Editorial to the Special Issue
Deprived of food, having had alcohol pushed down their throats, being sexually and physically abused and sickened from disease and malnutrition, five mentally challenged children died due to starvation and others were going to die, when they were rescued. This was followed by another similar incident wherein 19 girls were sexually abused.1
This is not an extract from a Charles Dickens novel, Oliver Twist of the 19th century work houses but what has come to light in the 21st century, in two orphanages in Mumbai, India. The rescue was not the result of legal structures and systems. In the first case, a local newspaper broke the story and in the second instance, it was brought to light by a team of child rights activists. This was a collective failure of the entire system- the licensing system, the advisory boards, the inspections committees, the child protection units, the management committees, the child welfare committees and the State. These victims and witnesses pose unique challenges to the criminal justice system. Interviewing children with disabilities involves more time, resources and modifications. There is a need for extraordinary measures to ensure the witness safety and protection and further reforms in police and court procedures when they give their testimonies, so that truth is ascertained, trauma is reduced and conditions created to allow them to provide reliable and complete evidence without fear and intimidation. A full fledged witness protection programme is also required.
There are several such challenges facing children today that include rights of repatriated children in inter country adoptions and implementation of the Hague Convention on Inter-Country Adoptions, rights of children in armed conflict, abduction of children, migrant child labour, forced child labour, children working in the agricultural sector, getting children to school, problems of refugee and migrant children, trafficking of children for exploitation and child laundering. All over the world, children suffer from violent and major crimes at rates many times higher than that of the general population. Some recent worldwide statistics are appalling:
150 million girls and 73 million boys worldwide are raped or subject to sexual violence each year.
115 million children are involved in hazardous work.
3 million girls and women are subjected to female genital mutilation every year.
8 million children around the world are living in care institutions. At least 80% have one or both parents alive.
Over the next decade, 175million children are likely to be affected every year by natural disasters.
Just over 1 billion children – including 300,000 under-fives – live in countries or territories affected by armed conflict.
More than 250,000 children have been coerced or induced into armed forces or groups to serve as child soldiers.
In the last decade, an estimated 20 million children have been forced to flee their homes, and more that 1 million have been orphaned or separated from their families by an emergency.
1.2 million Children are trafficked every year.2
Another area of concern is that though globalization has powerful economic, political, cultural and social dimensions in opening up enormous opportunities; it has not been able to spread these opportunities equitably among all social strata.This has resulted, in several cases and especially in developing countries, in a renunciation of state responsibility or the retreat of the state from the provision of public service for the welfare of its disadvantaged citizens including children. The world’s children have by far the largest stake in the effects of globalization because of their vulnerability, distinctive needs and status. Reduction by the State in social services such as health, education and poverty alleviation programmers has strong links with child protection, survival and development and has raised several concerns about the impact of globalization on children.
Today, children are recognized as citizens in their own right, entitled to the full spectrum of human rights. Within the last century, the idea that children need protections separate from those of adults greatly impacted upon both domestic and international law. What began as an effort to protect children from long hours of labour and its corresponding health defects, turned into an organized movement. After each world war, international legal instruments increasingly included protection for children across the globe. Consequently, the law, policy and practice of child welfare have undergone significant changes from a cultural, historical and legal perspective. Legislation did not deal with childhood as a period of life that needs special measures of protection until the early-19th century. It was only during the 20th century that the concept of children’s rights emerged. This shift in focus from the ‘welfare’ to the ‘rights’ approach is significant. It has been a long journey to reach this stage.
There has been a gradual progression from a needs based approach to a rights based approach. The evolution of the Rights of the Child commenced in 1924 when the League of Nations adopted the Geneva Declaration on the Rights of the Child. The declaration established children’s rights to means for material, moral and spiritual development; special help when hungry, sick, disabled or orphaned; first call on relief when in distress; freedom from economic exploitation; and an upbringing that instills a sense of social responsibility. It is significant to note that this was mainly to fulfill some basic needs of the children. In 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were adopted. They advocated protection for children from exploitation and promotion of the right to education. The International Labour Organization in 1983 set 18 years as the minimum age for work that might be hazardous to an individual’s health, safety or morals. The focus was on children’s work or labour. The UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Womenin 1979, which provided protection for the human rights of girl children as well as women. It also declared 1979 as the International Year of the Child, which set in motion the working group to draft a legally binding Convention on the Rights of the Child. 1989 was a landmark year for the child rights movement and the draft was unanimously approved by the UN General Assembly.
