(extracted from the UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD INITIAL STATE REPORT TURKEY 1999 - ANKARA)

According to the Turkish Civil Code article 264, parents are entrusted with the duty to raise their children in the best means at their disposal and to provide an appropriate training for those who are handicapped or mentally-retarded. Article 265 states that the parents orient the vocational training of their children, considering their capabilities and desires as much as possible.

An important condition of adopting a correct decision on the vocational orientation of the child is the need to know the child’s interest, aptitude and expectations. For this reason, the child should be given the chance to air his/her opinions regarding the decision concerning his/her future.

Under article 266 of the Turkish Civil Code, the duty and responsibility of determining the child's religious education belong to the parents. Contracts restricting this parental right are absolutely void. The provisions of the Turkish Civil Code are, in this respect, in harmony with those of the CRC.

The primary responsibility of the parents in raising the children and the need for taking into account their security are laid down in article 18(1) of the CRC.

The Turkish Civil Code, in its part, is based on the principle that the raising of the children by the parents themselves is the ideal solution. According to articles 262 and 264 of the Civil Code, the parents are under the obligation to raise their children and to treat them with affection and care. The custody is given to the parents for enabling them to fulfill this task. They, as a rule, use the custody right jointly and both father and mother have equal rights.

The Turkish Civil Code created the tutorship institution for protecting the legal rights of the minors in case the guardianship system does not function. According to article 354, if both parents of the minor are deceased or their guardianship rights are withdrawn, the judge will appoint a tutor for the child. Under the sub-article, the public servants are held to report the matter to the nearest magistrate's court when they discover, during the performance of their duties, that a child is left without guardians. Any citizen may also inform the court of similar situations. Upon receipt of this information, the magistrate's court will appoint a tutor for the child.

Sub-article 3 of article 354 of the Civil Code guarantees the rights of parents to avail themselves of the children care and support services.

The Turkish Labor Law introduced the obligation for the public and private sector enterprises to establish day care centers for the children of their employees and workers. Labor Law and the Law on Civil Servants allow paid pregnancy and birth leave for working women for up to three weeks before and two months after delivery.

The Turkish legal system takes up the issue of the child's separation from parents in the context of the parental guardianship rights and duties since these rights and duties concerning the development of the children are based on natural parentage. The guardianship, just like marriage is closely related to societal order and, for this reason, the State controls whether they are duly performed and complied with.

Articles 41 and 48 of the Constitution and various provisions of the Civil Code established a series of arrangements for ensuring the cohabitation of the children with their parents.

At the time of the formulation of the parts of the Civil Code concerning children's rights, the security of children had been the guiding factor under the then prevailing conditions. Children's rights prevailed over those of the parents in the provisions dealing with guardianship and efficient systems were established for the protection of children's safety in all other matters not falling within the field of guardianship.

These arrangements aim at guiding parents and public bodies toward the best interests of the child. Article 262 underlines the need for taking into account children's security in the use of guardianship rights by the parents. The first paragraph of this article confirms that the child will not be removed from his/her parents if there are no compelling legal requirements. This provision is in full conformity with article 9 of the CRC.

In cases where parents fail to fulfil their obligations toward their children or neglect them, the judge can implement the necessary measures envisaged under the Turkish Civil Code.

Measures falling within the first category are mentioned in article 272 which are not enumerated and left to the judge's discretion. Appointment of a counsellor is one of the measures.

The removal of children from parental guardianship and the withdrawal of guardianship is a second category measure.

Where the child's physical and mental development is likely to be impaired or the child is emotionally abandoned, he/she may be separated from the parents under article 273 of the Civil Code. The adoption of this measure might not influence the parental guardianship right and the child may be established in a foster family or institution. This measure may also be adopted upon the request of the parents.

The separation from parents is by far the most severe measure for the child's protection under the Civil Code. The general condition for resorting to this measure is, under article 272 of the Code, the inability of the parents to properly raise the child. The guardianship right will be withdrawn by a court decision from parents who are unable to use this right, who are under restriction or who seriously misuse or neglect their powers. In such cases, the magistrate's court will immediately appoint a tutor pursuant to article 354.

