1 Institutionality and Public Policies for Children Yuri Emilio Buaiz Valera - Venezuela - Lima, Peru – 23 September 2009 Twentieth Pan American Child

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Institutionality and Public Policies for Children

Yuri Emilio Buaiz Valera- Venezuela -

Lima, Peru – 23 September 2009

Twentieth Pan American Child Congress

FIRST: The enactment of the CRC and the process of legislative adaptation: commitments, fears and mythsSECOND: The adaptation of legislation, public policies and institutional practices

1. Legislative adaptations2. Priority and implementation3. Institutional change implies the political transformation

of the State 4. Institutional and public policy adaptation in the reactive

model of rights5. Public policies and institutionality for a constituent/active

model of rights6. Lines of action for institutional transformation

CONTENTS

After the enactment of the Convention on the Rights of the Child (CRC) by the United Nations, and with greater strength after the dissemination and promotion of the Doctrine of the Comprehensive Protection of children’s human rights, particularly during the nineties and in this century, humankind has undergone a conflict of awareness, practices and feelings, characteristic of the emergence of a new philosophical, social, legal and, in short, humanistic, paradigm.

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A public response for the affirmation, materialization and implementation of rights as an opportunity for social transformation

Imposes transformations on the State, limits its autonomy, determines the satisfaction of real needs in terms of human rights

The fulfilment of the human rights of children goes beyond legal changes

It is an expression of the recognition of human beings as such from the age of zero to the age of eighteen as active subjects of their development

D.C.P.

• The CRC enshrines the general and specific principles for the comprehensive protection of children and recognizes the right to survival, development, participation and special protection of this population, pledging Party States to drafting and executing not only legal measures but also administrative, institutional, social and any others required in order to implement the rights of children. (ADAPTATIONS)

• The CRC enshrines the general and specific principles for the comprehensive protection of children and recognizes the right to survival, development, participation and special protection of this population, pledging Party States to drafting and executing not only legal measures but also administrative, institutional, social and any others required in order to implement the rights of children. (ADAPTATIONS)

The adaptation of legislation, public policies and institutional practices

•Legislative changes seek a balance between the real and material condition of human rights and the legal condition of countries, in which the legal condition is usually superimposed on the social reality.•Institutional transformation measures are also mandatory. Together with legislative changes they constitute the objective conditions which ensure the development and continuity of comprehensive protection.

Priority and Implementation

Implementation“The Party States shall adopt all administrative, legislative and any further measures in order to implement the rights recognized in this Convention…” (CRC, Art. 4)

Mandatory

nature of compliance

protection mechanisms

regulations

IMPLEMENTED

RIGHTS

Absolute Priority“Party States shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation”

Analysis of Planning, budget,

the situation of execution and

children in evaluation of child

terms of rights policies

IMPLEMENTED RIGHTS

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ABSOLUTE PRIORITYIMPLEMENTATION:

A genuine programme for the development of public policies

In reverting the hierarchical order of State affairs, it transforms social planning

Institutional change implies the political transformation of the State

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Institutional and public policy adaptation in the reactive model of rights

•Organic and dynamic public structures: NATIONAL SYSTEMS FOR THE PROTECTION OF CHILDREN and/or SYSTEMS FOR CRIMINAL RESPONSIBILITY OF ADOLESCENTS

•Protection systems constitute systems for the control and restitution of children’s rights•Criminal systems constitute punitive systems for social and State reaction to crime

Legislative adaptations to the CRC have entailed a new kind of institutionality represented by:

A reactive institutionality which does not necessarily mean a removal of the structural foundations of the State.

A reactive institutionality which does not necessarily mean a removal of the structural foundations of the State.

•Does not lead to the State’s substantial transformation.•Attempts to replace the State by inserting new institutions into an old State.•Attempts to understand autonomy as a structure not integrated within the State.•Restores rights but does not establish guarantees for the provision of rights from a structural level.•Does not change State-Society-Children relations.•A reactive system which protects the rights of adolescents in the process and execution of sanctions, but lacks preventive measures. Pedagogy applied to social conflict is after the fact.•A very limited vision of comprehensive protection.

