Access to Justice for Children with Mental Disabilities in Autori: Ieva Leimane-Veldmeijere, Annija Mazapša, Santa Skirmante This report has been written as part of a project, co-funded by the Fundamental Rights & Citizenship Programme of the European Union, on “access to justice for children with mental disabilities.” The report has been prepared based on the opinions of its authors, which in no way reflect the official opinions of the European Commission.

Project has been funded by the European Commission – project No. JUST/2011/FRAC/AG/2799, «Access to Justice for Children with Mental Disabilities», the lead partners - Mental Disability Advocacy Center (Hungary) and University of Leeds (Great Britain). The co-funding for RC ZELDA was provided by Soros Foundation-Latvia. Contents Preface ...... 4 Study Methodology ...... 5 Introduction ...... 8 1. Support mechanisms for accessing individual redress for children with mental disabilities ...... 9 2. Access to justice for children with mental disabilities in cases involving issues about where or with whom a child with mental disabilities should live, including situations of family breakdown, adoption, care proceedings with outcomes such as entry into institutional or foster care, and deinstitutionalisation processes ...... 17 3. Children with mental disabilities and their right to participate and right to be heard in proceedings regarding where or with whom a child with mental disabilities should live ...... 20 4. Children with mental disabilities and their right to object to decisions on their placement in out-of-family care, long-term social care and social rehabilitation institutions ...... 27 5. Access to justice for children with mental disabilities in cases involving questions about where or how a child with mental disabilities should be educated ...... 33 6. Access to Justice for Children with Mental Disabilities in Administrative and Criminal Cases ...... 40 7. Training of specialists on the rights of children with mental disabilities in Latvia.. 48 Recommendations ...... 53 Authors ...... 54 Preface

In the period from May 2013 to May 2015, the “Resource Centre for People with Mental Disability “ZELDA”” (hereinafter RC ZELDA) in collaboration with nine other European Union member states1 conducted an EU-funded study on access to legal assistance resources for children with mental disabilities (both children with intellectual disabilities and children with mental illnesses). The study evaluated access for children with mental disabilities to out of court legal assistance resources as well as in administrative, civil and criminal cases.

As part of the study, RC ZELDA’s researchers gathered information on the extent to which persons with mental disabilities have access to the legal system in administrative, civil and criminal cases. The researchers sought examples of both good practice and problem areas, including those arising from decisions about places of residence and education for children with mental disabilities. Research was also conducted about cases where children with mental disabilities have been victims, witnesses or possible perpetrators of crimes.

In the course of the study, RC ZELDA’s researchers– Ieva Leimane-Veldmeijere, Annija Mazapša and Santa Skirmante – prepared a number of reports about special education options and children’s rights as well as access to legal assistance for children with metal disabilities:

1. Resolving access and quality issues in education;

2. Making decisions about children’s places of residence;

3. Resolving issues where children with mental disabilities have been victims, witnesses or possible perpetrators of crimes.

Based on all of the project reports, in the spring of 2015 RC ZELDA prepared an abridged version of the national report, which is available in Latvian and English at the RC ZELDA website – http://www.zelda.org.lv.

RC ZELDA would like to thank everyone who assisted the study by providing information, granting interviews and/or taking part in focus groups. We are also grateful to our project partners – through discussions and exchanging ideas we frequently discovered useful ideas and solutions.

Ieva Leimane-Veldmeijere

RC ZELDA Director

1 Bulgaria, Czech Republic, Hungary, Ireland, Lithuania, Romania, Slovenia, Spain, UK

4 Study Methodology

The study in Latvia was conducted in three stages from August 2013 to mid-April 2014. The first stage involved a desk-based review of information in the public domain on law, policy and media reports. During the second stage researchers conducted a more detailed investigation, including contacting state and municipal bodies for information unavailable publically. The third stage consisted of primary empirical research including interviews and focus groups with parents of children with mental disabilities and justice professionals who come into contact with such children.

The following research methods were used:

1) 13 face-to-face semi-structured interviews (conducted in the period from 19 February to 13 March 2014).

-- 1 interview with a judge from the Administrative District Court;

-- 1 interview with a representative of the Ombudsman’s Office;

-- 1 interview with 3 representatives from the State Inspectorate for the Protection of Children’s Rights;

-- 2 interviews with heads of orphans’ courts;

-- 2 interviews with parents of children with mental disabilities;

-- 2 interviews with psychologists (one is working for an orphans’ court and also has a private practice; the other has a private practice and is also working for a municipal Pedagogical Medical Committee);

-- 1 interview with a sworn attorney specialising in family law;

-- 1 interview with a municipal police officer (a psychologist by education);

-- 1 interview with a special pedagogue and representative of a municipal Pedagogical Medical Committee (assessing children and deciding on the most suitable education program for the child);

-- 1 interview with 2 representatives of a municipal social services department.

Written consent was obtained prior to starting each interview. All interviews were tape recorded for transcription, except for two: one person declined to have the conversation recorded, while another was recorded only partially. In both cases, the interviewers made extensive notes. All taped interviews were transcribed in full. A semi-structured interview method was used and most interviews were one to two hours long with two exceptions when the interviews took nearly three hours.

The interviews were conducted by researchers I.Leimane-Veldmeijere, S.Skirmante and A.Mazapša. The researchers selected specialists to be interviewed during internal brainstorming, but some candidates were suggested by interviewees during the interviews. Thus purposive sampling was combined with snow-ball sampling to ensure a range of interviewees. Interviews were carried out in the capital city , and during two field trips to Liepāja (on 5 March) and to Cesis and Krimulda (on 6 March).

In order to find parents for interviews and focus groups, RC ZELDA applied to the NGO – Velki Foundation, which is active in organising and running parents’ support groups throughout Latvia. An explanatory e-mail about the study was sent to Velki Foundation requesting that parents contact the researchers if they would be interested to give a face-to-face interview or to participate in the focus group discussion. In total 7 parents contacted RC ZELDA, of whom

5 6 expressed interest in coming to the focus group discussion, but since not everybody could attend the focus group, one parent was visited during a field trip (about 220 km from Riga). In the end due to various reasons only 3 parents came to the focus group organised on 27 February, while additionally 2 parents were interviewed separately.

2) Written requests-questionnaires: a) written questionnaires (including questions on statistics and methods of work) were mailed to 38 Municipal Administrative Commissions (including 9 Republic cities and 28 municipalities with populations greater than 10,000) to establish their practice in applying compulsory measures of a correctional nature. The method was used from 6 January 2014 to 31 March 2014. In total 26 answers were received. b) written questionnaires (including questions on statistics and on methods of work) were mailed to 61 orphans’ courts on 23 February – 27 answers were received by31 March.

As the publically available annual reports of the orphans’ courts do not provide any data about children with mental disabilities or reflect the number of family proceedings involving children with mental disabilities or parents with mental disabilities, RC ZELDA decided to draft detailed a questionnaire to obtain data essential for this research. The data was gathered between 23 February and 31 March 2014 and covered the period from 2009 – 2013. The questionnaire comprised 4 sections with sub-questions. The main four sections concerned: protection of the rights of the child (including children with special needs and children with mental disability); issues related to parental rights (including cases involving children with mental disabilities or parents with mental disabilities); results of the orphans’ court activities (how many family proceedings each year involve children with mental disabilities or parents with mental disabilities) and the orphans’ court’s methods of working with children with mental disabilities.

The orphans’ courts were selected by the following method: 10 orphans’ courts with municipality populations below 5 000 inhabitants; 12 orphans’ courts with municipality populations below 10 000; and 39 orphans’ courts (including all Republic cities’ orphans’ courts) with municipality and city populations above 10 000. In total 27 answers were received.

This method was the only way how to get more statistical data and more information on the working methods of orphans’ courts. However it was not as successful as planned, as we did not get answers from all the selected respondents. After sending the written information requests several orphans’ courts called the ZELDA office and asked why they had been selected as respondents; which other orphans’ courts had been asked to provide answers; what the researchers hoped to gain from receiving such data (several orphan’s’ courts emphasised that they have equal approach to all the children regardless of their disability and that the same methods are used in work with all the children, including children with mental disabilities). Some of the orphans’ courts were initially very negative, but they admitted that they face problems and they would be interested in some guidelines and training on methods of working with children with mental disabilities (i.e. communication methods, how to find out the opinion of a child with mental disabilities etc.).

3) Focus group discussions:

Two focus groups were organized – one with parents of children with mental disability (on 27 February 2014), and the other with specialists(on 25 March 2014).

All three participants of the focus group with parents came from different regions of Latvia, thus helping the researchers to compare experiences between parents representing different regions.

The focus group with specialists (from the Ombudsman’s office, the Children’s Rights Protection Inspectorate, Riga Orphans’ Court, Ministry of Justice, Ministry of Welfare and the Welfare Board of Riga Municipality) was attended by 9 participants (representing 6 public agencies). This focus group discussion covered 4 types of questions: lack of data on children with mental

6 disabilities; methods of establishing the child’s opinion; access to justice for children with mental disabilities (e.g. if a child is informed about where to look for assistance); and the lack of a unified support system for families taking care of children with mental disabilities.

Written consent was obtained from each participant prior to starting each focus group discussion. Both focus group discussions were tape recorded for transcription and both discussions were transcribed in full.

4) Media analysis

Published articles, interviews in media and video recordings (available on YouTube) were reviewed and analysed for the period January 2008 to the end of March 2014. Although this was not the main research method used, some of the relevant media information was used in the research report.

5) Internet survey of judges - one internet survey for judges was organised in the period from March 21 to March 28, 2014, representing in total 34 courts. Because district (city) courts are the first instance courts that deal with all the cases and evaluates all evidence in proceedings, it was decided to involve only these courts in the survey. Only some judgements are appealed to the regional courts and they make rulings based on the materials and statements gathered during the trial in the first instance. Thus the participation of children in the court sessions of regional courts is less likely. The questions mainly related to the opinion of the child and education of judges on the rights of the child. Only 12 judges provided answers for the survey.

7 Introduction

In each type of proceedings there are separate rules that are applicable to juveniles. Nonetheless there is no there is no clear concept about how the process should be carried out. There is no clear definition of juvenile justice and no clear philosophical understanding that would helpto develop clear and understandable system.2 All children are regarded equal before the law and thus no specific regulation exists in relation to children with special needs and especially children with mental disabilities.3

Thus there is also no specific court system that would be created specifically for children and deal only with issues related to children (or family). All the cases are reviewed by general courts, i.e., in the same courts were cases of adults are reviewed. Although there are Orphan’s courts, that deal also with issues related to children, nonetheless they cannot be seen as body of justice system as they are not independent (these are municipal institutions).

According to the general rules, if the child has reached 7 years of age, he/she may be responsible for delicts (unauthorized actions because of which some damage is done to other person or his/her property) under the civil law. Parents will be held accountable for the actions of the child as they are legal representatives of the child before the law and they have an obligation to look after their child4. In criminal and administrative cases the child can be held accountable for violations starting from 11 years of age. Nonetheless he/she cannot be punished for illegal actions. Only limited number of compulsory measures of correctional nature5 can be applied and they cannot be related to restriction of freedom. If the child has reached 14 years of age, he/she may be held accountable for committed administrative violation or crime and punishment may be placed upon a child – even restriction of freedom.

During the research it was established that because children lack legal capacity, they cannot have legal standing before the court. They always will be represented by parents or trustees.

2 A.Judins, Juvenile Justice System in Latvia: Insight into Good Practice and Problems of Reforms of Juvenile Justice, p.15 (information available only in Latvian) - http://politika.lv/article_files/2503/original/judins. pdf?1382680126 (10.04.2015) 3 The only exception is specific article in Criminal Procedure Law which will later be described in much more detail. 4 Not just to take care of the child and raise him/her, but also prevent illegal actions of the child in order to prevent damage to interests and rights of other persons. When child reaches 18 years of age, he/she gains also legal capacity and thus is legally responsible for all the actions him/herself. 5 The Law on Compulsory Measures of a Correctional Nature, enacted on 31 October 2002, entered into force on 1 January 2005, last amendments made on 12 May 2010 (altogether 6 amendments) – http://www.vvc.gov.lv/advantagecms/LV/meklet/meklet_dokumentus. html?query=Law+on+Compulsory+Measures+of+a+Correctional+Nature&Submit=Mekl%C4%93t &PerPage=10 (translation in English with amendments made till 17 March 2005) or http://www.llikumi.lv/doc.php?id=68489 (text in Latvian with all latest amendments) (10.04.2015)

8 1. Support mechanisms for accessing individual redress for children with mental disabilities

In order to answer the question if a child with mental disabilities has access to individual redress one should ascertain whether any support mechanisms are available for children with mental disabilities in Latvia.

The Article 110 of the Constitution of the Republic of Latvia states that the State should provide special support to disabled children, children left without parental care or who have suffered from violence. Unfortunately, internal regulations do not treat children as a separate group with specific needs or take into consideration the age and development levels of children, thus the regulations are not easily implemented.6

A child with special needs has the same right to an active life, the right to develop and acquire a general and professional education corresponding to the physical and mental abilities and desires of the child, and the right to take part in social life, as any other child.7 According to Article 2 of the Protection of the Rights of the Child Law “a child as a physically and mentally immature person has the need for special protection and care”. Further Article 10 part two recognises that “a child with physical or mental disabilities also has the right to everything that is necessary for the satisfaction of his or her special needs”.

According to the Protection of the Rights of the Child Law the protection of the rights of a child in Latvia are ensured by parents, guardians, foster family; educational, cultural, health care and child care institutions; state institution and local authorities; public organizations and other natural or legal persons whose activities are related to the support and assistance to children; employers. Protection is ensured by children’s organizations and the family8.

Availability of support mechanisms for children with mental disabilities for accessing individual redress can be tested through the following criteria:

{{describing what steps have been taken to make it available and accessible to children with mental disabilities including when living in institutional or community settings;

{{describing how children with mental disabilities are informed about their rights and procedures to use these support mechanisms;

{{providing evidence of the extent to which the support mechanisms have been used by children with mental disabilities themselves, including when living in institutional or community settings or by their parents or guardians on their behalf;

{{if evidence exists of the satisfaction or otherwise of children with mental disabilities and/or their parents or guardians with using the support mechanism.

Helplines, NGOs, legal aid clinics, monitoring bodies, and children’s rights protection institutions were analysed with regard to their accessibility and effectiveness for children with mental disabilities:

{{The children’s and adolescents’ Hotline number 116111 is available free of charge 24/7 (from 1 March 2015) and provides psychological assistance and help in crisis situations. The State Inspectorate for Protection of Children’s Rights9 runs this helpline. There are also e-consultations 6 Ombudsman of the Republic of Latvia [Latvija Republikas Tiesībsargs], Annual Report on the year 2012 by Ombudsman of the Republic of Latvia, p.17, available in English at : http://www.tiesibsargs.lv/files/content/english/ Tiesibsarga%20gada%20zinojums_2012_ENG.pdf, (10.04.2015.) 7 Protection of the Rights of the Child Law, [Bērnu tiesību aizsardzības likums], (adopted by the Saeima 19.06.1998), Article 54, available at: http://likumi.lv/doc.php?id=49096, (10.04.2015) 8 Protection of the Rights of the Child Law, [Bērnu tiesību aizsardzības likums], Article 5, available at: http://likumi. lv/doc.php?id=49096, (10.04.2015.) 9 Bērnu un pusaudžu uzticības tālrunis [Children’s and adolescents’ hotline], available in Latvian: http://www.bti. gov.lv/lat/uzticibas_talrunis/?doc=2597&page, in English: http://www.bti.gov.lv/eng/vbta_inspekcija/uzticibas_ talrunis/, (01.11.2013)

9 available for children and adolescents with hearing impairments,10 and in 2012 hand-outs were prepared for distribution at organizations and educational institutions attended by children with hearing impairments, in order to inform them about the availability of psychological assistance and help in crisis situation via e-consultations.11 In 2013 specialists of the Hotline received 91 250 phone calls, of which 11,297 or 12% of calls involved providing psychological support and assistance.12 As there is no data regarding the number of children with mental disabilities who have reached the helpline, there is no evidence of the accessibility of this mechanism for children with mental disabilities. The website of the State Inspectorate for Protection of Children’s Rights is available in easy-to-read language, but it is quite difficult to find the easy- to-read version.

{{The Crisis and Counselling Centre Skalbes provides a helpline available 24/7 (numbers 67222922 and 27722292) for adults and children who need emotional support in crisis situations. The centre provides consultations for victims of harassment at work and violence, as well as a number of motivational activities for various social groups including parents with disabled children; persons take caring of sick family members; disabled persons; large families and single parent families, retired and pre-retirement age persons etc. There is no evidence of the accessibility of this mechanism for children with mental disabilities themselves.

{{No NGO can be a legal representative of a child. Therefore no NGO in Latvia is available as a mechanism where any child, including children with mental disabilities, can turn for support directly in making complaints or challenging violations of his/her rights’. The NGO- Centre against Abuse ”Dardedze”13 works to prevent child abuse in Latvia and provides direct help to children exposed to sexual, physical, emotional abuse and neglect. The centre provides support and help when child abuse occurs. If a child is involved in criminal proceedings as a victim or witness of a crime, team ”Dardedze” offers counselling sessions and support to children throughout the process, as well as conducting forensic interviews with child victims/ witnesses of crimes in a child-friendly forensic interview room. The Autism Society of Latvia advocates for children with autism and serves as a platform for people with autism and their parents to support, learn, share and give advice about their experience related to autism14.

{{There is no specific legal aid system, including pro bono legal clinics, supporting children with mental disabilities. However there are legal aid units at the University of Latvia and Business University “Turiba”, where free legal aid is provided by students under supervision of faculty members. During the 2nd phase of the study the Legal Aid Unit of the University of Latvia answered that students mainly provide consultations in labour rights cases, in family rights’ cases and regarding issues of apartments. There [University of Latvia] have been few clients who have mental disabilities or children who have parents with mental disabilities, but such statistical data have never been collected.15 Business University “Turiba” stated that they had no experience in consulting children in general, as well children with mental disabilities.

{{NGO support in litigation is very limited. The most well-known NGO which is active in the mental disability advocacy field and providing free legal aid, including legal representation in strategic litigation, is the Resource Centre for People with Mental Disability ZELDA.16 RC ZELDA provides free legal aid to people with mental disabilities (including people with intellectual disability and/or people with psychosocial disability) and in many cases also to 10 E-consultations for children and adolescents with hearing impairments available only in Latvian, http://www. bti.gov.lv/lat/uzticibas_talrunis/e-konsultacijas_vajdzirdigiem_un_nedzirdigiem_berniem_un_pusaudziem/ (01.11.2013) 11 Bērnu un pusaudžu uzticības tālruņa 116111 atskaite par darbu 2012. gadā (Available only in Latvian) [Families with Children Support Department Children’s and Adolescents’ Hotline 116111 Activity Report 2012], p.12, http:// www.bti.gov.lv/lat/zinas_par_iestadi/parskati_un_atskaites/?doc=3208&page, (28.10.2013) Latvian Save the Children, http://www.rnc-rtb.lv/ (10.04.2015) 12 Families with Children Support Department Child and Adolescent Hotline 116111 Activity report 2013, p.2, available at: http://www.bti.gov.lv/lat/uzticibas_talrunis/?doc=3526&page=1 (10.04.2015) 13 http://www.centrsdardedze.lv/eng/ (10.04.2015) 14 http://www.autisms.lv/index.php/en/about-us (10.04.2015) 15 E-mail from the Legal Aid Unit of the University of Latvia of 14 January 2014 sent in reply to the information request of RC ZELDA. 16Resource Centre for Persons with Disabilities “ZELDA”, available at: http://zelda.org.lv/en/ (10.04.2015)

10 family members, if this is in the best interests of the particular person with mental disability. RC ZELDA mainly assists adults, but if a child or his/her representative were to apply for assistance, such assistance would be granted, since there are no other NGOs which are as strong as RC ZELDA in provision of legal aid particularly for people with mental disabilities.

