for modification of the Child Proctection Act (Law 272/2004)
For the amendment and addition of Law no. 272/2004 regarding child’s rights’ protection and promotion
Translation from Romanian to English made by Dinuta Nicu for Asociaţia Română pentru Custodia Comună for the use of COLIBRI Association. This refers to the articles from 1 to 30 which refers to the protection of the childern which are affected by the divorce of the kid. The articles 31 – 70 were not translated. If you see this text in antoher language this means that it was automatically translated by using Google Translation Services.
ARPCC ref. [ngo990]
The Deputies Chamber enacts the following bill.
Art. I. – Law no. 27/2004 regarding child’s rights’ protection and promotion, published in Romania's Official Journal, Part I, no. 557 from 23 june 2004, with the subsequent amendments, it is modified and added as it follows:
1 . In article 2, after paragraph (1), a new paragraph is introduced, paragraph (11), with the following content:
"(11) The child's higher interest circumscribes to the child's right to a normal physical and moral development, to socio-effective equilibrium and to a family life."
2. At article 2, after paragraph (4), a new paragraph is introduced, paragraph (5), with the following content:
"(5) In determining the child's best interest at least the following are considered:
a) The needs for physical and psychological development, for education and health, security and stability and the affiliation to a family;
b) child's opinion according to age and degree of maturity;
c) child's history, considering, especially, the abuse, negligence, exploitation matters against the child, as well as potential risk situation that may occur in the future;
d) parents' capacity or of other persons that are due to take care of the child's nursing and care to respond to his imediate needs;
e) maintaining the personal relationships with the persons to whom the child has developed attachment relationships.
3. Article 4 is modified and will have the following content:
"Art. 4 – Within the meaning of the law, the below expressions and terms have the following meanings:
a) Child – a person under 18 years old who did notearned the exercise, as per the law;
b) Family – the parents and their children;
c) Extended family – the child's relatives up to the fourth degree included;
d) Substitutive family – the persons, other then those pertaining to the extended family, including relatives by affinity up to the fourth degree and foster care who ensure the child's nursing and care, under the law;
e) Personalized protection plan – the document through which the service's, supply and the child's special protection measurement planing are realized, based on his psychosocial evaluation and his family's, in view of the integration of the child who was separated from his family in a familiar, permanent, stable environment, in the shortest time possible;
f) Services plan – the document through which the services' and benefits'planing is realized, based on the child's and family's psychosocial evaluation, in view of preventing abuse, negligence, exploitation, any other forms of violence against the child, as well as separating the child from his family;
g) Legal representative of the child – the parent or person assigned, according to law, to exercise the rights and fulfill parental obligations towards the child.
4. After article 7, a new article is introduced, art. 71, with the following content:
"Art. 71 – In any case which concerns the child's rights, the Court examines if the understandings between parents or between them and other persons respect the child's higher interest."
5. Article 9 is modified and will have the following content:
"Art. 9 – (1) In the purpose of achieving the right provided in art. 8 (1), the health units that have in their structure departments for newborns and/or pediatrics have the obligation of hiring a social assistant or, as the case stands, to assign a person with social assistance attributions.
(2) In view of establishing the identity of the child left within the health unit or finding his parents, the police and the comunity public services have the obligation to assign one or more persons responsabile, who ca achieve, with celerity, their respective approaches, according to law, to register the child' birth and to send the identification data to the general directorate for social asistance and child protection or, as the case stands, to the public service of social assistance.
(3) The persons assigned in paragraph (2) have the obligation of establishing the identity of the parents of the children who have been abandonded in the hospitals, in the event that these were identified and did not elaborate rhe birth certificate."
6. At article 11, paragraph (7) is modified and will have the following content:
"(7) Within 24 hours from the registration of the child's birth, the public service of social assistance has the obligation to send to the general directorate for social assistance and child protection the registration form of the child's birth."
7. After article 11 a new article is introduced, art. 111 with the following content:
"Art. 111 – In the situation of the child abandonded by his parents in the hospitals, whose birth was not registered, the obligation to achieve the approaches provided by the law is for the public service of social assistance, in whose territorial administrative unit the baby was abandonded, by following the procedure provided at article 11"
8. In article 12, paragraph (1) is modified and will have the following content:
"Art. 12 – (1) In the case of the child found within a family or in a public place, as well as that of a child abandonded by his parents in other hospitals, whose birth was not registered, the obligation to achieve the approaches provided by the law is for the public service of social assistance, in whose territorial administrative unit the baby was found or abandonded."