Guardianship may also be terminated upon the adoption of the child by a third person under article 257 or disowning of paternity or termination of ascendance relationship under articles 242, 245 and 258 which separate the child from his/her natural parents.

The Civil Code contains a series of provisions requiring the inquiry of the child's opinion. Other important reasons of termination of the guardianship rights are the divorce of parents and nullity of the marriage. In these cases, guardianship will terminate for one or, if the circumstances so dictate, both of the parents. Following the finalization of the divorce or nullity verdicts, guardianship may be withdrawn from the concerned part only by court decision, although this will not prevent the party from which this right is withdrawn to maintain personal relations with the child.

There are no provisions in the Turkish legislation contrary to article 9(2) of the CRC which requires that the opinions of all concerned parties be sought with respect to the actions taken under sub-article 1 thereof. In fact, comments are taken from minors with discernment power on this account. For actions dealing with younger children, the court resolves on the matter after hearing the parents and considering the child's interest. The courts should thoroughly examine the socio-economic status of the family to which the child will decide be entrusted, the place where the child will live and the school which he/she will attend. For these purposes, establishment of assistant institutions is deemed necessary.

According to article 9(3) of the CRC, the child has the right to maintain personal relations with his/her parents. Similarly, parents also have the same right. However, the courts can decide the contrary if the primary interests of the child require the denial of such a relation.

Where the court resolves that personal relations should be maintained between the parents and the child, the party with whom the guardianship is entrusted is under the obligation to permit the other party to maintain relations with the child.

Separation of the child from home may have resulted from grave turbulence within the family, mistreatment of the child due to poverty, forceful employment, inducement to illegal activities or simply the child's waywardness as stated in article 3 of the Law on Social Services and Child Protection Agency or articles 11 and 12 of the Law on Juvenile Courts. Under such circumstances, the matter is taken up in the context of the laws on protecting the minors and the children are returned to their families or to social assistance institutions through the police.

Although there are no specific rules in the Turkish legal system for handling the situations referred to in article 9(4) of the CRC, no provisions prohibit the notification of concerned officials when the children are separated from their parents or from any one of them due to their arrest, imprisonment, death or deportation. However, article 9(4) has become a part of the national legislation since Turkey ratified the CRC.

Article l0 (l) of the CRC provides guarantees for the exits from or entries to the country for the purpose of family reunification. The Turkish laws do not have specific clauses governing such exits and entries. The parents or any one of them or the children may freely enter the country. With respect to exit, no permit is required. For these reasons, persons wishing to leave the country for family reunification purposes may do so without hindrance. The main problem nevertheless arises when a Turkish citizen wishes to travel abroad for family reunification purposes since some of the European countries where Turkish citizens live in large numbers apply restrictions for granting visas. It is evident that this practice prevents the family reunification stated in article l0 (l) of the CRC.

Article 27 of the CRC guarantees the alimony payable for the children. The Turkish law has the necessary arrangements for ensuring the coverage of a child's maintenance costs.

The party to which the guardianship is not granted has to share the maintenance and education expenses of the child commensurably with his or her revenues under article l48(2) of the Civil Code. But, article 27(4) of the CRC regarding the improvement of the alimony payable to children does not find an efficient application under the prevailing conditions since it is impossible to determine the true revenues of the party liable to remit alimony.

Under article 306 of the Turkish Civil Code, alimony is determined in connection with paternity verdicts having financial consequences. The child receives this alimony, in advance, at the beginning of each month until the completion of his/her eighteenth year of age.

Articles l6l and l62 of the Turkish Civil Code enable the judge to determine the amount of alimony payable for maintaining the party to have a separate residence. The child's right to demand alimony from the parent who abandons home and fails to provide the necessary means for sustenance is based on this provision. The alimony payable by one of the parents to the other and to the children during the course of the divorce case under article l37 called a "sustenance alimony" arises from the maintenance liability.

Under article 315, the child also has the right to demand alimony.

Making the alimony relevant to the present conditions is possible pursuant to article l45(3).

The above provisions of the Turkish Civil Code fulfil the requirements worded in article 27(4) of the CRC, stating that "The states parties shall take all appropriate measures to secure the recovery of maintenance from the parents or other persons having financial responsibility for the child both within the state party and from abroad."

