CHILD RIGHTS POLICY MAKING BY GEORGIAN GOVERNMENT
AND ITS COMPLIANCE WITH THE UNCRC, THE RECORD OF
THE MINISTRY OF JUSTICE AND THE MINISTRY OF LABOR,
HEALTH AND SOCIAL AFFAIRS
A Research Paper presented by:
Gvantsa Liparteliani
(Georgia)
in partial fulfilment of the requirements for obtaining the degree of
MASTERS OF ARTS IN DEVELOPMENT STUDIES
Specialization:
Human Rights, Development and Social Justice
(HDS)
Members of the examining committee:
Karin Arts: Professor of International Law and Development
Rachel Kurian: Senior Lecturer in International Labour Economics
The Hague, The Netherlands
November 2011
Disclaimer:
This document represents part of the author’s study programme while at the
Institute of Social Studies. The views stated therein are those of the author and
not necessarily those of the Institute.
Inquiries:
Postal address:
Institute of Social Studies
P.O. Box 29776
2502 LT The Hague
The Netherlands
Location:
Kortenaerkade 12
2518 AX The Hague
The Netherlands
Telephone:
+31 70 426 0460
Fax: +31 70 426 0799
ii
Contents
Chapter 1 Introduction
1
1.1
The Research Problem and its Background
1.1.1 Socio-economic, Historical and Political Discourse of
Georgia
1
1.2
Relevance and Justification
3
1.3
Research Objectives and Questions
5
1.4
Methodology
6
1.5
Sources of Information
1.5.1 Primary Data
1.5.2 Secondary Data
8
8
9
1.6
Limitations and Scope of Research
9
1
Chapter 2 Theories about Children’s Rights Assessment
11
2.1 Concept of Monitoring
11
2.2 Human Rights Impact Assessment
12
2.3 Rights Based Approaches to Programming
12
Chapter 3 Juvenile Justice System Reform (JJSR)
14
3.1 Problem Statement
14
3.2 General measures of Implementation of the UNCRC
15
3.3 Findings
19
Chapter 4 Child Welfare System Reform (CWSR)
22
4.1 Problem Statement
22
4.2 General Measures of Implementation of the UNCRC
25
4.3 Findings
29
Chapter 5 Conclusion
31
5.1 Main Challenges for the UNCRC Application
31
5.2 Recommendations
34
5.3 List of Interviewees
36
5.4 References
37
iii
List of Acronyms
CRP
CW
CWSR
EU
GCRT
HRBAP
HRIA
IDP
JJ
JJSR
MCLA
MoJ
MoLHSA
NGO
PDO
SGH
UN
UNCRC
UNDP
UNICEF
UPR
WMS
Child Rights Programming
Child Welfare
Child Welfare System Reform
European Union
Georgian Centre for Psychosocial and Medical Rehabilitation of
Torture Victims
Human Rights-Based Approach to Programming
Human Rights Impact Assessment
Internally Displaced Person
Juvenile Justice
Juvenile Justice System Reform
Ministry of Corrections and Legal Assistance
Ministry of Justice
Ministry of Labour, Health and Social Affaires
Non Governmental Organization
Public Defender Office
Small Group Home
United Nations
United Nations Convention on the Rights of the Child
United Nations Development Programme
United Nations Children’s Fund
Universal Periodic Report
Welfare Monitoring Study
iv
Abstract
This research paper aims to explore the issue of child rights policymaking and
implementation, and application of the UNCRC standards and principles by
the Georgian government (represented by the Ministry of Justice and Ministry
of Labour, health and Social Affaires of Georgia) within the Juvenile Justice
System and Child Welfare System Reforms.
In the research bellow will be analyzed above-mentioned two reforms,
planned and implemented by the MoJ and MoLSHA with the help of selected
articles from CRC General Comments #5, also based with the information
gained from interviewees, representing government, civil society and children
themselves.
Relevance to Development Studies
The topic of this research paper is about implementation of Georgian state’s
international obligations taken under the UNCRC on the example of performances of two reforms implemented by two ministries. Protection of human
rights in general, and, in this case, implementation of children’s rights for
Georgia, as for developing country has a great importance; at the same time
the issue of children’s rights is closely related to the Human Rights, Development and Social Justice specialization.
Keywords
Child Rights
Juvenile Justice
Child Welfare
Duty Bearer
UNCRC
v
Chapter 1
Introduction
1.1 The Research Problem and its Background
It is more than two decades ago that the United Nations Convention on the
Rights of the Child (hereafter referred to as UNCRC) started to act for the
children of the world. After its adoption in 1989, the UNCRC soon become
the most widely ratified international treaty in the world. All 193 States Parties
(which comprise all except two states: Somalia and the USA) to the Convention committed themselves to the implementation of children’s rights. The enactment of the UNCRC brought a radical change in the field – children ceased
to be regarded as objects of the care and became seen as subjects of rights.
Gradually, the notion of states as duty bearers in terms of promoting, respecting and fulfilling children’s rights under the UNCRC became more strong and
clear (Mauras 2011:52). The rights of children increasingly have been enshrined
in important documents, both at international and national levels. However,
these actions in pursuit of children’s rights protection have not necessarily
lived up to the worldwide expectations about UNCRC implementation (Carvalho 2008:545). Despite the major progress that was achieved in many states
in terms of children’s rights protection after the UNCRC enactment, issues of
fulfilling, promoting and protecting children’s rights are still urgent throughout
the world (Doek 2009).
The UNCRC is the first binding international legal document that deals
comprehensively with children’s rights. It contains 42 detailed provisions about
all areas of children’s lives ranging from social, economic and cultural rights to
civil and political rights. More importantly, the UNCRC holds and promotes
the highest level of international standards and guidelines for children protection and for their implementation at regional and national levels. The UNCRC
and the Committee on the Rights of the Child (hereafter referred to as the
Committee) are instrumental in terms of developing and implementing various
worldwide activities dedicated to the rights of children (Lee and Svevo-Cianci,
2009:767).
Georgia ratified the UNCRC without reservations in 1994 and as one of
the State Parties has to fulfil all the obligations under this convention. However, international organizations operating in Georgia in the field of children’s
rights, Georgian civil society organizations and Public Defender’s Office (hereafter referred to as PDO) reports regularly provide information about difficult
situation of children in different directions in Georgia.
1.1.1 Socio-economic, Historical and Political Discourse of
Georgia
Before explaining why this research paper topic was selected, it is appropriate
to share some basic information about Georgia itself. A short socio-economic,
historical and political discourse will give an overall picture of the country. This
1
will help the reader to understand the problem and its context more – the challenges and peculiarities of current child rights policymaking and implementation practices by the Georgian government, as a main duty bearer in terms of
children’s rights protection and UNCRC implementation.
Georgia is a country with a population of 4.6 million. Its GDP (2010) is $
11.66 Billion and the type of government is Republic. After 70 years of communist regime in 1991, i.e. soon before the collapse of the Soviet Union, the
Supreme Council of the Republic of Georgia declared independence from the
USSR. Like many other post Soviet Republics, after independence Georgia was
characterized by ethnic and civil conflicts in the early nineties. Currently, about
20% of the country’s total territory is not under Georgian Government control
(Abkhazia and South Ossetia) and two main conflicts are still unresolved. Unstable situation in conflict regions ended by 5-day Georgian-Russian war in
August of 2008. As a result of these conflicts, Russia is occupying Abkhazia
and South Ossetia; also these regions are recognized as sovereign and independent countries by Russia (U.S Department of State, 2011).
Apart from the hard socio-economic problems that these conflicts have
brought, between 1992 and 2008 around 300,000 ethnic Georgians were forced
to leave their homes and became Internally Displaced Persons (hereafter referred to as IDPs) (Internal Displacement Monitoring Center 2011).
After the ‘Rose Revolution’ in 2003 a new government came into power
and Georgia started to introduce various reforms aiming to improve the social
and economic conditions of its citizens. One of the challenging problems at
that time was the extreme poverty in the country: almost half of the country’s
population was below the poverty line (UN Georgia 2011).
The reforms that Georgian government has embarked on still continue in
different directions including strengthening the rule of law, combating the
deep-rooted corruption, reforming the police, the judiciary, the educational
system etc. However, these reforms will need further implementation to
achieve the stated goals (United Nations Development Programme 2011).
Despite the fact that the World Bank has recognized Georgia as one of
the world’s fastest-reforming economies1, the official unemployment in 2010
was 16.9 %. The country has problems with expending trade, reducing poverty
etc. The situation has worsened especially after the 2008 war shock when a
new wave of IDPs became an additional burden for the Georgian economy
(US Department of State 2011).
This brief information about Georgia’s socio-economic, historical and political situation helps us to understand the environment of children’s rights in
the country. Georgia is a newly independent country with democratic values,
willing to become a part of European Union but with the communist pastexperience. It has a complicated location (and is a classical example of a buffer
state, for centuries, between the Russian and Ottoman empires). While two
conflicts are ongoing within its territory, and many other challenges exist,
Georgia tries to deal with human rights and especially with children’s rights.
According to the World Bank, Georgia is one of the world's fastest-reforming economies, in 2010 it was ranked as the world's 11th-easiest place to do business
1
2
This paper will explore how the Georgian government, as a main duty bearer
in terms of child rights protection and implementation, is actually implementing its child rights obligations. What are the practices, challenges and successes
of the process of child rights policymaking and implementation in Georgia.
As already mentioned earlier, according to the PDO reports, despite several progressive changes there is still a lot to be done to improve the situation
of children in Georgia and to promote UNCRC implementation in terms of
creating and implementing relevant child oriented policies and programs2.
1.2 Relevance and Justification
Children comprise 25% of Georgia’s population (Save The Children 2011).
According to the United Nations Children’s Fund (hereafter referred to as
UNICEF) supported Welfare Monitoring Study (WMS), almost one quarter of
the households and 28% of Georgia’s children live below the poverty line. The
study also shows that around 40 % of all households cannot provide themselves with enough food, or they consume the food, which sometimes endanger their health, and these households contain 37 per cent of all children
(UNICEF, 2010: 3).
Concluding Observations on the Periodic Reports of Georgia to the UN
Committee on the Rights of the Child provide information about the main
challenges of CRC implementation in Georgia and about constraints in this
regard (CRC/C/GEO/CO/3. 2008).
The PDO report about the children’s rights situation in 2010 provides information about different child rights violations and various system/policy related problems within the country. According to the information of Universal
Periodic Report about Georgia (hereafter referred to as UPR) problems with
street children; accessibility of educational, health and social services; emotional and psychological violence in childcare institutions; and rights violations
within the Juvenile Justice system are still problematic for Georgia. UPR also
provides information about monitoring of childcare institutions conducted by
the PDO Georgia, which has exposed systematic problems regarding lack of
awareness among children concerning their rights, different forms of illtreatment and abuse, forced labour, living conditions below minimal standards,
different forms of discrimination etc. Another challenge is the living conditions
for child detainees. These remain inadequate in juvenile justice facilities. The
absence of relevant reintegration programmes for juvenile convicts/probationers is also a problem (UPR 2011).
