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The Identification and Reporting of Severe Violence Against Children: International Standards and Practices




© Springer Science+Business Media Dordrecht 2015
Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_24


24. The Identification and Reporting of Severe Violence Against Children: International Standards and Practices



Jaap E. Doek 


(1)
Family and Juvenile Law, VU University of Amsterdam, Amsterdam, Netherlands

 



 

Jaap E. Doek



Keywords
Children’s rightsProtection from abuseInternational conventions and standardsReporting of child abuse and neglectCross-cultural issues of child protectionUN Convention on the Rights of the Child



Introduction


The UN Study on Violence Against Children (Pinheiro 2006) documented and confirmed that various forms of violence against children, such as physical, emotional and sexual abuse, exploitation and neglect, take place not only in the family and care settings but also in other settings like the school, the work place and in the community.1 The study contains specific recommendations for action for prevention and intervention for each of the settings in which violence against children occurs. The international legal framework for the study was the UN Convention on the Rights of the Child (CRC), its Optional Protocols,2 the ILO Conventions 138 and 182 and other international legal documents.3 Most of these documents are ratified by a vast majority of States (see footnote 2 and 3) and their provisions constitute a body on international customary law.

The CRC is the most ratified international human rights treaty. By their ratification, 194 countries have committed themselves to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the CRC (art. 4).

Many articles of the CRC provide the child with the right to protection from all forms of physical and mental violence, including abuse and neglect and sexual abuse (art. 19), from all forms of economic exploitation (art. 32), from involvement in armed conflicts (art. 38 and OPAC), from sexual and other forms of exploitation (art 34 + OPSC and 36), and signatories agree that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37).

These articles are not explicitly addressing the matter of identification and reporting of children who have been or are at risk of becoming victims of these forms of violence or exploitation with one exception: article 19. This article deals with the prevention and protection from all forms of violence in the family and other care settings. In addition to targeted efforts to prevent child abuse and neglect, the 194 States parties to the CRC are obliged to take protective measures which should include identification, reporting, referral, investigation, treatment and follow-up and as appropriate, judicial involvement.

For all other forms of violence and exploitation mentioned before, it is left to the States parties whether and how they will develop and implement measures for the identification of children who have been or are at risk of becoming victims of economic, sexual and other forms of exploitation. For the field of commercial sexual exploitation and economic exploitation, this results in an international picture of varied rules and practices.

The right of the child to protection from all forms of violence, as enshrined in international human rights treaties, requires a comprehensive policy which includes both various measures of prevention and effective intervention in cases in which children are victims of violence. Such interventions are only possible if professionals working with and for children, as well as others who have the knowledge and skills for a timely identification of these children, report to the relevant authorities, when necessary, such instances of violence. But identification and reporting are not goals in themselves but tools for providing the child victim with all necessary protection and support for a full recovery. The focus in this chapter will be on timely identification and reporting whilst keeping in mind that these acts are only the beginning of efforts to provide the child with the protection he or she is entitled to. Under the CRC and the Optional Protocols, it is the obligation of States parties to make this right to protection a reality.

In line with the UN Study on Violence Against Children, this chapter will present and discuss international standards and practices of identification and reporting of child abuse, neglect and other forms of violence in the family and other care settings, the work place (taking into account ILO Conventions 138 and 182) and the community, in particular various forms of sexual exploitation of children. Given the different rules and practices across national boundaries, a distinction is made between child abuse and neglect in the family and other care settings (hereafter para. 2) and economic and sexual exploitation (para. 3). The focus will be on the implementation of the relevant provisions in the CRC and the Optional Protocols by the States parties at the national level.

But States parties are held accountable (to some extent?) for their performances in implementing children’s right to protection. Most importantly, they have agreed that they are obliged to report regularly on their activities to international monitoring bodies, in particular the CRC Committee. In a separate paragraph, some attention will be paid to this accountability and monitoring process.

The final paragraph contains conclusions and some recommendations.


