UNICEF Moldova TERMS OF REFERENCE Individual Consultancy Assessment, review and alignment of the legal framework regulating guardianship, trusteeship, legal representation and legal responsibility with international standards Duration: December 2016 – June 2017 (35 working days) Location: Chisinau and selected districts Background According to National Bureau of Statistics more than 330,000 or a full one-quarter of Moldova’s economically active population has emigrated to Western Europe and Russia in search for employment opportunities, over the past two decades.1 This exodus has resulted in more than 20% of Moldova’s children left behind by one or both parents working abroad 2, an issue that was recognized as a growing concern beginning in 2006. The UN Committee on the Rights of the Child in its Concluding Observations from 2009, notes with concern the negative effects of migration on children, particularly the fact that those left in custody of caregivers do not receive the education and moral support they need, are neglected, forced to take responsibilities, and exposed to exploitation and juvenile delinquency. Through the adoption of the Law no.140/2013 on Special Protection of Children at Risk and of Children Separated from their Parents an important step forward has been done, which brought a critical change towards a child protection system-based approach in order to respond to changing risks for children. First, it contributed to the development of a comprehensive legal and policy framework for protection of children without parental care, in particular those with parents abroad and others with precarious or unclear guardianship and/or legal representation. And second, it clarified the procedures important for the system (covering all stages of intervention beginning with identification, assessment, referral, assistance, monitoring, and evidence of children at risk), and assigned authorities and institutions responsible for their application. These should have resulted to better protection of children without parental care, particularly, as guardianship service seems to be used on the large scale. In 2015, 58% of children without parental care were placed under the guardianship as compared to 60% in 2014, 54% in 2013, 51% in 2012, 55% in 2011 and 50% in 2010.3 However, the process of implementing the Law 140/2013 is still hindered by a number of bottlenecks and legal inconsistencies.

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National Bureau of Statistics. (2014). Labor force in the Republic of Moldova employment and unemployment. Retrieved from www.statistica.md 2 UNICEF and the Ministry of Health of the Republic of Moldova. (2014). Monitoring the situation of children and women: Multiple indicator cluster survey summary report 2012. Retrieved from: http://www.unicef.org/moldova/Unicef_booklet_ENG.pdf 3 TransMonEE Country Profiles www.transmonee.org.

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In order to improve the quality of guardianship care, to ensure a comprehensive legal and regulatory framework, to identify the needs and to support the implementation of Law 140/2013, UNICEF, in 2015, and in partnership with Ministry of Labor, Social Protection and Family (MLSPF), has conducted the “Assessment of ‘legal and informal guardianship’ in child care and protection in the Republic of Moldova”. This covered the revision of all primary and secondary legislation and guidelines in the context of legal and informal guardianship responsibilities for children in need of special care and protection. As a result, a number of issues and some inconsistencies have been revealed. These refer to the legal definitions of “guardianship” and “legal representation”, legal roles and responsibilities of stakeholders, interpretations of law in practice, perceptions of beneficiaries, and discrepancies between regions of the country. The same had identified the challenges of understanding and assessing “guardianship” from the practice perspective, which is different in terms used and their interpretation by the different duty bearers, such as for instance: guardianship, curatorship, legal, informal/registered/paid/formal/planned placement, simple placement, classic/temporary/permanent placement. The assessment generated a range of recommendations aiming to: simplify the procedure for establishing legal or formal guardianship in order to ensure children always have representation and a competent adult has authority to make important decisions in the child’s best interest; bring the Civil Code, Family Code and Law 140 into alignment with each other and with international standards; and follow up with consistency in other related national acts. Additionally, most of these have been acknowledged by the Government in its Action Plan to the Child Protection Strategy 2014-2020. The activities 1.4.1 and 1.4.2 aim to reduce the negative effects of migration of parents on children left behind, including through: 1) amending and supplementing certain acts in order to regulate the legal representation of the rights and interests of child, custody and legal responsibility for the upbringing and child care (including children whose parents/single parents are abroad); and 2) developing Regulation on establishing guardianship/trusteeship, form of representation and legal responsibility for the upbringing and child care, including for children whose parents/single parents are abroad. In the afore mentioned conditions, and in line with the Child Protection Strategy for 20142020 and its Action Plan, UNICEF Moldova intends to support MLSPF in assessing the legal framework regulating guardianship, legal representation and legal responsibility in the Republic of Moldova in order to bring the national guardianship system in line with international standards. The review of national laws and by-laws placed against international standards will result in a package of concrete legal and regulatory amendments proposed to the Government for adoption. Improved legal framework will provide more clarity for guardianship authorities, service providers and adopters. 1. Purpose of work This consultancy is aimed at bringing the national guardianship system in accordance with international standards, with particular focus on ensuring wellbeing and best interests of the child in the legal representation, custody and legal responsibility. The legal and regulatory revision will rely on the findings and recommendations from the “Assessment of ‘legal and