Institutional and public policy adaptation in the reactive model of rights

POLITICAL-INSTITUTIONAL CONFLICT IN THE SUBSTANTIAL ADAPTATION OF THE STATE

1. Structural transformation v. The continuity of guardianship

•Marked conflict between the dismantlement (destructuring) of structures characteristic of the doctrine of the irregular situation, (minors’ courts, end care programmes, institutionalization of children owing to rights violations), and the construction of comprehensive protection models which give pride of place to the restitution of rights, the mandates of universal protection aimed at public policy and the non-fragmentary care of children.

•This common feature transcends the mere consideration of the effect and becomes a necessary and predictable characteristic owing to the very nature of the changes proposed by the doctrine of comprehensive protection.

Institutional and public policy adaptation in the reactive model of rights – CURRENT SITUATION IN LAC

2. COEXISTENCE OF OLD STATE STRUCTURES AND THE REGULATIONS AND LEGAL AGENCIES FOR CHILDREN’S RIGHTS

•Efforts to institute the comprehensive protection model, and even agencies which have already been established, coexist with old State structures and with institutional guardianship models, conducts and administrative agencies.•The most evident example is seen in the operation of guardianship programmes and services which focus attention on children as a problem, and which far from restoring rights constitute an additional factor regarding new violations of those rights.


3. IMMEDIACY AND LEGALISTIC MAGIC

•The positivist idea that the law is a determining factor has given rise to a legalistic immediacy which judges and condemns the Law as ineffective. To the same degree that the subjective condition of the law does not achieve its materialization in institutional reality, so does a legalistic conception based on the myth of the law as a determining condition for the protection of children’s rights begin to prevail and, therefore, lead to the legal determinism of regulatory inefficacy.

•Legalistic immediacy has unleashed a “reformist” storm which accuses the Law of being incapable of “resolving the situation of children” and conditioning possible solutions to the repeal or reform of the Law and, in general, returning to minority conceptions of legislation.


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•The State is bound to provide rights and its autonomy is limited by the structure and organization of the State itself.•The entire public management system is committed to the affirmation, materialization and implementation of children’s rights.•Systems for control and restitution act jointly with the State.•Restorative mechanisms remain, but are secondary to the intrinsic nature of the social State of rights.•The image and the world of children are altered positively.•Prevention is the cross-sectional focal point for socio-educational pedagogy, and therefore active social control is a permanent a priori tool. A community and State warning and care system in the face of the criminal elements in society.•The start of real and genuine child participation.

Public policies and institutionality for a constituent/active model of rights

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Replacement/reactive institutionality v.

Institutionality which is constituent/active regarding rights

Replacement/reactive institutionality v.


Legislative adaptation to CRC

Protective system

Substantial transformation of the State model

Replacement/reactive institutionality regarding rights



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An example:

Economic exploitation

Systems for the protection of children

THE STATE

Protection policiesProtection programmesProtection measuresAdministrative and judicial bodies for protection

Public Power

Public policy for childrenDesign, approval and execution of State policies, programmes, institutions and public servicesImme-

diate

Intermediate

Structural

Guarantees for the family’s social function; the universalization of education; transformation of State-industry-children-family-school relations


•Lines of action for institutional transformation

•Evaluation of systems for protection.•An evolution from systems with focused care and protection to

systems for comprehensive protection.•Insertion of child protection within the social service public

system, within the framework of equity policies.•Specific analysis of public policies aimed at families, with the

purpose of determining their greater or lesser impact on the determining factors in conditions of family disintegration.

•Inclusion of deliberative bodies for the protection of children .•Review of judicial policy responsibility regarding child rights

protection. •Review of accountability regulations and methods for

executive bodies .•Specific review of inter-sectorial policies for education, health,

social development and family.


Utopia

Social legitimacy of democracies

Active Institutions regarding

Rights

Counter-active institutions regarding

rights

From: To:

Transform the relations in which society moves regarding children


Documents

1 Institutionality and Public Policies for Children Yuri Emilio Buaiz Valera - Venezuela - Lima, Peru – 23 September 2009 Twentieth Pan American Child