Similarly, Turkey has signed a number of international conventions for guaranteeing the maintenance of children whose parents live in different countries.

The Convention on the Law Applicable to the Maintenance Obligations concluded in the Hague on 2 October 1973 entered into force for Turkey on 1 January l983. This Convention introduced the application of the principle of lex for; of the claimant of alimony without the condition of reciprocity.

The other convention, dated 2 October l973, is titled "Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Concluded in the Hague on 2 October 1973." It has been ratified by Turkey and thus become a part of the Turkish national law.

The common feature of both conventions is the fact that they are applicable to cases containing expatriate elements and cover the cases where the alimony claiming child and payer live in different countries. Consequently, by ratifying these two conventions, Turkey has fulfilled the requirements of article 27 of the CRC since l983. For the solution of alimony issues not covered by these conventions, the provisions of the Law on International Private Law and Procedure Implementation will be applied.

Article 61(4) of the Constitution is in harmony with article 20(l) of the CRC which obliges the State to adopt all appropriate measures for reintegrating to the society the child in need of protection. Although the primary duty of protecting children belongs to the parents, the State undertakes this task under the provisions of the Turkish Civil Code and the Law on Social Services and Child Protection Agency if the parents are not available or are unable to perform their duty, as stated in the preceding paragraphs.

Article 20(2) of the CRC requires the signatory States to provide care for the children who are temporarily or permanently without a family. The Turkish laws and particularly the Civil Code contain ample provisions to that effect. According to article 273 of the Civil Code, the judge will separate the children from their parents and place them with another family or an institution if it becomes certain that their physical or mental health are endangered or if the children are morally abandoned. Where the children continue disregarding the instructions of their parents because of their insubordination and if no other remedies are found, the judge may place them with another family upon request of their parents. The charges of such measures will be paid by the parents or, if they are unable to meet them, by the State.

Various other provisions concerning the protection of children are embodied, in addition to the Civil Code, in the Law on Municipalities and the Civil Procedure Law, but they are most elaborately detailed in the Law on Social Services and Protection of Children. The latter places all services designed to protect the children under State supervision within the General Directorate of Social Services and Child Protection Agency. Pursuant to article 4 (e) of the above mentioned law, all social services intended to protect the children needing support will be performed by the institution established by this law. It is suggested in this respect that efforts must be spent by voluntary organizations.

Social services for children in need of protection, can only be carried on by the Social Services and Child Protection Agency, as clearly stated in Law No. 2828. The children who need protection are those whose physical, emotional and moral development is endangered, such as those:

1. Who have no mother and/or father;
2. Whose mother or father, or both of them, are unknown;
3. Who have been abandoned by the mother and/or father;
4. Who, due to neglect, are faced with social risks, such as begging, consuming alcohol, etc.

Children considered within the limits of this definition can profit from the above-mentioned services after the detailed social study of the competent authority.

The social services for children in need of protection are carried out through Children’s Homes, for children between 0-12 years of age and training institutions for children between 13-18 years of age.

At present, there are 7162 children in 75 Children’s Homes and 9502 young adults in 95 training institutions. On the other hand, about 500 children are the under the protection of foster families. About 1500 children have profited from the foster family services which started in 1961.

“Child adoption” becomes on option when the child who needs protection is an orphan. In this way, protection within the family, which is one of the protection methods outside the institution, is provided.

It is difficult to make a definite estimate of the number of children who need protection in Turkey. According to the 1985 census, 47.40% of the total population is between the age of 0-18 and different figures have been concluded depending on the methods used for determining them. In fact, the number of destitute or completely abandoned children is not very high and it is known that the Social Services and Child Protection Agency provides the necessary services to such children. However the number children who need social assistance programs or counselling services is estimated to be around 480 thousand.

The Law No. 2828 has laid down clear procedures for the protection of disabled people outside institutions.

The Social Aid Instruction of the Social Services and Child Protection Agency, which went into effect on 28.9.1986, outlines the priorities in social services to be giving by the Social Services and Child Protection Agency.

By this Instruction, an area not previously covered by the Turkish social security system has become legally regulated and an important step has been taken towards closing the gap in “Family Assistance."

