Nghị định 56/2017/NĐ-CP hướng dẫn luật trẻ em

NGHỊ ĐỊNH

QUY ĐỊNH CHI TIẾT MỘT SỐ ĐIỀU CỦA LUẬT TRẺ EM

Căn cứ Luật tổ chức Chính phủ ngày 19 tháng 6 năm 2015;

Căn cứ Luật trẻ em ngày 05 tháng 4 năm 2016;

Căn cứ Luật tổ chức chính quyền địa phương ngày 19 tháng 6 năm 2015; Theo đề nghị của Bộ trưởng Bộ Lao động - Thương binh và Xã hội; Chính phủ ban hành Nghị định quy định chi tiết một số điều của Luật trẻ em.

DECREE

DETAILING A NUMBER OF ARTICLES OF THE LAW ON CHILDREN

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the April 5, 2016 Law on Children;

Pursuant to the June 19, 2015 Law on Organization of Local Administration;

At the proposal of the Minister of Labor, War Invalids and Social Affairs;

The Government promulgates the Decree detailing a number of articles of the Law on Children.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details a number of articles of the Law on Children regarding groups of disadvantaged children and assistance policies; assistance and intervention for abused children, children at risk of violence, exploitation or abandonment and disadvantaged children; responsibility to protect children in the Internet environment; alternative care for children; and responsibilities of agencies, organizations, educational institutions, families and individuals to enable children to participate in children’s matters.

Article 2. Subjects of application

Agencies, organizations, educational institutions, families and individuals defined in Article 3 of the Law on Children.

Chapter II

GROUPS OF DISADVANTAGED CHILDREN AND ASSISTANCE POLICIES

Section 1. GROUPS OF DISADVANTAGED CHILDREN

Article 3. Orphans

1. Orphans who have no caregiver.

2. Orphans who are nurtured by child protection service providers or social relief establishments.

3. Orphans who live with their relatives.

4. Orphans who receive alternative care from individuals or families other than their relatives, unless they are adopted.

Article 4. Abandoned children

1. Abandoned children who have no alternative care.

2. Abandoned children who have alternative care.

Article 5. Children who have no one to rely on

1. Children who have one parent die and the other declared as missing as prescribed by law.

2. Children who have one parent die and the other taken care of by a social relief establishment or no longer capable of caring for and nurturing his/her children.

3. Children who have one parent die and the other currently serving an imprisonment sentence or confined to a compulsory educational institution or compulsory rehabilitation establishment.

4. Children who have both parents declared as missing as prescribed by law.

5. Children who have one parent declared as missing as prescribed by law and the other taken care of at a social relief establishment.

6. Children who have one parent declared as missing as prescribed by law and the other serving an imprisonment sentence or confined to a compulsory educational institution or compulsory rehabilitation establishment.

7. Children who have both parents no longer capable of taking care of them.

8. Children who have both parents taken care of by a social relief establishment.

9. Children who have both parents serving an imprisonment sentence or confined to a compulsory educational institution or compulsory rehabilitation establishment.

10. Children who have one parent taken care of by a social relief establishment and the other serving an imprisonment sentence or confined to a compulsory educational institution or compulsory rehabilitation establishment.

11. Children who have both parents in child age.

12. Children who have both parents restricted from exercising the parents’ rights or who are temporarily separated from their parents as prescribed by law.

Article 6. Children with disabilities

1. Children with extremely serious disabilities.

2. Children with serious disabilities.

3. Children with mild disabilities.

Article 7. HIV/AIDS-infected children

HIV/AIDS-infected children as prescribed by law.

Article 8. Juvenile delinquents

1. Juvenile delinquents who are serving the administrative measure of education at a commune, ward or township or of confinement to a reformatory; or who are placed under family-based management in replacement of an administrative sanction.

2. Juvenile delinquents whose stable places of residence are not yet identifiable and who are serving the administrative measure of education at a commune, ward or township or of confinement to a child protection service provider or social relief establishment.

3. Juvenile delinquents who are serving the judicial measure of education at a commune, ward or township or of confinement to a reformatory; or who are serving non-custody reform, a term imprisonment, or a suspended term imprisonment.

4. Children who have completely served a term imprisonment or completely served the measure of confinement to a reformatory.

Article 9. Narcotic-addicted children

1. Narcotic-addicted children in rehabilitation establishments.

2. Narcotic-addicted children who receive family- or community-based addiction rehabilitation or treatment.

Article 10. Children who have dropped out of school for livelihood and have not yet finished lower secondary education

1. Children who have dropped out of school for livelihood and have not yet finished lower secondary education and have no caregiver.

2. Children who have dropped out of school for livelihood and have not yet finished lower secondary education and are living together with their parent(s) or caregiver.

Article 11. Children suffering serious physical and mental harms due to violence

Children who, due to violence, suffer mental or behavioral disorders or have limited ability to communicate and learn or to meet their daily-life personal needs according to the assessment of the level of harm caused to these children made by an assessment body or a health establishment or a professional at the request of a competent agency, organization or person.

Article 12. Exploited children

1. Children who are forced to work in contravention of the labor law.

2. Children who are enticed, incited, provoked, taken advantage of, dragged, seduced or forced to participate in performance activities or who are employed in producing pornographic products.

3. Children who are enticed, incited, provoked, taken advantage of, dragged, seduced or forced to participate in tourist activities and are sexually abused; or who are given, received or supplied for prostitution activities.

4. Children who are enticed, incited, provoked, taken advantage of, dragged, seduced or forced to participate in transporting, trading, manufacturing or storing habit-forming substances and other prohibited commodities as prescribed by law.

