The Obligation to Protect Children from Violence
Paulo Sérgio Pinheiro
Independent Expert for the United Nations Study on Violence against Children
«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 or 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».
Article 19 ot the Convention on the Rights of the Child could not be clearer: States parties must ensure the protection of children, while in the care of individuals or institutions, from all forms of violence while in the care of individuals or institutions. No violence can be excused. The Convention reinforces what was already made clear by the various international human rights treaties that have developed from the Universal Declaration of Human Rights. Beyond establishing the need for full respect for the physical and personal integrity, article 19 recognizes the particular vulnerability of children to violence and the consequent need for strengthened measures for their protection.
The Committee on the Rights of the Child has consistently identified violence against children as a central concern. In 2000 and 2001, the Committee devoted two days of general discussion to the problems of State violence against children and to violence in the family and in the school. Through different debates, it was always clear that despite the wide recognition of the obligation to protect children from violence, children of all ages continued to be vulnerable to violence in all regions of the world.
Inspired by the ground-breaking experience of the United Nations Secretary-General’s Study on the impact of armed conflict on children, the Committee recommended that the Secretary-General be requested to conduct an in-depth international study on violence against children. This request was endorsed by both the General Assembly and the Commission of Human Rights, and in 2003 I had the honour of being appointed as the Independent Expert to lead the United Nations Secretary-General’s Study on Violence against Children – the first global study on all forms of violence affecting children.
Developing the Study
The scope of the Study was determined by the Convention – it dealt with all forms of violence affecting all children up to the age of eighteen years, with the exception of violence in situations of conflict since a UN mandate on children in armed conflict was already in operation. The definition of violence used was that in article 19 of the Convention, and also draws on the definition in the World Report on Violence and Health (2002): the intentional use of physical force or power, threatened or actual, against a child, by an individual or group, that either results in or has a high likelihood of resulting in actual or potential harm to the child’s health, survival, development or dignity.
The preparation of such a Study, with global scope and covering so many issues, evolved through a truly participatory process. With the enthusiastic support of Governments, UN entities, and NGOs, the Study managed to engage a large network of individuals and organizations in a number of activities that included regional, sub-regional and national consultations, expert thematic meetings and field visits. In March 2004, a detailed questionnaire was sent to Governments asking them to report on their approaches to violence against children. One hundred and thirty-six countries responded to the request providing a unique picture on the current approaches this issue. To ensure a thorough understanding of the issue, the Study also made a comprehensive effort to combine in its analysis the knowledge of professionals with different expertise and from various sectors, from lawyers to public health experts, from social workers to educators.
Another important element in this challenging process was the participation of children and young people. Particular efforts were made with the support of non-governmental organizations to ensure that children and young people exercised their right to be heard and had their views respected throughout a process which would address issues so relevant to their lives.
This challenging and participatory process was designed to gather existing knowledge and experience in the field of violence against children – to gather the reflections of all regions of the world on the many facets of the problem, and bring to light many promising and proven practices to confront this problem within a truly global framework. The process sought to capitalize on its potential to make the key message of the Study a reality: No violence against children is justifiable – All violence is preventable.
The Study findings and recommendations
The Study confirmed that although being one of the most clearly condemned forms of violence, violence against children is invisible and prevalent. Violence against children remains unregistered and unpunished, being sometimes even condoned by society under the guise of discipline or tradition. The inadequacy of justice and security systems, and the pretexts of privacy or of an incontestable adult authority over children are used by perpetrators as shields. They keep violence against children insulated through walls of silence.
The Study indicates that violence against children takes a variety of forms and is influenced by a wide range of factors, from the personal characteristics of the victim and perpetrator to their social, cultural, and physical environments. Economic development, social status, age, sex and gender are among the many factors associated with the risk of violence. Although the consequences of violence vary according to its nature and severity, the short- and long-term repercussions are very often grave and damaging.
