Children’s rights in post-Soviet countries: The case of Russia and Belarus

Introduction

Respecting children’s rights remains one of the most noticeable challenges facing the post-Soviet countries. Despite numerous efforts by authorities and civil society towards transforming child protection work, residential care still operates as the main strategy for solving tasks such as education of children with disabilities, intervening with minors in conflict with the law, and preventing abuse and neglect against children in families. Being one of a few options for the consistent transformation of child protection, international regulations operate efficiently if their implementers recognize the internal contradictions of the concept of children’s rights and indicate options for a balanced approach to child protection. This article explores recent practices and discourses around child protection in two post-Soviet countries, Russia and Belarus, in relation to the international regulations regarding children’s rights. In line with the interpretivist approach, we get inspiration from the contemporary revision of the pre-sociological notion of ‘the child’ and connect current legal reforms aimed at better child protection with recent changes in communicative discourses in post-Soviet countries.

International regulations of children’s rights: Framing culturally sensitive child protection?

The attitude towards international regulations regarding children’s rights varies among experts from enthusiasm to non-acceptance. The most positive attitude to the United Nations Convention on the Rights of the Child (UNCRC) relates to developing the institutions of child protection when the risk of violation against children is extremely high, for example, in situations of armed conflicts, disasters, long-term poverty or religious fundamentalism. Substantively, international regulations are posed as a framework, which aims to correct outmoded practices and introduce child protection regulations more consistent with the expectations of international bodies (Mauras, 2011). Uncompromising opponents of international regulations highlight the inculcation of a typical Western way of thinking about childhood’s meaning, which is irrelevant for the majority of the world’s population and also fails to take into account significant local contexts (Kehily, 2009).

Beyond these two extremes, the implementation of the Convention as a soft law indicates alternative options for applying international regulations. A sensitive approach is needed towards the internal contradictions in the concept of children’s rights as well as to the regional diversity of practices around childhood (Burman, 1996). The proponents of the interpretivist approach to the Convention scrutinize it as a global toolkit for identifying the conflicts of basic values and as a positive challenge for reflecting current issues within child protection. Regarding the Convention as a source of glocalizing child protection, two main camps of experts define the theoretical and applied realms of international regulations for children’s rights. While the division of the child’s status into ‘being’ and ‘becoming’ demonstrates the contradictions in the ideological grounds of the Convention, the focus on private and public life as the two main domains of children’s rights sheds light on the complicated nature of current institutional design of child protection systems.

In exploring the contemporary difficulties in deciding on the role of child protection, Nick Lee has introduced the concept of the dual status of the child (Lee, 1996). While the ‘becoming child’ belongs to various institutions operating in the name of social integration, the ‘being child’ obtains individual freedoms ‘here and now’ in order to guarantee the child’s individual autonomy. The likely conflict between these statuses can be solved in particular circumstances through the approach which connects local, cultural and individual contexts (Lee, 2005). The division of statuses reflects the different approaches towards making decisions in the case of contesting interests of parents, children and services (James, 2011).

The necessity to rely on the balance of both statuses permeates the main areas of current reforms in Western child protection. While the interests of the ‘becoming child’ suggest enforced interventions in families, the current spread of practices regarding the return of children to their families counterbalances the inevitable limitation of emotional ties resulting from the removal of a child from their parents (Nybom, 2005). The extension of foster care as an alternative to residential care is stipulated by the balance of statuses: the argument in favour of the family as a better provider of the essentials for a child’s development is based upon the concept of the ‘becoming child’ (Wildfire et al., 2007), but the view of the family as a unique space for implementing the right to a private life is related to the ‘being child’ (Wildfire et al., 2007). The efforts towards more transparent residential care also demonstrate the need to balance these statuses: even if children have been placed in institutions, the provision of their rights requires a better understanding of informal contacts between peers as a source of autonomy and independence (Emond, 2003). Redefining residential care through the frame of community care (Ainsworth and Hansen, 2005) encourages a diversity of options for providing for children’s needs in respect of their autonomy.

Recent surveys have identified new threats to the balance of public and private life associated with implementing international regulations. The potential risks of deepening the alienation of the child as an individual entity are ascribed to the intense development of collective forms regarding children’s representation in public policy (Reynaert et al., 2009).

