监护制度与未成年人保护

无论是监护权与亲权并存的大陆法系国家的民法,还是英美法系国家和我国监护权与亲权的民法立法体例,监护权无疑对保护未成年人有重要的作用.但其在保护未成年人的问题上也有不足,本文通过对监护制度的分析,指出现行监护制度在保护未成年人问题上的不足,提出自己的设想以求教于方家.     

论我国未成年人监护监督制度

为有效保护未成年人人身、财产合法权益,《中华人民共和国民法通则》设立了监护制度,构建了未成年人监护基本制度和原则;《最高人民法院关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》对未成年人监护制度进行了一些补充规定;《中华人民共和国未成年人保护法》确立了未成年人权利优先的原则。一定意义上讲,我国未成年人监护制度已初步形成一定的体系,但随着社会的不断发展,有些规定突显出它的不足,如:现行立法依赖亲属监护;缺乏行之有效的监护监督机制;监护监督制度几乎空白,等等。国外关于监护监督制度的规定较为完善,有可借鉴之处。基于此,考虑从建立对监护人监督机制等方面完善现行监护监督制度,包括设立监护监督人并明确监护监督人的职责,由民政部门作为行政监督机构,具体化监护监督措施,等等,以更好地维护未成人合法权益。     

创新救助管理工作机制 推进未成年人社会保护

2014年9月27日,第九届全国救助管理站站长交流会暨未成年人社会保护试点工作经验交流会在长春召开。会议以"创新救助管理工作机制,推进未成年人社会保护"为主题,旨在分享救助管理工作的创新做法,探讨救助管理工作在社会救助体系中的功能定位,交流未成年人社会保护试点工作的有益经验,以进一步统一思想,提高认识,明确任务,推动工作创新发展。民政部副部长窦玉沛在会上提出,要积极应对救助管理工作面临的新要求新挑战,全力推动救助管理工作,倾力推进未成年人社会保护试点工作,要在现行制度框架下,逐步推动建立"以家庭监护为基础、社会监督为保障、国家监护为补充"的监护制度,形成"家庭、社会、政府"三位一体的未成年人社会保护工作格局。     

创新中突破 探索中前行——湖北荆州市未成年人社会保护试点工作探索

近年来,随着农村劳动力向非农产业转移和城镇化建设步伐的日益加快,未成年人保护工作越来越引起社会关注,救助工作中的数据也显示,流浪未成年人中绝大部分存在无人抚养、留守、辍学、监护缺失、遭受家庭暴力侵害等情形,因此,建立社会保护制度,健全社会保护网络,是新时代赋予我们的神圣使命。     

陕西宝鸡市:引导参与 确保实效

正陕西省宝鸡市从研读政策文件、完善工作机制、创新工作模式入手,不断探索未成年人社会保护工作的新方法和新路径,保障未成年人合法权益,试点工作富有成效。探索建立社会保护工作机制该市确定了未成年人社会保护工作重点对象和保护内容:即对经济贫困、监护缺失、家庭暴力、教育失当等因素影响造成的困境未成年人,整合部门和社会力量,提供监护监督和指导、经济救助、消除     

未成年人社会保护试点工作重在:准确把握 深入推进

为探索建立未成年人社会保护制度,民政部于2013年5月份发文,确定20个地区开展未成年人社会保护试点工作,并于6月份在桂林召开试点启动会议。至今一年时间已经过去,全国各地在争取领导重视、整合部门资源、引导社会参与、拓展救肋机构职能等方面创造了很多有效做法和先进经验,初步形成了监测、预防、报告、转介、处置"五位一体"的未成年人社会保护工作机制,如何推进试点工作向纵深发展?民政部副部长窦玉沛在四川仁寿县召开的全国未成年人社会保护试点工作讲习班上的讲话给出答案:首先要准确把握试点工作的目标任务;其次要建立未成年人社会保护工作机制;第三是积极开展监护支持和干预工作:第四是拓展救助保护工作职能;第五是加速培育专业社会力量:第六是强化试点工作组织保障。     

常德市救助管理站：创建“家庭监护”安置模式

湖南常德市救助管理站流浪未成年人救助保护中心自2003年成立以来,力求开拓创新,在＂自愿求助、无偿救助＂的基础上,坚持＂主动救助＂,大胆探索＂家庭监护＂安置模式,从源头上扼制了流浪未成年人反复流浪乞讨、重复救助的现象,确保市城区流浪乞讨未成年人的到位监护,保护了其合法权益。     