5. Children who are enticed, incited, provoked, taken advantage of, dragged, seduced or forced to participate in other self-seeking activities.

Article 13. Sexually abused children

1. Raped children.

2. Child victims of coercive sexual intercourse.

3. Child victims of sexual intercourse.

4. Child victims of sexual contact.

5. Children employed for prostitution or pornographic purposes in any form.

Article 14. Trafficked children

1. Trafficked children who are repatriated to live with their parents.

2. Trafficked children who are repatriated and receive alternative care.

Article 15. Children of poor households or households living just above the poverty line who suffer a dangerous disease or a disease requiring long-term treatment

1. Children of poor households who suffer a dangerous disease or a disease requiring long-term treatment as prescribed by competent agencies.

2. Children of households living just above the poverty line who suffer a dangerous disease or a disease requiring long-term treatment as prescribed by competent agencies.

Article 16. Migrant, displaced and refugee children whose parents have not yet been identified or who are unaccompanied

1. Vietnamese children who migrate or are displaced in the country whose parents have not yet been identified or who are unaccompanied.

2. Foreign children who migrate, are displaced or seek refuge and are unaccompanied.

3. Children whose citizenship has or parents have not yet been identified or who are unaccompanied and migrate, are displaced or seek refuge in Vietnam.

Section 2. ASSISTANCE POLICIES

Article 17. Requirements on formulation and implementation of assistance policies for disadvantaged children

1. Guaranteeing the exercise of the rights and performance of the duties of children defined in Article 5, and meeting the child protection requirements specified in Article 47, of the Law on Children.

2. The age group of disadvantaged children eligible for, and levels, time limit and methods of implementation of, assistance policies must comply with the laws on relevant issues and are suitable to socio-economic development conditions.

Article 18. Health care policies

1. The State shall pay, or support the payment of, health insurance premiums for disadvantaged children in accordance with the law on health insurance.

2. The State shall pay, or support the payment of, medical examination and treatment or medical assessment expenses for disadvantaged children in accordance with the law on medical examination and treatment.

3. Disadvantaged children are entitled to other healthcare policies as prescribed by law.

Article 19. Social relief policies

1. The State shall provide monthly allowances for individuals and families that give alternative care; and support the payment of expenses for funerals and provide other allowances and supports for disadvantaged children in accordance with the law on social relief policies.

2. The State shall support meal, accommodation and travel expenses under the law on social relief policies for abused children and disadvantaged children currently under emergency protection prescribed in Clause 1, Article 31 of this Decree.

Article 20. Education, training and vocational education support policies

Disadvantaged children are entitled to school fee exemption or reduction and support of learning expenses in accordance with the laws on education, training and vocational education.

Article 21. Policies on legal aid, counseling, psychological therapy and other child protection services

1. Disadvantaged children are entitled to legal aid in accordance with the law on legal aid.

2. Disadvantaged children are entitled to counseling, psychological therapy and other child protection services prescribed in Articles 48, 49 and 50 of the Law on Children.

Chapter III

ASSISTANCE AND INTERVENTION FOR ABUSED CHILDREN OR CHILDREN AT RISK OF VIOLENCE, EXPLOITATION OR ABANDONMENT AND DISADVANTAGED CHILDREN

Section 1. THE NATIONAL TELEPHONE EXCHANGE FOR CHILD PROTECTION

Article 22. Tasks of the National Telephone Exchange for Child Protection

1. To provide child protection services via telephone numbers managed by the Ministry of Labor, War Invalids and Social Affairs.

2. To receive via telephone information, reports and denunciations.

3. To contact related or competent persons, agencies and organizations; to seek information on risks and acts of child abuse in the mass media and Internet environment for initially verifying information, reports and denunciations.

4. To send and provide information, reports and denunciations relating to or refer children at risk of abuse, abused children, disadvantaged children, parents and child caregivers to agencies, organizations and persons with child protection competence and function.

5. To coordinate with agencies, organizations, individuals, child protection service providers, and persons with child protection competence and function nationwide in receiving, exchanging and verifying information, reports and denunciations on abused children or children at risk of violence, exploitation or abandonment.

6. To assist commune-level child protection officers in making and implementing assistance and intervention plans for each abused child or child at risk of violence, exploitation or abandonment; to monitor and assess the making and implementation of these plans.

7. To provide psychological and legal counseling for children and parents, family members and caregivers of children.

8. To store, analyze and synthesize information for provision of information, reports and denunciations at the request of competent agencies, organizations and persons, for cases of child abuse, and of child protection service providers; to send regular or extraordinary reports to state management agencies in charge of children and other agencies with child protection competence and responsibility.

Article 23. Conditions for ensuring operation of the National Telephone Exchange for Child Protection

1. The National Telephone Exchange for Child Protection shall operate round the clock and be provided by the State with resources for its operation.

2. The National Telephone Exchange for Child Protection may use 3-digit telephone numbers and does not collect telecommunications and counseling charges for incoming calls.

3. The National Telephone Exchange for Child Protection may receive financial and technical assistance from agencies, organizations and individuals; and advertise its telephone numbers and services in accordance with law.

Section 2. RECEIPT AND PROCESSING OF INFORMATION, REPORTS AND DENUNCIATIONS ON ACTS OF CHILD ABUSE

Article 24. Information confidentiality principles

1. All information, reports and denunciations in the course of receipt and verification shall be kept confidential in the interest and for the safety of information providers and in the best interests of related children.

