BY WANG GEYA

  Legal assistance to children's rights is a human rights issue that concerns the harmonious development of society. Children's rights, however, are always impaired when their families are under threats of breaking up.

  China is witnessing a gradual rise of divorce rate in recent years. According to statistics, the country reported 1.665 million divorces in 2004, a rise of 334,000 cases from 2003, while in 2005, those ruled by courts not counted, registered divorces at civil affairs departments alone numbered 1.115 million, an increase of 69,000 cases from the previous year.

  Children would fall victims of their parents?marriage failure, when the adults choose to part in search of personal happiness but vent resentment to the other half on the children by refusing the duty of upbringing and shirking guardianship.

  Under such a context, legal assistance plays an important role in ensuring the maximum rights of children from broken-up families. To fulfill its commitments as a signing party of the Convention on the Rights of the Child, China has enacted the Law on the Protection of the Minors, lending a legal support to the assistance to children's rights.

  The amendment to the law was adopted by the National People's Congress Standing Committee at the end of 2006 and took effect on June 1, 2007. The law stipulates that the state provides special and prior protection to children, safeguards their legitimate rights from being infringed upon and ensures they enjoy rights to subsistence, to development, to protection and to participation.

  As for familial protection, the law defines the following principle: Parents or other guardians should create favorable, harmonious domestic environment, perform their duties of upbringing and guardianship. It also prohibits domestic violence, abuse and abandonment of minors, and discrimination against female and disabled children. 

When it comes to children from broken-up families, however, we have to focus on three things when offering legal assistance to help safeguard their rights.

I.  Parents' Duty

  Who will bring up the child usually is the sticking point in a divorce dispute. Parents would either try to shift the duty to the other party, or dispute over the amount of maintenance payment, that is, trying to pay the minimum or even default.

  The absence of parents' fostering duty will certainly put minors' rights to subsistence, to development, to protection and to participation under threat, which will eventually affect their physical and mental health.

  According to a survey in 2002 by the Intermediate People's Court of Harbin, capital of northeast China's Heilongjiang Province, 60.8% of mothers in divorce cases undertook the right of direct caring, against 20% of fathers. In some cases, grandparents also undertake the right, accounting for 4%.

  The survey also found that 63% of parents who did not live with their children could only afford less than 200 yuan (US$25) every month as maintenance payment. Those who could afford 200 to 400 yuan accounted for 13%, while only 4% could pay more than 900 yuan.

  In most cases, the maintenance payment was paid monthly rather than quarterly, annually or noninstallment, according to the survey.

  The Harbin survey actually mirrors the whole national case: Mothers are major undertakers of the upbringing duty, while fathers only afford children's maintenance. As in general women earn lower incomes than men, children's living standards and education will be affected once their fathers fail or refuse to pay. Thus, judiciary departments must make sure that divorced parents fulfill their duties.

  Firstly, the court should rule a rational amount of maintenance payment to ensure that the children's living and education standards will not fall after their parents are divorced.

  According to the interpretations by the Supreme People's Court, a divorced parent shall pay 20-30% of his total monthly income for the maintenance of his child. For those without fixed incomes, the payment has to depend on the parent's total annual earnings or the average earnings of his or her profession. In practice, however, the total monthly and annual incomes, and the average earnings of a profession are always vague terms and imprecise numbers as it is hard to quote an applicable proof.

  Therefore, in line with the principle that minors enjoy special, prior protection, the court should make efforts to investigate and decide the exact incomes of the divorced parties, and base the verdict on the finding.

  Secondly, the court should ensure parents afford maintenance through injunction force when necessary.

  More and more upbringing obligors default and refuse to pay the maintenance, affecting their children's living and education standards. In such cases, the minors and their direct fosterers have the right to seek legal assistance, while courts are entitled to take coercive measures to safeguard the minors' rights.

  Thirdly, the court should try a more flexible approach when ruling on the duty and right of fostering.

  As mentioned above, in most cases women undertake the right and duty of direct fostering after divorce. Undoubtedly, maternity always means tender, considerate and stable family life, but single parent family usually shadows the young little hearts. It also means heavier burden for single mothers. In addition, some women have to give up chances to remarry in fear of children's opposition or possible unharmonious relations between children and stepfathers.

  Therefore, it is advisable for divorced parents to undertake the right and duty in turn. And the court should try a more flexible approach, ending the fixed, single-parent fosterage ruling and letting fathers and mothers take turns to take care of their children.

  Such an approach is favorable for the healthy growth of minors and will also help cement the ties between children and both sides of the parents. But a take-turn ruling can only be made when minors' rights are guaranteed.

II. Guardianship

  The guardianship on minors usually falls on one party of the divorced parents, while the other reserve the right to visit. Minors?rights and interests will be infringed when their guardians do not fulfill duties. Some guardians either leave minors unchecked to do whatever they like to or ignore their personality and moral shaping when underscoring their school performance. There are also parents who relegate the guardianship to a third party while some others would encroach upon the properties of minors.

