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China: New Measures on Foster Families

(Dec. 12, 2014) On September 24, 2014, China’s Ministry of Civil Affairs promulgated new measures on foster care, which took effect on December 1, 2014. They replace temporary measures that have been applied since 2004. (Jiating jiyang guanli banfa [Measures for the Management of Family Fosterage] (adopted on Sept. 14, 2014), Ministry of Civil Affairs of the People’s Republic of China website; Interim Measures for the Management of Family Fosterage [in Chinese and English] (Oct. 27, 2003, in force on Jan. 1, 2004), LAWINFO CHINA [by subscription].)

According to Xu Jianzhong, Deputy Director of the Ministry’s Social Welfare and Donations Department, the new measures “will further guarantee the rights of abandoned children and help them to integrate into families and society.” Moreover, he stated, “[c]ompared with the current regulation … the new one sets stricter qualification standards for foster parents.” (Ministry Sets Stricter Rules on Foster Care, CHINA.ORG.CN (Sept. 29, 2014).)

Highlights of the New Measures

Orphans under the age of 18 who are in the custody of local government civil affairs departments at the county-level and above and infants or children whose parents who cannot be found are eligible for foster care. The Measures state that it is not suitable to arrange family foster care for severely disabled children who require specialized professional care, such as long-term medical treatment and rehabilitation and special education. (Measures, art. 7.) Under the Measures, unsettled minors who are homeless, beggars, etc., are also categorized as abandoned children, Xu stated. (Ministry Sets Stricter Rules on Foster Care, supra.) Aid and protection agencies that have the responsibility of temporary guardianship of these minors will carry out family foster care placement for them on the basis of the Measures’ provisions. (Measures, art. 35.)

The number of foster children in a household cannot exceed two and that household must not have other children under six years of age. (Id. art. 9.) This provision, and the one on minors who are homeless, are new provisions not found in the temporary measures. (New Provisions on Family Fosterage Implemented on December 1, Homeless Children Brought Within Their Scope, ANHUI XINHUANET (Oct. 23, 2014) (in Chinese).) A foster family that meets the adoption requirements and that wishes to adopt the foster child may be given legal priority for the adoption. (Measures, art. 25.)

In order to become a foster family, a household must meet the following requirements:

1) They must have permanent registered residence and a fixed abode in the place where the child welfare agency is located; after the foster child enters the household, the per capita living space is not to be less than the local per capita living space standard.
2) The family must have a stable income, with the family members’ total income at or above the local median level.
3) There may be no history of serious contagious disease or mental illness among the family members, nor any other illness that would not be beneficial to the foster child’s upbringing or maturation.
4) The family members may not have a criminal record or harmful habits and must have harmonious household relationships and good relations with neighbors.
5) The primary caregiver is to be between 30 and 65 years of age, in good health, have the ability and experience to take care of a child, and at least a junior high school education. (Id. art. 8.)

There is a five-step process that applicants must complete in order to be eligible to foster a child:

1) Application. Families planning to give foster care should submit a written application to the child welfare agency, with photocopies of the household registration and identification card and proof of the family income and housing situation, family members’ health status, and unanimous consent of the adults in the household to apply for fostering;
2) Assessment. The child welfare agency should organize specialized staff or entrust third party organizations such as social work services institutions to an conduct onsite investigation of the applicant family, to verify whether or not the family meets the fosterage criteria and has the ability to give care and to find out about the family’s neighborhood relationships, social contacts, criminal record status, community environment, and other circumstances; in accordance with the results of the investigation, the investigators must submit their assessment views.
3) Examination. The child welfare agency should carry out an examination of the applicant family based on the assessment views and, after making a determination, report to the civil affairs department in charge to put it on the record.
4) Training. The child welfare agency should give training to the chief caregiver of the foster family.
5) Contract. The child welfare agency should agree to and sign a fosterage agreement with the principal caregiver of the foster family, specifying the fosterage time period, the rights and obligations of both contractual parties, the principal caregiver, the time limit for adaptation to fosterage, the responsibility for violation of the contract and how it will be handled, and other matters. The family fosterage agreement takes effect on the day that both sides sign (seal) it. (Id. art. 12.)

Funds for a foster care family include a subsidy for child-rearing costs, a labor allowance subsidy, and fosterage task expenditures. The child-rearing costs subsidy will be arranged in accordance with the relevant national provisions; the labor subsidy and fosterage task expenditures will be guaranteed by the local people’s government. (Id. art. 29.)

According to the new regulation, if foster families are found to discriminate against or abuse foster children or to exploit a child to raise money (id. art. 20 ¶¶ 1(1) & (5)), or if they have a serious accident and become unable to fulfill their foster-care obligations (id. ¶ 1(3)), among other reasons, the child welfare agency will terminate the fosterage relationship. Caregivers who discriminate against or abuse a foster child will also face punishments, including criminal penalties. (Ye Qi, Rights of Foster Children Maximized in New Regulation, WOMENOFCHINA.CN (Oct. 30, 2014).)

According to the Ministry of Civil Affairs, throughout China there are 30,000 abandoned children who live with foster parents and 95,000 such children being cared for in social welfare centers. (Id.)