{{The Legal Aid Administration (LAA)17 ensures legal protection only for low-income and needy persons, and persons with particular situations, property status and income levels considered appropriate for the state guaranteed legal aid. LAA also provides state compensation for persons (victims) who have suffered intentional violent crimes and their health has suffered severe or moderate bodily injury; death of a person or a person suffered sexual offences. The Sate ensures legal aid in Criminal, Civil and Administrative matters. In Criminal matters the State provides an advocate for the representation and defence of a person in criminal proceedings if this is specified in the Criminal Procedure Law. In administrative matters legal aid is limited to cases of granting asylum; in civil matters legal consultations are provided and procedural documents are prepared, and the person can be represented in court. General information about LAA is available in easy-to-read language18. From the annual reports of LAA one can see that they provide legal aid to minors who have been recognized as victims of crimes19, but there is no further information available on other possible legal assistance to children in other type of cases. During the 2nd phase of the study the Legal Aid Administration emphasized that since the State Ensured Legal Aid Law does not specifically specify the following groups of people: children, children with special needs or children with mental disabilities, accordingly the Administration has not carried out particular measures in order to provide state legal aid to the aforementioned groups of people.20 Also LAA does not collect information regarding provided legal aid to lawful representatives of children in general.

{{The State Police emergency number 110 is available 24/7 and all phone calls are recorded. The police are a state-authorised institution with the obligation to protect the life, health, rights and freedoms, property, public and national interests against criminal and other illegal threats. Rights and legitimate interests are protected regardless of nationality, social, financial and other status, race and national origin, sex and age, education and language, religious affiliation, political and other convictions. Thus any child can turn directly for help to the State Police. The State Police does not collect information regarding phone calls or applications received from children in general. Unfortunately the State Police web-site is not available in easy-to-read language; general language and its structure is complicated from the perspective of any child, and especially children with mental disabilities.21

If a child with special needs has been conveyed to the police, there should be ensured the conditions for fulfilling the special needs of the child.22 With regard to children with disabilities who have been conveyed to the police, a police officer has the obligation to invite a psychologist if communication difficulties with the child have occurred.23 Additionally from 04.07.2013 there is a direct requirement for police officers to have expertise in the field for the protection of the rights of the child in communication with any child who is conveyed to a police station.24 17 Legal Aid Administration [Juridiskās Palīdzības administrācija], Information on the Authority, available in English at: http://www.jpa.gov.lv/par-mums-eng (10.04.2015) 18 Legal Aid Administration [Juridiskās Palīdzības administrācija], Easy-to-read, available in English at: http://www. jpa.gov.lv/viegli-lasit-eng (10.04.2015) 19 In 2009 the Legal Aid Administration received 144 applications from representatives of minors requiring compensation for victims of crime: data from interview with Ms. Irina Ļitvinova, director of the Legal Aid Administration, the interview has been published in the portal www.lv.lv, published on 02.12.2010, available in Latvian at: http://www.lvportals.lv/viedokli.php?id=222091 (10.04.2015) 20 Letter of Legal Aid Administration (LAA) No.1-6.2.2014g/13/1 of 14 February 2014 provided as a reply to the information request sent to LAA by RC ZELDA on 15 January 2014. 21 State Police, available at: http://www.vp.gov.lv/?id=511&said=511&r=1 22 Law on Protection of the Rights of the Child, Article 59, part five 23 Cabinet of Ministers Regulation “Procedures how police ascertain whether the child has special needs, invite competent professionals and provide conditions for the child’s special needs” [Kārtība, kādā policija noskaidro, vai bērnam ir īpašas vajadzības, pieaicina kompetentu speciālistu un nodrošina apstākļus bērna īpašo vajadzību apmierināšanai], point 5., available only in Latvian at: http://likumi.lv/doc.php?id=266339 24 Amendments to the Law on Protection of the Rights of the Child in force 04.07.2013, published in “Latvijas Vēstnesis”, 118 (4924), 20.06.2013 – (available in Latvian), Article 59 part four, http://m.likumi.lv/doc. php?id=257679 (01.11.2013)

11 Expertise is required in the following topics:

1. the system and laws regarding the protection of the rights of the child;

2. application of international legislative acts in the protection of the rights of the child;

3. the rights and duties of parents and children;

4. violence against a child, the types and indications thereof, inter-institutional co-operation if violence has occurred; and

5. the basic principles of communication in correspondence with the specifics of the child’s age group.

During the interviews with representatives of municipal social services, the Ombudsman’s Office, the State Inspectorate for the Protection of Children’s Rights, several heads of orphans’ courts, parents of children with mental disabilities, two psychologists and a family law advocate, all interviewees indicated that the State Police is not effective in protecting children with mental disabilities, despite their broad mandate to initiate immediate action, collect evidences, question witnesses, invite experts etc. Several of interviewees admitted that effectiveness can be seen in cases of severe violence or in the worst case if a child has died, and when no one doubts that a crime has been committed; otherwise nothing happens or it is too late and no criminal proceedings are initiated. Several reasons for this where mentioned, such as lack of staff, excessive workload, inadequate salaries and lack of appropriate equipment.”25

{{The State Inspectorate for the Protection of Children’s Rights (the inspectorate) is an institution which provides supervision and control of the observance of law in the field of protection of the rights of the child and of orphan’s courts’ activities26. Inspectors have the right to conduct negotiations and to interview children without the presence of other persons. The main duties of the inspectorate are to examine state or local government bodies, non-governmental organizations or other natural and legal persons, and on the basis of the examination results make recommendations to prevent abuses; provide administrative violation proceedings; provide advice and psychological support to children in crisis situations; compile statistical data gathered about children’s rights; and make legislative proposals to improve the situation of children’s rights.

During the study it was concluded that this is one of the most effective mechanisms for the protection of the rights of the child, including children with mental disabilities due to its broad mandate to visit and examine any place where children reside, due to its power to provide administrative violation proceedings and expertise in the field of the protection of the rights of the child. During the empirical research phase the inspectorate confirmed that the majority of all received complaints are within the scope of the administrative proceedings to review orphans’ courts’ decisions or orphans’ courts’ actual action and whether this complies with the rights and interests of the child. Firstly they examine whether the child’s opinion was assessed. If not – what was the reason? In most of the cases this is due to age i.e. very young children or infants, while infrequently the child’s opinion could not be assessed because the child resides in another country. But there has never been a case where the reason was the child’s disability, however an exception could be when a child suffers from severe mental disability, when assessment of the child’s opinion or view is more difficult or impossible to ascertain.

Regarding possible options for making complaints in social care institutions for children with mental disabilities, for example the opportunity to make a safe phone call in order to find the support or to ask for help, the inspectorate was confident that nowadays every child has a personal mobile phone and they all know the number of the children’s hotline. 25 Focus group discussion with representatives of state and municipal agencies responsible for protection of children’s rights held on 25 March 2014. 26 The State Inspectorate for the Protection of Children’s Rights, available at: http://www.bti.gov.lv/eng/vbta_ inspekcija/links/ (10.04.2015)

12 Regarding received complaints from children with mental disabilities or calls asking for help, the inspectorate admitted that children with mental disability mostly do not complain. The inspectorate acknowledged that for this reason the risk of violence and sexual abuse are even higher. Therefore during 2014 the inspectorate with the assistance of “Dardedze” within the programme “Identifying risks of sexual abuse for children with mental disabilities” carried out analytical research of possible risks of sexual abuse in 5 boarding schools. The reason of evaluating boarding schools for children with mental disabilities was that these schools are closed institutions and children are living, eating and sleeping there for a longer period of time. Thus sexual abuse risks are higher in boarding schools than they are in mainstream schools, and even higher than in social care institutions where children go to school out of institution premises. This study confirmed that there are indeed higher risks. Additionally a special training programme was introduced for all personnel in boarding schools to help identify and reduce the risks of sexual abuse. The training which was financed by the State was carried out at the premises of each boarding school to eliminate the risks of common practice. One of the goals of this programme was that the majority of involved personnel would receive this training to initiate changes. There are around 40 special boarding schools in Latvia for children with mental disability, but funding was only provided for running this program at 5 schools”.27

The inspectorate has never conducted informative campaigns for children with mental disabilities living in institutional settings, or for children using alternative communication methods about where to turn for help or to make a complaint. Representatives of the inspectorate described how they receive information about the extent of children’s (all children) awareness of their rights and their knowledge of where they can safely turn to make a complaint. The inspectorate conducts thematic inspections during which it interviews children. The children are asked if they have the possibility to call for help or assistance if anything has happened in their institution, whether they know where to call, or whether know a particular institution or social work specialist. During the interview the representative of the inspectorate said:

“We [the inspectorate] have never received the answer that they [children] do not know where to turn for a help. We [the inspectorate] also ask whether they have ever turned for help to municipal social services or an orphans’ court. In most cases the answer is no. No, because there was no need for help. But they all knew about the Children’s hotline.”

There is no statistical data available on the number of children with mental disability living in institutional settings with a mobile phone, having access to a phone or access to a separate room for phone conversations. There has been no further research on the reasons why children do not choose to call for assistance to the municipal social service or the orphans’ court.

“Different methods are applied for children with mental disability and who are not able to communicate via phone or use any alternative communication methods. These methods were developed together with an NGO – the Latvian Movement for Independent Living.28 The methods help to ascertain whether a child has received adequate medical treatment, rehabilitation services, sufficient food and water; if the child’s rights are respected, the condition of child’s body, level of comfort. These methods are based on observation. These children have severe mental disabilities, they do not communicate verbally and these are specialized institutions, therefore everything is based on observations during two days – all 48 hours. The first monitoring visit to these specialised institutions was carried out 2 years ago and we [the inspectorate] issued various recommendations. And now after follow up inspections we can see that the situation has improved.”29

{{The Ombudsman of the Republic of Latvia is an independent state institution that aims to protect the rights and legal interests of a person against acts or omissions by State and 27 Interview with the representatives of the State Inspectorate for Protection of Children’s Rights on 21 February 2014. 28 Latvian Movement for Independent Living, http://www.lkndz.lv/en/?n=about_us (17.03.2014) 29 Interview with the representatives of the State Inspectorate for Protection of Children’s Rights of 21 February 2014.

13 municipal authorities breaching human rights, including the rights of children and the rights of persons with special needs.

The competences of the Ombudsman regarding the rights of children are:

□□ informing the public about the rights of children;

□□ examining complaints regarding violations of the rights of children, paying particular attention to violations committed by State or local government institutions and the employees thereof;

□□ submitting proposals which promote the observance of the rights of children;

□□ drafting recommendations to promote the observance of the rights of children;

□□ investigating circumstances of the potential infringements of human rights and the principle of good governance.

The Ombudsman has the right to request and receive any documents necessary for a verification procedure; to visit institutions in order to obtain the information necessary for a verification procedure; at any time and without a special permit to visit closed-type institutions, to move freely within the territory of these institutions, to visit all premises and to meet in private the persons held in closed-type institutions; to hear the opinion of a child without the presence of his or her parents, guardians, employees of educational or childcare and instructional institutions, if the child so wishes; to initiate a verification procedure on his or her own initiative.

In its Annual Report of 201230 the Ombudsman of the Republic of Latvia included a chapter on the Implementation of the Rights of Children at Psychiatric Hospitals. In other words, implementation of the rights of children at psychiatric hospitals (hereinafter referred to as the hospitals) was among the priorities of the Ombudsman in 2012. Representatives of the Ombudsman’s Office repeatedly visited all psychiatric hospitals eligible to accommodate children: “VSIA “Bērnu psihoneiroloģiskā slimnīca “Ainaži””, VSIA “ psihoneiroloģiskā slimnīca”, VSIA “Ģintermuiža”, VSIA “Bērnu klīniskā universitātes slimnīca” in Gaiļezers, VSIA “Piejūras slimnīca”, and VSIA “Rīgas psihiatrijas un narkoloģijas centrs”.

During visits to hospitals, staff of the Ombudsman’s Office evaluated the activities undertaken to improve the situation of the rights of children and, inter alia, verified implementation of the Ombudsman’s recommendations sent to the hospitals in 2011.

The Ombudsman highlighted the key issues in the hospitals: “First of all treatment of children separately from adults: accommodation of the children in wards of the hospitals together with adult individuals imposes restrictions on the right of the children to be placed under particular protection by the State. Hospitals have to take appropriate steps to ensure protection of rights of all the children accommodated in the hospital. It was identified during the visits to hospitals in 2012 that the practice of referral of adolescents to adult wards continued in separate cases. It was identified during the visits to hospitals in 2012 that a number of hospitals have established new or improved the internal regulations for patients. Unfortunately, internal regulations have not treated children as a separate group with specific needs, taking into consideration the age and development level of children, regulations are not easily perceptible. Accordingly, there are doubts whether sufficient and clear information is provided to the children or their lawful representatives about the order established in the hospital and legal remedies in the event of potential infringement of rights (for example, rules of behaviour, procedure for visiting patients, procedure for examination of complaints etc.). Certain hospitals have imposed an overall prohibition for the children to meet their friends, although information was received that this prohibition is applied in practice when there is a suspected threat. When performing 30 Ombudsman of the Republic of Latvia [Latvijas Republikas Tiesībsargs], Annual Report of 2012 by Ombudsman of the Republic of Latvia, p.18, available in English at: http://www.tiesibsargs.lv/en/research-and-publications/gadazinojumi, (10.04.2015)

14 their duties, the hospital staff may become aware of eventual infringements of the rights of children outside the hospital. According to Section 73 of the Law on Protection of the Rights of Children, the involved individual has the duty to notify the police, orphans’ court or other authority responsible for protection of the rights of children on the same day of any violence towards a child, or any infringement of or other threat to the rights of child. The present practice of hospitals to involve in handling of the potential infringements of the right of children and to cooperate with competent authorities of the child’s place of residence, deserves appreciation, however, the actions might be more active. For example, if the child is accommodated in the hospital due to escaping from a child care institution, the hospital should notify the orphans’ court of the child’s place of residence of possible breach of the rights of the child in the care institution.”31

The Orphans’ courts are guardianship and trusteeship institutions32 which ensure the protection of the rights and legal interests of children or other persons lacking capacity to act.33 Orphans’ courts’ activities are supervised by the State Inspectorate for Protection of Children’s Rights.34 Orphans’ courts settle disagreements between parents on issues related to the care and custody of a child and, where necessary, make a decision, settle disagreements between a child and its parents or guardians, as well as between the guardian and the parents of a child35. Disagreements regarding the determination of the place of residence of a child are reviewed by the district courts. Orphans’ courts have a broad mandate to ensure that any child including those with mental disabilities can turn for support to the local orphans’ court in making a complaint or challenging a rights violation36. Orphan courts also have the obligation once a year to inspect and verify the care for children placed in child care institutions (institutions of long-term social care and social rehabilitation)37. Therefore once a year this mechanism is also available for children with severe mental disability living in institutional and community settings who are not able to use communication methods via the phone, internet or a written application.

Each year orphans’ courts have the duty to permanently supervise the actions of a guardian in ensuring the personal and property rights and interests of a child inter alia by inspecting the living conditions of a ward in the family of the guardian each year38. During these visits representative of the orphans’ court draws up a protocol of the conversation clarifying the child’s view, whether the child has relatives, whether they maintain any contacts with the child, living conditions, list of personal belongings, respect for the child’s rights and duties, possible out of family care types, assessment of the child’s preferences, interests etc.

In 2014 broad discussions started in Latvia’s media39 about the legal status of orphans’ courts40, their mandate, procedural rights, legal consequences, possible consequences after intervention in family life for all family members (especially children), the length of appeal proceedings, parents’ ability to provide evidence, accessibility of legal aid and appropriate social assistance. Thus new amendments are expected to the Law on Orphans’ Courts.

During the focus group discussion the representative of the orphans’ court noted that the orphans’ courts should be the last resort for any child who is seeking help as their activities are often harsh interventions into family life in situations where no other support or help is available for the protection of the child’s rights. Support and help for affected family comes primarily local 31 In 2013 employees of the Ombudsman’s Office carried out inspections of compliance with the rights of the child in all the hospitals to become familiar with the measures taken for improvement of the situation. 32 Law On Orphans’ Courts [Bāriņtiesu likums], (adopted by the Saeima 22.06.2006), Article 2, available at: http://likumi.lv/doc.php?id=139369, (10.04.2015) 33 Law On Orphans’ Courts, Article 4, part two 34 Law On Orphans’ Courts, Article 5 part one 35 Law On Orphans’ Courts, Article 19 36 Law On Orphans’ Courts, Article 17 37 Law On Orphans’ Courts, Article 37, part one 38 Law On Orphans’ Courts, Article 31, part one, point 6 39 Media Analysis, Stikane A., 11.03.2014, «Don’t adopt my stolen child!» A mothers experience in London, http://www.la.lv/neadoptejiet-manu-nozagto-bernu%E2%80%A9-mates-pieredze/ (14.03.2014) 40 Media Analysis, Drezins A., 11.03.2014, Latvijas Avīze “The orphans’ court – threat, friend, or supervisor?”, http://www.la.lv/barintiesa-bieds-draugs-uzraugs%E2%80%A9/, (14.03.2014)

15 municipalities and their social work and social services for families with children, children with mental disabilities and families where parents have mental disabilities.

Several representatives of the Orphans’ courts stated that they could avoid taking decisions about removal of custody rights from parents if adequate support from municipal social services would be available for families with children with mental disabilities and for parents with mental disability. For example, if there was a family assistant (only a few municipalities provide this service) who could assist this family not twice a week for a few hours but every day during the first month, than visits could be reduced.

During the research it was discovered that orphans’ courts do not keep any records or statistical data on children with mental disabilities. On February 2014 a questionnaire was sent to 61 orphans’ courts (out of 149 orphans’ courts operating in Latvia). Only 27 municipal orphans’ courts answered, of which only 12 orphans’ courts could provide detailed data about cases involving children with mental disabilities. It was concluded from the answers to the questionnaire that orphans’ courts which choose to communicate with children directly - to inform them about their rights and procedures concerning the child’s place of residence or out- of-family care - could provide more detailed data regarding children with mental disabilities. There were two arguments about the lack of this specific data:

1) legislation of the Republic of Latvia does not require gathering any data about children with mental disability;

2) “We treat all children equally; we do not segregate children with disability”.

The RC ZELDA researchers disagree with the opinion of the Orphans’ courts. This is not a question about discrimination. If data was available about children with mental disabilities, there would be also methods developed on how to work with children with mental disability, how to assess the child’s opinions, and his or her best interests and needs could be more appropriately ensured.

All children have the right to be informed about their rights. However, all orphans’ courts admitted that they do not have any guidelines or methods for working with children with mental disabilities, especially when children do not communicate verbally.

The general principle is that a child should be given the opportunity to be heard in any adjudicative or administrative proceedings related to the child, either directly or through a lawful representative of the child or through a relevant institution41.

To be heard through lawful representatives (parents (adopters), foster family and guardians of a child), and to be heard through a relevant institution (which is reflected as an opinion of the psychologist conducting psychological evaluation/examination42 of a child requested by the court, the orphans’ court, police, prosecutors office and social service) is the most common practise in larger municipalities in Latvia (up to 10 000 inhabitants), where evaluation of the child’s best interests is based more on observations by a psychologist or other specialist (issued in a written form) rather than through direct contact with the child.

An argument made by representatives of orphans’ courts for avoiding direct contact with a child is that this could be too traumatising for the child, therefore there is no need to inform the child about his or her procedural rights directly as there is no duty for the court to invite a child under age 15 to participate in such proceedings. Furthermore, the obligation that the child’s view should be ascertained in all matters related to the child is fulfilled through psychological evaluation; therefore there is no need for direct contact with the child concerned.

Contrary to the aforementioned practice, in larger municipalities different methods are applied

41 Law on Protection of the Rights of the Child, Article 20 part two 42 Law on Protection of the Rights of the Child, Article 5.2

16 than in smaller municipalities (fewer than 5 000 inhabitants) where children are informed about their rights and procedures directly by the representative of the orphans’ court, and the child is given the opportunity to be heard in any adjudicative or administrative proceedings related to the child directly, if the child has expressed his or her will. The child’s view is reflected in the protocol.

The child’s right to freely express his or her opinion in all matters affecting the child is ensured, but in most the cases the child’s opinion is ascertained through involved specialists and representatives of the institution rather than through direct contact with the child.

