The following recommendations have been formulated by the ORK in his report to the government and the Parliament in November 2013. On the one side, they result from the opinions on laws, but for the other side, the ORK was inspirited by interrogations of particular persons or visits of places. They are addressed to different ministers or public authorities, as well as to the civil society.
The ORK reminds that the government bill 5351, laid out in 2004 and “suspended” in 2011, modifying the modified act of the 10th of August 1992 concerning the protection of young people, has not yet reached a new proposal. It is urgent to legislate on the matter.
The ORK recommends anticipating the possibility for the judge to pronounce on the transfer of the parental authority case by case. It may be provided that the parental authority can be exercised jointly between the parents and an institution, if it is required by the interest of the child. The ORK appeals the politicians to promote alternative solutions to the placement of a child and to provide themselves with the resources to do so.
In this context, the ORK recommends to establish a clear legal framework to improve the transparency of places where children are deprived from their liberties and to protect effectively their rights.
The new Act of the 30th July 2013 on domestic violence does not recognize that children, who are witnesses of domestic violence, are considered as victims. It is only indirectly recognized that the fact to be a witness of domestic violence constitutes a form of moral and psychological violence.
The ORK recommends to the legislator to think about a solution for the content on the Internet where children are represented in a sexual context or position. Such presentations are not covered by the definition of pornography of the Penal Code, but they have to be considered as abuse of minors.
The ORK recommends proceeding to a reform and a simplification of the procedures applicable to children by creating, as for example in France, a judge of family affairs, who is specialized in marital affairs, but also in the relationship between children and parents.
The ORK recommends raising public awareness concerning the genital mutilations and asks the Ministry of Justice to strengthen the legal framework on the matter.
The ORK recommends to the Ministry of Justice, if required in coordination with the Bar association and the University of Luxembourg, a target union for the lawyers to ensure the defense of the children.
Each lawyer, who is defending the interests of a child, should have seen and listened the child once before going to court.
L’ORK asks the new parliament to finish as fast as possible the reform for the Act of the 25th July 2002 concerning the Ombuds-Comité for the rights of the child. This allows to bring the legislation in Luxembourg into line with the general comments of the 3rd and 4th periodic reports of Luxembourg, adopted by the Committee on the Rights of Children in its 64th session (16th September – 4th October 2013).
The last formulation of proposal to modify the Constitution leads to believe that the familiar framework limits the best interest of the child. The interest of the child is going further and covers a larger domain and has to be placed over the family law.
The insertion of the rights of children in the Constitution has a concrete utility. It is important to underline the rights of the children in the Constitution to impregnate it positively to the persons who are responsible for the well-being of the children.
The ORK recommends to articulate the formulation on the notion of “best interest of the child”: “Each child has the right to the development and fulfillment of its personality, to an education without violence and to a particular protection against abuse, negligence and exploitation. The state respects, protects and supports the rights of children and controls as their conditions of life are compliant with their best interest”.
The ORK recommends to the legislator to bring the Civil Code into line with the Constitution by adopting the government bill 5867 concerning the parental responsibility and by taking into account the anterior opinions on laws given by the ORK, especially in his annual reports in 2010 and 2012. The ORK insists on the necessity to legislate on divorce.
The ORK recommends to the legislator to take into account his opinion from 2013 on the government bill 6568 concerning the reform of affiliation. The ORK estimates that the legal framework has to follow the evolution of the society, where the family can be conjugated in plural, beyond the traditional scheme. The recommendations concerning the government bill can be summarized as following:
Other problematic concerning the birth certificate of a child: A child has the right to an identification of his biological parents, until the parents have done a voluntary declaration. But the parents can be limited by the discretion powers of the municipal agent who can refuse to recognize the validity of the identity papers of the parents. The ORK recommends to the Ministry of Justice, together with the Ministry of the Interior, to adopt joint and fair politics, which consider the Best Interest of the Child.
The ORK recommends that the control of immigration is not more important than the Convention on the Rights of the Child. The minors without a legal status belong to the Luxembourgish reality and it is the task of the society to deal with the problems, even because the most of the young people are not themselves responsible for their situation.
The ORK remains that actually the treatment of unaccompanied minors is limited in three ways:
These three approaches are incomplete or inadequate by thinking to the concerned children. The migration of children is a complex and multidimensional phenomenon. The accessibility to the Luxembourgish nationality should be facilitated for them.
