1. Introduction
Children's rights and freedoms are an integral part of the concept of human rights. The differences in the development and needs of children and the problems experienced in the current situation have led to the necessity of making child-specific regulations. The Turkish Penal Code Nr. #5237 and the Child Protection Law Nr. #5395 define a child as a person who has not attained the age of eighteen, even if s/he becomes an adult at an earlier age, and the scope of the concept of childhood is broadly defined.
In the justice system for children, improvement of the child and continuation of the child's development should be prioritized and the reaction to be shown to children who are dragged into crime should be proportionate to both the conditions in which the child is in and the act of the child. In this context, the first article of the Child Protection Law in need of protection or dragged into crime states the purpose as setting out the procedures and principles regarding protection of children in need of protection or dragged into crime and securing their rights and well-being. Under the fifth article of the said Law, protective and supportive measures are set out, and protective and supportive measures are defined as measures to be taken in the fields of counseling, education, care, health and shelter to ensure that the child is protected primarily in her/his own family environment.
2. Protective and Supportive Measures
Protective and supportive measures refer to the measures to support the child who is dragged into crime and in need of protection (including victimized children) with her/his family, taking into account the special circumstances and needs of the child, and to take the child into institutional care as a last resort in cases where it is not in the best interest of the child to stay with her/his family.
Measures where the services needed by the child are provided without leaving the family environment are supportive measures and their aim is to improve the child in the environment in which the child lives. These measures include counseling, health and education measures aimed at improving the child's environment.
In cases where it is not in the best interest of the child to stay with the family despite the support services, the measures to be applied are the protective measures. Protective measures refer to the measures related to temporary or permanent placement of the child in a residential institution, foster family or institutional care.
3. Counseling Measure
First, if we talk about the authorities that can issue a cautionary decision; “the authority to determine whether a child is in need of protection and the measure to be applied belongs to the court.” (Article 7 of the Child Protection Law; Article 22 of the Law on Social Services and Child Protection Agency).
“The Social Services and Child Protection Agency, the public prosecutor or the child's mother, father, guardian and persons responsible for the care of the child may request the court to determine the child's need for protection and to apply measures, or the court may independently initiate this examination” (Article 7 of the Child Protection Law).
Furthermore, “the expert who is assigned to conduct an examination on the child during the punishment may also request the court to apply a measure on the child, if deemed necessary.” (Article 66.3 of the Code of Criminal Procedure).
Counseling Measure is one of the types of protective and supportive measures given by the court or judge about the child in need of protection or dragged into crime. It is applied to ensure protection of the child with her/his family or to support the child and those responsible for her/his during implementation of the cautionary decisions made about the child or to inform about the possible measures to be implemented.
In some problematic issues, it is applied as a risk-reducing intervention alone, while in others, it is applied before implementation of other measures or together with other measures, to support those measures.
The scope of the Counseling Measure is defined under the Communiqué on Implementation Procedures and Principles of Counseling Measure Decisions, as promulgated on the Official Journal on 25.10.2008, as follows:
“a) It is applied to ensure protection of the child with her/his family or to support the child and those responsible for her/his care during implementation of the cautionary decisions made about the child or to inform them about the possible measures to be implemented.
b) In some problematic issues, it is applied as a risk-reducing intervention alone, while in others, it is applied before implementation of other measures or together with other measures, to support those measures.
c) The scope of counseling measures includes activities aimed at solving educational problems such as school failure, illiteracy, school absenteeism, and increasing school success in order to support the physical, mental, psycho-social, emotional development of children, to strengthen their harmony with school, family and social environment, and to prepare them for life by having a profession suitable for their abilities; psycho-social and educational support services that systematically address the child in need of protection or who has been dragged into crime, the family and the persons responsible for the care and education of the child on issues such as substance abuse, behavioral disorders, sexual abuse, adolescence problems, anger control, social skills problems, family communication problems, family breakdown, lack of sufficient sensitivity in the family about the value of the child, family problems related to migration, evaluating risks and protective measures to prevent recurrence of crime and victimization, and supporting and intervening in normal development.
ç) The content of the needed counseling is specified under the social investigation report. The social investigation report should be prepared in a way to describe the expertise required by the problem or situation that reveals the need for this measure and to explain the recommendations regarding this measure." [1]
4. Implementation of the Counseling Measures
With respect to execution of the decision given by the competent authority mentioned above, the persons, institutions and organizations in charge of implementing the counseling measure are obliged to start immediately from the date of notification or notification of the decision given by the court or judge.
The counseling measure shall be carried out in cooperation with the officials who monitor other cautionary decisions or supervision decisions, in a way to ensure the participation of the family in the decisions.
The consultant in charge of fulfilling the counseling measure decision shall benefit from the social investigation report as a basis for the implementation plan to be prepared by the institutions or organizations in fulfillment of this cautionary decision, provided that the principles of obtaining information, as set out under Article 22 of the Regulation on Procedures and Principles Regarding Implementation of the Child Protection Law, are complied with.
Counseling measures should be implemented in weekly or fifteen-day periods depending on the nature of the service, and at least eight sessions should be held. At the end of this period, a decision should be made on continuation of the measure. [2]
While the consultancy service is being fulfilled, information and file information on the child, family, dependent(s) are collected and examined. The child, family, dependent person or persons are met. The counselor informs the child, family and dependents about her/his duties and responsibilities. The boundaries of the problem are determined by meeting with the family, teachers, administrators and others who may be parties to the problem. The child and family are introduced to the court order and obligations, the consequences of non-compliance and discontinuation, and the responsibilities of the family regarding their child. An implementation plan for the counseling service is prepared. In cases where the child lives with her/his family, the child and the family are included in the process together, and the relevant persons are also interviewed. In cases where the child does not live with her/his family and is far away from her/his family, the counseling service is initiated by taking the necessary measures to inform the family about the development of the process and their duties.
Interviews with the child at least once a week and with the family at least once every two weeks are planned and followed up according to this plan. In addition, teachers or other relevant persons are also interviewed, depending on the situation. The monitoring criteria to be used in evaluation of the implementation process of the counseling measure are determined by the counselor who will provide this service and shown in the implementation plan. In line with the implementation plan, a quarterly report including the evaluation of the process and the recommendation for changing the measure, if any, is submitted to the court for review by the court or juvenile judge according to the procedure, as set out under Article 18 of the Regulation.
Conclusion
Child Protection Law Nr. #5395 sets out that protective and supportive measures may be imposed on children in need of protection or dragged into crime. One of the protective and supportive measures is the counseling measure, which is a measure aimed at guiding those responsible for the care of the child in raising children and guiding children in solving problems related to their education and development. The Communiqué on Implementation Procedures and Principles of Counseling Measures was promulgated on the Official Journal on 25.10.2008.
Umut Alperen Öztürk, Legal Intern
References:
1. Communiqué on Implementation Procedures and Principles of Counseling Measures was promulgated on the Official Journal on 25.10.2008
2. General Directorate of
Special Education and Guidance Services, Handbook on Counseling Measures, p. 12