'Child rights protection 'arm' not at desired level'

World Children's Day tomorrow:

by Lakmal Welabada

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The World Children's Day falls tomorrow (October 1). The rights of the children have been one of the topics in the limelight nowadays. The United Nation has also taken steps to protect the rights of the children in many measurements.

Dr. Ms. Charika Marasinghe, a former Senior Lecturer in the Faculty of Law, University of Colombo who had served as a Law lecturer for 17 years, talks about the Child Rights Privacy in International Law and the UN Convention.

Dr. Marasinghe was the founder Director of C. R. L. (Child Right Law) International Guarantee Ltd, a self financing company established for the purpose of promoting and protecting Child Rights Law in Sri Lanka.

She was awarded a Doctor of Philosophy in Law from Balliol College, University of Oxford for her research on Child Rights Privacy in International Law. She is the first Sri Lankan woman to receive a doctorate in Law from Oxford. Dr. Marasinghe also works as a freelance human rights law consultant.

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Who is a child?

A child means every human being below the age of 18 in the United Nations' Convention on the Rights of the Child (UNCRC).

Child Rights to Privacy in the International law is defined along with the UNCRC. What privacy is to a child? Some would interpret this as a Western concept. But I personally think that child is a growing person and has a growing personality. Therefore until the age of 18 he undergoes several critical stages of childhood - infancy, pre-grade, primary, early adolescence, mid adolescence and late adolescence.

These stages are very crucial for emotional, mental and physical growth of the child. So he/she needs help to face these different stages ... Child Rights Law is introduced by the UN Convention basically to help or provide the child to grow up in normal healthy environment which is conducive to the child's critical mental, physical and emotional wellbeing.

I see that child rights is very different from the other human rights concepts, in the sense because the child cannot help himself, and needs the help of the adults. Hence, the child doesn't live in isolation. He/she has close relationships with the family -parents, legal guardians and extended family.

The UNCRC was adopted in 1989, and we ratified it in Sri Lanka in July 1991. From that time onwards this particular Convention requires the governments in the world to adopt legislative, administrative and other measures to implement the rights of the child at the domestic level as it is guaranteed in the United Nation's Convention.

So after we got it ratified, the Police National Women and Children Desk was established. First it was operation only in selected stations, but now has spread Islandwide.

This has opened the platform for more complaints of violence against women and children. And also the Special Task Force on the Child Abuse and the National Child Protection Authority were established.

Legislative measures has also been taken such as amendments to the Penal code provisions and Criminal Procedure Code and Employment of Women, Children and Young Persons Ordinance.

But since the law enforcement bodies are not under one 'proper' umbrella and not 'properly' interconnected, and the so called political interference in high ranking positions - both qualified and unqualified, I personally feel that the standard of the child rights and child protection in Sri Lanka is not in a strong and satisfying level.

Earlier, the government officer responsible for children's affairs in Court matters was the Probation Officer, but now in addition there is a new appointment viz Child Rights Promotion Officer. Sri Lanka has also adopted a Children Charter.

It is a kind of a policy document on children, and not a legally binding document. This Charter authorises the President of Sri Lanka to appoint a National Committee to monitor implementations of the child rights.

The governments who have ratified the UNCRC are obliged to submit periodic reports to the UN Committee on the Rights of the Child. And the Sri Lankan report is due in 2008.

This report will be on what the government has done during the past ten years to improve the status of the children in the country. Ministry of Child Development and Women's Empowerment, the key government ministry responsible for children's affairs would be to co-ordinate the report.

The UNCRC is ratified by 193 countries, and is the only Human Rights Convention which has received a highest number of ratification. The United States and Somalia are the only two countries in the world who reasons better known to them, have not ratified it.

Political and legislative factors prevalent in the two countries have led to this situation in these two countries.

Custody

Other than the government, other organisations such as international NGOs like 'Save the Children Sri Lanka', have submitted alternate reports to the UN Child Rights Committee.

The measures are done according to the format with 40 odd provisions, and basically under each provision they have to explain to the committee what progress that the country has made.

And there are certain general principles in the convention like equality of treatment irrespective of the child's and his/her parents/legal guardians, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Children should be treated equally and the best interest of the child should be a primary consideration in all actions concerning the children whether undertaken by public or private social welfare institutions, court of law, administrative, authoritative or legislative bodies.

