Chương IV Luật trẻ em 2016: Bảo vệ trẻ em

Chapter IV

CHILD PROTECTION

Section 1. LEVELS OF CHILD PROTECTION AND RESPONSIBILITY FOR IMPLEMENTATION

Article 47. Requirements on child protection

1. The child protection is implemented in according to the following three levels:

a) Prevention;

b) Support;

c) Intervention.

2. The implementation of the child protection must ensure the systematization, continuity, close and effective cooperation between competent authorities and sector managing agencies in the construction and implementation of policies and laws and the provision of child protective services.

3. Agencies, organizations, educational establishments, families and individuals assume child protection duties. The child protection must comply with the laws, processes and standards promulgated by competent state authorities.

4. The child protection at children’s families and families that perform the surrogate care is prioritized. The sending of children to social support establishments is only a temporary method when the care of children at their families or families performing the surrogate care is unsuccessful or for the best interests of children.

5. Parents, caregivers and children must provide information and state their opinions with competent authorities and individuals in making decisions on child protection intervention or support.

6. It should attach a special importance to the prevention of the risk of harm to children; make timely intervention for minimizing bad consequences; actively assist disadvantaged children with functional rehabilitation and social inclusion.

Article 48. Prevention level

1. The prevention level includes many child protective measures which are applicable to community, families and children for the purpose of raising awareness and improving knowledge of child protection, creating a safe and healthy living environment for children and minimizing the risk of cases where children who may be abused or face disadvantaged conditions.

2. Child protective measures at prevention level consist of:

a) Propagate and disseminate the danger and consequences of factors and acts harming and abusing children; responsibility for discovering and reporting cases where children are abused or in danger of violence, exploitation or abandonment to community, families and children;

b) Provide information and equip parents, teachers, caregivers and people working in child protective service providers with knowledge of child protection duties and skills for preventing and discovering factors and acts harming or abusing children;

c) Equip with knowledge and parenting skills for ensuring children’s safety;

d) Educate and give advice on knowledge and self-protection skills to children;

dd) Establish a safe and suitable living environment for children.

Article 49. Support level

1. The support level includes child protective measures which are applicable to children in danger of violence, exploitation or abandonment or disadvantaged children for the purpose of discovering, reducing or abolishing risks of harm to children in a timely manner.

2. Child protective measures at the support level consist of:

a) Warn about risk factors for child abuse; give advice on intervention measures, knowledge and skills for abolishing or reducing the risk of child abuse to parents, teachers, caregivers, people working in child protective service providers and children for the purpose of re-establishing a safe living environment for children in danger of child abuse;

b) Receive information, evaluate the level of harm and apply necessary measures for supporting children in danger of violence, exploitation or abandonment for the purpose of eliminating or minimizing such dangers;

c) Give assistance to disadvantaged children as regulated in this Law;

d) Assist disadvantaged children and their families to access to social support policies and other supporting sources for improving living conditions for children.

Article 50. Intervention level

1. The intervention level includes child protective measures that are applicable to abused children and their families for preventing acts that result in harm to children and assisting disadvantaged children with functional rehabilitation and social inclusion.

2. Child protective measures at the intervention level consist of:

a) Give health care, psychological treatment, physical and mental health rehabilitation to abused children and disadvantaged children who require the intervention;

b) Arrange a safe temporary residence for children and separate them from the environment or individuals that make threats or have acts of violence or child exploitation.

c) Arrange temporary or long-term surrogate care for children of groups defined in Clause 2 Article 62 of this Law;

d) Assist children suffered violence, exploited and abandoned children in family reunion, school integration and social integration.

dd) Give advice and provide parents, caregivers and family members of disadvantaged children with knowledge of duties and skills of protecting, taking care of and practicing inclusive education to this group of children.

e) Give advice and provide knowledge of legislation and legal assistance to parents, caregivers and disadvantaged children;

g) Measures for assisting abused children and their children prescribed in Clause 1 Article 43, Clause 1 Article 44 and Point d Clause 2 Article 49 of this Law;

h) Monitor and evaluate the safety of abused children or those in danger of child abuse.