Simultaneously, taking children from their families can be seen as a violation of their rights, damaging their emotional ties and the right to a family life (Forsberg and Vagli, 2006). The current tensions between the public and the private in child protection are directly attributed to change in patterns of marriage, parenthood and kinship care reflected in various approaches redefining the notion of parenthood regarding children’s rights (Beck-Gernsheim, 1998). Typical of libertarian thinking, the mutual opposition of private and public has been replaced with more complicated links between these realms – in the context of human rights.

The civil approach equates public with the state or any institution which threatens arbitrary actions against citizens. Thus, people who want to prevent violation against their own private lives need to engage in public policy. One of the most visible trends in many post-socialist countries is collective action by parents against toughening of regulations with regard to corporal punishment of children. Closely connected to a univocal and simplified interpretation of international regulations, there is a high risk of criminalizing parents and more calls for the sharing of responsibility between parents and authorities – the latter need not only to control parents but also to provide options for improving parental practices (Zolotor and Putka, 2010: 244).

A culturally sensitive approach to parenting can be based on the concept of betweenness, a tie between family members which connects the autonomy of child and parents into the integral institution of family autonomy (Strandell, 2009). Aimed at problematizing the concept the best interests of the child, current surveys elaborate the idea of the family’s autonomy in order to prevent the overpressure of professionals on children and parents. Thus, during the communication between families and hospitals’ staff, implementing the child’s right to be heard is directly attributed to the capacities of physicians and nurses to respect parents’ opinions (Kelly et al., 2012). In order to prevent the simplified idea regarding the best interests of the child among practitioners and encourage accepting the reciprocal nature of family relationships, the experts highlight the necessity to apply a more complex concept of family relationships in the case of assessing the participation of children in informal care for family members (Wihstutz, 2011).

Both the concept of dual status of the child and the array of approaches towards rethinking the public–private dilemma aim to answer the question ‘What should be done for the sensitive implementation of international regulations?’, but from different perspectives: either ideological or institutional. In this article, we argue that juxtaposing these domains provides more complete insight into child protection and its actors. Such a complex approach follows the general trend in contemporary social studies to work out research strategies for identifying multilevel drivers in order to indicate options for activating agents, such as communities, nongovernmental organizations and civil movements, who would be able to provide transparency and accountability in child protection. Such a complex approach suggests unique opportunities for countries affected by an authoritarian background and having an unsustainable policy towards human rights. Both Belarus and Russia present cases requiring the development of sophisticated indices for evaluating the implementation of international regulations, since both risk putting obstacles in the way of potential agents of reform.

Methodology of comparative analysis

The exploration of differences and similarities is based upon the discursive institutionalism which defines discourse as an interactive process; distinguishes coordinative and communicative discourses for further mapping policy-making; and allocates the core role of changes to the communication between various actors (Schmidt, 2010: 17; Vanhuysse, 2009: 40). While coordinative discourses regulate strategies and priorities of policies, communicative discourses present the issue of child protection to the public and legitimize policies provided by different actors. The current changes in legal regulations operate as a source for deriving coordinative discourses which stipulate the authorities’ policies towards parents and children. The communicative discourses are recognized in the public statements of various actors regarding core issues in terms of the previously discussed ideological and institutional frames of child protection. We trace the changes in the institutional frames established during the late Soviet period in terms of redefining public–private boundaries and evaluate the transformations of child protection regarding the criterion of the balance between the statuses of child.

The Soviet background of child protection: Is history repeating itself?

During the Soviet period, a rapid change of driving forces caused turbulence in the procedures and institutions of child protection. The regulation of reproductive patterns and the system of supporting mothers were continually altered according to demographic challenges presented by collectivization, the Great Purge, the Second World War, and the second wave of industrialization in the 1960s (Kelly, 2007). The contemporary institutional design, typical of many post-Soviet countries, could be viewed as an output of the transformations started in the late 1970s (Teplova, 2007).