The Study makes 12 overarching recommendations to strengthen the protection of children from violence. These focus on Government responsibility to ensure that a very wide range of sectors relevant to the various forms and settings in which it occurs act to prevent and respond to this issue. They also encourage actions with other partners. Many of the recommendations have been heard before, but never before have the various sectors and issues relevant to violence been brought together in a unifying framework for action.
As it is clearly stated in international jurisprudence, the Study urges the establishment of an explicit foundation and framework of law and policy in which all forms of violence against children in all settings, including all harmful traditional practices, all sexual violence and all corporal punishment are prohibited. Laws certainly do not guarantee immediate change, but without an adequate legal framework change is unlikely to happen.
As States have the duty to prevent and respond to violence, the Study appeals to them to strengthen national commitment and action through continued and coordinated strategies. Effective policies must integrate different Government sectors, must be systematic and based on human-rights principles. Long-term and sustainable effects are only attainable with adequate integration of these policies into national planning processes and budgets.
The Study also emphasizes investment in prevention as the most effective use of resources to reduce violence against children. While there is a wealth of information on the risk factors associated with preventing violence, very little is done to address them. Violence is so frequently addressed through reactive and repressive measures to the detriment of long term policies addressing root causes.
Where violence occurs, early detection mechanisms must be
in place and victims provided with necessary assistance. Child victims must receive sensitive, integrated, and high-quality legal, health and social services, focused on recovery, rehabilitation and reintegration. Accessible and child-friendly protection systems and services are essential. Successful experiences of simple, accessible, and well-publicized avenues for children or their representatives to report violence, wherever it occurs need to be replicated more widely.
The Study process has also demonstrated that, we must recognize and respect children as partners. If we really want to build child- sensitive policies, we must create and support mechanisms and structures to ensure the full participation of children in all aspects of prevention and response in accordance with their best interests.
We must also improve our overall understanding of this hidden problem and how to prevent and most effectively respond to it. This is only possible through systematic data collection and research. Without comparable and reliable data, the impact of the measures taken can not be interpreted or assessed. Without universal birth registration or credible data on mortality causes it is impossible to promote solid policies to address violence. Strengthened capacity to monitor and analyze situation where violence occurs can and should be used to inform and improve programmes.
The way forward
One year after the Study was released there are indications that the global awareness of the plight of child victims of violence has been heightened. International, regional and national organizations acknowledge the prevalence of the problem and reaffirm commitments to eliminate it. A central challenge is to convert the different recommendations proposed by the Study into practical strategies which are relevant to the diverse realities that exist around the world.
Before this Study, international efforts had already put attention to issues such as the involvement of children in armed conflict, trafficking or the sexual exploitation of children on the agenda. By broadening the focus to violence generally the Study has highlighted issues all too frequently absent from international discussions on child rights. This includes the situation of children in their own homes, in schools or in care and justice systems purportedly responsible for their well-being. The Study also made clear that action is needed in rich and poor nations alike.
Success or failure in the elimination of violence against children will depend on whether coherent and sustained approach to this problem can be developed in all contexts around the world. Perhaps the main contribution of this UN Study was to create a multi-disciplinary framework and approach, combining the expertise of all relevant actors to prevent and respond to violence. Both at international and national levels it is essential to ensure continued high level attention and coordination while addressing the diversity of issues presented by the UN Study on Violence against Children .
After the conclusion of the Study, after years of accumulated recommendations by the Committee on the Rights of the Child, and numerous additional international efforts, it is not possible to ignore the need to urgently and seriously invest in the protection of children from violence. It is not possible to continue to ignore the fact that violence is condoned in many places in contradiction to basic human rights principles. The available mechanisms and strategies are not adequately implemented to change the patterns that allow so much violence to happen. There can be no excuses for inaction. The international community may not fail to address so serious a problem. The world’s children are watching and can wait no longer.
