emidio India

UK Child Protection Mechanisms

A Brief Submitted by

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.

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]

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.

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.

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] –

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.

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.

[2] http://www.nspcc.org.uk/HelpAndAdvice/WhatChildAbuse/whatischildabuse_wda36500.html

[3] http://www.nspcc.org.uk/nspcc/helpline?action=showhelplinecontent17&view=hlfaq

[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.

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 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)

 

UN Convention on the Rights of the Child (UNCRC)

UN Convention on the Rights of the Child (UNCRC).

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 12^th 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

Juvenile Justice Act; A Reformative Step for children in Conflict with Law.

This article deals with ONLY one aspect of the Juvenile Justice Act; i.e. Children in Conflict with Law. “Children are the future of our country and it is the responsibility of every one to provide a sustainable support and ensure that they have a dignified and a safe environment to live in”.

J

uvenile Justice Act 2000 is the only beneficial legislation for the children in India, but there are various aspects of it in terms of its implementation; such as the machineries, the professionals involved in it, which play an important role in its implementation. There are various grey areas which are not spelt out in the legislation and the same is left with the competent authorities for interpretation. This interpretation is further governed by the Principles of Best Interest of the Child. The main objective is to provide a protective umbrella for all children in difficult circumstances. The Act covers all types of children below the age of 18 years, and further support to children till the age of 21 years.

History of Juvenile Justice.

The first legislation recognizing the need to cater to children came into force in the year 1850 this was the Apprentice Act which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help in their rehabilitation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought to the fore the vital need for a fair trial and treatment of children in conflict with law. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively.

The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union Territories. The Children Act 1986 was later amended in the year 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in various forums including Parliament but it could not be enacted on the ground that the subject matter of such legislation fell in the State List of the Constitution. To bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament exercised its power under Article 253 and on the 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok Sabha. Later came the Juvenile Justice (Care and Protection Act) 2000.

Juvenile Justice amended Act 2006.

Juvenile Justice Act 2000 (amended act 2006) is more elaborative than the 1986 Act and caters widely to two categories of children; children who have committed crimes and children who are in need of care and protection.

JJ Act 2000 lays special emphasis on the rehabilitation and social integration of the children. The Act has provided for institutional and non-institutional measures for care and protection of children. The act also envisages a system of partnerships with local communities and local governments to implement the legislation. The 2000 Act came into force to make an attempt to cover the lacunae which were existing in the existing laws.

JJ Act further provides for the establishment of children’s homes, for the care, treatment and protection of neglected and abandoned children. Institutional care still appears to be the largest service for the care of the destitute and orphan children. The JJ act also speaks for the setting up of Observation homes, Juvenile homes, Special homes, Aftercare homes and recognising fit persons/institutions for the temporary reception of both children in need of care and protection and that of children in conflict with law.

In order to deal with children in need of care and protection and children in conflict with law the JJ Act 2000 has authorised constitution of two competent authorities.

They are:

v Child Welfare Committee (CWC) for children in need of care and protection (Section 29)

v Juvenile Justice Board (JJB) for children in conflict with law. (Section 4).

The Child Welfare committee (CWC).

CWC is the sole authority constituted to deal with cases concerning children in need of care and protection for each district. The Committee is the final authority to dispose off cases pertaining to the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and safeguarding their human rights. The CWC does play an important role in catering to the needs of the children in conflict with law.

The Juvenile Justice Board (JJB).

The JJB is an authority constituted to deal with matters concerning children who have committed crimes for each district or group of districts.

Once a crime is committed and the child is apprehended, the child within 24 hrs is produced before the JJB. Till the inquiry is pending the child is kept in an observation home, unless otherwise released on bail. On conviction, the child is sent to the special home or place of safety.

Under this Act, children in conflict with law has a right to bail; and granting a bail is mandatory, except under three instances;

i. If his release would bring him into association with any known criminals,

ii. Exposes him to moral, physical and psychological danger,

iii. His release would defeat the end of justice. Instead of being sent to a jail on conviction, the law takes a reformatory approach and the juvenile can be released on probation after advice and admonition or, placed in custody of special homes.

The act puts grave responsibilities on the Board and the Committee to look into the rehabilitation and social reintegration of the children who are in conflict with law, thus putting an obligation on the Board to be cautious that the child does not end up becoming a criminal in the future.

The Board ought to take into consideration about the time specification given by the Juvenile Justice Act 2000. If cases against children are allowed to remain pending for indefinite time beyond stipulated time frame. then it would lead to exploitation of the juvenile and his/her guardian by the player within the system. The Act puts the burden on the Board to keep a track of such cases and dispose them at the earliest.