In the second part of the 1970s, moderate familialization replaced the previous monopoly of public care: direct and indirect benefits for families were introduced on the back of economic crises and the reduction in birth rate (Sutton, 1980). The main intention of the new policy was to shift responsibility for children from state institutions to parents. Generous benefits reasonably required a more coherent control of parenting. Alongside changes in family policy, new measures aimed at more consistent monitoring of families were established: strict criteria related to child removal and limitation of parental rights were introduced by the Plenum of the Supreme Court in 1979. Resolution No. 9 established new criteria for removing a child from the family equal to criteria for terminating parental rights. Alongside this, special guarantees for better care were introduced for children placed in residential settings. A special Resolution of the Central Committee of the Communist Party issued in 1987, ‘Measures for fundamentally improving upbringing, education and material provision for orphans and children without parental care’ (O merach po korennomu uluchsheniu vospitania, obuchenia i materialnogo obespechenia detey-sirot i detey, ostavshichsya bez popechenia roditeley), required institutions to recruit helping professionals (psychologists and speech therapists). As with child protection in Western countries, the late Soviet policy opposed the interests of both children and parents – with the latter being viewed as potentially less competent than professionals. The changes in institutional design were matched by the predominance of a developmentalist approach worked out by Soviet psychology and pedagogy.

Soviet public life did not provide a sufficient number of options for the stepwise refinement of approaches towards balancing the different statuses of the child (Astoyants, 2006). During a quite bright but rather short period when the humanistic approach was evident in practices (in the late 1960s), child literature (both translations of Scandinavian authors and native texts) and psychological theories partially legitimized the notion of the ‘being child’. But until the end of the Soviet period, the communicative discourse around children primarily regarded children as a source of national wealth (Kelly, 2007).

In Russia and Belarus, this thinking continues to inform family policy. However, the last two decades have witnessed significant differences between these countries due to the general peculiarities of political regimes and the impact of various actors on the development of child protection. Both countries ratified the Convention on the Rights of the Child in 1990, but how are they developing practices relating to children’s rights?

Russia: ‘Rescue our children’?

International experts stress various shortcomings in current Russian legislation preventing the consistent implementation of international regulations: the lack of regulations regarding their reintegration with families; fragmentary public control over residential settings; and the absence of legal aid for parents. The analysis of legal norms currently operating suggests continuity between the late Soviet practices and contemporary approaches of authorities in opposing the interests of both children and parents.

The Russian Family Code (1994) establishes the administrative basis for child removal from the family (article 77). The systematic practice of applying this measure started in the second part of the 2000s: the proportion of separated children has increased (from 46,526 in 1997 to 74,141 in 2006) as have the number of parents who have had their parental rights terminated (FARE, 2009). Despite the legal order limiting parental rights, judges support the position of local authorities, and parents are short of procedures ensuring them of a fair trial process: the balance between experts’ opinions and coherent legal assistance for parents are missing (Shmidt, 2012). Until 2010, the temporal limitation of parental rights remained a rare option, and child and birth parents were reunited in only a small number of cases. The decision regarding further placement of the child is made by an administrative order by the Medical-Psychological-Pedagogical Board (medico-psychologo-pedagogicheskaya komissiya) regarding disabled children; by the Board of Affairs of Minors and Protection of their Rights (kommissiaya po delam nesovershenoletnich I zaschite ich prav) regarding minors in conflict with the law; and by the local Board of Custody and Guardianship (organy opeki I popechitelstva) regarding abused and neglected children. This approach restricts options for transparent procedures dramatically, especially for children placed into residential settings whose interests can be presented only by their legal representatives, since the administrators of settings are more interested in the removal of ‘difficult children’.

Since the late 2000s, the law started to criminalize the behaviour of parents and children by introducing new norms: these included a curfew for minors under the age of 18, supplemented by parental civil liability in the case of violation of this norm (2009); the reinforcement of criminal measures against parents convicted of inhuman treatment against children (2010); and toughening the responses to sexual crimes against minors (2012). Several legal cases against ‘irresponsible and dangerous’ parents sparked widespread public outcry and impacted on the communicative discourse around the issue of privacy and its frontiers. The Novgorod case in which a mother was accused of the attempted murder of her daughter, indicated great public concern regarding procedures in the case of (un)intentional injury. The more recent case of Vladimir Makarov (who was found guilty of sexually abusing his eight-year-old daughter) demonstrates increasing distrust of the existing system of expertise and pre-trial investigation (RIA Novosti, 2011). But the 2009 Ageyvys case has become significant in developing public concern about children’s rights and the frontiers for enforced interventions with families.

