period of recovery from giving birth. Women workers with no
maternity benefit, convalescing from giving birth are now also entitled
to
family allowances, as well as a supplementary benefit.
2. Childcare
services and facilities
a) At the federal
level
562. In the past five years the National Family Allowances
Office for Wage-earners has actively contributed to the creation and continuity
of child-protection services and infrastructure. The Collective Equipment and
Services Fund has paid day centres for children lump-sum
subsidies as a function
of the number of days the children of wage-earners attend (Royal Decree of 25
September 1974) and lump-sum
allowances have been granted on a pro rata basis
for to the number of days, before 7 a.m. and after 6 p.m., that sick children of
wage-earners are looked after (Royal Decree of 17 July 1991).
563. Since
1994 the Fund has also been financing out-of-school care initiatives; it devotes
the employer contribution of 0.05 per
cent – intended for childcare and
granted following inter-occupational agreements – to financing childcare
initiatives
to respond to the needs of working parents. It is particularly
involved in:
– out-of-school care of children aged 2 and a half to
12 years;
– care of sick children aged 0 to 12
years;
– flexible care of children aged 0-12
years;
– emergency care of children aged 0-3
years.
564. The Royal Decree of 19 August 1997 and its accompanying
special regulation of 2 September 1997 last established the modalities
for the
granting of these subsidies.
565. With these measures, the National
Office has helped, independently or in collaboration with other authorities, to
develop childcare
facilities that solve working parents’ childcare
problems at a reasonable price.
566. As for services and activities for
the children of members of the Belgian Forces in Germany, the Department of
National Defence
guarantees them the basic services provided in Belgium at the
federal and Community levels (education, health, etc.). Moreover, the
Central
Office for Social and Cultural Promotion monitors the quality of life of the
military community in Germany through a series
of services to families (family
helpers; schooling in winter-sports, seaside or forest resorts; childcare in the
home, etc.).
b) In the French Community
567. The Births and Children Office
(ONE) has always endeavoured to provide families with access to a variety of
receptor services
adapted to their needs.
568. Partnership arrangements,
notably with the regions and the Federal State, have been developed with a view
to meeting the specific
needs of parents involved in a labour reintegration
process or working flexible hours, or even to meet childcare needs outside
school
hours, while maintaining high-quality services that take the
child’s best interests account.
569. The regulations governing
childcare in the subsidized and non-subsidized sectors were harmonized in order
to guarantee high-quality
reception for all (French Community Government Order
of 23 September 1994 establishing the conditions to be met by child-minders
at
home and the heads of children’s homes, as well as the modalities of
medical surveillance, article 6, paragraph 13).
c) In the Flemish
Community
570. The terms “foster families” and
“care institutions” (pleeggezinnen) used in paragraph 333 of
the initial report lead to confusion; the term “crèches”
(opvanggezinnen) would be more appropriate. It should be pointed out that
child-minding is not only accessible to the children of working parents;
it is
also available to the unemployed and must not be seen solely as a solution to
meet the needs of working parents, but as a child
service per se (see statistics
attached).
571. The childcare centres (Kinderopvangcentra)
mentioned in paragraph 334 of the initial report have been replaced with
childcare and family-support centres (Kinderzorg en
Gezinsondersteuning).
572. The childcare regulations were amended in
1997 (see paras. 330 to 336 of the initial report). A stricter form of
control, with
many possibilities of sanctions, has been put in place for private
child-minders. The policy on out-of-school care has been prepared
with the focus
on local consultations, concentration of forces at the educational level and the
raising of the age limit to 12. Child
and Family governs, subsidizes and
monitors such care, whatever its form. As part of this monitoring procedure, the
educational quality
of the care occupies a central place. Assessment tools
centred on the child’s experience are being continuously developed;
the
child is the main person concerned, although others, such as parents, are also
taken into account.
573. In 1998, the Minister submitted a draft policy
plan to the Child and Family Administrative Council. Particular emphasis was
placed
on more accessible care for disadvantaged children, development of
parental participation, and continuous improvement of quality.
d) In
the German-language Community
574. The child-minding service
currently has 75 approved child-minders supervising 250 children in the
Community’s nine communes.
The various types of collective vacation
child-minding services catered to over 400 children in 1995 and 1996. A
crèche was
opened in Eupen in 1994 with a reception capacity of
15 places, which will be increased to 18 in 1999.
E. Standard of living (art. 27, paras 1-3)
1. At the federal level
575. The Act of 30 April 1995
amended article 203 of the Civil Code, which set forth the role of fathers and
mothers. It includes
the obligation to assume, according to their means, the
maintenance, monitoring, raising and education of their children (see
above).
2. In the French Community
576. To supplement the
initial report, mention should be made of the initiatives taken to support
specific associations or projects
seeking to train, occupy and supervise the
most disadvantaged. They include:
a) Homes or youth centres where young
people have the right to assemble and relax and where the fundamental principle
is to listen
to them, their needs and requests, so as to respond to them while
ensuring that they play an integral part in the responses;
b) Various
programmes and initiatives have been established and are supported by the French
Community in order to occupy the most
disadvantaged children during school
holidays:
i) the operation Eté jeunes (“Young People’s
Summer”), which organizes cultural, sporting and socio-educational
activities for young people
aged 9-18 from socio-economically and culturally
disadvantaged backgrounds,
ii) the aid-to-creativity programme contracts that support the initiatives
of youth centres dealing with the promotion of cultural
tools as a means of
youth integration;
(iii) the operation Quartier libre (Off duty) the purpose of which
is to promote young people’s expression as a lever or action against
social breakdown. This
programme is predominantly intended for children aged
12-20 and its priority targets are communes or districts in priority-action
areas or districts with cumulative social and cultural problems;
(iv) programmes presented by youth associations to engage young people so
that they become active and critical responsible citizens.
577. Moreover,
the Decree of 14 July 1997 on organization of health promotion in the French
Community specifies that particular consideration
must be given to population
groups with cultural differences in an unfavourable social, health or economic
situation. Priority is
assigned to neighbourhood activities specifically aimed
at these groups, and, more particularly their children.
3. In the
Flemish Community
578. The Vlaams Fonds voor Integratie
Kansarmen (Flemish Fund for the Integration of Disadvantaged Populations),
referred to in paragraph 370 of the initial report, has been replaced
by the
Sociaal Impulsfonds (Social Integration Fund) (Decree of 14 May
1996, Moniteur belge of 1 June 1996). The Social Integration Fund
implements a maximum of measures to improve the quality of life and the ambient
framework
in towns and communes, especially in disadvantaged districts, to fight
social exclusion and promote well-being.
579. Three criteria directly related to child and youth issues are required
for securing money from the Fund:
– number of children, aged 0-19, including those living with a single
parent;
– number of young people receiving ambulatory, semi-ambulatory or
residential care through the Special Assistance to Young
Persons;
– number of births in disadvantaged families.
580. Research has
shown that children are the prime victims of poverty. Hence, the guarantee of
adults’ socio-economic rights
has a direct influence on children’s
rights. Thus, the Flemish regulations (Decree of 20 December 1996 and the
Flemish Government
order of 16 September 1997), which confer on all persons
finding themselves in the Flemish region the right to minimum supply of
electricity, water and gas, is vital for minors.
581. Within the
Vlaamse Intersectorale Commissie Armoedebestrijding (Flemish
Intersectoral Commission against Poverty) (see above, Part II. B. 3(e)),
attempts are being made to implement the recommendations
of the 1994 general
report on poverty, which is of great significance for disadvantaged
minors.
582. The Flemish Housing Association also pays special attention
to children by insisting that bedroom walls are soundproofed to ensure
sound
night-time sleep. Also stressed is the importance of soundproofing between
homes. There is also a requirement that terrace
balustrades and staircase ramps
are so designed as to be totally safe for children. With regard to safety,
emphasis is also placed
on the need for judicious location of social housing in
the environment (school, crèches, shops and services).
583. A
number of priority rules governing the location of social housing take account
of new “family structures” as far
as possible. For instance, when
parents rear their children in joint-parenthood, attention is paid, for both
parents, to the number
of persons in a household considered in determining
reasonable occupation levels. The same principle applies to children living
alternately
with their parents, such as those who live with their parents only
at the weekend.