2. Access to justice for children with mental disabilities in cases involving issues about where or with whom a child with mental disabilities should live, including situations of family breakdown, adoption, care proceedings with outcomes such as entry into institutional or foster care, and deinstitutionalisation processes

There is no provision or legal framework including a reference to disabilities in general or mental disability in particular when determining where or with whom a child should live and cases regarding child’s place of residence. A child with special needs has the same right to an active life, the right to develop and acquire a general and professional education corresponding to the physical and mental abilities and desires of the child, and the right to take part in social life as any other child.43 Article 2 of the Law on Protection of the Rights of the Child Law states that a child as a physically and mentally immature person has the need for special protection and care. Further, Article 10 part two recognises that a child with physical or mental disabilities also has the right to everything that is necessary for the satisfaction of his or her special needs.

According to the Civil Law the right to determine the place of residence of the child is understood as the choice of the geographic place of residence and choice of dwelling.44 In this study the right to determine the place of residence of the child is understood more broadly, as there are cases involving issues about where or with whom a child with mental disabilities should live, including situations of family breakdown, adoption, care proceedings with outcomes such as entry into institutional or foster care, and deinstitutionalisation processes.

In Latvia decisions determining where or with whom a child should live may be reviewed within the scope of civil and administrative proceedings under the Civil Law of the Republic of Latvia, Civil Procedure Law45, Administrative Procedure Law46, Law on Protection of the Rights of the Child47, Law on Orphans’ Courts48 and under the Regulation for the Operation of Orphans’ Courts.49 Regulations for Foster Families states that an orphans’ court, when placing a child into a foster family, has to ascertain the child’s opinion and observe the interests of the child, as well as evaluating whether the foster family can ensure adequate living conditions and care for the child.50

As no written evidence was found regarding the existence of effective support mechanisms for children with mental disabilities for access to justice, it was necessary to ascertain how existing 43 Law on Protection of the Rights of the Child, [Bērnu tiesību aizsardzības likums], (adopted by the Saeima 19.06.1998), Article 54, available at: http://likumi.lv/doc.php?id=49096, (10.04.2015) 44 Civil Law of the Republic of Latvia, [Latvijas Republikas Civillikums], Article 177, available at: http://likumi.lv/doc.php?id=90223, (10.04.2015) 45 Civil Procedural Law [Civilprocesa likums], full consolidated text available in Latvian at: http://likumi.lv/doc.php?id=50500, (10.04.2015) 46 Administrative Procedure Law [Administratīvā procesa likums], full consolidated text available in Latvian at: http://likumi.lv/doc.php?id=55567, (10.04.2015) 47 Law on Protection of the Rights of the Child, [Bērnu tiesību aizsardzības likums], full consolidated text available in Latvian at: http://likumi.lv/doc.php?id=49096, (10.04.2015) 48 Law on Orphans’ Courts [Bāriņtiesu likums], full consolidated text available only in Latvian at: http://likumi.lv/doc.php?id=139369, (10.04.2015) 49 Regulation for the operation of an orphans’ courts No 1037, adopted by the Cabinet of Ministers 19.12.2006 [Ministru kabineta noteikumi Nr.1037 Bāriņtiesas darbības noteikumi], full consolidated text available in Latvian at: http://likumi.lv/doc.php?id=150736, (10.04.2015) 50 Regulations on foster families No1036 [Audžuģimeņu noteikumi], (Adopted by The Cabinet of Ministers on 19.12.2006), paragraph 3, full consolidated version available in Latvian at: http://likumi.lv/doc.php?id=150734 (10.04.2015)

17 legal norms and practices apply to the protection of the rights and interests of children with mental disabilities.

Each orphans’ court has to provide an annual report about its activities to the State Inspectorate for Protection of Children’s Rights. The annual report reflects the orphans’ court’s activates within the scope of its jurisdiction (municipality).51 As the annual reports (publicly available52) of the orphans’ courts could not provide any data about children with mental disabilities (only the summary of the orphans’ courts annual work) and they do not reflect the number of family proceedings involving children with mental disabilities or parents with mental disabilities, RC ZELDA drafted detailed a questionnaire to receive the data essential for this report for the period 2009-2013.

RC ZELDA sent requests to 61 orphans’ courts (there are in total 149 orphans’ courts in Latvia). Of these 10 were sent to orphans’ courts with municipal populations below 5 000; 12 to orphans’ courts with municipal populations below 10 000; and 39 to orphans’ courts (including all republic cities’ orphans’ courts) with municipal or city populations above 10 000. This selection was based on paragraph 4.1.3. of the Republic of Latvia National Development Plan for 2007-201353 which stated that that “small local governments cannot ensure a separation between legislative and executive powers; they have a comparatively high proportion of administrative expenses but low administrative capacity. Inadequate services rendered by local governments and insufficient financial capacity do not ensure development”. The plan stipulated the merger of smaller municipalities i.e. that municipalities may not have less than 4 000 inhabitants. Therefore it was more important to clarify how these mechanisms and methods are applied to children with mental disabilities in smaller municipalities with populations below 5 000, as well as in municipalities between 5 000 – 10 000, and municipalities and cities with populations from 10 000 up to 643 615 (Riga City)54. The data was gathered between 23 February and 31 March 2014 and covered the period 2009 – 2013.

The questionnaire sent to the orphans’ courts comprised 4 sections:

1. Protection of the rights of the child (including children with special needs and children with mental disability);

2. Issues relating to parental rights (including cases where children with mental disabilities or parents with mental disabilities are involved);

3. Results of the orphans’ court’s activities (how many family proceedings each year involve children with mental disabilities or parents with mental disabilities);

4. The orphans’ court’s methods of working with children with mental disabilities.

Under the section “Protection of the rights of the child” RC ZELDA requested data available on the number of decisions taken each year regarding children with mental disability; placement of children with mental disability into out-of-family care institutions or foster families; the number of children with mental disabilities adopted to other countries; and the number of decisions taken regarding protection of the rights of children with mental disabilities.

Under the section “Issues related to parental rights” RC ZELDA asked for data available about parents with mental disabilities; the number of decisions on removal of custody rights from parents with mental disability; the number of decisions of renewal of custody rights after successful social work and rehabilitation for parents with mental disability; and about difficulties families are facing

51 Regulations of the Cabinet of Ministers No 763, Regulations on the sample of the orphans’ court annual report and procedure of completing and submitting of the annual report [Noteikumi par bāriņtiesas ikgadējā pārskata veidlapas paraugu un pārskata iesniegšanas un aizpildīšanas kārtību], Adopted by the Cabinet of Ministers on 04.10.2011., available at : http://likumi.lv/doc.php?id=237543, (10.04.2015) 52 Annual report on orphans’ courts’ activities 2013 [Pārskata par bāriņtiesu darbu 2013. gadā, kopsavilkums], available at: http://www.bti.gov.lv/lat/barintiesas/statistika/?doc=3568&page, (10.04.2015) 53 National Development Plan of the Republic of Latvia for 2007-2013 [Latvijas Nacionālais Attīstības Plāns 2007- 2013], available in Latvian at: http://likumi.lv/doc.php?id=139505, in English at: http://pdc.ceu.hu/archive/00003054/, (10.04.2015) 54 Population in Latvia 2013 according to the State Statistics Bureau data

18 (where one or both parents have mental disabilities).

Under the section “The orphans’ court’s methods of working with children with mental disabilities” RC ZELDA asked to explain if and what kinds of methods or guidelines are applied when taking decisions about the protection of the rights of the child with mental disabilities; if and what methods are used in assessing the opinions of children with mental disabilities opinion; what kind of activities are taken to ensure the rights of children with mental disabilities to grow up in their family; when children with mental disabilities are informed about their rights; whether children with mental disabilities are informed about their legal entitlement to provide evidence; the extent to which decisions take account of the expressed preferences of children with mental disabilities; entitlement of children with mental disabilities to their own legal advocate or representation in their own right.

RC ZELDA received 27 answers to its 61 requests to the orphans’ courts.

-- 6 answers (out of 10) from orphans’ courts with municipal populations below 5 000;

-- 6 answers (out of 12) from orphans’ courts with municipal populations below 10 000;

-- 15 answers (out of 39) from orphans’ courts with municipal or city populations above 10 000.

34 orphans’ courts out of 61 did not give any answer. In total 12 orphans’ courts answered all questions regarding the protection of the rights of children with mental disabilities. Five orphans’ courts ignored the fact that the requested data is about children with mental disabilities and suggested that RC ZELDA look at the overview of annual reports on the website of the State Inspectorate for Protection of Children’s Rights55.

Stopini [Stopiņi] Municipality Orphans’ Court (10 037 inhabitants on 01.01.2013) answered that from 2009 - 2013 there was no decision made regarding children with mental disabilities. But in any upcoming situation a specialist would be consulted on how to observe the child’s best interests and to ascertain his or her opinion. They expressed willingness to participate in training programmes to acquire special knowledge on methods of working with children with mental disabilities.

The Orphans’ Court of Municipality56 stated that “it is not the orphans’ court’s duty to provide information about the activities of the orphans’ court to different NGO’s for research reports, as the requested information can be found on the website of the State Inspectorate for Protection of Children’s Rights.”

The Orphans’ Court of Tukums Municipality57 stated that “under Article 17 paragraph 1 of the Law on Orphans’ Courts58 the orphans’ court should defend the personal and property interests and rights of the child. Therefore, when taking decision, the orphans’ court acts in the best interests of the child, irrespective of whether the child has a mental disability or not. When evaluating the circumstances of the case the orphans’ court acts solely in the best interests of the child.” For overall statistical data it was advised to check the website of the State Inspectorate for Protection of Children’s Rights.

The following sections will examine how access to justice for children with mental disabilities is realised through the: -- right to be informed -- right to participate -- right to be heard -- right to object 55 Orphans’ Courts annual report 2013 [Pārskata par bāriņtiesu darbu 2013. gadā], available at: http://www.bti.gov.lv/lat/barintiesas/statistika/?doc=3568&page=, (10.04.2015) 56 The population in Ludza Municipality was 13 742 on 01.01.2013, data of the Republic of Latvia Central Statistical Bureau 57 The population of was 29 719 on 01.01.2013. 58 Law On Orphans’ Courts [Bāriņtiesu likums], (adopted by Saeima 22.06.2006), Article 49, available at: http://likumi.lv/doc.php?id=139369

19 Children with mental disabilities and their right to be informed directly about their rights

As a child under age of 15 has no capacity to act and there is no duty for a court to invite a child under age 15 to participate in such proceedings, this excludes the necessity to inform children about their rights directly. Nonetheless Article 13 of the Law for the Protection of the Rights of the Child states that a “child has the right to freely express his or her opinions, and for this purpose, to receive and impart any kind of information, the right to be heard, and the right to freedom of conscience and belief (..). In any other fields, which affect the interests of the child, appropriate attention, corresponding to the age and maturity of the child, has to be paid to the opinion of the child.”59

The Regulations for the Operation of an Orphans’ Court states: In deciding regarding out-of-family care for a child, the Orphans’ Court has to explain the possible types of out-of-family care to the child and has to ascertain the opinion of the child regarding the most suitable type of out-of-family care for him or her, if the child can state his or her opinion60. The opinion of the minor (...) has to be ascertained by the Orphans’ Court in an environment familiar to the person or in another safe environment in the case to be examined. The opinion of such a person may be clarified in the Orphans’ Court, if the person has expressed a wish to appear at the Orphan’s Court in person.61

Prior to changing the type of out-of-family care, as well as prior to the return of a child to the care of its parents, the Orphans’ Court has to explain to a child the activities to be performed and ascertain the opinion of the child, if the child can state his or her opinion.62

Article 159 of the Civil Procedure Law stipulates that the court must explain to the participants their procedural rights and duties. In the course of adjudicating the case, the court must explain to the parties and third persons the consequences of performing or failing to perform procedural actions.63

The language used in laws and regulations is difficult for any child, thus the child may fail to understand it. There is no evidence showing that the rights and obligations of the child are explained in a language understandable for his or her age and level of development, and whether the text is easy to perceive both in terms of language and location (e.g. web page in easy-to-read language).

During the empirical research64 phase RC ZELDA received 27 answers from 61 requests to the orphans’ courts, in which all orphans’ courts confirmed that children with mental disability are informed directly about their rights, the nature of the proceedings, their possible outcomes, and the decision on their placement. Children are often informed about their rights before court proceedings, but if the child expressed his or her wish to participate in the proceeding, he or she will be informed during these proceedings. Children are informed verbally, using easy-to-read language.

3. Children with mental disabilities and their right to participate and right to be heard in proceedings regarding where or with whom a child with mental disabilities should live

Right to participate

Latvia’s Saeima (parliament) has defined the age when a minor is viewed as intellectually and emotionally mature enough in order to hear the minor’s opinion at a court hearing. This age is 15 years.65 Procedural rights for children under the age of 15 are exercised by their legal representatives. If a minor has reached the age of 15, he or she has the right to express his opinion during the court proceedings. Procedural rights of children from age 15 to 18 are exercised by 59 Law on Protection of the Rights of the Child, Article 13, available at: http://m.likumi.lv/doc.php?id=49096 60 Regulations No 1037, Regulation for the Operation of Orphans’ Courts [Bāriņtiesas darbības noteikumi], adopted by the Cabinet of Ministers on 19.12.2006, point 78, available at: http://likumi.lv/doc.php?id=150736 (10.04.2015) 61 Regulations No 1037, Regulations for the Operation of Orphans’ Courts, point 42 62 Regulations No 1037, Regulations for the Operation of Orphans’ Courts, point 84 63 Civil Procedure Law [Civilprocesa likums], (adopted by the Saeima 14.10.1998), Article 159, available at: http:// likumi.lv/doc.php?id=50500, (10.04.2015) 64 Phase 3, written answers to questionnaire sent out by RC ZELDA. 65 Administrative Procedure law, Article 21

20 their legal representatives. In these cases the institution or the court invites the relevant minor to also participate.66 After reaching legal age the child is no longer under the parents’ charge and the parents are no longer his or her legitimate representatives.67

According to the Civil Law, in all legal actions a child is under the custody of his or her parents until reaching the age of maturity (age of 18). Custody is the right and duty of parents to care for the child and his or her property and to represent the child in his or her personal and property relations.

In exceptional circumstances minors are entitled to independently exercise their procedural rights and fulfil duties and also to object to decisions. These are situations where the guardians and closest kin to the minor can attest that the behaviour of the minor is irreproachable, and he or she is able to independently protect and defend his or her rights and perform his or her duties. Under such circumstances the minor may be declared as being of age of maturity, but not earlier than the age of 16.68 But it is doubtful that any child with mental disability could be declared by the court as being of the age of maturity even before he or she has attained the age of 18.

If the child has not reached the age of 15, the right to participate in the civil or administrative proceedings for the particular child is limited or does not exist at all. Relevant argumentation can be found in the judgement of the Administrative Department of The Supreme Court of the Republic of Latvia:69

“[..] Article 28 of the Administrative Procedural Law states that if a person whose rights or legal interests may be infringed by the relevant administrative act, or who may be affected by a court judgment in the matter, may be a third party in administrative proceedings. It makes no difference whether the individual is of legal age. According to Article 20 part one administrative procedural legal capacity (the capacity of a person to have administrative procedural rights and duties [tiesībspēja]) shall be recognised equally for natural persons and private law legal persons.

Unlike the legal capacity, which possess all natural persons on equal basis regardless of age, the capacity to act for minors is limited or does not exist at all. Namely Article 21 part one of the Administrative Procedure Law provides that administrative procedural legal capacity has natural person who has attained legal age, and has the capacity to act.

[..] From the legal provisions mentioned above it can be concluded, that in matters on removal of the child care rights from parents and on appointment of a guardian to a child, a child is a person whose rights or interests may be affected by the relevant court judgment, therefore he or she may be invited as a third party in administrative proceedings. Child’s procedural rights shall be exercised by their legal representative. However, the participation of the child’s legal representative at the same time does not mean that in these proceeding child will be invited as a third party. The judgment on the matter may concern the scope of child’s rights; therefore he or she has administrative procedural legal capacity, which is exercised by appointed legal representative, who could be changed during proceeding.

If the child has reached the age of 15, he or she according to the legal provisions is entitled to express themselves in the proceedings. On the other hand the court has an obligation to allow the child to exercise this right.”70

From the interview with the judge of the Administrative Court:

66 Administrative Procedure Law, Article 21, part four 67 Ombudsman of the Republic of Latvia [Latvijas Republikas Tiesībsargs], Annual Report for 2012 by Ombudsman of the Republic of Latvia, p.15, available in English at: http://www.tiesibsargs.lv/en/research-and-publications/gadazinojumi, (10.04.2015) 68 Civil Law of the Republic of Latvia, Article 220 69 Senate decision of 10.01.2008 in case No SKA-66/2008, available in Latvian at: http://www.tiesas.lv/files/AL/2008/01_2008/10_01_2008/AL_1001_AT_SKA-66_2008.pdf, (10.04.2015) 70 Senate decision of 10.01.2008 in case No SKA-66/2008, para. 9 and 10, available in Latvian at: http://www.tiesas.lv/files/AL/2008/01_2008/10_01_2008/AL_1001_AT_SKA-66_2008.pdf (10.04.2015)

21 “(…) by accident the guardian had brought a child, a 13 years old boy (as the guardian had no place where to leave a child), to the court hearing where the guardian had to give testimony. The guardian confirmed that this was the child whose case is being reviewed. The judge evaluated the boy’s age and maturity level and asked him if he would like to express his opinion about this case. The boy confirmed that he would like to. The judge asked everyone to leave the courtroom (except for the secretary) and explained to the child that everything he said during the proceedings would be classified as limited access information; this means no one who is involved in this case could have access to it. The child’s comments were recorded in the protocol.”

During the interview the judge confirmed that the child’s testimony gave her more detailed information and helped to balance the best interests of the child. Also the judge made a decision which corresponded with the child’s expressed preferences.

In her experience this is the only case when a child has been heard directly in the court room. In all other cases regarding the child’s view there have been one or several evaluations issued by professional psychologists (psychologist’s opinion in matters concerning the protection of the rights of the child issued at the request of the court, orphans’ court, police or prosecutor’s office)71 where basic information about the child which is relevant for the case is listed; the methodology used in psychological evaluation; observations during the assessment, the person’s motivation and limitations; results and analysis of psychological evaluation; reasoned conclusions and recommendations; and information about confidentiality. But often there are situations when in one case three psychological evaluations are submitted about a single child, but all with different conclusions.

Under these circumstances judges use several procedural instruments. One is the principle of objective investigation i.e. in order to determine the true facts of a matter within the limits of the claim and achieve legal and fair adjudication of the matter, the court gives instructions and makes recommendations to the participants in administrative proceedings, as well as collecting evidence on its own initiative.72 The second instrument is within the scope of Article 21 part two of the Administrative Procedure Law.

Under Article 21 part two of the Administrative Procedure Law, if a court decides that the interests of a legal representatives and a minor are divergent, the court on its own initiative may request the opinion of the Orphans’ Court about the minors’ legal representative, and can decide to appoint another person as the minor’s legal representative, or the court may ask the Orphans’ Court to appoint a temporary (special) guardian to protect the minors’ rights and interests in the particular matter. 73

The judge pointed out that a special guardian must be a specialist in the sphere of the protection of the rights of the child, he or she should able to visit the child at his home or school to evaluate the circumstances in the particular case, he or she has to have knowledge of psychology, and very importantly, the special guardian should be independent i.e. not related to any party or circumstances in the particular case. In most cases they [special guardians] are specialists from the State Inspectorate for the Protection of Children’s Rights. This is only voluntary work, and it is not rewarded by any party or State.

During the empirical research several interviewees admitted that the use of special guardians in court proceedings has been very helpful and should be employed more often. Interviewed representatives of both monitoring bodies, the Ombudsman’s Office and the State Inspectorate for the Protection of Children’s Rights, had experience of fulfilling duty of special guardian during court proceedings and they considered it as necessary and useful experience. Several interviewees also admitted the need to introduce institute of special guardians. They also pointed out that it is important for special guardians to have proper training in children’s rights and in communication methods with children.

71 Law on Protection of the Rights of the Child, Article 5.2, available at: http://likumi.lv/doc.php?id=49096, (10.04.2015) 72 Administrative Procedure Law, Article 107, part four 73 Administrative Procedure Law, Article 21, part two

22 During the interview specialists of the State Inspectorate for the Protection of Children’s Rights commented that in almost all cases the court requests the orphans’ court corresponding to the child’s place of residence to appoint a special guardian for the child. Then the orphans’ court asks to recommend a specialist from the State Inspectorate for the Protection of Children’s Rights. The final decision is made by the orphans’ court. As it is important to have knowledge in psychology, they recommend a specialist from the Children’s Hotline.

