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Alternative Care and Children’s Rights

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International Human Rights of Children

Part of the book series: International Human Rights ((IHR))

Abstract

In this chapter children’s rights and state obligations in relation to alternative care are presented, with reference to the UN Alternative Care Guidelines and the general comments and concluding observations of the UN Committee on the Rights of the Child. The CRC places great emphasis on supporting families to take care of their children. Prevention of the need for alternative care should take place by, inter alia, tackling child poverty and supporting families with children with disabilities, as well as by improving the caretaking abilities of parents in order to avoid neglect and abuse of the child. Any decision to place a child in alternative care should be subject to strict criteria and procedural safeguards, made by a competent body supported by qualified professionals, and involve the child him- or herself. The chapter discusses the type of care, with a preference for family type care. Once in alternative care the child has the right to protection and care in line with standards set by the State. Freedom from violence is a basic requirement, and children should enjoy their rights to education, food, play etc. The child has the right to retain contact with both parents unless contrary to his/her best interests. Monitoring and complaints mechanisms are necessary to ensure that the requirements are met. The possibility of reintegration or other long term solutions is presented, including support to children leaving care. In concluding, the author discusses possible reasons why states do not properly implement the CRC in this area.

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Notes

  1. 1.

    Guidelines on European law that relates to children can be found in the “Handbook on European law relating to the rights of the child” produced jointly by the European Union Fundamental Rights Agency and the Council of Europe in 2015.

  2. 2.

    Davidson (2015) discusses how to move forward with the guidelines, based on the handbook.

  3. 3.

    Benin, Bulgaria, Gabon, Iran, Ireland, Kenya, Maldives, Nauru, Nepal, New Zealand, Oman, Pakistan, Peru, Samoa, Senegal, Sierra Leone, South Africa, Suriname, the UK, Zimbabwe.

  4. 4.

    Author’s own examination of the Concluding Observations, see reference list for the Concluding Observations to each State.

  5. 5.

    This is evident from supplementary reports to the Committee in its review process of States’ reports, as well as from dialogues with States.

  6. 6.

    There is only one mention of the child in this respect in a proposal made by the International Federation of Women in Legal Careers and the International Abolitionist Federation to make an addition to what is now Article 9 para. 2: “It shall be understood that the children will have an opportunity to express their preference,” (OHCHR 2007, p. 402). The proposal implies that children are not covered. It is not commented on and may have been considered to be covered by article 12.

  7. 7.

    Kafalah is explicitly mentioned but will not be further presented here. See Assim and Sloth-Nielsen (2014).

  8. 8.

    Author’s personal experience as member of the Committee.

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    Authors and Affiliations

    1. Department of Public and International Law, University of Oslo, Oslo, Norway

      Kirsten Sandberg

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    1. Kirsten Sandberg
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    Correspondence to Kirsten Sandberg .

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    Editors and Affiliations

    1. Department of Law, University College Cork Department of Law, Cork, Ireland

      Ursula Kilkelly

    2. Kamerlingh Onnes Building, Leiden Law School Kamerlingh Onnes Building, Leiden, The Netherlands

      Ton Liefaard

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    Sandberg, K. (2018). Alternative Care and Children’s Rights. In: Kilkelly, U., Liefaard, T. (eds) International Human Rights of Children. International Human Rights. Springer, Singapore. https://doi.org/10.1007/978-981-10-3182-3_8-2

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    • DOI: https://doi.org/10.1007/978-981-10-3182-3_8-2

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    1. Latest

      Alternative Care and Children’s Rights
      Published:
      13 August 2018

      DOI: https://doi.org/10.1007/978-981-10-3182-3_8-2

    2. Original

      Alternative Care and Children’s Rights
      Published:
      13 April 2018

      DOI: https://doi.org/10.1007/978-981-10-3182-3_8-1

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