Let us use the hand of the law to protect the innocence of childhood
Written by: Minura Manchanayake, Faculty of Medicine, University of Colombo
Legal Background of Child’s Rights and Protection from Child Abuse
“Children are the world’s most valuable resource and its best hope for the future”
– John F. Kennedy
Children are not merely young adults. They hold in their grasp our future and aspirations as a nation. Despite their importance, children constitute one of the most vulnerable populations in our society, and the purity of childhood is easily tainted by acts of exploitation and abuse. As such, the protection of children is a superordinate responsibility that befalls on every party in society, and is enshrined in law and policy. Article 19 (1) of the Convention of the Rights of the Child states that
“appropriate measures (should) be taken to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”
It goes without saying that this responsibility is one that transcends geographical boundaries, and yet according to the WHO, over 1000 million children were victims of some form of physical or mental harm within last year alone, resulting in an alarming rate of 1 in 2 children aged 2-17 years being the subject of such harm. It is in this status quo of rampant abuse and exploitation that the legal background of child protections warrants discussion now more than ever.
In Sri Lanka, the reach of the law extends to all children, defined as persons below the age of 14 years and young persons, defined as persons between the ages of 14-16 years. The primary acts governing children’s justice in Sri Lanka include: The Children and Young Persons Ordinance, No. 48 of 1939 (CYPO), The Probation of Offenders Act No. 10 of 1948 and The Youthful Offenders (Training School) Act No. 42 of 1944 (YOTSA). As mentioned earlier, an act of child abuse is defined as any act of physical or mental abuse, negligent treatment, maltreatment or exploitation or sexual abuse perpetrated against a child who is under the care of the relevant person, resulting in physical and/or mental harm. Let us now have a look at what each of these offenses constitute.
- Physical Abuse – Any act that leads to physical harm, including and not limited to hitting, shaking, throwing, poisoning, burning, scalding, drowning, suffocating and corporal punishment.
- Emotional Abuse – Any act that has a severe impact on the child’s emotional development. Acts include restriction of movement, patterns of belittling denigration, threatening, scaring, discriminating, ridiculing or other forms of hostile or rejecting treatment.
- Neglect – A deliberate and persistent failure to meet a child’s basic physical and/or psychological needs of health, education, emotional development, nutrition, shelter, and safe living conditions.
- Sexual Abuse – Forcing or enticing a child to take part in physical sexual activities including prostitution, irrespective of whether or not the child is said to have consented or initiated the act. Acts include indecent touching, penetration,using sexually explicit language towards a child, showing children pornographic material and inducement or coercion of a child to engage in any sexual activity.
- Exploitation – The use of the child for commercial gain or for the use of other parties. This includes child labour and child prostitution which may have a detrimental effect on the child’s physical or mental health, education or spiritual/moral or emotional development.
There is an efficient process that exists following a complaint of potential abuse. Complaints lodged at police stations are forwarded to the women and child protection units of the relevant station and the complaint is formally recorded. If the child has sustained injuries, the responsible police officer admits the child to the nearest public hospital, where a medical officer in-charge determines whether the child has been subjected to physical abuse under the purview of the Judicial Medical Officer (JMO). If there is evidence of such abuse, the JMO fills the relevant legal form and a formal investigation is launched to identify suspects. Identified suspects should be produced to the Magistrate’s court within 24 hours and in the absence of a caretaker, the child is put under the care of a rehabilitation center. Furthermore, there are provisions to ensure that the child remains under rehabilitation services till the legal proceedings have formally concluded. Let us now have a look at some of the significant laws and acts which describe the penalties that await perpetrators of these crimes against children.
Special amendments made to the Penal Code, No. 2 of 1883 includes special offenses against children. This includes the inclusion of Section 308(A) which concerns the offense of child abuse as described earlier perpetrated by any person charged with the care of a child. The offense of cruelty thereby carries a penalty of imprisonment of 2-10 years and/or a fine determined by the court. Section 360(C) deals with the offense of child trafficking which is punished by imprisonment of 5-20 years and/or a fine determined by the court. Other provisions outlined in the penal code include the offense of sexual exploitation (350B) as well as offenses that require compensation via a fine determined by the court such as rape (364), unnatural offenses (365), gross indecency (365A) and grave sexual abuse (365B). Part V of the CYPO which deals with the prevention of cruelty and exposure of children to moral and physical danger includes provisions against cruelty to children (Article 71), seduction and prostitution of children (72), allowing a child to frequent a brothel (73), forcing a child to beg for alms on the street (74), giving excisable materials to children (75), selling tobacco products to a child (76) and vagrants preventing children from receiving an elementary education (77).
The principle acts concerned with the reintegration and rehabilitation of child victims of violence include the CYPO and YOTSA. The ICCPR Act No. 56 of 2007 Section 5(2) gives statutory recognition to the internationally recognized principle of the “best interests of the child”. It states that
“in all matters concerning children by public or private social welfare institutions, courts, administrative authorities, or legislative bodies, the best interest of the child shall be of paramount importance”
The primary organization responsible for the protection of children is the National Child Protection Authority (NCPA) established by the Act No. 50 of 1998. The responsibilities of the NCPA include the prevention of child abuse and rehabilitation of victims of abuse. The NCPA is a multi-disciplinary body governed by pediatricians, child psychiatrists as well as government servants such as the Commissioner for child protection, the labour commissioner and the chairperson of the national council for child’s rights. An important act coming under the purview of the NCPA is the Prevention of Domestic Violence Act No. 34 of 2005 which permits a child who is subject to an act of domestic abuse or a parent, a police officer or any other person authorized by the NCPA to apply to the Magistrate court for a protection order against the perpetrator of said act of domestic abuse.
In summary the national framework against child abuse can be described as a fourfold strategy encompassing national programs aimed at promoting child protection, family and community level interventions, identification and specialized care for at-risk groups and finally, programs aimed at the rehabilitation and re-integration of child victims of abuse and exploitation.
While the protection of children is ensured by a legal mechanism, safety can be ensured only if the child is safe in society. This calls for reform not in the books of law, but in the minds of people.
Part V of the Children and Young Persons Ordinance, No. 48 of 1939
National Child Protection Act, No. 50 of 1998
FPASL – Child Protection and Safely Guidelines for Young Persons and Vulnerable Adults
Chapter 3 – A Legal and Institutional Assessment of Sri Lanka’s Justice System for Children, UNICEF 2017
United Nations Study on Violence against Children https://www.ohchr.org/Documents/HRBodies/CRC/StudyViolenceChildren/Responses/Sri%20Lanka.pdf