Childcare and Child Protection: A Comprehensive Guide

Posted on May 16, 2024 in Law & Jurisprudence

1. Introduction to Childcare

1.1. Defining Childhood

Childhood is the period of life from birth to puberty, marked by significant psychological, social, and biological changes that shape development in later life stages.

1.2. A Historical Overview of Childcare

1.2.1. The Ancient World

In Mesopotamia, chapters on hygiene and childcare emerged, along with early legislation protecting orphans, similar to practices in India. In Greece and Rome, children were often viewed as investments or property, with Quintilian being a notable exception.

1.2.2. The Medieval and Renaissance Periods

The New Christian Morality

Christianity (2nd and 3rd centuries) introduced a new family model based on marriage and blood ties. Similarly, Islam, in the 10th century, saw advancements in childcare with Ibn al-Jazzar’s The Book of the Upbringing of Children, focusing on hygiene, infant care, and maternal nutrition. However, this perspective was often limited to the period after infancy, when children’s survival allowed them to integrate into adult life and activities.

Notable contributions to pediatrics, education, and philosophy related to children were made by figures like St. Augustine (354-430), St. John Chrysostom (384-407), Ibn Miskawayh (died 1030), Avicenna (980-1037), Averroes (1126-1198), Ramon Llull (1232-1315), and Alfonso X El Sabio (1221-1284).

Humanism and Early Education

The Renaissance brought a specific interest in childcare as a distinct stage, leading to the establishment of orphanages. The “master” emerged as the protagonist of education, holding the center of knowledge. Educational methods were often severe and disciplined, sometimes reaching the point of abuse. Prominent figures of this era include J. Comenius, John Baptist de la Salle, and Vincent de Paul, the latter two known for their concern for the lower classes.

1.2.3. From the Enlightenment to the 20th Century

New Ideas About Childhood and Education

Pestalozzi focused on studying and caring for at-risk children, aiming to integrate impoverished children socially through apprenticeships. He believed in their potential and envisioned educators as serving students’ needs.

Froebel believed formal learning should be part of children’s natural development, introducing play as the primary teaching strategy in early kindergartens.

Industrialization and State Regulation

Industrialization exploited children as a labor force, subjecting them to harsh conditions and overwork. This led to laws protecting children, such as the Tolosa Latour law in Spain in 1904.

The Golden Age of Pedagogy and Psychology

The New School movement emerged (Montessori, Decroly, Freinet, Neill) with innovative practices.

Psychology delved into the study of childhood as a crucial stage for individual development (Piaget, Vygotsky, Wallon, Freud).

However, the spread of these advancements was hindered by world wars, the Spanish Civil War, totalitarianism, dictatorships, and the fear of communism.

The Path to Global Recognition of Children’s Rights

The interwar period and the aftermath of World War II saw international recognition of child care and protection. This culminated in 1989, marking a significant shift:

International agencies assumed responsibility for state regulations (protection, care, and rights of children).
Children were recognized as having civil rights for the first time.

Globally, the reality remains uneven. While 20% of children enjoy a dignified life, the remaining 80% face unmet basic needs, poverty, and lack of access to healthcare and education.

1.3. Agencies Involved in Childcare

After World War II, organizations dedicated to child protection emerged to address the needs of orphaned children. These organizations fall into two categories: government agencies and NGOs.

1.3.1. Official or Government Agencies

In 1945, the United Nations (UN) was established to prevent large-scale military conflicts. Its objectives include promoting cooperation on international law, peace, security, economic and social development, and human rights. The UN created several agencies relevant to childcare:

UNICEF

The United Nations Children’s Fund (originally the United Nations International Children’s Emergency Fund) aims to ensure children’s rights are upheld and contribute to the well-being of children and youth globally. Established in 1946 as an emergency fund, it expanded its global objective in 1953. UNICEF’s programs include:

Child survival and development
Basic education and gender equality
HIV and childhood
Child protection from violence, exploitation, and abuse
Policy advocacy and partnerships for children’s rights

UNESCO

The United Nations Educational, Scientific and Cultural Organization, founded in 1945, aims to contribute to peace and security by fostering collaboration among nations to ensure universal respect for justice, law, human rights, and fundamental freedoms for all, regardless of race, sex, language, or religion. UNESCO’s mission for children is to support the development of international policies promoting childcare in all areas.

WHO

The World Health Organization, founded in 1948, aims to ensure that all people have access to the highest attainable standard of health.

OMEP

The World Organization for Early Childhood Education, founded in 1948, promotes early childhood education from birth, working to achieve conditions that ensure children’s well-being, health, and development within families, institutions, and communities. Its objectives include promoting better living conditions, welfare, growth, and happiness, encouraging scientific research, and supporting initiatives to improve preschool education.