584. For social reasons, a minor may also rent social
housing under a particular procedure.
4. In the German-language
Community
585. Since the adoption of the Decree of 9 May 1994 on
emergency reception homes, the Government has approved 56 homes, which at the
beginning of 1998 sheltered a total of 144 persons (including children) at rents
adapted to those families’ very modest incomes.
The Ministry of the
Community subsidized the purchase, renovation and rental of these homes for
low-income families.
586. A social report (similar to the poverty report)
group was established to collect data on the social situation in the
German-language
Community and advise on social issues. This group has chosen the
situation of single-parent families as its priority theme for 1997
and 1998; a
survey on the subject is under way.
VIII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES
A. Education, including vocational training and guidance (art. 28)
1. In the French Community
587. The objectives of education
are clearly set forth in the “Missions of the School” Decree of
24 July 1997.
a) Equality of all children at
school
588. The French Community prohibits and condemns any measure
likely to establish a hierarchy among establishments and the various
forms of
education (art. 10 of the Decree). It wishes to ensure access to all types of
training for girls and boys.
b) Free education (art. 100 of the
Decree)
589. Education – at least part-time – is
compulsory to the age of 18. During the period of compulsory schooling, access
to education is free for all children, Belgian or otherwise.
590. The
Decree of 24 July 1997, defining the priority missions of basic education and
secondary education and organizing the structures
needed to attain them,
determines what expenses are authorized during schooling; non-payment of these
expenses may not constitute
a motive for refusal of registration, or of
exclusion.
591. Credits obtained in the general arts and technological
subjects may be upgraded through higher education (art. 33 of the Decree)
in
order to allow everyone access to higher education.
592. Various measures
foreseen by the Decree on missions of education aim at improving of the quality
of the school system so as substantially
to reduce the number of young people
who drop out early. Measures include clarification of the rules of the education
system, measures
designed to ensure compliance with compulsory schooling,
limitation of repetitions (particularly to reduce the number of pupils who
reach
the age of the end of compulsory education without completing the
course).
c) Access to education
593. All schools are
co-educational and enrol boys and girls without discrimination and assure them
of access to all types of training.
594. In order to respond to the
educational needs of disabled children who cannot effectively attend regular
schools, special education
(Act of 6 July 1970) is organized at the nursery,
primary and secondary levels.
595. The world of education works in
cooperation with psychological-medical-social centres to provide guidance for
pupils. These centres
monitor pupils at the psychological, psycho-pedagogical,
medical and social levels.
d) Assistance to disadvantaged children
596. This assistance
comprises several aspects:
a) The Decree of 30 June 1998 (attached
hereto), designed to provide all pupils with equal opportunity for social
emancipation, notably
through affirmative action, distinguishes schools or
priority establishments, on the basis of essentially socio-economic criteria
such as housing, household income, number of unemployed and minimex
beneficiaries. The immigration criterion is also taken into account,
but only if
it corroborates the preceding criteria. Additional personnel or material
resources are assigned to priority schools in
order to strengthen supervisory
staff (school mediators, social workers, language-adaptation classes and smaller
class sizes) and
also for the purchase of equipment to improve the living
environment, install and stock libraries, and enable children to participate
in
cultural and sports activities;
b) In basic education, activities are
carried out to help the learning of French as a second language;
c) In
secondary education, projects to improve the links between the world of
education, parents and the district are put in place
in disadvantaged
areas;
d) Promotion of multicultural education to handle cultural
differences at school and in the classroom;
e) The French Community
Government has also entered into partnership agreements with Greece, Italy,
Morocco, Portugal and Turkey
to enable requesting establishments to benefit from
the presence of teachers originating in those countries (original language and
culture (LCO) programme.
f) A bar-code system has been put in place to
combat school dropout and the better to apply the principle of the right of the
child
to education. Thus, children in basic education with a certain number of
unexplained absences are reported to the counsellor for
assistance to young
persons by the inspector (art. 107 of the missions Decree). In secondary
education, minors with more than 20
half-days of unexplained absences are
reported by the head of the school to the Youth Assistance Council (arts. 84
and 92 of the
Decree of 24 July 1997) and to the schools’
psychological-medical-social centre;
g) Since 1995, a compulsory
education pilot unit has been in existence within the administration. It
organizes external assessments
of pupils’ knowledge at certain periods in
their school career. These assessments enable teachers to gauge the level pupils
have attained and adapt their teaching accordingly (arts. 55, 61, 72 and 73 of
the Decree).
e) Children whose parents are in an illegal
situation
597. A minor pupil living illegally on the territory may be
taken into account for purposes of supervision and subventions, on condition
that he or she has regularly attended school for four months (Decree of
30 June 1998, art. 41).
f) Appeal against refusals of enrolment
and disciplinary measures
598. The missions Decree of 24 July 1997
established a support committee for pupils who have been refused school
enrolment. It also
defines the procedure to be followed in the event of
exclusion from a school. This procedure imposes, inter alia, the hearing of
the
pupil, and organizes an appeal against an
exclusion decision. The Decree also provides for assistance to enable the
excluded pupil to be re-enrolled in another school.
g) Appeal against
decisions of failure
599. There is an internal conciliation procedure
for hearing appeals against decisions of failure or limited success. An appeal
may
be lodged with the appeals council once the internal procedure has been
exhausted.
h) International cooperation in
education
600. Members of the French Community collaborate, as expert
educational leaders, with the ONE, UNESCO, the Council of Europe,
etc.
601. The Community also plays a very active role in the Conference
of Ministers of Education in French-speaking Countries (CONFEMEN),
which
comprises 35 countries, has three fundamental missions:
– mutual information on developments in education systems, reforms
under way, etc.;
– reflection on topics of common interest with a view to cooperative
actions;
– consultation among ministers and experts with a view to establishing
common positions and formulating recommendations to
support regional and
international policies on education and
training.
i) Information
602. The Decree provides for a
series of measures to supply information on higher education accessible to all
pupils and to give them
educational guidance (arts. 23, 32, 49, 59 and
60).
603. In the culture sector, the French Community supports the work
of youth information centres. The latter are extremely useful in
that they
afford young people access to information on numerous subjects of interest to
them, such as studies, vocational guidance,
their rights, unemployment, lifelong
training, etc.
j) Active participation of
students
604. The educational missions Decree confers on secondary
education pupils, and, on certain conditions those in primary education,
a more
important role in school-life management, enabling them to be represented on the
participation council that each school is
required to set up.
2. In
the Flemish Community
605. See the comment on article 2, above, and
the statistics attached.
a) Enrolment
606. In the Flemish
Community, pupils may only be refused admission to the public education system
if they do not meet the entry conditions
(age, primary-education certificate
affording access to secondary education, etc.). Such education is considered to
be a public service
and must therefore be accessible to all users.
607. The head of a subsidized denominational school may refuse enrolment for
other reasons (for instance, if the parents do not accept
the school rules and
refuse to sign them). With the 1997 Decree on basic education, this right
enjoyed by denominational schools
is linked to certain rules. Thus, any refusal
must be communicated and explained in writing to the parents within four days
and pupils
may not be refused on the grounds of indecency or lack of respect for
human dignity.
608. Children living illegally in the country also have
the right to education. The Ministerial Circular of 10 November 1983 was
expanded
in September 1994; a person who cannot provide proof of identity must
now be admitted to a school. However, it must be stressed that
the right to
education is not a guarantee for obtaining residence
authorization.
609. In the special youth assistance sector, prevention
projects designed to ensure the right to education are under way: Buitengezet
op
school (expelled from school) in Antwerp and a homework project in
Louvain.
b) Sick children
610. Children who are ill for
long periods and cannot therefore attend school also have the right to
education. Classes in which sick
children may study have been created in a
number of hospitals. Article 34 of the Decree on basic education provides that
schools
are obliged to offer remedial courses for sick children who have stayed
at home long periods.
c) Compulsory education
611. The
Flemish Community has launched a project on monitoring the obligation to attend
school for the academic years 1996-97, 1997-98
and 1998-99. There are four
aspects to the problem of truancy:
– not all persons subject to compulsory schooling are actually
enrolled in a school at the beginning of the school year;
– problems of absence arise during the school year;
– children who change schools during the school year do not always
transfer to another school;
– lastly, there is the problem of exclusion: pupils expelled from a
school do not easily find another school that accepts them.