Georgia adopted the Child Welfare Action Plan 2008–2011, which outlines the key intervention areas for reforming the child welfare (child care) system within the country. According to the Committee on the Rights of the
Child (hereafter referred as the Committee), this “Plan did not cover all areas
of the Convention”. It recommended “that Georgia incorporate the principle
Report of the Public Defender of Georgia “The Situation of Human Rights and
Freedoms in Georgia”, 2009, 2010
2
3
of the best interests of the child in all programmes and policies” (UPR 2011:
71).
It is worth noticing, that the term “child welfare” in Georgian reality
means childcare and deinstitutionalization. Reducing the number of children
placed in childcare institutions, providing programs for children at risk to prevent them to be placed in childcare institutions, these are major directions of
the reform. (O’Brien and Cahnturidze, 2009: 18)
As we can see, the Committee, UNICEF, PDO Georgia and Georgian
child rights NGOs all are indicating a lack of relevant state policy and programming and/or a need to further improve different directions towards children. As briefly shown above, children in Georgia are facing various challenges
in terms of accessing basic services and enjoying the rights guaranteed by the
UNCRC in different fields of their lives, but this research paper will focus only
on two of them, children in need of special care and assistance: children in
conflict with the law and children without a family environment.
More specifically, this research paper will focus on the example of the performance (in policymaking and implementation) of two main governmental
institutions – the Ministry of Labour, Health and Social Affairs (hereafter referred to as MoLHSA) and the Ministry of Justice (hereafter referred to as
MoJ). Both ministries are extremely important governmental bodies for children, especially in the last decade, when they started to create and implement
reforms. This paper will provide an overview of the policymaking and implementation practices within these two ministries, with special emphasis on two
reforms that are initiated and implemented by them: Juvenile Justice System
Reform (hereafter referred to as JJSR) and Child Welfare System Reform
(hereafter referred to as CWSR). In doing so, I will also concentrate on issue of
compliance of child rights policymaking and implementation practices with the
UNCRC standards and principles by the Georgian state, as the main duty bearer in fulfilling its international child rights obligations.
The main reason for selecting this research topic comes from my personal
experience. Starting from 2002 I had the opportunity to work with different
disadvantaged groups of children such as street children, orphans, juvenile
convicts, children with disabilities and others in Georgia. During eight years I
was involved in several child oriented activities. I worked in the field of juvenile justice before the reform started. For three years I was dealing with the
problems of homeless children placed in childcare institutions, as a director of
this orphanage. From these experiences, I do remember the first glimpse and
contours of CWSR. Finally, I worked with Office of the Ombudsman of
Georgia, where I was involved in monitoring process of the UNCRC implementation in childcare institutions, in prisons for juveniles and many other
spheres of children’s lives. As I have worked in various places and on various
positions, I had the opportunity to see the existing problems in the child rights
field from different angles – from the government perspective (while working
for the Ministry of Education and Science), from the civil society lens (while
working for the human rights NGO and the Office of Public Defender) and
from the beneficiary position as well (while working at the orphanage under
the control of MoLHSA). It was also always interesting for me to find out the
reasons why some services, programs and reforms were not as effective as the
4
government institutions planned them to be. The two core ministries that I
have chosen are those that currently are on the stage of implementing newly
introduced reforms for children – the JJSR and the CWSR.
Considering the information about children’s rights violations provided
above, the topic of this research, which aims to explore the topic of child rights
policymaking and implementation by Georgian government and application of
UNCRC principles and standards in these processes seems to be logical. After
analyzing child rights policymaking and implementation practices of two main
government institutions and assessing how UNCRC principles and standards
are incorporated and used during policymaking and implementation process, it
will be much more easier to find the gaps and reasons of challenges that are
preventing UNCRC principles to be applied on policymaking and implementation processes, and to elaborate relevant recommendations.
The analyses of the child centered reforms of two ministries will show
how different government institutions look at child rights policymaking and
implementation, what is their understanding of the UNCRC, to what extent
they are using it in policymaking process.
The recommendations that this research paper will generate will hopefully
serve to childcare policymakers, professionals and those involved in children
related work in Georgia. Absence of recent researches about child rights policymaking and implementation practices and a lack of relevant literature in
Georgia also motivated me to undertake this research.
1.3 Research Objectives and Questions
As already mentioned, this paper aims to explore the subject of children’s
rights in Georgia but with the focus on specific directions of their rights – juvenile justice and childcare systems in Georgia. The main attention is dedicated
to the role of the Georgian state as a primary duty bearer for the implementation of children’s rights.
What is Georgian government’s child rights policymaking practice and to
what extent the UNCRC principles and standards are applied in the policymaking and implementation process? This is the set of questions that this Research
Paper will try to answer.
More specifically, the research will try to answer the following question:
To what extent Georgian government, represented by MoJ and MoLHSA,
ensures the UNCRC application in its child rights policymaking and implementation process in the JJSR and CWSR?
Together with the main research question, the research will try to answer
the following sub-questions:
Are the UNCRC four general principles applied during JJSR and CWSR
processes?
What are the legislative and administrative steps, taken by the MoJ and
MoLHSA within the framework of above-mentioned reforms?
5
1.4 Methodology
In this research the chosen methodology involves several directions, the main
idea is to assess the child rights policymaking and implementation practices
and their compliance with UNCRC standards by the Georgian government on
example of performance of two ministries by selected articles from the
UNCRC General Comment #53 by the assessment of JJSR and CWSR.
The set of different theories and approaches, about how to measure child
rights, will be discussed in second chapter; here I will try to explain why the
UNCRC General Comments #5 is more convenient for this research, to assess
the child rights policymaking and implementation practices and their compliance with UNCRC standards by the Georgian government.
Besides the monitoring of the individual countries’ performance in implementing the Convention, the Committee periodically works and publishes
its General Comments about the main issues related to children’s rights. Starting from 2001, the Committee issued in total 12 General Comments about different topics such as Education, Juvenile Justice, Adolescent Health etc. One
of the important one’s is General Comment # 5, adopted in 2003, on “General
measures of implementation of the Convention on the Rights of the Child”.
In General Comment # 5, the Committee provides detailed guidance to
member States, as main duty bearers in the implementation and protection of
the children’s rights enshrined in the UNCRC, on how to apply standards,
principles and all articles of the Convention to make real the human rights of
children. General Comment #5 contains six chapters and each of them covers
various directions of children’s rights and a set of measures are indentified to
fulfil the obligations that State members took under the Convention. In this
paper I will focus in some of these measures, which, I think, are more relevant
for this research, these are the following: Four core principles of the UNCRC:
Non discrimination (art. 2) Best Interest of the Child (art. 3), Survival and development (art. 6), Participation (art. 12); Legislative measures, Administrative
and other measures, which contains following directions: Coordination of implementation of children’s rights; Monitoring implementation - the need for
child impact assessment and evaluation; Data collection and analysis and development of indicators; Making children visible in budgets; Trainings and capacity building and Cooperation with the civil society.
The document defines, that the State that have ratified the UNCRC immediately took the responsibility under the international law to implement it,
which specifically means that State Party have obligation of taking actions to
ensure the implementation of all rights of the Convention within its Jurisdiction and for all children (UNICEF 2007)
All international conventions have at least one article that sets out the
overall implementation obligations, In the case of the UNCRC, article 4 defines the concept of States’ obligations to implement all rights of the Convention by taking “all appropriate legislative, administrative and other measures”.
General measures of implementation of the Convention on the Rights of the Child
(CRC/ GC/2003/5)
3
6
Article 4 of the Convention also mentions that lack of resources can prevent the full implementation of the rights, especially economic, social and cultural rights, but at the same time it introduces the concept of progressive realization of rights which means that “States need to be able to demonstrate that
they have implemented to the maximum extent of their available resources and
where necessary, have sought international cooperation” and in doing so, special attention should be paid to the most disadvantaged groups
(CRC/GC/2003/5).
General Comment #5 provides detailed provisions and measures that
States, as main duty bearers should implement the Convention with the help of
legislation, establishment of coordinating bodies, data collection, establishment
and implementation of relevant policies, trainings and other needed actions
(UNICEF 2007).
General Comment #5 encourages States Parties to implement the articles
of the Convention in the light of its general principles:
“Article 2: the obligation of States to respect and ensure the rights set
forth in the Convention to each child within their jurisdiction without discrimination of any kind,
Article 3: the best interest of the child as a primary consideration in all actions concerning children
Article 6: the child’s inherent right to life and States parties’ obligation to
ensure to the maximum extent possible the survival and development of the
child
Article 12: the child’s right to express his or her views freely in all matters
affecting the child, those views being given due weight”
(CRC/GC/2003/5: 4)
Apart from the UNCRC core principles, legislative and administrative
measures are identified as other important components of the General Comment #5 that have been selected for this research paper as assessment tool.
As already mentioned, in assessing the reforms of two ministries, the main
focus will be on legislative and administrative measures that these governmental institutions are taking in terms of create and implement child rights policy in
this case expressed in their reforms, also compliance with the principles of the
Convention will be assessed based on four UNCRC core principles, that are
guiding for whole convention. More specifically, the reforms and the programs
that these reforms contain will be assessed whether they are expressing the essence of these important principles in both – policymaking and implementation phases.
In sum, combination of these directions will provide the possibility to
draw the picture about child rights policymaking and implementation practices
by the Georgian government, represented by MoJ and MoLHSA on the example of JJSR and CWSR.
7
1.5 Sources of Information
1.5.1 Primary Data
By fieldwork in Georgia I gathered important data through interviews with key
persons/professionals working in the sphere of children’s rights. More specifically, I interviewed representatives of the two ministries (MoJ and MoLHSA)
that are main policymakers for children. The interviewees were: the Deputy
Head of the LEPL “Service Agency for Disabled, Elderly and Orphans” under
the MoLHSA –Kakachia, George; the Director of the “Social Service Agency”
under the MoLHSA –Nadareishvili, Irakli; the Head of the Unit of Guardianship and Custody of the Department of Guardianship-Custody and Social Programs at the Social Service Agency –Tskhakaia, Eter; the Head of the Administration of the MoJ –Gigauri, Andro and the Deputy Head of Department of
Prisons at the Ministry of Corrections and Legal Assistance –Tsintsadze, Irina.
All these professionals are involved in policymaking and the implementation
processes of ongoing reforms. From civil society I interviewed representatives
of NGOs working for juvenile convicts, for street children and those placed in
childcare institutions. More specifically I spoke with the Director of the Georgian Centre for Psychosocial and Medical Rehabilitation of Torture Victims
(hereafter referred to as GCRT) –Tsiskarishvili, Lela; the Director of the NGO
“Child and Environment” Iashvili, Nana; the Director of the ”Union Saphari –
Family without violence” Zazashvili, Natalia; the Executive Director of the
Public Health and Medicine Development Fund of Georgia (working against
child abuse and neglect) –Saralidze, Lia; the Head of the Child and Woman’s
Rights Center at the Office of the Public Defender of Georgia –Arganashvili,
Anna; the Country Director of “Every Child – Georgia” –Dadiani, Andro; the
Communication Officer at UNICEF Georgia –Kurtsikidze, Maia. Finally I also
managed to have interviews with a few children who are currently living in
childcare institutions or just in the streets, and their parents. I interviewed two
sisters (M.I and T.I) who were first placed in a childcare institution, but then,
in accordance with the reform, were reintegrated. Now they live with their biological family. In addition I interviewed a 17 years old orphan girl (A.S), who
lives in childcare institutions in the capital of Georgia, a 12 years old boy (D.T)
who lives in a childcare institution outside of the capital (IDP child) and finally,
the mother (S.A) of 6 children, 4 of whom are receiving services from a childcare institution. The Georgian government registered the family as below the
poverty line.
