Evaluation database

Evaluation report

2003 BH: Legal Aspects of Social Protection for Children in Bosnia and Herzegovina

Author: Mutiso, J.

Executive summary

Background:

While the present Laws provide a wide range of social protection rights, many of these rights are not being realized due to lack of funding, inequality of responsibility and lack of proper coordination among the relevant actors. There are no social protection responsibilities allocated to the State level institutions. The delegation by the Constitution of BiH of "all government functions and responsibilities that are not strictly given to the institutions of Bosnia and Herzegovina" to the Entities has led to the existence of two parallel legal frameworks for social protection in both entities. This fragmentation has further complicated the inefficiency of the systems. Municipalities in both entities bear the responsibilities for the implementation of social protection and ensuring the effective delivery of services primarily through the Centers for Social Work (CSWs).

Entitlement to social protection in BiH is largely based on the social category such as age, marital or employment status rather than aiming to meet the needs of the most vulnerable population. This has led to inefficiency and inequality in the administration and allocation of those in need of financial support. In addition, the protection of persons with disabilities is regulated by separate laws, giving rise to several categories of beneficiaries and significant differences in the level and scope of rights and protection.

Purpose/Objective:

Analysis of existing legal provisions and practice in the field and comparison between different entities/cantons.

Methodology:

• Existing legal provisions reviewed 
• Interviews with the Zenica Center for Social Work & the Municipal Department for Refugees and Social Protection, with the Centers for Social Work for Bugojno and Gornji Vakuf and West Herzegovina Canton
• Comparative analysis of legal framework done
• Analysis by key CRC provisions done

Findings and Conclusions:

The Laws on Social Protection in both Entities are similar in many aspects. In comparison to the RS Law, the Federation Law seems to make more reference to children's rights. Generally, the Laws are wide-ranging in terms of the beneficiaries and forms of social protection covered. In the light of the present social and economic circumstances in BiH, the Laws may be termed as ambitious; while the letter of the Law may demonstrate a commitment to protecting the vulnerable individuals in society, implementation of the Laws is far from being achieved.

As far as social protection for children is concerned, the Laws provide for various forms protection for certain categories of children. While some of the Laws mention that the realization of social protection for children be given favorable consideration and exercised in the best interests of the child, there is no sufficient commitment both in the letter of the Law and in practice. This is well illustrated by the lack of a proper foster family system in BiH and the practice of institutionalization of children without parental care. In some cases, children are placed in institutions in Croatia without any legal regulation to monitor such placements.

One of the key conditions for eligibility for social protection is the requirement of permanent or temporary residence in the Canton or municipality. This raises an issue with regard to children or persons who cannot prove residence since they may be homeless, displaced or refugees. In particular, it is an issue as far as the Roma community is concerned since many of the Roma people do not possess proper property titles. This requirement also presents an obstacle in the protection of victims of trafficking, many of whom may not be able to provide immigration documentation, let alone proof of residence in a particular area.

With regard to children without care, the principle that institutionalization, especially for disabled children, be seen as a last resort is not reflected in the legislation. With regard to disabled children, social assistance given to them should not result in their isolation from society but rather to enable self-reliance, and integration and participation in society. Their education, training, alternative care, play and recreation should be provided in an integrated setting. Special care and assistance for disabled children should not be means tested and support should be provided to parents who are bringing up disabled children.

There is no explicit provision in the Laws for the periodic review of children in care. In addition, there seems to be no obligation to inform children of the reasons why they are being removed from their family and being taken into alternative care. This is the same as regards informing children, who are capable of independent life and who leave care at the age of majority, about their rights, social benefits such as housing, etc. Children who have reached the age of majority sometimes are forced to remain in care because they have nowhere else to live.

In general, the Laws on Social Welfare do not provide for intervention measures in the protection of children. This is evidenced, in practice, by the information received from the Center for Social Work in Vitez, where they mostly deal with persons who attend the Center; rarely do they intervene.

Recommendations:

Any legal reform with regard to the social protection of children must focus not only on incorporating the special need of protection for children, must be tailored in a manner that can be implemented. It is also to look at the practice in the Cantons where new legislation has not been drafted but where social protection is still provided, such as Zenica-Doboj Canton. It is also imperative to identify examples of good practice in social protection that can form a sound basis for enforceable legislation.

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