The Ageyvys (adoptive parents) were deprived of their parental rights after their son was hospitalized following physical injury. The authorities were so suspicious that the court terminated adoption during the pre-trial investigation. The Ageyvys sought justice at all national levels and then appealed to the European Court of Human Rights which alleged violation of their right to a private life. This highlighted existing shortcomings in Russian regulations regarding family autonomy in the case of adoption, and made a judgment against Russia (European Court of Human Rights, 2013). Meanwhile, the Ageyevy case had polarized Russian public opinion. Two main positions have been taken, indicating the current range of opinions around children’s rights, namely supporting the interests of the child relative to supporting the interests of the parents.

The majority of experts encouraged punishment of the parents and argued for publicity around such cases as an aid to preventing violence against helpless children in families: ‘(There should be) publicity in such cases . . . adults do evil against children not only in substitute families but in biological families too . . . and no child should be silenced’ (Civic Chamber of the Russian Federation, 2009). During the special session of the Civic Chamber (2009), the most well-known experts cited current practices targeted at protecting children as being backward and out of step with international regulations: ‘Around the world all matters regarding violence against children get emergency measures. . . and only here is this miserable boy lost between hospital and family.’ Recommendations of regular obligatory medical examinations for children in educational centres and increased decision-making powers of local boards were put forward due to this case. Experts highlighted the increasing number of cases of inhuman treatment of children as a direct result of the inadequate humanization of the law.

The Russian Orthodox Church and unions of parents made a stand against enforced treatment and used the Ageyevy case for recruiting public opinion into a campaign named by them anti-JJ – anti-juvenile justice. Long before the Ageyevy case, juvenile justice was defined by anti-JJ leaders as an array of practices aimed at limiting parents’ rights and directly challenged the inorganic influence of international bodies which contrasts with the conventional wisdom proven by centuries: whoever dared to hint at the priority of international law over the national legislature? The notion of international regulations didn’t exist, nor did the United Nations and other foreign organizations (Medvedeva and Shishova, 2006).

Anti-JJ activists make up their arguments with two interconnected presumptions: ‘the child is evil and needs to be controlled relentlessly’ and ‘the parent is the only one who has a right to control the child’: ‘Being manipulators, egocentrics, spoilers, children complain of their parents – without any problem and sometimes with pleasure. Among children there are those with mental disorders who are totally unable to produce adequate understanding including in their communication with adults. Being “enlightened” about children’s rights, they start to react vehemently against any reprimand and recognize it as a violation against their personality.’

According to Boris Klin, the leader journalist of Izvestia (2009) who exhaustively covered the case, the arbitrariness against families can be prevented only through introducing detailed criteria of parental responsibility excluding any multiple interpretations of law: as ‘simple, clear, and unequivocal as instructions for lift users’ (Klin, 2009). This position rejected international regulations because of their ‘excessively general formulations’. The public campaign regarding the Ageyevy case empowered anti-JJ and consolidated parents from various social segments into the Roditelsky Front (Parents’ Front). Having gathered more than 140,000 signatures on a petition against ‘juvenile justice’, the Front organized its first Congress: President Vladimir Putin addressed the participants and stressed the idea of family sovereignty (Putin, 2013).

Despite opposing views on the private–public debate, both the anti-JJ movement and the community of experts concur in a simplified approach to international law, either ignoring the necessity to solve the conflict between main values or rejecting its use because of unclear and generalized criteria (Schmidt and Rasell, forthcoming). The lack of a reflexive approach to international regulations coincides with a relatively new trend towards child protection – to develop measures aimed at monitoring the public sphere as posing risks to rising generations.

Law No. 436, about protection of children from information which could corrupt their health and development (O zaschite detey ot informatsii, prichinyayuschey vred ih zdorovyu i razvitiyu) (2010), introduced special censorship aimed at limiting the access of minors to the media in order to encourage the maintenance of traditional values. In particular, the government is keen to protect children from information which promotes the denial of traditional family values, specifically in relation to non-traditional sexual relationships and has implemented new legislation (Federal Law no. 135). Public debates around the new regulations have been initiated by international human rights bodies, but they have mostly remained on the level of lone voice protests from among Russian LGBT activists.