2. Information serving child protection provided and exchanged between information recipients and agencies, organizations and persons with child protection competence and function shall be kept confidential.

3. Information and regular and extraordinary reports of agencies and organizations with child protection competence and function shall be classified in terms of confidentiality level and scope of provision.

Article 25. Receipt of information and coordination in information processing

1. When detecting or receiving information on acts of child abuse or children at risk of abuse, agencies, organizations, educational institutions, families and individuals shall promptly report it to the National Telephone Exchange for Child Protection or labor, war invalids and social affairs agencies or public security agencies of any level or commune- level People’s Committees of the localities where the cases occur (below referred to as information recipients). Information recipients shall fully record information on acts of child abuse, abused children or children at risk of abuse according to Form No. 01 in the Appendix to this Decree.

2. Agencies, organizations and persons with child protection, care and education tasks shall, upon request, provide information for and coordinate with labor, war invalids and social affairs agencies and public security agencies of any level, commune-level People’s Committees of the localities where the cases occur or of the places where the children reside in verifying acts of child abuse, the state of unsafety and the level of risk of harm to children.

3. The receipt and processing of information, reports and denunciations on child abuse crimes must comply with the criminal procedure code.

Article 26. Initial assessment of levels of harm to abused children, children at risk of violence, exploitation or abandonment and disadvantaged children

1. The National Telephone Exchange for Child Protection or labor, war invalids and social affairs agencies of all levels or public security agencies of all levels shall coordinate with one another in processing information, reports and denunciations on abused children and children at risk of violence, exploitation or abandonment, and immediately forward such information to commune-level People’s Committees of the localities where the cases occur for initially assessing the risk or level of harm to children.

2. Chairpersons of commune-level People’s Committees of the localities where the cases occur shall direct local child protection officers in initially assessing the risk or level of harm to children and preparing a report according to Form No. 02 in the Appendix to this Decree, serving as a basis for decision whether to apply urgent intervention measures.

3. In case it is confirmed that a child is at risk of or currently suffering a serious harm to his/her life, health or dignity, within 12 hours after receiving information on the case, the chairperson of the commune-level People’s Committee or competent agencies, organizations or persons shall apply urgent intervention measures or temporarily separate the child from the environment or person that is causing harm to the child as prescribed in Articles 31 and 32 of this Decree.

Section 3. ASSISTANCE AND INTERVENTION PLANS FOR ABUSED CHILDREN,

CHILDREN AT RISK OF VIOLENCE, EXPLOITATION OR ABANDONMENT AND DISADVANTAGED CHILDREN

Article 27. Identification of demand for assistance and intervention for abused children, children at risk of violence, exploitation or abandonment and disadvantaged children

1. After making an initial assessment of the risk and level of harm to a child, the commune-level child protection officer shall himself/herself or request the National Telephone Exchange for Child Protection and child protection service providers to help collect information and make detailed assessment of the risk, and prepare a report according to Form No. 03 in the Appendix to this Decree, stating:

a/ The physical, psychological and emotional state of the abused child, the child at risk of violence, exploitation or abandonment or disadvantaged child;

b/ Family circumstances and relationships of the child and child protection capacity of his/her parents and family members;

c/ Factors making the child abusable or further be abused or factors putting the child in an disadvantaged circumstance;

d/ Learning conditions and ability and self-protection ability of the child;

dd/ Safety level and assistance ability of the community where the child lives;

e/ The child’s needs for health care and treatment of physical and mental harms; demand for social relief, education, training and vocational education support, legal aid, counseling, psychological therapy and other child protection services;

g/ Opinions and aspiration of the child;

h/ Opinions and aspirations of the child’s parents or caregiver, unless they themselves cause harm to the child.

2. In case the child needs assistance or intervention, the chairperson of the commune- level People’s Committee shall hold a meeting with persons and organizations with child protection responsibility, a representative of residents in the place where the child lives or where the case occurs, and the child’s parents or relatives to determine measures to protect the child under Articles 47 thru 50 of the Law on Children.

Article 28. Making and approval of assistance and intervention plans

1. Based on the level of harm and demand for assistance and intervention for a child, within 5 working days, except in cases of emergency, the commune-level child protection officer shall make an assistance and intervention plan according to Form No. 04 in the Appendix to this Decree, and submit it to the commune-level People’s Committee chairperson for approval.

2. A dossier of an assistance and intervention plan submitted to the commune-level People’s Committee chairperson for approval must comprise:

a/ A report on the receipt of information about the child and initial assessment of the state of the abused child or the child at risk of violence, exploitation or abandonment or the disadvantaged child;

b/ A report on the collection of information and assessment specific risks of harm to the child, the minutes of the meeting to identify the demand for assistance and intervention for the child which is held under Clause 2, Article 27 of this Decree, and other relevant documents (if any);

c/ An assistance and intervention plan and a draft decision on approval of the plan, made according to Form No. 05 in the Appendix to this Decree.

3. A plan on assistance and intervention for an abused child or a child at risk of violence, exploitation or abandonment or a disadvantaged child must have the following contents:

a/ Services to be provided and work to be performed, and their expected starting and finishing dates;

b/ Assigned responsibilities of agencies, organizations and individuals in the commune to implement assistance and intervention measures;

c/ Child protection service provider to be mobilized to provide specific services;

d/ Estimated funding for each service and work.

4. The commune-level People’s Committee chairperson shall consider and issue a decision approving the plan within 2 working days, except in cases of emergency.

5. The approval decision and the assistance and intervention plan shall be sent to agencies, organizations and individuals responsible for implementation and to the parents or caregiver of the child.