Unfortunately, I was not able to conduct interviews with juvenile convicts,
because of the safety procedures of the Ministry of Corrections and Legal Assistance (hereafter referred to as MCLA). However, as mentioned above, earlier on I was partially involved in the first phase of the JJSR and at the time I
had the chance to meet children placed within JJ facilities several times. These
experiences will also inform the framework of this research.
I held in-depth interviews with respondents to find out detailed information about their approaches, current practices, concerns, activities, challenges and future plans towards children’s rights policymaking and implementation,
and application of the UNCRC principles/standards in these processes.
8
I also conducted semi-structured interviews mainly with children to discover how children experience and see for themselves, what are the outcomes,
practical benefits and challenges of ongoing reforms, and to what extent they
are involved in the reforms that government is designing and implementing for
them. I also probed how they see the effectiveness of existing programs (there
are several programs within the scope of these reforms).
In sum, the comparison of the information gained from the interviews
with representatives of the government, NGOs and international organizations, brief analysis of the national legislation and policy documents about JJSR
and CWSR, and information from children about the usefulness and effectiveness, challenges and weaknesses of the ongoing two reforms as well as methods and current practices of child rights policymaking and implementation and
their compliance with UNCRC standards will help the reader to somehow generalize this information and understand to what extent child rights policymaking and implementation process generally works in Georgia.
1.5.2 Secondary Data
Following the research topic, I will analyze two main reforms towards children
and their compliance with the UNCRC that Georgian government is implementing during last decade. More specifically, the main aspects how these reforms are initiated, planned, implemented and assessed. In the research will be
overviewed the several reports from child rights NGOs, International child
rights organizations and the PDO; UNCRC recommendations, different
Books, relevant journal articles and researches will be also used in the research
paper. But the main attention will be dedicated to the reforms themselves, that
each comprises of different programs or activities.
Aggregation of the primary and secondary data will allow the readers to
see the real situation from different perspectives: the government’s point of
view, and respectively the children’s and the civil society perspective.
1.6 Limitations and Scope of Research
The information about child rights policy making and implementation practices, and application of UNCRC standards and principles in this process by the
Georgian government is scattered in different documents (Government, PDO,
NGO reports and researches, UNCRC recommendations and related documents, different policy papers, legislation etc). Most importantly, during the
fieldwork, the forth periodic report of the republic of Georgia to the Committee (especially information about the implementation of reforms mentioned
above) was not available for me just because it was not ready yet. Another limitation of this research is that it would not go through all aspects of the JJSR
(targeted groups are juvenile inmates, children in conflict with the law) and
CWSR, just because both of them are very large and composed of different
programmes and sub-programmes, which is practically impossible to cover in
this research. Especially in relation to CWSR, the main focus will be on Deinstitutionalization programme (targeted groups are: children living in the child
care institutions, reintegrated children and those, from disadvantaged families).
9
Despite the fact that there are several attempts from the government to
raise awareness about the reforms among population, and there are several
child rights NGOs and international organizations actively involved in the process of reforms, it should be mentioned that there is a lack of academic research about the effectiveness of these reforms. Mostly, analysis about the effectiveness of the reforms is based on rough statistics only and not on the
content or concrete methods of those reforms (Arganashvili 2011).
There have been some problems during the fieldwork mostly related to
the availability of interviewees because of the summer time and vacations. Or,
in some cases, the very typical answers from Georgian government representatives meant that sometimes they tended to avoid answering the main questions,
and that they spoke only about the successes of the reforms. This occurred
mostly during the interviews with the representatives of the MoLHSA.
Unfortunately it was impossible to have interviews with children involved
in the JJ system as was planned before the field work, but on this aspect I will
use my own experience and information that I’ve collected during two years
while participating in the juvenile justice reform working group under the MoJ
as a representative of Ministry of Education and Science of Georgia.
In conclusion, despite the constraints such as the limited data (Statistics,
research) in the research field and sometimes, partial or one-sided information
about the performance of the ministries, it should be noted that I managed to
gather the data that I was looking for just because I think I complement the
lack of information from the interviews with children, parents, civil society
representatives that were often quite critical to some issues.
10
Chapter 2
Theories about Children’s Rights Assessment
The theories that will be discussed in this chapter, are only the part of a variety
other concepts and mechanisms that were developed for children’s rights
measuring so far. Each of it has its own goal and specific tools to measure specific direction or general situation of children’s rights. As the examples will
demonstrate, there are lot of theories about measuring, monitoring of the
rights around the world.
2.1 Concept of Monitoring
To assess the extent of compliance of policies with the UNCRC Standards and
principles that government is creating and implementing, one needs to monitor
all actions taken by the government towards children in specific fields.
Monitoring of children’s rights generally means to somehow discover the
reality, in which children live, and measure the extent of enjoyment of rights
enshrined and guaranteed by the UNCRC. This process is important in following ways: on the one hand, to discover the rights of children that are not adequately protected or the groups of disadvantaged children that may be discriminated and left out of the relevant policies and programmes; on the other hand,
to assess the effectiveness of the actions and programmes that are in place, to
ensure the full enjoyment of rights by children (UNICEF, 2006).
Different approaches have been developed in terms of children’s rights
measuring. For instance, Carvalho (2008) proposes an alternative approach to
measuring children’s rights. It is a measurement matrix that could be used to
chart the fulfilment of obligations that State Parties have towards children. The
base of the matrix is the international consensus about States’ obligations, human rights principles and children's rights principles. The author tries to chart
out the whole spectrum of indicators that might be needed to measure children’s rights. While talking about the indicators, the notion of monitoring becomes important, which according to the UNDP definition is a process of describing how the situation progresses or regresses, involving data collection
and analysis about the implementation process, results and recommendations
as well if needed (UNDP, 2002).
Human rights monitoring is a way to measure the extent of states’ capacity
to fulfil their obligations (de jure protection of human rights) by relating them
to practical records of human rights (de facto realization of human rights). This
kind of monitoring is very rational and important of human rights field, in
terms of holding states accountable. Human rights monitoring can be implemented also at the national level by national human rights commissions/institutions, which usually monitor/investigate and/or document different cases and sometimes human rights trends as well (Landman and
Hiusermann 2003: 14, 15).
11
2.2 Human Rights Impact Assessment
Another interesting approach and tool in relation to assessing children’s rights
is Human Rights Impact Assessment (HRIA). This is a fairly newly introduced
process to investigate and measure the impact of the policy/programs on human rights. One can also use HRIA tools for advocacy, creating rights-based
recommendations for strengthening policies and programess (Bakker 2009:
436).
The HRIA concept was developed in the late nineties for the reason that
integration of human rights into different policies/programs should lead to
improvements in human rights itself. According to Landman, there was an absence of transparency in policy making, and despite the existence of various
international agreements or national laws, it was pretty unclear how these obligations were translated into everyday policy making, and, most importantly, the
issue of whether they were helping to strengthen human rights situation?
Without transparency and having other relevant information it was practically
impossible to make governments accountable for what they do or not do in
terms of human rights. In this article author argues about importance of human rights measurement to continued attention on human rights violations. It
also demonstrates, that “human rights can be measured in principle, in practice
and as outcomes of policy” (Landman, 2004: 926).
Human rights indicators should have close relations with specific rights,
stated in relevant international treaties, articles, general comments of the committees etc. They should reflect main human rights principles/standards (indivisibility, participation, nondiscrimination, accountability, empowerment),
which means that data should be carefully collected from different groups.
HRIA tools mostly have developed without agreed indicators, which means
they have their own indicators to measure impacts, but sometimes there are
“agreed” indicators as well, such as drafted guidelines on the poverty reduction
by the Office of the High Commissioner for Human Rights, that have several
indicators about right to health, to education, to work etc. HRIA tools have
various functions (for instance an advocacy) and it may consist of several steps,
such as policy analysis, international treaties and national legislations, government commitments/state obligations etc. HRIA provides steps for translating
human rights principles form relevant international treaties to the ground
(Bakker 2009: 454).
2.3 Rights Based Approaches to Programming
To measure the effectiveness of the policies and programmes, the concept of
right-based approach to development is also relevant. It is often introduced as
contrasting with the Needs-Based Approach, but both have a common goal: to
help people to develop to their full potential. Both are oriented to identifying
the actions needed to achieve this goal. The main difference between the two
approaches is that the needs-based approach does not come with accountability. The rights-based approach has legal and moral obligations and accountability as well. In a needs-based approach, the holders of rights are seen mostly as
objects of charity, while in the rights-based approach they are empowered to
claim rights (Save The Children, 2006:25).
12
There is also a specification in the form of Child Rights Programming
(CRP), among others worked out by Save the Children to help apply rightsbased approaches in programming. CRP is a unified framework that brings together a broad set of experiences, approaches and ideas to child rights and development. It is a combination of UNCRC principles and standards and childhood studies.
“Child Rights Programming means using the Principles of Child Rights to
Plan, Manage, Implement and Monitor programmes whit the Overall goal of
strengthening the rights of the Child as defined in International Law”.
(Save The Children 2006: 26)
It is worth noticing, that a Human Rights-Based Approach to Programming (HRBAP) has more advantages than basic needs and human development approaches to programming: increased accountability. It make good programming obligatory and not optional, it helps empower people and provides
better protection for them, it is more related to obligations than charity and
solidarity, it promotes indivisibility and universality of rights, rule of law etc
(Jonsson 2005: 49).
The importance of HRBAP has increased gradually over the years, for instance, in 1996 UNICEF adopted its first Mission Statement, where the children’s and women’s rights (guaranteed by the UNCRC and CEDAW4) have
been recognized as fundamental, but two years later, the Executive Directive
was issued, which contained guidelines for HRPAP that was developed for all
country offices to re adjust their programming (Jonsson 2009: 57).
The UN Convention on the Elimination of All Forms of Discrimination against
Women (1979)
4
13
Chapter 3
Juvenile Justice System Reform (JJSR)
3.1 Problem Statement
“..Juvenile justice system fails to implement the articles of the UN Conventions on the Rights of the Child and does not meet UN minimum standards
and norms on Juvenile Justice or current notions of good practice. The current system is rigid, and there is too little emphasis on prevention and diversion from the criminal justice system. … There is no specific juvenile criminal
procedure for children who appear before the court. Children are tried in
adult courts under the same procedure and conditions as apply to adult offenders”.
(Hamilton. 2007: ii)
This short analysis of the Georgian juvenile justice system by a UNICEF expert clearly shows the challenging situation, which was characteristic for the
period before the Georgian government in 2009 started to create and implement juvenile justice reform in the country.
