Child maltreatment: a human rights perspective
- Laura Gooding
- Sep 16, 2020
- 9 min read
Updated: Sep 18, 2020
By Laura Gooding, Content Officer for Human Rights
Photo source @UNICEF New Zealand
Project Blue Ribbon X Article 10.
Article 10 is proud to be collaborating with Project Blue Ribbon (PBR) a student-led, non profit organisation based in India on a mission to bring increased awareness to the realities and long term repercussions of child abuse.
Project Blue Ribbon's logo is highly significant, derived from one brave Norfolk grandmother's act of tying a blue ribbon around her wrist upon taking a stand against child violence which claimed the life of her grandson. Since, the colour has transformed into a globally recognised symbol inspiring a surge of education, promotion and guarantee of comprehensive child rights for protection.
This universal issue resides not only as a concern from a mental health, socio-economic and criminal law perspective, child protection directly aligns as a fundamental concept under our 3 key branches of human rights, global health and international politics.
How can you get involved?
Follow @project.blue.ribbon on Instagram
Here, PBR provides a plethora of information bites on child maltreatment presented in a digitally engaging, creative and most importantly an easily understandable format. Interactive posts cover the issue of child maltreatment through a variety of sub-topics within the problem of child maltreatment, ranging from stories of child abuse survivors, to upcoming events.
What is "child maltreatment"?
Whilst there is no single comprehensive definition of 'child maltreatment', on a basic level the term covers a broad range of abusive or violent behaviours, manifesting itself physically, sexually, emotionally, psychologically and in acts of neglect towards minors.
Common scenarios can range from children being forced into prostitution, sex & drug trafficking, pornography, marriages, illegal labour and acting on the front lines as child soldiers for rebel groups and the armed forces.
Background: creating a climate for child maltreatment
According to the WHO, violence against children has been found to occur prominently in situations whereby a child is either suffering from a disability, under the age of 4 or identifies on the LGBTQ+ spectrum to name a few. Data from the 2017 UNICEF Report, "A familiar face, violence in the lives of children and adolescents" provides 300 million children aged 2-4 will suffer a form of child abuse.
Whilst there is no particular environment whereby child maltreatment has an increased likelihood of occurring, a variety of factors can be combined to raise the probability of its presence in familial households, foster care, orphanages and for unaccompanied minors stationed in refugee camps.
1) Being raised by a low income single parent
2) Existing violence in the home between other family members
3) Living in poverty/undesirable or antisocial housing areas
4) Care givers with a history of substance abuse
In many cases, children may not be fully aware they are trapped in an abusive situation. However, normalising such behaviour is incredibly dangerous in the long term, as it may set this model of behaviour as normalised for adolescent victims to act similarly towards children as a guardian or care giver in later life. This is evident statistically, in light of UNICEF's above 2017 report, detailing that approximately 1.1 billion guardians act abusively towards children as a genuinely believed essential disciplinary means.
How has human rights based legal protection for children evolved in the international community?
At a glance, child maltreatment has unspeakable long term health consequences on a child's physical and emotional development into adulthood. However, the existence of child maltreatment and its broad spectrum also has a domino effect of pervading itself into a range of human rights.
-Right to life
-Prohibition of torture, inhuman or other degrading treatment
-Right to health
-Freedom from exploitation
-Prohibition of slavery
-Prohibition of child and early marriage
-Right to education
-Right to privacy
-Right to liberty
1. Key provisions under the United Nations Convention on the Rights of the Child (UNCRC)
Arguably the most legally significant international treaty for child protection, Article 19 remains the corner stone for setting the international standard expected of states in ensuring child maltreatment is eradicated.
Article 19 (1)
All children shall be protected from... "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse."
Article 34
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Article 35
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.
Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
Whilst the adoption of the Protocol has revolutionised protection for children against human trafficking from a legal theory perspective, in practice the ratification by only 40 states out of a total of 117 signatories is highly concerning.
In addition, scholars such as Kelly Hyland have criticised the Protocol in failing to provide a high standard of protective measures for victims recovering from trafficking. In particular, Hyland identifies the apparent difficulties between Article 6 and the rest of the Protocols provisions in fulfilling this objective.
Article 6 imposes a positive obligation upon states to provide aspects such as medical care and physical protection for victims, whilst a pattern of wording throughout the Protocol including phrases such as the state "shall consider in appropriate cases" gives a sense that protection will be assessed according to merit and availability of resources, rather than giving a comprehensive consideration as to a victim's psychological and emotional state.
Provides protection for children against involvement and recruitment into armed forces and rebel groups in cases of national/transnational conflicts.
Article 1
States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.
Article 2
States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.
Article 4
1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.
4. European Union law & The European Convention on Human Rights (ECHR)
European Union law is arguably the youngest legal institution in recognising human rights. Discussion of ‘fundamental rights’ within the legal framework of the EU was virtually non-existent in the early years of the Union’s formation, as neither the Treaty of Paris in 1954, nor the Treaty of Rome in 1957 alluded to the concept.
