Emidio PinhoFriday, March 20, 2020
Saturday, July 8, 2017
UK Child Protection Mechanisms
Child Protection Mechanisms in UK ©
A Brief Submitted by
Emidio Pinho ©
Legal Officer – Children’s Rights in Goa
Following his research visit to UK
From 19th October – 14th December
Emidio Pinho ©
Legal Officer – Children’s Rights in Goa
Following his research visit to UK
From 19th October – 14th December
Concern about child abuse in UK is not new and is evident right from the 1800s with the initiation of the protection the rights of women movement in England. Child abuse is the term that is generally used when an adult harms a child or a young person under the age of 18. Child abuse can take four forms, physical abuse, emotional abuse, neglect and child sexual abuse [1] all of which can cause long term damage to a child: Bullying, domestic violence, racism and other types of discrimination are also forms of child abuse[2]. Like other kinds of abuse they can harm a child physically and emotionally[3]. With regard to the UK jurisdictions – England & Wales have a similar legislation, like wise the Northern Ireland and Scotland – have their own child protection systems, legislation and guidelines.
The definition of child varies from culture to culture and region to region. With regard to the laws in UK it is a felony for a man to have unlawful sexual intercourse with a girl below the age of 13 years[4]. In England, children below the age of 16 years cannot legally give their consent for sexual intercourse. In most countries, legal variations exist with regard to the age of consent.
The Sexual Offences Act 2003 came into force on 1st May 2004 in England. This Act includes definitions and penalties for child sexual abuse offences, and applies to England, Wales and Northern Ireland. This act continues to criminalise all sexual activity with a child and has set the age of consent at 16 years
Although since the 1880s there are legislations in force to prosecute people accused of child abuse, it has taken a series of high profile child abuse deaths and subsequent inquiries to establish the child protection system present today in UK. The first high profile case is the formal child death inquiry report, the Curtis Committee Report which inquired into the death of Dennis O’Neill in 1945, who was killed at the age of 12 by his foster father. Subsequently the deaths of 7-year-old Maria Colwell in 1973 led to the establishment of the modern child protection system, with further changes prompted partly by the inquiries into the deaths of 4-year-old Jasmine Beckford in 1984 and 8-year-old Victoria Climbie in 2000.[5]
The legislative framework for today’s child protection system in England and Wales is found in The Children Act 1989, in Northern Ireland in the Children (Northern Ireland) Order 1995 and in Scotland in the Children (Scotland) Act 1995[6]. These acts have since been amended by subsequent legislation.
The definition of child varies from culture to culture and region to region. With regard to the laws in UK it is a felony for a man to have unlawful sexual intercourse with a girl below the age of 13 years[4]. In England, children below the age of 16 years cannot legally give their consent for sexual intercourse. In most countries, legal variations exist with regard to the age of consent.
The Sexual Offences Act 2003 came into force on 1st May 2004 in England. This Act includes definitions and penalties for child sexual abuse offences, and applies to England, Wales and Northern Ireland. This act continues to criminalise all sexual activity with a child and has set the age of consent at 16 years
Although since the 1880s there are legislations in force to prosecute people accused of child abuse, it has taken a series of high profile child abuse deaths and subsequent inquiries to establish the child protection system present today in UK. The first high profile case is the formal child death inquiry report, the Curtis Committee Report which inquired into the death of Dennis O’Neill in 1945, who was killed at the age of 12 by his foster father. Subsequently the deaths of 7-year-old Maria Colwell in 1973 led to the establishment of the modern child protection system, with further changes prompted partly by the inquiries into the deaths of 4-year-old Jasmine Beckford in 1984 and 8-year-old Victoria Climbie in 2000.[5]
The legislative framework for today’s child protection system in England and Wales is found in The Children Act 1989, in Northern Ireland in the Children (Northern Ireland) Order 1995 and in Scotland in the Children (Scotland) Act 1995[6]. These acts have since been amended by subsequent legislation.
Police
Under the police setup there exists a unit known as Child Abuse Investigation Unit (CAIUs), having the primary responsibility for investigating cases of child abuse. Since December 2005 all CAIUs have Information Technology capability under the national IMPACT Nominal Index (INI) to quickly check which forces (broadly, UK-wide) hold information on a particular individual. This has greatly enhanced the police’s ability to contribute swiftly to inter-agency requests in addressing perceived risks.[7]
Under the police setup there exists a unit known as Child Abuse Investigation Unit (CAIUs), having the primary responsibility for investigating cases of child abuse. Since December 2005 all CAIUs have Information Technology capability under the national IMPACT Nominal Index (INI) to quickly check which forces (broadly, UK-wide) hold information on a particular individual. This has greatly enhanced the police’s ability to contribute swiftly to inter-agency requests in addressing perceived risks.[7]
Voluntary Organisation / social workers.