Article 51. Responsibilities for provision and response to information, report or denunciation of child abuse

1. Agencies, organizations, educational establishments, families and individuals shall assume responsibility for providing information, reporting and denouncing acts of harming children in cases where children are abused or in danger of violence, exploitation or abandonment to competent authorities.

2. Agencies of labour - invalids and social affairs, police agencies at all levels and communal people’s committees are responsible for receiving and responding to information, reports and denunciations; cooperating to verify, appraise and investigate acts of harming children, conditions leading to the unsafety or harm to children and the level of risk of harm to children.

3. The Government establishes an active national telephone exchange system for receiving and responding to information, reports and denunciations of risks and acts of child abuse; promulgates procedures for receipt and response thereof.

Article 52. Support and intervention plans

1. The support and intervention plan is established for implementing one or certain child protective measures at the support or intervention level as regulated in Article 49 and Article 50 of this Law and applicable to each case of abused children or children threatened with violence, exploitation or abandonment and disadvantaged children.

2. People’s committees of communes where children resides shall take the prime responsibility and coordinate with agencies, organizations and individuals in charge of child protection to establish, approve and implement support and intervention plans; arrange resources and individuals and/or organizations to implement or cooperate to implement and inspect the implementation of such support and intervention plans.

3. With regard to children who are abused or might suffer violence, might be exploited or abandoned by their parents or caregivers and abused children whose parents or caregivers refuse to implement support and intervention plans, chairpersons of communal people’s committees, district agencies of labour - invalids and social affairs shall request competent courts to make decisions on limiting rights of children’s parents or caregivers or temporarily separate such children from their parents or caregivers and apply surrogate care method.

4. This Article is detailed by the Government.

Article 53. Responsibilities of individuals in charge of child protection affairs at communal level

1. Assess risks and determine demands of children who need the protection.

2. Participate in the establishment and implementation of support and intervention plans for disadvantaged children, abused children or children in danger of violence, exploitation or abandonment.

3. Give advice and provide information and guidance to children and their parents and caregivers on the access to child protection, social support, health, education and legal assistance services and other supporting sources.

4. Give advice on child protection knowledge and skills to children, their parents, caregivers and family members and community.

5. Propose surrogate care method and follow the implementation thereof.

6. Assist children who committed illegal acts, are crime victims or testifiers in the course of proceeding, taking of actions against administrative violations, rehabilitation/ recovery and social inclusion as regulated in Article 72 of this Law.

Article 54. Responsibilities for child protection on the network environment

1. Relevant agencies and organizations shall propagate, educate and protect children while they participate into the network environment in all forms. Parents, teachers and caregivers of children shall provide education about knowledge and guidance on skills to children in order that they can know how to protect themselves on the network environment.

2. Agencies, organizations and individuals that manage or provide information and communications products or services and organize activities on the network environment must apply measures for ensuring the safety and personal secrets for children as regulated by the laws.

3. This Article is detailed by the Government.

Section 2. CHILD PROTECTIVE SERVICE PROVIDERS

Article 55. Types of child protective service providers

1. Child protective service providers are established by agencies, organizations and individuals as regulated by the laws. Their functions and tasks are to implement or cooperate and support for the implementation of one or certain child protective measures at prevention, support and intervention levels as prescribed in Article 48, Article 49 and Article 50 of this Law.

2. Types of child protective service providers include public and private child protective service providers.

3. Child protective service providers consist of:

a) Child protective service providers whose functions and tasks specialize in the provision of child protective services;

b) Child protective service providers which only have a part of their functions and tasks specializing in the provision of child protective services.

Article 56. Requirements on the establishment and operation registration of child protective service providers

The establishment and operation registration of child protective service providers are carried out if the following requirements have been satisfied:

1. Their operational principles and objectives are for the best interests of children;

2. Their operating contents aim to implement one or several child protective measures regulated in Article 48, Article 49 and Article 50 of this Law;

3. Representatives of child protective service providers must be Vietnamese citizens who are capable of civil acts, have good virtuous character and knowledge of children and child protection affairs, and do not face criminal prosecution or administrative penalties for acts of child abuse;

4. Their facilities, equipment, financial sources and human resources must satisfy their objectives, requirements and scope of operation as regulated by competent state agencies.