The Union’s shift of its programme for European integration away from consideration of fundamental human rights and instead towards the direction of establishing a common market, can be explained on the basis of the Union’s wariness to prioritise an area which didn’t appear to be wholeheartedly supported. Arguably understandable, out of fear that if such priority was given to fundamental rights in the outset, the Union may run its course before it had even begun.
Article 2
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
Article 3
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
4.1 Development of EU human rights law's applicability to children through case precedent
In recent years, EU case precedent of the European Court of Human Rights has witnessed the ECHR acting as a legal tool for the protection of both adults and minors.
Case law has developed to encompass state omissions to fulfil and infringements of their positive obligations, invoking state responsibility as covered by Articles 2 & Article 3 contained in the ECHR. In particular, precedent has shown a trend in consideration of the child in question's age as a key factor in disputes involving Article 3.
A v. United Kingdom, no. 95599/94
Court reaffirmed that states have a positive obligation to implement measures to protect those who are young and vulnerable from violence.
E and others v. The United Kingdom, no. 33218/96
Court extended the scope of an Art.3 violation to encompass instances of sexual violence against children.
K.U. v. Finland, no. 2872/02, 2 December 2008
In the case of a minor's personal details being posted on a dating website by the defendant, the court determined child protection must be placed above the latter's right to privacy.
In reaching this decision, the court placed special emphasis to the child's age as an influential factor, describing the situation as a “potential threat to the applicant’s physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age” at 41.
Aydin v Turkey, no 23178/94, 25 September 1997
Court determined that rape of a minor detainee by a state official amounts to torture as prohibited by Article 3.
It was observed that, “rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim” (at 83.)
How far is this legal protection the reality in practice?
Whilst the UN Convention on the Rights of the Child is undeniably a revolutionary piece of international law, described as laying the "foundations for children's rights" (J. Tobin) ,this significance is precisely the problem.
Despite the existence of the prior named laws imposing obligations, there remains weakness on many national platforms. A concerning lack of follow up protective legislation to eradicate and punish perpetrators of child maltreatment through the criminal law remains a large obstacle to achieving this objective.
According to UNICEF, as of 2017 only 60 countries have laws in place addressing child maltreatment, whilst 607 million children are residing in states where corporal punishment (flogging) inflicted at home is not criminalised. Furthermore, approximately 732 million children between the ages of 6-17 reside in territories whereby corporal punishment has not been entirely outlawed in education.
1) Child marriages
According to recent data released by UNICEF in 2018, while the rates of child marriage have lowered by 15% in the last 10 years, today approximately 650 million girls and women have been married before the age of 18.
Forced child marriages amount to child maltreatment on the grounds of:
a. Lack of/ inability to provide consent from the intended spouses
b. Intended spouses are under 18
Niger currently has the highest global proportion of child marriages, securing a staggering 76%, closely followed by the Central African Republic at 68% and Chad at 67%.
Focusing in on Niger, national law as it stands under the Civil Code 1993 sets the minimum age for marriage at 18 for boys, but 15 for girls. Not only is this legislation a direct form of discrimination on the basis of gender, it falls far below international standards of the obligation to eradicate child marriages, imposed under the Universal Declaration of Human Rights and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, sparsely signed by states in the African continent.
2) Child soldiers
Historically, territories such as Myanmar and the Democratic Republic of Congo (DRC) have always and continue to remain largely problematic, possessing the highest rates of child soldier recruitment in the world.
In 2018, statistics obtained by UNICEF estimated that 60% of DRC rebel group Kamuina Nsapu was comprised of child soldiers.
The DRC has been working closely with the UN since 2012, as part of the UN Action Plan to bring an end to child recruitment and direct involvement in the armed forces and rebel groups. Most recently, the country's determination to eradicate the practice as a near future goal through legislative reform was emphasised to Thomson Reuters in July 2020 by the DRC's Minister of Human Rights Andre Lite Asebea.
"The implementation of a directive within the armed forces aimed at eliminating the forced recruitment of children ... is long overdue,"
"The DRC has a zero-tolerance policy towards armed groups ... perpetrating this kind of practice on our territory."
Notwithstanding this apparent drive to end child recruitment into militia, until action is taken to adopt such legislation, these remain largely empty words.
How can you educate & advocate in helping bring awareness to child maltreatment?
1. Familiarise yourself with UNICEF, the United Nations' branch working to universally secure and uphold child rights.
2. At your university/place of employment, help organise charity fundraisers and donations for child protection organisations
-Save the Children
-UNICEF
-Defence for Children
3. Documentaries
DISCLAIMER: Please be aware that many documentaries concerning this sensitive issue will contain information or footage which viewers may find distressing. Do not interpret the below suggestions as obligatory to watch.
"The voices of children" (Involves children across 5 countries giving their opinions and stories about children's' rights in their own territories.)
"Children for sale"
(Produced by US TV & Media company CNN, addressing child trafficking)
Relevant helplines
1. Child line (UK) 0800 1111
2. Mind mental health charity (UK) 0300 123 3393
3. NSPCC (UK) 0808 800 5000
Comments