ANNUAL REPORT ON THE ACTIVITIES OF THE FRENCH OMBUDSMAN FOR CHILDREN / DEFENSEUR DES ENFANTS
(OCTOBER 2001-OCTOBER 2002)

I – Overview of activities during the past year 

Originally set up by a French law dated 6 March 2000, the Office of the Défenseur des Enfants is, after only two and one-half years in existence, firmly anchored in the French institutional “landscape”.  It is regularly consulted and highly respected in its field of expertise.  It enjoys a constructive relationship with State administrations and with local authorities, and has now become the reference in the domain of protection of child rights.

A relationship of trust has been established with the French Parliament, with the result that the Ombudsperson for Children is systematically consulted by ad hoc parliamentary committees responsible for examining proposed legislation that might affect children and their rights.

She is also consulted by government branches as they formulate regulatory texts.

She is the authority representing the State on various commissions set up to inform the government on issues affecting minors (natural consultative committee on human rights; commission on sex education, planned parenthood and family education; commission on the classification of films).

The simple fact that the institution exists is increasingly well known to the general public in France and, above all, to minors.

This is due in part to the great number of trips the Ombudsperson has made within France, well covered by the media, as well as to widespread efforts to publicize the work of the Office (interviews of the Ombudsperson on radio, television and in the press, particularly in newspapers and magazines that target young audiences; a poster campaign on child rights in primary schools last year and in hospitals this year).

This considerable activity is reflected in the statistics, which show that individual complaints received by the Office over the period 1 July 2001 – 30 June 2002 (800) had risen 14% in relation to the year-earlier period (700) which corresponded to the first year of activity.  However, with the 400 files carried over from the previous year, still to be processed, a total of 1,200 individual cases have actually been handled by the Ombudsman staff during the year.

In general, cases are submitted by individuals (93%) as opposed to organizations (7%).  Among those submitted by individuals, 11% originate directly with the minors concerned who, in the large majority, are between 11 and 15 years old.

The reasons for which cases are submitted to the Office are varied and complex, but, in general, they centre on disputes as to visiting rights and living arrangements, and the usual place of residence of the child when couples have separated or divorced.  To these must be added disputes related to placing of children in foster families and problems with various institutions (schools, hospitals, police, etc.).

After a careful review of the complaint, one-third are found either to be unjustified, or to have insufficient grounds because it is found that no real danger threatens the child or no child right has been infringed.

As concerns these rights, there are four which are particularly at stake: the right to enjoy a relationship with one’s parents, the right to be protected from mistreatment, the right to be heard and the right for one’s parents to receive aid if needed.

Finally, without going into tedious statistics, can be shown that, in 40% of the individual cases it receives, the Office meets the needs and expectations of its public; this alone would surely justify its existence, were that necessary.

The mission with which the Office is entrusted is not, however, limited to the handling of individual cases: there is also a need to examine collective dysfunctions that affect children and to help to promote reforms which can lead to better respect of child rights.

In this context, the Ombudsperson for Children identifies and investigates one or several themes each year which she feels deserving of special attention.

In 2002, the main issue which led to in-depth investigation related to children and health: the condition of pediatric clinics, hospitalization of children, emergency care, dealing with pain and, of course, preventive and educational campaigns directed at children and adolescents.

In each case, the present situation was analysed and concrete proposals for improvement were formulated for government authorities, whether with respect to reworking legal texts now in force or initiating changes in practices to ensure that child rights are consistently better respected.

The report on these activities will be submitted to the President of France and the French Parliament in November.

II – Impact of the reform proposals made by the Ombudsperson for Children

Positive changes and progress in complying with the reforms called for in the ICRC (International Convention on the Rights of the Child) can be noted over the past year.  In most cases, these changes have been the direct result of opinions expressed and proposals made by the Ombudsperson for Children since she assumed her responsibilities.

A number of files have met with total or at least partial success.

This is first the case for the right of families to have access to social worker files concerning them.

A decree dated 15 March 2002 changes current procedures so as to guarantee the family’s rights in all dealings with social workers and, in particular, ensures that the parties concerned are informed at all times of their rights.  Family rights to access their files are, however, tempered by one “precautionary exception”: if good reason can be shown, the judge may, subject to appeal, remove certain elements from a file which, if consulted, might constitute a threat of serious physical or psychological harm.

A further example is that of minors in prisons.  On several occasions, the Ombudsperson reiterated the need to ensure that the legal system could adapt to the specificities of children.  A memo issued by the Ministry of Justice on 8 March 2002 stresses the need for coordination in legal measures affecting minors and calls for the creation of a commission in all French departments specialized in law for minors.

Moreover, another memo from the same ministry (26 October 2001) gives an updated list of the penitentiary institutions authorized to receive minors.  The increase in their number (59, as opposed to the earlier 53) provides more space for minors and thus makes it easier to respect obligations regarding their incarceration in individual cells.  This memo also stipulates that all blocks in which minors are incarcerated must comply with the standards and provisions set forth in an official manual on treatment of minors in prison.