Article 57. Authority to establish and grant operation registration certificates to child protective service providers

1. Ministries, ministerial-level agencies and the government-affiliated agencies shall, within the ambit of their tasks and powers, establish public child protective service providers under their authority and grant operation registration certificates to other child protective service providers whose operations are carried out in many provinces; take the prime responsibility and coordinate with the Ministry of Labour - Invalids and Social Affairs to promulgate or propose competent authorities to promulgate development plans for child protective service providers and guide the implementation thereof; establish procedures and standards of child protective service provision under their authority, inspect and take actions against violations as regulated by the laws.

2. The provincial people’s committee shall establish public child protective service providers and grant operation registration certificates to other child protective service providers whose operations are carried in such province; take the prime responsibility and coordinate with relevant agencies to establish and direct the implementation of the general planning for types of child protective service providers in such province in conformity with actual demands.

3. The district people’s committee shall establish public child protective service providers and grant operation registration certificates to other child protective service providers whose operations are carried in such district.

Article 58. Activities of child protective service providers

1. Child protective service providers shall carry out registered activities and satisfy the following requirements:

a) Requirements regulated in Article 47 of this Law;

b) Comply with procedures and standards of child protection service provision promulgated by competent state authorities;

c) Conduct the receipt and provision of child protective services, and transfer of children and results of child service provision between child protective service providers for the safety and best interests of children;

d) Follow the guidance and bear the inspection of specialized operations by competent state authorities;

dd) Keep secret of information concerning abused children, except for the cases where the provision of information is requested by competent agencies or officials.

2. Child protective service providers can receive financial support or support in kinds granted by domestic and foreign agencies, organizations and individuals as regulated by the laws for implementing child protective measures.

Article 59. Suspension or termination of activities of child protective service providers

1. If child protective service providers commit any of the following contents, their activities or a part of their activities shall be suspended or terminated depending on the nature and degree of the violations:

a) Fail to satisfy requirements stated in Article 56 of this Law or fail to comply with laws relating to their operating sectors;

b) Commit serious violations against the children’s rights;

c) Use their operating expenditure and facilities not for regulated purposes.

2. Ending the period of suspension, if child protective service providers fail to rectify issues that lead to such suspension, their activities or a part of their activities shall be terminated.

3. Competent state agencies have the right to suspend or terminate activities of child protective service providers that they established or granted operation registration certificates.

Section 3. SURROGATE CARE

Article 60. Requirements on the implementation of surrogate care

1. Base on demands, background, sex, race, religion and language of children, and ensure children's rights.

2. Ensure the children’s safety as well as the stability, continuity and attachment between children and their caregivers.

3. Consider opinions, expectations, feeling and attitude of children according to their age and maturity level. With regard to children from enough 07 years of age and older, their opinions must be considered carefully.

4. The surrogate care taken by children’s kindred is prioritized. If children have siblings, they might live together with their siblings.

5. Ensure the contact or reunion between children and their parents and other family members, if possible, except for the cases where the contact or reunion is unsafe for children or not for children's best interests.

Article 61. Types of surrogate care

1. The surrogate care taken by children’s kindred.

2. The surrogate care taken by individual or family that is not children’s kindred.

3. The surrogate care is carried out in the form of adoption.

The child adoption must comply with laws on adoption.

4. The surrogate care is made at social support establishments.

Article 62. Cases where children need the surrogate care

1. Double-orphans, abandoned children, and homeless children.

2. Children who cannot live with their natural parents for protecting children’s safety; children whose parents are unable to protect or nurture them or are child abusers.

3. The protection of children who are affected by natural disasters and calamities or aimed conflict is prioritized.

4. Refugee children whose parents are not yet identified.

Article 63. Conditions of the surrogate care

1. The making of decisions on the surrogate care must satisfy requirements stated in Article 60 of this law and the following conditions:

a) The surrogate care must be consented in writing by the children's guardians in cases regulated in Clause 1 Article 62 of this Law;

b) The approval or performance of the surrogate care for children whose parent(s) is (are) alive but they are unable to protect and take care of them must be carried out with the written content of their parent(s), except for the cases where intervention measures are taken to protect children as regulated in Point b and Point c Clause 2 Article 50 and Clause 3 Article 52 of this Law or the cases where parental rights are limited as regulated by the Law on marriage and family.