Police

For the purpose of achieving such rehabilitation and social integration, elaborate procedures are prescribed under the Act. The Act under Section 63 provides that the Police Officers with adequate aptitude and appropriate training and orientation, be designated as a Juvenile or Child Welfare Officer, to handle the juvenile in coordination with the local Police.

The key responsibility of Police Officers, whether designated as a Juvenile or Child Welfare Officer or not, is that the Officer, should always keep in mind that a juvenile in conflict with law or a child in need of care and protection, is required to be handled gently and cannot be treated on par with persons, who are, otherwise, called criminals. A special juvenile polices unit needs to be opened by Goa police as envisaged under the JJ act 2000 and Rules 2007 therein.

As per the rule 11 (11) of the JJ act 2000 “where the punishment is less than 7 years the police are not suppose to register FIR in cases but it is learnt that the practice of filing a FIR even in petty cases is still carried on, which is a violation of the JJ Act. Even in theft of rupees 120/- the police have registered an FIR.

There are various cases where children are made the scape goat for increasing detection of crime at the police station levels. I have come across children during my legal intervention at the board who are apprehended and lodged in the observation home inspite of such children not involved in the crime. Till date a total number of 80 cases have been dealt most of it leading to acquittal with no convictions.

Probation Officer

In the said act Probation Officer’s role is very vital in providing effective implementation. Inorder to discharge his duties the Probation Officer ought to know the very fundamental principle underlying the Juvenile Justice Act. Primarily the Probation Officer plays duel role; one as a investigator and the other as a supervisor. Secondly; he has a vital role in reformation, rehabilitation and reintegration of the children who come within the purview of the Juvenile Justice Act.

State Government

Inorder to achieve the prime objective enshrined in the Juvenile Justice Act, the State Government is required to provide all the support system to ensure that the Board functions effectively. The State Government is under the obligation to provide logistic support to ensure all the provisions are enforced in its true spirit. It is not possible with the sole participation of Government to enforce the Act in its true spirit. The need for collaboration and partnership with stakeholders can alone make it viable for the enforcement of the Act in its true spirit and in toto. The Act also does put to a certain extent an onus on the legal fraternity to look into other aspects rather than solely legal. The functioning of all the stake holders revolves around the infrastructure and facilities provided by the State Government.

Conclusion

Juvenile justice is the only existing legislation on children, which purely and primarily deal with children in conflict with the law and their rehabilitation. This law has been designed to apply the principle of reformation rather than the punitive approach. It has been noted that the enforcement of this law in terms of protection of the children is weak.

The ultimate purpose of the Juvenile Justice amended Act, 2006 is repatriation, rehabilitation and social reintegration of children who are in conflict with law and children in need of care and protection. One of the crux of this Act is that the inquiries pertaining to all children in conflict with law should conclude within the period of 4 to 6 months as envisaged under the law and records to be destroyed after 7 years. Inspite of having such a comprehensive and beneficial legislation in operation, there still stands a risk of violations of Children’s Rights within the system.

Within the society there are other issues of serious nature which affects the children e. g drug use and addiction to tobacco has been one of the common factors among the children in conflict with law. This issue evolves around peer influence. This makes it important for the children to be counselled and treated before they become victims to other drugs and should be referred for detoxification.

The place where the children are housed is known as observation home. If one interprets the term “HOME”, it would mean love, protection, security and a family setup which would cater to the emotional and mental aspect, of a child.

There is no dearth of laws concerning the welfare and protection of children; but what we lack in is the logistical support required for its implementation. Juvenile Justice Act 2000 is a comprehensive legislation which provides elaborative procedure to be followed keeping the Principle of Best Interest in the forefront. Goa has witnessed an alarming increase in reporting of crimes committed by children and those committed against them. Concern over violation of child rights in such situations, is growing. While going through these provisions of the legislations, clearly lacks in the area of accountability of various stake holder and bodies constituted under the law. There is a need to come up with guidelines and proper understanding as to procedures to be followed.

Prevention is always better then cure. It is high time we tap the children who are vulnerable who can become the future criminals. This can surely be achieved by keeping in mind the best interest of the children and the Principle of restoration, rehabilitation and social reintegration. This can only be ensured with effective partnership with the civil society.

There is a need for greater sensitivity and care while dealing with children in conflict with law. This can be achieved by giving utmost importance to child welfare and protection, along with creating social responsibility and greater awareness among stake holders.