In several cases a court requested to appoint a special guardian from the State Inspectorate for the Protection of Children’s Rights directly, without involving an orphans’ court. This is common practice in the Administrative Regional Court of Riga, but not in the provinces; the number of cases when a court asks to appoint a special guardian has significantly increased in past few years, but again mainly in Riga. This is additional workload, and it is getting more difficult to balance these two official duties. But they have never refused to perform the duties of special guardian for two reasons. Firstly, they have expertise in the protection of the rights of the child and in cases involving a specialist from the Children’s Hotline, a degree in psychology. Secondly, the inspectorate has the same duty as a special guardian - to protect the interests and rights of the child. They [the inspectorate] also mentioned that a special teacher could also be appointed (from special educational programs), or the psychologist who primarily evaluated the particular child, since the child is already known to him or her. None of the court-appointed special guardians from the inspectorate has gone to court proceedings without seeing the child beforehand. The most important obligation is to see the child directly to ascertain his or her opinion. An exception is when the child is very small (an infant). Before meeting the child the special guardian evaluates the facts of the case and then decides which place for the meeting would be better for the child’s best interests, often this is his or her school, as it is more neutral than home where there is a possibility of parental influence on the outcome of the conversation. They never invite the child to the inspectorate in order to avoid additional negative experiences. They also have been appointed as special guardian [college from Children’s Hotline] to the child who had sever autism syndrome, but these cases are not so common.

Regarding procedural matters, special guardians are mostly appointed in administrative cases when an orphans’ court’s decision has been appealed; in several cases this also happened within criminal proceedings, but there have been only a few cases in its [the inspectorate’s] practice. No statistical data is available regarding the number of cases where a special guardian had been appointed from the inspectorate or its sub division, the Children’s Hotline; as it is a good will of each specialist to recommend himself/herself as a special guardian. Duties of special guardian are performed apart their work at the inspectorate. The estimated number is about 70% of cases. In several cases parents filed a complaint to the inspectorate, stating that the special guardian did not ascertain the parent’s opinion, that the child’s opinion is wrong, and they want the special guardian to also reflect the parent’s view.

The inspectorate commented that in regions outside of Riga where the institute of a special guardian has not been used as broadly, several municipalities provide remuneration for performing these duties. Often they [special guardians] are social workers, sometimes social teachers at the school. But they [representatives of the inspectorate] are very sceptical about several cases brought to their attention because the special guardian has not studied the case materials before the proceedings, and has not even seen the child concerned; at the end special guardian summons facts heard at the proceedings but do not represents the child’s interests. ”It is really in the best interests of the child that such special guardian would not be appointed!” summarised representative of the Inspectorate [on the bad practice example]. The representatives of Inspectorate agreed that in order to avoid bad practices some guidelines about duties and tasks of special guardian should be developed. Inspectorate admitted that even though it is additional workload, special guardian is an effective legal instrument to protect child’s best interests and rights, especially in cases when minors’ legal representatives and minor’s interests contradicts with each other. The inspectorate also mentioned a positive example of child friendly proceedings when a judge during a case review ascertained he child’s view directly in the court room.

As there are no differences in the proceedings based on the existence of the child’s special needs,

23 there are no available measures to support the needs of a child with mental disabilities in relation to their participation in proceedings. During the empirical research phase RC ZELDA gathered information from orphans’ courts’ representatives, a judge of the administrative court, practicing psychologists and sworn advocate specialised in family rights. The main opinion is that it would be too traumatic for the child to participate in any proceedings, not to mention children with mental disabilities. These conclusions were based on the following aspects – most of the cases are related to parental disputes, conflicting situations, parental separation and custody rights, and cases regarding domestic violence, ill treatment, and child abuse i.e. cases which in their substance are traumatic to the child. Other aspects were also mentioned, e.g. lack of child-friendly court rooms, judge’s robes and procedures with strict rules.

Under Article 106 part three of the Civil Procedure Law a court may question a witness at their place of residence, if the witness is unable to attend court hearing pursuant to a court summons because of illness, old age, disability or other justified cause.74 Although this article refers only to persons who are recognised as witnesses, this could be used as an example of how a court can be flexible and “child-friendly” also in relation to children with mental disabilities.

Right to participate for children under the age of 15 are ensured through their legal representatives. “Child-friendly” court rooms, less strict court procedures and possibilities for the judge to have informal conversations with the child could safeguard the fundamental principle of respecting the child’s view. The right to participate is strongly linked to the next section, the right to be heard. The right to be heard

Explicit is only the right of the child (without reference to disabilities in general or mental disabilities in particular) to freely express his or her opinions. Article 13 of the Law on Protection of the Rights of the Child states that a child has the right to freely express his or her opinions, and for this purpose, to receive and impart any kind of information, the right to be heard, and the right to freedom of conscience and belief. In any other fields, which affect the interests of the child, appropriate attention, corresponding to the age and maturity of the child, shall be paid to the opinion of the child. As hearing but not taking into account the child’s opinion is contrary to Article 12 of the UN Convention on the Rights of the Child, it can be concluded that the child’s point of view is important and should not be neglected in any case, especially when it concerns important aspects of his or her life.

The Supreme Court of the Republic of Latvia states that a child who has reached the age of 15 shall be heard, as this is essential to decide the case and to better evaluate the actual circumstances of the case75.

The Ombudsman of the Republic of Latvia in its Annual Report for 201376 highlighted issues related to children’s right to be listened to and the obligation to respect their opinion. Namely, the child has the right to participate in a decision-making process that affects his or her life and to influence decisions made in relation to him or her. Respect of the child’s view means an active duty by others to hear his or her opinion and to take it seriously. In deciding how important should be the child’s opinion in the particular case, two criteria should be taken into account - age and maturity.

Literally interpreting the Law on the Protection of the Rights of the Child, it can be concluded that, although the child’s views are being heard in any case related to him or her, the child’s opinion is taken into account only on one issue - in selecting the form of extra-familial care.

During the study, several interviewees admitted that the child’s opinion is not taken into account only because of inability to ascertain the true opinion of the child, as it is often influenced by his or her parent and their relationship. Thus instead of ignoring the child’s opinion on the grounds that it can be easily influenced, appropriate, “child-friendly” condition should be established to ascertain the 74 Civil Procedure Law, Article 108 part three, available at: http://likumi.lv/doc.php?id=50500 75 Senate decision of 10.01.2008 in Administrative Case No SKA-66/2008, para. 9 and 10, available in Latvian at: http://www.tiesas.lv/files/AL/2008/01_2008/10_01_2008/AL_1001_AT_SKA-66_2008.pdf 76 Ombudsman of the Republic of Latvia, Annual Report 2013 by the Ombudsman of the Republic of Latvia, p.26- 29, available at: http://www.tiesibsargs.lv/files/content/zinojumi/Tiesibsarga%20gada%20zinojums_2013_ENG.pdf

24 child’s true opinion, bearing in mind that the behaviour of the child can reflect the child’s true opinion rather his or her verbal statements.

◦◦This is also consistent with the recognition by administrative courts that “the child’s opinion should certainly be taken into account according to the child’s age and maturity. If the child is a mature teenager, his or her opinion must be decisive. If the decision of the court is contrary to the child’s opinion, the court should particularly motivate such a decision”.77

The practice indicates that children have the opportunity to be heard through the Orphans’ Court in judicial or administrative proceedings, but their views are not given proper attention, so the children do not have a real opportunity to influence decisions affecting them. Thus the rights of the child to participation stated in Section 12 [Article 12 of the UN Convention on the Rights of the Child] are not fully ensured.78

The State Inspectorate for the Protection of Children’s Rights has issued Methodological recommendations for orphans’ courts for the protection of the property interests of a child or another person under custody.79 Namely Article 12 of the UN Convention on the Rights of the Child states that State Parties shall ensure to a child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child, therefore reviewing cases concerning the child’s property, his or her opinion has to be assessed.80 Legal provisions do not directly determine the child’s age, from which his or her opinion should be ascertained, since each case is individual. The main criteria is the child’s maturity. If the child is able to express its views, despite the age of the child, these should be ascertained. For example, if a child has special needs (mental disorder), then hardly in 15, 16 and 17 years of age, he or she will be able to give an objective view, and in another case, it might be that child at the age of 10 will give an objective view. In all cases, it is necessary for the orphans’ court to meet the child and explain the possible outcomes and what he or she may gain or lose if a particular transaction is made. It is unacceptable if the orphans’ court decision is based on the child’s written consent to deal with the child’s property which is submitted by the child’s guardian, without meeting the child.

The RC ZELDA researchers object to the argument that if a child has special needs (mental disorder), then hardly in 15, 16 or 17 years of age, he or she will be able to give an objective view. This is a question of what methods are used to ascertain the views of the child with mental disabilities regardless of his or her age, because when he or she reaches the age of 18 his or her legal capacity is recognised by law and he or she has the right to participate in all court proceedings and hearings, especially in relation to legal capacity; this also includes the right to express his or her opinion on the matters of the case.

According to the interview data the opinion of a child is established in almost all cases. This procedure is carried out through the examination/evaluation of a specialist – a psychologist. In practise, in family proceedings when parents have disagreements regarding custody rights, educational programs, or the child’s place of residence, there are several meetings organized with the child and psychologist separately, and two meetings with the child and one with each parent. After this examination the psychologist issues his or her opinion, stating observations about the child’s attitude to specific situations, possible consequences after incidents, and conclusions about relationships with the child’s parents or other involved persons. If this opinion and evaluation is requested by the court or the orphans’ court, the court may request to give an evaluation about the child’s best interests. If an 77 Judgment of September 23, 2008 by the Administrative Cases Department of the Supreme Court Senate in Case No. A42527807, SKA-457/2008, available at: http://www.tiesas.lv/files/AL/2008/09_2008/23_09_2008/AL_2309_AT_SKA-0457_2008.pdf, (10.04.2015) 78 Ombudsman of the Republic of Latvia, Annual Report 2013, p.29, available at: http://www.tiesibsargs.lv/files/content/zinojumi/Tiesibsarga%20gada%20zinojums_2013_ENG.pdf 79 The State Inspectorate for the Protection of Children’s Rights, “Methodological recommendations for Orphan courts for the protection of property interests of a child or another person under custody” [Metodiskie ieteikumi bāriņtiesām par bērna vai aizgādnībā esošas personas mantisko interešu aizstāvību], available only in Latvian at: http://www.bti.gov.lv/lat/barintiesas/metodiskie_ieteikumi_/?doc=1810 (10.04.2015) 80 UN Convention of the Rights of the Child, Article 12, available at: http://www.ohchr.org/en/professionalinterest/pages/crc.aspx, (10.04.2015)

25 evaluation is requested by the court, this is paid for by the local municipality.

To clarify methods on how the opinion of a child with mental disability can be ascertained in situations when the child cannot use verbal communication methods, the psychologist preparing statements for the orphans’ court answered that it is not possible, because only persons who can express their opinion verbally i.e. using words and can form a sentences, can express an opinion. A child who is not able to speak in general terms can only show his or her attitude to some situation and demonstrate emotions.

RC ZELDA researchers disagree with the statement that children who do not speak cannot express their opinion. The conclusion of the orphans’ court psychologist was not confirmed in the focus group discussion with parents who in their everyday life use only alternative communication methods as their children cannot communicate verbally. The parents affirmed that their children can express their views, and their views can be ascertained on relevant matters.

As recognised by the administrative court, if a decision of the court is contrary to the child’s opinion (mature teenager), the court should particularly motivate such a decision. During the study it was not possible to gather any information regarding the extent to which decisions take into account the expressed preferences of children with mental disabilities. Orphans’ courts do not keep any records and statistical data on whether children have mental disability or not. After mailing out written requests for statistical data to 61 municipal and city orphans’ courts regarding their decisions involving children with mental disabilities, RC ZELDA received 26 answers, of which 14 were answered on their merits, while several orphan’s courts limited their answers to “we treat all children equally”, or “we cannot provide the requested data because orphans’ courts are not obliged to collect any data regarding children with mental disability.

During several verification procedures, the Ombudsman of the Republic of Latvia has established that the child’s views are formally heard in line with Section 20, paragraph 2 of the Law on the Protection of the Rights of the Child. The orphan’s court finds out the child’s opinion, mentions it in the decision, but does not take into account (take decisions contrary to the child’s opinion) without any argumentation in the decision. For example, the girls asked to stay in the family of their former guardian, stating that they did not want to live in an orphanage. However, the Orphan’s Court decided on the placement of children in an institution of social care and social rehabilitation. This decision revealed the opinion of the children, but did not take it into account. A similar situation was established in verification procedure No.2013-130-23B. Because of suspicion of domestic violence, the Orphan’s Court decided on removal of a child from his family. The children actively expressed not only a desire to return to their parents, but also an anxiety and fear about the possibility of their not returning home and being placed in an institution. The children were happy about meeting their parents and expressed homesickness. The conclusion of the psychological evaluation advised to take the children’s views on the return to their family into account. In this case the girls wrote several submissions asking for the possibility to participate in the court hearing and expressed a desire to return home. The children’s request was ignored, and no decision or other document gave analysis explaining why it should be ignored. Also, no written response was provided to these submissions, which indicates that a child is not perceived as a full-fledged legal entity with the same right to receive a response to his submission as a person of legal age.

The child’s right to participate and right to express his or her opinion is crucially important when the judge or institution has to make a decision on the best interests of the child. RC ZELDA discovered only two cases81 when a court ruled that the orphans’ court’s decision was incorrect, and the administrative court’s decisions confirmed the child’s (without mental disability) expressed preferences. To quote the head of the Riga City Orphans’ Court Aivars Krasnogolovs: “In total Riga City Orphans’ Court has issued 3700 decisions in 2013, of which 33 were appealed, and 2 were 81 It should be noted that only when decisions of the orphans’ court are appealed are these decisions of the Administrative court publicly available on the Portal of the Courts of the Republic of Latvia (Latvijas tiesu portāls). Therefore this is the only available source for access to several decisions determining where or with whom a child with mental disabilities should live. For decisions of the orphans’ court which have not been appealed there is no available information of possible outcomes when determining where or with whom the child should live.

26 recognized as incorrect: one was regarding the case of a foster family, and the second regarding renewal of custody rights to a father, as the court took into account the child’s expressed preference to return home despite dirty housing and possible violence.” 82

These findings help to identify why the participation of a child with severe mental disability in any proceedings regarding where or with whom the child with mental disabilities should live are not supported and encouraged: a lack of skills in using alternative communication methods with children with mental disabilities, and a lack of a child-friendly court environment.

4. Children with mental disabilities and their right to object to decisions on their placement in out-of-family care, long-term social care and social rehabilitation institutions

There is no right for children with mental disabilities to directly challenge decisions made on their placement in out-of-family care, long-term social care and social rehabilitation institutions or psychiatric hospitals. Procedural rights of children under the age of 18 are exercised by their legal representatives – parents or guardians. In exceptional circumstances (if declared as being adult83) minors who have reached the age of 15 are entitled to independently exercise their procedural rights and fulfil duties: the right to independently appeal an administrative act or actual action of an institution to a court (see the section Right to participate).84

The Law on the Protection of the Rights of the Child provides the following definitions:

{{out-of-family care is care which is ensured by a guardian, foster family or child care institution for orphans and children who have been left without parental care;

{{a child care institution is an institution providing social care and social rehabilitation for orphans and children left without parental care, as well as children requiring social rehabilitation or special care due to their state of health;

{{a foster family is a family or a person providing care for a child who has been temporarily or permanently removed from his or her family environment or whose remaining in his or her family is not permitted until the moment when the child may return to his or her family or, if this is not possible, is adopted, guardianship has been established or the child has been placed in a child care institution; a child left without parental care is a child whose parents are not known, are missing, or due to a long-term illness are not able to exercise protection or whose parents have had their custody rights discontinued or removed.85

Children from one family cannot be separated except in special cases where it is done in the best interests of the children. The Law on the Protection of the Rights of the Child explicitly states that in selecting the form of out-of-family care, the point of view of the child has to be taken into account. When deciding on out-of-family care for a child, the orphans’ court must explain the possible types of out-of-family care to the child and must ascertain the opinion of the child regarding the most suitable type of out-of-family care for him or her, if the child can state his or her opinion.86

After a decision to separate a child from his or her family, the orphans’ court must inform social services or other responsible local government institutions without delay regarding this issue. In such cases, social services together with other authorities, the parents of the child and institutions 82 Media Analysis, Drezins A., 11.03.2014, Latvijas Avīze “The orphans’ court – threat, friend, supervisor?”, [Bāriņtiesa – bieds, draugs, uzraugs?] http://www.la.lv/barintiesa-bieds-draugs-uzraugs%E2%80%A9/, (10.04.2015) 83 Civil Law of the Republic of Latvia, Article 220 84 Administrative Procedure Law, Article 21 part four, available at: http://likumi.lv/doc.php?id=55567 85 Law on Protection of the Rights of the Child, Article 1, available at: http://likumi.lv/doc.php?id=49096 86 Regulation for the Operation of Orphans’ Courts No 1037, Point 78, available at: http://likumi.lv/doc.php?id=150736, (10.04.2015)

27 for the protection of the rights of the child shall draft a programme of support and assistance for the family.87

An orphan or a child left without parental care must be proided with social services in a long-term social care and social rehabilitation institution on the basis of a decision by the Orphans’ Court. 88 Long-term social care and social rehabilitation institutions must provide housing, social care and social rehabilitation to orphans and children left without parental care, if it is not possible to provide care and upbringing for them in a foster family or with a guardian, and children with severe mental development impairments, if the required scope of service exceeds the scope specified for home care or care at a day care or social rehabilitation institution.89

For children with severe mental development disorders, placement in a long-term social care and social rehabilitation institution is specified in the Procedure for Receiving Social Services and Social Assistance (paragraphs 3 and 6).90 Services of long-term social care and social rehabilitation for children with severe mental impairments from 4 to 18 years of age and for orphans and children left without parental care up to 2 years of age and children with mental and physical development disorders up to 4 years of age91 are financed from the state budget.92

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Latvia from 25 September to 4 October 2002 and concluded that the procedure by which involuntary placement in a psychiatric/social welfare establishment is decided should offer guarantees of independence and impartiality as well as of objective psychiatric expertise. Further, such placement should cease as soon as it is no longer required by the patient’s/resident’s mental state. Consequently, the need for placement should be reviewed by an appropriate authority at regular intervals. In addition, the patient/resident himself/herself should be able to request at reasonable intervals that the necessity for placement be considered by a judicial authority. 93 A visit was carried out to the Viki [Vīķi] Psychiatric Centre Children’s Department, which is attached to Riga Neuropsychiatric Hospital. Although classified as a psychiatric establishment (under the authority of the Ministry of Welfare), Viki Psychiatric Centre mainly serves as a long-term residential care institution for children/juveniles (ranging in age from 3 to 16 years) with serious learning disabilities and/or behavioural disorders from all over Latvia. At the age of 16, juveniles are usually transferred to Ainazi Mental Hospital or to a social welfare home. Approximately one third of the children at Viki Psychiatric Centre are orphans, and one third had parents who had been deprived of their parental rights.94

On account of their vulnerability, children with mental illnesses and children with learning disabilities warrant particular attention in order to prevent any form of conduct - or avoid any omission - contrary to their well-being. Thus involuntary placement in a psychiatric/social welfare establishment should always be surrounded by appropriate safeguards.95