«The Rights of the Child – Much More than Charity»
Council of Europe Commissioner for Human Rights
Clear progress has been made since the United Nations Convention on the Rights of the Child was adopted in 1989. The initial mobilization for the Convention was a stunning success, no doubt largely due to the goodwill traditionally associated with efforts on behalf of children.
As a result, children’s rights are now on the political agenda, both internationally and in a number of countries. Unprecedented attention is being paid to children’s rights issues such as child labour, child abuse and children in armed conflict.
Yet, actual implementation of the Convention has been far less effective than we had hoped. Different factors have contributed to the delays and shortcomings in different countries, but the fundamental cause is always the same: the absence of a systematic, comprehensive approach to children’s rights as a political priority.
Although children make up a large portion of the population and constitute the future of society (in more than one sense), their concerns are seldom given top priority in politics. Ministers responsible for children’s affairs tend to be junior and stand outside the inner circle of power. When political issues are divided into «soft» and «hard», those relating to children are dealt with as «soft-soft». Often these issues are seen as non-political and sometimes simply trivial. The image of politicians on the campaign trail kissing babies is symbolic of this trivialization.
Gestures are not enough to meet the requirements of the Convention; what is needed is serious political discussion leading to real change. Improvement of the status and conditions of children is of course the very purpose of the Convention. With ratification, a State has committed itself to respect the principles and provisions of the Convention and to transform them into reality for all children. One reason why implementation has been delayed might be that the decision-makers have not fully understood or accepted the obligations stemming from the Convention. They may not always have made the distinction between charity and a rights-based approach.
Children in need (as well as persons with disabilities) have for long been the favourite objects of charity. They have been given support not as a matter of right but because people have felt pity for them. This is one of the attitudes that the Convention challenges.
The Convention sees the child as a subject. He or she has the right to schooling, health care and an adequate standard of living but also to be heard and have his or her views respected. This goes as much for the cute toddler as for the problematic teenager.
The very notion that children have rights is a radical position; totally alien to conservative views that children are given their rights only on their 18th birthday and that thir parents have those rights before that date.
The Convention is, of course, family friendly and stresses the paramount importance of parents for the upbringing of children – but it does recognize at the same time that children are individuals with their own needs and opinions and that these should be respected.
In principle, there is no contradiction between the interests of the parents and those of the children – children need a positive family environment. There are, however, extreme situations when authorities have a duty to intervene to protect the life and well- being of a child under threat from the very person(s) who should be his or her security. To construct an artificial conflict in the public discourse between parental rights and children’s rights is therefore a reactionary position that could be, and sometimes is, used as a justification for repressing children.
The Convention is clear that parents and other guardians cannot do whatever they like to the children. They are not allowed to beat up or use other methods of physical or psychological violence against children as a means of punishment or to «teach» them a certain behavior. Adults are protected against such ill-treatment; of course children should be as well. Only zero-tolerance is acceptable.
A majority of States have still not legislated against corporal punishment of children. It is as if decision-makers hesitate to give children the full protection against adult violence. Typically, the response to the quest for abolition of corporal punishment is that there is first a need to educate parents and teachers about «alternative means» of upbringing. Negotiation is seen as more difficult than using muscular power.
That leads us to the next challenging consequence of the rights- based approach to the relationship between adults and children: that children have a right to express opinions and to be listened to. That the views of children should be respected is one of the general principles of the Convention and would, if implemented, have far-reaching implications.
This principle requires that the schools be made more democratic, but also that there would be forums for child participation in local, regional and national politics. Very little has happened in this area, in spite of the fact that experiments have had positive outcomes. When young people are invited to take part in official meetings, the reaction is often that this made the discussion more real, relevant and rich. Some of the children’s ombudsmen have organized a system of consultation with children via the internet which has demonstrated the potential for participatory channels which are more than tokenism.
The Convention gives children the right to take part and be heard, in other words to have an influence. This is not a zero sum game; the generations do not stand against one another. Indeed, the adult society needs the guidance from those who belong to the future – and in several respects seem to understand it better.
