Transcript Child Welfare and Children’s Rights Across the World

Child Welfare and Children’s
Rights Throughout the World
Lessons to be learned from
comparative national analyses
Howard Davidson
Director, ABA Center on Children and the Law
202/662-1740
[email protected]
If you want to be successful
in a particular field of
endeavor, I think
perseverance is one of the
key qualities. It's very
important that you find
something that you care
about, that you have a deep
passion for, because you're
going to have to devote a lot
of your life to it.
-- George Lucas
Child Maltreatment Interventions
2006 IPSCAN “World Perspectives on
Child Abuse”
 Notable variations found on:
a) How governments handle physical
discipline of children and religious
exceptions to provision of medical
care; b) Availability of services and
mandates for (right to) treatment;
and c) Adequacy of services to
parents, especially mental health
interventions
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Two government policies found to
correlate with under five child mortality
reduction: 1) having a child abuse
registry; 2) having specific time frames
for responding to abuse reports
Many other countries clearly include
within scope of “child abuse/neglect”
prostituted children and children living
on the streets
Not clear from this international survey
what countries are doing to better
address the “institutional abuse of
children”
Independent Child
Representation and Advocacy
Jean Koh Peters: Representing
Children Worldwide (2005)-www.law.yale.edu/rcw
 CRC Article 12 implementation examined:
1) Child must be “heard” directly according
to the law
2) Child must be heard “through a
representative” according to the law
3) Law addressing “child protective
proceedings”
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Summary of Findings
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Mandatory to hear from child directly
18 countries in Americas, not U.S.
(about ½); 33 in Europe (about 1/2);
10 in Africa (about 1/5); 9 from Asia
and Oceania (about 1/8)
Must hear child through representative
8 countries in Americas (note U.S.
listed as “child’s views unrepresented”
(about 1/5); 11 in Europe (about 1/4);
2 in Africa (out of 53 countries); 2 in
Asia/Oceania (out of 63 countries)
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No Formal Child Protective
Proceedings
1 country in Americas (Barbados); 1 in
Europe (Holy See); 10 in Africa (1/5);
14 in Asia and Oceania (1/4)
U.S. Findings
No 2 of 56 jurisdictions have identical
representation systems; 39 assure
child’s wishes heard; 17 have no
requirement for child’s viewpoint to be
expressed/advocated. Majority have
BIOC representation (and in only 5 is it
an option rather than mandate)
Where Does U.S. Lag Behind on
CRC Provisions?
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Todres, Wojcik, and Revaz, “The
U.N. Convention on the Rights of
the Child: An Analysis of Treaty
Provisions and Implications of
U.S. Ratification,” Transnational
Publishers (2006)
Art. 12 implementation (notes child’s
voice/legal representation) gaps
The corporal punishment problem
Life without parole (LWOP) for
juveniles still allowed
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Barbara Woodhouse (Univ. of FL Law)
notes 3 areas where children’s rights
have yet to be clarified in the U.S.
1) Extent of protection for children’s
rights to relationships with parents,
extended family, and other adults
(Howard would add: siblings)
2) Extent of children’s constitutional
right to an attorney in custody and
child protective cases
3) Extent of children’s rights to
protection from abuse and neglect
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Merle Weiner (Univ. of OR Law) says
CRC ratification might help U.S. get-1) Universal health care as child’s right
2) More effective policies addressing
child hunger and homelessness, and
reduction of child poverty
3) Policy that criminalizes corporal
punishment of children or removal of
parental immunities in tort law for
these acts
4) Policy requiring separation of all
children from ever being in criminal
facilities with adults
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Dan Skoler (former leader of ABA
CRC Working Group) and Jonathan
Todres (NYU Law) add that:
-- U.S. would be bound to reduce
child and infant mortality and
provide pre-natal and post-natal
health care for expectant mothers,
and to ensure that children receive
necessary medical assistance and
health care (“enjoyment of the
highest attainable standards of
health”) through a “health rights”
concept
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Attorney Elisabeth Mason (advisor to
Atlantic Philanthropies) says CRC
would:
-- Require changes in U.S. law to
assure children are heard in: 1)
cases involving family restructuring
stemming from divorce or dissolution
of a de facto parental relationship,
and abuse/neglect cases; 2)
proceedings within the educational
environment; and 3) decisions
regarding the medical treatment of
minors
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Maya Grosz (N.Y. Univ. Law) sees Art.
20 requirement of due regard to a
child’s ethnic, religious, cultural, and
linguistic background when
determining foster or adoptive
placements as potentially inconsistent
with current U.S. federal Multi-Ethnic
Placement Act law
-- MEPA: placements cannot be denied
or delayed due to the race, color, or
national origin of the child or family
Attorney Catherine Taylor sees Art. 27
requiring U.S. actions to ensure
adequate standard of living for children
OPTIONAL PROTOCOL TO CRC
On Child Sexual Exploitation
Article 8
1. Governments shall adopt appropriate
measures to protect the rights and
interests of child victims of the practices
prohibited under the Protocol at all
stages of the criminal justice process by:
(a) Recognizing the vulnerability of child
victims and adapting procedures to
recognize their special needs, including
their special needs as witnesses
(b) Informing child victims of their
rights, their role and the scope, timing
and progress proceedings and the
disposition of their cases
(c) Allowing the views, needs and
concerns of child victims to be presented
and considered in proceedings where
their personal interests are affected, in a
manner consistent with procedural rules
of national law
(d) Providing appropriate support
services to child victims throughout the
legal process
(e) Protecting, as appropriate, the
privacy & identity of child victims and
taking measures in accordance with law
to avoid inappropriate dissemination of
information that could lead to
identification of child victims
(f) Providing, in appropriate cases, for
the safety of child victims, as well as
that of their families and witnesses on
their behalf, from intimidation and
retaliation
(g) Avoiding unnecessary delay in
the disposition of cases and the
execution of orders or decrees
granting compensation to child
victims
2. Governments shall ensure that
uncertainty as to actual age of the
victim shall not prevent initiation of
criminal investigations, including
investigations aimed at establishing
the age of the victim
3. States Parties shall ensure that, in
the treatment by the criminal justice
system of children who are victims of
the offences described in the present
Protocol, the best interest of the child
shall be a primary consideration
4. States Parties shall take measures to
ensure appropriate training, in particular
legal and psychological training, for the
persons who work with victims of the
offences prohibited under the present
Protocol
5. States Parties shall, in appropriate
cases, adopt measures in order to
protect the safety and integrity of those
persons and/or organizations involved
in the prevention and/or protection and
rehabilitation of victims of such offences
6. Nothing in the present article shall be
construed to be prejudicial to or
inconsistent with the rights of the
accused to a fair and impartial trial
Proposed: A New International
Network of Attorneys for Children
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Find funding to network:
Key national bar activists involved in
child/youth issues; full-time frontline
child law practitioners; law professor
children’s law scholars; key child
protection/child welfare lawyers within
governments; child NGO lawyers;
other lawyers/judges/law students
Conferences; e-mail list; newsletter;
website