2. Individuals and families that perform the surrogate care must ensure the following conditions:

a) Individuals or family representatives must reside in the territory of Vietnam. They must be healthy, capable of civil acts and have good virtuous character. They do not have their rights to juvenile children limited. They also do not face criminal prosecution or administrative penalties for acts of child abuse. In addition, they must not be convicted of deliberate infliction of harm to human life, health, or dignity of the others, or maltreatment or abuse of one's grandparent, parent, spouse, child, grandchild, or caregiver, or persuading, forcing a minor to commit an offence, or harboring a minor committed a offence, or trafficking, or swapping, or appropriation of children;

b) They must have suitable residence and economic conditions to ensure the nurture and education of children;

c) They must voluntarily perform the surrogate care. All family members must agree with the receipt of surrogate care, and no one of family members must face the criminal prosecution or administrative penalties for acts of child abuse;

d) Kindred who perform the surrogate care must be adults. In other cases, individuals who perform the surrogate care must be at least 20 years older than children.

3. The Government encourages agencies, organizations, families and individuals to give support, in both mental and physical terms, for the surrogate care.

Article 64. Rights and responsibilities of surrogate caregivers

1. Surrogate caregivers shall assume the following responsibilities:

a) Ensure safe living conditions for children so that they can exercise their rights and responsibilities in conformity with conditions of surrogate caregivers;

b) Submit reports, after 06 months from the date on which they started their performance of the surrogate care or on annual basis, to people’s committees of communes where they reside on physical and mental health, and the integration of children. In cases where unexpected matters occur, unscheduled reports must be submitted on a timely manner.

2. Surrogate caregivers shall have the following rights:

a) Surrogate caregivers are entitled to priority loans, vocational training and employment support and healthcare while they get into difficulties;

b) They are supported with expenditure for nurturing children as regulated by the law and are entitled to receive support from agencies, organizations, families and individuals to perform the surrogate care.

Article 65. Surrogate care registration

1. Individuals and families who wish to perform the surrogate care and are qualified for performing the surrogate care as regulated in Clause 2 Article 63 of this Law shall register with people’s committees of communes where they reside.

2. Communal people’s committees shall prepare and submit the list of individuals and families that have registered and are qualified for performing the surrogate care to district agencies of labour - invalids and social affairs.

3. District agencies of labour - invalids and social affairs shall coordinate with commune people’s committees to manage the list and appoint qualified individual or family to perform the surrogate care within their authority in cases where children needs the surrogate care.

4. When kindred of children perform the surrogate care, they must not carry out registration procedures as regulated in Clause 1 of this Article but they must report to communal people’s committees to make decisions on approval for the surrogate care.

5. The Government shall promulgate regulations detailing registration procedures, preparing the list and selecting individuals and families to perform the surrogate care.

Article 66. Authority to make decision on the surrogate care

1. Chairpersons of communal people’s committees shall make decisions on sending children to individuals or families that register for the performance of surrogate care on the basis of requirements stated in Clause 1 and Clause 2 Article 63 of this Law.

If children who receive the surrogate care have no natural guardian as regulated by the laws, chairpersons of communal people’s committees might, with the consent of surrogate caregivers, appoint surrogate caregivers to act as children’s guardians.

2. Chairpersons of district people’s committees shall decide to appoint social support establishments within their authority to perform the surrogate care.

3. Directors of departments of labour - invalids and social affairs shall decide to appoint social support establishments under provincial management to perform the surrogate care.

4. District people’s committees shall make decisions on the surrogate care for groups of children regulated in Clause 2 Article 62 of this Law at the request of agencies, organizations and individuals in charge of child protection as regulated by the laws.

Article 67. Placement of children into social support establishments

1. Chairpersons of people’s committees of communes where children reside or acts of child abuse occur shall carry out procedures for taking children into social support establishments in the following cases:

a) While procedures for the surrogate care are carried out;

b) There is unable to select an individual or family qualified for performing the surrogate care;

c) Where measures stated in Point b Clause 2 Article 50 of this Law apply.

