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English Language Page States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. At the beginning of the discussion of the subject specified above we are to make a reservation the necessity of which is stipulated purely stylistically. This reservation is to remind one that on the road to a democratic model of society the legal field and social environment in our country are developing at different paces. Ideas of the legislature that are implemented in habitual fashions reach the society in an altered form. Therefore, while focusing our attention on legal aspects we will digress now and then to provide comments from the viewpoint of the social reality. 1. History of the Issue In the pre-revolution Russia (prior to 1917), as well as in Europe of that time, the provision of psychiatric care to children had been regulated by general rules of health care until the efforts of an advanced community of physicians (V. Bekhterev, P. Kaschenko, G. Rossolimo, et al.) resulted in the identification of theoretical and organizational foundations of the three primary directions of activity: treatment of patients, education of mentally challenged, and upbringing of the defective (as people with mental conditions were known back then). Since then child psychiatrists have been applying their efforts and developing their expertise with these three directions in mind. The Soviet period of total planning of free-of-charge health care and social security made its own contribution to the realization of humanistic ideas and resulted in the development of child psycho-neurology characterized by certain specifics. In the health care practice the problem of psychiatric registration emerged which was accounted for by the workload norms of the physician the chief and decisive priority of the planned health care system. The fact of the matter is that the number of ill children (i.e., the share of juniors in the overall population and the level of early-age morbidity) treated by a child psychiatrist was several times smaller than that treated by an “adult” psychiatrist which means that the former was entitled to privileges when it came to remuneration standards. Such an impingement of the bureaucracy-style idea of equality could not be tolerated by the Soviet system in principle. It established the workload norm at 600—700 children per neighborhood physician and the latter had to look for a way out of that situation. In addition to the 100—150 children who were brought for therapy by their parents on the walk-in basis, students from schools for mentally challenged children who did not require therapy but whose diagnoses qualified for reporting purposes were assigned to each of the child psychiatrists. The latter actively participated in the activities of medico-pedagogical commissions and gradually a certain alliance emerged between them and the teachers within the framework of which coordinated diagnostics ensured a smooth growth of applications for places in educational institutions for mentally challenged students. From the experience of the Russian Association of Pedagogical Rehabilitation of Children and Adolescents. In one of the Russian towns with a population of 30 thousand people the local medico-pedagogical commission diagnosed more than 30 cases of oligophrenia among the first-grade students annually. When psychologists interfered and demanded that teachers should provide sufficient and reliable proof of these children’s inability to study in regular classes the number of mentally challenged students dropped to 10—15 per year. Utilization of the expansive diagnostics of oligophrenia which clearly did not coincide with life experience of the population resulted in the fact that one stopped paying any attention to the fact of somebody’s going to a school for the mentally challenged. Mentally challenged individuals began to be drafted to serve in non-combatant corps of the military while statistics confirmed that at least 60% of those diagnosed with “debility” did not experience any significant problems in social adaptation. Naturally the time came when the public opinion was perturbed by the ongoing prophylactic medical examination of children lagging behind in their studies with the view of diagnosing them with mental conditions which is why child physiatrists had to adjust themselves to focus more of their activity on working with difficult children. In addition, the state changed its policy with respect to younger generations in the 80s. During the Soviet era the secondary school did not complete the process of upbringing as it used to pass its charge over to successors which were powerful and costly institutions of personality formation: professional and technical colleges and the army collective. Nobody seriously intended to put multimillion armies of youths to work or provide jobs to millions of machine-tool operators. The main task, and it was never concealed, was to bring up Communists. The task was tackled with perseverance, consistency, and relative success. However, resources eventually ran out and the state was forced to reduce the scale of professional training to the level that was only necessary to meet the demands of economic production and re-orient the army to tackle combat-associated tasks. Many youths and girls found themselves on the outskirts of the upbringing environment as the secondary school had turned out to be their last instance of public education. The system of education was suddenly jeopardized by having to deal with difficult children which required serious skills of rehabilitative pedagogics. And although initially the education system authorities attempted to escape the looming responsibility by making such declarations as “the school is not obligated to take care of one‘s upbringing,” they were unable to “barricade” themselves within their own walls and had eventually to start looking for partners among whom child psychiatrists turned out to be. At this point it is necessary to remember that cooperation between physicians and teachers once yielded quite questionable results already when following the proletarian revolution and affected by illusions that the system could act in the interests of the society the provision of