In a divorce case, when there is an issue of the custody of a child as to whether the child is to be given to the mother or father, the child's best interest should be the primary consideration. And another important fact that is embodied in the Convention is that the child's right to express views freely in all matters affecting him/her.

The views of the child should be given due weight in accordance with the age and maturity of his/her. Different countries have adopted different age limits for this purpose.

In Brunei, the criteria of custody and adoption of a child depends on the maturity of the child. In Georgia, a child of ten can express views on matter relating to custody/access and institutional (Homes)/ foster care and for adoption.

And his consent is mandatory. Likewise there are some countries where age 7 considered as the minimum age of maturity. In Sri Lanka the child's consent is required for adoption if the child is 10 years. But, there's no minimum age to express views in relating to above matters. Basically in such cases, the judge will apply the principles in the best interest of the child and consider the child's views according to the child's age and maturity.

After working with responsible people both in the government and non-government sector for sometime, I have realised that some officers have little knowledge about who a child is, and the hopes and aspirations according to different phases of childhood.

The emotional, physical and mental needs of a five-year-old is different from a two-year-old child or a four-year-old child. So basically we have to be very conscious and sensitive to these needs when dealing with children's issues.

The Convention specifically says that when implementing and ensuring these rights that the child's age and maturity should be taken into consideration. And also the States are required to consider and respect the rights and the responsibilities of the parents, legal guardians and the extended families regarding the child.

Some say that this Convention is a threat to the authority of the legal guardian such as parents and teachers. But I don't see it in that way, and feel that the Convention is trying to express the Triangular Relationships - the State (Legislative, Executive and Judiciary), the Parents/Legal Guardians/Extended Families and the Civil Society (See diagram).

The child is in the middle, but the child cannot help him or herself. In order to protect him/her law and the court tries to maintain an equilibrium in between the three. The upper guardian of the child, according to the Civil Law is the Court. If the legal guardian is ill-treating the child, the Court can act in the best interest of the child.

Previously, there were various international declarations. But this Convention is the only solid legal binding of International Law. What is unique about this? The child needs protection in every sense irrespective of the child's age and maturity.

On the other hand the child has a growing personality. Therefore the caregivers should be able to help the child in emotional, physical and mental growth. We really need to respect the child's need so that the child will be empowered by the time he/she reaches the age of eighteen, to be a responsible adult. So therefore this Convention on one hand incorporates the rights which will help the child to empower himself/herself as a human being.

Vulnerable

In this sense, allowing to express their views is a simplest thing. We have come across young adults even in the university stream who were not allowed even to decide on the course of study they wanted to do - when selecting O/Ls and A/Ls subjects.

Parents should not force the children in this sense. I personally feel that all of us need 'space' for ourselves. When this little space is not given, your originality and your own innovative things won't come out. In other words your true own being will never surfaced.

But of course because of the age and circumstances the child is exposed to a vulnerable state. So, we cannot deny the requirement of providing him/her protection. But, you have to take a step back and allow little space for him to be on his or her own feet.

Simultaneously then we should come forward, protect the child and set in it. It's sort of trying to balance the empowerment approach and the protection approach of the child.

It's very difficult as each child is different from the other child. So you have to take every child as an unique individual.

When you calculate the time how your school-going child spend his or her day, you would find that your child is with you only for 10 to 12 hours, that also during the night inclusive of the sleeping time. The rest of the time the child is with some other caregiver.

That's why I include teachers and other responsible people incorporate with the child as well in the category of legal guardians.

So it's not only the parents, but whoever is dealing with the child should know who the child is, his desires and aspirations. If the child's needs are not met at that particular age, you are depriving the emotional, mental and physical needs of that particular phase of that child. Those deprivations could have long term implications.

A child needs love, attention and a lot of care during the first two years. That's the time a child develops the sense of trust on the other people, the outside world, in other words, 'whether I can depend on my mother/ father.

During this period, if the mother leaves the child (eg. going to Middle East) and if there's no substitute to a mother, then the child tend to feel unsecure. And this feeling would continue the rest of his life even after being an adult.

