LATINAMERICAN AND THE CARIBBEAN COMMITTEE FOR THE DEFENSE OF WOMAN’S RIGHTS

CLADEM-PANAMA

SHADE REPORT

ON THE CONVENTION OF CHILDREN’S RIGHTS

RATIFIED BY PANAMA BY MEANS OF LAW No.15 OF NOVEMBER 15th AND 16th , 1990

INDEX

Págs

Panama’s present Context

/

3

Introduction

/

5

Children’s right to identity, responsible maternity and paternity

/

7

Children’s Protection against all forms of injury and physical, psychological or sexual l abuse

/ 10

Children’s right to Health and Social Security

/

13

Children’s protection against the economic exploitation

/

16

Children’s protection against all forms of sexual exploitation

/

22

Presumably minor violators’ right to be worthily treated.

/ 25

Conclusion

/

29

Bibliography /

30

Anexes

PANAMA’S PRESENT CONTEXT

The 2000 Population and Housing Census made in Panama registered a total of 2,815,644 inhabitants. The country presents a descendent tendency in the annual growing rate average. The internal migrations have moved rapidly in the last decades and these people generally take root in the main cities, making the spontaneous establishments in marginalized areas.

Men are the 50% of the population and women represent the 49,5%. According to the General Controllership of the Republic, people’s life expectancy average was 74,45 years in 2000.

With respect to minors, children under ten are the 21.9% of the total population and those between eleven and nineteen the 19.6%. The Indian population has a greater amount of children, representing the 32% of the total natives.

In Panama, the social cost has tripled in the last decades, from 539,2 million dollars in 1980, to 1,820,7 in 1999. Nevertheless, serious problems of quality, distribution and social equality create disadvantages for the people who do not perceive direct results or benefits. In effect, according to the Direction of Programming and Investments of the Ministry of Economy and Finances, some of the factors associated to the lack of social equity are, among others:

1. Weak managing of the Public Institutions.

2. Lack of programs and projects continuity.

3. Centralization of decisions and resources managing.

For that reason, though important budget assignations to the social sector, a high level of poverty persists. In fact, some estimations based on the 1997 Life Standards Survey indicate that 37% of the population live in poverty, affecting more than a million people, from these 19% living under extreme poverty.

Children between five and nine representing the 50.4% and those between ten and fifteen being the 45.8%, live in poverty situation. From a total of 887,000 under fifteen; 441,200 faced inequality, exclusion and poverty.

The situation described above takes us to conclude that children’s condition of poverty matches the adults’ low levels and life quality. Unemployment, low wages, informality and women discrimination are some of the main causes of the problem, restraining the benefits of children’s rights.

INTRODUCTION

In order to be attentive to the established demands in the Convention on Children’s Rights and other International treaties ratified by Panama, the Latin American and the Caribbean Committee for the Defense of Women’s Rights together with its Colective in Panama, have coordinated the elaboration of this Shade Report, which approaches relevant aspects on the Protection of Children’s rights.

Brief commentaries are presented to call the attention of important situations, mainly the concerning with the national and international norms our Government has fulfilled or must fulfill on this matter.

We can emphasize the use of statistical data to observe, to a certain extent, the impact of the legal norm, policies, plans and programs aimed to children and adolescents in relation to the developed matter; evidencing, in some cases, the necessity to reinforce certain areas of attention and/or prevention for this sector of the population.

DUE TO THE FACT THAT PANAMA DOES NOT COUNT ON A CODE OF CHILDHOOD AND ADOLESCENCE, THOSE REGULATIONS ON THE PROTECTION OF CHILDREN’S RIGHTS ARE CONTAINED IN DIFFERENT LAWS.

OUTSTANDINGLY, THE EFFECTIVENESS OF THIS LEGISLATION WILL DEPEND ON THE DEVELOPMENT OF ALL THE LEGAL STRUCTURES CONCERNED WITH NORMS AND THE PREVENTION AND ATTENTION PROGRAMS ON CHILDREN AND ADOLESCENTS’ RIGHTS.

Immediately after, we present the Panamanian norm, some data and figures that will allow us to specially observe the reality of Panamanian children in relation to what is consecrated in the Convention of Children’s Rights approved by our country.