Another provision requiring the adoption of measures to protect the support-needing children may be found in the Law on the Establishment, Duties and Procedures of Juvenile Courts. Under article l4 titled "Implementation of Measures Regarding the Support-Needing Minors" of this law, one of the measures enumerated in article 10 will be implemented by the competent juvenile court upon the request of the public prosecutor, guardians or tutors of the minors whose physical or mental developments are endangered or who display strong insubordination against their parents.

The absence of clear-cut provisions in the Law on Social Services and Child Protection Agency are overcome by the judges through provisions of the Civil Code. Solutions introduced by the Turkish legal system in accordance with article 20(3) of the CRC deal with the natural parents, foster families, placement at special institutions and adoption. Likewise, the children so protected are allowed to remain at the youth homes until they become self-sufficient in order to avoid the problems likely to arise during the transition from life at the institutions to life at home after the age of 18. The youth homes provide for separate facilities for the boys and girls.

Before the adoption of the measures to be taken pursuant to article 20 of the Law on Juvenile Courts, inquiries are made through social service specialists, pedagogues, psychologists and psychiatrists on such matters as the child's family and social background and educational performance under article 20.

Inquiries are also appropriate in advance of the introduction of a protection decision. According to article 11 of the regulations, a social worker or, if there is no one, the person selected for this purpose by the provincial directorate of social services, will make an in-depth inquiry into the child's background, the existence of his or her parents, the socio-economic situation of the family and of the area, the location where the child had lived until then.

The protection decision is valid as a rule until the child reaches maturity. It may however be rescinded by the court upon request of the institution if the conditions requiring such a decision do not exist any longer or it may be continued beyond the child's maturity subject to his/her consent under article 24 of the Law on Social Services and Child Protection Agency.

Social Aid Services is one of the major services of the Social Services and Child Protection Agency. These services are implemented according to 28.09.1986 Regulation on Cash and in Kind Social Assistance and its coverage was enlarged for the aid seekers in 29.12.1993 and 10.04.1997 by changing the regulation.

According to this regulation, the aid seekers are defined as children who need protection, children who have been decided to be protected by the institution but who are waiting for their turn, aged and disabled people who fell into poverty and are at the same time vulnerable, secondary school and university students who cannot acquire their basic needs and whose parents can neither acquire their basic needs.

Aid in kind includes food, clothing, fuel, stationery, medical instruments and instruments for rehabilitation.

Aid in cash is equal to the amount of social aid in the regulation. This aid is 20 percent of the salary of the highest official (including bonus pays).

The most widespread support given in Turkey is protection at care institutions. Children at the age of 0 to 12 are settled in the Children’s Homes and those in the 13-18 age group are transferred to separate orphanages for boys and girls. A change in the policy was made in the recent past whereby the home-type systems came into existence for smaller groups, but this project has still not been expanded enough because of financial problems.

The adoption service treated in article 21 of the CRC is one from which particularly the children of the age group 0-6 benefit. In this process governed by article 254 of the Civil Code which takes into consideration the children’s prime interests and their rights to live and develop, children's opinions are sought if they are at an age enabling them to express themselves.

This issue is taken up in detail in Chapter 7 dealing with the adoption of this report.

Foster families have been used for a considerable number of years in Turkey as required by article 20(3) of the CRC with due consideration to the interests of the children whose opinions and consent are also taken if they are able to discern the situation.

Foster Family Services is one of the services of the Social Services and Child Protection Agency. Foster Family Services are based on the Civil Code No. 273 and the Law No. 2828 on Social Services and Child Protection Agency. The Agency is trying to disperse this service with projects dated 1961 and 1993. The research proved that children who have grown up in foster families are healthier and more developed than those who have grown up in Agency’s institutions.

In line with this view, to increase the efficiency of Foster Family Services and to disperse these services in the community, a huge orientation and advertisement campaign began with the patronage of the President of the Republic of Turkey, H.E. Mr. Süleyman Demirel, on 25 May 1998. With the help of this campaign in the last one year, 66 children were accommodated in foster families. At the beginning of the campaign, there were 269 children and now there are more than 305 children who are cared for in foster families.

Community centers are the institutions which target better living conditions for the rural people. Especially in east and southeast Anatolia that has witnessed high migration rates, there are 20 community centers which work for increasing the living standards of the people in the region and creating equal development opportunities for them.