Identification and Reporting of Child Abuse and Neglect in the Family


Article 19 CRC and General Comment No. 13 of the CRC Committee, not only recognises the right of the child to be free from all forms of abuse and neglect in the family and other care settings but also spells out in a rather specific manner the obligations of States parties to respect and fulfil this right (Doek 1994):

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect and 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.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Compared to the other articles of the CRC dealing with protection of children from sexual exploitation, sale and trafficking, this article is very detailed. The drafting history does not explain the detailed attention expressed in the article (Detrick 1992). My assumption is that this attention during the drafting of the CRC in the 1980s can be explained by the growing international attention for child abuse and neglect promoted by activities of the International Society for Prevention of Child Abuse and Neglect (ISPCAN) (Donelly 2002). Representatives of this International Society and of the International Institute for Child Rights and Development (IICRD, Victoria University, Canada) were actively involved in the drafting of General Comment No. 13 on Article 19 (Hart et al. 2011).

In 2011 the CRC Committee issued a General Comment in which it provides the States parties with guidance in the interpretation of this article and recommendations for actions which should be undertaken for the implementation of this article (GC 13).4 In this document, the CRC Committee provides, amongst others, elaborate examples of acts which fall under mental or physical violence, as well as a specification of the legislative, administrative and educational measures States parties should take with a strong emphasis on prevention. Much more could be said about the rich content of GC 13 (see, e.g. Hart et al. 2011; Svevo-Cianci et al. 2011), but in the context of this chapter, we will focus on the Committee’s views on identification and reporting (para. 44 and 45 of GC 13).

Identification. This should not be limited to identifying signs of actual maltreatment (in order to trigger appropriate interventions as early as possible) but also include the identification of risk factors for particular individuals or groups of children and caregivers in order to trigger targeted prevention initiatives. Identification requires that all persons who come in contact with children are aware of risk factors and indicators of all forms of violence and have received guidance on how to interpret such indicators and have the necessary knowledge, willingness and ability to take appropriate actions. Children must be provided with as many opportunities as possible to signal emerging problems before they reach the state of a crisis.

Reporting. This requires, according to the CRC Committee, that States parties develop safe, well-publicised, confidential and accessible support mechanism for children, their representatives and others to report violence against children, including through the use 24-h toll-free hotlines and other information and communication technologies. Reporting mechanism must be coupled with and should present themselves as help-oriented services offering public health and social support rather than triggering responses which are primarily punitive.

In every country, reporting of actual incidents, suspicions or risks of violence should, as a minimum, be required by professionals working directly with children. When reports are made in good faith, processes must be in place to ensure protection of the professional making the report.

Some comments to the implementation of the views of the Committee.

The Committee does not elaborate on identification, but it is obvious that it requires that in particular professionals and volunteers working with children be trained in identifying children who are or at the risk of becoming victims of violence in the family or other care settings such as foster care and institutional care. Many States parties to the CRC Committee report that they carry out awareness raising and training on the various aspects of child abuse prevention and intervention. But in too many countries, little or no attention is paid to these matters. A lot still needs to be done to ensure the timely identification of children who are (possible) victims of violence. Without such identification, the child’s right to protection is void.

Reporting: Mandatory or non-mandatory? The Committee is, without specific arguments, in favour of mandated reporting at least for professionals working directly with children such as social workers, psychologists, family doctors and paediatricians. Some countries do have laws requiring professionals and others to report instances or suspicion of child abuse and neglect, i.e. to designated authorities or services. These reporting laws have been discussed extensively in the previous chapters, including inter alia the advantages/benefits and the disadvantages of mandatory reporting. To balance this, I will deal here with an example of a non-mandatory reporting system developed and implemented in the Netherlands in the 1970s.


An Example of a System That Emphasises Voluntary Reporting: The Netherlands


In 1972, four Bureaus of Confidential Doctors were established. The primary purpose of these bureaus was to provide medical professionals with the possibility of contacting the bureau for advice on how to deal with a concrete case of (suspected) child abuse whilst maintaining the confidentiality they are bound to maintain. They could also refer the case to the bureau requesting it to investigate the case and initiate the necessary actions for the protection of the child. Also, in addition, other professionals and the public at large could contact the bureau for advice or referral of a (suspected) child abuse cases. The focus was first on cases of physical abuse,5 but the mandate of the bureaus was broadened to all forms of child abuse, including physical and emotional neglect and sexual abuse. In 1972, 430 cases were reported to the bureaus, and this number rapidly increased to approximately 13,000 in 1993 (Doek 1978, 1986). The development of this system has been described in detail (van Montfoort 1994), inspired Belgium to establish similar services (Marneffe and Lampo 1989) and was compared with the reporting practice in the UK (Christopherson 1981). It goes beyond the scope of this chapter to present detailed information on the developments since 1972. However, the following information fills in some of the details:



