Challenges in legal regulation of alternative care in modern Georgian law

Victor K. Groza, Kelley McCreery Bunkers, and Gary N. Gamer in their paper “Ideal components and current characteristics of alternative care options for children outside of parental care in low-resource countries” referring to the United Nations Convention on the Rights of the Child and the Guidelines for the Alternative Care of Children, discuss most striking features and widely recognised components of alternative care for children in low-resource countries. The research emphasises the particular importance of the value system in relation to the policy and practice dealing with child welfare. The authors make comparative analysis of the alternative care in, both low-resource and high-resource countries that might yield differences in the policy. Alternative care envisages a continuum approach starting with family support and reunification, kinship care, foster care, domestic adoption, and ending with intercountry adoption. Examples of alternative care issues from Eastern Europe, Latin America and Africa manifest the complexity of the alternative child care observed through cultural peculiarities. In conclusion, the authors agree that the further study of alternative care outcomes and accumulating relevant information will greatly benefit the policy and practice of the Alternative Care of Children (Groza, Bunkers, and Gamer, 2011).

Maja Laklija in her research “Approaches to foster care of children in the world and factors that promote or inhibit successful fostering of a child” points out that early preventive interventions in the biological family and placing the child in foster families, in case of removing the child from the biological family should be carried out in the best interests of a child under the due observance of children's rights and protection. The paper discusses the developmental need for the quality foster care and tries to identify facilitators and inhibitors of the process of foster care. The author states that the study of modern trends of foster child care in the world and accumulation of the important information will help to adequately respond to the needs of foster children and foster and biological families alike. It should disclose the factors that determine either promoting or inhibiting of quality foster care. All these are needed to identify facilitators versus inhibitors in the process of maintaining foster parents in foster care status and granting the stability of the child placement. For the author, identifying and featuring of the empirical indicators of conceivable directions for improving the care for children in foster care has vital importance that will at the same time provide a pledge for foster parents for carrying out their responsibilities (Laklija, 2011).

In the report “Feasibility Study for a Child Guarantee Target Group Discussion Paper on Children in Alternative Care”, published in 2019, the authors Lerch V., and Nordenmark Severinsson A. give a loose definition of the Target Group “children residing in institutions” and embrace the children in alternative care, showing the decrease in the number of children in institutional care as a result of developing family support services, and empowering alternative care options by increasing the high-quality alternative care standards.

The report also brings to light the inadequateness and substandard forms of alternative care in the European Union (EU) in spite of the rigid international and European framework of protecting and promoting the children rights in alternative care. The report considers that the chief reason for the drawbacks is that too many children still live in alternative care institutions and that complete de-institutionalisation processes have problems at the policy and funding levels.

The report provides a list of identified hurdles, like the lack of holistic strategy, lack of political will, support of public opinion for residential care, poor management and underfunding. According to the available data collected for the purpose of FSCG, around 340,000 children are estimated to live in residential care facilities. A great number of those facilities suffer from institutional culture and are incompatible with the international human rights and standards.

The report authors not only complain about incomplete and unreliable statistical data but also stress the need for qualitative data about the situation of the children in alternative care. The authors underline that the report is only a snapshot of the current situation and a more strategic approach based on national policies and implementation plans to the TG and the families could contribute to great effectiveness in the use of funds. The report also mentions the 12 beneficiary countries that receive support of the EU Structural and Investment Funds and says that it should not be limited to those countries only (Nordenmark and Lerch, 2020).

We can boldly say that using alternative care services is an important challenge in Georgia today.

In the first part of Article 1198 of the Civil Code of Georgia (The Civil Code of Georgia, 1997), it is clearly expressed that parents are authorized and obliged to raise their children, to take care of their mental, physical, social and spiritual development, to raise them as worthy members of society, taking into account their primary interests (Shengelia and Shengelia, 2017); however, if a child is deprived of a family environment, the state is obliged to take special protection over the child and create an alternative environment equivalent to his/her native environment or place the child in an appropriate institution (Jincharadaez, 2019). Unfortunately, the grounds to remove the child from the biological family and place them in state care include the socio/economic situation, poverty, inadequate living conditions and violence in Georgia.