In the Turkish legal system, the child's best interests play a decisive role in adoption regulations, as required by article 21(a) of the CRC. Adoption bestows upon the adopted one the same rights of the natural children of the adopting family. Under article 256, adoption is done by an official certificate under the approval of the competent magistrate's court and duly entered on the civil register. The judge shall carry out ex officio investigations as he deems necessary and shall refuse the adoption request unless he finds reasonable the justifications brought by the parties.

Under article 257 of the Civil Code, the adopted child takes the name of his/her adoptive parents and becomes their legal heir. The rights and responsibilities of the biological parents are thereby transferred to the adoptive ones. The Turkish Citizenship Law provides, in its article 3, that a foreign minor adopted by a Turkish family will acquire Turkish nationality in order to avoid statelessness. Legal documents underlying the adoption procedure may not be revealed to any third party without a court decision or the adoptee's consent.

Provisions in the Turkish legal system for adoption aims at protecting the child's prime interests and consequently comply with article 21 of the CRC.

Article 21(b) of the CRC handles international adoptions. In this context, the circular No. 3 dated 9 March 1994 of the General Directorate of Social Services and Child Protection Agency allows for the carrying out of adoption in Turkey, lists the applicants desiring to adopt children in chronological order and grants the priority to Turkish nationals living in Turkey, followed by Turkish families abroad, followed by families in which one of the parents is a Turkish national and finally the families of foreign nationality. This provision is in harmony with the rule stated in article 21(b) of the CRC. Where international adoption of children in Turkey is involved, article 18 of the International Private Law and Civil Procedure Law is applied.

From the viewpoint of Turkish law, sufficient mechanisms exist for ensuring that the adoption does not become an occasion for illicit benefits. Under article 256 of the Civil Code, adoption is made by virtue of an official certificate prepared upon the approval of the judge who carries out ex officio investigations as required by the circumstances. Turkey is a member of the International Social Services which makes known the social status of the alien families desiring to adopt children and reduces the risk of adoptions for the purpose of illicit benefits. However, it is necessary that an international mechanism be established to supervise and control the adoptions which may be intended for the outright sale of children. Adoptions of this kind should not be handled as acts that may be prevented by the efforts of a single country since this is an issue which demands international cooperation.

The bilateral and multilateral agreements regarding the adoption process and its enforcement are encouraged by article 21(e) of the CRC. Pursuant to this provision, Turkey ratified the Geneva Convention for the Prevention of Trading of Women and Children.

Article 11(1) of the CRC governs the procedures against the illegal expatriation and repatriation of children.

The illegal expatriation of children has two dimensions, one concerning civil law and the other concerning penal law. As the matter is of concern for several countries at the same time, no single country may score a success by isolated efforts and legislation. For this reason, international agreements open to the adherence of all countries concerned are suggested.

Article 11(2) of the CRC requires that the signatory states should enter into bilateral or multilateral arrangements or adhere to the existing international conventions. There are two international instruments in this field: the Convention on the Repatriation of Children which has been ratified by Turkey and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This Convention has been signed by Turkey on 21 January 1997.

Article 19(1) of the CRC requires the signatory states to introduce all legal, administrative, social, educational and other measures to ensure that children are protected from physical and mental violence, injury and abuse and all other similar treatments while under the care of their parents or any one of them, guardians, tutors or any persons in charge of their care.

This legislation is laid down in the Turkish Civil and Penal Codes. Articles 272 to 275 of the former has provisions for the protection of children from physical and mental abuse, violence, exploitation and all other similar treatments by their parents. According to article 272, the judge may remove the child from his or her parents for placement with a family or institution if he finds that the child's physical or mental development is impaired or if the child is morally abandoned. The articles 274 and 275 of the Civil Code handle the withdrawal of guardianship. The former renders it possible for the judge to withdraw guardianship rights from the parents and appoint a tutor when the parents are unable to fulfil their relevant duties or are interdicted and seriously misuse their powers or commit excessive negligence. As the ideal solution is to have the child raised with his/her own biological parents, the withdrawal decision will be repealed when the conditions necessitating the withdrawal are eliminated and the guardianship rights are returned to the parents. If the guardianship is withdrawn under article 277 of the Civil Code, parents will continue to bear the costs of raising and protecting the child.