social support for the “defective” was tackled by three people’s commissariats: those of enlightenment, health care, and justice. Paedology was a branch of science that promised a human solution of problems caused by anomalous childhood. Ten years had not passed however when the government prohibited any forms of paedologic activities “in view of abuses that have taken place.” The interest to psycho-environmental adaptation of children and adolescents with mental deviations resurfaced when works of Î. Kerbikova, À. Lichko, G. Ushakov, et al. had prepared a theoretic foundation of a new stage of pedagogical pathopsychology. And again, like half a century before, the practice has contributed its corrections. The psychiatrist faced a dilemma: whether to change the work style, learn pedagogics, and go to work for an institution of learning in which the patient always stays in sight after the consultation, or to stay in the study room and limit oneself to passing medical conclusions which teachers will use at their own discretion. The second method of replenishing the dispensary group was simpler for psychiatrists and more preferable for teachers who do not welcome interference in their work by specialists of a different profile. As sad as it is but one has to state that psychiatrists not only opened specialized offices and departments in hospitals to which school teachers and later on military commissariats and the police began to forward those who misbehaved but they also laid down a conceptual foundation for such a practice. The report of N. Vostroknutov, Head of the Department of Social Psychiatry of Children and Adolescents of the State Scientific Center of Social and Court Psychiatry named after Serbsky, runs as follows: We understand school desadaptation as child’s inability to comply with the conditions and requirements of the school education process. The choice of the rehabilitation approach depends not on the improvement of the conservative regime measures but on the creation of a therapeutic rehabilitation system for children with school adaptation problems. Why do children experiencing school adaptation problems represent a risk group when it comes to criminal activity? The reason is hidden within the peculiarities of the psychopathological picture of mental deficiency. It is: ...personal immaturity, inability to set goals and select priorities, and increased aggressiveness. Such interpretation of the problem when security is understood not as protection but as something akin to convoy, and nonconformity with requirements of the school which experiences a severe methodological crisis — as psychopathology, — our mentality which one cannot help taking into account when assessing the legal field of social protection of children with mental conditions, anomalies, and deficiencies. 2. Reformative Intentions of the Legislature The state’s habit of many years to handle people’s property at its own discretion has contributed to the development of a specific administrative vocabulary and now that the state is reducing the territory of the social space under its control relying on the mechanisms of public self-government, the language of the legislature savors of illusions of the erstwhile puissance. The prohibitive tone in the absence of actual implementers combined with the permission for the citizens to take care of themselves at their own expense infuses normative formulations with peculiar irrationality. The Foundations of the Legislation of the Russian Federation on the Health Care of Citizens, in particular, stipulate: Underage individuals with physical or mental deficiencies of development... may be accommodated in social security institutions at the expense of charity foundations as well as at the expense of their parents or custodians. Given that the nascent municipal law is till looking to identify the right proportion between the roles of the independent master on its own territory and the suitor of means and permissions from higher-level authorities, it is sometimes difficult to understand from the current legislation which segment of the state is responsible for each particular area of social security, when socially vulnerable individuals (and children) are to rely upon local governments, and in which cases no one is likely to assist them except for the society and their own families. Vagueness of formulations combined with confusion results in the fact that the legislature is frequently satisfied with autistic implementation of wishes instead of having a clear vision of the short-term and long-term goals of the social policy. On the Central Idea of the Reform Undoubtedly, the cornerstone idea that determines the contours of the developing legal field is the transition from the state-funded social security structure whose services can only be used by those who happen to obtain a spot in the queue to the “nominal state obligation” with respect to a particular person who has the right to seek protection in the court of law should executive authorities refuse to comply with it. This means a breakage of deeply rooted traditions. In such circumstances the system has to adapt itself to the society and it may as well turn out that it has more employees than necessary (boarding schools and orphanages were initially quite pained by the outflow of children into foster families having calmed down only when they realized that the family in a broad sense was not a strong enough competitor to them). The system of centralized distribution in general develops only expansively and is never reduced of its own accord. Stemming from the common sense therefore, one had to expect the emergence of a certain instance authorized to provision the person with the right to the “nominal state obligation” of social support, as well as to determine its magnitude and content. Further on, following normal logic, one had to associate the activities of such a commission with the competence of the legislative power which determines the share of budget means allocated for social needs and is to direct the executive power as to how much of the budget means is to be given to whom, and to authorize the court to protect citizens from possible violation of their rights. At this point it would be worthwhile to remember