The social worker responsible for undertaking the assessment meets with the child and family members and liaises with other professionals who know the family (including teachers, health visitors, police, and doctors) to gather information about the needs of the child, whether the parents can adequately safeguard the child and what action is necessary.
The social worker responsible for undertaking the assessment meets with the child and family members and liaises with other professionals who know the family (including teachers, health visitors, police, and doctors) to gather information about the needs of the child, whether the parents can adequately safeguard the child and what action is necessary.
Case Conference.
Whenever a case is registered or referred, a conference is called for usually by the Social Workers. The Detectives, social workers, paediatricians, family members and other relevant professionals, who have been involved with the assessment process, attend this conference. The child may be invited to attend if it is judged they are of sufficient age of understanding.
Whenever a case is registered or referred, a conference is called for usually by the Social Workers. The Detectives, social workers, paediatricians, family members and other relevant professionals, who have been involved with the assessment process, attend this conference. The child may be invited to attend if it is judged they are of sufficient age of understanding.
Significant orders passed by court in UK
Ø Care Order[8]
Ø Emergency Protection Order[9]
Ø Care and Supervision Orders[10]
Ø Interim Care Order[11]
Ø Supervision Order[12]
Ø Accommodation Order[13]
Ø Section 8 Orders:[14] –
Ø Emergency Protection Order[9]
Ø Care and Supervision Orders[10]
Ø Interim Care Order[11]
Ø Supervision Order[12]
Ø Accommodation Order[13]
Ø Section 8 Orders:[14] –
Criminal Records Bureau (CRB) checks
CRB check is required for jobs defined as ‘regulated positions’ by the Criminal Justice and Court Services Act 2000. There are two current levels of disclosure. A Standard Disclosure is required for posts that have regular contact with children or vulnerable adults. An Enhanced Disclosure is for posts involving greater contact with children or vulnerable adults.
CRB check is required for jobs defined as ‘regulated positions’ by the Criminal Justice and Court Services Act 2000. There are two current levels of disclosure. A Standard Disclosure is required for posts that have regular contact with children or vulnerable adults. An Enhanced Disclosure is for posts involving greater contact with children or vulnerable adults.
Conclusion and Observations
The enactment of numerous legislations is an indication that the state has recognised the seriousness of the problem and that an attempt has been made to develop an effective child protection mechanisms. The presence of legislation in the statute book and the of creation of rules and protocols which professionals must follow has become one of the socially acceptable reality.
Policy makers often invoke the law at times of crisis. During my interviews with social workers, detective sergeants (police), law professors and solicitors it was clear that inspite of a number of legislations and protocols to protect children and prosecute child abuse, allegations of abuse are hard to establish to the satisfaction of the courts because of lack of evidence and the inability of witnesses to stand the defence attorney. But this has not stopped the Government from strengthening the child protection and support mechanisms in UK. The publication of the Victims Charter in February 1990 had a major impact on victims’ rights and responded to their needs.
Goa (India) being a child friendly State, having its own Children’s Act 2003 and a special Children’s Court could adopt a few of these Procedures and Protocols to strengthen the mechanisms to protect children living in the State. It has been my observation that the protocols adopted by different agencies such as the police, social services, paediatric doctors and the crown prosecution services could be adopted by the State of Goa without necessitating change in the regular processes in dealing with cases of child abuse.
[1] Physical abuse: This is when a child is hurt or injured by a child or an adult. Physical abuse includes hitting, kicking, punching and other ways of inflicting pain or injury such as poisoning, drowning or smothering. It also includes giving a child harmful drugs or alcohol.
Emotional abuse: This is when adults deny children love or affection, or constantly threaten or humiliate them. Sarcasm, degrading punishments and ignoring a child are also forms of emotional abuse and undermine a child’s confidence and sense of self-worth.
Neglect: This is when a child’s basic need for love, food, warmth, safety, education and medical attention is not met by parents or carers.