SSRU

The International Union for Child Welfare, founded in 1946, was a pioneer in promoting children’s rights. Its objectives include providing relief to children without discrimination, maintaining relationships between agencies and individuals working for children’s welfare, raising the level of child protection, and contributing to children’s moral development.

IIN

The American Institute of Children and Adolescents, created in 1927, promotes the protection of minors in all aspects across the Americas and supports the development of policies ensuring the promotion and exercise of children’s and adolescents’ rights.

1.3.2. Nongovernmental Organizations (NGOs)

NGOs emerged in the 19th century to promote social action through development projects. They are private, non-profit, and generally independent of governments and international agencies. NGOs aim to report rights violations, challenge unjust realities, and raise public awareness about existing issues. They consist of technical staff, employees, and volunteers who initiate and develop projects. Legally, NGOs can take various forms (associations, foundations, etc.), and their funding comes from diverse sources: public subsidies, donations, membership fees, product sales, etc. Their areas of action include promoting human rights, denouncing violations, providing humanitarian aid, protecting the environment, and fostering development cooperation.

1.4. Milestones in Child Rights

1.4.1. The Declaration of Geneva

In 1923, the first step towards recognizing children’s rights was taken. Eglantyne Jebb founded the Save the Children Fund and the International Union of Help the Child (1920), which conceived the idea of a Declaration of the Rights of the Child. Childhood was conceptualized as a collective requiring special protection measures to ensure normal development. In 1924, this became known as the Declaration of Geneva. Its articles stated that a child:

Must be given the means requisite for its normal development, both materially and spiritually.
Must be fed, nursed, and cared for; rescued in times of distress; and given preferential relief in all circumstances.
Must be given the opportunity to earn a living and must be protected from every form of exploitation.
Must be brought up in the understanding that its talents should be devoted to the service of fellow men.

1.4.2. The Declaration of the Rights of the Child

After World War II, UNICEF was established. On November 20, 1959, the UN adopted the Declaration of the Rights of the Child. This document emphasized society’s responsibility to provide protection and rights to children and urged national governments to recognize and legislate these rights.

1.4.3. The Convention on the Rights of the Child

The Road to the Convention

The Convention on the Rights of the Child was drafted in 1978 and approved by the UN General Assembly in 1989. It is now accepted by all countries worldwide except Somalia and the United States.

The Significance of the Convention

The Convention is a legally binding and enforceable agreement between states. It comprises 54 articles outlining civil, political, economic, social, and cultural rights. For the first time, children worldwide were considered subjects of civil and political rights requiring special protection. The Convention acknowledges that children in every country face difficult conditions and need special consideration. It also calls for international cooperation.

The Content of the Convention

The Convention’s 54 articles are based on four fundamental principles:

Non-discrimination: No discrimination based on race, color, sex, language, religion, political opinion, etc.
Best interests of the child: All actions concerning children should prioritize their best interests, ensuring adequate care when responsible individuals are unable to provide it.
Right to life, survival, and development: States must guarantee the right to life and the holistic development of children.
Participation: Children can and should express their views on matters affecting them.

The Optional Protocols

The Convention on the Rights of the Child is an active and dynamic instrument for improving children’s conditions globally. However, the reality is complex, and children continue to face violations. To address these situations, optional protocols were created to combat two specific phenomena:

The Optional Protocol on the Involvement of Children in Armed Conflict
The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

1.4.4. The Rights of Children in the European Union

The European Union (EU) has also addressed children’s rights. Its most important documents include:

European Charter of the Rights of the Child: Addresses specific problems faced by children due to European integration and the single market.
Charter of Fundamental Rights: Recognizes the rights of children.
Strategy on the Rights of the Child: Aims to effectively promote and protect children’s rights in the EU’s domestic and foreign policies and support member states’ efforts in this area. Proposals include unique phone numbers for child assistance, support for banks in combating the use of credit cards for online child pornography, a plan of action for children’s priority needs in developing countries, and joint EU actions to combat child poverty.

1.5. The Legal Framework for Childcare in Spain

The Spanish government’s actions regarding childcare, protection, and children’s rights are framed within the international framework (Convention on the Rights of the Child, EU) and the constitutional framework.

1.5.1. The International Framework

As a member of the EU and UN, Spain cannot deny or contradict the Declaration of Human Rights or the Convention on the Rights of the Child. Therefore, child protection in Spain is subject to the Convention. Spanish law can refine or specify how these rights are enforced but cannot deny or restrict them.

1.5.2. The Constitutional Framework

The Spanish Constitution of 1978 establishes justice, freedom, and security to guarantee democratic coexistence. It includes several articles related to childcare, protection, and rights.