The United Nations Convention on the Rights of the Child (CRC) 1989 is a landmark in international human rights legislation. Having been signed by virtually every country, it is the most widely ratified Convention in the World. The CRC adopts a child rights-based approach which sees each individual child as a complete human being, worthy of respect and capable of expressing opinions which we should take seriously, which recognizes a range of human rights for children. These include: the right to survive; to develop to the fullest; to be protected from harm, abuse and exploitation; and to participate fully in family, cultural and social life.
Realization of child rights needs good governance and accountability on the part of the State. The State is the primary duty bearer and accountable for the realization of all rights of the children. It is generally recognized that the performance of states in the realization of child rights is dependent on good governance.
This special issue of the journal Law, Social Justice and Global Development (LGD) focuses on Child Rights, Law and Emerging Challenges. It has both refereed as well as non refereed articles. Although we may not agree with all the perspectives and ideas, we present these diverse ideas and perspectives in the hope that we can look at the child in an integrated manner making cross cutting linkages on the issues globally. Since this journal has contributions from various countries it will be of interest to a wide international readership from practitioners, researchers, policy makers, law enforcement and justice officials and students concerned with child rights issues.
Trafficking is a lucrative industry. It is now the fastest growing criminal industry in the world. Globally, it is tied to the illegal arms trade, as the second largest criminal activity, following the drug trade. The journal opens with the Hon. Justice Roshan Dalvi’s commentary on ‘The rights of trafficked women and children’ which remains a neglected issue. She analyses cases of violence against the trafficked victims that have come to Indian courts. Some of the cases which have come to the Courts show acts of assault, burning, persistent denial of food, perverse sexual conduct, forced abortion, locking the victim, denying access to her relatives and children, abusing her child and the like. She compares the victim treatment in UK, US and India. She strongly advocates a holistic approach taking into account prevention, protection and prosecution as the three arms of society and the law dealing with trafficked victims.
The right to education is recognized as a human right and is understood to also establish an entitlement to education. Supreena Naidu’s paper on the Right to Education for All Children in Vanuatu – Are Girls Getting an Equal Opportunity to Education Compared to Boys? examines Vanuatu's international legal obligations in respect of educating female children and what steps have been taken to meet those legal obligations. It provides a literature review of how national legal frameworks and policies can be developed to meet international legal commitments. It concludes that, whilst Vanuatu's domestic legal frameworks do meet legal obligations and that Vanuatu's policy statements also show commitment and support for equity of access to education, more needs to be done to overcome social and cultural barriers which may make education institutes an "unfriendly" environment for girls.
Participation means children and young people thinking for themselves, expressing their views effectively, and interacting in a positive way with other people; it means involving children in the decisions which affect their lives, the lives of their community and the larger society in which they live. ‘Should a Student in School be Seen and Not Heard? An Examination of Student Participation in U.S Schools’-- This proposition of participation of young people in decision-making in schools in the United States is dealt with by Edward O Brien. According to O’Brien, though the US has still not ratified the CRC, there are many innovations presently going on in US schools regarding student voices. Since schools began, decisions have principally been the prerogative of administrators with input sometimes from teachers and occasionally from parents. Rarely have students had a say in such matters but with the growth of democracy and some successful models being developed in the U.S. and elsewhere, this may be changing. The paper examines the tension between those who want to protect the child and those who want the child to participate.