Sexual abuse: This is when a child is used sexually by an adult or young person. Sexual abuse can include kissing, touching the child’s genitals or breasts, vaginal or anal intercourse and oral sex. Encouraging a child to look at pornographic magazines or videos is also sexual abuse.
Emotional abuse: This is when adults deny children love or affection, or constantly threaten or humiliate them. Sarcasm, degrading punishments and ignoring a child are also forms of emotional abuse and undermine a child’s confidence and sense of self-worth.
Neglect: This is when a child’s basic need for love, food, warmth, safety, education and medical attention is not met by parents or carers.
Sexual abuse: This is when a child is used sexually by an adult or young person. Sexual abuse can include kissing, touching the child’s genitals or breasts, vaginal or anal intercourse and oral sex. Encouraging a child to look at pornographic magazines or videos is also sexual abuse.
[4] Section 5 of the Sexual offences Act 1956.
[5] “An introduction to the child protection system in the UK” by Helen Walters (NSPCC Library and Information Service) January 2007.
[6]http://www.nspcc.org.uk/Inform/resourcesforprofessionals/InformationBriefings/childprotectionsystem_wda48949.html
[7] London Child protection Procedures July 2007, commissioned by the Greater London Association of Directors of Social Services, with the support of the Metropolitan Police Service and Department of Health.
[8] To make a care order, the court must be convinced that the threshold criteria set out in section 31 of The Children Act 1989 are met (that the child is suffering, or likely to suffer, significant harm and that the harm is attributable to the parents or carers). The court must also be convinced that making an order is better for the child than making no order at all – this is known as the presumption of no order.
[9] The Emergency Protection Order (EPO) was introduced in the Children Act 1989, section 44-45 to replace the Place of Safety Order, a court power to detain children for their protection. Child protection: Investigators Campanion by Alan Becley 2001
[10] Courts can only make a Care Order or a Supervision Order if it is satisfied that: The child has suffered, or is likely to suffer, significant harm and The harm or likelihood of harm is attributable to the care given to the child, or likely to be given if the Order were not made, not being what would be reasonably expected of a parent; Or the child is beyond parental control
[11] The court may make an Interim Care Order (for up to eight weeks in the first instance) under section 38 of the Children Act 1989 where, in an application for a Care Order, the proceedings are adjourned or where a court in any proceedings gives a direction for the investigation of a child’s home circumstancesChild protection: Investigators Campanion by Alan Becley 2001
[12] This places a child or young person under the supervision of the Local Authority or a Probation Officer, who are required to advise, help and befriend the child.
[13] Some children are looked after by the Local Authority by agreement with, or at the request of, their parents
[14] Under the Act all efforts should be made to resolve problems voluntarily and court orders should only be sought if they will be of positive benefit to the child.Child protection: Investigators Campanion by Alan Becley 2001.
Saturday, July 1, 2017
Victim assist unit may file child abuse FIRs | Goa News - Times of India
Panaji: With the rising number of child abuse cases, Goa could be the first state in the country to register FIRs in all child abuse cases before the victim assistance unit (VAU) instead of police stations, if the state government agrees to the proposal of deploying police personnel at VAU.
The victim assistance unit works 24x7 and is presently based at Goa Medical College and Hospital's forensic department at Bambolim and Altinho.
In a letter to the Goa police, VAU coordinator Emidio Pinho said, "In the span of 3 years, VAU has assisted 707 children who came in contact with the police."
"These cases were referred to VAU by Goa police. VAU proposes to have a police officer of the rank of PSI/LPSI and lady constables posted at the unit. The officers deputed shall be empowered to register an FIR," the letter said.
http://timesofindia.indiatimes.com/city/goa/victim-assist-unit-may-file-child-abuse-firs/articleshow/59276751.cms
The victim assistance unit works 24x7 and is presently based at Goa Medical College and Hospital's forensic department at Bambolim and Altinho.
In a letter to the Goa police, VAU coordinator Emidio Pinho said, "In the span of 3 years, VAU has assisted 707 children who came in contact with the police."