At Viki Psychiatric Centre Children’s Department, a child can be admitted by a decision of the competent district authority (district council board) upon request by his/her parents. However, 87 Law on Protection of the Rights of the Child, Article 27, part five, available at: http://likumi.lv/doc.php?id=49096 88 Procedure for Receiving Social Services and Social Assistance, Regulation No. 228 adopted by the Cabinet of Ministers of the Republic of Latvia, on 21.04.2008, paragraph 13, available at: http://likumi.lv/doc.php?id=174327 (10.04.2015) 89 Law on Social Service and Social Assistance, Article 28, available at: http://m.likumi.lv/doc.php?id=68488 (10.04.2015) 90 Procedure for Receiving Social Services and Social Assistance, Regulation No. 228 adopted by the Cabinet of Ministers of the Republic of Latvia, on 21.04.2008, paragraph 13, available at: http://likumi.lv/doc.php?id=174327, (10.04.2015.) 91 Parents have a duty to pay for such services under the Law on Protection of the Rights of the Child, Article 30 92 Law on Social Service and Social Assistance, Article 9.1 93 Report to the Latvian Government on the visit to Latvia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 September to 4 October 2002, para. 157, available in English at: http://www.cpt.coe.int/documents/lva/2005-08-inf-eng.htm, (10.04.2015) 94 Report to the Latvian Government on the visit to Latvia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 September to 4 October 2002, para. 142.- 143, available in English at: http://www.cpt.coe.int/documents/lva/2005-08-inf-eng.htm, (10.04.2015) 95 Report to the Latvian Government on the visit to Latvia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 September to 4 October 2002, para. 156-157

28 most of the Centre’s patients are children who are orphans/abandoned or whose parents have been divested of their parental rights. They can be placed in the Centre following a decision by the Orphan’s court or the competent district authority. CPT noted that the latter decision does not necessarily deal with the placement of the child in a psychiatric establishment, but only contains a general order to place the child in a public care institution. On the basis of this decision, the child may subsequently be placed in a social welfare home (e.g. orphanage), an educational institution (e.g. special boarding school) or a psychiatric hospital or be transferred, at any time, between these institutions. In none of the aforementioned cases is a guardian appointed ex officio.96

Consequently, most of the patients at the Viki Psychiatric Centre have been subject to an involuntary hospitalisation without any appropriate legal safeguards. There is nobody to represent the child and defend his/her interests during the admission procedure and, subsequently, vis-à-vis the institution in which he/she has been hospitalised involuntarily. Such a state of affairs is unacceptable.97

The CPT was also concerned that decisions on the placement /transfer to the Centre are taken without any involvement of the child concerned. The opinion of a child must be taken into consideration as a determining factor of increasing importance in proportion to his/her age, mental capability and degree of maturity (cf. Article 3 of the European Convention on the Exercise of Children’s Rights).98

Each year an Orphans’ court has a duty and must permanently supervise the actions of a guardian on ensuring of the personal and property rights and interests of a child inter alia by inspecting the living conditions of a ward in the family of the guardian99. During these visits representative of an Orphans’ court draws up a protocol of the conversation clarifying child’s view, if a child has relatives whether they maintain any contacts to a child, living conditions, list of personal belongings, respect for his or her rights and duties, possible out-of-family care types, assessment of the child’s preferences, interests, etc. Additional safeguards are set under the Regulation for the Operation of an Orphan’s Court - the Orphans’ court examines care provided to a child placed in out-of-family care.100

Under amendments to the Law on Protection of the Rights of the Child (came into force on 04.07.2013), a requirement was introduced that a decision on the placement of a child into out-of-family care must be regularly reviewed:101 the child must be ensured with the possibility to grow up with a guardian or in a foster family; out-of-family care in a child care institution may be provided if care received from a guardian or in a foster family is not appropriate for the particular child. The child can remain in a child care institution until he or she is ensured appropriate care with a guardian or in a foster family.

It is not clear from the wording of this article how regularly a decision regarding the placement of a child in an institution of long-term social care and social rehabilitation should be reviewed. Under amendments to the Law on Orphans’ Courts (came into force on 01.07.2014) it was established that a child resides in a child care institution until care in a foster family or by a guardian is ensured. The duties of the guardian of a child placed in an institution of long-term social care and social rehabilitation must be performed by the head of such institution.102

On 03.06.2014 the State Inspectorate for the Protection of Children’s Rights issued its Methodological Recommendations to the orphans’ courts103. These require orphans’ courts to assess whether a particular child in a child care institution may be provided appropriate family care with a guardian or

96 Report to the Latvian Government on the visit to Latvia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 September to 4 October 2002, para. 158 97 Report to the Latvian Government on the visit to Latvia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 September to 4 October 2002, para. 158 98 Report to the Latvian Government on the visit to Latvia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 September to 4 October 2002, para. 158 99 Law on Orphans’ Courts, Article 31, part one, point 6, available at: http://likumi.lv/doc.php?id=139369 100 Regulation for the Operation of an Orphans’ Court, No 1037, Point 81.1, available at: http://likumi.lv/doc.php?id=150736 101 Law on Protection of the Rights of the Child, Article 27, part 3 and 31, available at: http://likumi.lv/doc.php?id=49096 102 Law on Orphans’ Courts, Article 35 103 The State Inspectorate for the Protection of Children’s Rights, Methodological Recommendations: The role of the orphans’ court’s in the deinstitutionalization process (Bāriņtiesu loma deinstitucionalizācijas procesā) available at: http://www.bti.gov.lv/lat/barintiesas/noderiga_informacija/?doc=3656&page=

29 in a foster family. This assessment should be made every three months regarding children under the age of three and every six months regarding children between 3 and 18 years of age. However, the child will remain in a child care institution if no family care can be provided. These recommendations were issued as one of the first steps of the deinstitutionalization process in Latvia for all children and adults with or without mental disability in particular or disability in general104.

During the second phase of the study, RC ZELDA received 27 answers out of requests to 61 orphans’ courts. One of the questions was how often decisions regarding the placement of children in long- term social care and social rehabilitation institutions are reviewed. No written answer was provided to this question. With exception to the phone interview with the representative of the Orphans’ court who assured that it only is made if any foster family agrees to take care of the child.

In its Annual Report for 2013, the State Inspectorate for the Protection of Children’s Rights noted that during inspections of orphans’ courts significant problems were identified:

{{cases regarding decisions to discontinue the custody rights of parents are not reviewed as prescribed by law or according to children’s rights and interests;

{{before decision to discontinue the custody rights, to render discontinued custody rights or bringing an action regarding the removal of custody rights of a parent by a court, risk assessment either isn’t carried out at all or it is done in a formal or incomplete way;

{{when choosing a possible type of out-of-family care for an orphan or child who is left without parental care the orphans’ court not always provides enough evaluation for providing care in a family environment i.e. with a guardian or foster family. The activities of orphans’ courts in search of suitable foster families or guardians are not reflected in case materials;

{{when making decisions on out-of family care orphans’ courts do not observe regulations set out in laws and do not provide explanations to children on possible types of out-of-family care and do not ascertain the opinion of the child (if he or she is able to formulate one) on the most appropriate type of out-of-family care;

{{before making decisions to discontinue custody rights, full information is not always obtained on the opportunities for the child to return to parental care. Risk assessment is incomplete, and the failure to ensure the priority of the rights and interests of the child means that children are repeatedly separated from their families within a short period of time;

{{in several cases RC ZELDA established that there is insufficient work by social services with risk group families;

{{insufficient cooperation within orphans’ courts, social services, educational institutions, police etc., as a result full protection of children’s rights is not ensured.105

Relevant case law

Example of cases in which the rights of a child with mental disabilities were not effectively protected by the justice system

On 26 June 2012 the Orphans’ Court of issued an individual decision106 regarding the removal of custodial rights from G.K. (the applicant) for his children J.K. (his daughter) and P.K. (his son)107. The Administrative Regional Court evaluated whether the decision of the Orphans’

104 Guidelines for development of social services in 2014 – 2020 [Pamatnostādnes sociālo pakalpojumu attīstībai 2014.-2020.gadam], Approved by the Cabinet of Ministers 04.12.2013, Order No 589, available at: http://www.mk.gov.lv/lv/mk/tap/?pid=40294031&mode=mk&date=2013-11-19, (10.04.2015) 105 The State Inspectorate For the Protection Of Children’s Rights, Annual Report 2013, available at: http://www.bti.gov.lv/lat/zinas_par_iestadi/parskati_un_atskaites/?doc=3667&page= (10.04.2015) 106 Law on Orphans’ Courts, Article 23, part three, available at: http://likumi.lv/doc.php?id=139369, (10.04.2015) 107 Law on Orphans’ Courts, Article 23, part one

30 Court of Ogre Municipality was legitimate108 and ruled that it was unlawful. The court considered that the dispute was not based on threats to the children, but was rather based on a disagreement between the parents regarding parental rights and parental authority. The court concluded that the children were not in conditions which were dangerous to their health or life; or that might endanger their development.

Spouses D.K. and G.K. (who are not divorced but live separately) agreed that on 20 June, 2012 their son P.K. would stay with the applicant. However, on the morning of 21 June G.K. called D.K. (his wife) and told her that he was not going to give away his son and in future his son would be living with him. On 22 June without warning the applicant went to the kindergarten and took his daughter J.K. to his place of residence.

On the evening of 26 June police officers, representatives of the orphans’ court and D.K. (the mother) with her representative M.K. arrived at the applicant’s place of residence. The head of the orphans’ court took an individual decision and both children were taken away that evening without any explanation.

The decision on removal of custodial rights was based on a conversation with D.K., the mother of both children, on 26 June 2012. Additionally an assessment issued by a psychologist affirmed that P.K. is a child with special needs (autistic spectrum syndrome) and he needs a special day regime.

At the court hearing the special guardian (appointed by the court for both children) affirmed that during a conversation with J.K. she sensed that J.K. has emotional bonds with her father. But J.K. refused to comment on relationships in her family. With regard to P.K., the special guardian affirmed that conversation with him was difficult, taking into consideration his diagnosis, as the child was internally impetuous. For P.K it is crucially important to know each particular step, what the succession of events will be. It is not known what caused the child’s trauma, whether it was due to the removal from the family or some other reason. There was no evidence in any of the psychologists’ assessments that the father caused emotional trauma to either of the children. However, the situation when the members of the orphans’ court and police officers entered their home and both children were taken away without any explanation was clearly traumatising.

From the evidence presented, the Court concluded that the children were not in conditions which were dangerous to their health or life, nor were they in conditions which might hinder their development while residing in the applicant’s place of residence.

The court evaluated the opinions from the psychologists and concluded that the children had been emotionally traumatized. However, there was no evidence that this occurred while the children were in the custody of their father. On the contrary, the court evaluated all the expert opinions in conjunction with the opinion of the special guardian, and concluded that the children most likely suffered emotional trauma directly from the enforcement of the orphans’ court’s decision, namely, the children were unexpectedly, without explanation and in the presence of unknown persons removed from the applicants place of residence.

The court ruled that that the orphans’ court’s decision was unlawful. The court dismissed the applicant’s claim for moral compensation, stating that his parental rights were removed only for 15 days and did not cause significant suffering.

An example of a case in which the rights of a child with mental disabilities were effectively protected by the justice system

With its judgement of 19 May 2010 the Administrative Region Court decided109 to renew custodial 108 Case No. A420479312, judgement of Administrative Regional Court, Riga Courts’ house of 30 October 2012, available at: http://www.tiesas.lv/files/AL/2012/10_2012/30_10_2012/AL_3010_raj_A-04793-12_27.pdf, and Case No. A420479312 judgement of Administrative District Court of 31 May 2013, available at: http://www.tiesas.lv/Media/Default/Admin.tiesu%20spriedumi/Admin.apg.tiesas%20spriedumi/Maijs/31.05.2013/ AL_3105_apg_AA43-2362-13_4.pdf, (10.04.2015) 109 Case No. A420595010, Judgement of 19 May, 2010 of the Administrative Region court. Descriptive and reasoned parts of the judgement has been deleted, because the case was reviewed in closed court hearing,

31 rights to parents M.K. (mother) and E.K. (father) over one of their two children J.K. (son). The Administrative District Court upheld this decision on 9 November 2010.

On 25 October 2007 Riga Municipal Orphans’ Court issued a decision to remove custodial rights from M.K. and E.K. (the applicants) over their two children H.K. and J.K. based on the father’s violence towards both children and due to the fact that the mother did not act appropriately and adequately to protect her children from their father’s emotional and physical violence. During a guitar lesson the father hit his daughter H.K. in the head in front of his son J.K.

On the same date the orphans’ court issued a decision to place both children in a long term social care institution.

On 3 February 3 2010 Riga Municipal Orphans’ Court rejected the applicants’ request to renew custodial rights over their children, on the basis that the grounds on which the rights were removed had not changed.

The orphans’ court sought the opinion of both children: J.K. (10 years old) was willing to return to his family, but H.K. (15 years old) was scared of the parenting methods. The orphans’ court considered that at their respective ages the children were able to express their opinion and it should be taken into account. The court found that the orphans’ court’s decision did not comply with J.K.’s expressed opinion to return to his family.

The orphans’ court agreed with the opinion of the court of the first instance that the child’s views should be taken into consideration, however considering J.K.’s physical and emotional condition, his age and the circumstances of the particular case, the child’s view could not be the decisive factor in this case. Orphans’ court considered that the child’s expressed preferences has no logical or psychological basis, taking into account that a child as a physically immature person is not able to solve problems rationally, because he does not understand them; shifting the responsibility onto the child for parental failure to build a proper relationships in the family would be contrary to the best interests of the child.

It was established that J.K. has a neurotic disorder and moderate intellectual disability. The orphans’ court considered that the risk of violence has not been eliminated and the parents had no skills and abilities to bring up a child with mental health problems. J.K. needs a special educational programme and appropriate care and upbringing, but his parents denied that their son has mental health disorders; therefore they lacked the necessary skills to take care of him. In the view of the orphans’ court this clearly demonstrated that there was no reason to renew custodial rights over J.K., as the child would be in danger in this family and they would not provide adequate care. In addition E.K. (the father) continued to undergo compulsory measures of a medical nature (compulsory psychiatric treatment ordered by the court).

The psychologist’s assessment regarding J.K. mentioned that violence has not been used towards J.K. Both children had no close relationships, nonetheless the orphans’ court decided not to renew custodial rights over J.K. since he suffered from emotional violence when he saw his father hurt his sister’s H.K. head with the guitar.

The court evaluated two possible solutions in the particular case (to renew custodial rights over one child or not to renew custodial rights) and considered that priority should be given to the solution promoting return of the children to the family, as well that which would respect the views of the children.

The court stated that it is clearly preferable that parents should take care of their children equally. However, in the court’s opinion, unequal treatment of children is not justification to remove custodial rights (or declining to renew them). The state’s right to interfere into family life is limited, for example resolutive part is available in Latvian at : http://www.tiesas.lv/files/AL/2010/05_2010/19_05_2010/AL_1905_ raj_A-05950-10_17.pdf, Judgement of the Administrative District Court of 9 November 2010 is available in Latvia at: http://www.tiesas.lv/files/AL/2010/11_2010/09_11_2010/AL_0911_apg_AA43-2837-10_4.pdf, (10.04.2015)

32 the State ensures “minimal level”, for example, to remove children from the family only in situations prescribed by law.

The court ruled that Riga Municipal Orphans’ Court has to issue a decision to renew custodial rights over J.K.

5. Access to justice for children with mental disabilities in cases involving questions about where or how a child with mental disabilities should be educated

Legal framework

The Constitution of the Republic of Latvia [Satversme] provides that “everyone has the right to education. The State shall ensure that everyone may acquire primary and secondary education without charge. Primary education shall be compulsory”.110 The Constitution also provides that “the State shall provide special support to disabled children, children left without parental care or who have suffered from violence”111.

The Law on the Protection of the Rights of the Child provides that “the State and local governments shall assist a child with special needs112 to integrate into society and ensure for him or her education, health care and social services in accordance with regulatory enactments”113. The General Education Law provides that a child with special needs “may acquire special education programmes in special educational institutions or classes”114. The same law provides that “general basic educational and secondary educational institutions, which have the appropriate provisions, may integrate students with special needs”. In 2011 the law was supplemented with additional provisions in relation to integrating students with special needs into mainstream schools. The new provision ensures that “the educational institutions provide access to appropriate support measures for students with special needs who are integrated in a general educational institution”115. Further the same provision states that “the educational institution should develop an individual plan of acquiring the [study] program for each integrated student with special needs”.116

Assessment of a child’s special needs for educational purposes

Special needs for educational purposes are assessed by a municipal or state pedagogical medical committee and refer to those children who need additional support in school to maintain the grade level relevant for their age, whereas the status of disability is established by the State Medical Commission for the Assessment of Health Condition and Working Ability (Disability Assessment Commission)117.

Decisions on where children with mental disabilities should be educated are taken either by the pedagogical medical committee of the local municipality118 (where the child is registered) or by the 110 The Constitution of the Republic of Latvia [Latvijas Republikas Satversme] (adopted by the Constitutional Assembly of Latvia on 15.02.1922), Article 112, available in Latvian at: http://likumi.lv/doc.php?id=57980 (10.04.2015) 111 The Constitution of the Republic of Latvia, Article 110 112 The concept “a child with special needs” is defined by Article 53 of the same Law on the Protection of the Rights of the Child, where a child with special needs “is a child who in connection with an illness, trauma or functional impairment of an organ system caused by an innate defect has need of additional medical, pedagogical and social assistance irrespective of whether there is a determination of disability in accordance with procedures set out by law.” 113 Law on the Protection of the Rights of the Child [Bērnu tiesību aizsardzības likums], (adopted by the Saeima 19.06.1998), Article 55 (2), available in Latvian at: http://likumi.lv/doc.php?id=49096 (10.04.2015) 114 General Education Law [Vispārējās izglītības likums], Article 51 (1), (adopted by the Saeima on 10.06.1999), available in Latvian at: http://likumi.lv/doc.php?id=20243 (10.04.2015) 115 General Education Law, Article 53 (2) 116 General Education Law, Article 53 (1) 117 For children younger than 18, disability is established for six months, one, two or five years, or for the period until reaching the age of 18 depending on the condition of child. (Cabinet of Ministers, Regulations No. 805, 2014). 118 The municipal commission’s terms of reference cover provision of opinion regarding the most suitable pre- school program or the most suitable special basic/elementary education (grade 1 to 4) program for children with intellectual disability, for children with severe intellectual disability or with several severe developmental disabilities, also for children with learning disability, speech disorders or mental health disorders, see Cabinet

33 State Pedagogical Medical Committee119. This mechanism of suggesting the most suitable education program is non-judicial. The main task of both committees is to evaluate the health condition, skills and level of development of the child and to recommend the most suitable education program for the particular child. The tasks of the state committee include promoting the integration of children with special needs into mainstream schools. The state committee also advises teachers, parents and others on issues of special education, provides methodical support to municipal committees and re-evaluates a child if there is disagreement regarding a decision of the municipal committee. The state and municipal committees are also tasked with recommending support measures for the study process and in state exams.120

1. The following steps are taken to decide on the most appropriate education program and school for a child with mental disabilities:

2. Parents or teachers notice that a child has some developmental and/or health problems;

3. The child is consulted by a relevant specialist (speech therapist, psychologist or doctor (medical specialist));

4. The child together with his or her parent/s apply to the pedagogical medical committee121;

5. The committee makes recommendations on the most suitable education programme (suggesting if the child should attend a mainstream or special school); makes suggestions on necessary support measures and assists in drafting an individual education plan; decides if the child needs to undergo additional medical examinations or should be consulted by other specialists;

6. If the child attends a mainstream school, an individual education plan is developed for the child.

The assessment can only take place if the meeting is attended by the child together with his or her parents. If the parents are not able to attend the meeting, they are obliged to submit a written application in which they agree to assessment of their child’s level of abilities and development and health condition at the committee meeting. In case of absence parents can authorize a proxy to attend the committee meeting together with their child.122

The committee shall use all the information available on the child and provided by his or her parents. The committee shall not decide on placement at a particular school. The committee shall decide

of Ministers Regulations No. 709 On Pedagogical Medical Committees [MK Noteikumi Nr.709, Noteikumi par pedagoģiski medicīniskajām komisijām], paragraph 3. 119 The State Pedagogical Medical Committee provides an opinion regarding the most suitable program of special basic/elementary education or the most suitable program of special secondary education for children with visual, hearing impairments or physical development disorders (grade 1-12), the most suitable program of basic/ elementary education for children with somatic diseases (grade 1 to 9); and the most suitable program of special basic/elementary education for children with intellectual disability, severe intellectual disability or several severe developmental disabilities, also for children with learning disability, speech disorders or mental health disorders (grade 5 to 9), see Cabinet of Ministers Regulations No. 709 On Pedagogical Medical Committees, paragraph 2. 120 Cabinet of Ministers Regulations No. 709 On Pedagogical Medical Committees [MK Noteikumi Nr.709, Noteikumi par pedagoģiski medicīniskajām komisijām], paragraphs 4, 6, (adopted by the Cabinet of Ministers on 16.10.2012), available in Latvian at: http://likumi.lv/doc.php?id=252162 (10.04.2015) 121 Before applying to a municipal or state committee parents have to obtain an opinion from a general practitioner regarding the general health condition of the child; an opinion from a psychologist; a character reference and individual education plan from the school, if the child already attends a school; and a transcript of school results (including tests of native language and mathematics). If a child has intellectual disability additionally his or her parents have to submit an opinion issued by an educational or clinical psychologist on full assessment on the level of development of intellectual abilities (this opinion should be issued not later than one year before the committee meeting) and an opinion from a child psychiatrist or psychiatrist (issued not later than six months before the committee meeting). If a child has mental health disorders his or her parents have to submit an opinion from a child psychiatrist, psychiatrist or child neurologist or neurologist (issued not later than three months before the committee meeting) and an opinion issued by an educational or clinical psychologist on full assessment of the level of development of intellectual abilities (this opinion should be issued not later than one year before the committee meeting). Parents are encouraged to also submit opinions from other specialists if possible. See the Order issued by the National Centre for Education On the Order of Session of the State Pedagogical Medical Committee [Valsts pedagoģiski medicīniskās komisijas sēdes darba kārtība]. 122 The Order issued by the National Centre for Education On the Order of Session of the State Pedagogical Medical Committee [Valsts pedagoģiski medicīniskās komisijas sēdes darba kārtība], available in Latvian at: http://visc.gov.lv/specizglitiba/dokumenti/vpmk_sedes_darba_kartiba.pdf (10.04.2015)

34 on the most suitable programme and will recommend a particular program code123. It is up to the child’s parents to decide which school their child will attend. The criteria for deciding on the most appropriate programme are set out in Annex No.1 of Cabinet of Ministers Regulations No. 709 On Pedagogical Medical Committees124.