Article 29. Implementation of assistance and intervention plans

1. The commune-level child protection officer shall personally carry out certain assistance and intervention activities and take charge of implementing an assistance and intervention plan as follows:

a/ Monitoring and urging the implementation of assistance and intervention services and activities; proposing the commune-level People’s Committee chairperson to timely adjust the plan to suit personal changes of the child and the safety level of the environment where he/she lives;

b/ Connecting services and activities in the commune and asking for support of all-level agencies with child protection responsibility and child protection service providers outside the commune;

c/ Mobilizing agencies, organizations, individuals and the community to provide assistance.

2. Health establishments, educational institutions, legal aid service providers, public security agencies, child protection service providers of all levels and agencies, organizations and persons with child protection responsibility shall participate in and support the implementation of the assistance and intervention plan.

3. Parents or caregiver of the child shall implement the assistance and intervention plan according to the decision of the commune-level People’s Committee chairperson.

4. The National Telephone Exchange for Child Protection shall introduce and connect necessary assistance and intervention services in case such services are not available in the province or at the request of the commune-level child protection officer.

Article 30. Review and evaluation of implementation of assistance and intervention plans

1. The commune-level child protection officer shall assume the prime responsibility for, and coordinate with related agencies, organizations and individuals and child protection service providers engaged in implementing an assistance and intervention plan in, reviewing and assessing the implementation of the plan, specifically as follows:

a/ Assessing the state of the child and safety level of the environment where the child lives after assistance and intervention measures are implemented;

b/ Proposing the commune-level People’s Committee chairperson to complete the assistance and intervention plan if the child is no longer at risk of abuse and his/her physical, psychological, cognitive and emotional conditions have become stable;

c/ Proposing the commune-level People’s Committee chairperson to permit the repetition of the process of making and approving another assistance and intervention plan if the child is still at risk of abuse or his/her physical, psychological, cognitive and emotional conditions have not been stabilized.

2. Review and assessment of the state of the child after implementation of the assistance and intervention plan shall be conducted and reported according to Form No. 06 in the Appendix to this Decree.

3. Dossiers of assistance and intervention plans shall be archived at commune-level People’s Committees and the data contained therein shall be input into the national children database.

Article 31. Intervention for children in need of emergency protection

1. Children in need of emergency protection are those who are under threat of or suffering serious harm to their life, health or dignity or those who are harmed by their own parents or caregivers.

2. Intervention for a child in need of emergency protection shall be provided as soon as possible and within 12 hours after being informed of the case.

3. Responsibilities of the commune-level child protection officer:

a/ To receive information and contact the Public Security agency to prevent the acts threatening to cause or causing serious harms to the life, health or dignity of the child, which are committed in the commune; to coordinate with the health establishment in providing first aid to the child who needs emergency protection and retain objects and documents related to the harms caused to the child to serve investigation, violation handling and child protection activities;

b/ To further assess the level of harm to the child and safety level of his/her living environment; to make an assistance and intervention plan and submit it to the provincial- level People’s Committee chairperson for approval, and implement the plan;

c/ When necessary, to coordinate with the National Telephone Exchange for Child Protection in order to receive guidance and support for urgent intervention, and formulate and implement assistance and intervention plans.

4. Responsibilities of the public security agency

a/ To receive information and stop the acts threatening to cause or causing serious harms to the life, health or dignity of the child;

b/ To coordinate with the commune-level child protection officer of the locality where the case occurs in providing emergency protection for the child, ensuring safety for the life, health and dignity and in the best interests of the child;

c/ When necessary, to coordinate with the National Telephone Exchange for Child Protection in order to support urgent intervention.

5. Responsibilities of the health establishment

a/ To provide medical examination and treatment for the abused child or child for whom an assistance and intervention plan is implemented as prescribed in Clause 1, Article 52 of the Law on Children;

b/ To instruct the collection and storage of proof of the harms to the abused child to serve medical assessment under the Ministry of Health’s guidance;

c/ To archive health records in accordance with law.

Article 32. Temporary separation of children from their parents or caregivers and application of alternative care

1. Temporary separation of a child from his/her parents or caregiver and application of alternative care as prescribed at Points b and c, Clause 2, Article 50 of the Law on Children shall apply to an abused child or a child at risk of violence, exploitation or abandonment by his/her parents or caregiver; an abused child whose parents or caregiver refuse(s) to implement an assistance and intervention plan or who is at risk of being further abused by his/her parents or caregiver.

2. The chairperson of the commune-level People’s Committee of the locality where the child lives or of the place where the case referred to in Clause 1 of this Article occurs has the competence to issue a decision to temporarily separate the child from his/her parents or caregivers, made according to Form No. 07 in the Appendix to this Decree, and arrange safe accommodation under Point b, Clause 2, Article 50 of the Law on Children and alternative care under Clause 3, Article 52 of the Law on Children within 12 hours after being informed of the case.

3. The period of temporary separation of a child shall be determined based on the assessment of the demand and safety of the environment for the child and may be extended but must not exceed 15 days, unless a longer period is required by a competent agency. When the assessment report, made according to Form No. 03 in the Appendix to this Decree, concludes that the parents or caregivers of a child have fully satisfied the conditions on safety for their child, the commune-level People’s Committee chairperson shall terminate the decision on temporary separation.

4. A child who is urgently separated from his/her parents or caregiver should be immediately provided with alternative care even before the alternative care provision procedures are carried out.

