Best interest of the child

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Best interest of the child

INTERNATIONAL STANDARDS AND ALBANIAN EFFORTS TO APPROXIMATE ITS LEGAL FRAME

AND JURISPRUDENCE WITH THEM. CHALLENGES OF THE PRINCIPLE OF THE BEST

INTEREST OF THE CHILD

PREPARED BY Prof.Dr. Arta MANDRO-BALILI

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• Albania is a small country • 1/3 of the population is under 18 years old

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Flag, population

• Albanian Institute of Statistics estimated it at 3,152,600 on 1 January 2007, at 3,170,048 on 1 January 2008 and at 3,195,000 on 1 January 2010

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The capital of the countryTirana

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Berat, one of the ancient cities

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Why I have selected this topic?

• Albania is a small country• Children 0-18 years

compose 40% of the population

• Children 0-14 compose 23.6%

• The justice system and legal frame are improved but still there are a lot of difficulties for their implementation

• 20% of the albanians live abroad as migrants

• Presence of Albanian children abroad, is significant

Objective that should remain: Through the right and contribution of

jurists to realize the children’s rights wherever they are!

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In order to have a clear overview lets have a look on

Legal frame

•Highest Interest •Rights of children in imigration

Rights of minors scattered in many laws and normative acts and there is no «CODE» to sum up all minors’ rights.

Focus – family law area

Legal practice

What to bear in mindECHR positions

Challenges and difficulties

Focus – family law area

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Actors/components that are contributing in child interest evaluation

1. Legal frame.Haw is the law “for the child”

What is the content and what is lacking

2. Which are the responsabile

Structures?Are they adequate?

3. Human resources Are they trained are

they properly qualified

Internationalinstruments.Standards

Albanian legal frame

How is the infrastructureIs it appropriate

One or not?

ParentsChild

AuthorityEvery one (LI)

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To consider children a priority....To consider children a priority....

Principles and Standards

Asks that all the actors

+ + + / - - -

Have deeper knowledge of the

law and socila

context

Correct implementation

of the law

Best Interst

Total

Professionalism

, responsability

Professionalism

, responsability

Offering the best solution for the child interest

Offering the best solution for the child interest

Realisation of the best

interest of the child

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Meaning of the highest interest of the child as a first consideration in every

decision making

• Every authority should:– Treat and estimate each minor in a special way and

as a priority. Principles of unity and diversity– Choose the ideal alternative for the child– Resolve quick and without delay a case where delays

endanger or infringe upon the interests of the minor• Case Schaal against Luxembourg (1999)• Covezzi and Morselli against Italy (1999)

– Every authority, comprising the judicial one, should take a final decision not in a hurry but it should use intermediate decisions, giving time to the child to get familiar to the new situation, and giving time to the adults to reflect upon the situation.

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The mission of the judiciary and of other actors for the

realization of the best interest of the child

• It is not an easy and simple issue,• Remains a delicate one,• It is a challenge,• The court has to estimate comprehensively all physical,

emotional, educational, economic, and health needs of the child.

• The court must make an actual and perspective assessment – Kutzner against Germany (2002)– P., C. and S. against United Kingdom(2002)– Venema against Holland (2002)

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(Anyone) Court should make an assessment of consequences that each new change will cause to the

life of the child.

(Anyone) Court should make an assessment of the concrete

possibility of execution of decision given by it in order for the child’s

interest to become a reality.

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Estimation of the highest interest from the child itself. Right of each child to be heard.

• Taking into account the minor’s opinion;• Taking into account the minor’s feelings;• Seeking the consent of the minor;• Making interventions during a process;• Presence of the minor;• Its legitimation as a direct applicant in a court

process.

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“Alex, who you are talking to, is in Rodos”

• Assessment of sayings (opinions and feelings, attitudes) of the minor from the psychologist in order to realize the highest interest of the child. Mandatory presence of the psychologist in each procedure with the minor.

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Educational and awareness role of law and authorities

• A decision has a wider impact than the parties involved in it

• A law article or provision constitutes an educational process– Children are all equal

• Pla and Puncernau against Andorra (2004) &Haas against Holland; Merger and Cros against France

• Görgülü against Germany (2004) - (inheritance); – Education process of parents (Parent’s agreement)– Surname after dissolution of marriage (until delicacy)– Relations with children (right of non-custodian parent and

limitation or deprivation of liberty of parent)• Zawadka against Poland (05), Siemianowski against Poland (05);

Bove against Italy and Reigado Ramos against Portugal (05), Bajramaj against Albania

• Sabouk and Pîrcălab against Rumania (05)– Right of inhabitation (decision of Constitutional Court of Italy)

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Children – agents of positive change (emigration)

• In a foreign country and foreign juridical environment or in a foreign country and non-foreign juridical environment – this is the question!

