'Child rights protection 'arm' not at desired level'
World Children's Day tomorrow:
Dr. Charika Marasinghe
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
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.
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
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
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
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.
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
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
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.
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
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.
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
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.
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
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.