Chapter IV

RESPONSIBILITY TO PROTECT CHILDREN IN THE INTERNET ENVIRONMENT

Article 33. Private information of children

Private information of a child is information on name, age and characteristics for personal identification; information on health status and privacy written in health records; personal images; information on family members and caregiver of the child; personal property; telephone number and mail address; address of and information on residence place and native place; address of and information on school, class, learning result and friends of the child; and information on services provided for the child.

Article 34. Communication and education to raise capacity to protect children in the Internet environment

1. State management agencies in charge of information and communications; education and training; vocational education; and children; organizations operating for the benefits of children; and organizations operating in the Internet environment shall disseminate public information for raising public awareness, building capacity, and improving skills of parents and caregivers of children, teachers, children and related agencies and organizations with regard to the benefits and negative impacts of the Internet environment on children; and prevention and stoppage of acts of child abuse in the Internet environment in accordance with the laws on information technology and information security and other relevant fields.

2. Parents, teachers and caregivers of children shall provide safety knowledge and skills for children when participating in the Internet environment; children have the duty to learn knowledge and skills to protect themselves when participating in the Internet environment.

3. Providers of services in the Internet environment shall provide instructions on the use of services and information technology devices and on access to information in order to protect children in the Internet environment.

Article 35. Assurance of safety for children in the exchange and provision of information in the Internet environment

1. Agencies, organizations and individuals operating in the Internet environment shall coordinate with competent state agencies and other organizations and individuals in ensuring information security for children in the Internet environment; and prevent information that is harmful to children in accordance with the law on cyberinformation security.

2. Enterprises providing services in the Internet environment shall adopt measures to protect child users.

3. Enterprises providing services in the Internet environment shall give warnings or remove information and services that are harmful to children, and fake information and services that infringe upon the lawful rights and interests of children.

4. Providers of video games in the Internet environment must have tools for controlling playing time and for protecting children from being abused or addicted to video games.

5. Organizations, enterprises and individuals operating or providing services in the Internet environment shall develop or use and widely disseminate software and tools for protecting children in the Internet environment.

Article 36. Measures to protect private information for children in the Internet environment

1. When publishing private information of a child on a network, a provider of services in the Internet environment or a person shall obtain the consent of the child’s parent(s) or caregiver and the child himself/herself if he/she is full 7 years or older; and shall ensure information safety for the child.

2. Providers of services in the Internet environment shall employ measures and tools to ensure safety for private information of children and deliver warning messages when children provide or change their private information.

3. Parents, caregivers and children aged full 7 years or older, and agencies, organizations and persons with child protection responsibility as prescribed by law have the right to request providers of services and persons operating in the Internet environment to remove private information of children to ensure safety and best interests of children.

Article 37. Assistance and intervention measures for children abused in the Internet environment

1. State management agencies in charge of information and communications, and of children’s affairs; and organizations and enterprises operating and providing services in the Internet environment shall organize the receipt of information sent by agencies, organizations, individuals and children, and the assessment and classification of levels of safety of information and services for children; announce lists of information networks and online services and products according to their levels of safety for children; and ensure the detection and removal of images, documents and information unsuitable for children.

2. Public security agencies shall implement measures for assistance, intervention and protection of children in the Internet environment.

Chapter V

ALTERNATIVE CARE FOR CHILDREN

Section 1. REGISTRATION ORDER AND PROCEDURES, LISTING, AND COORDINATION IN SELECTION, OF PERSONS AND FAMILIES TO PROVIDE ALTERNATIVE CARE

Article 38. Responsibility to seek persons and families to provide alternative care for children

1. Commune-level child protection officers shall compile dossiers of children in need of alternative care and seek persons or families to provide alternative care in accordance with Article 62 of the Law on Children.

2. Heads of social relief establishments shall compile dossiers of children nurtured at their establishments who are eligible for alternative care or adoption; and request competent agencies to seek alternative caregivers for them or settle their adoption.

3. A dossier of a child in need of an alternative caregiver must comprise:

a/ The birth certification, or birth certificate, or identity card, or citizen card or passport (if any);

b/ A health certificate issued by a health agency in accordance with law;

c/ Two 8 cm x 10 cm photos of the child in full figure, looking straight, taken within 6 months before the time of dossier compilation;

d/ The assessment report by the commune-level child protection officer on the circumstances, status, needs and aspirations of the child, made according to Form No. 10 in the Appendix to this Decree;

dd/ A written certification by the commune-level People’s Committee or public security agency of the locality where the child is abandoned;

e/ A copy of the decision temporarily separating the child from his/her parent(s) or caretaker and placing him/her in alternative care issued by the chairperson of the commune- level People’s Committee or the district-level People’s Court.

4. A dossier of a child in a social relief establishment in need of alternative care must comprise:

a/ The dossier prescribed in Clause 3 of this Article;

b/ A copy of the decision admitting the child into the social relief establishment issued by a competent agency;

c/ The assessment report on the circumstances, status, needs and aspirations of the child made by a competent person of the social relief establishment in accordance with Point d, Clause 3 of this Article.

Article 39. Registration for provision of alternative care

1. A person or the representative of a family that is willing and eligible to provide alternative care as prescribed in Clause 2, Article 63 of the Law on Children shall file an application made according to Form No. 08 in the Appendix to this Decree with the commune-level People’s Committee of his/her place of residence for making a list of registered alternative caregivers.

2. Persons and representatives of families registering to provide or receiving children for alternative care may receive counseling from child protection service providers on the laws on the rights and duties of children and child protection, and alternative care skills.

3. Foreigners and representatives of foreign families, apart from complying with Clauses 1 and 2 of this Article, must have resided in Vietnam for at least 6 months and be permitted to continue residing in Vietnam for at least 12 months from the time of registration.