  • Following extensive negotiations (van Montfoort 1994), the bureaus were replaced by centres for advice and reporting of child abuse (AMK, Advies en meldpunt kindermishandeling) and made subject to rules contained in the Law on Youth Care. Currently there are 12 regional AMK’s covering the whole country. First contacts on cases of child abuse with the centres increased from 34,000 in 2004 to almost 66,000 in 2011, and the increase continues. In 70 % of all the cases, the person contacting the Centre needed an advice. The remaining 30 % were referred to the Centre for further investigation and action as necessary. These percentages are virtually the same over the years. Parents and children rarely contacted the Centre (less than 1 %). For 2011, professionals who knew the child contacted the Centre for advice were 56.4 % of all the contacts for advice, and 43.5 % of the contacts were made by nonprofessional persons who knew the child and/or parents (e.g. family members, friends, neighbours). Also from the 2011 data set,6 more than 47 % of the cases for which the Centre was contacted were cases of physical, emotional or pedagogical neglect, 17 % were cases of physical abuse or violence and in 22 % of the cases the child was a witness of violence in the family. Only 2.2 % were cases of sexual abuse. To continue, in 7 % of the cases referred for further investigation, there was no child abuse, in 11.7 % child abuse could not be corroborated and child abuse was stopped in 7.8 % of the cases. After investigation, 60 % of the contacts were referred to existing social or children’s care services, along with 12.5 % referred to the Council for child protection for an assessment of the need to file a petition for a measure of child protection required of the family by a juvenile court/judge.7

From these data, the following can be concluded. As has been found in countries other than the Netherlands, most cases reported are not about abuse, but various forms of neglect. The “system” is not exclusively meant for reporting cases for further investigation by a Centre staff. Around 70 % of all the contacts were for the purpose of advice, whereas only 30 % of cases resulted in investigations. This is a significant difference compared to the traditional reporting practices under the reporting laws of some countries. Recent estimates are that around 118,000 children annually are victims of abuse and neglect in the Netherlands. The Dutch reporting system covers almost 60 % of these cases. More needs to be done to provide all these victims with the necessary protection. This brings us to the question whether the Netherlands needs to introduce mandatory reporting of child abuse and neglect by everyone.

This question has been repeatedly discussed, but recently the government decided not to introduce a mandatory reporting by law. Instead of a reporting law for everyone the government decided to make it mandatory for professionals working in indicated services and institutions and for individual professionals to establish a Reporting Protocol covering both domestic violence and child abuse and to act in accordance with this protocol.8 The protocol is not meant to make reporting as such mandatory. It sets rules for handling cases of (suspected) child abuse in a step-by-step process (see hereafter) in which reporting can be the last step depending on the seriousness of the abuse and possibilities to provide the necessary support.

This decision was based on a survey of the literature on mandatory reporting from which the government concluded9:



  • That the implementation of mandatory reporting passes over the autonomy of the victim. The professional cannot make an assessment but has to report immediately without consultation with the victim or her/his parents. It deprives the victim, who has approached the professional for help and empowerment, of the possibility to make choices.


  • That the pressure of the law to report leaves the professional with the feeling that he loses the possibility to carefully assess which steps are necessary in the interest and for the protection of the victim.


  • That the introduction of mandatory reporting has negative consequences, such as overburdening of the system and unnecessary and stigmatising investigations without clear benefits with a view to the help and protection of the child and the family.

In addition, the government felt that the protocol should be mandatory because, despite various efforts to encourage the introduction of reporting protocols for all professionals, in 2010 only 40 % of the professionals working in inter alia education, health care, welfare and sports and in youth care were using a reporting protocol.10 The overall goal of the introduction of the obligation to have and act in accordance with the reporting protocol (meldcode) is not primarily to increase the number of reported cases but to provide more quickly and more adequate help in cases where there is a reason to believe that domestic violence or child abuse takes place.

In order to support the relevant services and institutions in developing their reporting protocol, the government shall issue a regulation containing the minimum elements of such protocol. The following steps have to be included in the protocol:

1.

Mapping all the information which indicates that child abuse or domestic violence may take place, including information which may contradict the suspicion that violence or abuse occurred.

 

2.