According to the latest publically available annual report of the National Centre for Education, in 2013 the State Pedagogical Medical Committee reviewed 761 applications and issued recommendations on the most suitable education program. The same annual report states that in 2013 municipal pedagogical medical committees assessed 7 241 children.125

Experiences of parents and children in attending pedagogical medical committee meetings

During the empirical research phase, RC ZELDA interviewed two parents of children with severe mental disabilities and organized one focus group discussion with parents attended by 3 mothers (these mothers were not the same as those interviewed by face-to-face interview method). All 5 mothers came from different municipalities and they had different experiences with attending pedagogical medical committees. Most of the parents said that they do not remember anything about attending the committee, as it was quite a stressful process. Four parents have only attended a committee once, while one mother attends a committee regularly, since her son is in a home schooling programme and the need for home schooling must be reviewed every year. The same mother also has a second child with mental disability who recently started to attend school, and in this case the mother had a very negative experience with the committee:

“That [experience at the committee] was appalling psychological pressure on me. I was crying at the end. The members of the committee treated me like I was from some disadvantaged family. Such emotional pressure! My daughter could not count something, she tried to count, but she [the daughter] saw that I was upset. Then a committee member said: “Now you see how she is” (…) She [the committee member] just upset me. (…) The child felt it, for sure. She felt lost in this committee”.126

Using the media analysis method, RC ZELDA also found out the experience of a mother who complained that a committee assessing her child [who had speech problems] decided within 10 minutes that the child has intellectual disability. According to the mother, the committee members were not able to cite the reasons why they decided that the child is intellectually disabled. They also did not explain the diagnosis and what type of special education program they decided on. The mother believes that the committee made their decision based on the fact that her child could not put a pyramid in the way expected by the committee. “He did it in his own way, but the committee concluded that the child lacks comprehension”. The journalist also interviewed a representative of this particular committee, who stated that the mother has misunderstood the conclusion of the assessment and that it is impossible to make a conclusion on intellectual disability within 10 minutes. She explained that the child was offered to attend a special group at kindergarten, but this does not mean that the child is assessed as intellectually disabled. The committee member also gave assurances that parents have the right to disagree with the committee’s decision and they can attend it repeatedly.127

During empirical research phase RC ZELDA interviewed two specialists (one psychologist and one special pedagogue), who are also members of two different municipal pedagogical medical committees. The special pedagogue said that she believes that it is important to see a child several times before making a decision e.g. she tries to see each child at least three times at different times

123 Order issued by the National Centre for Education On the Order of Session of the State Pedagogical Medical Committee 124 Cabinet of Ministers Regulations No. 709 On Pedagogical Medical Committees 125 Valsts izglītības satura centrs, Gada publiskais pārskats 2013, pp 14-16, available in Latvian at: http://visc.gov.lv/visc/dokumenti/gadp2013.pdf (10.04.2015) 126 Interview with a mother of two children with mental disabilities conducted on 10.03.2014. 127 Media Analysis, “Māmiņa Ksenija: 10 minūtes komisijā un mans bērns atzīts par atpalikušu”, article from internet news’ portal http://www.kasjauns.lv, published on 13.11.2013, available in Latvian at http://www.kasjauns.lv/lv/ zinas/135626/mamina-ksenija-desmit-minutes-komisija-un-mans-berns-atzits-par-atpalikusu (10.04.2015)

35 of the day (morning, evening and noon) in order to assess the child objectively.128

The special pedagogue, who is also a member of a municipal pedagogical medical committee, said that the committee where she works is open to reviewing each child regularly. She said the Committee always advises parents to re-visit to the committee the following year if they see development in their child and the need to change his or her schooling program to better suit the child’s abilities and needs.129

The right to choose a school

The Law on Education provides that parents have the right to choose the educational institution where their child will study130. As mentioned before the role of the pedagogical medical committee is to suggest the most appropriate educational programme for a particular child with special needs. During the empirical research phase a special pedagogue and pedagogical medical committee member emphasized that although the conclusion of the committee is not binding, it is compulsory if the parents want their child to attend a special school. The committee never insists that a child should attend a particular school.131

However several interviewed specialists and parents admitted that there is a lack of schools with special education programmes close to the place of residence of families. As a result parents are forced to send their children to boarding schools far from the child’s home.

During the focus group discussion with parents, two mothers shared their experiences. Both had sent their children to the same boarding school far from their home towns. Although there are special schools available closer to their home towns, both mothers explained that they chose the particular school because it is very progressive and has a different attitude towards children. Both families bring their children home on Fridays and both said that the staff of the school is very responsive e.g. every night they send an SMS to parents saying that their child went to bed and everything is fine. The mothers said that this has been very helpful to them, as they feel very stressed having their children away from home.132 RC ZELDA believes that not providing access to special education near the residence of the child is a violation of the child’s right to family life. It is hard to believe that education of the child far from home is more important than a special programme at a mainstream school close to home with the possibility to integrate into society and live in their family.

The child’s opinion on decisions about where they should be educated

According to Article 20 (3) of the Law on the Protection of the Rights of the Child, “a child shall be given the opportunity to be heard in any adjudicative or administrative proceedings related to the child, either directly or through a lawful representative of the child or through a relevant institution.”133 The statutes of pedagogical medical committees also require that the child is a participant in the assessment process. However no laws or regulations concerning right to education specify that a child with disabilities in general or with mental disabilities in particular has a particular right to express views on where to be educated and if such views should be taken into account. There is no evidence on whether children are informed about their rights to express their opinion.

During the research interviews and focus group discussion the parents mostly could not remember their experience at pedagogical medical committees, as it had been too stressful for them. Two mothers who remembered more and spoke about their negative experiences said that their children were very confused and because of this they were not able to show their true abilities, thus there is a risk that a committee can evaluate child as being less skilful than he or she is in reality.134 During 128 Interview with a special pedagogue and member of a municipal pedagogical medical committee conducted on 05.03.2014. 129 Interview with a special pedagogue conducted on 05.03.2014. 130 Education Law [Izglītības likums], (adopted by the Saeima on 29.10.1998), Article 57, available in Latvian at: http://likumi.lv/doc.php?id=50759 (10.04.2015) 131 Interview with a special pedagogue and representative of a municipal pedagogical medical committee conducted on 5 March 2014. 132 Focus group discussion with parents held on 27 February 2014. 133 Law on the Protection of the Rights of the Child, Article 20 (3) 134 Interview with a mother conducted on 10.03.2014 and focus group discussion held on 27.02.2014.

36 the focus group discussion one mother remembered that: “They [the committee members] tried to communicate with the child, but a child like mine is already very stressed because she has been brought to some strange, unknown premises and then she notices five or six people unfamiliar to her. In such circumstances, when she is under stress, it brings nothing to offer her something to do.” Another mother shared a similar experience during a focus group discussion:

“We were in a similar situation. We arrived there and of course there was a queue – he [her son] was interested in the other children. And then suddenly he was called in by some lady who asked him to do various things. How can one assess his skills in such a situation! It would be possible to assess his skills if specialists would observe him in his own environment, but not like this – in unnatural circumstances and environment.”135

A psychologist working at one of municipal pedagogical medical committee said that the explanations given to children vary. If a child has a serious learning disability, they explain child that the assessment is to find out how to help him learn to read and what will be the plan – what should be done every day. If a child is older, they try to explain more. The children also get explanations regarding various schools which can help them. If children are younger and they have intellectual disability they are told about school in simple language they can understand.136

Several specialists expressed the opinion that a child with mental disability would not be able to express where he or she wants to study, but could say whether he or she wants to study close to home etc. For example, the representative of the Ombudsman’s Office indicated: “This would be the opinion of the child regarding school location – if he would like to study at a school close to his home.”137

During the empirical research interviews, the representative of the Ombudsman’s Office complimented the specialists of the Children’s Rights Protection Inspectorate who always (including at various training courses) emphasize that a child is not obliged to express his or her opinion. They also emphasize that the child has the right to express his/her opinion and should be given opportunity to express it, but specialists have no right to demand that child express his/her opinion.138

Methods and means by which children with mental disabilities can express their views

Although alternative communication (replacement of speech) and augmentative communication methods are known in Latvia and they are taught at universities, there is no data available on and how frequently these methods are used by various professionals in communication with children. Furthermore, while these methods are familiar to special pedagogues and speech therapists, they are virtually unknown to lawyers.

In its research report of 2011, the NGO Latvian Movement for Independent Life [Latvijas kustība par neatkarīgu dzīvi] reported on the situation of children and youth with intellectual disabilities in Latvia based on interviews with families that139 “25.9% of children with intellectual disabilities attending school have acquired alternative communication skills and use them in daily life”140. Further, the same report mentions that parents believe that alternative communication in education has been used insufficiently, and also that many parents do not know what alternative communication is and how it could benefit their child and family if their child learned some of these communication methods.

During the empirical research phase several interviewed parents said that they use alternative communication methods with their children since they do not speak. Several mothers said that they 135 Focus group discussion with parents held on 27 February 2014. 136 Interview with a psychologist working in private practice and for a municipal pedagogical medical committee conducted on 19 February 2014. 137 Interview with a representative of the Ombudsman’s Office conducted on 20 February 2014. 138 Interview with a representative of the Ombudsman’s Office conducted on 20 February 2014. 139 In total 170 families were interviewed. 140 Latvian Movement for Independent Life [Latvijas Kustība par neatkarīgu dzīvi], Research Report “The Situation of Children and Youth with Intellectual Disabilities in Latvia” [Bērnu un jauniešu ar intelektuālās attīstības traucējumiem situācija Latvijā], (the report is available in Latvian and English, but Latvian version has been referenced since data differ in both versions and the Latvian version is the most recent), http://www.lkndz.lv/lv/?n=informativie_resursi (10.04.2015)

37 were surprised that many specialists working with children with severe disabilities are not aware of these methods and that mothers themselves had to order Picture Exchange Communication System (PECS) CDs from the United Kingdom. The pictograms from PECS also had to be translated and adapted into Latvian. Two mothers also said that they brought pictograms to their children’s special boarding school and were delighted that the teachers were open to learn PECS and to use it in their daily work. The mothers also said they receved great support in introducing PECS in Latvia from the NGO Velki Foundation, which organizes parents’ support groups throughout Latvia, publishes useful materials and adapts tools (e.g. PECS) into Latvian.141

An interviewed teacher at a special school confirmed that her school uses PECS on a daily basis. She was surprised that parents have complained about the unavailability of pictograms. She said that in her practice parents are quite lazy in using pictograms at home, but the ZELDA interviewers replied that parents and situations differ, particularly depending on what region they come from.142 During the research interviews a special school teacher admitted that alternative communication is widely used in her work at the municipal Pedagogical Medical Committee, but she did not see the need for training other specialists e.g. policemen in these methods, because if needed the police can invite a special pedagogue to help in communicating with children with disabilities.143

During the interviews the researchers also heard the views of a psychologist who believes that “children who do not speak have no opinion”:

“Well, this is not the opinion of the child, because the opinion of a child is a verbally expressed (formulated) thought – an answer to a question. So this is how I understand it. The opinion of the child is a verbal expression of something regarding the particular question. (…) If the child cannot speak, then it is not his opinion. It is rather his attitude towards something, an emotional attitude.”144

However the representative of the municipal police who regularly attends special schools and tells children with mental disabilities about safety believes that it would be very helpful to have knowledge of alternative communication and the principles of easy-to-read language. She also stated that she tries to use easy-to-read language in her work but all the knowledge she has she has acquired on her own initiative.145

Despite the general provisions of the Law on Protection of the Rights of the Child (Article 20 (3)), it does not work in practice and specific education laws and regulations do not particularly emphasize the need to take into account the expressed views of children with mental disabilities. More emphasis in law and practice should be put on the need to provide all the necessary support in order children in general, so that children with mental disabilities could also express their views and needs. In cases of children who do not verbally communicate, there should be more emphasis on alternative and augmentative communication.

Court proceedings on issues of education

Usually, once court proceedings are started, issues related to education are within the competence of the administrative courts. In administrative proceedings involving a minor, persons who have not attained the age of 15 years or who have been found to lack capacity to act, procedural rights are exercised by their legal representatives.146

There are very few court cases regarding access to education for children with mental disabilities. During the desk research phase RC ZELDA came across only two cases concerning education for children with mental disabilities and one case concerning access to education for a child with 141 Focus group discussion with parents held on 27 February 2014. 142 Interview with a special pedagogue conducted on 5 March 2014. 143 Interview with a special pedagogue, representative of municipal Pedagogical Medical Committee conducted on 5 March 2014. 144 Interview with a psychologist conducting assessments for the Orphans’ Court conducted on 27 February 2014. 145 Interview with a representative of the Municipal Police conducted on 13 March 2014. 146 Administrative Procedure Law [Administratīvā procesa likums], (adopted by the Saeima on 25.10.2001), Article 21(2), available in Latvian at: http://likumi.lv/doc.php?id=55567 (10.04.2015)

38 disabilities (it was not specified what kind of disability the child had). In one case a court ruled that the opinion of the Pedagogical Medical Committee is only advisory,147 but in another judgment by an administrative court, where the subject of the case was a parent’s refusal to follow the opinion of the Pedagogical Medical Committee (the mother wanted to send her child to a mainstream school, despite the fact that the committee issued an opinion that the most suitable for the child would be a special program at a special school)148. None of the reviewed cases showed that the court heard the opinions of the children themselves (in the first case the child was old enough for 1st grade, while in the second case child was in the age bracket of 6th grade).

One of the weaknesses of all the reviewed laws, regulations and policies as well their practice is the unclear role given to the child him/herself i.e. it is not clear if and how a child with mental disability should be involved in the assessment and decision making process regarding the school he/she should attend. The role of parents is also unclear, as well the mechanisms a child or parent can use in case they do not agree with a decision by the State Pedagogical Medical Commission. There should be a system developed so that all children, including children with mental disabilities can be involved in decision-making regarding all important decisions in their life, including choices about their education program, school etc.

During the empirical research phase RC ZELDA interviewed a representative of the Ombudsman’s Office, who stated that while relevant laws and regulations stipulate that it is mandatory to find out the opinion of a child, there is no mention that this opinion should be taken into account: “We see a tendency that the opinion is heard because of formal requirements, and the opinion is also reflected in documents, but in the final decision one can see that the child wanted something different from the decision made.”149

In our practice representing clients with mental disabilities, RC ZELDA has learned that in addition to obtaining a judgement supporting the wishes of the child and his or her parents it is essential to follow whether and how this court judgment is implemented.

In 2014 RC ZELDA provided legal assistance to a boy and his parents who wished to enrol in the 1st grade at a standard general education school. The recent for the legal action was the refusal of the municipality to enrol a child with special needs at a standard general education school, on the grounds that the selected municipal educational institution does not have a licensed special education program or a special teacher. The child’s parents were advised to send the child to a special school, but they did not wish to do this for several reasons. For example, the schools are located quite a long way from the family’s home and the family preferred to stay together at home rather than sending their child to a special boarding school. In addition, the parents had heard negative things about one of the offered special schools from other parents, moreover their son had attended a standard kindergarten where he successfully integrated into the kindergarten’s environment. Prior to taking legal action the family had actively sought assistance from various state institutions, but they were surprised to discover that the relevant institutions placed more emphasis on the child’s rights to special education and the parents’ duty to ensure this than to the child’s right to grow up within his own family.

After evaluating the facts of the case in conjunction with the family’s testimony and international law, the Administrative Court considered that “in this concrete case, the most appropriate form of education for the child’s needs is inclusive education – a special primary school program in a general education class together with other children”150. The court ruled that, taking into account that in the 147 Case No.A420536712; AA43-2475-13/4, judgement of Administrative Regional Court of 12 July 2013, (available in Latvian), http://www.tiesas.lv/Media/Default/Admin.tiesu%20spriedumi/Admin.apg.tiesas%20spriedumi/ J%C5%ABlijs/12.07.2013/AL_1207_apg_AA43-2475-13_4.pdf (10.04.2015) 148 Cases: No. A420341612; A03416-12/33, judgement of Administrative District Court of 9 May 2012, (available in Latvian), http://www.tiesas.lv/files/AL/2012/05_2012/09_05_2012/AL_0905_raj_A-03416-12_33.pdf (01.11.2013) and No. A420293413 (A02934-13/36), judgement of Administrative District court, Court of 16 May 2013, (available in Latvian), http://www.tiesas.lv/Media/Default/Admin.tiesu%20spriedumi/Admin.raj.tiesas%20 spriedumi/2013/Maijs/16.05.2013/AL_1605_raj_A-02934-13_36.pdf (10.04.2015) 149 Interview with a representative of the Ombudsman’s Office conducted on 20 February 2014. 150 Administrative District Court Judgment, No A420356314 of 10.10.2014., http://www.tiesas.lv/nolemumi (10.04.2015.)

39 concrete case the most suitable form of primary education for the child living in the municipality is inclusive education at the school closest to his home, studying in a class with other pupils enrolled in a general education program, the municipality is obliged without delay (after the entry into force of the judgement) to license at its educational institution a special primary education program for pupils with serious mental disabilities or several serious developmental disabilities and to implement it. It was also stipulated that after the introduction of the education program the child should be placed in a general education class at this school without delay.

In its judgment the court also cited the UN Convention on the Rights of Persons with Disabilities as well as the fact that the European Union (including Latvia) has stipulated that inclusive education is the recommended form of education for disabled persons.

Unfortunately, nothing changed after the judgement entered into force. The family continued to actively protect the child’s rights via the mass media and approaching the municipality again as well as the State Education Quality Service (SEQS). After assessing the situation, the SEQS concluded that after several months the judgment had still not been implemented, and requested that the municipality promptly ensure access for the child to primary education at the nearest educational institution to his home in accordance with the parents’ request. Ten days after the SEQS ruling, the boy began attending 1st grade classes at his chosen school.

6. Access to Justice for Children with Mental Disabilities in Administrative and Criminal Cases

To be administratively or criminally liable for a committed offence or crime, the child has to be at least 14 years of age at the time when the violation or crime was committed. All the decisions on possible punishment in administrative and criminal cases are taken in investigative procedures.

□□ If a child who has not reached 11 years of age has committed an administrative violation or a crime, he/she cannot be held administratively or criminally liable for committed the crime.