At that time, juvenile justice system was mainly still similar to Soviet rule
providing very little discretion and alternatives to criminalization to meet child
rights standards. The whole process of juvenile justice was far from meeting
the UNCRC standards, starting from the arrest, pre-trial detention, investigation, prosecution and imprisonment; especially detention facilities for juvenile
offenders were places of huge children rights violations (Hamilton 2007: 50).
Before the reform, the law did not prevented personal details of children
in conflict with the law being made public; according to the Georgian legislation judges, prosecutors and Investigators were receiving yearly trainings about
psychology and pedagogy before working with such children, but other professionals, involved in JJ system such as police officers, lawyers, social workers,
teachers etc. were not obliged to receive these trainings; from the moment of
the arrest an independent adult was appointed to accompany the juvenile but
the person might not have received any special instructions about the role and
procedures. From 2005 to 2007, the number of use of custodial sentence towards juveniles has been increased5: 22% of convinced juveniles in 2005, 34%
in 2006 and 40% in 2007, which means that the rate of use of alternative sentences/non-custodial sentences (like community services) was law. However,
from 2008 the number of custodial sentences has decreased to 33%. The JJ
detention facilities were very poor, with not enough space and limited social
and education activities. The other problem was related to the data of juvenile
convicts, which sometimes was contradictory (data from Supreme Court, the
Prison and Probation Departments of MCLA) (JJ Strategy 2009: 2).
5
Department of Prisons at the Ministry of Corrections and Legal Assistance
14
The minimum age of the criminal responsibility usually was 14, but for a
short period of the time Georgian government decided to decrease it till the
age of 12, which was against the international child rights standards, The
Committee in its concluding observations of the third periodic report of Georgia deeply regrets about the lowering the minimum age of criminal responsibility from 14 to 12 (CRC/C/GEO/CO/3: 19).
Apart from this specific subject, Georgian government has received several suggestions through the Committee’s Concluding Observations about the
immediate need of improvement of the children’s rights the juvenile justice
field in Georgia; specifically about: need of establishment of juvenile courts
and provide trained professionals in the JJ system; consideration deprivation of
liberty only as a measure of last resort, protection of JJ inmates rights within
the JJ facilities and provision of relevant living conditions; concentration on
prevention activities; developing alternative measures of detention such as diversion; provision of legal assistance and basic services such as education,
healthcare etc. (CRC/C/GEO/CO/3: 18).
As it stated on MoJ website, “Government of Georgia is committed to
develop child-friendly juvenile justice system in compliance with international
standards and oriented on the best interest of the child” in the cooperation
with international and local organizations an institutions, and through comprehensive inter-agency approach involving wide range of stakeholders, including
civil society. It also says, that the JJ strategy is gradual shift to more liberal
criminal justice policy towards juveniles
(http://www.justice.gov.ge/index.php?lang_id=GEO&sec_id=651&lang_id=
ENG).
As the head of the administration at MoJ have said in his interview: before
the reform, the juvenile justice system in Georgia was characterized by a zero
tolerance policy towards juvenile offenders, and it changed with the current
reform and became much more liberalized (Gigauri 2011).
3.2 General measures of Implementation of the UNCRC
As stated in the methodology section, the JJSR will be assessed according to
some articles of the General Comment #5. The assessment of the first stage of
policymaking, involving the process of planning and creation of the JJSR, revealed that the UNCRC general principles are used and applied; for instance,
according to the MoJ representative:
“The general principles and other articles of the UNCRC are basis of the current
reform, the policy documents and each activities/programmes that are the parts of
the reform, are exactly for the implementation of those principles in reality; Our
approach is rights-based, but while the system is fragile and reform is not strong
enough, we have to combine these two approaches” (Gigauri 2011).
15
In the guiding principles of the working group on JJ6 is clearly stated, that
the JJ strategy and plan should be developed in line with the international
standards (UNCRC recommendations); More Specifically, it should involve:
Improvement of education and living conditions for juvenile inmates (sentenced and pre-trial) and refined service provision for juveniles on probation;
to draft outline of the training programme for probation officers dealing with
juvenile probationers (official training module) and include relevant expenditure for Criminal Justice Reform conditions in draft budget for JJSR (MoJ
2008:1).
The best interest principle should be applied systematically throughout the
government in every action or decision concerning children, such as “a proposed or existing law or policy or administrative action”; Also, State have to
“listen” to children, allowing them to participate in implementation of his/her
rights, and respect and ensure the realization of rights without any discrimination; and, “implementation measures should be aimed at achieving the optimal
development for all children” (CRC/GC/2003/5:4).
The use of UNCRC general principles in the planning and implementation
processes of JJSR seems to be a normal practice for MoJ and all relevant stakeholders involved in the reform:
“First of all, the main attention is to best interest principle which is crucial for
diversion programme especially; it is in best interest of juvenile offender to
participate in diversion programme, which provides enormous chances to not
be imprisoned. The best interest principle is guiding for prosecutors and every professional that is involved in JJ system. The participation principle is also
important, every step that is taken in diversion programme is agreed with juvenile, he/she participates in every meeting, involved in mediation process
he/she is seen as responsible person for his/her life and not only the receiver
of help or benefits” (Gigauri 2011).
It is important to note, that NGO representatives, that usually are very
critical about government’s reforms, also provide relatively the same information about planning and implementation process of JJSR: “All the programmes that MoJ is implementing in JJ are truly in full compliance with
UNCRC standards and principles” (Kurtsikidze 2011).
According to the GCRT representative, their organization is a partner organization for the MoJ and MCLA in terms of JJSR; therefore they are implementing different programs in JJ facilities. In her opinion, one of the major
achievements of this reform is establishment of individual plans for imprisoned juveniles, which is now governed by the JJ facility regulations as well.
This means that every juvenile inmate should have individual plan during
his/her imprisonment period that is created with the help of inter-disciplinary
group (social worker, psychologist, teacher and coach). The main idea is to facilitate to the maximum extent possible for each end every juvenile inmate, the
In 2008, The Criminal Justice Reform Inter-Agency Coordinating Council established the working group on Juvenile Justice System; the mandate of the Working
group was elaboration of the strategy for Juvenile Justice System Reform in Georgia
6
16
period that they have to spend in the prison. “In this challenging period of
their lives relevant rehabilitation, education programmes should be introduced
for them, according to their best interests” (Tsiskarishvili 2011).
Georgia acceded various international conventions, but the main international instrument regulating the rights of children within the JJ system is
UNCRC (articles 37, 39, 40), which is supported by the UN Minimum Standards and Norms in Juvenile Justice (Hamilton 2007:6).
Following two international documents are also regulating the juvenile justice system, those are: The United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (1990) and The United Nations Guidelines for
the Prevention of Juvenile Delinquency (1990) (PDO 2010: 287).
The Constitution of Georgia requires domestic legislation to be in compliance with the international standards and principles that are universally recognized:
“The legislation of Georgia shall correspond to universally recognized principles and rules of international law. An international treaty or agreement of
Georgia unless it contradicts the Constitution of Georgia, the Constitutional
Agreement, shall take precedence over domestic normative acts”
The Constitution of Georgia, Article 6
Cooperation with civil society and training and capacity building, involvement of all relevant stakeholders in the reform planning process is very important, as it stated in General Comment #5. “The State needs to work closely
with NGOs in the widest sense, while respecting their autonomy”; Also, states
should provide trainings and capacity building for all professionals working for
children, for example, professionals “working with children in institutions and
places of detention” (CRC/GC/2003/5: 13).
As representative of MoJ states, the ministry always has intensive consultations with international and local organizations, with PDO or other government agencies, before it starts implementation of new programmes. Most importantly, MoJ is considering the remarks and recommendations about the
policy/programmes that these organizations are providing (Gigauri 2011).
The working group on JJ, comprised by the different state and non-state
actors, as well as professional individuals of the field, have had meetings on
regular basis to elaborate most relevant, consistent and best JJ strategy for the
Georgian reality. Within the framework of Criminal Justice Reform, JJ direction was one of the most important component, and its planning process went
strongly in accordance to the Committee recommendations and UNCRC
standards.
Selected articles, from the General Comment #5 for this research, mention about the importance of coordination of implementation of children’s
rights; cooperation with the civil society and making children visible in budgets, which the working group actually implemented. The variety of its members, representing relevant NGOs in JJ field, international child rights organizations, national human rights institution and different ministries were actively
participating group meetings. At that time, I was personally involved in this
process and can say that the diversity of the group played an important role in
17
the future success of the JJSR. According to my experience, every aspect of the
reform was subject of discussion and recommendation from every group
member that was reflected in the final product. The representatives of different
relevant ministries undertook budgetary responsibilities for implementation of
various components of the JJSR with the specific allocations of resources, and
the MoJ, as the leading government agency for the reform, had coordinated
whole process of the JJSR strategy throughout all stakeholders.
According to civil society and PDO representatives, JJSR reform was
planned properly, with the involvement of all relevant stakeholders, as the
PDO representative remembers, despite the scarce human resources of the
Child’s and Woman’s Rights Center, (where she works) they were participating
every JJ working group meetings, organized by the MoJ, “because we saw that
our recommendations/suggestions were taken into account, and most importantly, involvement of relevant stakeholders and professionals in the child
oriented policy elaboration process, is vital for its success” – she says (Arganashvili 2011).
Within the framework of the JJSR, with the help of international donor
organizations and local NGOs, government is implementing various activities.
UNICEF is one of the important partners of Georgian government in JJSR;
“We are cooperating in various directions; for instance, our organization is
providing trainings for all professionals who are involved in JJ system, such as
teachers, social workers, guards, judges, prosecutors, police officers etc. We are
cooperating in capacity building as well”- says UNICEF representative (kurtsikidze 2011). The representative of an NGO, called GCRT states, that their
project is implemented within the framework of JJSR together with Georgian
government, which also aims to send trained, young professionals in the JJ facilities to start new programmes (Tsiskarishvili 2011).
About the coordination and implementation of children’s rights, there are
opposite concerns, several civil society and government representatives think,
that the coordination of JJSR is very well organized and the major part in the
process is from MoJ. But, for instance, representative of the prisons department at MCLA, says, that because of the lack of coordination and probably,
also the lack of “controlling” mechanism, the implementation of the JJ strategy
and plan is not realistic for some government agencies. And, despite the fact,
that it was agreed with interagency council and written in the plan, some small
programmes just have been failed; the reasons are related also with the of lack
of knowledge and finances as well, she thinks (Tsintsadze 2011).
Monitoring and implementation – the need of child impact assessment
and evaluation, and data collection and analysis and development of indicators
are another components of General Comment #5. They aim to remind the
governments about self-monitoring and evaluation obligation, also about the
importance of “independent monitoring of progress towards implementation”,
and about “collection of sufficient and reliable data on children”
(CRC/GC/2003/5: 11, 12).