From two to five years, they start to walk and try to experience the world little by little. And this is the time they develop the ego concept of 'I' or 'myself'.... He wants to show that 'I' also can do it. It's a blessing to see the interplay between the parents and the teacher/guardian in helping the ego development of the child.

Privacy

I've analysed all the reports submitted by the State parties from the very inception form 1989, and tried to analyse it according to the geographical regions (192 countries) such as eastern Europe, western Europe, Central, North and South America, Asia, Oceania of Pacific, Africa and the Middle East, and tried to discern whether there is a pattern in the geographical level in guaranteeing child rights privacy. But it wasn't possible to identify a uniform pattern.

What was seen was a diversity in State practice- both progressive and conservative approaches to privacy of the child rights.

Since there's hardly any literature to this, I adopted the International Law interpretation to Adult Rights to privacy and tried to examine whether that particular interpretation can be applied to Child Rights to privacy.

Adult Rights to Privacy is interpreted in two ways - in the broad sense and the narrow sense. In the broad sense it is interpreted that an adult has the right to pursue freely whatever the way that is important for him to develop his personality, without any interference. And secondly an adult has the right to protect his physical and moral integrity.

In the narrow sense it says a person should be protected from the unwarranted media publicity and against violation of personal information in the court house. Basically I have taken those two broad and narrow interpretations and tried to analyze how and what extend a child has a right to pursue freely to develop his or her personality.

The State has the responsibility in the positive obligations as well as the negative obligations. The positive obligations are that the State has the responsibility to impose what ever the efforts such as by adopting new laws to prevent the child violation inclusive child sexual abuse, sexual exploitations, corporal punishment, virginity test, female genital mutilation and child marriage.

Sacrosanct

Unlike the other human right violations, violation pertaining in the child rights takes place with in the family and home. On the other way, if the child is institutionalised such as in a Home, there are mechanisms to monitor the day to day running of these institutions and its care givers.

But when it's a family a problem of to what extend the outsiders can interfere becomes questionable because the family is considered autonomous. The privacy of the family sacrosanct.

That's why its very difficult to implement this Convention in our society. But in the Western World they value the family privacy in bigger way and on the other hand the State welfare system is more or less equipped to receive various complaints to pertain the incidents take place in family unit due to the alarming incidents of the child abuse.

I personally feel that in underprivileged homes, children are more vulnerable to abuse due to poverty. Caregivers become helpless due to economical problems. They tend to resort to alcohol and drugs to keep their minds away from their responsibilities when they are unable to fulfil the needs of their families.

This has led to a real tensional situation in families. Parents have been unable to cope up with the stress, and as a result the children of such families have exposed to various vulnerable situations among his/her own adults or close relatives, plus lack of love and attention which is a compulsory need in the childhood.

Earlier also a large population lived in poverty, but people cherished and maintained values. But the situation has change today. Maintaining emotional, moral, spiritual values are in a lower scale. The UNCRC says specifically the child should be protected from things that are harmful to the child's spiritual, moral or social developments.

We have a quite a large population. According to the statistics on Census of 2001, Sri Lanka has a population of 6.2 million persons below the age of 18 years.

In my Human Resource Development retreat on child rights workshops which are conducted for teachers, probation officers, other law enforcement officers and caregivers of children's institutions such as Homes, I gave an opportunity to recall their childhood - what they cherished about and regret about.

And most of their experiences were based in 1960s and 70s, when the moral values were not deteriorated. Unlike in the past the children of today live under very difficult circumstances and in a society where spiritual and moral values are fast fading away. And this has made the childhood of these children changing and a crucial experience.

Therefore we should be conscious of the predicament of these children and do everything possible within our capacity to allow them to make their childhood a rewarding experience. If we fail to do it, I personally feel that Sri Lanka will see in 10-15 years time, the most frustrated adult population that the country has ever produced.

I try my best to insert this message to those who interact with children. And try to train their thinking pattern to treat the child not as a 'miniature adult', but as a 'child' itself, and as a person possessive of rights and dignity.

If the adults of today can assume this concept, this world will be a safer place for children. If you had been deprived by love and affection by your adults during your childhood don't take it along with you, and repeat with your children or the children of those incorporate with you. Break that vicious cycle. Children do not ask material things, but, 'love and care' which cost nothing.

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