612. New
regulations will be prepared for all Flemish secondary schools on the basis of
experience acquired with this project.
613. In addition, the new Decree
on pupil guidance centres expands the role they play in compulsory education.
Monitoring of compulsory
education must make timely detection of pupils with
possible problems so that they can be assisted during their school career, with
the resulting drop in the number of failures. A joint committee of experts from
education and community institutions for special
assistance to young persons is
currently developing regulations on compulsory schooling for young people in
institutions to guarantee
their school career to the maximum. Collaboration with
pupil-guidance centres is an important component.
614. Measures designed
to promote regular attendance and reduce early dropping out of school form the
basis of projects for school
promotion and for integration into the world of
work, in the framework of the
Flemish Fund for the Integration of Disadvantaged Populations, transferred to
the Social Action Fund (see above).
3. In the German-language
Community
615. The aims of education are spelled out in the Decree of
the German-language Community concerning the mission of the organizing
authorities and teaching personnel and concerning general educational and
organizational regulations of regular basic and secondary
education, adopted by
the Council of the Community on 31 August 1998.
616. Society entrusts the
organizing authorities, schools and all school-training actors with a
mission.
617. Society requires that schools impart education
that:
a) takes account of pupils’ social and cultural origins and
promotes equal opportunities; the school must be accessible to
boys and girls
alike, without exception;
b) inculcates respect for others and
responsible behaviour towards other people and the environment; it teaches
receptiveness to
the world and promotes European thinking and
multilingualism;
c) develop a sense of the common good and elementary
democratic practices in all pupils and prepares them to occupy an active and
creative place in economic and professional life;
d) transmit know-how
and knowledge, develop capabilities and skills; education teaches openness to
culture and science and respect
for the religious and ideological beliefs of
others;
e) enable all pupils to acquire a maximum of
skills.
618. Each organizing authority (arts. 16-19)
must:
a) prepare its own educational project for its schools, which must
be compatible with the mandate of society;
b) elaborate activity plans
for its nursery schools and syllabuses for its primary and secondary schools;
the latter must, perforce,
retain the key (minimal) competencies defined by the
Decree of the Council of the German-language Community;
c) freely
establish valid didactic principles and educational methods for its schools, on
the proposal of the Education Council comprising
a group of teachers
democratically elected in each school.
619. Each school (art. 20)
defines, on the advice of its Education Council, its own pedagogical profile,
which must be compatible
with the mandate of society and the educational project
of its organizing authority. The latter comprises, inter alia, the following
elements:
a) pedagogical concept and structure;
b) method for
assessing pupils’ development;
c) support and remedial measures
for pupils in difficulty, and integration measures for disabled pupils in
regular full-time or part-time
education;
d) appeal procedures for contesting the Council’s or
headship’s administrative or disciplinary decisions. An appeals
chamber is
envisaged to rule whether the legal and statutory provisions are observed or not
(art. 38);
e) pupils’ and parents’ involvement in school
life.
620. In addition, the draft Decree envisages essential regulations
on pupils’ rights:
a) the free choice of pupils, their parents or
their guardian between denominational education and public education subsidized
or
organized by the German-language Community (art. 24);
b) free
education (organized or subsidized by the German-language Community) for all
children, whether Belgian or not, during the
period of compulsory education. The
costs for services or teaching or pedagogical resources authorized during
schooling will be determined
by decree (art. 32),
c) regular internal
and external assessment of each school;
d) the right to information for
pupils, their parents or guardians relating to all school matters concerning
them, including the
right to be advised in cases of difficulty (art.
36);
e) the pupils’ right to normative and formative assessment of
their abilities (arts. 76-82).
B. Aims of education (art. 29)
1. In the French Community
a) Human rights
education
621. The aims of education have been clearly defined in the
Decree of 24 July 1997:
“The French Community, for the education it organizes, and any
organizing structure, for subsidized education, pursue simultaneously
and
democratically the following objectives:
promoting and developing
pupils’ self-confidence and personality;
encouraging all pupils to amass knowledge and acquire skills which make
them capable of learning throughout their lives and playing
an active part in
economic, social and cultural life;
preparing all pupils to become responsible citizens capable of making a
contribution to the development of a society which is democratic,
supportive,
plural and open to other cultures;
giving all pupils equal
opportunities for social emancipation (art. 6)”.
622. The Minister
for Education set up a “Democracy or Barbary” unit in 1994. Composed
of a multidisciplinary, inter-network
team, it is responsible for coordinating
matters relating to citizens’ education. It has prepared a human-rights
file, a compilation
of official texts relating to human rights in the form of a
book and a computerized database, as well as a number of files on human
rights
and democracy. This educational coordination body also organizes a variety of
events on these topics (meetings of 8 May, New
York, Strasbourg, Geneva Human
Rights Itinerary, etc.).
b) Respect for parents and cultural
values
623. The Missions of the School Decree clearly states,
especially in its articles 8 and 9, the importance of respect for each
person’s
personality and beliefs; the transmission of the cultural
heritage in all its aspects, the discovery of other cultures; and the
safeguarding
of memories of past events.
624. Reference is made to moral
and religious education syllabuses (art. 8, paragraphs 9 and 10; and art. 9,
paragraphs 7 and 8),
and to other programmes such as the history programme,
which affords pupils the opportunity to open themselves to different cultures
and should induce them to develop tolerance, rejecting cultural prejudices and
stereotypes.
625. A multicultural education unit has been established and
environmental education is provided (art. 16, paragraph 3).
626. The
initial project should make it possible to attain these educational and
pedagogical objectives.
c) Teacher training
627. A
diversified, but not compulsory, offer of lifelong training for teachers exists
in the French Community. It had previously
been conducted for the most part on
the initiative of the Inspectorate: educational days, and residential courses
organized in connection
with the normal professional duties. Alongside this
training, each network has now established training centres (see Decrees of 24
December 1990 and 16 July 1993).
d) Programme,
equipment
628. Article 9 of the Decree requires that the definition
of syllabuses and educational projects should be adapted to the general
objectives and the various options it advocates. It also provides for the
creation of a programme commission, and the finalization
of standardized
evaluation tests, corresponding to the knowledge and skills to be developed, and
the availability of educational
tools for the various organizing
authorities.
2. In the Flemish Community
629. The Flemish
Community is in the process of establishing final objectives and development
aims. These have already been established
for basic education and the first
cycle of secondary education. Those for the second and third cycles of secondary
education are
in the course of preparation.
630. The notion of final
objectives is part of a new approach to the monitoring of educational quality,
one in which the point of
departure is the teacher’s
independence.
631. Generally speaking, these objectives cover a minimum
of knowledge, comprehension, skills and attitudes that a pupil must acquire.
Child-rights education is one of the explicit requirements; pupils must be
capable of illustrating the importance of basic human
rights and
children’s rights. The first cycle of secondary education aims to develop
social skills and promote civic education;
schools are free to choose their
means of attaining them.
632. Co-educational education poses less and
less of a problem; denominational schools are becoming increasingly
co-educational and
subsidized public schools (created by provinces, towns or
communes) that are not yet co-educational have, under the new Decree on
basic
education, until 1 September 2000 to become so.
633. Flemish museums also play an educational role with regard to children.
The Natuur-, Milieu- en Educatieve Centra (Nature,
Environment and Education Centres) of the Flemish Community inculcate respect
for the environment through educational activities
such as the milieuboot
(environment-friendly boat) projects and groene school (green school),
whose targets include children. The 8 July 1987 Flemish Government’s
environmental policy plan also contains
activities and initiatives relating to
children’s education.
634. For its part, Vlaamse stichting
Verkeerskunde (Flemish Road Traffic Foundation) has formulated a teaching
method suitable for young people, whereby they learn the rights and obligations
of all road users, to adopt a defensive attitude to traffic and to choose an
intelligent means of transport.