CHILDREN’S RIGHTS TO IDENTITY AND

RESPONSIBLE MATERNITY AND PATERNITY

(Arts. 5, 7, 8 and 18 of the Convention on the Children’s Rights)

The Constitution of Panama protects child’s right to Identity in Title III, Individual and Social Rights and Duties, Chapter II, Family, article 57 on paternity.

All concerning Filiation is regulated in articles 235 to 289 of the Code of Family.

The Constitutional Principle on children’s equality indicates in its article 261[1] that children and adolescents can register their sons and daughters despite not having the legal age valid to contract marriage, taking into account the age of the son or the daughter who is going to be registered.

Law on Paternity Identification (Test of Genetic Marker or DNA)

Law No. 39 of April 30th, 2003 modifies and adds articles to the Code of Family on Paternity Identification, and dictates other dispositions establishing a Special Process based on the effectiveness and certainty offered by the test of genetic marker DNA to determine paternity.

This is a new legal instrument whose procedure can assure who is the real child’s father for the requested registration in the Civil Registry.

This social law has a retroactive effect when giving those fathers who had not registered their children born before the law enforcement, a period of two years to establish the special process for this purpose. For the children born after, the process must be instituted during the first year from birth.

Minors registered by their Mothers

According to statistical data of the Electoral Court, there is a growing tendency of children registered only by their mothers, 19.5% between 1995 and 2000, meaning a total of 33.656 inscriptions within the five years. Additionally, there are 11.636 children registered with their mother’s last name which took place by office on the part of the Civil Registry. We have then a total amount of 45.292 children who in the short term of five years were not identified by their fathers.[2]

Allowance as a right derived from the act of Registry

Internationally, Panama has ratified the Inter-American Convention on Allowances.[3]

In 1999, the Municipal Courts of Family were created by law. However, a limited budget, lack of judge assistants and reduced personnel to assist the large number of cases ( among them, allowances and children registration) are some of the problems these legal offices present.[4]

If these limitations are compared with the fact that according to the 2000 census, the 24,35% of the Panamanian homes were constituted by single women with their children,[5] there is an evident urgency to take care of these cases constituting a violation to children’s rights.

According to data provided by the Judicial Organ informs 3,033 cases of allowances entered in 1999. From these, 2.506 were of first instance and 527 of second instance; whereas 4.307 were presented in 2000 representing the 35% of the total assisted by this legal institution in this date. Consequently, this situation shows children mistreatment when their basic necessities are not satisfied. [6]

The legislative improvements in this field are important and contribute to solve the interested population’s necessities.

CHILDREN`S PROTECTION AGAINST ALL FORMS OF INJURY OR PHYSICAL, PSYCHOLOGICAL OR SEXUAL ABUSE.

(Articles 6 and 19 of the Convention on Children’s Rights)

From the ratification of the Belem Do Pará Convention[7], Panama approved Law 27 of June 16th, 1995, which typifies domestic violence and children mistreatment as crimes. By means of Law 38 of July 10th, 2001 articles are added to the Penal Code on these matters. This Law abolishes articles of Law 27 of 1995 and dictates other dispositions.

Article 495 of the Code of Family considers maltreated and abandoned children as minors in difficult circumstances. And in its article 500 on maltreated minors, establishes that “a child is maltreated when his or her physical or mental health or well-being is exposed to any damage due to actions or omissions of his or her parents, tutors, officers, guards or institutions responsible for his/her care or attention.

Law 38 of July 10th, 2001 on Domestic Violence, and Children and Adolescents mistreatment[8] which is a proposal presented by the National Net against Violence together with other Organizations before the Commission on Women Affairs, Youth, Children and Family Rights of the Legislative Assembly of the Republic of Panama, provides relevant changes when expanding the guarantees to those couples freely united (which were not included in Law 27). Protection measures for the surviving victims are created and penalties for the domestic violence and children and adolescents mistreatment crimes are increased in Chapter V, Title V of the Penal Code, besides defining, expanding and including other Sexual and Economic aspects as another form of Domestic Violence.

