The rights of children and adolescents were among the topics which generated the most comments during the popular consultation of the proposed new Families Code, in which more that six million Cubans took part. The protection of children has become an issue that requires increasingly acute consideration.
The intention of the draft Code is to reflect the priority Cuba gives to the healthy development of minors and the care of their physical and psychological integrity, within and outside the family environment.
Nonetheless, with the introduction of specific rights for children and teenagers in the draft Code, a common question emerged among parents and grandparents: We will we lose authority over our children?
The answer is no. Although the law is explicit in determining the scope of the rights of children and adolescents in the family environment without invalidating the duties and rights of their parents, Granma looks into the arguments that justify the urgency of enforcing what is proposed in the law, based on existing legal experience in Cuba.
GROWING UP WITH GREATER LEGAL PROTECTION
Yamile González Cabrales, president of the Civil, Administrative and Labor Chamber of the People’s Provincial Court in the province of Granma, and vice-president for Civil and Family Law at the headquarters of the provincial branch of the National Union of Jurists of Cuba, explains that the legal treatment of matters involving children and teenagers are usually complex and very sensitive, so it is essential to have an updated legal framework that contemplates their duties and rights.
In this sense, the Families Code project becomes a starting point to broaden the affective and educational horizons of families and to strengthen communication between adults and minors.
-Based on this premise, how is the family impacted by the incorporation of the concept of the child’s best interest?
-This term is enshrined in the International Convention on the Rights of the Child, which dates back to 1989 and to which Cuba is a signatory. This norm shapes all provisions that relate to minors because it includes a procedural channel in which the premise is to protect their rights.
That is to say, when a decision is made in a court of law, the safeguarding, protection and recognition of the child’s rights will always be taken into account.
However, it must be considered that the Family Code currently in effect in Cuba dates from 1975, and, although public policies have been established and implemented since then to protect the rights of children, normatively, the best interest of the child was not recognized until the approval of the Constitution of the Republic in 2019.
We believe this principle represents a turning point in the Cuban legal framework, since it seeks a paradigm change in our conception of the child, ending the view of children as only objects of protection to recognize them as subjects of rights.
In fact, in the legal norm in force, communication with minors is conceived only on the basis of the interests of adults. For example, there may be the case of a father who wishes to communicate with his child and the mother of the minor limits him, but neither of them is actually listening to what the child wants.”
Given this reality, and in my experience as a judge, I have not seen a process aimed at establishing obligations for an absent parent to have greater participation in the child’s life based on their needs, such as having their presence at school meetings, in their extracurricular activities or in any other area of their life.
In short, the child is now considered as a person with rights and duties, which will be acquired as the child grows and his or her intellectual capacity matures”.
-Likewise, a controversial issue that the Code has incorporated is the right of minors to be heard in accordance with their capacity and progressive autonomy. Does this concept mean a change in the traditional model of education and formation within Cuban homes?
-It has been established, from the legal point of view, that it is necessary to reach legal adulthood, 18 years of age, to fully enjoy all rights and be capable of exercising them; but this is not how the body works biologically.
Progressive autonomy establishes that the child acquires legal capacity just like they do with the rest of their capacities, as they mature. A six-year-old child will never be evaluated the same way as a 13-year-old teenager.
It should also be clarified that the degree of intellectual maturity may be different in children of the same age. Hence, it must be personalized for each child. And this does not mean in any way that children are going to do whatever they want, or that parents will have their authority limited.
There are circumstances that demonstrate this, such as the case of a child who does not want to undergo medical treatment out of fear, and then the parental responsibility to care for the child prevails because the right to life is paramount.
In any case, it is a matter of legitimizing the active participation of children in the family dynamics. They now have the recognized right to be heard, and to have their opinions taken into consideration. And parents have additional responsibilities.
-This parental responsibility includes the duty to ensure the safety of children in the digital environment, is it a step forward that the Code recognizes the access of minors to virtual platforms as a right?
-First of all, it would be naive to think that it is possible to conceive the growth of children and adolescents apart from the digital world, given the development of information and communication technologies. It is not a conception exclusive to Cuba, but rather an obvious reality in most countries, so access to digital platforms must be a right of minors.
But just as in any other environment, children’s access to the Internet must take into consideration content and proper use of the web, based on their progressive autonomy and under the guidance of parents and teachers.
Today we are facing many unpleasant situations on the Internet that have no legal solution. In this regard, the draft Families Code provides some legal answers. However, the updated and recently approved Penal Code states the procedures for negligent conducts associated with criminal figures on the internet.
-If you had to define the greatest contribution of the new Families Code to the integral development of children and teenagers, what would it be?
-Unfortunately, minors are a vulnerable group who can be put by adults -whether parents, relatives or acquaintances- in situations where they could be the victim. The fact their rights are legally guaranteed makes possible to settle any dispute where they could be involved in a more agile way, while protecting them before, during and after the process.
Even if parents are not present, minors will be able to count on the family ombudsman’s office. In other words, when parents do not respond to the interests of the child, the child will have the opportunity to seek protection and defense of their rights.
In general terms, we are seeing a norm that reflects what is really happening in our society. It does not intend to change anything inside the home; in any case, it seeks to ensure that we can all be represented, especially boys and girls, whose rights are as sacred as our children are.”
(Taken from Granma)