As it is stated in the JJ strategy document, “the measurement of indicators
facilitates evidence-based assessment of policies and enhances the accountability of duty bearers”. Therefore, consolidated and accessible statistics on juvenile offenders are important. This kind of data and statistics, which should be
18
collected systematically, would be available under an integrated case management system implemented by the relevant stakeholders, of course with the protection of personal information (MoJ 2009: 5)
Unfortunately, NGO representatives that were interviewed during the
fieldwork were not aware about the mechanism and system of data collection
in JJSR. But, PDO representative pointed out the importance of the monitoring by the national human rights institution; As for the MoJ representative, the
data collection and monitoring seems to be very important issue for whole reform process; permanent self-evaluation and discovering weaknesses and challenges within the JJ system make possibility for further work and development,
and more success of the reform, he says (Gigauri 2011).
Making children visible in budgets – the Committee gives much attention
to the governments’ budgetary decisions, which should be made “with the best
interests of children as a primary consideration… including in particular marginalized and disadvantaged groups of children” (CRC/GC/2003/5:12)
The Government and European Union finance the activities under JJSR
within the umbrella of Criminal Justice Reform. UNICEF is also one of the
donor organizations that provide assistance (represented in various programs
in JJ system). In this case, financial support, that JJSR has from the international donors is vital: “I don’t think, that without donor’s support this reform
would ever been implemented, especially now, when the country’s economic
situation is really problematic” – says NGO representative (Zazashvili 2011).
3.3 Findings
To conclude the reform process of JJ system, particular attention should be
developed towards following directions:
 Performance of the government in elaboration and implementation of
the JJSR (in this case represented by MoJ), through the selected
measures from the General Comment #5;
 Implementation of the Committee’s concluding observations to the
Georgia’s third periodic report about JJ system;
 Evaluation of information obtained from interviewees during the
fieldwork.
For the first direction, which was already discussed above in details, we
can conclude, that the application of the UNCRC principles and standards is a
common practice for the government, especially for the policymaking stage,
but for the implementation part as well; however, the latter still faces problems,
which is mostly related with the lack of knowledge, coordination and resources
(financial and human).
As for the second direction, it should be noted that JJSR has covered almost all recommendations, starting with the implementation of diversion programme, provision of the JJ system with skilled and trained work force, establishment of rehabilitation and other programmes, as well as individual plans for
juveniles, use imprisonment only as a measure of last resort, provision of legal
assistance and basic services such as education and healthcare, development of
19
preventive activities. But, in terms of provision of relevant living conditions
there are still problems:
“Of course we are trying to implement UNCRC standards, but it is very difficult for us, because of the current reality, despite the JJSR reform started and
lot of child oriented new programmes were introduced for juvenile offenders,
we still don’t meet the minimum living standards that are guaranteed by the
Convention. It is related to financial resources, Georgian government does
not have financial means to build new JJ facility, and almost every activity in
JJSR is financed by donor international organizations” (Tsintsadze 2011).
UNICEF country representative assesses JJSR positively and says, that for
instance, thanks to the enactment of diversion programme, many juveniles are
not sent anymore to the prisons, which, she thinks, is already a colossal success; “In cooperation with the UNICEF, government started various childcentered programmes in JJ system, which gives me the possibility to say that
government’s policy in this directions of children’s rights is successful and
meets the international standards” (Kurtsikidze 2011).
In conclusion, all the interviewees are pointing about the success of the
JJSR reform so far, and providing different versions about the causes of this
success; For the GCRT representative, in the reform process important role
have played some personalities within the MoJ and MCLA. “Activities that our
organization initiates for juvenile offenders would not be implemented without
strong political will and support of few key persons, working in the system. I
really appreciate their commitment especially in this, very oppressive and oldfashioned environment”- she said (Tsiskarishvili 2011).
For another NGO representative, who is very critical to the government’s
performance in implementing children’s rights in general, - government agencies have superficial understanding of the UNCRC, and every good initiative
that is happening in terms of child rights protection, she thinks that, it’s just
because of European Union pressure on the government to implement the
child rights obligations. But, at the same time she speaks about exceptions,
such as MoJ and its JJSR; and, as for the major reason of reform’s success she
names the dedicated professionals working for the MoJ (Zazashvili 2011).
PDO in his report also provides information about several components of
the JJSR, such as diversion and mediation programmes, and gives recommendations to MoJ to strengthen the reform, more specifically it recommends:
“To ensure the reinforcement of introduction of juvenile justice principles into the Georgian legislation; to ensure the improvement of diversion program
mechanism in terms of both, legislative and practical viewpoints, and to ensure the development of integration and rehabilitation oriented services network within the framework of juvenile diversion program” (PDO 2010: 289).
In sum, the combination of: political will, international obligations, relevant actors, different professionals involved, and financial resources made possible the JJSR to be successful so far. It is important to note, that the government’s policy aims to look at the JJSR from the lens of rights-based approach,
which is promoted and supported by the UNICEF, European Union and other
international donors as well. But, the current infrastructure, the lack of skilled
professionals (majority of the staff at JJ facilities are with old, not really child20
oriented mentality, which makes challenging reform’s implementation according to the local NGOs) and financial resources, makes system more fragile and
sometimes oriented only on satisfaction of the needs of juvenile offenders. As
MoJ representative stated in his interview, the JJSR reform has a good start,
and this long process will become more successful in the future (Gigauri 2011).
21
Chapter 4
Child Welfare System Reform (CWSR)
4.1 Problem Statement
Georgia is undergoing important demographic and economic changes, after
nineties, when country experienced economic collapse the economy started to
grow, but the growth was not beneficial for all population, and mostly for children. As already mentioned, according to the assessment of the child poverty
in Georgia children are one of the most vulnerable groups of the population at
risk of poverty.
Government spending on social issues is one of the largest comparing to
other directions. The social assistance program that started in 2005 meant to
provide most vulnerable households with cash. This was a progress step made
by the government towards children, because as already mentioned, children
are among poorer households (O’Brien and Chanturidze 2009).
Child welfare reform started in 1999, when the pilot project of deinstitutionalization was established, aiming to reduce the number of childcare institutions in the country by integrating children in biological families or different
types of foster care. In 2001 it continued by the state programme for “Prevention of the Abandonment and Deinstitutionalization”. The second stage of the
reform started in 2004, when the post revolution government decided to form
an inter-ministerial government commission for child protection and deinstitutionalization and restructured its institutions responsible for child welfare. Before the third phase of the reform started, the responsible government institution for its implementation was the Ministry of Education and Science, but
from 2009 MoLHSA totally undertook whole child welfare reform under its
supervision (www.moh.gov.ge).
None of requirements that are stated in the UNCRC, such as physical
(safe environment, access to healthcare and healthy food, protection form violence etc), emotional (being loved and cared, sense of dignity etc), social (integration within society etc), development (education etc) and spiritual (freedom
of religion etc), by the assessment of UNICEF financed research, have been
met for the children living in Georgian childcare institutions at the time of the
research (UNICEF and SRI 2007:4).
More recent concerns about the human rights of children placed in childcare institutions throughout Georgia are stated in details in PDO reports of
2009/2010. Almost every year PDO is conducting the monitoring of state
childcare institutions to assess the situation of children’s rights living there.
Last monitoring was done in the beginning of 2011, which revealed various
rights violations that can be sorted in following directions: Violence cases from
the childcare institution staff members, miserable living conditions, sometimes
even dangerous environment for health and, anti-sanitary; Child labour (children are forced work, cleaning restrooms in childcare institutions, cleaning
houses of teachers etc); Insufficient and not healthy nutrition; Absence of psy-
22
cho-social rehabilitation (some children are in extreme need of adequate psychological assistance); Problems with deinstitutionalization process: children
reintegrated in their families do not have adequate nutrition, education and
other basic provisions, “some of children survive by means of bagging, after
being reintegrated with their families” - states the report (PDO 2010:96).
As we can see, according to PDO, which is an authoritative National Human Rights Institution in the country, the situation of children, living in childcare institutions has not really improved.
As reiterated in Concluding Observations to Georgia’s third periodic report to the Committee, concerning the family environment and alternative
care, the large number of children are placed in childcare institutions not because they are orphans, but because of lack of relevant services and financial
support of families in need. The Committee is concerned about the reform in
childcare system, which mainly is focused on children in institutions and not
on the issues such as poverty, it welcomes the progress achieved in 2005-2008
(National Plan of Action on the Protection of Children and Deinstitutionalization), but remains concerned about the absence of state monitoring mechanisms of children, who left childcare institutions (CRC/C/GEO/CO/3: 8).
In interview, with the mother of children that have been reintegrated from
the state childcare institutions, she states that only because of the poor economic conditions of her family, six years ago she had to place her four children
in childcare institution, which for the family was a big relief (because institution
was providing food, clothing and basic health care for children). She also mentions, that after reintegration, her family faced really big problems again related
with food, clothing etc. “At the same time, now I’m not able to work, because
nobody will take care for my children during the day, and I don’t know what to
do” (S.A 2011).
Many families are in the same situation that after the reintegration is done,
they have to survive and satisfy at least basic needs of their children. I interviewed two sisters that have been reintegrated several months ago, their parents are unemployed and they cannot afford many things that the childcare
institution was offering for them before:
“Everyday me and my sister were going to childcare institution and were
spending there whole day. We participated in different interesting programmes, such as music lessons, receiving school books for free etc. but now
it’s already one month that we are not going anymore there, because they say
that it will close soon. It means that, unfortunately, we will not have music
lessons anymore, we cannot afford it, because we are poor, as our mother
says” (T.I and M.I 2011).
The replacement of children from large state funded childcare institutions
to more family like services is one of the main priorities of CWSR. In this process there are several options and possibilities to reintegrate a child in: biological family, foster care or small group home services (SGH). The conditions and
environment in these services should be equivalent to the natural family settings, and should positively contribute child’s development (Plan of Actions
2010: 3).
23
Development and improvement of relevant legislation is one of the important and progressive steps that have been taken within the framework of
this reform, which simplified the procedures of child’s reintegration; Regional
bodies of guardianship and care were established; the number of large childcare
institutions was reduced (from 46 to 20) and children were reintegrated in new
opened SGHs (37); Generally, there is a tendency from the socially vulnerable
households to place their children in childcare institutions just to have the possibility to work and earn money for living, that is why government decided to
prevent this kind of placements and establish/develop day care centres for this
reason. The most vulnerable and problematic group of children in terms of
deinstitutionalization are children with disabilities that usually are placed in
childcare institutions right after their birth. Therefore, the possibility/probability of their reintegration into biological family is not high, as well as
adoption or reintegration in foster care services, which is a challenging practice.
The problem of street children is still urgent, within the framework of CWSR
is planned to develop relevant services for them as well (Plan of actions 2010:
4).
The PDO annual report contains information about the monitoring, conducted in 2009 in state funded childcare institutions stating that conditions for
children are extremely poor and are not in accordance with existing childcare
standards. It is worth noticing that in 2009 MoLHSA adopted7 the uniform
standards for child care for all childcare institutions in the country, but as the
monitoring revealed, these childcare institutions were not receiving enough
financial and human resources to implement these standards (PDO 2009: 192).