4. Child adoption registration must comply with the law on child adoption.

Article 40. Listing of persons and families registering to provide alternative care

1. Commune-level People’s Committees shall receive, make and keep lists of persons and families wishing to provide alternative care according to Form No. 09 in the Appendix to this Decree; and quarterly update and send these lists to district-level labor, war invalids and social affairs agencies for coordination in the selection of alternative caregivers.

2. Conditions and procedures for alternative caregivers to receive monthly allowances must comply with the law on social relief.

Article 41. Dossier of a person or family selected to provide alternative care

1. The dossier of a person or representative of a family to provide alternative care who is not a relative of the child must comprise:

a/ An alternative care provision registration application;

b/ A health certificate issued by a health agency within 6 months before the date of dossier submission in accordance with law;

c/ Criminal record card issued by a competent agency, for a foreigner or foreign family representative.

2. For a caregiver who is a relative of the child, Clause 4, Article 65 of the Law on Children shall apply.

Article 42. Selection of forms of alternative care and alternative caregivers

1. Commune-level child protection officers shall select forms of alternative care and alternative caregivers suitable to the children; verify the conditions of alternative caregivers prescribed in Clause 2, Article 63 of the Law on Children according to Form No. 11 in the Appendix to this Decree; and provide information on alternative caregivers for children and consult children aged full 7 years or older.

2. Priority order of forms of alternative care for selection:

a/ Alternative care by relatives;

b/ Alternative care by persons or families other than relatives;

c/ Alternative care at social relief establishments.

3. Priority order of alternative caregivers for selection:

a/ Relatives;

b/ Persons or family representatives providing alternative care in children’s places of residence;

c/ Resident Vietnamese citizens;

d/ Resident foreigners in Vietnam.

4. In an emergency case requiring separation of a child from his/her parent(s) or alternative caregiver as prescribed in Article 32 of this Decree but an alternative caregiver has not been selected yet, the commune-level People’s Committee chairperson shall request a competent agency to issue a decision temporarily admitting the child into a social relief establishment and continue to select an appropriate form of alternative care for the child.

5. Commune-level child protection officers shall select, notify, and provide information on dossiers of children in need of alternative care to alternative caregivers.

6. The recommendation of children to alternative caregivers must be in the best interests of children and meet the requirements on alternative care prescribed in Article 60 of the Law on Children.

7. Commune-level People’s Committees of localities of residence of alternative caregivers shall issue decisions on handover of children to alternative caregivers according to Form No. 12 in the Appendix to this Decree; and, within 15 working days after issuing the decisions, organize the handover and receipt of children between commune-level People’s Committees and alternative caregivers.

8. In case the place where the child resides or is abused or abandoned is not the place of residence of the alternative caregiver, the commune-level People’s Committee of the locality where the child resides or is abused or abandoned shall coordinate with the commune-level People’s Committee of the locality where the alternative caregiver resides in carrying out the procedures for handing over the child and monitoring the child’s care.

Article 43. Responsibility to notify and report on development of children placed in alternative care

1. Alternative caregivers shall provide complete and truthful information on the health, physical strength, spirit and integration of children in alternative care when so requested by commune-level People’s Committees or commune-level child protection officers of their places of residence.

2. One month and 3 months after a person or family receives a child for alternative care, the commune-level child protection officer of the locality where the alternative caregiver resides shall monitor and assess the living conditions and health, physical strength, spirit and integration of the child with the person or family providing alternative care; and every 6 months or when there is a change in the form of alternative care or in the alternative caregiver, report to the commune-level People’s Committee according to Form No. 13 in the Appendix to this Decree.

3. The commune-level People’s Committee of the locality of residence of an alternative caregiver shall report to the commune-level People’s Committee of the locality where the child resides or is abused or abandoned on the status of the child when so requested.

Section 2. ORDER AND PROCEDURES FOR PROVIDING ALTERNATIVE CARE AND CHANGING FORMS OF ALTERNATIVE CARE

Article 44. Children eligible for alternative care at social relief establishments

1. Children specified in Clause 1, Article 67 of the Law on Children, and Clause 4, Article 42 of this Decree may receive alternative care at social relief establishments.

2. The commune-level People’s Committee of the locality where a child resides or is abused or abandoned shall compile a dossier of request for admission of the child into a district- or provincial-level social relief establishment for alternative care in accordance with Clause 3, Article 38 of this Decree.

3. Children in alternative care at social relief establishments are entitled to policies applicable to disadvantaged children.

Article 45. Transfer of children in alternative care at social relief establishments to persons or families providing alternative care or adoptive families

1. The head of a social relief establishment shall make a list according to Form No. 14 in the Appendix to this Decree and dossiers of children in need of alternative care in accordance with Clause 3, Article 38 of this Decree and send them to the provincial-level Labor, War Invalids and Social Affairs Department, for provincially managed social relief establishments, or to the district-level People’s Committee, for district-managed ones.

2. Within 10 working days, the provincial-level Labor, War Invalids and Social Affairs Department or district-level People’s Committee shall appraise dossiers, compare them with the list of registered alternative caregivers and consider and assess the suitability of these alternative caregivers; if finding them suitable, the provincial-level Labor, War Invalids and Social Affairs Department or district-level People’s Committee shall send the list and dossiers to commune-level People’s Committees of localities where registered alternative caregivers reside.