that until but several years ago the social law had been considered in our country to be a bourgeois relic unworthy of the Soviet citizen and even today some “social security law” is used instead of the foundations of legislation. Directions of the Legislative Thinking Taking into account all of the above said we will retrace the development of the main idea within the framework of those types of activities where rights of children with mental conditions are protected in reality. In health care the medical examination, dispensary registration, and hospitalization are regulated by Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” which provides that decisions affecting children under 15 years of age are made by their parents or custodians. If there is a conflict between them on the account of the necessity of psychiatric interference the decision may be made by patronage and custody authorities or in the order established by the RF Family Code for resolution of conflicts associated with the upbringing of children. Health care institutions do not require consent of both parents and professional assistance is provided at the request of only one of them. When a child is submitted to a psychiatric institution at the request or with consent of its parents it is to be examined by a commission of physicians which is to confirm the necessity of hospitalization (Article 31 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy”). When a child is submitted to a social security institution its parents retain the right to act at their own discretion until the child is 18 years of age. Psychiatric care is provided to children free of charge. It is funded from health care and health insurance funds. What prevails when it comes to children with severe conditions is the policy of transition from acknowledging a child to be an invalid to restoring its life activity and social adaptation. Among adults this policy is implemented by encouraging mutual assistance, establishing enterprises employing mentally afflicted individuals, reserving jobs quota, and utilizing a complex approach to therapy which includes participation of psychologists and social workers on a par with psychiatrists. To a certain degree this trend is extended to also include underage adolescents. The majority of problems lies in the sphere of education and upbringing. It is not the involvement of teachers in the work of health care institutions that is emphasized here, even though such a variant is accounted for by Article 12 of Federal Law “On Education of Individuals with Limited Health Capacities,” but physicians’ participation in the activities of teachers, social workers, and partners working with the younger generation. Naturally, a multitude of purely technical and procedural issues arises in this respect, such as those having to do with physicians’ qualifications, their workload norms, professional growth possibilities, provisioning with means of therapy and prophylaxis, etc. So far they have not been legislatively approved but forwarded to the government for further development. Legislation only endorses the desirability of this particular direction of activities. Article 7 of Federal Law “On the Basic Guarantees of the Rights of the Child in the Russian Federation” stipulates: Pedagogical, medical, and social workers... who are responsible for the upbringing, education, health care, and social protection of the child ... may participate in activities designed to ensure the protection of the rights and legal interests of the child, that are administered by health care, labor, social development, law enforcement, and other authorities responsible for the protection of the rights of the child. Approving provisions regulating activities of health rehabilitation institutions working within the systems of Education and Social Security Ministries, the government authorizes participation of physicians in the activities of these institutions, failing however to provide any details or clarifications on that account. Article 27 of Typical Provision on the Institution of Learning for Children Requiring Psychological, Pedagogical, Medical, and Social Assistance stipulates: Depending on the nature and primary directions of activities … institutions may account for positions of medical doctors, medical nurses, and other specialists within their staff. Article 17 of Model Provision on the Social Rehabilitation Center for Underage Individuals stipulates: Medical specialists of the center involved in the direct provisioning of socio-medical services are entitled to benefits established for medical employees of state health care institutions. Health care authorities do not prevent other ministries from hiring medical doctors but they also do not rush to establish a system of professional training, methodological guidance, and organizational support for the management of this cohort of specialists which is quite numerous already. And although the share of medicine in the “nominal state obligations” is still identified quite diffusely, the process of penetration of the educational sphere by doctors and the socio-medical sphere — by pedagogues dissolves the boundaries of the former inter-ministerial competition, therefore children have a real hope to receive assistance should they happen to be afflicted by problems of social adaptation caused by mental deficiency. The core notion in education is “special approach” which is proclaimed by Federal Law “On Education” and accounted for by Federal Law “On Education of Individuals with Limited Health Capacities” which was adopted as stated in the preamble of the latter “with the view of developing a legislative base that meets the requirements of individuals with limited health capacities in obtaining education, adaptation, and integration into the society.” As it may be inferred from these laws the legislature attempts to give up the principle of putting together the student body of specialized institutions of learning on the basis of similar defects afflicting the students and employ the principle of “joint education of individuals with limited health capacities with individuals who have no such limitations” by creating special conditions for the former the right to which is accounted for by the “nominal