"These cases were referred to VAU by Goa police. VAU proposes to have a police officer of the rank of PSI/LPSI and lady constables posted at the unit. The officers deputed shall be empowered to register an FIR," the letter said.
http://timesofindia.indiatimes.com/city/goa/victim-assist-unit-may-file-child-abuse-firs/articleshow/59276751.cms
Monday, June 3, 2013
Attempt to provide holistic Support for child victim of abuse: Protection of Children from Sexual Offences (POCSO) Act 2012
The Protection of Children from
Sexual Offences (POCSO) Act 2012 is a Central Legislation and is applicable to the whole of India except Jammu and
Kashmir. POCSO Act intends to protect the child’s right to privacy and
confidentiality through all stages of a judicial process involving the child
and gives paramount importance at every stage to the principle of best interest and well being of the child in order
to ensure healthy physical, emotional, intellectual and social development of
the child. The POCSO Act 2012 defines a child as any person below the age of 18
years and provides protection to all children under the age of 18 years from
the offences of sexual assault, sexual harassment and pornography.
Penetrative sexual assault aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five sexual offences against children that POCSO Act targets at. This Act has also attempts to punish abetment of or an attempt to commit these offences. The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. This would also cover trafficking of children for sexual purposes.
The POCSO Act also provides an indicator to Police during investigation of cases registered under the Act. A child's statement now can be recorded even at the residence of the child or at the place of his choice and should be done preferably by a woman police officer not below the rank of sub-inspector. Failure of police to register an FIR in cases of child abuse would attract a criminal case on them thus, making it mandatory for police to register offence of child abuse.
Mandatory reporting of an offence under this Act suggests that any person (including the child) who has an apprehension that an offence under the POCSO Act is likely to be committed or has knowledge that an offence has been committed has a mandatory obligation to report the matter. Obligation has also been vested upon media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or photographic facilities, to report a case if they come across materials or objects that are sexually exploitative of children. Further if there is failure of reporting than the person is liable to be punished with imprisonment of up to six months or fine or both. This penalty is, however, not applicable to a child.
As per this Act the medical examination of a child can be conducted even before a FIR is registered by the aggrieved party. This discretion is left up to the Investigation Officer (IO). The medical examination of a child is to be done only by a registered medical practitioner in a Government hospital or a hospital run by a local authority within 24 hours from the time of receiving information by the IO about the commission of offence. In cases where such practitioner is not available, the examination can be conducted by any other registered medical practitioner with the consent of the child or a person competent to give consent on his or her behalf. The medical examination now can be conducted in the presence of the parent or any other person in whom the child reposes trust or confidence.
The State Commissions for Protection of Child Rights (SCPCR) has been empowered and vested with the responsibilities of monitoring the implementation of the provisions of the POCSO Act 2012, as per the prescribed Rules, to conduct inquiries into matters relating to an offence under the Act and to report the activities undertaken under the POCSO Act 2012, in its Annual Report. Besides this, the Commission is empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The Commission now also can recommend interim relief, or make any other recommendations to effectively redress the matter to the state Government. They can also approach the High Court or Supreme Court for orders, directions, or writs. The Rules laid down in this Act also had defined the criterion of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy suffered by the subject as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.
The Act incorporates child friendly procedures for reporting, recording of evidence, during investigation and trial by the Special court of offences under POCSO.
The POCSO Act of 2012 widely looks into developing support system for the child through the existing machinery i.e. the Child Welfare officer, CWC and the Commission and in providing child friendly atmosphere in the criminal justice system. The positive aspect of this Act is the appointment of the support person for the child who would assist the child during investigation, pretrial, trial and post trial procedure. The major challenge also would be convergence between different entities under different legislations. Secondly, the tug of war, would erupt as the Act makes it mandatory for all (including professionals) to report to Police about any offence defined under POCSO Act 2012. The recent decision of the Cabinet in a bill to reduce the age of consent for sex to 16 years will mean that the protection given under this law to protect children from sexual crimes will also be or restricted to the children who are of age 16 years. There is a fear that this would end up taking away safeguards available to victims under the POCSO Act, especially girls in the 16-18 age bracket. The benefits of POCSO Act would trickle down to the child only if this Act is implemented in its true sense and spirit by all the agencies.
Penetrative sexual assault aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five sexual offences against children that POCSO Act targets at. This Act has also attempts to punish abetment of or an attempt to commit these offences. The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. This would also cover trafficking of children for sexual purposes.
The POCSO Act also provides an indicator to Police during investigation of cases registered under the Act. A child's statement now can be recorded even at the residence of the child or at the place of his choice and should be done preferably by a woman police officer not below the rank of sub-inspector. Failure of police to register an FIR in cases of child abuse would attract a criminal case on them thus, making it mandatory for police to register offence of child abuse.
