Govt Issues New Regulation on Child Guardianship
Date 15 Mei 2019
President Joko Jokowi Widodo on 26 April, 2019 signed Government Regulation (PP) Number 29 of 2019 on Terms and Procedures for Appointment of Guardian to implement the provisions of Article 33 paragraph (5) of Law Number 35 of 2014 on Amendment to Law Number 23 of 2002 on Child Protection.
“Guardian is a person or an entity that has legal authority to function as parents to children,” Article 1 paragraph (1) of the Regulation reads.
The Regulation asserts that the appointment of the Guardian aims to protect the rights and fulfill the basic needs of the child as well as to manage the assets of the child in order to guarantee the growth and development of the child.
If the parents of the child are deceased or missing, the following parties: a. family of the child; b. relatives of the child; c. other people; or d. legal entity, can be appointed as Guardian after fulfilling the requirements for appointment of Guardian and after being approved by the court.
Priority for the Guardian appointment, according to the Regulation, is granted to the family of the child. “In the event that the family is absent, unwilling, or not meeting the requirements, another person or legal entity may be appointed,” Article 3 paragraph (4) of the Regulation reads.
The Regulation states that the family appointed as Guardian must fulfill the following requirements: a. Indonesian citizen who is domiciled permanently in Indonesia; b. being 30 (thirty) years old or above; c. physically and mentally healthy; d. having good behavior; e. economically capable; f. observing the same religion as the religion observed by the child; g. having written approval from husband/wife (for those who are married); h. making written statement on commitment to be the Guardian; i. making a written statement on the commitment to avoid: 1. violence, exploitation, neglect and mistreatment of the child; or 2. physical punishment for any reason including the enforcement of discipline against the child; j. prioritizing the closest family of the child; and K. obtaining written approval from the parents if the parents still exists and are capable of carrying out legal act.
The relatively same requirements apply to the appointment of the relative of the child or other people as guardian, except for age requirements. The relative of child who become guardians must be at least 21 (twenty one) years old.
The Legal Entity appointed as Guardian, according to the Regulation, consists of technical implementation unit of the Government ministry/agency, regional technical implementation unit, and the Children Welfare Institution.
The aforementioned technical implementation unit of the Government ministry/agency and regional technical implementation unit must fulfill the following requirements: a. being established under the provisions of legislation; and b. carrying out the duties and functions of childcare.
The aforementioned Children Welfare Institution must fulfill the following requirements: a. having legal status as accredited foundation; b. willing to be the Guardian, stated in a written statement made by board of management on behalf of the Children Welfare Institution; c. having a recommendation from the government agency that organizes government social affairs; d. written statement on commitment to avoid discrimination in protecting the rights of the child; e. observing the same religion as the religion observed by the child (for faith-based Welfare Institution); and f. obtaining written approval from the parents if they still exists and are capable of carrying out legal act.
The Regulation stipulates that the appointment of the Guardian that is based on the application or will of the parents must meet the requirements stipulated in the Government Regulation and must be submitted to the Court by a person or legal entity as the Guardian candidate, supported with the request for revocation of parental guardianship.
“An application for the appointment of the Guardian and a request for revocation of parental guardianship received by the Court are decided through a trial. A person or legal entity is declared a Guardian after obtaining an approval from the Court,” Article 9 paragraph (3,4) of the Regulation reads.
According to the Regulation, a person or a legal entity that will be appointed as Guardian must attach a recommendation from the agency that administers government social affairs in ??the Regencies/Municipalities when requesting the appointment form the Court.
The Guardian who has been approved by the Court, according to the Regulation, has the obligation to: a. carry out parental care; b. carry out parental obligations and responsibilities, which consist of: 1. caring for, educating, and protecting the child; 2. raising the child according to their abilities, talents, and interests and guarantee the best interests of the child; 3. preventing child marriage; and 4. providing character education and fostering good behavior in the child; c. guiding the child in understanding and practicing religious life; d. managing the childs wealth for the needs of the child; and e. representing the child to carry out legal actions inside and outside the Court.
“The Guardianship ends if: a. the child reaches 18 (eighteen) years of age; b. the child deceases; c. the Guardian deceases; or d. a legal entity Guardian is dissolved or bankrupt,” Article 16 of the Regulation reads.
In addition to the aforementioned provisions, the Guardianship may end because the Guardian authority is revoked based on the Court ruling if the Guardian: a. neglect obligations as the Guardian; b. incapable of carrying out legal act; c. abuse the authority as Guardian; d. commit acts of violence against the child in their care; and/or e. parents are considered capable of carrying out their parental obligations.
The Government Regulation was promulgated by Minister of Law and Human Rights Yasonna H. Laoly on 29 April 2019 and will come into force on the date of its promulgation. (Pusdatin/ES)
Translated by: Ridwan Ibadurrohman
Edited by: Mia Medyana