Qualitative and Quantitative aspects

In the Center of Victim Assistance of the Judicial Technical Police in Panama, according to the annual statistics from January to July 2000, 89 male and 72 female children were assisted because of domestic violence, costing 9,900 and 8,000 dollars respectively.[9]

Also, data of August, 2000 provided by this Panamanian Institution shows 51 rapes denounced, 98% against women. Among these victims, one was between 5 to 9 years old; 44% aged from10 to 14, and 16% from 15 to 17; thus, 62% of the victims were under age.

According to information from the Children Hospital,[10] 166 cases of violence against children were assisted in 2001. From this amount, 65 attended due to physical maltreatment, 79 to sexual abuse, 11 to negligence, 10 to abandonment and 1 was a self attempt associated to mistreatment.

The 2000 Report Suspicion on Domestic Violence and Child, Adolescent, and Adult Maltreatment[11] informs that 957 suspicious cases of domestic violence of people aged from the first months to 19 were presented in the health centers along the country, a total of 2.512 people were assisted. The most outstanding kind of aggression was sexual violence with 345 reported cases, 66 of them in the Children Hospital, physical violence represented 1.875 cases, 131 in the Children Hospital, 405 psychological violence and 4 of them also in the same Hospital.

In relation to the Patrimonial Violence, an increase of allowances is observed, 3.033 in 1999 and 4.307 in 2000.[12]

It is remarkable the fact that the Supreme Court of Justice’s verdicts declare Habeas Corpus detentions illegal and protect contempt of those obliged to provide allowances.[13]

CHILD’S RIGHT TO HEALTH AND SOCIAL SECURITY (Arts. 24, 26, and 28) of the Convention on Child’s Right)

The rights to Health and Social Security are guaranteed by the National Constitution in its Title III, Chapter 6, which includes articles 105 to 113.

In Panama, the Constitutional Principle of Social Security was developed by means of the Social Security Organic Law 23 of 1941, subrogated by Law 134 of 1943 and modified by the Decree No. 14 of August 27th, 1954, in its Title V where the risks of disease, maternity, oldness and death are included within the benefits of the social insurance.

Legislation on the Pregnant minor’s Health and Education

On June 13th, 2002, Law 29 offering pregnant minors health and education guarantees was approved. This law expresses the present great number of adolescents who do not receive good medical care on the part of the Ministry of Health and the Social Security Institution; the last arguing that pregnancy is not a disease condition and, therefore, these people should not receive the benefits assigned to the insured’s daughters. It is pertinent to indicate that according to the 2000 Census, 20% of the children born alive in the Republic, belonged to adolescents.

By means of Law . 66 of November 10th, 1947, the Sanitary Code was approved. Its article 154 indicates the Government’s obligations to assist pregnancy and childhood protection with no cost, including preventive attention and woman’s social medical care during her pregnancy, childbirth and up to eight (8) weeks puerperium.

The Ministry of Health, Ministry of Labor, Ministry of Youth, Woman, Childhood and Family and the Social Security are the Institutions responsible for the fulfilment of the dispositions on all remunerated pregnant workers.

Article 491 of the Code of Family prohibits schools to impose disciplinary penalties because of pregnancy.

The executive Decree 162 of July 22 , 1996 establishes the internal regime for the students attending particular and official schools.

These last dispositions are reinforced by the already mentioned Law 29 of June 13th, 2002, which besides extending and reinforcing pregnant minor’s protection, they also impose penalties to those public officers who infringe the law and refer to the Organic Education Law to sanction those in charge of private schools.

The National Legislation on Health and Social Security has the important mission of maternity regulation and childhood protection. Nevertheless, according to the statistics, the reality of Panamanian women and children is still far from an ideal situation as that there is the necessity to reinforce adolescent pregnancy prevention and to strengthen punitive measures to those adults responsible for these practices.