It nonetheless goes without saying that the Ombudsperson does all in her power to ensure that minors are incarcerated only as a last resort and only very exceptionally, in accordance with the ICRC.

A third field in which a number of the Ombudsperson’s recommendations have been followed is children’s psychiatry.

The Ombudsperson had recommended a modification in an article of the civil code to make it mandatory to provide for a psychiatric assessment before any minor was placed by court order in a specialized medical centre.

The unfortunate situation at the time was that, following a court order placing them temporarily in custody, minors were hospitalized in psychiatric wards (with no prior examination) in cases where there was no social work structure available to receive children.

The law on the rights of medical patients and the quality of the health system (dated 4 March 2002) now stipulates that no minor may be placed in an institution which treats persons hospitalized due to mental disorders without the medical authorization of a physician outside the institution, and that the minor may not be kept for more than fifteen days.  A medical opinion on the part of the psychiatrist in the institution is then necessary to extend this period for renewable periods of one month.

Among the other files that have received special attention and met with positive results, we can mention:

* Access to information on the origins of adopted persons and wards of the State.  A law dated 22 January 2002 recognises the concerns of the Ombudsperson to a large degree and attempts, strictly respecting all established filiation, to facilitate the efforts of individuals looking for their biological parents.  The text brings up to date the legal framework of anonymous childbirth so as to make it possible to lift secrecy as to the identity of the mother, and even of both parents.

* Respect for medical secrecy and access to medical files. The law of 4 March 2002 on the rights of medical patients and the quality of the health system (mentioned above) sets up a “democratic” health system, setting forth the rights of the individual in relation to this system (the right to protection, dignity, privacy, non-discrimination) and expanding the rights of patients and their families to information (each patient now has direct access to his/her medical files).

* The rights of foreign minors, a major subject of concern for the Ombudsperson.  The law on parental authority states that an “ad hoc” administrator will be appointed for foreign minors in “waiting areas” in airports (administrative retention zones under police jurisdiction) and for those who request refugee status.  Henceforth, the Public Prosecutor must immediately appoint an “ad hoc” administrator[1] on learning that an unaccompanied foreign minor has entered the waiting area.  This “ad hoc” administrator must be present in the waiting area to accompany and represent the minor in all administrative and jurisdictional proceedings.

* The fight against all forms of sexual exploitation of children.  In this domain, a number of legal and regulatory texts have provided partial solutions.  The law on parental authority prohibits the prostitution of minors and provides for the protection of a judge for underage prostitutes.  The text also sets up new sanctions against clients of underage prostitutes and creates a new offence regarding clients of prostitutes aged between 15 and 18, putting an end to a legal vacuum.  In this same law, provisions protect minors from pornography by making it a crime to possess pornographic images of minors and requiring that prohibitions on both the sale of pornography to minors and inappropriate advertising be so clearly visible to the user that they cannot be ignored.

Furthermore, a memo concerning the conditions for dealing with children who are victims of maltreatment, and most particularly of sexual abuse, invites all concerned parties to design measures which improve the circumstances under which underage victims of sexual abuse are received in hospitals, so as to facilitate taking their testimony.

Finally, the law modernizing the health and welfare system now protects physicians from sanctions in the event that they report evidence of physical cruelty to a child.

* Subsidized, assisted housing in the Paris region for HIV-positive parents and their children.  A social welfare law of 17 January 2002 has created a legal framework for this type of housing, stipulating that the “operating expenses shall be borne by the state Social Security system, though not to the exclusion of contributions on the part of local administrations.” 

III – Difficulties encountered by the Office in carrying out its mission

As was indicated earlier, the mere existence of the Office of the Ombudsperson for Children in France constitutes an undeniable step forward in the protection and promotion of child rights.

The statistics on individual cases handled and the legislative and regulatory texts produced over the last two years, often on the initiative or recommendation of the Ombudsperson for Children, clearly demonstrate the pertinence and importance of the work of the Office.

There still remains, undoubtedly, much to do, and not all requests or proposals from the Office are taken into consideration.  At the very least, it is in a position to express opinions on all subjects within its field of competence, given its recognized status as an independent authority.

No restraint is placed on the Office’s freedom of expression, and it is able to take up any case in which minors are concerned.

Moreover, the Office alone is responsible for undertaking the communications campaigns it deems useful, with the partners it deems most appropriate.

The Ombudsperson for Children in France has not encountered any specific problems in her dealings with government authorities.

The fact remains that her scope of action is obviously restricted by the modest budget accorded to the Office.

While for the moment, the Office continues to operate under satisfactory conditions, it is certain that no expansion in its activities will be possible in the absence of additional funding.

This is a question of general policy and budgetary planning which will be up to the new Government to solve.

Last edited by Barneombudet November 12, 2002
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