2. Social support establishments shall, on a regular basis, consider cases of surrogate care at their establishments and request for change of type of surrogate care.

3. The Government shall promulgate regulations on procedures for handling surrogate care documents and changing type of surrogate care.

Article 68. Supervision and assessment of status of children who receive the surrogate care

1. Provincial and district agencies of labour - invalids and social affairs shall discharge the following duties:

a) Give advice and guide the implementation of policies and methods of supporting surrogate caregivers and children receiving the surrogate care;

b) Verify the list of children at social support establishments for a periodical basis of every 06 months; receive, consider and respond to proposals of social support establishments or request competent agencies or organizations to change types of surrogate care;

c) Inspect the surrogate care performed at families and social support establishments; take actions, within their competence, against child abuse or acts in violation of care of children standards.

2. Communal people’s committees shall, on a periodical basis of 06 months, evaluate cases of children receiving surrogate care at families under their management and report to district agencies of labour - invalids and social affairs to impose suitable support and intervention measures.

Article 69. Termination of the surrogate care

1. The surrogate care shall be terminated in the following cases:

a) Individuals or families who perform the surrogate care are unable to ensure conditions for taking care of children as regulated in Clause 2 Article 63 of this Law;

b) Individuals or families who perform the surrogate care commit any of prohibited acts regulated in Article 6 of this Law and cause harm to children receiving the surrogate care;

c) The surrogate care is terminated as requested by individuals or families who perform the surrogate care;

d) Children under the surrogate care deliberately inflict serious harm to human life, health, dignity, or honor of individuals or members of families that perform the surrogate care;

dd) Children reunite with their families if their families ensure the safety of such children and have qualified conditions for exercising the children's rights.

2. If the individual or a member of the family that performs the surrogate care causes harm to the child, such child must be immediately separated from the individual or family performs the surrogate care and child protective measures may apply as regulated in Article 50 of this Law.

3. In case children wish to terminate the surrogate care, competent agencies or individuals and surrogate caregivers shall consider and decide the termination of surrogate care for the best interests of children.

4. Makers of decisions on surrogate care may decide the termination of surrogate care.

Section 4. MEASURES FOR PROTECTING CHILDREN IN THE COURSE OF PROCEEDING, TAKING OF ACTIONS AGAINST ADMINISTRATIVE VIOLATIONS, REHABILITATION/ RECOVERY AND SOCIAL INCLUSION

Article 70. Requirements on protection of children in the course of proceeding, taking of actions against administrative violations, rehabilitation/ recovery and social inclusion

1. Children must be respected and treated in a fair and equal manner in conformity with their age and maturity level.

2. Cases relating to children affairs shall be promptly handled for minimizing mental and physical harm to children.

3. Ensure the assistance of parents, guardians and other legal representatives for children in the course of proceeding and taking of actions against administrative violations for protecting children’s lawful rights and interests.

4. Presiding officers, competent individuals for taking actions against administrative violations, lawyer and legal assistants must have necessary knowledge of child psychology and educational science. Their language must be friendly and understandable to children.

5. Ensure the children’s rights to defense and legal assistance.

6. Actively prevent children’s illegal acts and recidivism by means of giving timely support and intervention to correct justifications and factors for their illegal acts, and assisting children with rehabilitation/recovery and social inclusion.

7. Provide safe, continuous, sufficient and flexible prevention, support and intervention measures in a timely manner and in conformity with demands, background, age level and psychological and physiological features of each child on the basis of careful consideration and respect for opinions, expectations, feeling and attitude of that child.

8. Ensure the close and timely connection between agencies, organizations, child protective service providers, families, educational establishments and presiding authorities and competent authorities for taking actions against administrative violations.

9. Prioritize the imposition of prevention, support and intervention measures, or edification at the commune, ward or town, or measures substituting administrative penalties on children violating the laws. Coercive actions and limitations on freedom are only taken when other prevention and education measures are not appropriate.

10. Ensure children’s privacy and apply necessary measures for limiting the children’s appearance in the public during the proceeding.