Emidio Pinho

LLM (Human Rights)

Media and Child Rights

Media is one of the 4 pillars of democracy besides the Legislature, Judiciary, and the Executioner. The existence of an independent Judiciary, independent executionary and a free media is essential for a healthy Constitutional democracy. Media plays a vital role in dissemination of information to the people at large. However Media freedom also entails a certain degree of responsibility. This article is based on my experience working in the field of child rights in Goa.

Mass media is one of the important stake holders in the country and can play a vital role in child protection, prevention, and awareness on the importance of child rights. The role of media does not end here; it raises awareness, influences behaviour and generates public opinion. It also provides credible information, alerts citizens and stake holders and creates a demand for special support services. In short the Media acts a watchdog of the society at large. Media in Goa has worked intensively in curbing violation and keeping people upraised on various issues including child rights. The Government has been forced to take action on numerous issues only after the media came down heavily on the State. All stake holders should give three cheers to all media personnel working in Goa for their strength and commitment.

But the reality comes here wherein there is reporting of cases involving child abuse. In recent days it can be seen how the media has been carrying the news on cases of child abuse in Goa. The question arises as to whether the Media should be allowed to carry news of child abuse and whether the names, information of the accused and the complainant be carried out in the articles? I would answer both these questions in the negative.

The Indian Constitution allows freedom of speech and expression but this right are not absolute and are governed with restriction, and in cases of reporting cases of child abuse it is fenced with, protecting the identity of the victim. Journalists are governed by norms which have been drafted by the Indian Press Council and the same are binding on the Journalist all over the country. The norms issued contain certain provisions such as right to privacy and guidelines in reporting cases relating to children. The whole objective of this narrows down to non disclosure of victims name and protection of their right to privacy and confidentiality.

India has been signatory in the year 1992 to the United Nation Convention on the Rights of the Child (UNCRC), wherein it was agreed to protect children from all sorts of abuse by any person and adjudicate issues of abuse and rights in the best interest of the child. Moving on to the Indian Constitution Article 19 provides for the freedom of speech and expression but this right is not absolute and contains certain exceptions.

Now a day there is so much of reporting on child abuse and issues relating to children that such reporting leads to the disclosure of victim’s identity may be not directly but indirectly. The publishers have forgotten that while reporting crime involving rape, abduction or kidnap of women or sexual assault on children, and infants or 'forcible marriage' the names, photographs of the victims or other particulars leading to their identity should not be published.

There are numerous other legislations besides the India Constitution which provides for the protection of rights to privacy and confidentiality of the victims as the paramount issue and made special provision are in the act to prohibit the disclosure of the victim’s identity.

Other legislations such as the Indian penal Code (section 28), Juvenile Justice act and Goa Children’s Act 2003 are the swords which protect the disclosure of victim’s identity. But these legislations and various Supreme Court interpretation to abstain from disclosure of the names of the victims, have all been a wasteful of exercise.

Brief on the legislations mentioned above:

Indian Penal Code

Section 228A of the Indian Penal Code provides for the strictly protect the identity of the persons who come under the preview section 376, section 376A, section 376B, section 376C, or section 376D whether alleged or found to have been committed (hereafter in this section referred to as the victim). This section also protect the victims who are dead or minor or of unsound mind. The Supreme Court in various Judgments has interpreted these provisions to such an extent that it has restricted judges of lower court not to mention the name of the victim in their judgment of section Juvenile Justice Act.

Juvenile Justice Act 2000

This act is a central legislation and applicable to the whole of India. Section 21 of the Juvenile Justice Act 2000 speaks about Prohibition of publication of name, etc., of a juvenile in conflict with law or a victim child and also any report disclosing the name of the child or the name of the child in conflict with law. Under this provision the authority is meant to take a suo motto action and hold an inquiry into the same.

Goa Children’s Act 2003

This act is a state legislation applicable to the whole of Goa. Section of the Goa Children’s Act 2003 plays an important role in adjudicating into the disclosure of the victim’s name. Goa children’s Act 2003 is also governed by the principle of Right to Privacy and confidentiality.

Conclusion:

There needs to be a professional and moral obligation on publishers, reporters and young journalist while reporting of cases involving child abuse. The fundamental objective of journalism is to serve the people with news, views, comments and information on matters of public interest in a fair, accurate unbiased, sober and decent manner. Inspite of publisher of different media being governed by the norms of professionalism, on various occasions the identity of the victim is disclosed. The Human Rights Commission have also issued guidelines to media while dealing with reporting of victims of abuse. It’s high time that media pays heed to the needs and be cautioned from infringing the rights to privacy of the innocent children in India.