OPINION Veronica Buchumi 27 November 2020
The importance of a family environment for a child
A loving, happy, and understanding family environment is all a child could wish and need for full and harmonious development of his or her personality. Ideally, all children deserve and ought to grow up in the care of their biological parents, who as the world expects, know better the value of the children they beget and the need to provide them with care and protection from all kinds of harm. Thus, traditions, customs and laws entrust the care and protection of children in the hands of the biological parents as the primary duty bearers and sometimes as individuals with rights to care for their own children without unjustified interference from fellow community members and even the state authorities.
If you have had the privilege to grow up in the ideal family environment described above, it might be difficult to imagine that there could be children who are without such environment or are on the verge of losing their family environment. Nevertheless, life is full of uncertainties and risks, which create certain undesirable conditions for the parents, making it impossible for them to discharge their responsibilities to their children. News on child abandonment, abuse, neglect, and relinquishment are unsurprising and common factors leading to children without parental care. Some children have lost their parents at the time when they needed them most due to death, sickness or sometimes unwillingness or inability of their parents to care for them. These circumstances have necessitated the inclusion of the right to alternative care for children in various international and regional instruments on children’s rights to save them from the plight of losing family environment in which to grow and develop.
Normative framework of the right to alternative care: international and national
At the international level i.e., United Nations (UN) and African Union (AU), the right to alternative care is enshrined in Article 20 of the UN Convention on Right of the Child (CRC), 1989 and Article 25 of the African Charter on the Rights and Welfare of the Child (ACRWC), 1990. States parties including Tanzania, are under the obligation inter alia to ensure that children deprived of their family environment are accorded suitable alternative care for their welfare and development. Both provisions contain an inclusive list of possible alternative care options that states parties can, in accordance with their national laws, establish in their countries in accordance with their national laws. The options include foster care placement, kafalah of Islamic Law, adoption and if necessary, placement in suitable institutions (institutional/residential care). In provision of alternative care emphasis is on the use of family-based alternative care and limit the use of institutionalised/residential care – there is a worldwide campaign to deinstitutionalise alternative care services for children.
In 2010, the United Nations General Assembly adopted the UN Guidelines for the Alternative Care of Children without Parental Care to complement and provide guidelines on the implementation and realisation of the right to alternative for children. Though the Guidelines for Alternative Care are not binding the states parties, they play an important role by setting out orientations for policy and practice. From these guidelines two major principles can be derived which are to guide state authorities in the provision of alternative care services for children. Necessity principle is the first principle which entails that a child should be placed in alternative care only when it is necessary and in the best interests of the child. This principle underscores the importance of having prevention and gatekeeping mechanisms to prevent unnecessary placement of children into alternative care. The second is the principle of appropriateness or suitability principle. This principle entails that when placement of a child into alternative care inevitable, the placement ought to be suitable andappropriate to suit the needs of the child and one that enhances the best interests and welfare of the child. In addition to the need of having case-by-case analysis of the child’s needs, the suitability principle requires establishment of continuum of care services with several alternative care options. Thus, if a country has only one alternative care option it may not be easy to adhere to the suitability principle.
Law of the Child Act in Tanzania
In Tanzania, the right to alternative care is provided in the Law of the Child Act (LCA) of 2009 which, among other objectives domesticates, the international instruments on children’s rights. The LCA under section 7 guarantees the right of a child to grow up in the care of his or her family unless it is determined by relevant authorities that the family is unsuitable. Where the family is determined as unsuitable, the child removed form from the care of the child is entitled to best alternative care from the state. Section 18(3) of the LCA is one of the provisions enumerating alternative care options in which a child in need of care may be placed: approved residential homes (residential care), a fit person, approved foster parent (foster care placement) or at the home of a parent, guardian or relative. The LCA contains specific parts on each of the above care options save for care by a fit person and care at a home of a parent, guardian or relative. In addition to the specific parts under LCA on the available care options, there exists also specific regulations (subsidiary legislation) on foster care placements, adoption, and children’s homes to govern the implementation of the main provisions on these care options under the LCA.
Child Protection Regulations
In principle and as the law stands, the realisation of the right to alternative care in Tanzania is to be provided basing on the two principles found in the UN Guidelines for the alternative care: necessity and suitability principle. This can be deduced for the Child Protection Regulations, 2014 and Children’s Homes Regulations, 2012 which consist of provisions containing principles guiding the provision of alternative care services. However, in practice there is weak gate keeping mechanisms and over-institutionalisation of children in need of care due to inadequate and ineffective family-based alternative care options.
Veronica Buchumi is an Alumna of the Tanzanian-German Centre of Eastern African Legal Studies (TGCL) and a lecturer at the University of Dar es Salaam, Tanzania. She is doing her PhD on “Implementing foster care in Tanzania: A critical assessment of Laws, procedures and Institutions” at the University of Bayreuth where she is also a Junior fellow of BIGSAS.