Despite the fact that, pursuant to paragraph 5 of Article 26 of the Code on the Rights of the Child, a child shall not be separated from his/her parent because the parent does not have adequate living conditions or financial resources. This factor remains a challenge, as evidenced by the unprecedented decision of the Tbilisi City Court of First Instance in June 2021, which declared illegal the separation of children from their family and placing them in foster care due to poverty, and ordered to pay GEL 35,000 in compensation to three affected minors (Netgazeti.ge, 2021). The Special Report of the Public Defender of 2019 “Monitoring of Child Care System – Effectiveness of Alternative Care” also emphasises the urgency of these reasons (Public Defender “Special report”, 2019). We do believe that Paragraph 5 of Article 26 of the Code on the Rights of the Child requires effective execution in practice.

Another challenge is related to move a child for alternative care territorially far away from his/her biological family, in some cases even to another region, which directly contradicts the European Convention on Human Rights (ECHR, 1950) and guidelines on the alternative care of the child. In particular, the requirement on the necessity to keep a child as close as possible to his/her usual place of residence and to keep in touch with his/her family, as well as the separation of siblings is inadmissible (Shahovichin, Doek, and Tsarmaten, 2015). Unfortunately, according to the monitoring of the Public Defender's Office, in 2019 in Georgia, were revealed 22.4% of the beneficiaries living away from their biological families, placed in foster families in another city/district/region (Public Defender “Special report”, 2019). Pursuant to paragraph 3, Article 24 of the Charter of Fundamental Rights of the EU, the right of all children to stay in contact with both parents is explicitly recognised (Lursmanashvili, 2020). As the European Court states, the relationship between parents and children is a fundamental and integral part of Article 8 of the European Convention. The European Court of Human Rights, in the following case – T. v. the Czech Republic established that, due to the failure to properly analyse and study the decision on refusal for the parent and child contact by the child's residential institution, Article 8 of the Convention on Human Rights was violated. Imposing restrictions on contact between applicants directly reduced the family reunification opportunities (ECHR T. v. the Czech Republic, No.19315/11, 2014). The European Court of Human Rights, in the case Eriksson v. Sweden established that, placement in an alternative care institution, in general, should be considered as a temporary measure, while maintaining family relationships is essential for a child for successful return to his/her family.

Since 1 February 2020, the functions of the guardianship and custody body in Georgia is performed by the LEPL – Agency for State Care and Assistance for the Victims of Human Trafficking. In order for the agency to use foster care as one of the forms of state care and to place a child deprived of parental care in a similar family environment, it is essential that the required number of foster caregivers be registered and trained in the country. This is also reflected in Article 25 of the African Charter on the Rights and Welfare of the Child, which states that any child who is temporarily or permanently deprived of his or her family environment for any reason shall be entitled to special protection and assistance (African Charter on the Rights and Welfare of the Child. OAU Doc. CAB/LEG/24.9/49, 1990).

Unfortunately, the number of foster families in Georgia is very small. According to the data of 2021, 708 foster caregivers are registered in the foster care database, with whom the foster child is placed (LEPL Agency for State Care and Assistance for the Victims of Human Trafficking No. 07/7551, 31.08.2021). Consequently, beneficiaries are placed in such a territorial unit, where their relevant health and rehabilitation services are not provided (Public Defender “Special report”, 2019). The results of our qualitative research also clarify that all foster caregivers are trained only once, as well as have undergone a mandatory foster care training course that does now allow them to adequately respond to new challenges caused by the advancing age of minors. Most caregivers placed in foster care service have less information on the health condition of the beneficiaries, for reasons of removing them from the biological family and cases of violence committed against them. Herewith, they do not acquire the relevant skills to offer tailored care to the needs of beneficiaries, especially, the knowledge and experience required for proper care provision to children with disabilities. Accordingly, we do believe that regular training of foster caregivers shall be ensured and it shall be strengthened at the legislation level. Particularly, a list of the rights and responsibilities of Article 76 of the Law of Georgia on “Adoption and Foster Care”, to be added the sub-paragraph “t” and to be established as follows: Regularly attend the mandatory training courses on foster care and submit a document confirming the completion of the courses – a certificate.