C. Leisure, recreation and cultural activities (art. 31)
1. In the French Community
635. As of 1966, the Government
of the French Community has been developing the Quartier libre (Off duty)
operation. This initiative encourages youth associations in priority action
areas to work in partnership for a year at
least, the aim being a high-quality
finished cultural product. Synergy among the various culture sectors is
encouraged through partnerships.
Projects submitted must comprise, in addition
to the project handler, an association or person with guaranteed competence in
cultural
expression, as well as a dissemination operator.
636. For some
years now, the Government of the French Community has also been supporting the
not-for-profit association Carte jeunes (Youth Charter),
responsible in general for implementing on the Community’s territory the
Lisbon Protocol and the Brussels
Charter and, in particular:
- developing regional activities in collaboration with cultural activity
promoters to increase the dissemination of Carte jeunes;
- using
available resources to multiply the cultural advantages offered by Carte
jeunes;
- helping, through its support the French Community’s exchange
programmes, to implement activities designed to combat the social
exclusion of
young people, promote their capacity to become independent citizens, and develop
their participation in cultural life
and their mobility.
637. As for
extra-curricular activities, the French Community Commission is developing a
policy of cultural and artistic activities
in schools (Operation
Culture-Education). It also assists school sports federations and supports
projects for integration through
sporting activities for disadvantaged young
people. Street sports, in the form of championships (basketball, volleyball and
football)
in parks and on squares and streets, are aimed at young
people.
638. The Commission provides financial support for
children’s homes, childcare centres and youth movements. It is developing
its own activities, such as coordination of street-activity projects, through
the association Atout-Projet (Asset project). It also supports the
dissemination of Theatre and Song shows for a young public, through “art
and life tours”
and school shows.
2. In the Flemish Community
639. Since 1993, the
Commissariaat-generaal voor de Bevordering van de Lichamelijke Ontwikkeling,
de Sport en de Openluchtrecreatie (BLOSO), a Flemish public-interest agency
which promotes sport among other things, has been conducting an active
youth-sports promotion
campaign. With this campaign, BLOSO is endeavouring to
increase the participation rate of young people in sport and encourage young
supporters joint clubs so that they can practise a sport regularly on a
permanent basis. The main target of the campaign is young
people aged 12-18,
this being the cohort with the highest percentage of dropouts. All persons
involved in sport (sports federations,
communal and provincial sports centres)
also conduct an active policy of sport for youth.
640. The objectives and
missions of Stichting Vlaamse Schoolsport (Flemish foundation for sport
in schools) were established on 1 January 1994 (Decree of 1 December 1993
establishing conditions for
the approval and subsidization of the Foundation for
Flemish School Sports, Moniteur belge of 22 January 1994). Its purpose is
to:
- encourage, develop, and take initiatives for the promotion of, school
sports; propose sporting activities;
- promote collaboration with all organizations pursuing the above-mentioned
aims at the local, provincial, regional, national and
international
levels.
641. Sports associations are required to respect the age limits
of participants or ensure that they are respected. They must also
ensure a
minimum of medical, paramedical and psychological supervision of participants
when they prepare for, or participate in,
certain sporting events (Decree of 27
March 1991 on sports with respect for health obligations, Moniteur belge
of 11 June 1991).
642. Specific measures are taken to train young
cyclists and protect them in the practice of their sport (Decree of 19 April
1995
establishing the conditions of training in cycling, Moniteur belge
of 8 July 1995; the Flemish Government Executive Order of 26 April 1995
establishing the conditions for participation in cycling
races and trials,
Moniteur belge of 29 July 1995).
643. These conditions
include:
- educational and technical-sporting qualifications required of cycling
trainers;
- training programme;
- the age at which training may commence (12) and from which young people
may participate in races (15);
- the maximum number of cycle races per year, the maximum distances and the
maximum age bracket;
- obligation to undergo regular sports-medicine examinations.
644. In
the wake of the Decree of 24 July 1996 establishing the status of amateur
sportsperson (Moniteur belge of 12 September 1997), amateurs enjoy some
basic guarantees; they have the right to terminate the contract binding them to
their
sports clubs each year and are quite free to join a different one. When a
contract is terminated, the sports association may not
claim payment as
compensation in any shape or form. This Decree governs the practice of the
transfer of young people within the Flemish
Community and confers
total freedom on a young sportsperson. Life membership of a club or the
“sale” of talented young players is prohibited.
645. In this
regard, reference may also be made to the provision contained in article 17 (see
above).
IX. SPECIAL PROTECTION MEASURES
A. Children in situations of emergency
1. Refugee children (art.22)
a) At the federal
level
646. Since the Act of 15 December 1980 makes no special
provision for minors seeking asylum, the procedure applied to them is the
same
as for adults.
i) The examination procedure
647. When a
foreigner seeks asylum in Belgium, the Aliens Office determines the State
responsible for examining the request, in accordance
with the Convention
determining the State responsible for examining Applications for asylum lodged
in one of the Member States of
the European Communities, signed at Dublin on 15
June 1990.
648. In principle, when the child’s parents have already
applied for refugee status in Belgium, the Belgian authorities declare
themselves responsible for the child’s application. Examination of the
admissibility of the request is carried out by the Aliens
Office in the first
resort, by the Office of the Commissioner-General for Refugees and Stateless
Persons (CGRA) in the case of appeal.
Examination of admissibility bears on the
question as to whether the foreigner may enter Belgium or stay provisionally as
an applicant
for refugee status, while awaiting the CGRA’s decision on the
substance. The decision of inadmissibility by the Aliens Office
may be the
subject of a suspensive emergency appeal to the CGRA.
649. If the Aliens
Office declares the asylum application admissible or if the CGRA reverses a
decision of inadmissibility, the foreigner
is authorized to enter and stay in
Belgium, and the procedure moves on to the phase of examination of the
justification of the application.
650. This examination falls within the
purview of the CGRA. Any decision taken in this framework is subject to an
appeal for suspension
to the Refugee Appeals Standing Committee.
651. All
final decisions are also subject to appeal for nullification lodged with the
Council of State. The latter may also hear a
request for suspension of the
measure (except with regard to the decision of the Refugee Appeals Standing
Committee.
652. The asylum application is examined in the light of the
provisions of the Geneva Convention on the Status of Refugees of 28 July
1951
(enacted on 26 June 1953), the Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 (enacted
on 13 May 1995), the
International Covenant on Civil and Political Rights of 19 December 1966
(enacted on 15 May 1981) and, with
regard to minors, the Convention of the
Rights of the Child of 20 November 1989 (enacted on 25 November
1991).
ii) Measures taken
653. The measures taken on behalf of minors
were expounded in the preceding report (p. 101, para. 406); however,
certain specific
characteristics may be presented here.
654. Hearing
of a minor seeking asylum. A distinction must be drawn between the procedure
conducted at the Aliens Office and that applied by the Office of the
Commissioner-General
for Refugees and Stateless Persons (CGRA). At the Aliens
Office, children seeking asylum at the same time as their parents are heard
only
at the age of 16, except in exceptional circumstances. Children who join parents
seeking asylum in Belgium are subjected to
a limited interrogation on the
authenticity of the alleged family bonds, and the events following their
parents’ departure
from their country of origin. At the CGRA, if children
submitting an asylum application in their own behalf are of an age to express
themselves (from 6-8 years of age), they are heard in person and alone to the
extent possible, with the help of an interpreter if
needed. If they are too
young, their views may be deduced from the statements of the adult accompanying
them. However, children whose
parents have lodged an asylum application are only
questioned if necessary. Unaccompanied minors – if of an age to express
themselves – are questioned in person, at both the Aliens Office and the
CGRA. Otherwise, information is sought from the persons
effectively accompanying
them.
655. Respect for the wishes of the child. When minors
seeking asylum is accompanied by someone other than their parents, the Aliens
Office checks that person’s status
and the parental authorization, in
order to avoid any kind of trafficking. The child’s wishes are also
examined. At the CGRA,
the instructions are to determine, as far as possible,
the wishes of the child and its parents if the child is not accompanied by
both
parents.
656. Processing of asylum applications. The asylum
application of a child accompanying its parents, or one who has come to join
them in Belgium, is processed at the same
time as the parents’
application.