3. The head of a social relief establishment shall coordinate with the commune-level People’s Committee of the locality of residence of an alternative caregiver in notifying the status of the child, organizing contacts between the alternative caregiver and the child, and taking the child to the home of the alternative caregiver for the child to get used to the new environment; and getting the child’s opinions and expectations about the alternative caregiver if the child is full 7 years or older.

4. Within 15 working days, the commune-level People’s Committee shall consider conditions of an alternative caregiver, and if the alternative caregiver is qualified, shall issue a decision on handover of the child to the alternative caregiver in accordance with Clause 1, Article 66 of the Law on Children, and send this decision to the provincial-level Labor, War Invalids and Social Affairs Department, district-level People’s Committee or a competent agency or organization as a basis for termination of the child’s alternative care at a social relief establishment. The child shall be handed over when the decision on alternative care is issued by the commune-level People’s Committee and the decision on termination of alternative care is issued by the social relief establishment.

5. Policies for children in alternative care and alternative caregivers must comply with the law on social relief policies.

6. The procedures for transfer of children to adoptive families must comply with the law on child adoption.

Article 46. Supervision and assessment of children transferred from social relief establishments to alternative caregivers

1. The head of a social relief establishment shall assign a representative to coordinate with the commune-level child protection officer in supervising and assessing the living conditions and the health, physical strength, spirit and integration of a child with the person or family providing alternative care in order to promptly request related agencies, organizations and persons to take appropriate assistance and intervention measures.

2. Commune-level child protection officers shall supervise and assess the alternative care for children in accordance with Clause 2, Article 43 of this Decree.

Article 47. Supervision and assessment of alternative care for children at social relief establishments

Provincial-level Labor, War Invalids and Social Affairs Departments and district- level labor, war invalids and social affairs agencies shall supervise and assess alternative care for children at social relief establishments under their management and notify such to commune-level People’s Committees which issue decisions on alternative care for children.

Article 48. Termination of alternative care for children

1. A person or the representative of a family providing alternative care as prescribed at Point c or d, Clause 1, Article 69 of the Law on Children shall send a written request for termination of alternative care according to Form No. 15 in the Appendix to this Decree to the commune-level People’s Committee which has issued the decision on handover of the child to the alternative caregiver for carrying out the procedures for termination of alternative care.

2. The commune-level People’s Committee chairperson shall issue a decision on termination of alternative care and change of form of alternative care based on results of supervision and assessment of a child in alternative care, or at the request of the alternative caregiver, or as desired by the child as prescribed in Article 69 of the Law on Children, according to Form No. 16 in the Appendix to this Decree.

3. For a child transferred from a social relief establishment to an alternative caregiver, within 5 working days after receiving the decision on handover of the child to the alternative caregiver issued by the commune-level People’s Committee, the provincial-level Labor, War Invalids and Social Affairs Department director or district-level People’s Committee chairperson or a competent person shall issue a decision on termination of the child’s care at the social relief establishment and send it to the commune-level People’s Committee for handover of the child to the alternative caregiver.

Chapter VI

RESPONSIBILITIES OF AGENCIES, ORGANIZATIONS, EDUCATIONAL INSTITUTIONS, FAMILIES AND INDIVIDUALS FOR INVOLVING CHILDREN IN CHILDREN’S MATTERS

Article 49. Responsibilities of ministries, ministerial-level agencies and government- attached agencies

1. In the course of formulating programs, policies, legal documents, socio-economic development master plans and plans on children or related to children, ministries, ministerial-level agencies and government-attached agencies (below referred to as document drafting agencies) shall involve children in the formulation as follows:

a/ To ensure that children be informed of contents of draft documents requiring the collection of opinions of children in one or more than one appropriate form prescribed in Clause 2, Article 74 of the Law on Children;

b/ To explain contents of draft documents in a manner understandable to children and enabling them to express their opinions and aspirations;

c/ To receive, consider and reply children’s opinions and aspirations or give explanations or answers to children’s opinions and aspirations which have been received in a form other than those prescribed in Clause 2, Article 74 of the Law on Children.

2. A drafting agency which does not directly collect opinions of children as prescribed in Clause 1 of this Article shall collect opinions of children as follows:

a/ To send the draft document together with the contents requiring the collection of opinions of children to the organization representing the voice and aspirations of children or the Vietnam Child Right Protection Association for organizing the collection of opinions of children before the document drafting agency promulgates according to its competence or proposes a competent agency to promulgate the document;

b/ To study and assimilate opinions and aspirations of children expressed through the organization representing the voice and aspirations of children or the Vietnam Child Protection Association, and give explanations and feedback to the latter for notification to the children.

3. Dossiers issued according to competence or sent to competent agencies for appraisal, verification and issuance by document drafting agencies must include the summarization, explanation and assimilation of children’s opinions and aspirations in the general summarization, explanation and assimilation of opinions collected from agencies, organizations and individuals.

4. If receiving children’s opinions and aspirations on matters that have effects and influence on children in the course of guiding and organizing the implementation of programs, policies, legal documents and master plans and plans on socio-economic development, ministries, ministerial-level agencies and government-attached agencies shall consider them and directly give answers to children or agencies and organizations that forward these opinions and aspirations.

5. The Ministry of Labor, War Invalids and Social Affairs shall guide, examine and inspect activities involving children in their matters; and suspend or propose competent agencies to suspend those activities which violate the law or are not in the best interests of children.

Article 50. Responsibilities of People’s Committees at all levels

1. In the course of preparing decisions, programs, policies, legal documents and socioeconomic development master plans and plans on children or related to children, People’s Committees at all levels shall involve children in the preparation process in accordance with Points a, b and c, Clause 1, Article 49 of this Decree.