• By means of rights to be improved the living of minors and their families, which often because of conditions independent of them find themselves in a foreign juridical environment.

• So that children can be agents of positive change• Children in emigration – emigration – the other side

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Emigration and Minors Albanians living abroad source: Albanian Government 2005

State Year 1999 Year 2005

Greece 500.000 600.000

Italy 200,000 250,000

USA 12,000 150,000

UK 5,000 50,000

Germany 12,000 15,000

Canada 5,000 11,500

Belgium 2,500 5,000

Turkey 1,000 5,000

France 2,000 2,000

TOTAL 742,500 1,093,000

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How it changes

• Acc. to ISTAT, Italian Statistics Office for 2006, number of albanians in Italy is 348.813.

• Source: Popolazione straniera residente per area geografica e principali paesi di cittadinanza, al 1 Gennaio 2007.

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Unification and harmonization. A ius commune for minors

• It is seen the tendency to shrink the state-centrist character of the family law and minors’ regulations.

• Care is increased to facilitate the integration of non-member countries into the EU

• Comparative view shows that we have more similarities between legislations of different countries.

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Unification and harmonization

• In framework of Council of Europe– ECHR (Article 8 and 12); etc– European Court of Human Rights jurisprudence– Family Law expert committee (CJFA)– Scientific meetings– Recommendations

• In framework of EU– Directives, regulations (Brussels I and II) and recommendations– Tendency of influence with soft law (code of conduct)

• In framework of UN– KDF, protocols, guides– Committees on children’s rights

• In framework of Hague Conventions– Every efficient instrument in framework of PIL

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Why are Conventions important?

– Unify positions and laws of countries ratifying them. – Are directly applied to avoid the national rule of a smaller value,

to fill a vacuum of national legislation (see article 122/2 of Constitution of RA);

– Facilitate interpretation of national law in light of international law.

– Establishment of a principle from a judge (see unifying decision of the High Court and their nature), inspired from international law. In front of vacuum or impreciseness of national written law, a judge is inspired from an international norm (generally ratified) to initiate the existence of juridical regulation to resolve court cases.

– Reference to international law to base a solution based on national law.

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Albanian minors abroad

• Minors abroad can be:• “Accompanied”, minors entrusted formally up to third

degree cousins with regular sojourn; – Are entitled to: education, health assistance, work (if !!); etc.

• “Unaccompanied”, minors without parents or without adults legally responsible for their representation or assistance. – Are entitled to: protection and assistance (placed under

custody); not to be expelled, permission of sojourn, asylum etc.

• Risks: See Siliadin against France (2005)

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Family union and right of movement. Articles 9 and 10 of CRC

• Article 16 of Constitution as a guarantee for foreigners or persons without citizenship in Albania

• Articles 38-40 of Albanian Constitution• See from Law no.8492/27.5.1999 “On Foreigners”

(articles 6,9,14,15,56,77) in Law no.9959, dated 17.7.2008

• See from Law no.7939/25.5.1995 “On migration” (article 6.c.i “prevention of illegal deportation of minor children) in Law no.9668/18.12.2006 “On emigration of Albanian citizens for employment purposes”

• Law 8432, dated14.12.1998 “On asylum in RA” changed (article 6 family reunion), convention on status of refugees and Protocol.

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What can be noticed

• Lack of bilateral agreements (we have with Greece, Cech Republic, Bulgaria, Turkey and in process with Russia

• Flux of requests in albanian court for juridical assistance in civil cases increased

• The important basis remains HCC– Children are abroad, marriage is dissolved in Albania. How can

they be asked? How can the opinion or consent of minor be taken?

– When children are left with one parent and the other is abroad, how can the visiting rights be implemented, or the supervision of exercise of parental responsibility?

– Difficulties of determination of alimony.– Difficulties of execution of court decisions.

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Institutional Frame of the System of Administration of DM in Albania

Stukturat e DM

Policia e shtetit

Policia gjyqësore

Prokuroria

Mbrojtja, avokatiaAsistenca psikologjike

Sistemi gjyqësor

Paraburgimi dhe burgjet

Ministria e Drejtësisë

KLD

Shkolla Magjistraturës dhe Fakultetet

Avokati i Popullit

Shërbimi social • Analysis of current situationLegal basis of activity

Structures, units for minors

• Required international standards

• Problems noticed by the legal basis analysis, structures, infrastructures

and activity of institution and (in) compatibility with standards

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Children are above everything....Children are above everything....

Principles and Standards

Requires from all actors

+ + + / - - -

Deep knowledge of law, familiarity

with social context

Corrent attitude towards the law

Highest Interest

Total

Professionalism

, responsibilit

y

Professionalism

, responsibilit

y

Offering the best choice to children

Offering the best choice to children

Realization of child‘s interest

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Children are not dolls just to play with them. However, we should not think we lose time by playing with them!

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T H A N K Y O U !