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informal guardianship’ in child care and protection in the Republic of Moldova”. The proposed legal and regulatory amendments will be shared with MLSPF and will be subject of endorsement by the Technical Working Group led by the Ministry. 2. Objectives The objectives of this consultancy are to conduct a review of laws and regulations related to guardianship, trusteeship, legal representation and legal responsibility in the Republic of Moldova, and to produce a comprehensive package of legal and regulatory amendments to be operated by the Government. 3. Details of how the work should be delivered It is estimated that the work will be conducted over a period of seven months, beginning in December 2016. To achieve the above-mentioned objectives, the consultant will: (1) Work closely with UNICEF and MLSPF; (2) Conduct a comprehensive desk review of existing national laws and regulations on guardianship, trusteeship, legal representation and legal responsibility; (3) Conduct interviews with representatives of national and local authorities, local and territorial guardianship authorities and relevant professionals (e.g. social workers, judges, prosecutors, teachers), NGO representatives, and academia, and other relevant actors at central level; (4) Revise the regulatory framework on guardianship, trusteeship, legal representation and legal responsibility and develop a package of legal and regulatory amendments to the legislation in force and; (5) Facilitate consultation and validation meetings (roundtables) with UNICEF and members of the Technical Working Group led by MLSPF in order to present the main legal and regulatory inconsistencies and propose respective amendments. The proposed legal and regulatory amendments shall be informed by and respond to the Activities 1.4.1 and 1.4.2 of the Action Plan to Child Protection Strategy 2014-2020, on part related to 1) amending and supplementing certain acts in order to regulate the legal representation of the rights and interests of child, custody and legal responsibility for the upbringing and child care (including children whose parents/single parents are abroad); and 2) revising and adjusting the Regulation on establishing guardianship/trusteeship, form of representation and legal responsibility for the upbringing and child care, including for children whose parents/single parents are abroad, as per the proposed amendments to legislation.

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4. Deliverables and delivery dates (based on the work plan): No. 1.

Activity Based on the findings and recommendations from the “Assessment of ‘legal and informal guardianship’ in child care and protection in Moldova”, conduct a desk review of existing national laws and regulations on guardianship, trusteeship, custody, legal representation and legal responsibility in the Republic of Moldova (5 days) a. Conduct interviews with national and local level stakeholders and relevant professionals at central level (8 days) b. Facilitate a stakeholder/validation meeting on the draft report for feedback (1 day) c. Finalize report (3 days)

Deliverables  Draft review report submitted to UNICEF for comments and guidance

 Questionnaires developed and submitted to UNICEF  List of interviewed people. Brief note on consultation process and major findings  Draft review report amended as necessary and presented to stakeholder workshop. Notes from stakeholders’ meeting.  Feedback incorporated and report finalized 3. a. Develop a package of legal and  Draft legal and regulatory regulatory amendments to the amendments submitted to primary and secondary legislation on UNICEF and MLSPF for guardianship, trusteeship, custody, comments legal representation and legal  Draft review report amended responsibility (12 days) as necessary and presented to b. Facilitate a stakeholder/validation stakeholder workshop. Notes meeting on the draft package of from stakeholders’ meeting. legal and regulatory amendments for  Feedback incorporated and consultation/feedback (1 day) report finalized c. Finalize the package of legal and regulatory amendments (5 days) TOTAL: 35 days * Exact deadlines will be mutually agreed upon contract signature. 2.