Orphaned Child Headed Households (OCHH) is a phenomenon that is growing in the world, attributable especially to the HIV/AIDS pandemic, which has affected the demographic patterns, by increasing the number of orphans. The term OCHH is used in two different ways; first it is used to mean the child who is orphaned and heads a household i.e. orphaned children heading households, secondly it means the household in which the head is an orphaned child: Helen Kijo-Bisimba addresses the issue of ‘Conducting Research with Children: Capturing the Voices of Orphaned Children Heading Households in Tanzania’. This paper discusses experiences in research with orphaned children heading households in Tanzania and focuses on the efficacy of the international and national protection mechanisms for such a vulnerable group. Results revealed major challenges in obtaining the child’s voice due to power relations and tensions among involved adults (in this case those working for the protection of children). The paper discusses the need for the development of methodology to include the children being studied as well as ethical issues arising through research with children.
Migration has become a massive global phenomenon that directly affects the lives of children. Governance of migration - and the development opportunities it provides - is a key policy challenge. Governments’ migration policies need to be balanced with their obligations under the UN Convention on the Rights of the Child and the ILO Conventions on the Minimum Age for Employment, No’s 138 (1973) and the Worst Forms of Child Labor, No. 182 (1999). When dealing with children - whatever their migration status – it has to be recalled that States are obliged to ensure the protection of all children, including migrant children. Currently, migration laws in most countries do not incorporate a children’s rights perspective, and even policies to protect the rights of children have, in many countries, not yet taken into account the specific conditions and needs of migrant children. Therefore, laws and policies in the fields of migration, children’s rights and child labour should pay specific attention to both internal and international child migrants.Recent years have seen an increase in child and adolescent female migration. Based on a desk review of literature and consultations with field staff, this working paper on Practitioners’ Perspectives of Child Migrant Labour and Child Exploitation within Cotton Seed Fields: Cases from Gujarat, India by Joseph K. Assan and Harriet Hill, explores how migration - both internal and international – can affect children’s involvement in child labour. The paper focuses on voluntary migration, excludes child trafficking and distinguishes between the three categories of children who migrate with their parents (i.e. family migration), independent child migrants, and children left-behind by migrant parents. The link to child labour of each of these categories is explored, followed by a series of strategic considerations for action.
The thrust of international policy behind the phenomenon of economic globalization is neoliberal in nature. Neoliberalism favours the free-market as the most efficient method of global resource allocation. Consequently it favours large-scale, corporate commerce and the privatization of resources. According to Jennifer Davidson, neoliberal economic globalisation (NEG) and its consequent institutions and processes were not constructed with children in mind. The moment one brings children into the equation, the exclusionary nature of this system is revealed; children experience a special marginalization under NEG and the struggle to recognize and enforce children’s rights is made more difficult under its global dominance. Davidson’s paper titled ‘A Bully in the Playground: Examining the Role of Neoliberal Economic Globalization in Children’s Struggle to Become ‘Fully Human’’ examines the ideological and practical realities influencing children’s advancement and retreat along the multifaceted Property-Welfare-Rights spectrum that are taking place in an increasingly globalized world in which international economic dynamics play a particularly influential role. Davidson attempts to analyze this multi-leveled process of economic globalization, the dominant forces and conflicting ideologies in which the struggle for children’s rights to be recognized takes place.
Gender inequality in education is one important aspect of educational disparity, an issue which was addressed by the feminist movement. As a result of this movement and other developments there has been a growing recognition in international law of the right of the girl child to education. The underlying approach of this paper on ‘An Assessment of Right to Elementary Education for a Girl Child in India: A Review of International and National Laws’ by Ashish Virk and Aman A. Cheema, is the extent to which international law developments have been replicated in India. The Constitution of India promised universal education for all children under 14 years of age. More recently, this has been supplemented by the 86th Amendment of 2002 of the Constitution and The Right of Children to Free and Compulsory Education Act, 2009. Nevertheless, the paper suggests that various factors including role of judiciary appears to ensure that there is unsatisfactory fulfillment of the right to education of the girl child in relation to elementary education.