657. Support for minors seeking asylum. In certain
situations there are no specific regulations concerning guardianship of
unaccompanied minors seeking asylum, so that
protection of their interests is
not guaranteed. The legislator has entrusted the task to the Public Social
Assistance Centres (CPAS),
but, in practice, it is seldom implemented.
658. Verification of minor status. It is not always easy to
determine whether a young foreigner is a minor or adult. The papers in the
possession of children of foreign
origin are not always authentic and adults are
sometimes wrongly declared as minors. In the case of young undocumented
foreigners,
verification is even more problematical. Medical examinations are
not systematically carried out to determine the age of young foreigners
as
precisely as possible when their statements or the papers in their possession
are dubious. This medical examination is important
for processing the asylum
application; it prevents improper use of special measures and centres intended
for minors and facilitates
authorities’ action when expulsion becomes
necessary (see below).
659. Foreign minors whose applications have been
rejected.. In principle, unaccompanied minors seeking asylum but whose
applications
have been rejected may not be expelled. However, a number of
minors, mainly aged 16-17 and supposedly sufficiently “mature”,
are
expelled in the same way as foreign adults. There is no special regulation
governing the ability of nonsuit, but tolerated, minors
to remain on the
territory.
iii) Training and information
660. For
information and training in the field of the rights of a minor applicant for
asylum, the Aliens Office and the CGRA have
designated agents specializing in
the processing of such applications, and in both
those bodies the issues are coordinated by a liaison officer. However, only
CGRA agents receive special training, and two detailed
internal notes were drawn
up on 28 August 1998 in concern for harmonizing their work of processing asylum
applications by, or on
behalf of,
minors.
iv) Statistics
661. Statistics on refugee and
asylum-seeking children are attached to this report. It must be pointed out
that, in the event of doubt
as to the minority or majority of an asylum-seeker,
the Belgian authorities use hand X-rays to determine a person’s exact age.
It should also be stated that many minors deemed to be unaccompanied by the
Belgian authorities enter or attempt to enter Belgian
territory accompanied by a
person who is neither a parent nor a legal
guardian.
v) Cooperation
662. In the area of cooperation,
in September 1996 the Belgian authorities participated in the symposium
organized by the Office of
the United Nations High Commissioner for Refugees
(UNHCR) on unaccompanied children. The discussion among the various
countries’
asylum authorities and the international and non-governmental
organizations concerned gave rise to a text published by UNHCR in February
1997
and entitled Guidelines on Policies and Procedures in Dealing with
Unaccompanied Minors Seeking Asylum.
663. In addition, on 26 June
1997 the Council of the European Union adopted a resolution concerning
unaccompanied minors who are nationals
of third countries (No. C 221 of 19
July 1997), the text of which is attached hereto.
664. Lastly, the
Belgian authorities were represented at intergovernmental consultations on
asylum, refugees and immigration policies
in Europe, North America and
Australia, held in 1996.
665. In Belgium, the Inter-ministerial
Conference on Immigration Policy established a working group to formulate
proposals for improving
the reception of unaccompanied foreign minors.
Representatives of the federal and Community ministries concerned, UNHCR, the
International
Organization for Migration, and the Centre for Equal Opportunity
and the Fight Against Racism, and the Belgian Ambassador on Immigration
and the
delegate to the French Community’s Rights of the Child participated in the
group’s deliberations.
666. These deliberations aimed at ensuring
coordination among the federal and federated authorities and the competent
bodies. After
adopting a common definition of the concept of unaccompanied
minor, the group took an initial series of measures concerning systematic
identification of foreign minors in need of protection, their reception and
their legal representation throughout the asylum
procedure.
667. Regarding the representation of foreign minors,
accompanied or otherwise, the group’s discussions focused on the creation
of a specific organ responsible for housing the minors, the protection of their
interests and psychological, social, medical, financial
and educational
care.
668. A pilot project of Belgian cooperation with the Philippines
deals with the development targeted activities on trafficking in
human beings,
and sex tourism. This project was inaugurated in September 1996. During the
first year, there was an exchange between
Ghent University and the Ateneo of
Manila; two experts from Ghent attended the National Forum held in Manila in
August 1997. Traineeships
were organized for NGO leaders and public officials.
Several publications in different languages, and a sensitization video were
issued. The social aspect was developed by the Women Crisis Centre (WCC), the
Women’s Health-Care Foundation (WHCF) and the Women’s Legal
Bureau (WLB). The activities within the Filipino population
are coordinated by a
local NGO (WEDPRO).
669. The project leaders have already looked into
ways of developing activities on the ground and into how information on emigrant
rights, limitation of those rights, the risks involved in illegal immigration
and the dangers of sex tourism could be disseminated.
670. This phase
having been concluded, draft recommendations are now being
studied.
b) In the Flemish Community
671. The problem of
unaccompanied minors, about whom the Committee on the Rights of the Child
already expressed concern following
the initial report, was discussed in the
context of the competence of the Communities and the federal authorities. Within
the Gezin en Maatschappelijk Welzijn (Family and Social Welfare)
administration, an official working group known as Mensen zonder Papieren
(The undocumented) includes representatives of the authorities and the
coordinating organizations. Moreover, on the initiative of
the Brussels and
Hal-Vilvorde committees of special assistance to young persons, a working group
known as Kinderen zonder Grenzen (Children without borders) is studying
this issue from the point of view of the Convention.
672. More
specifically, these minors are admitted to centres approved by the committees of
special assistance to young persons, Child
and Family, the Flemish Fund for the
Social Integration of Disabled Persons, and the public social assistance centres
(CPAS).
673. Pending a federal regulation, the Flemish Community is
preparing a contact point for unaccompanied minors within the Family and
Social
Welfare administration. The person commissioned to implement this project will
prepare the ground and establish contacts that
will serve as the basis of care
and support for lone minor refugees, for whom there is currently no legal
assistance, given the lack
of guardianship regulations. When the 1999 budget was
drawn up, the minister in charge of assistance to persons, who is also the
coordinating minister, provided for a post for special assistance to young
people to provide temporary accommodation for this target
group.
674. In
Flemish policy on “ethnic and cultural minorities”, the term
embraces foreigners staying illegally in Belgium,
who have applied for care and
assistance in a state of emergency. Flemish policy on minorities endeavours to
establish conditions
that will enable them to stay temporarily on Dutch-speaking
territory and in the bilingual Brussels-Capital region to be cared for
and
assisted by the Flemish Community with respect for human dignity and human
rights (Decree of 28 April 1998, Moniteur belge of 19 June 1998).
675. In addition to the
information furnished in the initial report, mention should be made of certain
administrative and educational
measures for the enforcement of humanitarian
law:
– a course in the law of armed conflicts, education and training, is
provided to all army ranks;
– members of the armed forces trained in the law of armed conflicts
serve at all levels of the army, from company to division;
– a team of lawyers and an adviser on the law of armed conflicts are
attached to each detachment serving abroad.
676. Following the revelation in April 1997 of the despicable behaviour of
some Belgian para-commandos towards Somalis – including
children –
during the 1993 United Nations peacekeeping operation in Somalia, an in-depth
study was undertaken in 1997 within
the armed forces. For his part, the Minister
for National Defence commissioned the Centre for Equal Opportunity and the Fight
Against
Racism to conduct a scientific study of the mechanisms that could lead
to racism within the armed forces.
677. In the section on
Recommendations, the study advocates a series of preventive measures for
peacekeeping missions (selection criteria for soldiers to serve in the mission,
preparation of operations, psychosocial support) and against racism in the
strictest sense (recruitment, instruction and training).
678. The
Minister requested the military authorities to pursue this study in greater
detail and to submit to him proposals for action
concerning each of the
recommendations in the report. Several of them have already been implemented,
with the continuous integration
of lessons learned in the preparation of
peacekeeping missions, promotion of a social policy in keeping with the new
problems arising
in connection with foreign service, and training in
humanitarian law (see above).
679. One measure has been the Belgian
army’s recent introduction of a new regulation for the prevention and
punishment of racist
and xenophobic acts, The army is also preparing a new code
of conduct.