Mandatory reporting of an offence under this Act suggests that any person (including the child) who has an apprehension that an offence under the POCSO Act is likely to be committed or has knowledge that an offence has been committed has a mandatory obligation to report the matter. Obligation has also been vested upon media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or photographic facilities, to report a case if they come across materials or objects that are sexually exploitative of children. Further if there is failure of reporting than the person is liable to be punished with imprisonment of up to six months or fine or both. This penalty is, however, not applicable to a child.
As per this Act the medical examination of a child can be conducted even before a FIR is registered by the aggrieved party. This discretion is left up to the Investigation Officer (IO). The medical examination of a child is to be done only by a registered medical practitioner in a Government hospital or a hospital run by a local authority within 24 hours from the time of receiving information by the IO about the commission of offence. In cases where such practitioner is not available, the examination can be conducted by any other registered medical practitioner with the consent of the child or a person competent to give consent on his or her behalf. The medical examination now can be conducted in the presence of the parent or any other person in whom the child reposes trust or confidence.
The local police are now mandated to
report cases registered under this Act to the Child Welfare Committee (CWC) within
24 hrs of recording the complaint. CWCs play a vital role under the POCSO Act.
Every case of child abuse has to be mandatorily placed before the CWC. It is
the duty of the CWC to decide on the case within 3 days time period and conclude whether the child should remain
in an institution or be released to the family. The CWC must take
into account the opinion or preference of the child along with the best
interests of the child while making this determination. Secondly, CWC should nominate a support
person to assist the child during the investigation and trial of the case with
the consent of the child or the child’s parent/guardian/other person in whom
the child has trust or confidence. The support person could be a person or an
organisation working in the field of child rights or child protection, or an
official of a children’s home or shelter home having custody of the child, or a
person employed by the District Child Protection Unit (DCPU).
The State Commissions for Protection of Child Rights (SCPCR) has been empowered and vested with the responsibilities of monitoring the implementation of the provisions of the POCSO Act 2012, as per the prescribed Rules, to conduct inquiries into matters relating to an offence under the Act and to report the activities undertaken under the POCSO Act 2012, in its Annual Report. Besides this, the Commission is empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The Commission now also can recommend interim relief, or make any other recommendations to effectively redress the matter to the state Government. They can also approach the High Court or Supreme Court for orders, directions, or writs. The Rules laid down in this Act also had defined the criterion of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy suffered by the subject as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.
The Act incorporates child friendly procedures for reporting, recording of evidence, during investigation and trial by the Special court of offences under POCSO.
Some
of the child friendly procedures which are envisaged under the Act are as
follows:-
·
No child to be detained in
the police station in the night for any reason.
·
The statement of the child
to be recorded as spoken by the child
·
Assistance of an interpreter
or translator or an expert as per the need of the child
·
Assistance of special
educator or any person familiar with the manner of communication of the
child in case child is disabled
·
Medical examination of the
child to be conducted in the presence of the parent of the child or any other
person in whom the child has trust or confidence.
·
In case the victim is a girl
child, the medical examination shall be conducted by a woman doctor.
·
Frequent breaks for the
child during trial.
·
Child not to be called repeatedly
to testify.
·
No aggressive questioning or
character assassination of the child.
·
In-camera trial of cases.
·
For heinous offences of
Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual
Assault and Aggravated Sexual Assault, the burden of proof is shifted
on the accused. This provision has been made keeping in view the greater
vulnerability and innocence of children. At the same time, to prevent misuse of
the law, punishment has been provided for making false complaint or proving false
information with malicious intent. Such punishment has been kept relatively
light (six months) to encourage reporting. If false complaint is made against a
child, punishment is higher (one year).
·
The media has been barred
from disclosing the identity of the child without the permission of the Special
Court. The punishment for breaching this provision by media may be from six
months to one year.
·
For speedy trial, the Act
provides for the evidence of the child to be recorded within a period of 30
days. Also, the Special Court is to complete the trial within a period of one
year, as far as possible.
·
To provide for relief
and rehabilitation of the child, as soon as the complaint is made to the
Special Juvenile Police Unit (SJPU) or local police, these will make immediate
arrangements to give the child, care and protection such as admitting the child
into shelter home or to the nearest hospital within twenty-four hours of the
reporting of case. The SJPU or the local police are also required to report the
matter to the CWC within 24 hours of recording the complaint, for long
term rehabilitation of the child.