2. If receiving children’s opinions and aspirations on matters that have effects and influence on children in the course of organizing the implementation of programs, policies, legal documents and master plans and plans on socio-economic development, People’s Committees at all levels shall consider them and directly give answers to children or agencies and organizations that forward these opinions and aspirations.

3. To direct related agencies to guide, examine and inspect activities involving children in children’s matters in their localities; to suspend or propose competent agencies to suspend those activities which violate the law or are not in the best interests of children; to handle or propose competent agencies to handle acts of obstructing children to access information, express their opinions and aspirations or participate in relevant social activities.

4. People’s Committees at all levels shall manage and create conditions for children to be involved in children’s matters within the scope and forms prescribed in Article 74, and according to the requirements prescribed in Clause 1, Article 78, of the Law on Children.

Article 51. Responsibilities of the organization representing the voice and aspirations of children

1. The Ho Chi Minh Communist Youth Union Central Committee shall perform the tasks of the organization representing the voice and aspirations of children prescribed in Article 77 of the Law on Children.

2. To annually propose to the Government plans on performance of the tasks of representing the voice and aspiration of children and oversee the implementation of children’s opinions and aspirations in accordance with Point b, Clause 4, Article 91 of the Law on Children.

3. To assume the prime responsibility for, and coordinate with ministries, ministerial- level agencies, government-attached agencies, provincial-level People’s Committees, the Vietnam Women’s Union Central Committee, the Vietnam Child Right Protection Association and related agencies and organizations in, performing the tasks of representing the voice and aspirations of children and overseeing the exercise of the child rights according to children’s opinions and aspirations under plans approved by the Government.

Article 52. Responsibilities of socio-political organizations, social organizations and socio-professional organizations

1. To request the Vietnam Fatherland Front, socio-political organizations, social organizations and socio-professional organizations (below refereed to as organizations) to collect opinions of children in one or more than one appropriate form prescribed in Clause 2, Article 74 of the Law on Children when formulating and implementing decisions, programs and activities concerning children.

2. To explain contents of decisions, programs and activities under formulation or implementation in a manner understandable to children and enabling them to express their opinions and aspirations; receive and consider children’s opinions and aspirations and give answers directly to children or to agencies and organizations that forward these opinions and aspirations according to the guidelines, goals, functions and tasks of the organizations.

3. To forward children’s opinions and aspirations they receive to agencies, organizations and persons having the functions, tasks and competence to consider and settle them and supervise the reply to those opinions and proposals.

4. When carrying out activities and organizing events involving children, to ensure conditions of safety and suitability for children; and comply with the guidance, submit to inspection and examination by or abide by termination decisions of competent agencies.

Article 53. Responsibilities of schools and other educational institutions

1. Schools shall create conditions for their students to participate in relevant social activities and to express opinions and aspirations about matters of their concern through the forms prescribed in Clause 2, Article 74 of the Law on Children.

2. School boards shall receive opinions, proposals and aspirations of students and consider and give answers on matters under their responsibilities within 7 working days. The answers must specify the implementation and implementation time, or non-implementation of students’ opinions, proposals and aspirations and reasons therefor.

3. School boards shall send students’ opinions, proposals and aspirations beyond their settlement competence to agencies, organizations and persons having the function and competence to consider and settle them and supervise their reply in order to give feedback to students.

4. Teachers in charge of activities of Ho Chi Minh Vanguard Teenager Union chapters or secretaries of the Ho Chi Minh Communist Youth Union chapters shall report or summarize students’ opinions, proposals and aspirations and send them to school boards or teachers in case students do not wish to directly reflect them to school management boards or teachers; and inform students of the receipt, consideration and settlement of their opinions, proposals and aspirations.

Article 54. Responsibilities of child protection service providers and social relief establishments

1. Child protection service providers and social relief establishments shall disclose the following information at the request of children, parents and caregivers:

a/ Establishment decision or operation registration certificate issued by a competent agency;

b/ Functions, tasks, contents of operation and licensed services;

c/ Service charge rates (if any);

d/ Measures and regimes for provision of services to children;

dd/ Responsibilities for participation of parents, caregivers or children themselves in the course of service provision.

2. Child protection service providers and social relief establishments shall receive, consider and answer verbally or in writing opinions, proposals and aspirations of children, parents, caregivers and related agencies and organizations about the establishments’ services.

Article 55. Responsibilities of mass media agencies and agencies and organizations providing services in the Internet environment

1. To publish children’s opinions and aspirations sent to them in line with their guidelines and goals and in accordance with law. In case of not doing so, they shall give a reply clearly stating the reason.

2. To forward children’s opinions and aspirations to responsible agencies, organizations and persons and request them to give written replies.

3. Not to disclose private information of children at the request of children, their parents and caregivers, or in case the disclosure of such information will harm children and is not in the best interests of children as prescribed in Article 33 of this Decree.

Article 56. Responsibilities of families

Parents and family members shall:

1. Care for and nurture children.

2. Educate children.

3. Protect and ensure safety for children.

4. Create conditions for children to participate in cultural, arts, sports and relevant social activities.

6. Ensure children’s participation in families’ affairs in accordance with Article 75, and Clause 1, Article 78, of the Law on Children.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 57. Effect

1. This Decree takes effect on July 1, 2017.

2. The Government’s Decree No. 71/2011/ND-CP of August 22, 2011, detailing and guiding the implementation of a number of articles of the Law on Child Protection, Care and Education ceases to be effective on the effective date of this Decree.

Article 58. Implementation responsibility

Ministers, heads of ministerial-level agencies, government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.-