Article 71. Measures for protecting children, who committed illegal acts, are crime victims or testifiers

1. Children committed illegal acts must undergo the edification at the commune, ward or town, or receive measures substituting administrative penalties as regulated by the Law on handling of administrative violations. Children who committed illegal acts and are exempt from criminal liabilities shall receive the reprimand, community conciliation or edification at the commune, ward or town. They must face the non-custodial sentence or suspended sentence as regulated by the Criminal Code. The following protective measures shall be imposed on children who have served the compulsory education in a reform school or the imprisonment for correcting justifications and factors for illegal acts, recovering and avoiding recidivism:

a) Child protective measures at the support level regulated in Point c Clause 2 Article 49 of this Law;

b) Child protective measures at the intervention level regulated in Point a and Point e Clause 2 Article 50 of this Law;

c) Seeking children’s relatives for family reunion if children do not have stable residence;

d) The surrogate care regulated in this Law shall be imposed on double-orphans, or children whose parents are not identifiable; children who are unable to live with their parents; children whose residence could not be identified during their implementation of decisions on the edification at the commune, ward or town, or measures substituting administrative penalties granted by competent authorities;

dd) Assist families to supervise, manage and educate children;

e) Other protective measures as regulated in Article 48, Article 49 and Article 50 of this Law, if possible.

2. Child protective measures at the support level regulated in Point c and Point d Clause 2 Article 49 and child protective measures at the intervention level regulated in Article 50 of this Law shall be imposed on children who are crime victims or testifiers and suffered mental or physical harm.

3. Human life, health, dignity, honor and privacy of children who are testifiers shall be protected. The forced escort or placing children who are testifiers under the psychological pressure should be minimized.

Article 72. Responsibilities of individuals in charge of child protection affairs at communal level in the course of proceeding, taking of actions against administrative violations, rehabilitation/ recovery and social inclusion

1. Give advice and provide information and guidance to children, their parents and caregivers on the access to child protection, legal assistance, social support, health, education support services and other supporting sources.

2. Find and provide information about children’s background and family to authorized procedural persons and competent individuals for taking actions against administrative violations in order that they can impose legitimate measures for handling illegal acts, the edification measure and make other suitable decisions.

3. Participate in the proceeding and the handling of administrative violations in connection with children as regulated by the laws or as requested by authorized procedural persons or competent individuals for taking actions against administrative violations; attend the meeting of the advisory board for the application of the edification at the commune, ward or town for handling administrative violations, and the consideration made at the Court for sending children to reform schools for education.

4. Follow and assist the imposition of the edification at the commune, ward or town, measures substituting administrative penalties, or social inclusion on children who violate the law; propose suitable measures for protecting children who committed illegal acts as regulated in Clause 1 Article 71 of this Law.

5. Participate in the establishment of support and intervention plans and follow the implementation thereof; contact and assist children with rehabilitation/recovery and social inclusion services.

Article 73. Support for rehabilitation/recovery and social inclusion of children who committed illegal acts

1. Detention facilities and reform schools must coordinate with people’s committees of communes where children reside to implement the following measures for the purpose of preparing and enhancing the social inclusion of children violating the law:

a) Maintain the contact between children and their family;

b) Organize educational classes, vocational training classes and skill training classes for children;

c) Consider and evaluate the compliance with the children’s compulsory study and training at detention facilities and reform schools, and request competent authorities to reduce the period of serving the sentence or terminate the compulsory education at reform schools as regulated by the law.

2. The detention facility or the reform school where the child is serving his sentence or the compulsory education must, within 02 months before the child completes his sentence or 01 month before the child finishes the compulsory education at the reform school, inform and provide relevant information to the people’s committee of commune where the child will return to live to prepare the receipt and support for the social inclusion of that child.

3. Chairpersons of people’s committees of communes where children reside shall direct the establishment and implementation of support and intervention plans and the application of measures for protecting children who committed illegal acts as regulated in Clause 1 Article 71 of this Law.

4. Agencies of labour - invalids and social affairs, judicial agencies, police agencies, organizations of the Communist Youth Union of Ho Chi Minh City, and agencies of Vietnam Women’s Youth Union at district level shall coordinate with relevant agencies and organizations to guide and assist communal people’s committees with the implementation of support and intervention plans, and the imposition of other suitable protective measures on children.