Tentative deadlines* 1 month from start date

2 months from start date 2 months from start date 2.5 months from start date

3 months from start date 5 months from start date

6 months from start date

7 months from start date

5. Performance indicators for evaluation of results: The performance of work will be evaluated based on the following indicators:  Completion of tasks specified in ToR;  Compliance with the established deadlines for submission of deliverables;  Quality of work;  Demonstration of high standards of work with UNICEF and with counterparts. 6. Qualifications and experience  Advanced University Degree in Law, Social Sciences or Human Rights;  At least 5 years of progressive experience related to the field of expertise, which will include at least two years of experience in child protection; 4

     

Strong knowledge and experience in legal frameworks on guardianship, trusteeship, legal representation and legal responsibility; Demonstrated capacity to analyse legal and regulatory documents and formulate legal and regulatory recommendations (provide two examples of analyses and recommendations developed and name of institution concerned); Excellent communication, presentation, teamwork and cooperation skills; ability to listen and express opinions sensitively; high work ethics (provide two reference checks); Excellent command of Romanian language, both oral and written; Working knowledge of English is a minimum, good command of English is a strong asset, both oral and written; Working knowledge of Russian will be an asset.

7. Financial proposal and payment modality The financial proposal shall specify the daily fee and the total estimated budget for completing the assignment as per UNICEF financial offer format. The financial proposal shall be submitted in local currency (MDL). Payments shall be based upon outputs, i.e. upon delivery of the services specified in the ToR , and will be rendered upon written approval by the UNICEF Supervisor, and contingent upon the quality of deliverables. Best value for money principle will be taken into consideration under final selection. 8. Definition of supervision arrangements The consultant will work under direct supervision of the Chief Child Protection in UNICEF. UNICEF will regularly communicate with the selected consultant and provide formats for reports, feedback and guidance on performance and all other necessary support to achieve objectives of the assignment, as well as remain aware of any upcoming issues related to consultant’s performance and quality of work. 9. Description of official travel involved The assignment will require local travels. A travel plan will be included in the first set of deliverables submitted by the selected consultant. All travel arrangements and expenses covered by the selected consultant should be included in the financial offer. The calculation of travel should be done based on the following: i) travel cost shall be calculated based on economy class travel, regardless of the length of travel, and ii) costs for accommodation, meals and incidentals shall not exceed applicable daily subsistence allowance (DSA) rates, as promulgated by International Civil Service Commission (ICSC). Unexpected travels shall also be treated as above. Prior to starting the assignment, the selected candidate must undertake the on-line Basic Security in the Field training (to be provided by UNICEF). 10. Copyrights & utilisation rights The copyright and the right of utilization of all the materials will belong to UNICEF Moldova. 11. Support provided by UNICEF To achieve the above-mentioned objectives, UNICEF will facilitate the contact with the Ministry of Labour, Social Protection and Family, Ministry of Justice and other relevant stakeholders. UNICEF will regularly communicate with the consultant and provide feedback and guidance, as well as remain aware of any upcoming issues related to the performance

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and quality of work. UNICEF will provide with relevant documents and available researches; contacts and lists of relevant technical people to work with. UNICEF will cover the costs for organizing the two consultation/validation meetings. 12. Evaluation criteria for selection The candidate will be evaluated based on the quality of the submitted technical offer and the best value for money principle of the financial offer. The candidate is expected to reflect in his/her technical offer the qualifications/knowledge/ experience related to the qualifications and tasks above, with a specific suggested methodology for the tasks to be conducted as well as a personalized chronogram of activities. Evaluation will be performed through a desk review of applications and reference checks, assessment of the technical and financial offer and if necessary, may be supplemented by a face-to-face interview.

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