9. After article 12 a new article is introduced, art. 121 with the following content:
"Art. 121 – The methodology regarding the achievment of obligations that are for the authority of the local public administration, the institutes and professionals, involved in the prevention and intervention for the case of the children found in risk situation or abandonded in hospitals/departments of obstretics-gynecology and neonatology that provide medical services to children by executive order, at the proposal of the Ministry of Labour, Family, Social Protection and Older Persons, in cooperation with the Ministry of Regional Development and Public Administration and with the Ministry of Health."
10. At article 13, paragraph (1) is modified and wil have the following content:
"Art. 13 – (1) The health units, social protection units, care servicing of residential care type, the entities with no leagal status, other legal entities, as well as natural persons who admitt or receive in care pregnant women or children who do not have papers on which their identity could be established are obligated to anounce, within 24 hours, the authority of local public administration to which they belong or, as the case stands, the adress, in view of establishing their identity, as well as the general directorate of social assistance and child protection to which they belong.
11. At article 14, after paragraph (3) two new paragraphs are introduced, paragraph (4) and (5) with the following content:
"(4) In case of a misunderstanding between parents regarding the ways to exercise the right to have pesonal contact with the child, the Court will establish a program according to the child's age, his needs for care and education, the intensity of the bonding between child and the parent with whom he does not reside, the parent's behavior as well as other aspects relevant to each case.
(5) The criteria provided in paragraph (4) will be taken into consideration even when establishing the program of personal relations with other persons which have been involved in the child's family life.
12. Article 5 is modified and will have the following content:
"Art. 15 – (1) Within the meaning of this law, the personal relationships can be achieved by:
a) Meetings of the child with the parent or with another person who has, according to this law, the right to personal relationship with the child;
b) Visiting the child to his home;
c) Hosting the child for a determined period, by the parent or by other person with whom the child does not normally reside;
d) Correspondence or other form of communication with the child;
e) Transmitting data to the child regarding the parent or other persons that have, according to this law, the right to maintain personal relationships with the child;
f) The transmission from the person who lives with the child of some information regarding the child, including recent photos, medical or scholastic assessments, towards the parent or the other persons who have the right to maintain personal relationships with the child;
g) Meetings of the child with the parent or with another person to which the child developed special bonding in a neutral place in regard to the child, with or without the surveillance of the mode in which personal relationships are entertained, in terms of the child's higher interest.
(2) Information transmission provided for in paragraph (1) letters e) and f) will be made by respecting the child's higher interest, as well as the special provisions concerning privacy and transmission of personal information.
(3) The parent with whom the child resides has the obligation of supporting the maintenance of personal relationships between the child and the other parent, provided for in paragraph (1).
(4) To restore and maintain the child's personal relationship, the public service of social assistance and, as the case stands, the general directorates of social assistance and child protection from the level of each sector in Bucharest have the obligation to offer counselling, offered by specialists both to the child and his parents, at their request.
(5) In the event in which the parent with whom the child resides prevents of affects in a negative way the child's personal relationship with the other parent, by the non-compliance of the program established by the Court or agreed by the parents, the parents with whom he does not permanently reside can ask to the public service of social assistance or, as the case stands, to the persons with social assistance attributions in whose district the child's residence is, to monitor the personal relationships with the child for a period of 6 months.
(6) The monitoring allows the representatives of the public service of social assistance or, as the case stands the persons with social assistance attributions, to assit the child's taking by the parent with whom he does not reside permanently, to his returning, to interview the parents, the child and other persons with whom the child resides, as well as other persons in view of compiling the monitoring report.
(7) At the end of the monitoring period, the representative of the public service social assistance or, as the case stands, the person with social assistance attributions who compiled the report provided in paragraph (6), is able to recommend the prolongation of the monitoring period with at least 6 months, he is able to recommend counseling to one of the parents or both parents, as well as a series of measurements to improve the personal relationship between the child and the parent with whom he does not reside.
(8) The monitoring report provided in the paragraph (6) is handed to each of the parents and may be used as evidence in Court."
13. After article 16 two new articles are introduced, art. 161 and 162, with the following content:
"Art. 161 – (1) In view of ensuring the maintenance of the personal relationships of the child with the parents or with other persons with whom the child enjoyed family life, as well as to ensure the child's return to his residence at the end of the visiting period the Court may dispose, at the request of the interested parent or of other entitled person, one or more insurable measurements or some warranties.