1.6. The Protection of Minors

Child protection in Spain is governed by the Organic Law on Legal Protection of Minors.

1.6.1. Key Legal Concepts

Parental Responsibility

Parental responsibility encompasses the rights and duties recognized by law for parents regarding their children’s persons and property while they are minors or incapacitated. It aims to ensure the best interests of children. This includes caring for children naturally, coexisting with them, and fulfilling obligations to care for, protect, and assist them. When parents cannot care for their children, the competent public entity assumes custody. Custody transfer is formalized in writing and signifies the loss of parental custody. Public authorities can deprive parents of custody if they neglect their obligations and can also restore it.

Guardianship

Guardianship is a legal institution granting power to a natural or legal person (guardian) over the person and property of a minor or incapacitated person for their benefit and protection under judicial supervision. It replaces custody when parents cannot exercise it or when public authorities remove a child from their home. Guardianship ends upon emancipation, adoption, death, recovery of parental rights, or a court decision terminating the disability that led to guardianship.

Conservatorship

Conservatorship involves the intervention of a conservator only in acts where the minor or incapacitated person cannot act for themselves. It provides legal assistance, with the conservator acting as the representative of the minor or incapacitated person, except in matters they can handle independently. The scope of conservatorship is narrower than that of guardianship.

Defense Attorney

A defense attorney defends the interests of children when there is a conflict of interest between minors or incapacitated persons and their legal representatives or conservators, or when the guardian or conservator fails to perform their duties.

Fostering

Fostering grants temporary custody of a minor to a person or household. The goal is to socially integrate children into a family that respects their history and identity while maintaining links with their biological family. Fostering is formalized in writing with the consent of the public entity, biological parents, and foster parents.

Adoption

Adoption is a legal structure establishing parenthood by judicial decision. With few exceptions, links with the adopted person’s biological family cease upon adoption.

Emancipation

Emancipation signifies the termination of parental authority or guardianship over a person, allowing them to govern themselves and control their property as if they were of legal age. Emancipation can be obtained through reaching the age of majority, marriage, parental consent if over 16 years old, or a judicial award.

1.6.2. The Organic Law on Legal Protection of Minors

Child protection in Spain is regulated by the Organic Law on Legal Protection of Minors. Its key principles include:

Prioritizing the best interests of the child above all else.
Employing educational measures.
Seeking cooperation from family and relatives to maintain the child’s family environment.
Recognizing children as subjects of law.
Ensuring compliance with international standards.

1.7. The Criminal Responsibility of Minors

The Spanish Penal Code, approved by Law 10/1995 of November 23, sets the age of criminal responsibility at 18 years.

Criminal Responsibility of Minors

The Spanish legal system aims to balance the implementation of an infringement procedure with an educational approach that respects the child’s best interests while considering the interests of injured parties or victims of offenses committed by minors. It emphasizes the joint responsibility of parents, guardians, or foster families. The law sets a limit of 14 years for claiming criminal liability and differentiates consequences for acts committed between 14 and 16 years.

1.8. Key Systems for Childcare in Spain

1.8.1. The Education System

The Organic Law of Education (LOE) currently governs the Spanish education system, succeeding previous laws (LGE, LODE, LOGSE, LOCE). The LOE’s Preliminary Title covers the principles and purposes of education, stages of education, curriculum, and cooperation between educational authorities. Title I establishes the organization of education into the following stages:

Nursery Education (Educación Infantil): A single, non-compulsory stage organized into two cycles (0-3 years, 3-6 years). It focuses on educational development, not necessarily formal schooling.
Primary Education (Educación Primaria): Comprises six academic years divided into three cycles, organized into subject areas, for children between 6 and 12 years old.
Compulsory Secondary Education (Educación Secundaria Obligatoria): Consists of four academic years for students between 12 and 16 years old. The first three years are general in nature, while the fourth year focuses on guidance and counseling (post-compulsory studies and integration into working life).

Primary and secondary education are compulsory and free, constituting basic education.

Baccalaureate (Bachillerato): Includes two academic years and offers three different tracks.
Vocational Training (Formación Profesional): A set of training cycles and degree courses designed to prepare students for various professions, access to employment, and active participation in social, cultural, and economic life.

Title II of the LOE provides educational support for children with special needs and recognizes the specific attention required for students with diverse intellectual abilities. Title III addresses the role of teachers, Title IV focuses on schools, Title V concerns participation, empowerment, and school governance, Title VI deals with evaluating the education system, Title VII covers the inspection of the education system, and Title VIII addresses economic resources and increased public spending on education to meet the LOE’s objectives.

1.8.2. The Health System

The Spanish health system is established and regulated by the General Health Law, based on the principle of universal access to healthcare. Its key features include universal coverage, accessibility, devolution of power, decentralization of health resource management, and a focus on primary care.