□□ If a child has reached 11 years of age, but has not reached 14 years of age:

◦◦and has committed an administrative violation, compulsory measures of a correctional nature can be applied. The case is reviewed by a municipal administrative commission which makes a decision on application of a compulsory measure of a correctional nature.

◦◦and has committed a crime, only compulsory measures of a correctional nature can be applied. The case is reviewed at a district (city) court in a closed court hearing.

□□ If a child has reached 14 years of age:

◦◦and has committed an administrative violation, compulsory measures of correctional nature can be applied. The case is reviewed by the municipal administrative commission.

◦◦and has committed a crime, the police send the case to the prosecutor who makes a decision on whether to hold the child criminally liable for the committed crime or apply compulsory measures of a correctional nature. The case is reviewed by the court.

□□ If the child and the victim so wish, a settlement can be concluded between the parties. This procedure is observed by the State Probation Service. If the outcome is successful, no correctional measures or criminal punishments are applied.

All cases relating to juveniles (irrespective of whether a child is a witness, victim or perpetrator) are reviewed at the same courts and committees as cases of adults. Only in a few municipalities are

40 special administrative commissions created to review cases relating to children.

Application of compulsory measure of correctional nature in administrative violation cases

The compulsory measures are specified in the Law on Compulsory Measures of a Correctional Nature151 (hereinafter the Law on Compulsory Measures). This law stipulates the types of compulsory measures and the criteria and order of their application. Compulsory measures of a correctional nature are applied in order to achieve behaviour that corresponds to the interests of society, ensure that the child refrains from illegal actions and re-integrate the child into society. Thus compulsory measures of a correctional nature are not punishments but merely tools that can be used to achieve more socially acceptable behaviour.

Regulation on compulsory measure of a correctional nature

The Law on Compulsory Measures is the only law that specifies conditions under which compulsory measures of a correctional nature can be applied:

□□ If the child is aged from 11 to 18 years;

□□ he/she has committed either administrative or criminal offence; and

□□ the child has committed one of these offences:

◦◦an administrative violation and the case materials are sent to a municipal administrative commission for the application of compulsory measures of a correctional nature;

◦◦a criminal offence:

-- a court has released him/her from the imposed sentence; or

-- a decision is taken to terminate criminal proceedings and send the materials to the court; or

-- a decision is made not to initiate criminal proceedings and send the materials to departmental investigation because the child has not reached 14 years of age.152

As mentioned before, compulsory measures of a correctional nature can be applied either by a municipal administrative commission or a court. The choice of institution depends on the type of offence and the age of the child. In case of administrative violations, the case will be sent to the municipal administrative commission but in case of a criminal offence the materials are sent to the district (city) court.153 In all cases the child has to be at least 11 years old.

Article 6 of the Law on Compulsory Measures also provides an exhaustive list of possible measures that can be applied in cases of administrative violations or criminal offences; these range from issuing a warning to placement of the child in an educational establishment for social correction. Additionally either the court or the municipal administrative commission may impose a duty on the child to undergo treatment from addiction to alcohol, drugs, psychoactive or toxic substances but only if legal representative of the child agree and if the administrative violation or criminal offence was connected to the use of the aforementioned substances. 154 The municipal administrative

151 The Law on Compulsory Measures of a Correctional Nature, enacted on 31 October 2002, entered into force on 1 January 2005, last amendments made on 22 April 2010 – http://www.vvc.gov.lv/advantagecms/LV/meklet/meklet_dokumentus html?query=Law+on+Compulsory+Measures+of+a+Correctional+Nature&Submit=Mekl%C4% 93t& results PerPage=10 (translation in English with amendments made till 17 March 2005) or http://www.llikumi.lv/doc. php?id=68489 (text in Latvian with all latest amendments) (10.04.2015) 152 Articles 2-4 of the Law on Compulsory Measures 153 Article 5 of the Law on Compulsory Measures 154 Articles 6 - 7 of the Law on Compulsory Measures

41 commission may apply all compulsory measures except for imposing the duty to perform community service and to place the child in an educational establishment for social correction. These may only be applied by a court.

When deciding on application of a compulsory measure of a correctional nature, the competent institution has to take into account:

the nature and causes of the offence or violation;

the child’s age;

□□ the child’s living conditions;

□□ the degree of his/her participation in the offence or violation;

□□ his/her behaviour:

◦◦in an educational institution; or

◦◦place of employment;

◦◦and domestic activities.155

Application of compulsory measures of a correctional nature

Currently there are 119 municipalities that include 9 Republic cities and 110 municipalities. In January 2014 RC ZELDA requested information from 38 municipalities (9 Republic cities and 29 municipalities), with populations greater than 10 000. This constitutes approximately 32 percent of all municipalities. The requested information covered issues relating to the workload and working principles of commissions, protection of the rights of the child during the process, whether they have dealt with any cases related to children with mental disability and whether members of the commission have any knowledge of alternative communication methods and easy-to-read language. Replies were received from a total of 26 municipal administrative commissions i.e. 68 percent of surveyed municipalities or 22 percent of all municipalities.

Although the Law on Compulsory Measures allows creating special administrative commissions that deal with issues relating to children, this approach was used only by two surveyed municipalities. During the period from 2009 to 2013 municipal administrative commissions made 779 decisions on application of compulsory measures of a correctional nature. In 53% of cases the commissions issued warnings, in 11% of cases the commission sent the child to consultation with specialist (psychologist, doctor or other specialist), and in 6% of cases the commission ordered the child to participate in social correction and social assistance programmes. Other measures were applied in less than 5% of cases. It should be noted that since 2009 the application of compulsory measures of a correctional nature has grown steadily. Whereas in 2009 there were only 39 decisions, in 2013 there were 229 decisions.156

All municipalities stated that they have never dealt with cases where children with mental disabilities were involved. Two municipalities contacted in telephone conversations claimed that children with mental disabilities are too passive to commit any administrative violations. During telephone conversations and in written answers, when providing replies to questions about special procedures for children with mental disabilities, there was a common perception that no special treatment is possible or even necessary, as all children are equal before the law, and state (including municipal) institutions treat children equally. In the opinion of RC ZELDA, this is a misinterpretation of equality because such an understanding prevents children with disabilities from receiving necessary support 155 Article 8 of the Law on Compulsory Measures 156 Some caution in relation to the data is necessary as there were some municipalities which did not provide information on applied measures of a correctional nature, others do not gather this information as this is not requested by the law, and in some cases only partial data was available.

42 and a more disability-friendly attitude.

Analysing the information provided by the municipal administrative commissions, it can be concluded that in all cases commissions are founded on the basis of decisions by the municipal council, which adopts the regulations of the commissions and elects all the members of the commission. On average there are 6 to7 members in commissions.

When asked about the criteria used to choose members of commissions, only 10 commissions (from 26) pointed out that important criteria for selection are education, previous experience and professional qualifications. For the rest of the commissions these criteria were not specifically mentioned either in their responses or in regulations adopted by the municipal council. It should be noted that in most cases municipal regulations do not specify any criteria but merely describe the competence of the commission, its establishment and elections of members.

Sixteen commissions stated that at least one of their members has special knowledge on the rights of the child. But only 6 commissions have members who have knowledge of the rights of children with special needs and children with mental disability. Six commissions have knowledge of easy-to-read language and only 2 have members who are acquainted with alternative communication methods. Nonetheless it should be noted that the commissions expressed readiness to invite special experts to ensure communication with children with mental disability.

Taking into consideration that municipal commissions do not have the right to officially request information on the existence of a child’s disability, they were asked how they acquire information on the special needs of children. Eight municipalities replied that information on the special needs of the child would be provided either by the legal representative or guardian. Four municipalities replied that information could be provided by the police, medical institution or an orphans’ court. The other municipalities replied that no such information is available for the commission and they did not specify whether there could be any way to get the information. It has to be noted that none of the aforementioned institutions have an obligation to provide information about the special needs of the child. If information was provided this could be a violation of the Data Protection Law. Thus municipal administrative commissions are effectively excluded from access to information that would ensure a more disability-friendly attitude and observance of the special needs of the child.

The commissions were asked to specify who may participate in their sessions. All the commissions replied that the child him/herself has to be present, as well as their legal representative or guardian, an orphans’ court representative, an expert from an institution on the protection of the rights of the child and a police inspector. If necessary, additional experts can be invited, for example representatives of educational and medical institutions, social workers etc. All of the municipalities replied that child has the right to represent him/herself and if the legal representative (parents) considers it necessary, then an attorney is allowed. However, the attorney cannot be requested by the child, but only by his or her legal representative or guardian. No distinction was made in relation to children with special needs or mental disabilities. Thus the same principles would be applicable.

During the empirical research phase RC ZELDA interviewed an employee of the Riga Municipal Police.157 It was noted that there is very good cooperation among municipal police, social services and orphans’ courts in Riga.158 They organise meetings at least once a month where all current issues are evaluated. The employee of the Riga Municipal Police was satisfied with the system in Riga, but expressed concerns about cooperation outside Riga. This was also corroborated by the experience of RC ZELDA, where on several occasions it was established that in most municipalities very poor cooperation exists between social services, municipal police and orphans’ courts. This problem could be more related to a lack of human and financial resources and administrative capacity.

Riga Municipal Police carries out important preventive work by providing lectures in schools (including schools for children with special needs). During these lectures police officers talk about how to avoid 157 Interview of 13 March 2014 with police officer of the Riga Municipal Police 158 A special cooperation agreement was concluded among these three institutions on issues related to protection of the rights of the child and especially in cases of use of drugs and violence

43 becoming a victim, where to turn if violations of rights occur and how to not become offender (which is prohibited by the law).

Each case of a possible violation is evaluated individually and it is possible to ensure a child–friendly and disability-friendly environment as the police officers who work at the Riga Municipal Police have diverse educational backgrounds, as psychologists, social workers, lawyers and other professions. Thus it is possible to communicate with a child in a way that is suited to children with special needs. It was also noted by the employee of the Riga Municipal Police that:

“Punishment is the last resort, because it does not change anything. [..] It is rather [..] education of persons, explanation, and talking, taking responsibility. [..] until they have reached 18 years of age children react to something with their behaviour. They are neither thieves, nor robbers, nor gangsters, nor something else. They simply react abnormally to abnormal situations in their lives and that’s it.”159

The most common violations among children with mental disabilities are smoking, violence in schools and violence in social media.

Analysing the information provided during the empirical research phase, it can be concluded that there is a serious lack of data, as the collection of statistics depends on good will of the commissions. This is especially true in relation to the age group 11-14 years, as there are practically no statistics available for this group. The administrative commissions also pointed out that compulsory measure of a correctional nature are not effective because children do not view them as punishment and even if some of the measures are applied, they do not have any effect on the future (contrary to punishment for criminal offence). They also consider that more stringent measures should be enacted and applied. RC ZELDA considers that the problem is not the attitude of children or the severity of compulsory measures. Firstly, compulsory measures should not be seen as punishment but as a possibility to change the social behaviour of the child without use of more severe measures. Secondly, application of compulsory measures may be used as a warning of more severe consequences in the future; nonetheless the administrative commissions admitted that they do not know what to do if a child doesn’t observe imposed limitations. Therefore, the response to the violation should not be limited to mere application of a compulsory measure, but should focus more on problem-based and person-centred research on possible causes of antisocial behaviour and correction of these causes. Thirdly, this requires close cooperation between the police (state and municipal), social services, psychologists (and other experts) and orphans’ courts and patient work with the whole family. Fourthly, there has to be very serious preventive work on the part of the police and social services which requires investment of financial and human resources. In recent research by RC ZELDA it was established that municipalities allocate not more than 8 percent of their budgets to social services.160 Additionally police use of social services is not oriented towards needs of persons and families, but towards fulfilment of certain criteria. Fifth, the members of commissions should be chosen based on their education and professional skills. Sixth, municipalities should create separate administrative commissions that deal only with issues related to children. Thus more people with knowledge of the rights and psychology of the child could participate and reasonable accommodations for children with special needs could be introduced.

RC ZELDA fully agrees with the opinion of the Riga Municipal Police officer that almost any violation which a child perpetrates is more a reaction to an abnormal situation in his/her life than a deliberate action. By reacting to a child’s behaviour with correctional measures and without providing necessary support, society punishes the child for a situation in his/her family and environment and increases his/her isolation and antisocial behaviour.

Access to Justice for Children with Mental Disabilities in Criminal Procedure

The aim of this chapter is not to describe the criminal proceedings, but rather to focus on a specific 159 Interview of 13 March 2014 with police officer of the Riga Municipal Police. 160 RC ZELDA lawyer A.Mazapša “Right to Family Life for Persons with Mental Disabilities”, 2014, p.8 -

44 regulation that exists to protect the rights and interests of children with mental disabilities and address the practical challenges they face. All cases where a crime has been committed will be reviewed in accordance with the Criminal Law161 and the Criminal Procedure Law162. The case can be brought before court or may be resolved through alternative mechanisms163 the use of which will depend on the severity of the crime. All these options can be used also in cases where child is involved either as a witness, victim or alleged offender and the use of the relevant mechanism does not depend on the existence of mental disability.

Irrespective of the status of the child during criminal proceedings, according to Article 59 part 5 of the Protection of the Rights of the Child Law164 “if a child with special needs has been conveyed to the police, conditions for fulfilling the special needs of the child shall be ensured and if necessary a specialist can be invited to provide medical or other support to the child.” Police officers may request contact details of the child’s general practitioner or paediatrician, who may provide more detailed information about the health condition of the child and whether special assistance is necessary.165

During questioning of the child in pre-trial investigation some special regulations have to be observed irrespective of the status of the child in criminal proceedings (suspect, accused person, victim or witness) and irrespective of existence of special needs for the child.

□□ Questioning has to be carried out as soon as possible

□□ Questioning has to be carried out by the same performer of investigative action (as much as possible) and this person needs to have special knowledge on communication with juveniles. In case of lack of such knowledge or if performer of investigative actions considers that necessary, juvenile can be interrogated in presence of pedagogue or psychologist.

□□ Total length of questioning during 24 hour period cannot exceed 6 hours (including brake).166 Thus to avoid victimisation and damage to the psyche of the child, he has to be interrogated either through pedagogue or psychologist. The performer of the investigative action has a duty to inform the child of why cer- tain investigative actions are performed, importance of information that could be obtained during questioning and has to ask questions in such manner that is appropriate to the psyche of the child.167

Additionally if the child is younger than 14 years of age or is a victim of violence or sexual abuse and if direct questioning could harm psyche of the child, it can be carried out by technical means and through psycholo- gist. Technical means in this case include video and voice recording, questioning in special room.168 All the testimonies acquired during pre-trial investigations can also be read out in court, if according to the opinion of psychologist questioning (direct or through psychologist) could harm psyche of the child. This is to avoid 161 Criminal Law enacted on 17.06.1998, entered into force on 01.04.1999, last amendments on 12.02.2015 - (translation in English with amendments made till 14.03.2013) or (in Latvian with all latest amendments) (10.04.2015) 162 Criminal Procedure Law, enacted on 21.04.2005, entered into force on 01.10.2005, last amendments on 29.01.2015 - (translation in English with amendments made till 23.05.2013) or (in Latvian with all latest amendments) (10.04.2015) 163 The prosecutor may: 1. enter into an agreement with the accused and transfer the criminal case to a court 2. apply to the accused an injunction regarding a punishment 3. terminate criminal proceedings, conditionally releasing from criminal liability 4. take a decision on termination of criminal proceedings 5. take a decision and transfer the criminal case to a court for the determination of security measures of a medical or correctional nature 164 Protection of the Rights of the Child Law, enacted on 19.06.1998, entered into force on 22.07.1998, last amendments on 06.03.2014 - (translation in English with amendments till 06.03.2014) or (in Latvian with all latest amendments) (10.04.2015) 165 Article 10 part 10 of the Law on the Rights of the Patients 166 Article 152 of the Criminal Procedure Law 167 Article 153 of the Criminal Procedure Law 168 Article 153 of the Criminal Procedure Law

45 repeated victimisation.

It has to be noted that throughout the Criminal Procedure Law, no regulation exists that would specifically mention and would be specifically applicable to children with special needs and children with mental disabil- ities for that matter.

1. If the child is an accused or alleged offender

All children (suspect or accused) are represented through defence counsel and if necessary a representative.169 Only sworn advocate can be defence counsel, it is obligatory and the child cannot refuse from defence counsel.170 Representative of the child can be specific persons that are listed in Article 89 of the Criminal Procedure Law. The representative has the same rights as the child. The Criminal Procedure Law does not specify whether a child may enforce his/her rights directly or only through his/her defence counsel or representative.

2. If the child is a victim

If harm has been caused to a child, the victim has to be represented by one of his or her relatives (legal representatives) or representative of an authority or NGO that protects the rights of children.171

All the rights of a victim belong completely to his or her representative, except for the rights of a minor to provide testimony and express his/her views.172 If the child has reached 15 years of age he/she may implement his/her rights together with a representative. The advocate may also be appointed as a representative of the minor, if one of three conditions exists:

□□ requested by appointed representatives or

□□ representation is encumbered or

□□ it is not provided.173

If the child is younger than 14 years of age or is a victim of crimes connected to violence, sexual abuse or human trafficking and based on reference of psychologist, repeated questioning of a child during proceedings is allowed only based on a decision of the investigative judge or of the court.

Based on EU directive No. 2012/29/EU174 further amendments will be made in the Criminal Procedure Law to improve protection of victims in criminal proceedings. The draft amendments provide that a new status will be introduced – specially protected victim. All juveniles who become victims in criminal proceedings will automatically be recognised as specially protected victims. In addition to the general rights of victims, they will have several special rights:

□□ Questioning will be carried out in specially adapted premises;

□□ Questioning will be carried out by trained specialists or with their help;

□□ All questionings will be carried out by the same person;

□□ If the victim has suffered violence or sexual violence, he/she will have the right to be questioned by a person of the same gender as the victim;

□□ Participation of a trusted person.

169 Article 83 part 1 point 1 and Article 89 of the Criminal Procedure Law 170 Article 88 part 3 of the Criminal Procedure Law 171 Article 104 part 2 of the Criminal Procedure Law 172 Article 104 part 4 of the Criminal Procedure Law 173 Article 104 part 5 pf the Criminal Procedure Law 174 Directive 2012/29/EU of the European Parliament and of the Council of 25.10.2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA - http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF

46 During the court hearings the victim will have these rights:

□□ To not meet the perpetrator and to be listened to using communication technologies;

□□ Unnecessary questioning about the private life of the victim will be forbidden;

□□ Possibility to review the case in closed court session.175

These draft amendments will be reviewed by the Parliament (Saeima) and thus may change.

3. If a child is a witness

All the aforementioned regulations are also applicable in relation to child witnesses (except for attorneys and representatives). The child is not obliged to give statements about his parents or other close relatives and he/she is not warned of criminal liability for giving false statement if the child is younger than 14 years of age.

Practical issues

During the study RC ZELDA sent requests to the State Police for interviews on issues relating to protection of rights of children in criminal proceedings, where the child is an alleged perpetrator, victim or witness. Unfortunately the State Police refused to provide any comments or interviews and stated that during criminal proceedings everyone is treated equally and without any discrimination. The police have no information on whether people with mental disabilities could have problems in accessing the justice system. There is also no information in databases or special statistical data available on children with mental disabilities in criminal proceedings.176

Nonetheless during the focus groups several specialists pointed out problems in the work of the State Police. During the focus group discussion where representatives of state and municipal institutions participated, it was noted by the orphan’s court that the State Police are very ineffective. Even in cases where children are involved criminal proceedings are very lengthy and only on rare occasions are they concluded with criminal cases in court. The main problem is gathering evidence. Unfortunately the representative of the orphans’ court was not willing to go into detail on this issue.177 Additionally the representative of the Riga Municipal Police described cooperation with State Police as exchange of information and transfer of case materials if the perpetrated violation falls under competence of the State Police.178

No statistical data has been gathered on how many children with mental disabilities have been alleged perpetrators, victims or witnesses in criminal proceedings. Publicly available information only describes children in general without further specification of the existence of mental disability of any kind.