state obligation” that “establishes the responsibilities of state power bodies of the Russian Federation or its subject to finance in compliance with existing norms the education of individuals with limited health capacities as they attend all types of institutions of learning regardless of the manner in which they undertake their programs of study.” All parents have left to do is petition to the instance that issues respective orders, have the child undergo an examination, and deliver the “obligation” to the municipal school operating on the territory of their residence. Should a conflict ensue the court is prepared to confirm the respective responsibilities of authorities. But firstly, the status of the manager of “obligations,” i.e., the psychological-medical-pedagogical commission is not clear enough. It is created based on the following proportion: “one commission per 10 000 children [approximately 50 000—60 000 of the general population — B. Àlmazov], but not less than one commission per each subject of the Russian Federation” (approximately 1—8 million people). “The order of institution and typical provisions regulating activities of psychological-medical-pedagogical commissions are established by the Government of the Russian Federation.” In other words, the legislature has no intention of interfering with the procedure of issuance of “nominal state obligations” relying on the government which “must fulfill them” in compliance with the letter of the law. It is not incidental that the text of the law uses the verb “to create” in the passive voice (“is created”) without specifying how exactly it is done. Verbs used in the passive voice in the text of a law is a dubious thing in general; their presence means that the deputies do not have a clear idea of the legal foundation of the notion they introduce hoping that it will be particularized as the body of judicial practice accumulates. Secondly, “institutions of learning attended by individuals with limited health capacities are funded by their founders, as well as [emphasized by B. Àlmazov] at the expense of funds of the federal budget or that of a subject of the Russian Federation.” Such a reference to the founder, i.e., municipality, should mislead any administrator who must know for certain if the state will cover expenses accounted for by a “nominal state obligation” or if he should rely exclusively upon himself since the share of funds provided by other sources may turn out to be purely symbolic. Thirdly, “control over the enforcement of legislation on special education is exercised by prosecution authorities” which seems to sound logical enough since control over the law enforcement is one of the direct responsibilities of prosecution authorities, but given that the order of petitioning to the court is not defined (it is not clear whether it is done in the general order or via the patronage and custody authorities, with or without participation of the commission on the affairs of underage individuals and protection of their rights, etc.) doubts remain as to whether children with deviations in their mental development can hope that their legal interests will be protected in the court of law. As we see, the law is till far from being able to adequately respond to the dictates of the real life. It undoubtedly defines progressive intentions but their implementation will continue for a certain while to depend on initiatives at the local level where at work is a customary scheme: for children with oligophrenia — a specialized school for mentally challenged children; for children with delayed mental development — correctional classes; for the mentally unstable — institutions of learning with psychological-pedagogical and medico-social assistance. Student bodies are put together on the basis of parental consent and recommendations of administrative commissions provided that spots are available in each particular institution. No cornerstone idea can be spoken of when it comes to social work. The state simply reacts to the situation of crisis as much as it can afford to having postponed any long-term intentions until a more or less remote future. The situation with social security of childhood invalids is developing in a relatively simpler mode. In this area there is a well-organized structure of institutions that take care of those who do not have an opportunity to live in a family. They are homes for the disabled and hospitals for patients with severe conditions, as well as boarding schools in which therapy or correction is combined with education. When the child lives in a family, one of his parents or custodians receives financial benefits that facilitate the care and upbringing of the invalid. People who work in this sphere undertake as many efforts as possible to adapt the child to the life in society taking into account the faculties that the child has preserved, but their efforts sooner express their civil position rather than the legislated policy. At any rate, their initiatives are mostly funded by charity foundations and public organizations. Much more disadvantaged are those children whose mental conditions do not require therapy or confinement in a specialized institution but transform into social adaptation disorders accompanied by behavioral deviations. E. Krepelin once noted that mentally deficient individuals who have lost support of their families for one reason or other “inevitably find themselves between the highway, the workhouse, and the prison.” The XX century added to this category the group of mentally unstable people who, according to E. Fromm, have the propensity to run from the freedom to life’s curb in the most primitive circumstances. In our country the notorious barrack-style socialism, giving each individual the right to earn enough to sustain oneself under the condition of having to work under the threat of criminal penalty, managed to hold social adaptation of mentally challenged people within more or less acceptable boundaries, but the situation has now changed. Social alienation begins at an unforgivably early age and leads to one’s marginalization well before the time when the person becomes capable of freely choosing his social position. The crisis of the idea is that the state, proclaiming uncustomary