Consultation with colleagues and the centre for domestic violence and the Centre for advice and reporting child abuse for an interpretation of the available information.

 

3.

A meeting with the client (can be an adult victim of violence or the child victim and her/his parents) to discuss the available information (facts and observations) with the invitation for the client to react to this information. In cases of child abuse, the professional should talk with the child, except when that is not possible, e.g. in case of very young children. Also a meeting with the parent(s) should take place, regardless whether they are the possible perpetrator(s).

All this will be followed by an interpretation of all the information, including the client’s reactions and conclusion: if the suspicion is unfounded, the case will be closed; if the suspicion is confirmed, the next steps should be taken.

 

4.

Assess the nature and the seriousness of the abuse or violence (using risk-taxation instruments if appropriate). Consult with experts and/or the centres for domestic violence and the Centre for advice and reporting of child abuse. On the basis of this assessment, the professional must then? take step 5.

 

5.

The professional has to decide whether he can organise the necessary support and protection for the victim and her/his family. This would include monitoring the effects of the victim’s activities and leading to a referral of the case to one of the centres if the violence or abuse does not stop. Alternatively, he must refer the case to one of the centres mentioned before, again depending on the nature of the case. Based on all the information provided by the professional, the Centre will undertake measures for organising the most appropriate support, services and protection.

 

From the steps to be included in the reporting protocol, it can be concluded that the focus is not on reporting as such but shows that in the best consultation possible with colleagues and experts and after meeting with the victim and her/his parents in case of child abuse, the professional’s first choice should be to provide and/or organise adequate support and protection and that the reporting to one of the designated centres is the last option. It will be critical to evaluate (after 2 or 3 years) whether this system of reporting protocols does indeed provide the child victim more speedily and with more adequate and effective support and protection.

Finally from a conceptual point of view, it is interesting that the system of reporting protocols covers both domestic violence and child abuse.11 Required reporting of domestic violence has rarely been pursued in other countries.

Summing up the identification and reporting of the (worst) forms of child abuse and neglect in the family setting and in other care settings like foster care, residential care and schools can be based on relatively clear international rules of children’s rights. But there does not have to be one fixed model. States parties to the CRC have considerable freedom to organise good quality identification and reporting practices. Although the CRC Committee is in favour of mandatory reporting, at least for professionals working directly with children, there are States parties which developed a system of non-mandatory reporting. One approach is not necessarily better than another because the critical indicator is the existence of safe, well-publicised, confidential and accessible support mechanisms for children, their representatives and others to report violence against children (GC No. 13, para 45 and Pinheiro 2006, Overarching Recommendation 8). As explained above with regard to the Dutch approach, such reporting is possible thanks to the existence of the Centres for advice and reporting of child abuse but is not the first and immediate reaction. Such reaction is not required by the Dutch law.


Identification and Reporting of Economic and Sexual Exploitation of Children Outside the Family


Economic, sexual and other forms of exploitation of children are recognised, amongst others, by the Special Representative of the UN Secretary General on Violence against Children as serious violations of the right of the child to protection.12 The seriousness of these violations is confirmed by specific international and regional human rights instruments, such as the ILO conventions 138 and 182,13 the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography, the African Charter on the rights and welfare of the child14 and the European on the protection of children against sexual exploitation and sexual abuse, also known as the Lanzarote Convention.15

This chapter focuses on the identification of victims. But to avoid misunderstanding, the protection of children from these forms of exploitation starts with the implementation of an intensive and effective prevention policy that addresses the root causes of this violation of the rights of the child. Within international documents, one can find specific provisions requiring measures of prevention from economic exploitation (see, e.g. art. 7 ILO 182 and para. 2 ILO R146 and para. 2 ILO R190) and from sexual exploitation (see, e.g. art. 9 OPSC and art. 4–9 of the Lanzarote Convention). Actions aiming at prevention of exploitation of children include awareness raising campaigns, and programmes to reduce poverty and to promote education.16

In the following paragraphs, the focus will be on the international human rights instruments.17 These instruments do not contain specific provisions on the identification of children who are potential victims of economic or sexual exploitation.

It means that with regard to the protection of children against these forms of exploitation, one will not find extensive discussions on mandatory or non-mandatory reporting. There are other and different ways to identify these children, either in the context of a monitoring system and/or through activities of non-governmental organisations.