Only the ban on the adoption of children by Americans (introduced in 2012) resulted in recruitment of people to mass protests against the state policy towards children. The main message of a protest march ‘Rescue our children’ was based on the notion of ‘becoming children’: placement into the residential care system was posed as abusing the child’s future while adoption by Americans was recognized as the one option to provide a normal life for children from Russian residential institutions who were disabled (Volkova, 2012). Following the Law of Dima Yakovlev (the unofficial title of the law prohibiting Americans from adoption), other bans (on adoption by citizens of countries which were viewed by Russian authorities as having sympathetic policies towards ‘same-sex couples’) have not attracted the attention of the public.

In addition, the ban on international adoption can be viewed as reinforcing the control of children’s rights in both private and public spheres. The communicative discourse in favour of a ban was made up of two mutually connected arguments. The first highlighted the impossibility of controlling foreign families and preventing violence towards children. The children’s ombudsman Pavel Astakhov said: ‘we are fed up with unpunished murders and bullying of our children’ (Astakhov, 2013a). The second focused on irrelevant culture (lack of tolerance of children’s differences) as a threat to child development (Astakhov, 2013b). Despite opposing positions towards the private and public spheres of children’s lives (including in relation to international adoption, foster care and other contentious issues), Russian actors reproduce the same message ‘Rescue our children’. This is directly associated with the priority given to ‘the becoming child’ and oppresses any attempts to revise approaches which recognize the shortcomings of the current institutional design of child protection (Pecherskaya, 2012).

Belarus: The state in action?

According to independent experts, the Belarusian state remains a key actor in social policy which is focused mostly on people ‘at risk’ requesting assistance (Gruževskis et al., 2011: 44). Such a strategy blocks social partnerships among different actors and preventive programmes aimed at empowering people (p. 51). The general profile of social policy shapes the procedures of child protection.

Constituted as an interdepartmental body, The National Board of Children’s Rights (Natsionalnaya kommissiya po pravam detey) was established to implement international regulations at the national level. The Board consists of representatives of legislative and executive powers at both national and local levels, servants of internal affairs, and other authorities. Only 10 percent of members represent the non-governmental sector. Since 1998, international experts have systematically highlighted that this Board undermines concerted actions towards establishing a fully independent system of monitoring children’s rights which requires the introduction of a Children’s Ombudsman (UN, 2002). When addressing the challenge of legitimizing their power, officials actively apply criteria relevant to the expectations of international bodies but they mostly focus on prevention and family placement. In line with the Soviet pattern ‘to implement the task ahead of time’, the Minister of Labour and Social Protection, Igor Starovoytov (2010) proclaimed that ‘Belarus is ahead of the Millennium Development goals in relation to reducing infant and maternal mortality, providing education, etc.’.

However, the implementation of international projects runs into problems because of various shortcomings in national legal regulations: foster care and international adoption face decision-making procedures which prevent potential foster caregivers from engaging in the process. The recently established organizational practices of previously implemented international projects are modified according to state policy priorities: the network of short-term placements (established by UNICEF in order to minimize the threats posed by long-term residential care) were transferred under the auspices of local child protection policies and started operating as an element in a new model regulating crisis intervention.

As in the late socialist period, the combining of services within one setting remains a key approach to local child protection services: since 1999 special Departments of Child Protection have been established to implement a wide range of interventions with children and families, from prevention to the placement of separated children. As it is not well equipped for preventive work and social integration, the centralized system of child protection corresponded with the reform of crisis intervention with families which started in 2006 (Decree of the President of Belarus, No. 18 About supplementary measures regarding the state protection of children in vulnerable families). According to the new rules, local departments of child protection apply administrative orders removing children and placing them in short-term settings for up to six months in order to prevent their inappropriate treatment by parents (or legal representatives). During a child’s stay in a short-term placement, parents are permitted to claim for resources which would enable them to bring the child home and provide sufficient care for them. In the case of failure of such attempts, their parental rights are terminated but they must continue to pay for the child’s residential care. A decision in favour of the reintegration of the child into the family exempts parents from the obligation to pay for the child’s residential care and officially it is the main impetus for parental behaviour which improves the conditions of the child’s life.