安徽蚌埠市:主动作为 未雨绸缪

正安徽省蚌埠市民政局将未成年人家庭监护干预作为试点工作的重中之重,结合自身实际,积极探索,以及时发现为突破口,以体制创新为目标,逐步形成了行政干预为主导,司法干预为保障的工作机制,未成年人社会保护试点工作取得了一定成效。据统计,去年下半年至今,共办理监护变更82人,监护委托3人,其他监护干预120人。分工与联动协调统一试点工作开始不久,该市未成年人社会保护领导小组专门召开成员     

论建构我国未成年人前科消灭制度

正确理解前科消灭制度的内涵,了解域外前科消灭制度的状况,是建构我国未成年人前科消灭制度的必要前提。我国刑事法律没有前科消灭制度之规定,但从保护和关怀未成年人成长的角度看,建构我国未成年人前科消灭制度非常必要,它有利于贯彻对失足未成年人的教育、感化和挽救的社会矫治政策,保护未成年犯罪人的合法权益,促使他们及早复归社会,符合国际社会未成年人司法的发展趋势;同时,建构我国未成年人前科消灭制度,具有法律依据、主体属性依据和刑事司法政策依据。建构我国未成年人前科消灭制度,必须完善刑事立法,明确和规范前科消灭的条件与程序,加强社区矫正制度建设。     

四川仁寿县:三位一体 创新模式

正四川省仁寿县创新构建了以家庭监护干预为核心、独具仁寿特色的未成年人社会保护"1685工程",形成了"政府+社会+家庭"三位一体的未成年人社会保护格局。形成分类施助机制201 3年5月,该县经过反复探索实践,成功构建未成年人社会保护"1685工程",制定《仁寿县未成年人社会保护试点工作实施方案》,突破了救助对象单一的现状,实现对流浪儿童救助拓展到对     

Child protection in China: Changing policies and reactions from the field of social work

This article offers a general review of the development of national policies on child protection in China. It offers an in‐depth analysis of related legislation enacted between 2010 and 2015 that have had an impact on child protection and related historical, cultural and legal issues. Furthermore, in the study we examined the emerging role of social work in preventing and responding to child abuse and neglect in China. Major findings of the research include: (i) policies concerning child protection have been highly influenced by Confucianism and its perspective of the child as family property; (ii) child protection regulations on accident reporting, custody transfer, and surrogate care are gradually being refined and improved, although the legal system for child protection is still incomplete and needs further substantiation; and (iii) the involvement of non‐governmental organisations (NGOs) and social workers has enhanced the child protection system. Key Practitioner Message: ? Policies concerning child protection have been subject to an immense impact by Confucianism, placing strong responsibility on family members in providing childcare although the child is viewed as part of the family's property; ? After 1949, the newly founded socialist political structure began to exert a significant influence on welfare and child welfare policies. Because the Confucian perspective emphasised family and parental responsibility, government in China has traditionally not been heavily involved in policies that interfere in the internal workings of families; ? Since the shift toward an open‐door policy in 1979, child protection policies in China have begun to develop, with a child welfare network gradually spreading to cover the majority of children. Moreover, child protection is generally supported by the legal system, within which regulations on accident reporting, custody transfer and surrogate care are gradually being refined and improved. However, despite the huge progress achieved in recent years, there are significant deficits in its implementation and monitoring; ? The involvement of non‐governmental organisations (NGOs) and professional social work services has promoted a child protection system.     

Custody and Counselling Under The Australian Family Law Act 1975 — Some Sociological Observations

Because the counselling provisions of the Family Law Act are such significant innovations with far-reaching consequences, their periodic evaluation is mandatory. Drawing on the experience of the author in a custody case, the paper provides an analytic and sociological interpretation of the functioning of the Counselling Section. The paper looks not only at the interaction of different types of counselling—access, conciliatory, evaluative, adjustment — as they succeed one another in the career of a case, but it attempts to show where there are potential strains and difficulties within the system. The concluding sections consider relationships among principal processes surrounding custody: the counselling process; the adversarial process, as it is exemplified by the legal profession; and the adjudicatory process, as it is exercised in custody hearings.     

Adoption as a means of child protection: the law and practice in Malaysia

Adoption in Malaysia is of two kinds; firstly, taking the child of another as a person's own child, where as a result, the adopted child will stand in equal footing with the natural children of the adoptive parents; and secondly, taking a child of another into a person's custody without affecting the biological status of the adopted child. This article wishes to discuss the law and practice of adoption in Malaysia as one of the means of child protection. The article will also examine as to whether the law is adequate to protect children who are the subjects of adoption.     