680. It would be advisable to make mention in this chapter of
Belgium’s exemplary action in the fight against the ravages of
anti-personnel mines, whose main victims are children. We are the first country
to have taken legal and technological measures to
make this struggle effective,
notably through a law unanimously passed in March 1995 on a total ban of
anti-personal mines.
681. Next, Belgium is playing an important role of
awareness-raising at the regional and global level through sustained diplomatic
activity.
682. On 12 and 13 October 1998, the Secretary of State for
Development Cooperation and Dr Oscar Arias, winner of the Nobel Peace
Prize,
organized, with the cooperation of the Peace Research Group (GRIP) and
Pax Christi, under the aegis and with the active support of
the Belgian
Government and under the auspices of UNICEF, an international conference on
“Sustainable Disarmament for Sustainable
Development” on the subject
of small arms and light weapons. At this conference a working group studied the
situation of children
in armed conflicts: children as cannon fodder, children as
victims, and children as perpetrators. The issue of child victims of the
activities of groups such as the Lord’s Resistance Army in Uganda or other
militias in countries in conflict was debated.
683. The outcome of this
conference, Brussels Call for Action, contains passages on the impact of
conflicts on children and young people and on other vulnerable groups. Mr Arias
and the Secretary
of State transmitted this call for action to the
Secretary-General of the United Nations, Kofi Annan. Many government
participants
expressed their support for the principles set forth in the Appeal,
which has resulted in constant international follow-up of the
issue.
684. Through the conflict-prevention budget line, a number of
initiatives concerning child soldiers have been supported, including
the project
Reintegration of child soldiers in Liberia, conducted by the Red Cross.
Numerous projects designed to improve the living conditions of children in
conflicts are also funded
through co-financing of non-governmental
organizations.
B. Children in conflict with the law
1. The administration of juvenile justice (art.
40)
a) At the federal level
685. The Act of 2 February
1994 amending the Protection of Young Persons Act strengthened the rights of the
child, particularly in
the preparatory phase, which assumes considerable
importance in practice. It is the legislator’s intention that the young
person
should be a genuine participant in the action against him and therefore
guarantees the child the following from the preparatory phase:
– the right to be heard in person before any measure concerning him is
taken or amended;
– the assistance of a lawyer from the moment of judicial
referral;
– access to the file before his or her first appearance;
– explanation of the motive of orders or other rulings regarding
him;
– restriction of the preparatory phase to six months.
686. When
the Procurator’s Office, which enjoys a monopoly in public actions,
decides to refer a case to the juvenile court,
it must also, under pain of
nullity, summon to appear at the public hearing the minor himself, if aged 12 or
more, and the minor’s
parents, guardians or persons exercising custody of
the young person concerned. The parents or other persons having custody of the
minor are summoned as potentially having civil liability and because they must
be involved in the quest for the measure best suited
to the
minor.
687. The National Commission for the Reform of the 8 April 1965
Protection of Young Persons Act submitted its final report in February
1996 to a
joint meeting of the Justice Commissions of the Chamber and the Senate in March
1996. During 1996 and 1997, it was the
subject of numerous discussions at
symposia or study days attended by youth-protection professionals, and
representatives of the
academic world.
688. The Reform Commission
recommends a change in the approach to juvenile offences, with a sanctions
system of sanctions replacing
the protection system established by the Act of 8
April 1965.
689. In July 1997, at the request of the Minister for
Justice, Professor Walgrave of the Catholic University of Louvain drafted a
report on the possible inclusion of priority for all forms of restorative
sanctions in the sanctions model proposed by the Reform
Commission.
690. Drafting of the preliminary draft law began early in
1998 and it should see the light of day by the start of the next
legislature.
691. In a protection system, an offence by a minor is deemed
to reveal a state of risk that justifies a therapeutic-type intervention
on the
part of the judge – not restricted in time, duration or methods and
independent of the seriousness of the offence –
which aims to remedy the
state of danger.
692. The sanctions system envisaged has its own
peculiarity, namely that judicial intervention is both justified and restricted
in
a delictual act committed by a minor. The aim of the intervention, therefore,
will not be to remedy any state of risk covered by
youth assistance, but to
react to the delictual act itself. Judicial guarantees are vital in such a
system, and the principle of
proportionality must be observed. The coherence
of the protection system established in 1965 was already weakened with the
adoption of the Act of 2 February 1994, which introduced
references to the
seriousness of the offences, the duration of the measures, and the requirements
of public security.
693. The current drafting work of a preliminary law
is designed to continue the development observed in recent years and redefine
the juvenile court’s role with regard to young offenders.
694. The
legal guarantees that the Commission for the Reform of the Protection of Young
Persons Act recommends granting to minors
contain procedural guarantees
identical or similar to those granted to adults and adapted to their age and
possibilities, and an
additional guarantee not currently provided, requiring the
police, in the event that a minor is deprived of liberty and referred
to the
judicial authority, to notify the person or persons vested with authority over
the minor and summon them to appear in court.
695. The Commission also
proposed the obligation on juvenile court judges to hear the parents or the
persons having custody of the
minor if they appear.
696. Alongside the
drafting process, the Minister for Justice has entrusted the Criminology
Department of the National Criminalistics
and Criminology Institute with the
task of studying juvenile offences and the way they are dealt with by the
juvenile courts. One
purpose of this study is to examine the appropriateness of
the resources available to the judicial authorities in the framework of
the
enforcement of the 1965 Act. The study should also help determine the means
required for enforcing the new Act once it is promulgated.
697. It will
also afford more accurate knowledge of the policies on referral to services and
institutions, harmonization of which
will make for better management of the mass
of situations to be handled, a better response to needs, and as diversified an
offer
as possible.
698. Lastly, this study will help lay the foundations
of a permanent instrument for the quantitative and qualitative assessment of
juvenile offences and the way in which the various courts handle them. The
Communities will be closely associated with the study.
b) In the
German-language Community
699. The Government Procurator’s
Office, which receives a written report against a young offender, may consider
it unnecessary
to refer the matter to the juvenile court. In that case, it
informs the Service of Assistance to Young People so that the family
concerned
or, possibly, the child alone, may be subject to an assistance measure, imposed
by that service only with the consent of
the child or its parents.
a) At the federal level
700. See also
the statistics attached to the report.
701. By the Act of 2 February
1994, article 53 of the Protection of Young Persons Act of 8 April 1965, which
permitted a minor to
be placed in a detention centre for a up to of 15 days if a
private home or suitable institution could not be found, was repealed
“from a date to be determined by the Council of
Ministers”.
702. Currently, Article 53 is still in force and minors
continue to be placed in detention centres.
703. The Minister for Justice has increasingly established contacts with the
Communities so that the alternatives needed for the final
repeal of this article
can be found and put in place.
704. Also, with this purpose in view, the
Minister for Justice entrusted the National Criminalistics and Criminology
Institute to
conduct a comprehensive scientific study that would afford better
understanding of juvenile offences and improve the means for reacting
to such
offences.
705. Furthermore, where foreigners are concerned, the Act of 15
December 1980 on access to the territory, sojourn, establishment and
removal of
foreigners contains no specific provision on prohibiting the administrative
detention of a foreign minor.
706. However, in practice, minors aged
under 18, whether alone or accompanied, are only detained in a closed centre
only in two circumstances
that rarely arise. Firstly, when a child, accompanied
or not, seeks asylum at the border but does not possess the documents required
for entry onto the territory, pending the decision on his or her application
(article 75/5 of the above-mentioned Act of 15 December
1980, inserted by
the Act of 18 July 1991 and amended by the Act of 15 July 1996). Detention in a
closed centre is of brief duration
as the asylum measure or procedure is then
accelerated. Secondly, when the asylum application is submitted within the
Kingdom, minors
accompanying their parents may exceptionally be kept in a centre
together with them when they do not possess the documents required
for entry and
if it is not their first asylum application (article 74/6 of the above-mentioned
Act of 15 December 1980, inserted
by the Act of 6 May 1993 and amended by the
Act of 15 July 1996).
707. The asylum-seekers centre within the Kingdom
(Centre 127 bis) has a wing reserved for families with
children.
708. The detention may not exceed two months. Nevertheless, the
law provides the possibility of extending the detention by periods
of two months
when the necessary steps for removing the foreigner have been undertaken, when
they are pursued with all due diligence
and when there is still a possibility of
effective repatriation within a reasonable period.