Removal of a child and postponement of termination of parental rights are accompanied by considerable restrictions on parents’ autonomy. At the moment when the child is removed from the family, the parents have to be fingerprinted and are subject to preventive observation by the local department of internal affairs. The duty to cover expenses for residential care is signified by a special stamp in a civil passport. Unemployed parents are involuntarily employed. Employers cannot reject them. Parents who are obliged to work, but who systematically violate this duty can be placed in special settlements under the control of the Ministry of Internal Affairs. Parents can be dispossessed by legal order, and their housing can be rented in order to cover expenses incurred by the child’s stay in care or to repay utility charges. The state is obliged to provide housing for parents, but there are no standards related to this obligation, and parents can be resettled either in worse housing or in a worse location in terms of maintaining regular contact with a child.

The absence of any legal options for appealing against social services’ decision to remove a child has made this practice suitable for repressing political opposition. In 2010–2011 social services made several attempts to remove children from the families of leaders of Belarusian opposition, Irina Khalip and Alexander Sannikov (Schwirtz, 2011). Several other cases (e.g. against Kristina Shatikova) proved that child protection procedures were used as part of a general trend to oppress the private lives of citizens and reinforce punitive psychiatry and arbitrariness in pre-trial investigations.

From 2006 to 2011, the number of children removed from families has increased by 1.7 times, but the number of children reunited with their families declined from 60 percent in 2005 to 49 percent in 2010. The proportion of parents who had their rights restored remained at less than 10 percent of the total number of parents whose rights were terminated. Moreover, the number of families being monitored and encouraged by services has decreased – which could be interpreted as a trend to implement tougher measures against parents (National Statistical Committee, 2011).

Nevertheless, the changes in crisis intervention have been accepted by internal experts, and neither procedures nor criteria relevant to family interventions were criticized. Long before the new law, the discourse of normality had legitimized the attack against privacy and family life: ‘The rapid growth of crimes committed by minors is explained by the disintegration of the contemporary family, its values, morality, and as a result the reinforcement of offensive patterns regarding marriage relationships and parenting’ (Chernikevich, 1998: 46). The Belarusian state has placed a major emphasis on the family as the core of social welfare, and recently this trend has been transformed into the exaggerated value placed on motherhood. The Belarusian President, Alexander Lukashenko (2010), denied any suggestion of an authoritarian approach and said: ‘Democracy is the type of society in which any woman feels herself free to be a woman: marry, establish a family, give birth to children without any complications, bring them up, give them a good education – that is a core meaning of democracy.’ Child safety has been constructed in terms of the state’s well-being and a sustainable social system, and respectively, parents have been seen as implementers of the state’s requirement to raise good citizens.

Conclusions

A culturally sensitive approach to the UNCRC requires that the desired institutional changes are linked with relevant ideological grounds. For instance, reducing the number of children in residential care presupposes that actors accept the dual status of the child and pursue appropriate policies and practices to achieve a balance between the ‘being child’ and the ‘becoming child’. Both Belarus and Russia still pursue the reform of child protection through returning children from public care to either adoptive or foster families and not to their biological parents. Both countries have emphasized the administrative nature of decision-making related to protecting children from irresponsible parents. However, the process lacks transparent procedures and the application of international regulations is reduced to formal rhetoric. The operating system of crisis intervention with families prevents the implementation of sustainable and flexible approaches, including in relation to placing children in care and regulating parental rights. In combination with non-transparent decision-making, shortcomings related to the responsibility of services for timely intervention prevent the development of alternatives to residential care.

Since the fall of the USSR, Russia and Belarus have witnessed a different range of actors participating in child protection work. While the intensive growth of the non-governmental sector has become a decisive factor in the Russian child protection system, in Belarus child protection has been centralized, and public agencies have been obliged to implement a universal set of functions. Nevertheless, the diversity of actors is not a sufficient condition for refining criteria and child protection procedures according to the key principles of international regulations. The actors themselves do not practise the diversity of approaches which would recognize children’s rights as a multifunctional concept related to different notions of ‘the child’ and of the rights and responsibilities of parents and the state.