for itself and the people slogans “each one stands for himself, only God stands for everyone,” “freedom is competition,” “the school is not obligated to take care of one’s upbringing,” etc., cannot treat the society as a “prisoner in irons shoved out into a heath.” It would like the family and society to take care of social problems independently but is forced to realistically assess their possibilities and preserve certain outdated institutions of social support despite the fact that the course that it has taken is headed towards reformation of life’s mode. Three streams of efforts are directly related to the subject under discussion. First — is the protection of the right of the child to be brought up in a family if for one reason or other it has lost family support. Until recently orphans had been mostly brought up by the state which allowed the family that wanted to adopt a child to act exclusively in the capacity of custodian until the child becomes of age or adopt a child on the condition that the child is vested with the rights of a kinsman. Such a serious step was quite naturally accompanied with tangible limitations. In particular, it was forbidden to take a child with a mental condition out of the foster institution. The modern Family Code introduced the notion of “adoptive family” which may adopt a child temporarily on the basis of an agreement executed by and between the family and the local self-government body. And although this mechanism is also afflicted with a number of health-based limitations they are much less numerous than before which allows children with mental conditions to hope that their fates will one day improve (we have already mentioned the resistance of the state patronage and custody system to the possibility of its being annihilated by the family institution when we discussed the perspectives of reformative intentions in general). Second — the struggle with the street children phenomenon by means of social support when, figuratively speaking, urgent social assistance is required that is capable of holding the child within the walls of a foster home for the time necessary to resolve all the issues associated with the placement of this child in a family or a boarding school. The emergence of shelters for street children within the structure of state organizations was an unusual phenomenon as such because the methods used in their work are mostly characteristic of charity organizations, but given that no such organizations existed in our country the state had to start dealing in philanthropy on its own. The reaction to their appearance was totally predictable. The school and the family perceived them as an opportunity to get rid of the cares associated with the upbringing of difficult children afflicted by the notorious “deficit of attachments.” And although the RF Family Code (Articles 122, 123) categorically requires to undertake all necessary measures to place the child in a family within the shortest time possible threatening heads of rehabilitation institutions with liability, the shelters continue to play the role of the backs behind which hide slack parents who do not want to do the painstaking job of improving the social skills of “difficult” children. Today the shelters are emergency facilities where children can sometimes stay for several months and nobody takes care of their rehabilitation. Federal Law “On the Foundations of the System of Prevention of the Street Children Phenomenon and Juvenile Delinquency” demonstrated an intention to rationally distribute the responsibility for the social support of those who have lost supervision and parental patronage. However, the recommendatory tone of the legislature is frequently interpreted in the administration of justice as a possibility to avoid participation in a common undertaking. As a result the mechanisms of social coercion including specialized foster institutions used with respect to street children work more or less stably, while the social support remains at the level of the most primitive methods of charity on behalf of the state. Let us hope that at some point in the future the society will be able to take responsibility for operation of shelters and street children with mental deviations will be able to count on diversified assistance. Until then they will have to put up with what is available now. Third — returning to schools uncompetitive truants from among adolescents who are not content with being the “ones unwelcome by the system.” Such children are quite numerous and today they are forwarded to specialized institutions of learning, first and foremost, to boarding schools for children with mental deviations. In the meantime, they need rehabilitative pedagogics that relies upon strong sides of individuality to the detriment of the normative requirements of diversified development. Serious efforts have to be taken to achieve modest results and mediocre grades which to the modern system of education with its focus on the “state order” and “provision of services” is simply not interesting. The conclusion that seems to invite itself is that the upbringing of such children has to be handled by specialists who do not forget their pupils immediately upon their graduation but are rather to integrate the youth into life and prevent him from marginalization and disappointment in himself and the society, i.e., by representatives of social security bodies controlled by municipalities. But this does not happen. The existing structures are controlled by education authorities. An odd collision emerges when dictates of the law are addressed to those who would like to avoid complying with them (the system of education), and those who are interested in them (the social security system) are left in the outskirts of the legal field. According to the logic of the legislature the solution of the problem should be in the hands of the municipality which is to move budget funds to where they are most needed, but at present it is not capable of tackling such tasks. Head of administration and mayor mostly provide the territory for the work of organizations of the federal and regional level but they do not manage their activities. And although a certain progress can be observed in this direction, educational