What is a family? Constructions of family and parenting after a custody transfer from birth parents to foster parents

The subject of stability for children in long‐term foster care is an emerging field within social work with vulnerable children. In Sweden, the adoption of foster children is not a common occurrence. Instead, when a child has been placed in foster care for 3 years, the local social welfare committee will consider whether the custody of the child should be transferred to the foster parents regardless of the circumstances of the birth parents, in order to secure stability and a sense of family belonging. Consequently, custody transfers raise questions such as “who is family?” and “who is a parent?” This qualitative interview study with custodians and young people who have experienced custody transfer highlights that who counts as family and as a parent is ambiguous. This article draws attention to how negotiations about family and parenthood revolve around biological, emotional, and relational dimensions. Furthermore, we show that stability for children in care has to be understood in terms of processes over time and not as the result of a single decision of custody transfer. Consequently, social workers need to take several aspects into account when they assess family belonging and stability for children in foster care.     

The importance of clinician courtroom testimony for children exposed to domestic violence

Children exposed to domestic violence account for as many as a third of all children in the United States. Many of these children will seek mental health treatment for symptoms of trauma. The clinicians who provide their treatment are often called as witnesses in family law proceedings, especially child protection and custody cases. Clinicians are often anxious when they receive subpoenas to testify and prefer to avoid testimony. Training about court proceedings, subpoenas and how to prepare for testimony would be beneficial for clinicians and will help clinicians be more confident in the courtroom. Additionally, becoming designated as expert witnesses can only help mental health clinicians provide a greater understanding of the issues encountered by children experiencing domestic violence, and these clinicians can provide recommendations that will take into account child safety without exacerbating trauma symptoms.     

Child Sexual Abuse and the Family Court

This paper examines judicial decision-making in the Family Court in custody and access disputes where allegations of child sexual abuse have been made. In seven cases examined judges took a sceptical view of such allegations and most commonly granted access in spite of strong evidence of abuse. The interpretation of the ‘best interests of the child’ often favoured continuing contact with both parents, and judges rarely denied access outright. Supervised access, the most common outcome, represents a compromise between familial ideology and child protection.     

Father Custody and Social Development in Boys and Girls

The effects of father custody on children's social development are being studied by comparing children whose fathers have been awarded custody, children whose mothers have been awarded custody, and children from intact families. Half of the subjects are boys, and half are girls aged 6–11 years. Families are matched on SES, family size, and sibling status. The data presented here were based primarily on videotaped observations of parent-child interaction in 60 families. The most intriguing findings to date suggest that children living with the opposite sex parent (father custody girls and mother custody boys) are less well adjusted than children living with the same sex parent. However, in both father custody and mother custody families, authoritative parenting by the custodial parent was positively linked with the child's competent social behavior. Also, in both sets of divorced families, contact with additional adult caretakers was associated with positive social behaviors shown by the child.     

ABORIGINAL AUSTRALIA AND NATURAL JUSTICE

Aboriginal men and women continue to be grossly over-represented in police and prison custodial settings. In 1987 the Royal Commission into Aboriginal Deaths in Custody was established primarily because deaths in custody were far too common. Commission findings, including over 300 recommendations, were finally publicly released in 1991. In a number of significant ways, it was revealed that the ‘scene had been set’ for premature death both inside and outside custody. In part that ‘scene had been set’ because of the ongoing consequences of colonisation and the legal doctrine euphemistically known as ‘natural justice’. ‘Natural justice’ implies, rather than assures, equality for all before the law. Such fundamental inequality found, and continues to find, intense and tragic expression in high levels of incarceration and deaths in custody.     

Investigation of Children's Custodial Wishes

One of the criteria used by judges of the Family Court in reaching custody decisions is the wishes of the child. A total of 104 children who were subjects of custody disputes were interviewed for the purpose of trying to ascertain their custodial wishes. Most children expressed a wish, and this preference was usually to remain with the parent the child was already living with. Children's wishes as to whether to remain where they were living or to move to live with the other parent, and their preferences as to whether to live with the mother or the father, did not differ according to age or sex.     

Alternatives to Custody in the New Zealand Criminal Justice System: Current Features and Future Prospects

Alternatives to custody in New Zealand have followed a format similar to criminal justice systems in the UK and other European countries but with a stronger emphasis on both punitive, work-based options like periodic detention, and more recently home detention, as well as restorative justice models. Much of current practice relies heavily on the now dated Criminal Justice Act 1985. However, a new sentencing and parole act is proposed for 2002. In this paper the authors review the current alternatives to custody in New Zealand, paying particular attention to issues arising from their recent research on home detention—surveillance, control and impacts on family members—and offering a reflection on the future prospects for alternatives to custody.