RIGHTS OF THE CHILDREN

1. FEM 4123 CHILD AND FAMILY ADVOCACY RIGHTS OF THE CHILDREN

2. Define Rights Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states. Basic things needed to live well and prosper in the community. The law protects the rights of adults and children. The international body that sets the fundamental rights that can be enjoyed by everyone - the United Nations. Malaysia - Part II, Articles 5-13 of the Federal Constitution.

3. Examples: Article 5 – Liberty of the Person, Article8 – Equality, Article10 – freedom of speech, assembly, and association, Article12 – Rights in respect of education.

4. Children's rights in law is a global issue. Children are a special social group in society and they need proper care and attention. Why should we care and give attention? Minors. Immature. There should be a formal mechanism toensure rights reserved.

5. Who are the children? Article 1 of the Convention on the Rights of the Child (CRC) 1989, PBB: “…a child means every human being below the age of eighteen years UNLESS under the law applicable to the child, majority is attained earlier.” “UNLESS”clarifies that the definition of a child can differ from one law to another or from a country to another – local scenario. Section 2 Child Act 2001 also has similar provision. Muslim– individuals who have not reached puberty. Maturity is a criteria that determines a child or an adult.

6. Children’s Rights in Roman Law Roman law through the concept of patria potestas recognize the father as head of the family (paterfamilias). Father has full power over the lives of their children. Only parents are allowed to have any real estate and the children are parents’ rights too. Children like commodities or a slave to his father. Be evicted, sold or dealt with according to the importance of family.

7. Children’s Rights in Common Law The law recognizes the children of legal marriage as the responsibility of parents. Father of the child is entitled to the legal custody until the child reaches the age of 21. Father is responsible for providing education, determine religion and welfare of children.

8. “The father had natural right to the custody of his children. The mother was not entitled to have any control over them, she was entitled only to their reverence and respect”,Blackstone. His duty to protect carried with it the correlative right to the custody of all minor children. This right is absolute even against the mother. R v. De Manneville (1804) 5 East 221– Force action by a father to take his son, aged 8 months while being fed by the mother, was determined as valid by the court. Physical control represented the kernel of this right.

9. Equity Intervention Equity intervention caused the father no longer has a right over the children. Intervention is based on the power of the King as parenspatriea(the state as parent) who can intervene to protect people who are not sui juris. Equity will not hesitate to withdraw the right of the father to the child, if the parents intend to do something that is contrary to the welfare of the children involved.

10. Lord Usher MR in R v. Gyngall [1893] 2 QB 232, “The court is place in a position…to act as supreme parent of the child, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child…”.

11. Main consideration: best interest of the children. Points to ponder: The doctrine can be interpreted as allowing government interests to replace interests children may wish to express on their own behalf. Assumes that what the government wants matches what the child need, which may or may not be true.

12. Development During the 19th Century In the 19th century, England's parliament approved a statute that gave custody to the mother. Talfourd's Act 1839 - the court may give custody to the mother until the child reaches the age of 7 years and a right of access until the children reach 21 years of age. Custody of Infant Act of 1873 - the court may give custody to the mother until the child reach 21 years old.

13. In Austin v Austin (1865) 55 ER 634, per Sir John Rommily, “…no thing and no person, and no combination of them can, in my opinion with regard to a child of tender years, supply the place of a mother, and the welfare of the child is so intimately connected with its being under the care of the mother, that no extent of kindness on the part of any person can supply that place”.

14. Development in 20th Century Guardianship of Infants Act 1925 - Equal Rights between father and mother. The new gender-neutral best interest doctrine. According to a psychological perspective, the role of parents can be played by anyone who qualifies, including biological parents or adoptive parents - those who love the child.

15. Role as a parent can not be given to adult individuals who neglects even if the individual is a parent to child. Case in point: Wellesly v. Wellesly (1827), parents with inappropriate behavior (scandalous) are not eligible to take care of her children.

16. Children’s Rights: International Scenario Declaration of Rights of the Child in 1924 (Declaration of Geneva) was the starting point for the recognition of children's rights globally. Adopted by the League of Nations. Article 1 :The child must be given the means requisite for its normal development both materially and spiritually.

17. Article 2 : The child that is hungry must be fed; the child that is sick must be helped; the child that is backward must be reclaimed; and the orphan and the waif must be sheltered and secured. • Rights tend to be of two general types: • Rights of empowerment – those advocating for children as autonomous persons under the law. • Rights to protection - those placing a claim on society for protection from harms perpetrated on children because of their dependency.

18. CONCLUSION • Children’s rights law is defined as the point where the law intersects with a child’s life that includes: • Juvenile delinquency. • Due process for children involved in criminal justice system. • Appropriate representation and effective rehabilitative services. • Care and protection for children in state care. • Ensuring education for all children regardless of their origin, race, gender, disabilities pr abilities. • Health care and advocacy.

19. How the society defines and provides children’s right has implications for many areas. For eg.: • How children are represented by attorneys. • How resources are distributed- eg., in a family experiencing divorce. • How long some children will live in abusive situations or foster care. • How the role of family is viewed.