In order to increase the number of caregivers, we consider that financial incentives shall be also ensured. There is a small number of foster caregivers who take liability for the child deprived of parental care without financial interest. As of 2021, the salary of the foster caregiver is determined as follows: For a child placed in a relative foster care – 200 GEL per month, a child placed in a regular foster care – 16 Gel for one calendar day, a child with different needs placed in a relative foster care – 375 Gel per month, a child with different needs placed in specialised foster care – 30 Gel for one calendar day, a child placed in emergency foster care – 30 Gel for one calendar day, and a child with different needs placed in a substitute foster care – 30 Gel for one calendar day.

While the socio-economic situation is one of the most important challenges in Georgia and you have a baby in foster care, the feeding of whom is related to quite a lot of money, about 30 GEL per food package, which is enough for 2–3 days, it is easy to calculate what funds are required for a monthly medical meal. It is not difficult to imagine the finances associated with the placement of adolescent minors as well as adult beneficiaries in foster care.

According to the statistic of 2021, there are 1463 beneficiaries in foster care, of whom 86 are adults, and 1377 are minors (LEPL Agency for State Care and Assistance for the Victims of Human Trafficking No. 07/7818. 09.09.2021).

Consequently, we believe that the Government of Georgia Resolution No.145 of 28 July 2006 on Social Assistance shall be amended and the amount of foster care shall be increased (Government of Georgia Resolution No. 145 “On Targeted Social Assistance”, 2006).

One of the reasons for using the foster care programme is the lack of public services focused on strengthening the biological family. The resolution No. 670 adopted by the Government of Georgia on 31 December 2019 “On approving of the State Program of Social Rehabilitation and Child Car of 2020” (The Government of Georgia Resolution No. 670 “On approving of the State Program of Social Rehabilitation and Child Care of 2020) directly lists the programmes that include both prevention and support sub-programmes and the best interests of the child are taken into account in their implementation. The protection of child's rights and support programmes are also regulated by the Code on Child's Rights, as well as local municipalities are required to participate in this programme and strengthen families. However, in practice, unfortunately, it is not effectively implemented. Family support services are available mainly in large cities and district centres, while access to them is one of the main challenges for rural people (Namicheishvili, 2015).

We do believe that the state, through a social worker, should offer families various alternatives, which do not imply only financial support. It is important to develop an individual plan, strengthen the skills of family members, employment, and offer relevant services to the knowledge and skills of family members. In addition, local municipalities are obliged to provide appropriate services.

Compared with others, they are mostly enable to control how children and their parents are protected; however, municipalities are still unable to respond effectively to the needs of children and parents, due to scarcity and insufficient services available to children and their parents (UNICEF, 2021).

We do believe that the state shall foresee Article 17 of the European Social Charter, which obliges the member countries to take all appropriate and necessary measures required by the state to ensure special support and protection for children and youth, who are temporarily or indefinitely deprived of their families' support (International treaty and agreement of Georgia. European Social Charter, 2005).

According to qualitative research, the insufficient number and resources of social workers and psychologists employed in the regional centres of the LEPL State Agency for State Care and Assistance for the Victims of Human Trafficking was also revealed. A total of 308 social workers are employed in the territorial units of the Agency (LEPL Agency for State Care and Assistance for the Victims of Human Trafficking No. 07/7551, 31 August 2021). Psychiatric services are not provided at all. Consequently, the staff of a psychiatrist is not allocated by the staff list (LEPL Agency for State Care and Assistance for the Victims of Human Trafficking No. 07/7818. 9 September 2021).

Unfortunately, due to the small number of social workers, individual, in-depth assessment of families is physically impossible. It is worth to note that the involvement of a multidisciplinary team with a psychologist should be considered while compiling an individual plan.

Social workers do not have regular training courses. The aforesaid shortcoming is clearly seen in the reports of the Public Defender. At the same time, the monthly salary of social workers amounts to 1200 GEL, which is lower in comparison to their functions. The state should make every effort to train professionals defining alternative care means and allocate adequate resources. Prior to the enforcement of the Code on the Child's Rights, there was a huge problem in terms of a superficial research of cases by the social workers.