·
The Act casts duty on State
Governments to spread awareness through media including the television, radio
and the print media at regular intervals to make the general public, children
as well as their parents and guardians aware of the provisions of this Act.
The POCSO Act of 2012 widely looks into developing support system for the child through the existing machinery i.e. the Child Welfare officer, CWC and the Commission and in providing child friendly atmosphere in the criminal justice system. The positive aspect of this Act is the appointment of the support person for the child who would assist the child during investigation, pretrial, trial and post trial procedure. The major challenge also would be convergence between different entities under different legislations. Secondly, the tug of war, would erupt as the Act makes it mandatory for all (including professionals) to report to Police about any offence defined under POCSO Act 2012. The recent decision of the Cabinet in a bill to reduce the age of consent for sex to 16 years will mean that the protection given under this law to protect children from sexual crimes will also be or restricted to the children who are of age 16 years. There is a fear that this would end up taking away safeguards available to victims under the POCSO Act, especially girls in the 16-18 age bracket. The benefits of POCSO Act would trickle down to the child only if this Act is implemented in its true sense and spirit by all the agencies.
Emidio Pinho
LL.M (Human
Rights)
Sunday, December 30, 2012
UN Convention on the Rights of the Child (UNCRC)
Hey UN Convention on the Rights of the Child (UNCRC)
Background
The roots of the UNCRC can be traced back to 1923 when Eglantyne Jebb, founder of Save the Children, summarised the rights of children in five points. Her Declaration of the Rights of the Child was adopted by the League of Nations in 1924 and the five points subsequently became known as the Declaration of Geneva.
Following World War II, and its atrocities, the United Nations (UN) concentrated on producing the Universal Declaration of Human Rights, which was adopted in 1948. Although the rights of children were implicitly included in this Declaration, it was felt by many to be insufficient and that the special needs of children justified an additional, separate document. In November 1959, the UN General Assembly adopted the second Declaration of the Rights of the Child. This consisted of ten principles and incorporated the guiding principle of working in the best interests of the child. However, this 1959 Declaration was not legally binding and was only a statement of general principles and intent. Ten years in the making, the UNCRC was adopted by the UN General Assembly in 1989, exactly thirty years after the 1959 Declaration. On 2 September 1990 it entered into force as international law.
Brief
The United Nations Convention on the Rights of the Child (UNCRC) is a comprehensive, internationally binding agreement on the rights of children, adopted by the UN General Assembly in 1989. This is a universally accepted definition of a child and comes from the United Nations Convention on the Rights of the Child (UNCRC), an international legal instrument accepted and ratified by most countries. India has always recognised the category of persons below the age of 18 years as distinct legal entity. That is precisely why people can vote or get a driving license or enter into legal contracts only when they attain the age of 18 years. The Government of India ratified the Convention on the Rights of the Child on 12th November 1992. A child is defined in the UNCRC as a person under the age of 18 years. India signed this convention on It incorporates children's:
· civil and political rights (towards treatment under the law);
· social, economic and cultural rights (towards adequate standard of living); and
· protection rights (towards abuse and exploitation).
Each of the substantive articles, Articles 1-41, details a different type of right. A common approach to the UNCRC is to group these articles together under the following themes:
1. Survival rights: include the child’s right to life and the needs that are most basic to existence, such as nutrition, shelter, an adequate living standard, and access to medical services.
2. Development rights: include the right to education, play, leisure, cultural activities, and access to information, and freedom of thought, conscience and religion.
3. Protection rights: ensure children are safeguarded against all forms of abuse, neglect and exploitation, including special care for refugee children; safeguards for children in the criminal justice system; protection for children in employment; protection and rehabilitation for children who have suffered exploitation or abuse of any kind.
4. Participation rights: encompass children's freedom to express opinions, to have a say in matters affecting their own lives, to join associations and to assemble peacefully. As their abilities develop, children are to have increasing opportunities to participate in the activities of their society, in preparation for responsible adulthood.
Compiled by
Emidio Pinho
UN Convention on the Rights of the Child
(UNCRC)
Background
The roots of the UNCRC can
be traced back to 1923 when Eglantyne Jebb, founder of Save the
Children, summarised the rights of children in five points. Her
Declaration of the Rights of the Child was adopted by the League of Nations in
1924 and the five points subsequently became known as the Declaration of
Geneva.