Identification and Reporting of Economic Exploitation of Children


The right of the child to protection from economic exploitation can be found in article 32 CRC and in the ILO Convention 138 concerning Minimum Age for Admission to Employment (Minimum Age Convention 1973) and the ILO Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst forms of Child Labour (Worst forms of Child Labour Convention 1999). The key provisions in these documents for the protection of the child to be implemented by States parties are the following:



  • Set a minimum age for admission to employment or work (art. 32 CRC) which shall not be less than the age of completion of compulsory schooling and in any case not less than 15 years (ILO 138, art. 2).18


  • Take, as a matter of urgency, immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour. In this context, a child is a person under the age of 18. More specifically, States shall take effective and time-bound measures to, inter alia (ILO 182, art. 7):


  • Prevent the engagement of children in the worst forms of child labour.


  • Provide direct assistance for the removal of children from the worst forms of child labour and for the rehabilitation and social integration.


  • Ensure access to free basic education or vocational training for all children removed from the worst forms of child labour.


  • Identify and reach out to children at special risk and take account of the special situation of girls.


  • The worst forms of child labour are defined in article 3 ILO 182 and include amongst others all forms of slavery or practices similar to slavery such as the sale and trafficking of children, debt bondage, serfdom and forced or compulsory labour and recruitment of children for the use in armed conflict, the use, procuring or offering of a child for prostitution, for the production of pornography and for the production and trafficking of drugs and other forms of work likely to harm the health, safety and morals of children.

Linked to each of these ILO Conventions are recommendations for their implementation.19 They include inter alia measures for enforcement, e.g. the strengthening of labour inspection and related services, for instance, by special training of inspectors to detect abuses in the employment or work of children and young persons and to correct such abuses (R146, art. 14) and regarding the elimination of the worst forms of child labour to cooperate with international efforts, for example, by detecting and prosecuting those involved in the sale and trafficking of children or in the use, procuring and offering children for prostitution and pornography (R190, art. 10).

There are more and other recommendations, but from both Conventions and the related recommendations, it has to be concluded that the attention for identification, reporting and referral is very limited.

The most important international body for the implementation of these standards is the ILO Programme on the Elimination of Child Labour (ILO-IPEC). It was established in 1991 thanks to a grant of the German government of 50 million Deutsch marks. It operates in 88 countries and is carrying out many projects in close collaboration with governments, trade unions, employers association and other civil society organisations.20


Child Work, Child Labour: Debates and Figures


Child labour is not a social problem limited to the present. Attention to child labour emerged in the nineteenth century and was closely linked to the introduction of compulsory education as an instrument in reducing the number of economically exploited children (Heywood 2009; Hendrick 2009; Stearns 2009; Fyfe 2009). It goes beyond the purpose of this chapter to present the history of the fight against child labour. But it should be noted that also today education is still seen as an important instrument in reducing child labour. In 2008 the ILO International Programme for the Elimination of Child Labour (hereafter: ILO-IPEC) launched a major new project aimed at tackling child labour through education (TACKLE). The overall objective of this project is to contribute to poverty reduction by providing equitable access to basic education and skills development of children in or at risk of being involved in child labour.21

In the debates regarding the elimination of child labour, one group of experts questions the ILO approach of eliminating child labour and emphasises the importance of work in the daily life of children and their families. In their view, it is better to regulate existing child work than to invest only in the elimination of child labour (Bourdillon et al. 2011). Others argue that these views deal with child work that is not hazardous or otherwise harmful for the child’s development or is not interfering with the child’s education (art. 32 CRC). In other words, the labour referred to by the first group is not the type of work that the ILO Conventions 138 and 182 want to eliminate (Lieten 2011, ch. 1.). It is beyond the scope of this chapter to elaborate more on the differences between the so-called regulators (or “regulacionistas”) and the eradicators (or “erradicacionistas”). But it should be kept in mind that figures on child labour do not include data on permitted forms of child work and that not all child work even for children below the age of 15 is prohibited. Children age 15 and above who have the right to work can be engaged in the worst forms of child labour.

Children do a variety of work under very different circumstances and conditions. It is a continuum with at the one hand work that can be considered as beneficial, promoting capacities and a sense of responsibility without interfering with schooling and leisure. On the other hand, there exists work done by children that is or becomes harmful, hazardous and exploitative (Lieten 2011

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