1.9. Childcare Resources and Services in Spain

1.9.1. Resources and Services for Education and Social Development

The distribution of childcare facilities and services across Spain is uneven, with significant differences between regions. Various services cater to children under 3 years old, aiming to provide quality care, rehabilitation, and support for work-life balance. These include children’s schools, playgrounds, and children’s houses, but their availability varies across regions.

1.9.2. Social Services for Children

While the family is the primary environment for children, there are instances where children face serious risks or distress, requiring intervention from childcare services. The public social services system in Spain comprises a set of services designed to promote the full development of individuals and families, enhancing social welfare and quality of life. There are two levels of care:

Basic Social Services or Primary Care: Targets the general public, providing information, guidance, counseling, and risk detection. It is the first level of care.
Specialized Social Services: Addresses complex situations requiring highly skilled professionals (diagnosis, treatment, support, and rehabilitation for individuals at social risk). It is the second level of care.

A higher level of specialized services exists for children separated from their families temporarily or permanently, including shelters, residential care, and foster care.

1.9.3. The National Strategic Plan for Children and Adolescents

Rationale and Purpose

The National Strategic Plan for Children and Adolescents aims to promote the well-being of children and adolescents, considering their interests and needs, to enhance their quality of life and develop their capabilities.

Actions of the Plan

The plan outlines detailed measures to achieve its objectives, specifying responsible bodies, collaborating institutions, and agencies.

Implementation

of an infringement procedure – education that respects the interests of the child, but without forgetting the self interest of injured persons or victims of the offense committed by the minor.
Joint responsibility of parents, guardians, or foster friendly.
Sets the limit of 14 years to claim punitive liability to criminal and juvenile makes a difference in the consequences for acts committed between 14 and 16 years.
1.8.1. Education system
The Organic Law of Education is currently governing the education system, but previously have been other (LGE, LODE, logs, LOCE)
The Preliminary Title covers the principles and purposes of education, as well as the stage of education, curriculum and cooperation between educational authorities.
Title I establishes the organization of lessons in the following stages:
· Nursery education: Single stage, not mandatory, organized in two cycles (0-3, 3-6). Intends educational, not necessarily school.
· Primary education: includes six academic divided into three courses organized in areas between 6 and 12 years.
· Compulsory secondary education consists of four courses between 12 and 16 years. The first three courses are most common in nature, the fourth, counselor (post-compulsory studies and incorporation into working life)
The primary and secondary education are compulsory and free. Composed of basic education.
· Baccalaureate: includes two courses and developed three different methods.
· Training: A set of training cycles and degree courses aimed at preparing students for the performance of various professions, access to employment and active participation in social, cultural and economic.
Title II provides educational support to children with special needs and is recognized for the first time specific attention to students with other intellectual abilities.
Title III concerns the role of teachers.
The Title IV, on schools.
Title V, participation, empowerment and governance of schools.
Title VI, evaluating the education system.
Title VII, inspection of the education system.
Title VIII, economic resources and increased public spending on education to meet the objectives of this Act
1.8.2. The health system
Established and regulated by the General Health Law. This law is based on the principle that everyone has the right to health.
Features: covers the entire population, accessibility and devolution, decentralization of management of health resources, primary care.
1.9.1. Resources and services childcare
* Attention in education and socio –
The sites involved in child education are unevenly distributed in the Spanish territory, having wide differences between some communities and others.
There are also different services for children under 3yrs, created to provide quality rehabilitative care and promoting the reconciliation of work and family life, as happens with children’s schools, their presence is uneven in the area (playgrounds, children’s houses …)
* Attention in the social
The environment for the child is the family, but there are occasions when the young are at serious risk or distress and in those cases intervention is necessary care services to children.
The public system of social services is a set of services and whose purpose the promotion and full development of all individuals and families to obtain greater social welfare and quality of life.
There are two levels of care:
– Basic social services or primary care aimed at all the public and providing information, guidance, counseling and detection risk. It is the first level of care.
– Specialized social services, responds to situations of particular complexity, which requires a highly skilled (diagnosis, treatment, support and rehabilitation to people at social risk). It is the second level of care.
There is a higher level of specialized services for children separated from a temporary or permanent family environment (shelter, residential and foster care).

1.9.2. The National Strategic Plan for Children and Adolescents
* Rationale and purpose of the plan
Its purpose is to promote the welfare of children and adolescents taking into account their interests and needs, with the aim of increasing their quality of life and development of their capabilities.
* Actions of the Plan
As for measures to achieve them, the plan provides a sequence very detailed, indicating also a body responsible for conducting and collaborating institutions or agencies.
* The Plan
To consider the Plan, the various autonomous regions and municipalities have even developed their own plan for childcare.