institutions for children requiring psychological, pedagogical, medical, and social assistance due to their unresponsiveness to traditional methods of education and upbringing, remain within the system of education. In police activities one has to take into account the general doctrine of state coercion exercised with respect to violators of the rules of collective living on the background of which some progressive intentions acquire more or less concrete contours. The Soviet labor-correctional system based on the coercive collective labor corresponded with the tasks that existed back then because in essence it went along with the mode of life led by the people, only in more stringent conditions. It is not incidental that criminal penalties for the mentally challenged but sane individuals were fixed on common grounds. And although the Criminal Code mentioned therapeutic-correctional institutions for underage delinquents, in practice there was no need in them. In addition, isolation in the conditions where labor was the means of social adaptation was used with other types of delinquent behavior as well. Drug addicts were forwarded to the labor-therapeutic facility of the Ministry of Internal Affairs, while vagabonds and malignant truants — to special closed-type institutions of industrial training. Under new circumstances when the mode of life in the society and in conditions of confinement became significantly different the state had to switch from the concept of correction to the concept of re-upbringing. Respectively, individual differences including psychopathological ones began to play an important role in the selection of law-enforcement tactics. First of all, it is necessary to note that the state did not start turning colonies for juvenile delinquents in educational camps to replace the lost industrial training facilities or non-combatant (construction) military collectives, even though the penalty implementation authorities clearly demonstrated their intentions to assume this role to preserve and possibly expand the existing structures. The main task of re-upbringing was entrusted upon the society at large under the supervision of territorial penalty implementation inspections. This triggered the establishment of therapeutic-educational facilities not behind the barbed wire but directly within the society. Resolution of the RF Government #420 of April 25, 1995 “On the Special Educational Institution for Children and Adolescents with Deviant Behavior” accounted for the establishment of “special general education schools for children and adolescents with developmental deviations who have jeopardized the society by having committed dangerous actions” of an open type within the system of the Education Ministry. Such schools should admit both underage delinquents — at the decision of the court, as well as children and adolescents with asocial behavior — with consent of their parents confirmed by the conclusion of an administrative commission. Practice showed that socio-medical rehabilitation and even supporting therapy are of primary importance in institutions of this type. Thus, the police (juvenile delinquency subdivisions of internal affairs authorities) obtained a real possibility to socially accommodate the most difficult category of children and adolescents those whose mental deficiencies are accompanied, as ancestors used to say, by “negligent and corrupt upbringing, extreme ignorance and poverty.” The court practice has also seen some changes that were caused by the intention to single out juvenile justice as a separate sphere of activity. And it is understandable, since the volume of tasks associated with the prevention of malicious utilization of mental deficiencies of adolescents, establishment of one’s mental status, direction to specialized therapeutic-educational institutions, protection of the right to the “nominal state obligation,” and resolution of disputes on issues of adoption and custody has long exceeded the level at which the general practice judge does not experience difficulties in the evaluation of evidence. This area requires not only specialists who are prepared to explain to the court the peculiarities of child and adolescent psychology and psychopathology, but also individuals who are prepared to effectively participate in court proceedings. In fact they do exist: inspector of the patronage and custody authority, prosecutor and inspector of internal affairs, people responsible for the protection of the rights of underage individuals, and administrations of institutions of health care and education authorized to act in the interests of its patients and pupils. What one needs to do now is to establish the norms of review of the cases that are within the competence of the juvenile court. Most likely this will be done in the nearest future. 3. Protection of General Rights of the Child with Mental Conditions In our discussion we will adhere to the UN Convention On the Rights of the Child ratified by the USSR Supreme Council on June 13, 1990, preceding each section with a quotation from its text and indicating the relevant article. The Right to Life and Health States Parties shall ensure to the maximum extent possible the survival and development of the child (Article 6). The fact of one’s mental condition diagnosed in compliance with the national classification of illnesses gives the affected individual the right to receive comprehensive medical assistance free of charge. Medical assistance is solicited by the parents for as long as the child is under 15 years of age after which the adolescent has the right to independently regulate his relations with health care institutions and authorities. When it comes to children afflicted with oligophrenia, their parents or custodians make decisions for them until they reach the age of 18. The Right to Social Security States Parties shall recognize for every child the right to benefit from social security (Article 26). Children who are invalids due to a mental condition may be placed in social security institutions to be provided for entirely by the state. Mentally deficient children attend boarding facilities of auxiliary institutions of learning. In cases when the invalid child is brought up at home by its family one of its