PDO report also provides information about EU funded survey8 for the
piloting of childcare standards, according to which state funding of childcare
institutions was limited and especially was not enough to implement these
standards. And, despite the increase of CW budget over the years (from 6,7
million in 2004 to 17,58 million GEL in 2009), resources were allocated nonproportionally; and, providing adequate care for children in large state childcare institutions became secondary priority after the development of alternative
care services (PDO 2009: 193)
The Child Welfare Action Plan 2008-2011 provides information about the
main goals and areas of intervention in the mentioned period. It states, that
state care system should provide adequate, diverse services, based on the individual needs of children in need. To achieve this broad goal, it provides the list
of activities/indicators that should be developed and implemented, and list of
results that should be achieved. Expected results are: gradual decrease of number of children placed in large child care institutions, all child care institutions
met the state child care standards, increase the number of alternative care services such as foster care and SGH, the placement of every child in state care
services is based on social workers assessment (CAP 2008: 19).
Resolution No281/n of the Minister of Health, Labour and Social Affairs on adoption of the child care standards, August 26, 2009
7
’Piloting of child care standards’ (2008). EU supported project on support of reforms in
the child welfare sphere, ACT Marketing Surveys and Consulting
8
24
4.2 General Measures of Implementation of the UNCRC
The methodology section of this research paper provides information about
assessment of CWSR process (especially the Deinstitutionalization programme)
with the help of selected articles from General Comment #5. Therefore, in this
section, will be introduced the information concerning the use of UNCRC
principles and standards in the process of CWSR, and mainly in Deinstitutionalization programme. It includes assessment of the reform through the lens of
UNCRC four general principles, also legislative and administrative measures,
taken by the government. Also, at the end, it will be briefly discussed the implementation of Committee’s recommendations, stated in Concluding Observations to the Georgia’s third periodic report about country’s childcare system;
About the CWSR in general, there are variety of controversial concerns
from the NGO, PDO, government and international organization’ representatives. The government states, that all the relevant international child rights
standards are implemented during the reform process: “The reform is planned
and implemented in cooperation and support of international donor organizations, it means that international childcare standards and UNCRC principles
are at place” – says the Head of Social Service Agency (Nadareishvili 2011).
International organizations that are involved in CWSR are providing different information about the application of the UNCRC principles in reform
process. For instance, the UNICEF representative states: “I am so proud and
happy that more often I hear the expressions such as “best interest of the
child” from the government representatives, and several policies and reforms
are elaborated and implemented with the compliance of the UNCRC standards. This can be said about CWSR, which contains different child oriented
programmes” (Kurtsikidze 2011). But, on the other hand, representative of
another International organization, Every Child, looks critically to the issue of
compliance of CWSR with UNCRC standards:
“Our organization supports Georgian government in CFSR, and we are trying
to help the government in implementation of the UNCRC principles, which
is crucial for the reform. The reform and all the programmes that it covers, is
meant to implement the Convention, but it is somehow problematic. Not
everything goes like it is written in policy papers, for instance the process of
closing large childcare institutions, - it is happening in a way that is not in accordance with the Convention’s standards at all and it is not child oriented,
and yes, maybe the goals of the reform are in compliance with the UNCRC
but the activities to reach these goals often are opposite” (Dadiani 2011).
According to the deputy head of Social Service Agency, the main idea of
CWSR, and especially deinstitutionalization programme, is to raise every child,
which is placed in childcare institution, with maximum care and conditions
close to the family environment. The top priority of the reform is to return
children to their biological families, and for this reason, government is empowering those families, providing financial support for them. If there is no chance
of child’s reintegration in biological family, then child is placed in foster care
and foster parents care for child like in a normal family; there are another alternatives, such as small family type houses (SGH) that are for more large
families with six, eights children. The vision of this reform is to close large
25
childcare institutions and open more small family type homes, but whole process should be implemented with the respect of UNCRC principles/standards,
-“this is the official position of the government” – she says (Tskhakaia 2011).
According to the representative of the NGO “Child and Environment”,
four core principles of the Convention more likely are not respected in the reforming process. Especially the non-discrimination principle is not respected
for instance, in relations with children of disadvantaged families and street
children:
“Some children, like street children or children from low income families,
that are in extreme need to receive special care from the government are not
able to get it, because of absence of relevant services (like day-care centres) or
because of the complicated procedures that are needed to receive the status
of poverty, which allows them to receive social benefits from the government” (Iashvili 2011).
PDO report provides information about the general lack of consideration
of child’s best interest in the country (PDO 2010: 298). According to “Every
Child” representative, general principles of the UNCRC are applied mainly on
the papers, but not in reality. Government institutions, in implementing the
reform, do not really give attention to what is really child’s best interest, or
what child thinks about his/her life: “The same can be said about two other
main principles, non-discrimination and child’s development. The worst situation is with participation principle, which is not respected at all” (Dadiani
2011).
General Comments #5 gives special attention to legislative measures, that
the governments should undertake to make possible full implementation of the
UNCRC, such as domestication of international standards. It also highlights
that “in case of any conflict in legislation, predominance should always be given to the Convention” (CRC/GC/2003/5: 6). As already mentioned above,
the Constitution of Georgia requires domestic legislation to be in compliance
with the international standards and principles that are universally recognized
and each international treaty and convention, ratified by the Georgian state
takes precedence over national law if there is some conflict between the provisions.
In relation to legislative measures, it is worth noticing, that both government and civil society representatives provide information about the need of
legislative changes, amendments in child care sphere, to make the legal system
more flexible, therefore make existing social services more accessible for children: “After analyzing the Georgian legislation, in some cases we faced problems, there are some provisions which are not against the UNCRC principles
but they do not provide a full application of these principles just because the
implementation of the Convention needs existence of various conditions” says
PDO representative (Arganashvili 2011). About the need of legislative changes,
the same approach is detected from the government representative as well; she
complains about the legislation related problems and sees the urgent need of
simplification of the procedures, which will make possible to child receive
needed services from government (Tskhakaia 2011).
26
The aspects of cooperation with civil society and training and capacity
building, stated in the General Comment #5, provides information about importance of cooperation with civil society that ”needs to engage all sectors of
society, including children themselves”, and emphasizes governments obligation on permanent trainings for all professionals “including those working with
children in institutions” (CRC/GC/2003/5: 13,14).
The CWSR is very large and long lasting process, it was designed and implemented with the involvement of various international organizations and local NGOs, different working groups on various aspects of the reform were
formed, but according to the most of respondents, the issue of sustainability,
which is crucial for the reform, always was problematic, because of frequent
change of key decision makers in the childcare sphere such as ministers, directors etc.
But, it should be noted, that besides the large involvement of the international organizations or civil society representatives in the reform process, in
reality MoLHSA seems to be less open to the critical ideas or useful suggestions, especially from the PDO: “Representatives of MoLSHA are not open
enough for the cooperation and especially for the critique, often they used to
see us as enemies; sometimes they even do not invite us to participate important working groups or meetings” (Arganashvili 2011).
In terms of coordination and implementation of children’s rights – the
committee encourages governments to ensure effective “coordination among
central government departments, among different provinces and regions, between central and other levels of government and between government and
civil society” (CRC/GC/2003/5: 9).
Lack of coordination with the government was the real problem during
years for some local NGOs, which surprisingly have changed in last few
months with the appointment of a new and “very motivated” head of the Social Service Agency. Director of an NGO “Child and Envoronment” says that,
for Georgian reality things can work better if the person in charge is really dedicated to the work and if he/she has the power to solve problems; therefore it
is simple for her, - if there is such a person then results are better, she thinks
(Iashvili 2011).
Monitoring and implementation – the need of child impact assessment
and evaluation, and data collection and analysis and development of indicators
- these aspects of the General Comment #5 are meant to remind governments
about the obligations of self-monitoring and evaluation and the independent
monitoring as well. The Committee states that data collection on children over
the whole period of childhood is important, special attention is given to the
children’s interviewing, to finding out, to what extent their rights are respected
within the different environments (CRC/GC/2003/5: 11,12)
The system of monitoring of the childcare institutions by the government
is a bit complicated, according to the PDO representative’s opinion. She
thinks, that apart from the lack of controlling mechanism in general, several
state agencies have formed a strange practice of monitoring childcare institutions, and therefore children’s rights that contradicts the notion and meaning
of monitoring itself:
27
“State Care Agency, which is responsible for children in state childcare institutions and for the policymaking and implementation as well, has its own
monitoring unit, and of course, if you are monitoring your own programmes
and institutions, there are less chances to discover problems in the system. In
this case PDO is most unbiased monitor, but often we are facing problems
with recognition of our findings, or consideration of our recommendations
from some government agencies” (Arganashvili 2011).
It is important to note, that PDO recommendations are not obligatory,
another instrument to raise the voice over child rights violations is to distribute
concerns and recommendations in International accounting systems for human
rights, such as UPR, Alternative report to the Committee etc.
(www.ombudsman.ge).
On the other hand, the representative of the agency admits the rights violations of children, placed in their childcare institutions but first of all because
they do not live with their families and says, that the agency is trying to establish minimum childcare standards within the childcare institutions. For that
reason, their inspection unit permanently monitors these institutions, and assesses the compliance of the conditions of children with UNCRC and national
standards (Kakachia 2011).
Making children visible in budgets – the Committee emphasizes that governments should allocate all available resources “to the maximum extent possible” to fulfil children’s rights, in which particular attention should be given to
disadvantaged groups of children” (CRC/GC/2003/5:12)
As already discussed above, government of Georgia have increased the financing the child welfare direction, but the question is whether state funding is
enough for the CWSR proper implementation and whether this resources are
spend in efficient manner.
For government, the main problem is still environment in existing large
childcare institutions, where most of the buildings (around 70 %) are old and
the conditions are poor. “CWSR aims to close all large childcare institutions by
2012 and reintegrate all children living there. That is why we do not spend financial resources on renovation of the buildings, but we are trying to meet
minimum standards there, such as cleanness, safety etc. The issue of food and
clothing is also under the standards” – says a deputy head of State Care Agency
(Kakachia 2011). As it is obvious, the conditions in existing childcare institutions are not top priorities, and that currently government is more oriented on
investing in alternative care service development, than in improvement of conditions in existing childcare institutions.
According to the Convention, states cannot justify themselves only with
the lack of financial resources when they do not make progress in terms of the
UNCRC implementation. As PDO representative mentions, if there is no progress in child rights protection, it means that government does not have right
priorities, and finances are not distributed efficiently:
“I think that currently, with the same amount of money is possible to have
better child rights record in the country, for instance: while reconstructing the
childcare institution for children with disabilities, nobody thought about connecting different flours with each other. Therefore, it is not always about the
28
lack of resources, in this specific case, the money was there but it was not
used efficiently!”(Arganashvili 2011).
The issue of efficiency is also problematic for some international organizations, according to the information of “Every Child” representative, resources
are not allocated and spent efficiently and the priorities are not set properly as
well; sometimes, actions that government is taking are ridiculous: “For instance, the State Care Agency was created only because of the Prime Minister’s
friend wanted to have this kind of work, which is clear example what are the
priorities sometimes” (Dadiani 2011).
