Le Moniteur No. 41, dated Thursday 5 June 2003
Pursuant to the 1987 Constitution;
Pursuant to the Labour Code;
Pursuant to the Penal Code;
Pursuant to the 8 December 1960 Decree;
Pursuant to the 4 November 1963 Act;
Pursuant to the 24 February 1984 Decree;
Pursuant to the 28 September 1990 Decree;
Pursuant to the Convention on the Rights of the Child;
Pursuant to the 1 October 2001 Act;
Considering that it is the state’s duty to ensure the protection and social progress of all;
Considering that there are children in Haiti whose conditions of existence are compromised due to the financial difficulties their natural parents are faced with;
Considering that, as a general rule, the natural parents of these children are marginalised villagers, because excluded from national life and almost all public services;
Considering that it is particularly these children who fall victim to all sorts of abuse and violence;
Considering that this form of children’s service placement is to be rejected;
Considering that it is important to take account of our traditions and cultural values so as to encourage other forms of child care;
Considering that, consequently, appropriate provisions in line with Haiti’s social requirements are to be adopted so as to prohibit all sorts of abuse and violence against children;
Considering that measures should also be taken to eradicate child exploitation;
As per the suggestion of the Ministry of Social Affairs and Labour and following the deliberations of the Council of Ministers:
Article 1: Chapter 9 of the Labour Code relating to ‘children in service’ has been annulled.
Article 2: All sorts of abuse and violence against children, as well as their exploitation, have been prohibited.
The expression ‘all sorts of abuse and violence against children’ is to be understood as all ill-treatment or inhuman treatment against the said children, their exploitation included, bearing in mind the generality of the points hereinafter enumerated:
Child sale; trafficking; servitude; forced or mandatory labour; or forced services;
Child offer, recrutement, transportation, transfer, accommodation, reception or use for the purposes of sexual exploitation, prostitution or pornography;
Child offer, recruitment, transfer, accommodation, reception or use for the purposes of criminal activities;
Child offer, recruitment, transfer, accommodation, reception or use for the purposes of organ removal or scientific experiments with guinea pigs;
Work likely to undermine the health, safety or morals of children due to its nature or the conditions in which it is undertaken;
Recruitment of children for the purpose of using them in armed conflicts;
Article 3: A child may be entrusted to a host family within the context of a relationship of assistance and solidarity. He or she must enjoy the same privileges and prerogatives as the other children of the host family and be treated as a family member.
Article 4: Any report of a case of child abuse, ill-treatment or violence falls within the competence of the Ministry of Social Affairs in accordance with the present Act.
The latter may, in accordance with the laws in effect, refer to the competent judicial authorities any of the said cases against individuals reported as the authors or co-authors of acts in violation of the present Act, or the accomplices thereof.
In each case, the Minister examines with the child any decision concerning him and asks for his opinion.
Each report is to be recorded in a register kept to that effect at the said Ministry.
Article 5: The present Act abrogates all laws or legal provisions; all decrees or decrees provisions; and all legislative decrees or legislative decrees provisions violating it and shall be published and put into effect at the request of the concerned Ministries, with each of them taking care of the aspects of the Act falling within its competence.
Presented to the Chamber of Deputies, at Port-au-Prince, on 29 April 2003, on the 200th year of independence.
Presented to the National Palace, at Port-au-Prince on 13 May 2003, on the 200th year of independence.
This text annuls Chapter 9 of the Labour Code. However, the Act provides that a child may be “entrusted to a host family within the context of a relationship of assistance and solidarity. He or she must enjoy the same privileges and prerogatives as the other children of the host family and be treated as a family member” (Article 3). The text does not provide for any sanctions against those who do not respect its provisions, but is under revision so that this loophole can be closed.
The Act acknowledges host families, even in the persistent absence of an official procedure legitimising them. The laws governing custodies supervised by the Magistrate and/or the Justice of Peace actually transfer the legal guardianship of the child to the host family, a process similar to legal adoption. The Magistrate/Justice of Peace is in charge of obtaining the mother’s and father’s consent to the child’s adoption. If the parents and the family of the child are unknown, the consent of the Mayor of the region of residence is required. And if the parents are deceased, the Family Council makes a guardianship-related recommendation. A procedure needs to be developed to allow a parent to retain the legal guardianship while the state assumes the temporary guardianship and organises the guardianship transfer, or at least mandates national agencies to fulfil this role.
(Translated by Josephine Kanaan)
This post is also available in: French