  Thus it is necessary to define the measures of legal assistance to minors to ensure guardians fulfill their duties and secure the stability and consistency of the guardianship.

  First, define the duties of guardians.

  As stipulated in the Law on the Protection of the Minors, a guardian shall keep watch over the minors' physiological and psychological conditions and their behaviors to ensure their physical and mental health. The guardian is also obliged to make sure the minors receive and finish compulsory education.

  In detail, a guardian has the duty to set a moral and behavioral model for minors and use proper education measures to keep them away from unhealthy behaviors such as smoking, drinking, internet-addiction and vagrancy, and prevent them from crimes such as gambling, drug abuse and prostitution.

  The guardians should also be required to fulfill their duties with caution and credit. That is, whatever decisions they make, they should take into consideration the rights and interests of minors. When a guardian cannot perform his or her duty, he or she should consign the guardianship to an adult who can fulfill the duty.

  Second, promote co-guardianship.

  Usually, the undertaker of the bring-up duty, in most of the case, mothers, also acts as the guardian of the minor. The single parenthood, as mentioned above, is not good for children's character shaping, and unilateral decisions by just one party of parents, especially on those important matters, may produce unfavorable results. Therefore, the co-guardianship approach is advisable, as it can ensure both parties of parents enjoy the rights to make decisions concerning their children based on consultation and negotiation.

  Undoubtedly, the co-guardianship will help shape good psychology and character of minors.

  Third, strengthen regulation on the guardianship over minors' properties.

  Minors' property rights should be respected. In detail, their properties should be strictly registered and filed, and cannot be used without authorization to serve another party's interest. If used, it should be returned in time, and if any loss, compensation must be made.

Their properties should not be encroached upon or divided by divorced parents. Encroach-ment must be returned and compensated.

  III. Right of Visit

  According to the Marriage Law, the parent who does not undertake the direct bring-up duty has the right to visit the child while the other party is obliged to cooperate. But there are always disputes concerning the right of visit. In some cases, the guardian would not allow the other party to visit, while in others the obligee would demand too frequent visits, disturbing the normal life of the other party and the child. There are also guardians who would estrange the child and the obligee by speaking ill of the other party, inducing the minor to refuse the visit. When obligees' demand to visit is frustrated, some of them would in return precondition the maintenance payment on the exercise of the right.

  Loopholes in the judiciary process are also to blame for the disputes. For example, some verdicts may fail to explicitly state the method, site and length of the visit, or in some cases, the ruled visit right may go against the will of the child. As visits are usually timed for weekends and holidays, it brings inconvenience for the court to enforce.

  The obstruction of the right of visit, however, will harm both children's physical and mental health and their relations with parents. It may also add to courts?burden of mediation. Therefore, legal assistance becomes necessary for the exercise of the right.

  First, legislative assistance.

  The legislation on the right of visit should take into consideration the following questions:   Firstly, the right should be extended to cover mutual visits between minors and their grandparents as it can satisfy their emotion demands. And the exercise of the right should not disturb both parties?normal life and peace. Secondly, the right of visit between parents and children should be mutual. That is, as parents have the right to visit their children, children should also enjoy the equal right to visit their parents.

  Second, judiciary assistance.

  There are only principle stipulations on the right of visit in current laws, and the exercise of the right is left for free negotiations between the parents and free judgment by the court. The lack of detailed regulations on the right of visit in legislation has resulted in the perplexity in the judiciary process.

  Therefore there is the need to define the measures for injunction force on the exercise of the right. As the act of visit and the person of the child both are nothing that can be forced, injunctions can only be enforced for detention, fine and other measures when a party refuses to cooperate with the other party for visit. However, detention is not advisable, as it will do no good to children誷bring-up. But refusal or obstruction of visit can be cited as the cause for the demand of guardianship shift. Also, the obligee should be entitled to demand both material and spiritual compensation when his or her right of visit is infringed.

  Also, the principle of exercising the right of visit should be defined. That is, it must do good to children's  physical and mental health and must not disturb the other party's work and life. As for the demand on the exercise of the right, such as when, where and how the visit take place, the parties can negotiate. But when they fail to reach an agreement, the court can give a verdict. In either case, the court should write the date, site and method of visit into the judgment.

  It is also necessary to define possible causes that may lead to the suspension of the right of visit. Whenever the visit is found adverse to children physical and mental health, the court should suspend the right of visit. Related laws should explicitly interpret the adverse factors, which may include the obligee's unhealthy addictions, such as gambling, drug abuse and drinking, and illegal behaviors, such as domestic violence, abuse, abandonment and sex harassment on children. If a parent has mental illness or contagious disease, his or her right to visit should also be suspended. So should be in the case when an obligee is found to kidnap or hide the child.

  In a psychological sense, the right of visit is helpful to minors?healthy growth, both physically and mentally. It can also help satisfy parents' emotion demand. In an ethical sense, effective legal regulations on the right of visit can also help nurture mutual respect and belief between divorced couples, and thus contribute to social harmony.

__________________________   

The author is a professor of the Law School of Heilongjiang University.