From the government side (representatives of MoLHSA), the financing
policy of CW is assessed as satisfactory, but they would prefer to have much
more resources to full satisfaction of the needs of the children:
“Financial means are enough for basic needs, but there are some directions,
where we are facing problems, for instance healthcare, our children have state
health insurance, but it does not covers everything (such as dental problems,
topographies etc). This insurance package covers only basic components and
currently the government cannot provide more expensive and full packages
for children. When we have force major situations, some private companies
are helping us” (Kakachia 2011).
Especially, while talking about CWSR and deinstitutionalization programme, allocated resources seems to be not enough to achieve the goals of
the reform, and to achieve them properly, with implementation of all international standards. As one of the NGO representative states, there should be allocated much more finances for the child centered reforms, otherwise: “You
cannot meet international child rights standards if you do not provide different
services throughout the country, and for that reason enough resources are crucial” (Saralidze 2011). The same position has another NGO representative,
who speaks about foster care services and about the lack of financing of these
services: “Money that government is providing for each child, who is placed in
foster care, is not enough for child’s proper development and we can generalize this in whole CWSR as well” (Iashvili 2011).
4.3 Findings
To conclude the CWSR process, particular attention will be given to the following directions:
 Performance of the government in implementation of the CWSR (in
this case represented by MoLHSA), through the selected measures
from the General Comment #5;
 Implementation of the Committee’s concluding observations to the
Georgia’s third periodic report about childcare system;
 Evaluation of information obtained from interviewees during the
fieldwork.
In general, the government’s performance in CWSR implementation in
terms of application of the UNCRC standards and principles during the reforming process, by various professionals and stakeholders is assessed differently. All of them look positively to certain programs or activities that have
29
been done or are implemented during the reform; For instance, all stakeholders
appreciate decrease of the number of children living in large childcare institutions and increase of their number in better, foster care services. However,
opinions differ about the ways and methods of implementation of some activities, such as closure of childcare institutions, distribution of resources and the
application of UNCRC standards. There are several causes identified by PDO,
which are preventing UNCRC application in Georgian childcare system, those
are the following: lack of information about UNCRC, lack of resources (financial and human), poor communication and coordination among different
stakeholders (Arganashvili 2011).
Almost every interviewee, from the government or from the civil society,
has the same opinion about insufficient funding of the reform; also, they find
very challenging the issue of poverty. “Most crucial problem for the country is
still extreme poverty. According to our research, 28% of Georgian children live
bellow the poverty line, which means that they do not receive the services,
which are needed for their normal life and development” says interviewee from
the UNICEF (Kurstikidze 2011).
At the end, from the interviews with government and civil society representatives, it became obvious that needs based approach is dominating rather
than rights-based one: “We plan our programmes together with the government, and they are always rights based, as it is stated in our mission, but on the
other hand, often government is oriented on needs-based programmes only”
says UNICEF representative (Kurtsikidze 2011). As for the PDO, even needsbased approach is not in the place, because government is satisfying selectively
the basic needs of children, mainly only those that are urgent for the moment
(Arganashvili 2011). One of the interviewee, an orphan child, living in the
childcare institution mentions about permanent problems with basic needs satisfaction within the institution: “Well, a lot of times I had no proper cloths (especially in wintertime, often I was wearing summer shoes) to go to the school,
and I was shy because of that and I was staying at childcare institution and not
participating school classes” (A.S 2011).
In sum, definitely, there is a progress in childcare system comparing to
previous years, and several recommendations, that the Committee provided in
its concluding observations have been implemented, such as establishment of
special programmes for the children of poor families, monitoring of children’s
rights within the childcare institutions and foster care services etc. But, at the
same time, despite the Committee’s recommendations, for instance the conditions in existing childcare institutions remain poor and children’s rights are violated on everyday basis. Often, children experience violence from the teachers
and they have very vague understanding of their rights; A twelve years old boy,
who lives in childcare institution during five years told me: “We have to respect our teachers and other adult people, often we do not understand what is
best for us, and they know better. Sometimes, punishment is also necessary.
They teach us that we have obligations and not only rights” (D.T 2011). Important number of children are excluded from social assistance programmes
because or several, sometimes bureaucratic reasons; children’s views are not
respected at institutions, and their best interests are not satisfied during the reintegration processes as well.
30
Chapter 5
Conclusion
To conclude this research, I would like to summarize the main findings that
have been elaborated with the help of information presented in previous chapters, such as the following policy documents of MoJ and MoLSHA: “Major
Areas of Child Care System Reform 2011-2012 plan of action” (2010 –
MoLHSA); “The Children’s Action Plan 2008-2011” (CAT); “Assessment of
the Child Welfare Reform Process in Georgia” (2009 – UNICEF); the “Juvenile Justice Reform Strategy” and “Juvenile Justice Action Plan 2009-2013”
(MoJ) etc. Also, important information, gained from the interviewees representing a wide range of relevant stakeholders, such as government, international organizations, local NGOs, human rights institution (PDO) and children
themselves, together with the relevant reports, researches and academic
sources made possibility to evaluate the SSJR and CWSR processes, and provide answers to the research paper questions.
However, it is quite challenging to answer the main question: to what extent Georgian government, represented by MoJ and MoLHSA, ensures the
UNCRC application in its child rights policymaking and implementation process in the JJSR and CWSR? There is no single answer for that; the reality is
that the Georgian government, as a main duty bearer in implementation of
children’s rights, on the example of JJSR and CWSR is trying to put important
efforts in development and implementation relevant child rights policies. And,
regarding country’s poor economic situation, above mentioned reforms sometimes look like “luxury” for the country like Georgia, but the important thing is
that government seems to have strong political will, to initiate and implement
child oriented reforms. However, the issue of compliance with UNCRC standards is controversial, at the first stage of policy making (design of reforms and
relevant policy papers) the UNCRC standards seems to be applied by the MoJ
and MoLSHA, but implementation process is more complicated. In reality is
more challenging to implement all the child rights standards that are enshrined
in international conventions or in guaranteed by national legislation. This has
its causes that are more likely related to the lack of financial and human resources.
5.1 Main Challenges for the UNCRC Application
As already mentioned, Georgia ratified the UNCRC on 2 June 1994. It became
a party to various other relevant international conventions and made various
legislative and programmatic measures as well9, which was appreciated by the
Committee in its Concluding Observations.
The Law on Combating Domestic Violence, Prevention of and Support to Victims
(June 2006); The Law on Adoption (May 2008); Also, ratification/accession of The
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
9
31
Sometimes, states are not fully implementing the obligations that have
been taken under International conventions or agreements, justifying themselves by the lack of resources (financial, human, institutional). But, when a
country ratifies the UNCRC, it takes an obligation under international law to
implement it, as it stated in Article 4 of the convention. State Parties should
take “all appropriate legislative, administrative and other measures”, which also
includes engaging all sectors of society in the process and child participation.
The Committee have identified a variety of implementation measures such
as development of monitoring bodies; trainings for government, parliament
and judiciary representatives; child rights education campaigns etc. It gives special attention to its General Measures of implementation that promotes the full
enjoyment of all rights by all children through “legislation, the establishment of
a coordinating and monitoring bodies – governmental and independent –
comprehensive data collection, awareness-raising and training and development and implementation of appropriate policies, services and programmes”
(CRC/GC/2003/5: 3).
All legislative or other reforms initiated by States Parties stay in paper if
they are not properly planned, provided/assigned with relevant financial resources and therefore, effectively implemented, which means growing positive
changes in court decisions (apply child rights norms in decisions) and provision of necessary human and financial resources. The Committee permanently
recommends its members to ensure budgeting for children’s rights realization,
but many States lack relevant resources (J. E. Doek 2009: 779).
There are some international treaties regulating children’s rights in different directions such as juvenile justice, minority children, children with disabilities etc, but the UNCRC is a main international treaty that is guiding, umbrella
document for all directions concerning children. Therefore, compliance of national legislation with the UNCRC standards is vital.
In Georgian reality, in relation of JJSR and CWSR important international
conventions are ratified by the government and relevant national laws, decrees
are introduced as well. As per consultation with UNICEF, Georgia is not a
signatory to any regional specific child-related treaties or conventions and at
the national level, in general all the necessary laws and decrees towards children
are in compliance with the international child rights standards and especially
with the UNCRC. Examples include: the Civil Code of Georgia (1997), the
Decree on Child Protection Referral procedures (2010), the Juvenile Crime
Degrading Treatment or Punishment (August 2005); The Council of Europe Convention on Action against Trafficking in Human Beings (March 2007) The Safe School
Programme, aimed to reduce violence on and of school premises (2007); The Action
Plan for Child Care (2008-2011); The Optional Protocol to the Convention on the
Rights of the Child on the sale of children, child prostitution and child pornography
(June 2005); The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime (September 2006); The Framework Convention for the Protection of National Minorities (December 2005); The Rome Statute of
the International Criminal Court (June 2002) (the Committee 2008:1, 2)
32
Prevention Strategy of Georgia (2011), the Law on Family Violence (2006), the
Law on Adoption and Foster Care (2007), the Law on General Education
(2005), the Law on Social Assistance (2006) etc. (Kurtsikidze 2011).
However, as a matter of the fact, NGO and even government representatives complain about existing problems with the national legislation, especially
in childcare sphere. With this information, it is not difficult to conclude, that
without proper legislation framework, government institutions that are responsible for providing services and assistance for children cannot function effectively, even when financing problem is not the issue. Therefore, as one of the
challenging factor in UNCRC application we can name absence of full compliance of national legislation with international child rights standards.
Implementation of every human rights law also largely depends on countries’ political will to comply with international standards and usually, it means
wide range of activities at national level. It also requires involvement of all
branches of the government, (judiciary, legislative and executive) and their coordinated efforts (Human Rights Reference Handbook, 2004). As NGO society and international organizations declare, Georgian government has political
will to implement its child rights obligations under the UNCRC, but often the
idea and the process of implementation itself is challenged by the lack of resources (financial, human) and knowledge, which means that government (in
this case represented by MoJ and MoLSHA) is not always able to ensure
UNCRC full application throughout its reforms, programmes.
The part of the NGO sector is blaming the government agencies in somehow superficial understanding of children’s rights, which also prevents
UNCRC standards being fully and properly applied in reality. “Often they do
not realize the meaning of international obligations under the Convention, and,
therefore child oriented reforms and programs are implemented just formal
demonstration, written in their reports to the donors to provide future financing” as one of the NGO representatives is saying (Zazashvili 2011).
One of the challenging aspect for the UNCRC application in the reforming processes is the lack of sustainability of existing programs; reasons are
mostly related of frequent change the staff and key policymakers in the field:
“What I don’t like and what hinders the process is not related with financing, it
is the frequent change of key decision makers in child rights sphere, we have a
broad problem of sustainability, and because the childcare system is still fragile,
it shakes together with these changes” (Saralidze 2011).
The important aspect that at the same time not complies with the Convention’s requirements and is widespread practice throughout the mentioned reforms is the lack of the use of rights-based approaches. Sometimes this is related to the lack of knowledge of decision makers in charge, or the lack of
resources.
Lastly, the lack of the relevant data about children, ineffective selfmonitoring systems within the state institutions (especially those in MoLSHA),
and the lack of relevant researches, and research based programs can be named
as challenging aspects, preventing the Convention’s application into JJSR and
CWSR processes.