Regarding this issue, the European Court in the case “N. Ts. Against Georgia” found out violation of Article 8 of the Convention, which was conditioned by several circumstances. Namely, in the case to be discussed, the Social Service Agency was formally involved in the legal proceedings, only from the stage of consideration of the case in the Court of Appeals as an “interested person”. The European Court stated that the Code of Civil Procedure does not imply any provision on the status of the “interested person” and its procedural rights. Consequently, it was unclear to the European Court as to what extent the Social Service Agency was able to effectively represent the interests of the children, whereas it lacked formal status. In addition, several reports were compiled by the Social Service Agency, and it did not have regular and frequent contact with children. Moreover, it considered that children were not properly involved in legal proceedings at the national level and that national courts were unable to properly assess the best interests of children (N. Ts. Sue v Georgia No. 71776/12, Decision of 2 February 2016). Although the Law of Georgia on Social Work was adopted later in June 2018 (The Law of Georgia on Social Work (2519-II), 2018), and basic directions in terms of the social worker were defined and their duties and responsibilities were established in detail as well, the aforesaid legislative gap reflected on the quality of service in previous years and eventually on the well-being of society and the state as well.

It is clear that when you do not have the time and proper salary, the state cannot offer regular training courses raising qualification, it is logical that the social worker cannot make a decision that meets the best interests of the child. We consider that sub-paragraph “k” of Article 15 of the Law of Georgia on Social Work should be amended and the following words added: “Attend regular training courses for professional development” and shall be formulated as follows: “Carry out attendance and self-assessment of regular training courses for professional development, as well as participate in the supervision process within his/her competence”.

One of the most important general principles to administer alternative care is the gradual deinstitutionalisation of child care. The main goal of any social care policy is to deinstitutionalise and reform existing institutions into individualised and small group-focused care institutions (Shahovichin, Doek, Tsarmaten, 2015).

Georgia has started to pave the way towards deinstitutionalisation over the past 15 years, and more than 60 large institutions have been closed. However, there are still a number of large institutions left in Georgia – orphanages or boarding schools. In 2020–2021, there are two large orphanages under the LEPL Agency for State Care and Assistance for the Victims of Human Trafficking: Tbilisi Infant House and Kojori Disabled Children's House (LEPL Agency for State Care and Assistance for the Victims of Human Trafficking No. 07/7551, 31 August 2021).

It is planned to close them. There is also active communication with religious institutions – the Patriarchate, the Muslim Community Administration and the Ministry of Education and Science of Georgia – and provision of information on state policy in order to jointly close large institutions.

In 2018, the Office of the Public Defender of Georgia monitored boarding schools under the auspices of religious confessions. The functioning of boarding schools (hereinafter referred to as “religious boarding schools”) in the field of child care under the guidance of religious confessions remains the most problematic issue, related to the problems of boarding schools' licensing as well as the state control failure and less focus on the individual needs of the beneficiaries of the care environment. Most of the boarding schools are large institutions that do not comply with the goals of the deinstitutionalisation process, and the care conditions in the boarding schools do not meet the principle of protecting the best interests of the child.

Herewith, in 2021, neither the Public Defender's monitoring group nor the social workers of the LEPL Agency for State Care and Assistance for the Victims of Human Trafficking were allowed to enter the Ninotsminda Children's Boarding School, which is under the guidance of Patriarchate of Georgia. On 7 May 2021, the UN Committee on the Rights of the Child instructed the Georgian authorities to monitor the Ninotsminda Children's Boarding School under the Orthodox Church to find out the conditions of the children there. There were 57 children in the boarding school, although only a few children are placed today.

Along other problems in the boarding school, “strict parenting style and lack of socialization” were outlined as well (Net gazeti, 2021).

As Georgia does not have a unified deinstitutionalisation strategy and action plan, we think it is important to develop and enhance alternative services. We believe that it should comprise the relevant goals and objectives that will facilitate the replacement of large institutions with family and community-based services. It is noteworthy that currently 287 children benefit from the services of small family type houses. As of July 2021, 280 beneficiaries, including 273 children, benefit from the “Small Family Type Home Sub-Program”. 14 children use “Sub-Program for Specialized Family-Type Services for Children with Deep and Severe Disabilities or Health Issues”. In total, 287 children benefit from the services of small family type houses (LEPL Agency for State Care and Assistance for the Victims of Human Trafficking No. 07/7551. 31 August 2021).

No matter what we say, replacing a child care institution with a family and community-based model cannot be limited to the implementation of legal and administrative measures; financial support is also necessary. It is logical that a state that lacks financial organisational or human resources, the deinstitutionalisation process is also complicated. For this reason, international cooperation is essential in terms of both administration of social protection systems and protection of the rights of the child.