Following World War II, and its atrocities, the
United Nations (UN) concentrated on producing the Universal Declaration of
Human Rights, which was adopted in 1948. Although the rights of children were
implicitly included in this Declaration, it was felt by many to be insufficient
and that the special needs of children justified an additional, separate
document. In November 1959, the UN General Assembly adopted the second
Declaration of the Rights of the Child. This consisted of ten principles and
incorporated the guiding principle of working in the best interests of the
child. However, this 1959 Declaration was not legally binding and was only a
statement of general principles and intent. Ten
years in the making, the UNCRC was adopted by the UN General Assembly
in 1989, exactly thirty years after the 1959 Declaration. On 2 September 1990
it entered into force as international law.
Brief
The United Nations Convention on the Rights of the Child (UNCRC) is a
comprehensive, internationally binding agreement on the rights of children,
adopted by the UN General Assembly in 1989. This is a universally accepted definition of a
child and comes from the United Nations Convention on the Rights of the Child
(UNCRC), an international legal instrument accepted and ratified by most
countries. India has always recognised the category of persons below the age of
18 years as distinct legal entity. That is precisely why people can vote or get
a driving license or enter into legal contracts only when they attain the age
of 18 years. The Government of India
ratified the Convention on
the Rights of the Child on 12th November 1992. A child is defined in the UNCRC as a person under the age of
18 years. India signed this convention on It incorporates children's:
·
civil and political
rights (towards treatment under the
law);
·
social, economic and
cultural rights (towards adequate standard of
living); and
·
protection rights (towards abuse and exploitation).
Each
of the substantive articles, Articles 1-41, details a different type of right.
A common approach to the UNCRC is to group these articles together
under the following themes:
1. Survival rights: include the child’s
right to life and the needs that are most basic to existence, such as
nutrition, shelter, an adequate living standard, and access to medical
services.
2. Development rights: include the right to education, play, leisure,
cultural activities, and access to information, and freedom of thought,
conscience and religion.
3. Protection rights: ensure children are safeguarded against all forms
of abuse, neglect and exploitation, including special care for refugee
children; safeguards for children in the criminal justice system; protection
for children in employment; protection and rehabilitation for children who have
suffered exploitation or abuse of any kind.
4.
Participation rights: encompass
children's freedom to express opinions, to have a say in matters affecting
their own lives, to join associations and to assemble peacefully. As their
abilities develop, children are to have increasing opportunities to participate
in the activities of their society, in preparation for responsible adulthood.
Compiled by
Emidio Pinho
Tuesday, December 11, 2012
Goa Children’s Act – its Implementation in Goa!
GCA 2003 was passed by the legislative assembly of Goa on the 30-4-2007, assented by the Governor on the 08-07-2007 and published by notification no. 7/19/2003/LA. It is the 18th Act of 2003 by the State of Goa. This act enshrines the principles of the UNCRC which are defined under the social, economic, cultural, civil and political rights. This act came under serious criticism by the stake holder in Goa. Presently a writ petition is filed which is pending before the Panaji Bench of Hon’ble High Court of Bombay challenging various provisions as unconstitutional. Due to various problems with the provision of the act, the GCA 2003 was amended twice i.e. in the year 2004 and 2005.
The GCA 2003 constitutes and empowers various semi governmental bodies to look into various provision of the GCA. This act empowers government personnel to take action against an offender. The Government of Goa under powers of appointment has appointed all Mamlatdars as special officers to look into violations and enforcement of the provision of the GCA.
Child under this act has been defined under section 2(d) as any person who has not completed eighteen years of age. But variations do exists in the GCA i.e. for child Labour it is 14 years, for rape it is 16 years and for other offence it is 18 years.
This Act has given a holistic approach to the victims in cases of Child abuse. Inspite of this holistic approach there are numerous instances where the police were hesitant to register a complaint in a case of child abuse.
GCA is the first state legislation under the UNCRC in India, the whole world knows about the GCA, but, in the year 2006 nearly three years after the implementation of GCA and constitution of the Children’s Court for the State Of Goa, cases of child abuse were still being heard in other courts.
GCA 2003 covers all types of abuse against children which are defined under section 2 (m)[1] and further the punishment has been provided under section 7, 8 and 9. This act also enshrines the principal of “Best interest of the Child” and empowers the officers for any action under this principal.
Inspite of this act there has been no change in the initial response at police stations towards victims and children in need of care and protection. At the police station the victim is repeatedly questioned about the incident. It’s only after the police inspector and other investigating officer are convinced, that the NGO is called in for assistance in supposedly counseling the child and to help in recording of the statement.