parents receives benefits compensating for the expenses incurred in the process of the upbringing and support of the child. The Right to Proper Upbringing States Parties shall ensure that a child shall not be separated from his or her parents (Article 9). The right of the child to be brought up in the family is specifically guarded by the RF Family Code. There are no specific injunctions established for children with mental conditions but in cases when parents are burdened by living together with a mentally ill child they retain the right to petition to the state and request that their child be placed in a social security institution. A child temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State (Article 20). Institutions for social orphans in our country have long-standing and stable traditions. They provide socio-medical methods of rehabilitation, especially in shelters that offer temporary assistance and accommodate the child until it is placed in a family or a boarding school. No social rehabilitation institutions exist for children with mental conditions. States Parties recognize the right of every child alleged as… having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth... (Article 40). There are no specialized institutions for underage individuals with mental conditions who have infringed the law but the therapeutic-educational style of treatment is integrated ever more actively in the practice of open-type rehabilitation centers. The Right to Education States Parties recognize the right of the child to education (Articles 28, 29, 30). The learning capacity that depends on the nature accounts for the necessity of different methods (special approaches) of education. There is a defectological service and a program of socialization specifically designed for children afflicted with oligophrenia. Pedagogical rehabilitation of those who have difficulties adequately responding to traditional methods of education and upbringing is yet to obtain its own doctrine. There is a popular trend among pedagogues to put such children together in groups on the basis of similar deficiencies and simplify the program of study for them. The legislature has adopted a policy to integrate them into the natural school environment. It is not clear as yet which trend will eventually prevail. The Right to Labor States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development (Article 32). Unfortunately, as of today the spontaneous participation of underage individuals in unregulated labor relations in our country affects the most vulnerable layers of the population. Graduates of auxiliary schools and institutions for children with delayed mental development do not have any guarantees of social accommodation. Employers are not bound to fulfill any obligations associated with social adaptation of unequipped adolescents which renders the latter very probable victims of exploitation since they are frequently unable to independently defend their rights in labor relations. The Right to Be Protected from Violence States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment (Article 19). Mentally challenged children and adolescents more often than their normally developing peers fall victims of negligent treatment in problem families, rejection in organized groups, and adverse impact of social elements. The fact of their helplessness and vulnerability however is taken into account only by the criminal legislation as a circumstance aggravating the punishment of the perpetrator. When their rights are infringed upon in other circumstances they may not count on special legal protection. The Right to be Protected from Illicit Use of Narcotic Drugs and Psychotropic Substances States Parties shall take all appropriate measures, including legislative… to protect children from the illicit use of narcotic drugs and psychotropic substances (Article 33). Children addicted to narcotics and toxic substances are patients of the narcological service of the health care system whose responsibilities include not only the provision of medical care, but also “identification, registration, and monitoring,” i.e., functions of social prophylaxis. At the same time the criminal and administrative laws penalize any forms of involvement of underage individuals in the use of psychoactive substances or participation in activities associated with their trafficking. Even such a laconic list of the basic rights of the child demonstrates that children with mental conditions being initially ill-adapted to life conditions are not comprehensively protected. In essence they are treated as legal personalities only when they are subject to a certain estrangement from the society. Social support in ordinary circumstances when the child and its parents experience difficulties in the realization of their rights and freedoms is not regulated by the law. Compassion towards those who have been disadvantaged by the nature remains within the confines of ethics and morality. And it is right. Things change when one has to interfere with everyday relations of people in which the role of the mental deficiency is for one thing not quite obvious, and for the other — disguised, as our ancestors used to say, by “extravagant behavior.” Indeed, it would be unreasonable to complain to the court that your restless and slow-witted child is ridiculed by his peers or that his teachers refuse to notice him in the class even though for the psychology of an underage individual these wounds can result in more serious repercussions than for that of an adult person whose legal rights have been infringed. Using legal mechanisms to regulate the process of upbringing is not only difficult but it also is not worth the while. Pedagogics is based upon trust. Therefore the legislature limits itself to creating conditions leaving the rest to the culture and civilization about the level of the development of which, as it is known, one may judge by the attitude of the people towards their own and others’ mental deficiencies. 