709. Decisions to
detain and extend detention in a closed centre may be appealed to the Judges
Council Chamber of the Correctional
Court in the foreigners’ place of
residence, the place in which they were found or the place where they are kept,
depending
on the circumstances.
710. An appeal to the Judges Council
Chamber may be lodged from month to month (in certain cases it is introduced by
the Minister
for the Interior himself). The Judges Council Chamber rules within
five working days of the deposit of the application on the conformity
with the
law of the measure depriving the person of his liberty. If the Judges Council
Chamber fails to rule within the prescribed
time, the foreigner is released
(article 72 of the Act, amended by the Acts of 28 June 1984 and 10 July
1996).
b) In the French Community
711. See also the
statistics attached to this report.
712. In the spring of 1998, in
accordance with article 2 of the Order of the Government of the French Community
establishing the position
of Delegate-General for Children’s Rights, the
Delegate-General took the initiative of establishing a working group on the
topic “Treatment of young offenders by the group of public institutions
for the protection of young people: observations and
prospects”. To that
end, the Delegate-General appointed experts (members of the staff of
institutions, judicial authorities,
lawyers, institutions for assistance and
protection of young persons, the academic world and the administration).
713. One of the tasks of this working group is to focus on the following
issues:
a) Development of the nature of juvenile delinquency, notably as
regards a more likely transition towards aggressive
acts;
b) Re-adaptation of the programmes and methods in force in the
group of IPPJs as a function of the evolution of juvenile delinquency
and the
status of the young people entrusted to them. Hence, would it not be wise to
envisage care structures capable of handling
adolescents who sexually assault
women and children. Special treatment for young people whose offences are
accompanied by assault
might also be envisaged;
c) Professional training
of agents, candidate selection, ongoing training, and external supervision to be
developed in the IPPJs;
d) The need for joint reflection by the French
Community and the Ministry for Justice on the lack of harmonization between the
educational
projects developed and the nature of the placement. A main target is
the problem of disguised preventive detention in closed institutions.
The
judicial authorities also recognized this practice during discussions in the
Commission for the Reform of the Young Persons Protection
Act;
e) The
need to develop permanent places for exchanges and consultation between the
French Community and the judicial authorities,
notably through emergency
meetings urgently in the event of a crisis;
f) Judicial protection has
its limitations. The French Community must do all in its power to push back the
boundaries as far as possible,
i.e. in terms of instruments (supervision norms,
specializations, interdisciplinary teams, etc.), methods and ethics. Should it
fail,
should there not be negotiations with the Ministry of Justice on new
measures and procedures which respect the rights of minors so
as to avert the
need to re-impose emergency measures that do not offer all the guarantees?
Beyond the competence of the French Community,
there is the problem of enforcing
the Protection of Young Persons Act of 8 April 1965, and of care of minors
subjected to relinquishment
of jurisdiction and subsequently
imprisoned;
g) The adaptations required for the care of young offenders
in the context of the repeal of article 53 of the Protection of Young
Persons Act of 8 April 1965, which allows minors to be placed temporarily in a
detention centre.
714. As to children placed in a supervised educational
institution under a protection measure imposed by the juvenile court pursuant
to
the Protection of Young Persons Act of 8 April 1965, it should be pointed
out that the Decree of 4 March 1991 on assistance to
young persons, which is
responsible for the enforcement of such measures, provides that placement in a
closed institution may be
entrusted only to an establishment that is a member of
the group of public institutions for the protection of young persons (IPPJs).
Such accommodation is reserved for a young person who has been prosecuted and
subjected to a judicial decision explicitly prescribing
such
placement.
715. In addition, young persons placed in a public institution
for the protection of young persons (IPPJ), in other words in an institution
reserved for young offenders, enjoy specific rights.
716. First and
foremost, they enjoy the right of access to the group of public institutions. In
effect, a public institution may not
refuse a young offender unless it is full.
This first guarantee is intended to prevent a judge from discovering that an
institution
refuses a young person and must then being obliged to place him in a
penal establishment, in accordance with article 53 of the Act
of 8 April
1965.
717. A minor has the right to be informed of the regulations of the
institution in which he or she is placed.
718. If the minor is placed in
a public institution for more than 45 days, he or she must be the subject of a
medical-psychological
report. This report will be transmitted, within 75 days of
the date of admission, to the placement authority and the competent
administration.
The initial report will be supplemented by quarterly reports and
studies.
719. Placement in a closed institution is part and parcel of
deprivation of liberty. Limitations on such placement in a closed institution
are provided for:
a) Closed detention may take place only in a public
institution;
b) Placement in a closed institution is reserved strictly
for young people who have committed an act deemed to be delictual;
c) A
young person may be placed in a closed institution only through a court
ruling;
d) The institution in which the young person is placed must
perform pedagogical and educational functions and possess the necessary
instruments.
720. Young people in closed institutions also enjoy other
rights, such as the right to communication and to pocket money.
721. The
Community Youth Assistance Council must pronounce on the number of available
places in closed institutions to receive young
offenders.
722. The Decree
also provides for very strict guarantees for solitary confinement of young
people entrusted to the IPPJ group. The
modalities of solitary confinement and
their monitoring are regulated by the Government Order of 21 March 1997, which
also defines
the standards applicable to the premises.
c) In the
Flemish Community
723. Serious efforts are being made to secure
sufficient residential care capacity so that article 53 of the Protection of
Young Persons
Act could also be repealed in regard to that category of minor. A
date to be set by Royal Order, debated in the Council of Ministers
would suffice
(article 53 bis of the same Act).
724. The 1999 budget
earmarked additional resources to meet the new social needs of special
assistance to young persons. Some of these
resources will be used to expand the
different aspects of the work – reception, guidance and observation
– and for the
institutions providing specific care for minors for whom
support is problematical. Additional resources are also earmarked for developing
projects that afford alternative sanctions to imprisonment for young
offenders.
C. Children in situations of exploitation, including
physical and psychological recovery
and social reintegration
1. Drug abuse (art. 33)
a) In the French
Community
725. As one facet of drug-abuse prevention, the French
Community supports a series of projects implemented by grassroots associations.
Also, in concern for coherent preventive actions, a protocol of cooperation was
drawn up between the French Community and the Ministry
for the Interior, so that
associations recognized by the French Community may organize awareness and
briefing sessions on the subject
for minors in schools.
726. The
administration has published a brochure entitled Drugs and the institution,
which addresses such concerns, for wide dissemination
in public and private
youth-assistance institutions.
b) In the Flemish
Community
727. The Flemish Fund for the Integration of the
Disadvantaged referred to in paragraph 462 of the initial report was abolished
in
1996 (see above Part VIII. E).
728. In the youth special-assistance
sector, a variety of prevention projects intended to keep children away from
drugs are in course
of preparation. At the Ruiselede institution for special
assistance to young people, a special project was launched in collaboration
with
the local police force to ban drug-use there. The Vereniging voor Alcohol en
Andere Drugsproblemen (VAD) (Association for alcohol and other drug
problems) is also developing a basic infrastructure, and teaching
materials.
729. The Flemish Government has entrusted the VAD with
coordination of drug-abuse prevention and assistance and is implementing a
number of projects for the Flemish Community. It always works through
intermediaries such as persons active in the field of prevention,
youth
mobilizers and teachers, but it does not itself make direct contact with minors.
The VAD’s activities are conducted at
the Community level while the
above-mentioned intermediaries implement the joint local and regional
projects.
730. Since 1997, the Flemish Community has been subsidizing a
three-year project providing prevention equipment for specific high-risk
groups
among the secondary-school cohort. The not-for-profit association
Leefsleutels (Keys to Life) furnishes equipment, in association with
other specialized organizations, to cater to the different years of special
secondary education. That project also receives support from the
psychological-medical-social centres and the School Medical Inspectorate
centres, which work in teams to help teachers familiarize themselves with the
methods. In addition, lessons on specific drugs-related
topics may be given in
these centres with the teachers’ help.
