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A few days ago, a video of a "Tianjin 9-year-old boy sleeping on the roof of the car in the cold night of late autumn" attracted widespread attention, and netizens questioned whether the rescue of the relevant departments was in place while feeling sorry for the child. But according to Jinyun News, the boy was not homeless, but was kicked out of the house by his mother. His mother has a hearing disability, the local street office has handled a minimum guarantee for the two people, as well as housing subsidies, subsidies for children in distress, subsidies for the disabled, etc. Mother and son can receive 3395 yuan per month. The local civil affairs bureau, street office, and neighborhood committee have also set up a targeted rescue working group for children, and have been helping and assisting for nearly half a year. But his mother's neglect of guardianship has caused the relevant departments a lot of headaches. The police have also contacted the child's biological father, who has not answered the phone, and the child is not willing to live with the biological father, because the other party often beats him.
If this is an orphan, it can be adopted by an institution such as a children's welfare institution. But his parents are there, but neither of them is willing to fulfill the guardianship obligation, what to do? When you meet such parents, is there nothing you can do? The latest Civil Code and the Law on the Protection of Minors have already provided for this, and civil affairs departments should assume the responsibilities entrusted by the law, resolutely seek to change guardians, and actively safeguard the interests of minors.
According to civil law, parents are the guardians of minors. Parental custody of minor children is natural. Under normal circumstances, the custodian of a minor cannot be changed unless both parents die, or the parents do not have guardianship for objective reasons. (It should be noted that the guardianship capacity here is the legal capacity for civil conduct, and has nothing to do with economic ability, and only if the parents do not have full civil capacity due to mental illness and other reasons, they will be considered to have no guardianship ability). However, although parents have the ability to supervise, they have no guardianship intentions, basically ignore minor children, and even beat and scold domestic violence at every turn.
According to reports, the mother of the child in the case has a secondary school education and even worked as a childcare worker, but she is indifferent to the child and does not even cook.
The Law on the Protection of Minors uses a special chapter to stipulate the guardianship obligations of parents or other guardians to minors, and makes detailed requirements for the material guarantee, physiological and psychological needs, education, and other aspects of minors' growth, but there is no severe punishment for parents who do not perform these obligations, but only the resident (village) committee advises and stops them, and if the circumstances are serious, the public procuratorial and legal organs will give them a reprimand, and may order them to receive family education guidance. But these painless punitive measures make it almost impossible for irresponsible parents and guardians to be rescirculated. How can the interests of minors be protected?
In fact, in similar cases, the law has authorized the relevant parties to apply for the revocation of the guardian's guardianship of the minor.
The General Provisions of the Civil Law, which came into effect in 2017, and the subsequent Civil Code, both stipulate that if the guardian of a minor neglects to perform his guardianship duties, causing the ward to be in a state of distress, or commits acts that seriously damage the physical and mental health of the ward (such as domestic violence), the court may revoke the guardianship qualifications, arrange necessary temporary guardianship measures, and appoint a guardian based on the application of the relevant individual or organization. The "relevant individuals and organizations" stipulated by law, in addition to other persons with guardianship qualifications, also include residential (village) committees, schools, hospitals, women's federations, disabled persons' federations, juvenile protection organizations, and civil affairs departments. Moreover, the Civil Code also stipulates that if relevant individuals and organizations outside the civil affairs department do not apply to the court in a timely manner to revoke the guardianship qualifications, the civil affairs department should apply.
The latest version of the Law on the Protection of Minors, which came into effect on June 1, 2021, also stipulates that if a guardian refuses or neglects to perform his guardianship duties, resulting in a minor being left unattended, the civil affairs department shall temporarily supervise the minor in accordance with law.
These laws provide two ways to solve the plight of the "Xiaotianmen": one is for the relevant organizations to apply to the court to revoke the custody of their parents, and the court will appoint a guardian (which can be a civil affairs department or a juvenile protection organization, etc.), so that the Xiaotianmen can be adopted by welfare institutions such as child welfare homes. There is already a precedent for this. In 2019, the Haidian court in Beijing revoked the guardianship qualifications of a woman abandoned after giving birth to a child in the toilet, and appointed the Haidian District Civil Affairs Bureau as the guardian of the baby boy. In 2020, a court in Shaoxing, Zhejiang Province, also appointed the civil affairs department as the guardian of an abandoned baby.
Another path is "temporary guardianship" by the civil affairs department. However, the law stipulates that the civil affairs department shall carry out temporary guardianship "in accordance with the law", but there is no corresponding regulation to stipulate how to operate it. For example, how to start the procedure for deciding on temporary guardianship, how to determine whether temporary guardianship is required, which level of department can make a temporary guardianship decision, how to remedy the legal guardian if dissatisfied with the temporary guardianship decision, etc., all require a set of implementation rules with higher legal effect. On June 8, 2021, the relevant person in charge of the Ministry of Civil Affairs said at a press conference that the study and formulation of work rules for temporary guardianship and long-term guardianship will be one of the key tasks for the protection of minors. However, in search of the National People's Congress's "National Laws and Regulations Database", there are no relevant regulations yet. The online search also found only that the Shijiazhuang Civil Affairs Bureau in Hebei Province issued the Guidelines for the Temporary Guardianship of Minors (Trial) in May 2021. However, the legal effect of this document is too low. The relevant departments should issue a unified national implementation rules for temporary guardianship as soon as possible, so that this system can be implemented as soon as possible.
The law has given the civil affairs department responsibilities and corresponding powers, the civil affairs department should effectively perform its duties, make good use of legal weapons, and for irresponsible parents, they should apply to the court in a timely manner to revoke their guardianship qualifications, and the civil affairs department should carry out guardianship. In some countries, parents who hit their child once may be deprived of custody. Of course, we can't be so extreme, but if parents are really seriously irresponsible, then they should be decisive when they should act. Of course, it is also necessary to strengthen the construction of the guardianship capacity of civil affairs departments and earnestly protect the interests of minors.
Sim Province