The
Child Protection Delegate
The Child Protection Code (the Code), adopted in
November 1995 as a follow up to the ratification of the CRC, is the main legislation
supporting and protecting Tunisian children in general and those in need of special
protection in particular. Its 123 articles guarantee children’s rights and provide
the institutional and legal framework for their enforcement. The Code seeks to protect the
child from situations that might threaten his/her health or physical or moral integrity,
notably those where the child might be neglected or abandoned, receive insufficient
schooling, be abused, be sexually or economically exploited, or be used by organized
crime. It places a strong emphasis on preserving the child’s best interest, on
preventive measures, and on working with the family. Separation from the child’s
parents or legal guardians is sanctioned only if necessary to protect the child’s
best interest.
The Code has created a corps of Child Protection
Delegates (Delegates) mandated to identify children in need of special protection and
to take remedial action in concert with the family and relevant authorities. They have
special investigative powers, including the prerogative to convoke the parents or
guardians and to gain access to the child in all his/her locations. The Delegates are
charged with working out solutions with the child’s family wherever possible, but may
also refer cases to a family court judge, and must do so if a solution is not worked with
the family within twenty days. In urgent cases, the Delegate may put the child in
temporary care pending a solution by the family court judge. The child is consulted
throughout all procedures.The code obliges all persons, including those bound by
professional secrecy, to notify the Delegate of all cases of a child inneed of special
protection.
In 1996, eight Delegates were appointed and receiving
basic training. A further fifteen will be appointed and trained in 1999, thus providing a
Delegate for each of the 23 governorates.
Provisions for the special treatment of juvenile
delinquents ( up to age 13) are also included in the Code. It requires that juvenile
delinquency cases be heard in a juvenile court presided by a juvenile court judge with
special qualifications and experience. The juvenile court must respect the principle of
non-self-incrimination, provide for special safeguards for the juvenile during the
investigations, consult widely on the child’s background. The Code provides for the
avoidance of detention, and for the possibility of a mediated solution between the
delinquent and the victim (except for criminal offences) with the assistance of the
Delegate in lieu of normal legal procedures and sanctions.
There are two areas of particular concern inherent in
the new institutions and procedures outlined in the Child Protection Code. The first
relates to a potential weakening of the role of mediation and the second to the Child
Protection Delegate’s workload and the absence of logistical and administrative
support necessary to effectively reach out children in need of special protection.
The Code encourages the use of preventive solutions
arrived at by the Delegate in common accord with the child and his/her parents or
guardians. This is consistent with the Code’s emphasis upon keeping child within
his/her family, and making the family responsible for education, protection and
development, wherever possible. This approach, however, may be undermined in practice by
other measures in the Code, namely the Delegates’ power to take emergency protective
action, to find out about the child’s real situation, and to refer the case to a
family court judge. There is some concern that the Delegate’s ability to exercise
these powers could constitute an implicit threat to parents: afraid that the child would
be given into custody, the family and/or child might simply accept the Delegate’s
interpretations and decisions, undermining both the quality of those decisions and the
parents’ willingness to abide by them. The role of prevention through measures
arrived at by discussion and common accord would thereby be diminished.
The second risk is that the delegate may be led to
neglect his/her priority responsibilities as a result of an overload of case management
and administrative duties. These responsibilities, as set out in the Code, are to gather
the information necessary to develop corrective or preventive programmes for children at
risk, and to undertake and monitor preventive measures. However, the absence of adequate
logistical and administrative support to the Delegates in coping with their heavy caseload
is likely to hamper their ability to effectively reach out to children in need.
These two difficulties can be removed or substantially
diminished by training the Delegates and other pertinent personnel in the proper exercise
of their duties, by regular monitoring the Delegates’ activities and their impact, by
providing adequate logistical and administrative support, and by preparing them to
interact with a network of professionals at the sub-national and local levels.
Since 1996, UNICEF has contributed at the training of
the Child Protection Delegates through the :