Opponents to children’s rights state that these must be balanced with duties. Of course, children have duties and responsibilities, and so they should. Generally children all over the world are under heavy pressure within the family, in school and from their peers to fulfill certain responsibilities. In most cases, there is no need to increase that burden. Behind the argument on children’s duties lurks the notion that children’s rights should be conditioned by their having formal duties, imposed by law or otherwise. Such conditionality is not part of any international human rights convention. The argument is, in fact, a frontal attack against the whole concept of children’s rights, and should be approached accordingly.
Another objection to children’s rights is that implementation is too costly. Clearly, poor countries have a problem here, but even in the more affluent societies, priorities must be determined when budgets are to be adopted. The Convention allows for a gradual, progressive implementation of provisions which require heavy financial and human resources. The Convention also promotes international cooperation for the benefit of children in poor countries. One principle remains fixed, however, and that is that States should give priority to children, allocating the maximum extent of available resources to the fulfillment of their rights.
It is not immediately evident how to balance the resource needs of children with other important demands, such as general social welfare and support to older people or other vulnerable adult groups. This is where the process approach of the Convention becomes particularly useful, especially such aspects as the emphasis on the principle of the best interests of the child and the use of child impact analyses.
Since the Convention was adopted and entered into force very little progress has been made in the combat against child poverty. Indeed, this problem has worsened in large parts of the world, including in a number of more affluent States. Growing inequalities have victimized children even more than other population groups. This is one of the greatest disappointments and an obvious violation of the rights of the child.
An obstacle to child-friendly politics is probably the fact that many powerful politicians have grown children and have forgotten the urgency of certain children’s issues. The kind of lives they lead also isolates them from children’s everyday reality. Their distance from children can favour stereotyping and prejudices; teenagers in particular are sometimes portrayed in political debates as if they were creatures from another planet.
An additional obstacle is that many parents work long hours and have little time or opportunity to present their views. Moreover, social attitudes often exclude women from the public or political arena; the gender gap in top political positions contributes to depriving children of a strong and knowledgeable voice where it could matter the most.
However, there are counterweights in the political debate – many of them in civil society – and they do use the Convention as an instrument in their lobbying.
What are the strategic priorities in the lobbying to ensure that children’s rights are taken seriously?
- Some countries have developed a national strategy for
the rights of the child. Such a strategy could of course incorporate plans to implement the 2002 UN Plan of Action adopted at the General Assembly Special Session and the recommendations of follow-up meeting 2007.
- The laws could be reviewed in order to correspond properly
to the rights of the child. Some countries have introduced the principle of the best interests of the child as a major dimension of the laws on, for instance, family matters and asylum procedures. Other law-making work has been undertaken on adoption, sexual abuse, domestic violence and juvenile justice.
- The functioning of the political and administrative system affects the implementation. Ministries should of course be coordinated in order to secure that all Government programmes are in uenced by a child rights approach. Also, local Governments are obliged to respect international and European standards on human rights. The vertical coordination between national and local authorities is important for the effective implementation. Likewise, Governments ought to relate constructively with NGOs working for, and with, children.
- Children should be a major consideration in the budget process. Child impact analyses are strategic tools. Relevant statistical and other data ought to be assembled in disaggregated form and compared to indicators in order to facilitate problem detection.
- Effective monitoring should be part of the national strategy. Many countries now have an ombudsman for children or
have decided that the general ombudsman should include
the monitoring of child rights in his/her mandate. However we organize monitoring, a priority must be the situation of children at risk or in other difficult circumstances; for instance, those in poor families, children with disabilities, migrant children and those belonging to minority groups.
The struggle for the rights of children have been both helped and undermined by the general goodwill surrounding the work for children. It was relatively easy to obtain agreements on these rights – few politicians wanted to oppose suggestions relating to children. The objections came when the new standards were to be enforced. Many politicians were just not prepared. Lip service no longer worked. The obligations coming with the Convention required attitude change and different priorities.
They will come.