Until the 16th century, childhood coincided with a period of complete dependence of the child on the parent without any independence or choice. Unlike what is seen today, after passing the childhood stage, there was no transition period to the adult stage, the child was considered as a young adult, capable of performing all the tasks of an adult. This worldview can be easily verified in the paintings of the time, where children were depicted as rural or urban laborers, from harvesting grain to markets in big cities.
In the 17th and 18th centuries, the so-called “stage of social construction of childhood” emerged, consisting of differences between children belonging to a social nucleus and those who were excluded from a typical bourgeois traditional family. Regular children at the time inherited the wealth accumulated by the family, belonging to a line of kinship marked by their surnames, which they submitted at the behest of certain parents. Instead, children who were abandoned by their parents, single mothers, or children of deceased fathers were called “minors”, an entrant who already showed their irregular status and suffered all sorts of social exclusion.
This period was strongly marked by incidents of judicial assistance, which translated into the same behavior of abandoned and delinquent juveniles. For those who are in a precarious situation, except for their families, juvenile offenders will be treated the same, there is no difference between abandoned and correctional facilities for minors. In this case, the guardianship of the minor was under the responsibility of the state or church, which is responsible for the maintenance of many institutions for the reception of abandoned minors.
The distinction between abandoned children and offenders came through the formation of the Juvenile Court in 1827 by the Mello Matos Code. Much later, Act No. reveals the inability of parents to maintain them. Finally, with the advent of the 1988 Federal Constitution and the Statute of Children and Adolescents (ECA), the so-called integral phase of the protection of minors began.
The basic concepts for understanding ECA are given in paragraph 2, defining a person as a child up to 12 years old and a person between 12 and 18 years as a teenager. Note that the International Convention on the Rights of Children and Adolescents (CIDCA) defines it as anyone under the age of 18.
The principle of inalienable protection of minors is found in Articles 1, 3 and 190, so that no provision of law may be interpreted or applied for the harm of children or adolescents. The law became an instrument of demand from families, societies and manpower, respecting the rights of children and adolescents, creating a non-negotiable protection network for various actors, including: the judiciary, the public ministry and the public defender’s office. In addition, the policy considers the application of ECA to all children and adolescents, regardless of whether they are at risk (human rights are indivisible).
The law cites HC 358536 / SP as an example of the use of the principle of integral protection of minors, which defines the placement of children or adolescents in institutional care beyond the provisions of Article 98, ECA and AREsp 55.6574 / PR. , Which maintains full protection as the basis for the state’s obligation to provide medicines for children or adolescents.
Article 4, the only paragraph, and the ECA’s 100, III and IV, contain the principle of absolute precedence over the juvenile’s preference for protection and assistance in any situation; Prioritize public service or public relevance; There should be a reference to the formulation and implementation of public policies in the areas related to the protection of children and youth and the privileged destination of human resources. Even based on the general interpretation of these articles, Minister Celso de Mello, a reporter for RE 41.0715 AgR / SP, realized that the judiciary could interfere in the implementation of municipal public policy, imposing the obligation to build public schools.
In the event of an apparent conflict of rules, the provisions of the ECA must be interpreted under the vector of their social objectives, the claims of the common good, the individual and collective rights and duties, and the strange condition of children and adolescents as individuals. In the case of development, the latter is understood to be the limitation of state faculties to intervene in matters relating to childhood and adolescence. According to Article 3, I of CIDCA, the issue of the rights of children and adolescents and state intervention in childhood and adolescence is a public policy of an inter-regional nature, governed by a set of government and non-government organizations, agents, authorities and entities, which a. Acts as a protection network, creating so-called “child and adolescent guarantee and rights systems” – Kanda Resolutions 113 and 118.
The right to life and health, in addition to being constitutionally guaranteed, finds refuge in Articles 7 to 14 of the ECA, even reaching out to pregnant or postpartum women. According to Article 8, §4, the government has a responsibility to provide psychological support to pregnant women and mothers, as a way to prevent and mitigate the harm caused by the pregnant state, and even to adopt children who are deprived of their freedom or who want to live their lives. Article 8, §6, in turn, determines that a pregnant / pregnant woman is entitled to a partner of her choice during antenatal care, labor and immediate postpartum care. Article 8, §8, prescribing normal delivery as a rule, cesarean section is accepted only in case of recommendation of treatment.
In order to protect the specific physical safety of minors, Article 13 stipulates that in case of suspicion or confirmation of corporal punishment or cruel, abusive behavior or abuse, the information must be forwarded to the parent council of the area concerned. In the event of an injury or motor impairment, the government must provide free medicine, orthoses and prostheses for the treatment, accommodation or rehabilitation of children and adolescents (Article 11, §2).
The right to liberty and dignity (Articles 15 to 18, ECA) and education, culture, sports and leisure (Articles 53 to 59, ECA) derive from the principles of general protection and recognition of minors. The right to liberty refers to the classic notion of the freedom of outpatients to go, come and stay in public places and community spaces, subject to legal restrictions. The right to respect refers to the violation of the physical, psychological and moral integrity of children and adolescents, including the preservation of image, identity, autonomy, values, ideas and beliefs. In the field of education, the ECA ensures that a minor must have full development as an individual, be prepared for citizenship practice and be eligible for work, and have access to free public schools near his or her home.
In view of their vulnerabilities, ECA imposes certain restrictions or restrictions on the market when minors become customers. Magazines or publications with content inappropriate or inappropriate for children and adolescents must be marketed in sealed packaging with caution for their content (Article 78, IV) in accordance with the Prevention Policy. However, the sale of periodicals, including fireworks, lottery tickets and the like, and pornographic or pornographic content, is strictly prohibited (Article 81).
Finally, still the consumer market, as a constraint on the industry. 250 that children and adolescents cannot stay in the premises of hotels, motels, pensions or similar facilities unless they have parents or legal guardians; With the written permission or judicial approval of the parent or legal guardian.