The “kafala” comes from the Islamic law. The ORK remains that the resort to the “kafala” is recognized by the CIDE as a protection measure for children and it should be treated as such.
The ORK recommends to legislate on the matter and to derive inspiration in Belgium law.
Roma children who are begging in Luxembourg City exist and are part of our reality. The ORK asks the politics and the civil society to care about this problematic. There should be alternatives others than begging to permit the “travelers” good ways of living in conformity with the human dignity and the fundamental human rights.
The ORK invites the Direction of the police to remain some major advices:
• A minor has the right make a claim without being accompanied by its legal representative.
• A minor cannot be interrogated as a witness without the assistance and permission of his legal representative.
The ORK asks the legislator to think about the procedure of intervention of the police as regards to children. By letting the police intervene, in uniform or in civil, it is considered as a form of institutional abuse that will traumatize children and will only unnecessarily criminalize the parents.
After a case of traffic of children in Luxembourg, the ORK recommends to the public prosecution, to the police, to the Direction of Immigration and to all other authority, which could intervene, establish a common procedure and preview a coordination that ensures the immediate protection of children.
The ORK remains that it is time to fit the school to the real society without starting a new debate about a school reform. The problematic of alphabetization of children in one language, German, as well as studying German and French at the same level, is real because it means the failure of a lot of students.
The temporary and definite reprimand seems to be a current practice in several high schools. Since many years, the ORK requests to replace the temporary reprimands for measures having a pedagogical interest. Concerning the definite reprimands, the ORK thinks that the reputation of the institution should never prevail over the resolution of the youngsters problems. A teenager who causes problems is generally in distress and needs help. Neither their problems, nor the disciplinary problems of the institutions, can be resolved by transferring them from one high school to another one.
The ORK invites the parents, the teaching staff and the nursery-school teachers to take attention that the “Spillschoul” keeps its playful character and that the learning methods from primary school are not already adopted in the nursery school.
The ORK recommends increasing the number of intermediate intervener, so that they can simplify the inclusion and the assistance of the children with special needs or suffering from serious behavioral problems in primary and secondary education classes. Furthermore the ORK recommends the creation of specialized induction structures (internat thérapeutique) for children suffering from serious behavioral problems. It is important to prevent that the children, which were repulsed from the ordinary education system, are transferred or placed in structures abroad.
Such an induction class does not have the finality to separate the migrant children, but to prepare their integration in the normal classes where they obtain some special admission courses or extra lessons, adapted to their needs.
The ORK suggests to read the common complement of the “Rapport du groupe RADELUX sur les Droits des enfants trans’ et des enfants intersexe”. This document helps to improve the understanding the impact for the concerned children and youngsters, but also for the organizations and institutions working with concerned people.
The ORK still recommends the creation of a skilled reference person in school to accompany a pupil in difficulty and mainly to advise the other intervener, because an inappropriate intervention risks to endanger the child.
The ORK appeals to the “Office national de l’Enfance et aux services d’aide et de consultations” to be careful not to dissuade the youngsters in difficulties on consulting because of a non-personal and too bureaucratic admission procedure. To help teenagers, it is not reasonable to let them first fill in 3 pages of documents or to demand the father’s or mother’s signature.
The ORK claims with insistence the institutionalization of the medical service handling with the detection and reception of abused minors, the “Centre de diagnostic national de la maltraitance” in the pediatrics of the CHL.
The ORK asks the telecommunication providers that are selling mobile phones and subscriptions, to ensure a minimum of informations about the possible risks related to the use of certain services, as for example the SMS Premium. The ORK requests that the providers create a system, which would give the clients (parents) the possibility to freeze the overpriced subscriptions. Technically, this would be possible.
The ORK got the information that certain supermarket chains let children of 8 or 12 years play video games in their shop (f.ex. Call of Duty-Ghosts), which are marked up with an age restriction of 18 years and nobody interrupts them. For the festivities at the end of the year, the ORK appeals to the managers of such department stores to take care that age restricted video games are not free accessible in their racks.
In view of a certain number of collected testimonies in the last year, the ORK exhort the parents to assume their responsibility and to keep an eye on their children’s online activities. The ORK supports initiatives as BEE SECURE or CASES and suggests to introduce them in a global concept of media education what should be initiated as early as possible.
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