4. Special Legal Status of Underage Individuals Afflicted with Mental Conditions or Deviations The right of the disabled child to special care… for which application is made… by individuals caring for the child… shall be… designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development (Article 23). The essence of this provision of the Convention can be simply put in the following statement: budget funds must be granted to those who apply for financial assistance, provided that they have sufficient grounds to do so. In the humanistic sense this approach does not cause any doubts, but it does require some particularization when applied to psychopathology. Firstly, mental conditions are not always viewed by parents as a reason to seek professional assistance; therefore psychiatric care must be pro-active to a certain extent. Secondly, not everybody wants their child to be thought of as deficient therefore psychiatric care must not be burdensome. Thirdly, parents often start seeking compassion from the state only when they are forced to do so by the fact that the adaptation disorder of their child has become noticeable, and not in advance if psychiatric care were preventive. Fourthly, the fact that the social environment exerts pressure against the deficient child instead of taking care of it does not constitute something that the state will perceive as a subject of penalty. Thus, “special care” depends more on the administration than legal protection whose role is to only establish certain boundaries within which the state has to make decisions in favor of mentally deficient people. Measures against Discrimination in Education Legislation on the protection of the rights of children has categorically forbidden any preliminary testing of mental abilities of the child at the time of admission to the municipal school on the territory that it serves. The only exception was made for institutions of learning that fulfill the state order on educating especially gifted children. This forces school administrations to look for variants of “special approaches” acceptable for the parents which would keep the integrity of the child’s interaction with the class and ensure its integration in the social environment, and education authorities to form the infrastructure of districts in such a manner as to take into account demands of the population and not the interests of the school itself. Obligatory Participation of a Medical Doctor in the Work of the Rehabilitation Center Typical provisions on rehabilitation centers for children and adolescents within the system of education, social security, and committees on the affairs of the youth, family, and childhood, approved by the Russian government require these centers to employ medical doctors which, although not a licensing requirement yet, is already taken into account when the charter of such an organization is approved. And although there is no direct indication as to the professional specialization of the doctor it would be logical to assume that he or she would have to deal with issues associated with social adaptation of children with mental conditions, supporting therapy, and psychotherapy. Exemption from Criminal Liability Accounted by Mental Deficiency Strictly speaking, the level of one’s mental development (the ability to fully comprehend the actual nature of the incriminated actions and the danger they pose to the society, as well as the ability to organize and manage such actions) as an indicator of age-based sanity is not associated with one’s being mentally deficient. Nonetheless, the focus on the subjective nature of one’s guilt expands the evidential base of the defense in the sphere of individual, including psychopathological, peculiarities of the personality. At any rate, the role of the psychological-psychiatric expertise in the juvenile court is being significantly expanded. Social Support in the Form of an “Individual Program of Child’s Rehabilitation” The necessity to hand child’s parents with the “nominal state obligations” is so far defined only on paper but there are grounds to assume that in the foreseeable future it will become one of the direct responsibilities of the executive power and perhaps even the legislature. Thus, children requiring social support on a variety of grounds including their suffering from mental conditions or deviations will receive a document which in itself possesses organizational power. It sets a certain order of work, a method of implementing a humanistic policy. Its economic aspect has not been particularized so far, but it is not necessary. Funding-related issues will be clarified later when there is enough work experience. It would be unreasonable to forecast the terms of introduction of social support technologies that are more complex than state philanthropy. Conclusions When society’s mode of life changes human rights are observed to as significant an extent as that of the magnitude of these changes. Affected most are not the legal schemes that may look quite fundamental, but the traditions based on ethics upon which largely depends people’s merciful attitude towards individuals who are ill-adapted to life in the society. In our country the guarantees of the rights of children with mental conditions to social protection and support reveal their declarative nature as reforms move ahead from words to actions. Three levels of this phenomenon can be identified. First — social security of the infirm and invalids has remained unchanged in the legal formulations with multi-centennial traditions. In practice, there are not enough resources to meet the requirements of all the needy, especially those who suffer from caring and bringing up a sick child while having to earn a living, but this does not directly relate to the legislation as such. Second — the administrative tradition of embodiment of the Communist idea of public consumption resists the democratic aspirations of the legislature. Socially ill-adapted mentally deficient children are forced to wait till municipalities obtain the power of real self-government and eliminate the inter-ministerial chaos of centralized distribution under which the existence of any “nominal obligations” is quite out of the question. Third — the transition from mercy to the plane of moral duties takes time during which children with mental deficiencies will suffer from the burden of indifference and remain under the pressure of “neglect” of the social upbringing. |
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