20. LEGAL & POLICY FOR CHILD PROTECTION: MALAYSIA • Malaysia has made significant progress in establishing a legal & policy framework for a functioning child protection system: • Child Act 2001 • The Evidence of Child Witnesses Act/ AktaKeteranganSaksiKanak-Kanak 2007 ( as a response for child victims of abuse, neglect & exploitation). • National Policy for Children • National Child Protection Policy

21. WHY CHILDREN NEED PROTECTION? • 39.2% or 11.1 millions children in Malaysia from total 28.3 millions Malaysian population. • Child – age below 18 years old. • They are easily influenced especially by bad environment. They need guidance and education. • PDRM statistics show that cases of physical abuse, outrage of decency and child rape increase annually from 2,236 cases in 2005 to 5,744 in 2008. • The sexual abuse case (2013 - July 2016) amounted to 10,575 cases. More cases are not reported to the police. The cases of missing children are also of great concerns where the number of cases reported in 2008 is 982 cases and of that total, 500 cases still missing. Statistics in 2011 - November 2015, total case 9781. 9122 have been found, another 659 are still missing.

22. Prevalence of abuse and neglect cases • Abuse, neglect and exploitation committed by parents • Abuse perpetrated by child care providers, teachers and religious leaders • Neglected/exploited child asylum-seekers, refuges and undocumented children do not get access to the care and medical treatment • High incidence of statutory rape

23. CHILD ACT 2001 (AMENDED 2016)

24. INTRO Child laws existed since 1947- Child & Young Persons Act, Juvenile Court Act; Women & Girls Protection Act 1973 and Child Protection Act 1991. However, all have been repealed and replaced with Child Act 2001. Child-Act-2001.pdf

25. Key Elements of Child Act 2001 • Co-ordinating Council for the Protection of Children • Appointment of Child Protector • Courts for Children (MahkamahBagi Kanak-Kanak) • Institutions for children (places of safety, places of refuge; place of detention; probation hostels; approved schools; henry gurney schools). • Responsibilities of parents

26. Categories of Children under Child Act 2001 • Children in need of care and protection • Children in need of protection and rehabilitation • Children beyond control • Children in conflict with the law

27. Akta Kanak-kanak (Pindaan) 2016 dengan 4 kandungan utama - • Daftar Kanak-kanak, Perintah Khidmat Masyarakat (CSO), penjagaan berasaskan keluarga dan kenaikan penalti - diwartakan 25 Julai 2016 setelah mendapat perkenan Yang di-Pertuan Agong Tuanku Abdul Halim Mu'adzam Shah. • 1. Daftar Kanak-kanak, yang mengandungi rekod pesalah kes melibatkan kanak-kanak, diwujudkan sebagai rujukan kepada majikan terutama dalam sektor pekerjaan membabitkan kanak-kanak sebelum mengambil mana-mana individu untuk bekerja. Sektor pekerjaan terlibat adalah seperti pengasuh, pembantu rumah dan pengawal keselamatan di taska, tadika atau sekolah.

28. 2. CSO pula adalah program rehabilitasi kepada kanak-kanak yang terbabit dengan jenayah serta pesalah dewasa seperti ibu, bapa dan penjaga yang mendera atau mengabaikan kanak-kanak. Selain hukuman penjara dan denda, mereka boleh diberikan pemulihan dengan melakukan kerja-kerja komuniti seperti membersihkan sesebuah kawasan dan menjalani kaunseling serta program keinsafan dan keibubapaan. • 3. Mahkamah harus memberi keutamaan kepada penjagaan berasaskan keluarga semasa mengeluarkan perintah perlindangan kepada kanak-kanak yang terabai. • perintah penempatan di institusi Jabatan Kebajikan Masyarakat (JKM) hendaklah menjadi pilihan terakhir bagi membolehkan kanak-kanak terbabit membesar dalam suasana kekeluargaan. • 4. Pindaan akta itu juga menaikkan hukuman denda kepada RM50,000 dan 20 tahun penjara bagi kesalahan mengikut Seksyen 31 iaitu mendera, mengabaikan dan menganiaya kanak-kanak.

29. Mandatory Reporting under Child Act 2001 • Section 28: Duty of family member to report/ inform a Protector if she/he has reasonable grounds to believe that ill-treatment, neglect, abandon, or expose or sexual abuse has been committed. • Failure to report is an offence and upon conviction can be released on a bond. Failure to comply with the condition of the bond is an offence liable to a fine not exceeding RM5000 or imprisonment for a term not exceeding 2 years or both. • Section 29: Duty of Child Care Provider to report

30. Akta Kesalahan-kesalahan Seksual Terhadap Kanak-kanak 2017 • Akta baharu itu memberi peruntukan mengenai kesalahan seksual terhadap kanak-kanak yang tiada dalam undang-undang sedia ada. • Antara perkara baharu yang dimasukkan dalam undang-undang tersebut adalah sexual grooming (pengantunan kanak-kanak), pornografi kanak-kanak dan penyalahgunaan kepercayaan. • Turut ditubuhkan ialah mahkamah jenayah khas bagi mengendalikan prosiding jena­yah seksual kanak-kanak yang sudah menjadi mangsa; • Hakim harus terdiri daripada pakar dalam isu ini; dan • Sebarang kes mestilah diselesaikan dalam tempoh setahun.

