In one of my first posts, I mentioned an article I had written a couple of years ago, in which I argued for placing the human rights burden on national governments (with international support) to count, account for, assess and evaluate their own social orphan populations, with a view to finding these children real permanency–as opposed to simply going through the motions and invoking “best practices” that usually are not followed. (For the article, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136879)
Though a bit long, I reproduce below the social orphan protocol I drafted as a proposed (and much needed) addition to the United Nations Convention on the Rights of the Child. It is an important set of human rights concepts–and would encourage governments to pursue the options most likely to lead to permanency for children.
Importantly, it informs states that it is not in the interests of children to place child welfare options such as foster care or group home care ahead of adoption.
Appendix: Draft Protocol to the UNCRC on Social Orphans
The States Parties to the present Protocol,
Considering that the international community has recognized that the best interests of the child, as stated in Article 3 of the United Nations Convention on the Rights of the Child, should guide decision making in the area of child welfare; and in light of Articles 19, 20, and 37 of that Convention, it would be appropriate to clarify the obligations of States Parties with respect to the highly vulnerable population of children living outside of family care within their territory;
Bearing in mind that many countries, both developed and developing, have large populations of children living outside of family care, also known as social orphans, and that these children are especially vulnerable to neglect and exploitation;
Disturbed that these children often fail to live up to their human potential and alarmed at the fact that these children frequently find themselves at the margins of society as young adults;
Concerned that social orphans are often hidden from view, and that States have not provided accurate and independently verifiable assessments of the numbers or living conditions of these children;
Concerned that the Articles 20 and 21 of the UNCRC are not sufficiently clear about the relationship between the developing child and the urgent and time-bound need for permanency in a family setting;
Gravely concerned that many States Parties to the UNCRC have large populations of social orphans, yet lack systems of domestic or international adoption, and that their children are harmed by a lack of access to the benefits of family life;
Determined that social orphans could be greatly assisted by the adoption by the international community of a set of guiding principles to assist in the provision to each child of a permanent and loving home, in accordance with the human rights of children;
Believing that there has not been a coherent, human rights based approach to the complex and multifaceted problem of the social orphan;
Have agreed as follows:
States Parties shall, in order to assist in ensuring the human rights of social orphans within their territory, locate, account for, and publish information on all such children. They shall take all feasible measures to provide permanent family solutions for children living out of parental care at the earliest possible stage, taking into account the rights and interests of birth families as well as children.
States Parties shall make accessible to an independent, impartial body of observers and analysts the group facilities in which these children reside. They shall allow for independent monitoring of the terms and conditions of national foster care programs devised as replacements for institutional living. They shall not obstruct such observers from gathering information on the conditions in which these children live.
States Parties shall provide for a uniform approach to children living without parental care that will reflect international human rights norms. In particular, they will create mechanisms to expeditiously assess the life circumstances of children who come into state or other forms of non-family care, and determine within the shortest reasonable time what the likelihood is of that child either being reunited with his or her family; living with a willing and able extended family member, or finding a new home through domestic adoption.
Where none of these domestic solutions are feasible within a reasonable period of time, but in any case not so long that the child is likely to be permanently harmed by remaining in institutional care, the child shall be provided with the possibility of finding a family through intercountry adoption, in line with the ethical procedures set out in the Hague Convention on Intercountry Adoption, or comparably transparent procedures. A reasonable period of time shall be understood by reference to the latest research on the detrimental effects on the developing brain of a lack of consistent and devoted caregivers. A child in such circumstances should not be left in paid stranger foster care in preference to adoption, whether domestic or international.
States Parties shall work simultaneously to effect the following national policies: the creation of a network of social workers with expertise to assist those families capable of being reunited; to provide targeted and adequate social welfare to ensure that children are not being abandoned for reasons of poverty alone; to develop training and assistance for prospective adoptive parents within the state of origin of the social orphan, and with a view to making domestic adoption a socially desirable and widely accepted option.
Where it is determined that a child is unlikely to return to his or her family of origin, and that domestic adoption is also unlikely to occur in the near future, States Parties shall allow the child to be adopted internationally without creating any artificial impediments, such as numerical quotas, requirements that the child remain in a national database for long periods of time, requirements of multiple trips by prospective parents, or similar obstacles.
Where children are unable to be provided with substitute families either domestically or internationally, and where aspects of their situation make it unlikely that they will be adopted, humane, family-like institutions, including foster care, should be created. These facilities should also be accessible to expert visitors representing the international community.
States Parties shall in no circumstances prefer paid stranger foster care over adoption into permanent, loving, fully qualified families, particularly with respect to younger children who are likely to be able to benefit most from adoption.
States Parties shall acknowledge and make part of their national policies, that for children who have a realistic option of being reunited with birth families, or finding homes through domestic or international adoption, the State should not place them in “family like” institutions or foster care for longer than it takes to move them to the permanent setting.