If the tutor misuses this power or commits excessive negligence, he will be withdrawn from his functions by the judge under article 427 of the Civil Code.

The Turkish Penal Code, on the other hand, has provisions against cases of misuse. The Civil Code states that provisions concerning the minor's assets are void. Article 281 of the Civil Code declares that all revenues from the custody of the minor are used for his/her housing and feeding. This provision permits the parents, with a few exceptions, to utilize the minor's property in any manner they deem fit and foresees that the excess will be added to the patrimony of the parents. Since, however, the acts and actions of the parents are not performed under the supervision and guidance of the judge, arrangements should be in the light of the prevailing circumstances of the country and the prime interests of the child.

Articles 414 to 416 deal with the sexual abuse and introduce a variety of penalties depending on whether the victim is below 15 or 18 years of age. Where these acts are perpetrated by one of the guardians or a tutor, instructor, teacher, servant or guard or by any person having influence on such minors, the penalties are increased by one-half under article 417.

Inducement to prostitution is addressed in articles 435 and 436 of the Turkish Penal Code which introduces an aggravating circumstance where the inducement is made on persons under 15 or 21 years of age. Further aggravating circumstances are also provided if the inducement is made by husbands, brothers, sisters, guardians, tutors, instructors, teachers or servants of the child. Withdrawal of guardianship or tutorship is also involved in such cases pursuant to article 437.

Pursuant to article 477, people who cause damages on persons under their guidance by means of misusing their duties to train, educate, raise, guard and protect them will be imprisoned for up to eighteen months.

According to article 478, persons who mishandle, in an unaffectionate manner, any minors under 12 years of age under their care will be punished with imprisonment of up to thirty months.

Where these acts are perpetrated by guardians or tutors, decision will be taken to repeal the guardianship or tutorship according to article 479.

The administrative, social and educational measures relevant to article 19 of the CRC are handled under the heading of "abused children."

Article 19(2) of the CRC identifies the nature of protection measures. Rules contained in the Turkish legislation (Civil Code and Penal Code) include some penalties such as the withdrawal of guardianship. These penalties are adequate for the prevention of mishandling cases.

Article 25 of the CRC requires that the children placed under the protection of public agencies or treated for physical or mental disorders should be periodically controlled to verify whether the protection or treatment serves the intended purpose.

The form and nature of the protection measures to be adopted by the juvenile courts are indicated in the Law No. 2253 on the Establishment, Duties and Trial Procedures of Juvenile Courts in which the subject implementation is handled in articles 10 through 14, depending on the child's age, health and needs.

Continuous follow-up was stated in article 11(d) of the Regulation on Nurseries and Children’s Homes as a function of the General Directorate of Social Services and Child Protection Agency, the duties of which were enumerated as monitoring the socio-economic situation of the child's family, if he/she has any, subsequent to his/her admission to these institutions and returning of the child to his/her parents when their situation improves and writing a report to serve as the basis of the decision for the termination of protection measures.

Article 14 of the Regulation on Foster Families arranges "the manner in which the protective family and the child placed with it will be observed and monitored on a regular basis by the social service worker and the required professional work will be performed with a view to solving the problems which may arise."

Article 19 of the Regulation on Cash and in Kind Social Assistance states that the support process of the persons to whom assistance is granted will be monitored at regular intervals and detailed information and documents will be gathered on such persons. The assistance will cease when it is determined that the concerned persons’ material conditions have become adequate to sustain life without external support.

Article 29 of the Law No. 2253 titled "Supervision" declares that minors against whom supervisory measures are taken and whose sentences are postponed may be placed under control for up to three years and the persons in charge of maintaining such minors will be informed of the purposes of the control and the responsibilities they will have in connection with this decision.

This article adds that the decision will indicate the duration of the control which will continue at least for the probation period in case of conditional postponement of sentences.

Article 31 enumerating the duties of the supervisory officials declares that reports will be prepared at regular intervals on the conduct and behavior of the minor subject to control and the frequency of the controls is thereby established.

In conclusion, the legal and administrative structures for the protection of children without families conform to article 20 of the CRC.