33
5.2 Recommendations
In this last section, I will try to provide recommendations for Georgian government; especially for the MoJ and MoLSHA to somehow help them to develop and implement more child oriented policy and programs that would be
in full compliance with the UNCRC standards.
The recommendations that have been elaborated within the framework of
this research are following:
 Strengthen the cooperation of MoJ and MoLSHA with international
and local organizations, PDO, different governmental agencies and experts to make possible that every relevant stakeholder is involved in
policymaking process, which will be the important step to success; this
process should be implemented with the children participation as well.
“There is no coordinating body of children’s rights in the country, it
would be very useful to have one, and this one of the Committees’ recommendations as well” (Kurtsikidze 2011);
 Each government body, agency and institution under the MoJ and
MoLSHA, that somehow is responsible to create and/or implement
programmes for children should have at least trained staff in the
UNCRC; trainings about the Convention and it’s application in everyday work, are vital for government representatives (at all levels) and for
all professionals that are somehow involved in child oriented activities;
 Public awareness campaigns about children’s rights are needed for the
general population (understanding of children’s rights among society is
very law) and children themselves; “If there will be more pressure in
terms of accountability of government in implementation of the Convention from the Donors and EU, and, if more effort will be devoted
to public awareness campaigns, slow by slow children can become one
of the priority for society. Currently, Georgia is in the role of stepmother from the fairytale Cinderella” (Zazashvili 2011);
 Creation of the coordination agency for children, the mechanism that
will initiate, subordinate or will lobby all the actions, reforms, programs, legislation changes etc for Georgian children in general. This
agency should become kind of umbrella institution for all ministries, international or local organizations within the country; In relation to the
JJSR and CWFR, this type of agency can help MoJ and MoLSHA to
better coordinate their activities within the framework of their reforms;
and, because there are number of interrelated and interdependent issues, both reform can only benefit from this, which at the end will benefit their targeted groups, juvenile inmates and offenders, children in
conflict with the law, children deprived of family environment, children
of disadvantaged families etc;
34
 Creation of the data collection system within the JJ and CW, where all
important information, statistics, data etc. about children will be permanently collected and updated. To improve the children’s rights in
Georgia, especially in childcare and juvenile justice systems, first of all we
need better coordination among various stakeholders, government, civil
society, international organizations; the proper data base is very urgent,
collection of child related information and statistics and of course, somehow we should elaborate a mechanism for the state agencies, to pressure
or motivate them to look more seriously the Committee’s recommendations” (Arganashvili 2011);
 Creation of more sustainable environment for JJSR and CWSR that will
promote and help these reforms to be implemented in such a way that
nothing can affect or stop their dynamic and development;
 Creation of more effective self-evaluation, inspection and outside monitoring mechanisms that will permanently monitor the implementation
of these reforms, their compliance with the UNCRC and national
standards.
35
5.3 List of Interviewees
Arganashvili, A. Head of the Child’s and Woman’s Rights Center at the PDO of
Georgia, 02.09.2011, Tbilisi, Georgia
A, S. mother of 6 children, 4 of them are receiving services from childcare institution,
the Georgian government registered her family as bellow the poverty line,
28.07.2011, Tbilisi, Georgia
Dadiani, A. The Country Director of “Every Child – Georgia”, 31.08.2011, Tbilisi,
Georgia
Gigauri, A. Head of the Administration of the MoJ, 22.07.2011, Tbilisi, Georgia,
Iashvili, N. Director of the NGO “Child and Environment”, 26.08.2011, Tbilisi,
Georgia
I, M. and I, T. Sisters who were first placed in childcare institution, then according to
the reform, they have been reintegrated and now live with biological family,
17.07.2011, Tbilisi, Georgia
Kakachia, G. Deputy Head of the LEPL “Service Agency for Disabled, Elderly and
Orphans” under the MoLHSA, 14.07.2011, Tbilisi, Georgia
Kurtsikidze, M. Communication Officer at UNICEF Georgia, 25.07.2011, Tbilisi,
Georgia
Nadareishvili, N. Director of the “Social Service Agency” under the MoLHSA,
02.09.2011, Tbilisi, Georgia
Saralidze, L. Executive Director The Public Health and Medicine Development Fund
of Georgia, 05.09.2011, Tbilisi, Georgia
S, A. 17 years old girl who lives in childcare institution in Capital of Georgia (an orphan), 13.07.2011, Tbilisi, Georgia
T, D. 12 years old boy, who lives in the childcare institution outside of the Capital
(IDP child), 15.07.2011, Tbilisi, Georgia
Tsintsadze, I. Deputy Head of Department of Prisons at the MCLA, 11.08.2011, Tbilisi, Georgia
Tsiskarishvili, L. Director of Georgian Center for Psychosocial and Medical Rehabilitation of Torture Victims (GCRT), 04.09.2011, Tbilisi, Georgia
Tskhakaia, E. Head of the Unit of Guardianship and Custody of Department of
Guardianship-Custody and Social Programs at the Social Service Agency,
26.08.2011, Tbilisi, Georgia
Zazashvili, N. Director of the ”Union Saphari – Family without violence”, 29.08.2011,
Tbilisi, Georgia
36
5.4 References
Alen, A., H. Bosly, M. De Bie, V. Lanotte, F. Ang, I. Delens-Ravier et al. (2007) 'The
UN Children's Rights Convention: Theory Meets Practice', Intersentia, Antwerpen - Oxford
Alston, P., J.J. Tobin and International Child Development Centre (2005) Laying the
Foundations for Children's Rights. Innocenti Research Centre.
Bakker, S., M. Van Den Berg, D. Düzenli and M. Radstaake (2009) 'Human Rights
Impact Assessment in Practice: The Case of the Health Rights of Women Assessment Instrument (HeRWAI)', Journal of Human Rights Practice 1(3): 436.
Carvalho, E. (2008) ‘Measuring Children's Rights: An Alternative Approach’, International Journal of Children'Rights16 545-563
Cohen, C.P. (1989) 'United Nations: Convention on the Rights of the Child', International Legal Materials: 1448-1476.
Constitution of Georgia (24 August, 1995)
http://www.parliament.ge/index.php?lang_id=ENG&sec_id=68
Decree on Child Welfare Government Action Plan for 2008-2011 (2008) (Decree #
869, December 2008) www.moh.gov.ge
Doek, J.E. (2009) 'The CRC 20 Years: An Overview of some of the Major Achievements and Remaining Challenges', Child Abuse & Neglect 33(11): 771-782.
Government of Georgia, Interagency Agreement (2011) ‘Juvenile Crime Prevention
Strategy of Georgia’
Government of Georgia (2008) ‘Child Welfare Action Plan 2008-2011’
Hamilton, C. (2007) ‘Analysis of the Juvenile Justice System in Georgia’ UNICEF
Internal Displacement Monitoring Center (2011)
http://www.internal-displacement.org/
Jonsson, U. (2005) 'A Human Rights-Based Approach to Programming', Reinventing
Development, Gready and Ensor (eds) : 47-62.
Landman, T. (2004) 'Measuring Human Rights: Principle, Practice and Policy', Human
Rights Quarterly 26(4): 906-931.
Landman, T and Hausermann, J., (2003) ‘Map-Making and Analysis of the Main International Initiatives on Developing Indicators on Democracy and Good Governance’ (University of Essex - Human Rights Centre and EUROSTAT, 2003).
Available at: <http://www.abo.fi/instut/imr/research/ seminars/indicators/index.htm> [Accessed 18 August 2006].
Lee, Y. and Svevo-Cianci, K. A. (2009) ‘Twenty years of the Convention on the Rights
of the Child: Achievements and challenges for child protection’, Child Abuse &
Neglect 33 (2009) 767–770
Maurás, M. (2011) 'Public Policies and Child Rights: Entering the Third Decade of the
Convention on the Rights of the Child', The Annals of the American Academy
of Political and Social Science 633(1): 52.
Ministry of Justice, (2009) ‘Juvenile Justice Strategy and Plan’
Ministry of Justice (2008) ‘Mandate and Competence of the Working Group on Juvenile Justice established by the Criminal Justice Reform Inter-Agency Coordinating Council’
Ministry of Labour, Health and Social Affaires of Georgia (2010) ‘Major Areas of
Child Care System Reform 2011-2012 plan of action’
O’Brien, C. and Chanturidze, T. (2009) ‘Assessment of the Child Welfare Reform
Process in Georgia’ UNICEF
37
Office of the United Nations High Commissioner for Human Rights (2011)
‘GEORGIA: Children's Rights References in the Universal Periodic Review
(UPR)’ http://www.crin.org/resources/infodetail.asp?id=23808#cc
Public Defender of Georgia (2009) ‘The Situation of Human Rights and Freedoms in
Georgia’
http://www.ombudsman.ge/files/downloads/en/rcbrpcdmwmvalletoggp.pdf
Public Defender of Georgia (2010) ‘The Situation of Human Rights and Freedoms in
Georgia’
http://www.ombudsman.ge/files/downloads/en/rthhchgdjhxcwxayjhpx.pdf
Save The Children (2011), http://resourcecentre.savethechildren.se/countries/georgia
Save the Children, (2006) ‘Child Rights Programming: How to Apply Rights-Based
Approaches to Programming – A Handbook for Internationals Save the Children
Alliance Members’. Save the Children, pp. 1-56
Sepúlveda, M., T. Van Banning and W. Genugten (2004) 'Human Rights Reference
Handbook', University for Peace
The World Bank (2010)
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/GEO
RGIAEXTN/0,,contentMDK:22305992~menuPK:301765~pagePK:2865066~p
iPK:2865079~theSitePK:301746,00.html
United Nations Committee on the Rights of the Child (2003) ‘Convention on the
Rights of the Child, General Comment #5’ CRC/GC/2003/5 27
http://www2.ohchr.org/english/bodies/crc/comments.htm
United Nations Committee on the Rights of the Child (2008) ‘Concluding Observations to the third periodic report: GEORGIA’, CRC/C/GEO/CO/3
United Nations Country Team in Georgia (2011), http://www.ungeorgia.ge
United Nations Development Porgramme (2011) http://www.undp.org.ge/
US Department of State (2011), http://www.state.gov/r/pa/ei/bgn/5253.htm
UNICEF, (2010) ‘Annual Report Georgia’
UNICEF, (2010) ‘How do Georgian Children and their Families Cope with the Impact of the Financial Crisis?’ Report on the Georgia Welfare Monitoring Survey
UNICEF (2007) ‘Implementation Handbook for the Convention on the Rights of the
Child’, fully revised third edition, Geneva, Switzerland
UNICEF, Innocenti Research Centre (2006) ‘The General Measures of the Convention on the Rights of the Child The Process in Europe and Central Asia’
UNICEF, (2008-2009) ‘National study on violence against children in Georgia’
UNICEF, Strategic Research Institute (2007) ‘Supporting State Policy of Child Welfare and Deinstitutionalization’
Wargan, K., Dershem, L. (2009) ‘Don’t call me a street child’ Estimation and Characteristics of Urban Street Children in Georgia
38
39