31. Conclusion • Child Act is a comprehensive law for child protection. • Current and new provisions/ amendments were made in line with spirit of Convention on the Right of the Children (CRC) 1989. • Duty and responsibilities of parents and their carers. • Sexual Offences Against Children Act 2017 supports further protection for the children.

32. THE STATUS OF CHILDREN IN MALAYSIA

33. Children in Malaysia = 11.1 million (↓18 years old). • Born with rights, to achieve full potential and contribute towards society and nation building. • Malaysia has improved significantly over the years on child well being. • But still, due to disparity in gender, age, ethnic group and geographical locations, some are left invisible, with little opportunity to claim their rights. • The concept of “inclusiveness” in the New Economic Model has been introduced to reduce those disparities.

34. Government → transformation plan→ high income country → when? • How? • Rapid socio-economic development • What steps have been taken? • RMK 10th 2011-2015; GTP; ETP; RMK 11th 2016-2020 • What about the children? • Aligning to international conventions on human right and children. • Why ↑ is important? • To provide conducive environment → investment in social inclusive development.

35. What are the fundamentals or principles of major human rights instrument? • Universality; non discrimination; indivisibility; participation = concept of equity. • CRC 1995 • Child Act (2001), National Policy for Children and National Action Plan for Children. • Accession to the Optional Protocols to the CRC on the Sale of Children, Child Prostitution and Child Pornography, and on the Involvement of Children in Armed Conflict

36. Malaysia’s Progress on the Rights of Children • Right to adequate standard of living • Child poverty (children under the age of 15 years) dropped from 29% down to 9% between 1989 and 2007. • Ethnic groups affected by poverty: 26% are indigenous children and 33% of other children, mainly non-Malaysian citizens. • Children from ↑ tend to enter the labor force earlier than other children thus facing the risk of school drop out. • Number of children receiving Child Aid → increased from 2005 till 2011.

37. Right to life and basic health • Child mortality compares with industrialized countries → IMR 6.8 and U5MR 8.5 per 1,000 live births (2010). The country is likely to achieve the MDG targets by 2015. • Child nutrition → the proportion of under-weight children (moderate and severe) less than five years in 2010 was 4.6%, a third the proportion in 2000.

38. Access to health facilities and to qualified doctors’ services varies across states; the poor in some states are particularly disadvantaged. • In 2010, in KL one doctor was serving on average 78 children less than 15 years of age, among all patients; in Sabah one doctor had to serve on average 532 children the same age, among all patients.

39. Right to early childhood development and education • Malaysia is on target to achieve universal primary education by 2015. • Kindergarten gross enrolment increased by 6% within a 5 year period and reached 73% in 2010. 60% are public kindergarten. • Over-all enrolment of children 6 – 18 years of age in education is high, with 80% enrolment in 2011.

40. Right to identity, care and protection • How importance is the birth registration? • Adoptions have been on increase with a total number of 1,697 applications for registration of adoption and adoptions in 2011. • Over a thousand children have been cared for annually in children homes. • Cases of child abuse ↑ with girls affected twice as much as boys (in 2011 registered abuse cases of boys were 1,253 and of girls – 2,175) and with increasing proportions of neglect and sexual abuse.

41. Child in conflict with the law: boys are more likely than girls to engage in criminal acts; most offences are property-related. • Tunas Bakti schools are more often used for rehabilitation of juvenile offenders with around 1,000 inmates on average in recent years, compared to other facilities.

42. Instruments on the rights of the children

43. CRC on Rights of the Children • CRC Article 1 • … a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. • CRC Article 2 • 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

44. CRC on Right to Adequate Standard of Living • CRC Article 27 • 1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. • 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.

45. 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing and housing.

46. 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

47. MDG on Right to Adequate Standard of Living • MDG 1:Eradicate extreme poverty and hunger • Target 1A:Halve, between 1990 and 2015, the proportion of people whose income is less than US$1 a day. • Target 1B:Achieve full and productive employment and decent work for all, including women and young people.

48. NKRA on Right to Adequate Standard of Living • NKRA 4:Raising Living Standards of Low-Income Households • NKRA 7:Addressing the Rising Cost of Living In 2011 “some 5.2 million Malaysian households earning RM3,000 and below each received one-off RM500 financial assistance from the government. Over 75% of all households in the country benefited from the RM2.6 billion budget set aside for this exercise” (GTP, Annual Report 2011).

49. CRC on Child Aid • CRC Article 26 • 1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. • 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

50. CRC on Right to Life & Basic Health • CRC Article 24 • 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. • 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: • (a) To diminish infant and child mortality;