Qualitative and quantitative aspects of the Pregnant Minor Student

In 2000 in all the elementary and secondary official schools, 53 cases of pregnant students appeared, 9% were eleven years old; 13% twelve; 23 % thirteen; 24% fourteen; 28% fifteen and one (2%) was seventeen.[14]

Such figures show us an academic delay in most (77%) of the students, those aged to be cursing high school studies. More than half (55%) of the pregnant students attended the sixth level and 30% the fifth; however, a pregnant girl was registered in the first level, one in the second , one in the third and five in the fourth[15]. Concerning secondary schools, there were 512 pregnant students between 15, 16, 17 and 18 years old.[16]

All this information is extremely worrisome. Though this legislation has been created to protect pregnant minors, the necessity to work on prevention programs for youth and family is evident due to the increasing number of pregnant adolescents. There are no programs that can guarantee adolescents’ right to a suitable sexual and reproductive health.

CHILD’S PROTECTION AGAINST THE ECONOMIC EXPLOITATION.

(Arts 32 and 36 of the Child’s Right Convention)

Panama has internationally ratified the LIO’s Agreement 138 on the minimum age allowed to be in the labor field[17] and Agreement 182 on the Prohibition of the Worse Forms of Minor Work and the Immediate Action for its Elimination.[18]

From the creation of the LIO’s Program for the Eradication of Children’s Work, Panama conformed the Committee for the Eradication of Children’s Work and the Working Minor’s Protection.[19] This initiative has the purpose of encouraging the formulation and execution of a National Action Plan together with the Government, the Private Sector and Workers’ support.

The Political Constitution of the Republic of Panama in Title III on the Individual and Social Rights, Chapter III on Labor affairs, article 66, prohibits work to fourteen years old and younger minors and night work to the sixteen (16) years old adolescents, unless the established exceptions. Likewise, to use minors under fourteen (14) as domestic servants or another kind of occupation and women’s working in unhealthy occupations is not allowed

The Panamanian Code of Family in its Book II, Preliminary Title, Chapter II, establishes the fundamental rights of minors, indicating their guarantees to be protected against the economic exploitation and those kind of works that could affect their health and access to education. In addition, child is recognized as a mistreated victim when he or she is exploited or used for profit purposes, including begging.

In relation to minor’s labor shifts, it is six (6) hours daily, only in day schedule and without affecting attendance to school. Night work is not allowed under any circumstance.

Article 716 of this Code establishes an exception based on the Constitutional norm when allowing minors between twelve (12) and fourteen (14) to make agricultural and domestic work. It must be in agreement with the schedule, wage, contract and type of work regulations in the Code of Work.

It is important to emphasize this article was partially declared unnconstitucional by the Supreme Court of Justice[20] because it infringed article 66 of the National Constitution specifically prohibiting domestic work to under fourteen years old minors.

On the other hand, the Panamanian Code of Work regulates in its Book I, Title III, Chapter II, Sections Second and Third, all concerning minors’ work, wages, benefits and other guarantees that the labor laws grant adults. By means of contracts, the capacity of 14 years old and over children to work is recognized, but it is a requirement the intervention of their parents or legal representatives or, when absent, the own minors previous approval of the Ministry of Labor.

Similarly, it allows the 12 years old minor to work as domestic employee, as well as in light works authorized by the Ministry of Work. This norm appears to be unconstitutional since it prohibits work to those minors aged up to fifteen who had not completed their primary studies, but demands employers to send them to school until completing elementary school. It also states $50 to $600 dollars fines to any employer who does not fulfil these dispositions.

Panama does not count on a Code of Childhood and Adolescence, reason why the norms on minors’ labor, among others, are treated in different Laws.

Domestic and Agricultural Labor (Cane harvest) and Garbage collection as some of the hardest forms of children’s work.

Since a qualitative and quantitative perspective on children’s work, the 2000 Census, registered 38,353 economically active ten to seventeen years old children population (EAP).[21] From this amount, the agricultural sector concentrates about 43% of the minor workers[22].

The domestic work has the second place since girls represent 16.4% of the children manual labor[23]. In addition, ILO reports 90 to 95% women doing domestic work.[24]

Studies made in Panama confirm the same situation. In those great women groups there are eight and nine years old girls in domestic works, being a clear violation to Children’s Rights.[25]

The structure of the Panamanian Economically Active Population (EAP) registered a significant amount of girls who are separated from their normal children’s activities to be put under long days of exhausting works that do not give them any possibility to continue their studies and normal growing.