731. Also targeted are
specific high-risk groups outside the school and family environment. In this
connection, the Flemish Community
supports the project on drug prevention using
the methodology developed by youth counsellors, established by In Petto,
a national service for young people, in order to reach minors and young people
during their free time. As part of this project,
minors aged 16-18 will be
trained and supported within the Jongeren Adviescentra (Counselling
centres for young people) so that they could in turn, through youth
mobilization, play a central role in support, referral
to specialized
institutions and positive influence. In recent years some 450 minors were
trained as youth counsellors in drug-abuse
prevention.
732. It has been decided that greater recourse will be had to youth
counsellors in the near future in order to reach a wider range
of children.
Thus, youth mobilizers in socially disadvantaged districts will become actively
involved in the work of the youth consultants
so as to secure greater influence
on certain groups of socially vulnerable minors.
2. Sexual
exploitation and sexual abuse (art. 34)
a) At the federal
level
i) Computer protection
733. The Dutroux affair
engendered a fierce reaction to child pornography.
734. Belgium launched
the idea of signing an international code of ethics for Internet access
providers with regard to paedophile
sites. It wished to secure an agreement
within OECD whereby Member States undertook to ban paedophile sites and to take
any action
necessary to that end. The Belgian proposal was finally integrated
into the wider French proposal, which aims to combat any type
of illicit or
harmful content on the Internet.
735. For its part, the Internet Service
Providers Association (ISPA), which comprises Internet access providers in
Belgium, established
a code of conduct.
736. Lastly, the judicial police
have an Internet site devoted to child pornography.
737. The current
objective is to coordinate the ISPA’s action with that of the judicial
police.
ii) Combating violence against women and
children
738. For 10 years now, the Ministry of Labour and Employment
has been implementing a policy to combat violence against women and children.
A
national briefing and awareness campaign was launched through posters and
brochures, Violence, deliberate?, and teaching materials
have been made
available free of charge to the population, such as the video project Say it!,
designed to teach primary-school children
to defend themselves.
739. A
few remarks should be made in that regard:
a) Since monitoring is not
sufficiently strict, minors who pass themselves off as adults are likely to be
sexually exploited by the
prostitution milieu;
b) The accommodation
offered by specialized care centres for victims of trafficking in human beings
is not suitable for minors. While
a solution can sometimes be found through
cooperation with other existing services, it would be desirable for proper care
services
to be organized;
c) It should be mentioned that the very rights
enjoyed by minors sometimes limits prevention of sexual abuse violence against
them.
For instance, abusers have been known to recover children taken into care
by the authorities and enjoying a certain amount of freedom.
iii) Victim reception
740. Victim reception has been addressed
through the suitable design of police stations and through police
training.
iv) Prevention and combating
recidivism
741. Another aim of the federal agenda is prevention and
combating recidivism. It includes perpetrator-assistance pilot
projects.
v) Improving the victim’s legal
situation
742. Efforts have been made to improve the victim’s
legal situation, through Rape Act of 4 July 1989, preparation of the
“sexual
aggression set” and the issuance of medical certificates
showing acts of violence.
vi) Prevention
743. The Ministry
of Justice has participated, in collaboration with the Communities, in the
preparation of prevention
brochures.
vii) Miscellaneous
744. A bill on increased
protection of minors in the Criminal Code is being prepared and a working group
to study the issue of children’s
recorded hearings has been
formed.
b) In the French Community
745. The French
Community adopted the Decree of 16 March 1998 concerning assistance to abused
children, which repeals the Decree of
9 May 1994 on coordination of the fight
against the ill-treatment of children. The Decree sets out numerous responses,
in the French
Community, to the proposals formulated by the National Commission
against Sexual Exploitation of Children.
746. This Decree concerns, first
and foremost, coordinated screening and enhanced care in situations of
ill-treatment. It also imposes
on all psychological-medical-social workers in
child sectors the obligation to come to the assistance of a child victim of
ill-treatment
or a child suspected of undergoing such treatment. It also
regulates the general coordination, by judicial district, of the fight
against
ill-treatment by judicial districts and institutes a Standing Committee on
Abused Children.
747. Article 13 of the above-mentioned Decree provides
the institutional framework of the French Community’s Ecoute-Enfants,
whose main activity is to guarantee assistance to children by providing them
with a telephone helpline. It is a major tool of prevention
and care for all
child victims; the number is 103 and ensures that children can talk freely
without any time constraints. The 103
number also caters to all children who, at
any time of the day, evening or night, feel the need to talk to or confide in
someone
because they feel unwell, are experiencing difficulties, and so
on.
748. The helpline respects the pace the child sets and what he wishes
to disclose or conceal, while, if necessary, structuring the
interview
sufficiently to suggest possible solutions to the child’s problems. This
service, staffed by 50 professionals, meets
the young persons’ needs: in
other words, a territory of their own during the time slot.
749. The children’s helpline has been widely advertised through
posters, brochures and stickers, which are posted in places
frequented by
children, schools, sports centres and cultural sites. In addition, radio and
television have aired a promotional spot.
The purpose of the campaign is to
engrave the telephone number on the collective memory, especially that of
children. The campaign
transmits no dramatic message but gives, on the contrary,
a positive picture of the number 103 so that children recognize it as their
friend.
750. As far as prevention is concerned, a vast campaign entitled
Article 34 campaign – referring to that article of the Convention
on the
Rights of the Child – launched on the Delegate-General’s initiative,
was conducted by the Government of the French
Community in collaboration with
the Ministry of Justice. It created a variety of tools – posters,
pamphlets and brochures –
aimed at three different types of public:
children themselves, professionals in the child sectors, and the general
public.
751. Lastly, various personal-safety education campaigns for
children were conducted, especially in schools.
752. A crisis unit
comprising representatives of the Minister-President of the French Community,
youth assistants, the Delegate-General
for Children’s Rights, the Family
League, the Houtman Fund, the Committee for Support to Abused Children, and the
administration
of the Births and Children Office, was established at the end of
August 1996.
753. The training programme launched on the initiative of
this crisis unit was put in place as part of a project entitled From
detection to care, what prevention? This campaign reinforces the aim of
promoting a multidisciplinary approach to the ill-treatment of children, with
concern for monitoring
the seriousness and reliability of supervision staff in
reception centres, whether subsidized or not.
754. The ONE organized
training for infant sectors, youth assistants, and psychological-medical-social
(PMS) centres and School Medical
Inspectorate (IMS) centres. This action in
favour of front-line professionals is designed to organize areas for support,
conversation
and training in order to attenuate the impact of the collective
emotional climate.
c) In the Flemish Community
755. Within
the Flemish Community, Toerisme Vlaanderen (Tourism in Flanders) is
preparing a cooperation agreement between the Communities and regions,
concerning the status of travel agencies.
The draft provides for the creation of
a code of ethics applicable to all licence-holders and their staff. One of
requirement prohibits
the conclusion of contracts with a travel organization or
agency that is involved in sexual exploitation of children or has any purpose
that runs counter to public order or morals. This means that once the
cooperation agreement enters into force, a travel agency may
have its licence
withdrawn if such facts are established.
756. Moreover, Tourism in
Flanders totally endorses the views of the European Commission on sex tourism
involving children.
d) In the German-language
Community
757. During 1998, the information brochure Aimer sans
abuser ou l’enfance respectée (Live without abuse; respect for
children) will be translated and adapted by the Family League and published with
the support of
the Government of the German-language Community.
758. Two
interdisciplinary working groups play an important role; they deal with matters
of ill-treatment and aim to provide better
child protection (see above, Chapter
VI. I. 2(c)).
D. Children belonging to a minority or an indigenous group (art. 30)
In the Flemish Community
759. In the Flemish Community,
Onderwijs in Eigen Taal en Cultuur (Education in the child’s mother
tongue and culture – OETC) provides an optional course that enables this
provision of
the Convention to be implemented (see above, Part IV. A).
------------
[∗] For the initial report
of Belgium, see document CRC/C/11/Add.4; for its consideration by the Committee,
see documents CRC/C/SR.222-224.
The concluding observations of the Committee on
the initial report are contained in document CRC/C/15/Add.38.
[∗∗] The annexes referred to in the document may be consulted in the files of the secretariat.
GE.01-45573 (EXT)
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