Child soldiers continue to be used in armed conflicts by some governments. Governments also use captured children for intelligence gathering, or detain them rather than supporting their rehabilitation and reintegration. A wide array of armed groups – with diverse aims, methods and constituencies – continue to use children as soldiers and they have proved resistant to pressure or persuasion to stop the practice. In regions of hostility and armed conflict, conflict and its correlated variables have deprived the children of protective shields. Absence of strong rehabilitation measures increase their vulnerability. Two important issues emerge: Firstly, the question of care and protection of children affected by the conflict. Secondly, the participation of children as part of armed opposition groups in the conflict. ‘Beyond Child Participation in the Occupied Palestinian Territories: The Case for ‘ Protective Solidarity’ by Bridget Steffen discusses the ways in which the conflict and its correlated variables have deprived Palestinian children of the protective shields. Children have been exposed to conditions of vulnerability, not only as alleged participants as part of the armed groups in the fuelling conflict but also those who are in need of care and protection.
International law requires governments to provide children (persons under the age of 18) with special safeguards and care, including legal protections appropriate to their age. While children should be held accountable for their crimes, international law requires that they be treated in a manner that takes into account their particular vulnerability and relative culpability as children, and focuses primarily on rehabilitation and reintegration. A body of international treaty law and standards establish fundamental norms when dealing with alleged juvenile offenders. Yet, Governments failed to uphold these internationally accepted standards in the case of Omar Khadr. Grace Li Xiu Woo’s case comment on ‘The Omar Khadr Case: How the Supreme Court of Canada Undermined the Convention on the Rights of the Child, critiques the Supreme Court of Canada decision that reversed a Federal Court order requiring the Prime Minister to request his repatriation, it violated the Convention on the Rights of the Child and jus cogens which prohibits torture. The case comment traces how a 15-year-old child was detained, and now is the only citizen of a western country who has not been repatriated from illegal detention by the United States at its Guantanamo Bay naval base. Grace Woo describes how the court ignored the gravity of Omar’ s situation, failing to take account of the way international law has been incorporated in Canadian law and mis-stating Anglo-Canadian constitutional tradition with its claim that it lacked jurisdiction over the executive prerogative on matters touching on foreign policy.
Youth volunteers called child defenders play the role of pressure groups in dealing with child labour issues. Shantha Sinha’s article on Child Defenders for Child Rights is based on the experience of thousands of child defenders for child rights who have worked for abolition of child labour, resolved tensions and conflicts and freeing children from work and ensuring that they complete their education in full time formal schools. Sinha argues that in addition to the legal, policy and programmatic frameworks, the role of child defenders have to be adequately recognized for ensuring that children have access to all their entitlements. The article is illustrated by narratives of the struggles of some child defenders, as they relentlessly challenge the system that has fostered inequality for many generations. They do this at great risk to themselves and their families.
The Three-day International Colloquium on “Children and Governance: Holding the State Accountable” July 20-22, New Delhi, India by HAQ Centre for Child Rights was a global discussion on ‘governance’ with practitioners from different parts of the world exchanged their tools, models and valuable experiences on governance from a child rights perspective. Experts from all over the world working in the field of child rights and protection keenly debated the issue of effective and improved governance for children. The colloquium broadly aimed to frame a working definition of governance for children’, assess State accountability and its role in empowering children (or the lack of it), widen the discourse of children in governance, evaluate the role of legal instruments and the relevance of international agreements and State compliance to them, and arrive at a consensus on pre-requisites for good governance for children.
I would like to thank the many people who have made this journal possible. We would like to thank the authors who contributed to this issue and patiently waited for its publication. I thank the number of academic peer reviewers who gave their time to provide feedback to make the contributions stronger. Dr. Chikosa Silungwe and Dr. Abou Jeng worked diligently as part of the editorial team, with a variety of tasks including the onerous work of copy-editing. I extend to them my appreciation. Above all, I am extremely grateful to Professor Abdul Paliwala for inviting me to guest-edit this special issue. It was his enormous kindness, constant encouragement and guidance that finally helped in binging out this journal.
Readers from among all the international group of child rights professionals are now invited to comment on and discuss the important questions raised in this issue. It is hoped that eventually this will positively help children worldwide in assuring justice.
Professor Asha Bajpai
Tata Institute of Social Studies, Mumbai