(2) The measurements provided in paragraph (1) may include: a) a fine for the day in delay imposed to the person who refuses the implementation or the observance of the program for the child's personal relationship maintenance;
b) the deposit of a warranty real or personal by the parent or the person from which the child is to be taken , in view of maintaining the personal relationships or, as the case stands, at the end of the visiting program;
c) The submission of the passaport or of another document to an institution assigned by the Court and, when necessary, of a document from which can appear that the person who requests personal relationships has notified their submission, during visiting period, to the competent consular authority.
Art. 162 – (1) In the event the parents do not agree upon the child's residence, the Guardianship Court will establish his residence to one of them, according to art. 496 paragraph (3) within the Civil Code. At the appraisal of the child's higher interest the Court can take into consideration, besides the elements provided at art. 2 paragraph (5), aspects such as:
a) Each parent's availability to involve the other parent in the decisions concerning the child and to respect his parental rights;
b) The availability of each parent to allow the other one to maintain personal relationship;
c) The housing situation within the 3 year of each parent;
d) The history regarding parents' violence against the child or against other persons;
e) The distance between the residence of each parent and the institution that grants education to the child.
(2) The provisions of paragraph (1) are applied properly and for the cases in which the infant's residence is established to third parties or at a service of special protection."
14. At article 17, the paragraph (2) is abrogated.
15. At article 18, paragraph (2) is modified and will have the following content:
(2) Children's relocation abroad is achieved by respecting the provisions of Law no. 248/2005 regarding the regime of free movement of Romanian citizens abroad, with the subsequent Additions and Amendments.
At article 22, paragraph (4) will have the following content:
(4) The children cannot be used or exposed by the parents, legal representatives, other persons responsible of their nursing and care, private bodies accredited as suppliers of social services, public or private institutions, with the purpose of obtaining personal/institutional advantages or to influence the decisions of the public authorities.
17. At article 27, after paragraph (1) two new paragraphs are introduced, paragraph (11) and (12), with the following content:
(11) The child pertaining to the national minorities has the right to express in his native tongue within the procedures that regard him.
(12) The modes of exercising the right provided in article (1) including by using interpreters or translators will be established as to not prevent to good achievement and exercise of all the children's rights.
18. At article 29, paragraph (2) is modified and will have the following content:
(2) The child is informed by the parent/legal guardian concerning his rights and obligations, as well as concerning their modes of achievement and exercise.
19. At article 29, after paragraph (2) a new paragraph is introduced, paragraph (3) with the following content:
(3)The child's obligations are established according to age and maturity degree, without them leading to his rights being disregarded.
20. At article 31, after paragraph (2) five new paragraphs are introduced, paragraph (21) (25) with the following content:
(21) In the event in which both parents exercise parental rights, but do not live together, the important decisions, such as those regarding the choice of type of education or professional trening, complex medical treatments or surgical operations, child's residence of goods' administration are made only with the consent of both parents.
(22) In the event in which, from whatever reason, a parent does not express his will in making the decisions provided at paragraph (21), these are made by the parent with whom the child lives, except when this thing contradicts with the child's higher interest.
(23) Both parents regardless of the fact that they exercise parental authority have the right to request and receive information about the child, from school units, health units or any other unit that comes in contact with the child.
(24) A parent cannot give up his parental authority, but he can make a deal with the other parent regarding the method of exercising parental authority in the conditions of article 506 from the Civil Code.
(25) Valid reasons, so that the Court can rule that parental authority can be exercised by one parent, are considered alcohol, psychic illness, the other parent's drog addiction, violence against the children or against the other parent, the convictions for huma trafficking, drog traffic, crimes regarding violence, as well as any other reason tied up to the risk for the child, which can arrise from the exercise of the parental authority by the other parent.
21. At article 35, paragraph (4) is modified and will have the following content:
(4) The plan of services has as an objective, preventing abuse, negligence, exploitation and other form of violence against the child or separating the chidl of his family. To this extent, the public service of social assistance or, as the case stands, the generale directorate of social assistance abd child protection from the level of each sector in Bucharest, has the obligation to offer services and performances meant to maintain the child in the family and to support the child's access and his family to other services.
22. At article 44, paragraph (2) is modified and will have the following content:
(2) The parents or, as the case stands, legal guardians, have the responsability to ensure the best life conditions necessary to the growth and development of the child, the parents are obligated to ensure the child with residence, as well as the necessary conditions for nursing, education, teaching, professional training, as well as a healthy life environment.
23. At article 46, after paragraph (2) a new paragraph is introduced, paragraph (21) with the following content:
(21) In view of ensuring the access to education, recovery and reabilitation, the child with disabilities can be taught in another county/district of Bucharest, other then the one in which he lives, by supporting the expenses from the budget of the county/district in which the school unit is found.