The GCA has recognised the importance of a social worker or an NGO’s presence while recoding of the victims statement[2]. Till date problems exist about the presence of NGOs while recording the victim’s statement. If one goes through some of the statements discrepancies exists. Most NGOs present while recording the victim’s statement do not know the importance of their role in the police station. They do not have the expertise in counseling, dont have a legal back ground, nor are they trained to record victim’s statement. The statement which is meant to play an important role in conviction is not recorded in child’s language and sometimes not in the sequence narrated by the victim.
GCA 2003 was enacted with the objective to protect, promote and preserve the best interests of Children in Goa and to create a society that is proud to be child friendly. With this objective, the act has looked into all the spheres of life of a child. This act provides protection to a child from abuse at home, school, shelter Homes, and from being trafficked.
Now children are protected from being abused at school. This act has banned corporal punishment in school[3] and has made education providers liable to provide, safe drinking water, sufficient toilets, counseling and admission for all children in absence of relevant documents under the principal of zero rejection.
Further, by protecting children at the shelter homes this act provides for liability and punishment to care givers in cases of abuse of children their custody[4]. And in cases of child abuse the act provide punishment of three years and liable to for fine upto one lakh.
Section 7 GCA 2003 prohibits child labour in the State of Goa. All children who have not completed the age of 14 are prohibited from all forms of work. The act covers all forms of labour. The down side of the prohibition of child labour is that the labour department is not able to take the necessary action under the GCA The labour dept denies their role under the GCA nor has the Government till date put any systems in place for rehabilitation of children rescued from child labur.
The GCA 2003 has its base still on the other major acts in India i.e. The Indian Penal Code 1860, the criminal procedure code 1973 and the Indian Evidence Act 1872 without which this act has no standing.
This act provides for stringent punishment to the offenders. This act has expanded abuse of a child and has defined them into child abuse, grave sexual assault and incest.
The GCA 2003 makes a person liable for imprisonment for three and a fine for of one lakh for keeping any child who is not related to him by blood and puts the onus on the establishment if any child is found in their premises.
Children’s Court has been constituted for the state of Goa in the year 2004. This constitution of the Children’s Court came only after filing of a writ petition by an NGO Bailacho Saad. With the intention of speedy trial and adoption of child friendly procedure this court was constituted. But the principle of Children Court can be found in the India Children’s Act 1960 but this legislation had been a forgotten piece of legislation. The GCA 2003 contains the procedures which are required to be adopted by the Children’s Court.
Conclusion
Victims of crime have always been a forgotten person in today’s society. Some where and some how the Goa children’s Act 2003 has tried to fight for their protection in this whole complicated system of Criminal justice. This act not only looked into the abuse of children in specific but it has attempted to place responsibilities on different stake holder in Goa. There has been no suo motto initiation of implementation of the Provision of GCA by the Goa Government. It is only after some representation by the stake holders that the government was forced to implement certain provision of the act. Till date various provisions of the act have still not been implemented thereby defeating the sole purpose of the act to protect children. I would recommend that the Children’s fund and the Victim Assistance Unit be constituted without delay and a committee of experts in the field of social science, mental health, and law be constituted to look into the provisions of the act which are been challenged before the Hon’ble high Court of Bombay at Panaji. In principal and reality it a duty on each any every one to protect child rights in Goa. I would end up by saying a quote which I firmly believe in by Martin Lutter King “OUR LIVES BEGIN TO END THE DAY WE BECOME SILENT ABOUT THINGS THAT MATTER.”
By Adv Emidio Pinho
[1] 2(m) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:-
(i)psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(ii) any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
(iii) unreasonable deprivation of his basic needs for survival such as food and shelter; or failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death;
(i)psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(ii) any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
(iii) unreasonable deprivation of his basic needs for survival such as food and shelter; or failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death;
[2] Section 32 (K) Child’s testimony or statement should be recorded in the presence of a social worker / counsellor as early as possible after the abusive incident with other witnesses at hand
[3] Section 4 (12) Corporal punishment is banned in all schools.
[4] Section 7 (18) Every Children’s Home shall ensure that no child under its care or custody is exposed to child abuse, or sexual offences or child trafficking or child prostitution or violation of its rights and that the best interest of all children are protected. Care givers shall also be personally responsible for the same.
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