However, during the focus group discussion with parents that took place on 27 February 2014 one of parents talked about her experience with police investigating allegations of sexual abuse of her child with mental disabilities. Her child has severe mental disability and he cannot communicate verbally. There were suspicions that the child during his stay at school has experienced sexual abuse from a nurse. The child had physical injuries which were confirmed by a doctor at the Children’s Hospital. Every time the child met the nurse, he started to act differently and became very agitated. His mother submitted an application to the police, which was investigated for some time, but eventually the complaint was dismissed because the child could not verbally communicate. The mother also sought assistance from a centre for prevention of violence against children. This centre has worked 175 Draft Law „Amendments to Criminal Procedure Law”, Project no.VSS – 63 (available only in Latvian) (10.04.2015.) 176 Letter from the Juvenile Prevention Department of the State Police Riga Regional Administration Order Police Administration No.20/10/5-13294 of 6 March 2014, received at ZELDA on 10 March 2014 and provided as a reply to the information request sent by RC ZELDA on 5 March 2014. 177 Focus group discussion with representatives of state and municipal institutions held on 25 March 2014. 178 Interview of 13 March 2014 with a police officer of the Riga Municipal Police

47 on many occasions together with the police and provides expertise on possible violence (emotional, physical or sexual). But in this particular case they could not provide any expertise or counselling as they do not have methods how to work with children who do not communicate verbally. The mother expressed her concern about the protection of the rights of her child and she felt that police and other institutions had not done their utmost to provide assistance and protection.179

“The child is absolutely unprotected. In our case from I felt that he has no chance and he is not protected and that his rights are not observed. Even in this case when he acts differently and people see that, but as he can’t talk, he cannot give any statements. [In centre for prevention of violence against children] I was told that [if my child] does not talk [..] there are no opportunities.”180

Although this is only one of the cases mentioned during the focus groups, it serves to illustrate problems that RC ZELDA has encountered during its practice. The State Police, which is responsible for criminal proceedings, lacks understanding and practice on how to handle situations related to children with mental disabilities, especially on questioning techniques and communication methods.

7. Training of specialists on the rights of children with mental disabilities in Latvia

The need and demand for training

The need for training of specialists working with children has been apparent for many years. For instance in 2006 the UN Committee on the Rights of the Child (CRC) in its Concluding Observations for Latvia recommended that Latvia should increase its efforts to provide adequate and systematic training on children’s rights for professionals working with and for children, including judges, lawyers, law-enforcement personnel, teachers, health-care professionals and social workers.181 Further the CRC Committee recommended that Latvia shall (b) develop community-based skills- training programmes for parents, teachers and other professionals working with and for children, to encourage children to express their informed views and opinions by providing them with proper information and guidance.182

Examples from conducted research indicating the need for additional training:

1) In the framework of this project RC ZELDA conducted research on the work of municipal administrative commissions. In January 2014 RC ZELDA requested information from 38 municipalities183. The requested information included issues relating to protection of the rights of the child during proceedings, whether they have dealt with any cases related to children with mental disability and whether members of the commission have any knowledge of alternative communication methods and easy-to-read language.

The answers provided by the municipal administrative commissions revealed that:

□□ only 10 commissions pointed out that important criteria for selection of members of the commission are their education, previous experience and professional qualifications. For the rest of the commissions these criteria were not specifically mentioned either in their responses or in regulations adopted by the municipal council;

□□ 16 commissions stated that at least one of their members has special knowledge on the rights of the child. In most cases this has been obtained through special courses organized in accordance with the Law on Protection of the Rights of the Child (40 hour course on the rights of the child). Only 6 commissions had members who have knowledge of the rights of the child with special

179 Focus group discussion with parents held on 27 February 2014. 180 Focus group discussion with parents who have children with mental disabilities held on 27 February 2014. 181 UN Committee on the Rights of the Child: 28 June, 2006, CRC/C/LVA/CO/2, available at: http://www.refworld.org/docid/45377ee96.html, point 19 (c), (10.04.2015) 182 Ibid., point 25 (b) 183 In total 26 municipal administrative commissions provided answers to RC ZELDA’s request.

48 needs and rights of the child with mental disability;

6 commissions had knowledge of easy-to-read language and only 2 have members who are acquainted with alternative communication methods. Nonetheless it has to be noted that the commissions expressed readiness to invite special experts to ensure communication with child with mental disability. Thus they are ready to search for special assistance in cases where a child with mental disability is involved.

2) In the framework of this project in March 2014 RC ZELDA also carried out an internet survey with judges. The survey was sent out to all district (city) courts, in total to 34 courts. In total 12 judges provided answers. All the judges considered that although they have basic knowledge about the rights of the child (obtained by visiting special courses (8 answers), in university (4 answers); through self-education (7 answers)). However all judges considered that they would need additional education on issues of the rights of the child. Ten judges out of 12 indicated that they do not have knowledge about rights and 7 judges indicated that they would like to acquire knowledge on alternative communication methods with children with special needs.184

An example of good practice

On 13 March 2014 RC ZELDA carried out an interview with an employee of the Riga Municipal Police. It was concluded that Riga Municipal Police carries out important preventive work by providing lectures in schools (including schools for children with special needs). During these lectures police officers talk about how to avoid becoming a victim, where to turn if violations of rights occur and how to not become an offender (what is prohibited by the law). The interviewed police officer also emphasized that the aim of the municipal police is not to punish a child for administrative or any other violation i.e. punishment is the last resort.

The most common violations among children with mental disabilities are smoking, violence in schools and violence in social media. The interviewed police officer emphasized that any such violation which a child perpetrates is more a reaction to something than a deliberate action.

Although there could be some differences when applying administrative penalties for violations by children with or without special needs, each case is evaluated individually.

Police officers who work at the Riga Municipal Police have diverse educational backgrounds, as psychologists, social workers, lawyers and other professions. Thus if a problem occurs on how to communicate with a child with mental disabilities it can be solved with the assistance of other colleagues. Additionally Riga municipality has paid for courses on protection of the rights of the child. Police officers need additional training on how to recognize indications that a child could have mental disability.

During the interview RC ZELDA tried to understand how the particular police officer knows how to work with children with mental disabilities, how the police officer has learned to recognize that a particular person could have mental disability and what communication methods to use. At the end of the interview the police officer stated that he/she has a university diploma in psychology. Thus he/ she has fewer problems to communicate with children with mental disabilities.185

Specialists who should be trained in children’s rights

According to the Law on the Protection of the Rights of the Child186 matters related to the protection of the rights of the child in all public and municipal institutions should be considered by specialists who have special knowledge in this area. In 2014 the law was supplemented with an additional list of specialists who are required to have expertise in the field of protection of the rights of the child. Therefore, in accordance with the latest amendments to the Law on the Protection of the Rights of 184 All data from internet survey with judges of district (city) courts, conducted from 21 to 28 March 2014. 185 Interview of 13 March 2014 with an officer of the Riga Municipal Police. 186 Law on Protection of the Rights of the Child [Bērnu tiesību aizsardzības likums], (adopted by the Saeima 19.06.1998), Article 5.1, available in Latvian at: http://likumi.lv/doc.php?id=49096, (10.04.2015)

49 the Child, the following specialists working with children should have knowledge in children rights:

1) managers of out-of-family care institutions, social workers and social rehabilitators;

2) chairpersons, deputy chairpersons and members of orphans’ courts,;

3) heads of educational institutions, deputy heads in educational work;

4) specialists in the State Educational Quality Department;

5) specialists in youth matters;

6) prison officers who work with juveniles;

7) heads of municipal administrative committees or heads of sub-committees in child cases of municipal administrative committees;

8) heads of municipal pedagogical medical committees;

9) employees of municipal police who work with children and families;

10) social workers in municipal social services who work with children and families,

11) public prosecutors;

12) social pedagogues and psychologists who work with children;

13) heads of social services;

14) judges;

15) inspectors of the State Inspectorate for the Protection Children’s Rights;

16) the head of the State Pedagogical Medical Committee;

17) officials of the State Police who work with children;

18) general education, vocational education and interest education pedagogues;

19) employees of the State Probation Service;

191) attorneys;

20) any other persons adopting administrative decisions (especially administrative acts), taking decisions on actual actions or other forms of activities or official duties which affect or may affect the rights and legal interests of children.

Content of the training

In order to acquire specialist knowledge of the protection of children’s rights a specialist should complete a training programme of 40 hours. The educational programs may include following subjects (the necessity and amount of each subject may be determined depending on the profession of the trainee and their professional activities ): the system for the protection of the rights of the child and regulatory enactments regarding matters of protection of the rights of the child; application of international legislative acts in the protection of the rights of the child;

50 the rights and duties of parents and children; violence against a child, the types and indications thereof; violence in the child’s family; inter-institutional co-operation for the protection of the rights of the child; principles for developing contact with the child; juveniles in criminal, administrative and administrative offence proceedings.187

Specialists must complete this training programme within a year of taking up their position188. Every five years the training should be repeated (follow-up training should be 24 academic hours).

On 3 June 2014 the Ministry of Welfare issued Order No.51 “On approval of the sample curriculum for the acquisition of specialist knowledge in the field of the protection of the rights of the child”.189 Under Order No.51 samples of the 6 professional qualification programmes of the curriculum development were approved. Several samples of programmes concern justice system professionals (police officers, prison officers, judges, prosecutors and attorneys):

40 hour programme for State Police officers, officer of the State Probation Service and prison officers190;

This programme addresses various general issues and covers inter alia children rights generally, rights of child with disability in the light of the UN CRC; specific aspects of communication with various target groups, including children with mental disabilities (possible causes and behaviour; mental health disorder levels; specific aspects of communication with children with mental disabilities); specific aspects of communication with children with visual, physical or hearing impairments (causes, outcomes, specific aspects of communication); specific aspects of communication with children who are using addictive substances (causes, outcomes, specific aspects of communication); children with psychosocial and behavioural disorders (causes, outcomes, specific aspects of communication); it also covers issues related to developing skills in communication with child witnesses, what factors influence statements (cognitive processes (peculiarities of perception, memory, reasoning, specific aspects of language and speech)); individual psychological specifics (such as tendency to be influenced, uncritical imitation, tendency to fantasize, dependence on others’ thoughts and views); emotional state of mind (fear, tension, anxiety etc.); child-friendly environments for questioning etc.

2) 24 hour programme for State Police officers, officers of the State Probation Service and prison officers191; 187 Cabinet of Ministers Regulation No 173 “Regulation on the procedures by which shall be acquired special knowledge in the field of the protection of the rights of the child, as well the content and the amount of this knowledge” [Ministru Kabinets “Noteikumi par speciālo zināšanu bērnu tiesību aizsardzības jomā apguves kārtību, šo zināšanu saturu un apjomu”], (adopted on 01.04.2014), available in Latvian at: http://likumi.lv/doc.php?id=265516, (10.04.2015) 188 Transitional Regulation No. 25 of the Law on Protection of the Rights of the Child prescribes that all the professionals listed in Article 5.1 part one, points 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 15, 16, 18, 19 and 20 who have not acquired special knowledge in the field of protection of the rights of the child, shall acquire this knowledge not later than 31.12.2014. According to Transitional Regulation No. 26 of the Law on Protection of the Rights of the Child specialists, i.e. prison officers who works with juveniles, prosecutors, judges, State Police officers who work with children, and officers r of the State Probation Service who represent juveniles in criminal proceedings shall acquire special knowledge in the field of the protection of the rights of the child not later than 31.12.2017. After this transitional period if the person has not acquired special knowledge in the field of the protection of the rights of the child he or she shall be dismissed from his/her position. After the end of this transitional period there should not arise situations in practice where a child is represented by a sworn attorney who has not obtained special knowledge in the field of protection of the rights of the child. 189 http://www.bti.gov.lv/in_site/tools/download.php?file=files/text/LMrik_SpecZin_specializetie.doc (10.04.2015) 190 Sample of the curriculum for the acquisition of the special knowledge in the field of the protection of the rights of the child. for the State Police Officers, the Officer of the State Probation Service; the Prison Officers (40 hours) [Profesionālās kvalifikācijas pilnveides izglītības programmas speciālo zināšanu bērnu tiesību aizsardzības jomā apguvei 40 akadēmisko stundu apmērā paraugs (Valsts policijas amatpersonām, ieslodzījuma vietu darbiniekiem, Valsts probācijas dienesta darbiniekiem)], available only in Latvian at: http://www.bti.gov.lv/in_site/tools/download.php?file=files/text/Pielikums_policisti_40.docx, (10.04.2015) 191 Sample of the curriculum for the acquisition of the special knowledge in the field of the protection of the rights of the child. for State Police officers, officers of the State Probation Service and prison officers (24 hours), (10.04.2015)

51 This programme addresses issues of violence against children (sexual, physical, and emotional) and specifically covers issues of violence against children with special needs, including children with mental disabilities, children with psychosocial and behavioural disorders and children with visual, physical, hearing impairments, as well as ensuring child-friendly environments for questioning etc.

3) 40 hour programme for judges, prosecutors and attorneys192;

This programme addresses various general issues and covers inter alia children rights generally, rights of child with disability in the light of the UN CRC; specific aspects of communication with various target groups, including children with mental disabilities (possible causes and behaviour; mental health disorder levels; specific aspects of communication with children with mental disabilities); specific aspects of communication with a children with visual, physical, hearing impairments (causes, outcomes, specific aspects of communication); specific aspects of communication with children who are using addictive substances (causes, outcomes, specific aspects of communication); children with psychosocial and behavioural disorders (causes, outcomes, specific aspects of communication); it also covers issues related to developing skills in communication with child whiteness, what factors influence statements (cognitive processes (peculiarities of perception, memory, reasoning, specific aspects of language and speech)); individual psychological specifics (such as tendency to be influenced, uncritical imitation, tendency to fantasize, dependence on others’ thoughts and views); emotional state of mind (fear, tension, anxiety etc.); child-friendly environments for questioning etc.

4) 24 hour programme for judges, prosecutors and attorneys193

This programme addresses issues of violence against children (sexual, physical, and emotional), and specifically covers issues of violence against children with special needs, including children with mental disabilities, children with psychosocial and behavioural disorders, children with visual, physical, hearing impairments, a child-friendly environment for questioning, etc.

All programmes described above are limited to 40 or 24 academic hours (depending on the previous training of the professional). RC ZELDA considers the limited time given for training cannot provide in-depth knowledge of methods for working with children with mental disabilities. Therefore it is still insufficient to provide efficient access to justice for children with mental disabilities on an equal basis with others. Also it is necessary to develop guidelines on how to find out the opinion of a child with mental disabilities and how to find out the opinion of a child who does not communicate verbally.

192 Sample of the curriculum for the acquisition of the special knowledge in the field of the protection of the rights of the child. for judges, prosecutorsand attorneys (40 hours) [Profesionālās kvalifikācijas pilnveides izglītības programmas speciālo zināšanu bērnu tiesību aizsardzības jomā apguvei 40 akadēmisko stundu apmērā paraugs (Tiesnešiem, prokuroriem, advokātiem)], available only in Latvian at: http://www.bti.gov.lv/in_site/tools/download.php?file=files/text/Pielikums_tiesnesi_40.docx, (10.04.2015) 193 Sample of the curriculum for the acquisition of the special knowledge in the field of the protection of the rights of the child. for judges, prosecutors and attorneys, (10.04.2015)

52 Recommendations

1. The research conducted by RC ZELDA showed that in most situations proceedings are not child-friendly at any levels – at the orphans’ court, pedagogical medical committee or court levels. It is necessary that all the aforementioned levels develop more child-friendly proceedings and environments.

2. During all phases of the study RC ZELDA researchers struggled with the issue of lack of data. This issue was also raised at the focus group discussion, where not all the specialists saw it as a problem, however RC ZELDA believes that lack of proper data limits the opportunities to provide proper help to children in general, as well to children with mental disabilities. It also prevents researchers and state institutions from properly evaluating problems at different levels where children with mental disabilities are involved and make necessary improvements for better protection of the rights and interests of the child.

3. It is necessary to develop guidelines on how to find out the opinion of a child with mental disabilities and how to find out opinion of a child who does not communicate verbally.

4. Training courses on protection of children rights, which is mandatory to all specialists dealing with children, should also involve methods of working with children with mental disabilities.

5. It was obvious that parents of children with mental disabilities lack a unified support system and parents have mostly been looking for information and possible support by themselves.

6. Since available support services for families with children with disabilities in Latvia differ from municipality to municipality (larger municipalities are in a relatively better situation), local community support systems could be developed i.e. neighbouring families could be involved as supporters to a particular family. It is necessary to include in the law the minimum level of social services and assistance that has to be provided to families and children.

Several representatives of orphans’ courts stated that they could avoid taking decisions about removal of custody rights from parents if adequate support from the municipal social service was available for families with children with mental disabilities and parents who have mental disability. For example if a family assistant (only a few municipalities provide this service) could assist a family every day during the first month rather than twice a week for a few hours, than the number of visits could be reduced.

7. In the framework of criminal proceedings there is no effective oversight of implementation of children rights, nor is the Children’ s Rights’ Protection Inspectorate or the Ombudsman’s Office involved in controlling how a child’s rights are protected in criminal proceedings. The Inspectorate does not see any possibility to increase the number of specialists and they do not have any expertise in cases where a child is a victim, witness or alleged offender to protect the rights of the child in the criminal proceedings.

RC ZELDA believes that it is necessary to provide sufficient funding for alternative and preventive measures to prevent juveniles from committing administrative violations or criminal offences. Even if a minor has violated the law, it is important to involve social services in order to prevent the escalation of the problem. It is necessary to develop a Conception of Juvenile Justice, which would include precise definitions and core principles.

8. It is necessary to have only one Children’s Hotline and to make it available and accessible to children with mental disabilities, including those living in institutional and community settings, homeless children and children living in segregated communities.

9. RC ZELDA suggests that orphans’ courts could be turned into specialised family courts dealing with issues relating to children, divorce and rights of persons whose legal capacity is restricted based on court judgements. Court proceedings should be made directly accessible to children and should be informal and child-friendly. In this way it would be possible to create a more accessible court system for children where their rights and individual needs are taken into account.

53 The association “Resource Centre for People with Mental Disability “ZELDA””’ (RC ZELDA) is an NGO based in Latvia promoting de-institutionalisation and the development of community based mental health and social care services for people with mental disabilities (people with intellectual disabilities and people with psycho-social disabilities) through research, monitoring of observance of human rights, legal advocacy, strategic litigation and activities informing and educating the public. RC ZELDA has eight years’ experience in researching and monitoring human rights, and working with government to harmonize national laws and regulations with international human rights standards in the field of mental disability law and advocacy. More information on RC ZELDA is available athttp:// www.zelda.org.lv/en.

Authors:

Ieva Leimane-Veldmeijere has been the director of the NGO Resource Centre for People with Mental Disability “ZELDA” since June 2007. Previously (1995-2007) she worked in various positions (researcher, deputy director, program director) for the NGO the Latvian Centre for Human Rights (LCHR), where she mainly dealt with issues relating to mental disability advocacy, as well as issues relating to the rights of asylum seekers and refugees, rights of children and women’s rights. Ms. Leimane-Veldmeijere holds a BA and MA in Philosophy (University of Latvia) and in 2009 she obtained with distinction an International Diploma in Mental Health Law and Human Rights in the distance learning program of the Indian Law Society’s Law College (Pune, India) in cooperation with the World Health Organization. I.Leimane-Veldmeijere is also an SPC (School of Psychotherapy & Counselling at Regent’s College (London, UK)) Accredited Mediator.

Santa Skirmante has been a staff lawyer-researcher with the Resource Centre for People with Mental Disability “ZELDA” since October 2012. Ms. Skirmante holds an LLM in International and European Law (with specialisation in International Human Rights) from the Riga Graduate School of Law. Ms. Skirmante has proven expertise in disability related issues, rights of children and rights of people with mental disabilities, as she regularly provides legal assistance to persons with mental disabilities and their family members and provides consultations related to disability rights to various state and municipal agencies.

Annija Mazapsa has been a staff lawyer-researcher with RC ZELDA since October 2011. Previously (2004-2010) she worked for the Ombudsman of the Republic Latvia dealing with various civil and political rights issues. Ms. Mazapsa holds an LLM in International Human Rights Law from Lund University in Sweden and Bachelor of Law from the University of Latvia. Since 2005 she has represented applicants to the European Court of Human Rights.

54