24. After article 46 a new article is introduced, art. 461 with the following content:
Art 461 – (1) The child with disabilities benefits from free medical assistance, including free medication, both for the ambulatory treatment as well as during the admittance in the hospital, within the sistem of health insurance, in the conditions established by the framework contract.
(2)The parent or the legal guardian has the right the respect and/or follow the services provided in the recovery plan for the child with disabilities enclosed in degre of disability.
25. At article 48, paragraphs (2) and (4) are modified and will have the following content:
(2)Within the instructive-educational process the child has the right to be treated with respect by the teachers, the secondary staff and the administrative one and to be informed concerning his rights, as well as how to exercise them. The corporal punishments or other degrading treatments within the instructive-educational process are forbidden.
(4) The teachers have the obligation to report to the county centers of resources and educational assistance/Center of Bucharest city of Resources and Educational Assistance the cases of abuse, negligence, exploitation and any other form of violence against the child and to point aut to the public service of social assistance or, as the case stands, to the general directorate of social assistance and child protection, these cases.
26. At article 51, paragraphs (2) and (3) are modified and will have the following content:
(2) At the young man's request, expressed after achieving his full capacity of exercise, if he continues his studies once in each form of full-time stufy, special protection is granted, within the conditions of the law, during the entire period of sutdies, but without exceeding the age of 26
(3) The young man who has obtained full capacity of exercise and had benefited of a special protection but does not carry on with the studies and does not have the possibility of returning to his own family, being faced with the risk of social exclusion, benefits, upon request, for a period of 2 years of special protection, with the purpose of facilitating his social integration. This right is lost if it can be proven that the young man was offered a job and/or a place to sty at least twice , and he turned them down or lost them for his reasons only.
27. Article 54 is modified and will have the following content:
Art. 54 – (1) General directorate of social assistance and child protection has the obligation to compile the personalized plan, within 30 days after receiving the request of instauration of a special protection measurement or immediately after the executive of the general directorate of social assistance and child protection has disposed a emergency regime placement.
(2)In the situation of the child for which the custody was established, the provisions of paragraph (1) are not applicable.
(3) To the establishing of the objective of the personalized plan priority is granted to the child's reinstatement within the family, and if this is not possible it will proceed to opening the internal adoption procedure.
(4) The child's reinstatement within the family as an objective of the personalized protection plan is established by mandatory consulting the parents and members of the extended family which could not be found.
(5) The opening of the internal adoption procedure is realized within the conditions of the special law, the adoption as an objective of the personalized protection plan being established without consulting parents and members of the extended family.
(6) The personalized protection plan can provide the child's placement within a residential type service, only in the case in which the custody could not be established or the placement within the extended family was not possible, to a caregiver, or to another person or family, within the conditions of this law.
28. At article 56, letter d) is modified and will have the following content:
d) the child found or the child abandoned in health units;
29. Article 62 is modified and will have the following content:
Art. 62 – (1) The parental rights and obligations towards the child are maintained during the entire period of placement measurement disposed by the commission for child protection.
(2) The parental rights and obligations towards the child are maintained during the entire period of placement measurement disposed by the Court in the event of the child provided at art. 56 letter b) and e), when there is no consent from the parents or, as the case stands, from one of the parents, to establish this measurement, if in view of respecting the child's higher interest the Court does not dispose otherwise, according to the case's circumstances.
(3) Parental rights and obligations towards the child, during the entire period of the placement measurement disposed by the Court and in the event of the child provided of art. 56 letter a), as well as in the event of the child provided in art. 56 letters c) and d) are exercised by the executive of the general directorate of social assistance and child protection.
(4) The provisions provided by the laws in force regarding the parents normal right to consent to chils adoption are applied accordingly.
30. Article 63 is modified and will have the following content:
Art. 63 – (1) The commission for child protection or, as the case stands, the Court that has disposed the child's placement in the conditions of this law, will establish, if it is necessary, the quantum of the monthly contribution of the parents in maintaining the child within the conditions established by the Civil Code. The amounts thus cashed are considered income to the county's budget, respectively to the district of Bucharest city, from where the chil dis.
(2) If the payment of contribution to the child support is not possible, the Court obligates the parent fit for work to do 20-40 hours monthly for each child actions or works of local interest, during the period of application of the special protection measure, across the territorial-administrative zone where he stays or lives.
(3) The actions and works provided at the paragraph (2) are included in the plan of actions or works of local interest, compiled according to the provisions of the law in force.