Child Welfare and Children’s Rights Throughout the World

1. Child Welfare and Children’s Rights Throughout the World Lessons to be learned from comparative national analyses Howard Davidson Director, ABA Center on Children and the Law 202/662-1740 davidsonha@staff.abanet.org

2. If you want to be successful in a particular field of endeavor, I think perseverance is one of the key qualities. It's very important that you find something that you care about, that you have a deep passion for, because you're going to have to devote a lot of your life to it. -- George Lucas

4. Child Maltreatment Interventions 2006 IPSCAN “World Perspectives on Child Abuse” • Notable variations found on: a) How governments handle physical discipline of children and religious exceptions to provision of medical care; b) Availability of services and mandates for (right to) treatment; and c) Adequacy of services to parents, especially mental health interventions

5. Two government policies found to correlate with under five child mortality reduction: 1) having a child abuse registry; 2) having specific time frames for responding to abuse reports • Many other countries clearly include within scope of “child abuse/neglect” prostituted children and children living on the streets • Not clear from this international survey what countries are doing to better address the “institutional abuse of children”

6. Independent Child Representation and Advocacy • Jean Koh Peters: Representing Children Worldwide (2005)-- www.law.yale.edu/rcw • CRC Article 12 implementation examined: 1) Child must be “heard” directly according to the law 2) Child must be heard “through a representative” according to the law 3) Law addressing “child protective proceedings”

7. Summary of Findings • Mandatory to hear from child directly 18 countries in Americas, not U.S. (about ½); 33 in Europe (about 1/2); 10 in Africa (about 1/5); 9 from Asia and Oceania (about 1/8) • Must hear child through representative 8 countries in Americas (note U.S. listed as “child’s views unrepresented” (about 1/5); 11 in Europe (about 1/4); 2 in Africa (out of 53 countries); 2 in Asia/Oceania (out of 63 countries)

8. No Formal Child Protective Proceedings 1 country in Americas (Barbados); 1 in Europe (Holy See); 10 in Africa (1/5); 14 in Asia and Oceania (1/4) • U.S. Findings No 2 of 56 jurisdictions have identical representation systems; 39 assure child’s wishes heard; 17 have no requirement for child’s viewpoint to be expressed/advocated. Majority have BIOC representation (and in only 5 is it an option rather than mandate)

9. Where Does U.S. Lag Behind on CRC Provisions? • Todres, Wojcik, and Revaz, “The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification,” Transnational Publishers (2006) • Art. 12 implementation (notes child’s voice/legal representation) gaps • The corporal punishment problem • Life without parole (LWOP) for juveniles still allowed

10. Barbara Woodhouse (Univ. of FL Law) notes 3 areas where children’s rights have yet to be clarified in the U.S. 1) Extent of protection for children’s rights to relationships with parents, extended family, and other adults (Howard would add: siblings) 2) Extent of children’s constitutional right to an attorney in custody and child protective cases 3) Extent of children’s rights to protection from abuse and neglect

11. Merle Weiner (Univ. of OR Law) says CRC ratification might help U.S. get-- 1) Universal health care as child’s right 2) More effective policies addressing child hunger and homelessness, and reduction of child poverty 3) Policy that criminalizes corporal punishment of children or removal of parental immunities in tort law for these acts 4) Policy requiring separation of all children from ever being in criminal facilities with adults

12. Dan Skoler (former leader of ABA CRC Working Group) and Jonathan Todres (NYU Law) add that: -- U.S. would be bound to reduce child and infant mortality and provide pre-natal and post-natal health care for expectant mothers, and to ensure that children receive necessary medical assistance and health care (“enjoyment of the highest attainable standards of health”) through a “health rights” concept

13. Attorney Elisabeth Mason (advisor to Atlantic Philanthropies) says CRC would: -- Require changes in U.S. law to assure children are heard in: 1) cases involving family restructuring stemming from divorce or dissolution of a de facto parental relationship, and abuse/neglect cases; 2) proceedings within the educational environment; and 3) decisions regarding the medical treatment of minors

14. Maya Grosz (N.Y. Univ. Law) sees Art. 20 requirement of due regard to a child’s ethnic, religious, cultural, and linguistic background when determining foster or adoptive placements as potentially inconsistent with current U.S. federal Multi-Ethnic Placement Act law -- MEPA: placements cannot be denied or delayed due to the race, color, or national origin of the child or family • Attorney Catherine Taylor sees Art. 27 requiring U.S. actions to ensure adequate standard of living for children

15. OPTIONAL PROTOCOL TO CRC On Child Sexual Exploitation Article 8 1. Governments shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the Protocol at all stages of the criminal justice process by:  (a) Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witnesses

16. (b) Informing child victims of their rights, their role and the scope, timing and progress proceedings and the disposition of their cases (c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with procedural rules of national law  (d) Providing appropriate support services to child victims throughout the legal process

17. (e) Protecting, as appropriate, the privacy & identity of child victims and taking measures in accordance with law to avoid inappropriate dissemination of information that could lead to identification of child victims  (f) Providing, in appropriate cases, for the safety of child victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation

18. (g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims 2. Governments shall ensure that uncertainty as to actual age of the victim shall not prevent initiation of criminal investigations, including investigations aimed at establishing the age of the victim

19. 3. States Parties shall ensure that, in the treatment by the criminal justice system of children who are victims of the offences described in the present Protocol, the best interest of the child shall be a primary consideration 4. States Parties shall take measures to ensure appropriate training, in particular legal and psychological training, for the persons who work with victims of the offences prohibited under the present Protocol

20. 5. States Parties shall, in appropriate cases, adopt measures in order to protect the safety and integrity of those persons and/or organizations involved in the prevention and/or protection and rehabilitation of victims of such offences 6. Nothing in the present article shall be construed to be prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial

21. Proposed: A New International Network of Attorneys for Children • Find funding to network: Key national bar activists involved in child/youth issues; full-time frontline child law practitioners; law professor children’s law scholars; key child protection/child welfare lawyers within governments; child NGO lawyers; other lawyers/judges/law students • Conferences; e-mail list; newsletter; website