Child Welfare and Children’s Child Welfare and Children’s Rights Throughout the WorldRights Throughout the World

Lessons to be learned from Lessons to be learned from comparative national analysescomparative national analyses

Howard DavidsonHoward Davidson

Director, ABA Center on Children and the LawDirector, ABA Center on Children and the Law

202/662-1740 davidsonha@staff.abanet.org202/662-1740 davidsonha@staff.abanet.org

If you want to be successful in a particular field of endeavor, I think perseverance 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 fordeep passion for, because you're going to have to devote a lot of your life to it.

-- George LucasGeorge Lucas

Child Maltreatment InterventionsChild Maltreatment Interventions

2006 IPSCAN “World Perspectives on 2006 IPSCAN “World Perspectives on Child Abuse”Child Abuse”

Notable variations found on: Notable variations found on: a) How governments handle physical a) How governments handle physical

discipline of children and religious discipline of children and religious exceptions to provision of medical exceptions to provision of medical care; b) Availability of services and care; b) Availability of services and mandates for (right to) treatment; mandates for (right to) treatment; and c) Adequacy of services to and c) Adequacy of services to parents, especially mental health parents, especially mental health interventionsinterventions

Two government policies found to Two government policies found to correlate with under five child mortality correlate with under five child mortality reduction: 1) having a child abuse reduction: 1) having a child abuse registry; 2) having specific time frames registry; 2) having specific time frames for responding to abuse reportsfor responding to abuse reports

Many other countries clearly include Many other countries clearly include within scope of “child abuse/neglect” within scope of “child abuse/neglect” prostituted children and children living prostituted children and children living on the streetson the streets

Not clear from this international survey Not clear from this international survey what countries are doing to better what countries are doing to better address the “institutional abuse of address the “institutional abuse of children” children”

Independent Child Independent Child Representation and AdvocacyRepresentation and Advocacy

Jean Koh Peters: Representing Jean Koh Peters: Representing Children Worldwide (2005)--Children Worldwide (2005)-- www.law.yale.edu/rcwwww.law.yale.edu/rcw

CRC Article 12 implementation examined: CRC Article 12 implementation examined:

1) Child must be “heard” directly according 1) Child must be “heard” directly according to the lawto the law

2) Child must be heard “through a 2) Child must be heard “through a representative” according to the law representative” according to the law

3) Law addressing “child protective 3) Law addressing “child protective proceedings” proceedings”

Summary of FindingsSummary of Findings Mandatory to hear from child directly Mandatory to hear from child directly

18 countries in Americas, not U.S. (about 18 countries in Americas, not U.S. (about ½½); 33 in Europe (about 1/2); 10 in Africa ); 33 in Europe (about 1/2); 10 in Africa (about 1/5); 9 from Asia and Oceania (about 1/5); 9 from Asia and Oceania (about 1/8)(about 1/8)

Must hear child through representativeMust hear child through representative

8 countries in Americas (note U.S. listed 8 countries in Americas (note U.S. listed as “child’s as “child’s viewsviews unrepresented” (about unrepresented” (about 1/5); 11 in Europe (about 1/4); 2 in Africa 1/5); 11 in Europe (about 1/4); 2 in Africa (out of 53 countries); 2 in Asia/Oceania (out of 53 countries); 2 in Asia/Oceania (out of 63 countries)(out of 63 countries)

No Formal Child Protective No Formal Child Protective ProceedingsProceedings

1 country in Americas (Barbados); 1 in 1 country in Americas (Barbados); 1 in Europe (Holy See); 10 in Africa (1/5); 14 Europe (Holy See); 10 in Africa (1/5); 14 in Asia and Oceania (1/4)in Asia and Oceania (1/4)

U.S. FindingsU.S. Findings

No 2 of 56 jurisdictions have identical No 2 of 56 jurisdictions have identical representation systems; 39 assure representation systems; 39 assure child’s wishes heard; 17 have no child’s wishes heard; 17 have no requirement for child’s viewpoint to be requirement for child’s viewpoint to be expressed/advocated. Majority have expressed/advocated. Majority have BIOC BIOC representation (and in only 5 is it representation (and in only 5 is it an option rather than mandate)an option rather than mandate)

Where Does U.S. Lag Behind on Where Does U.S. Lag Behind on CRC Provisions?CRC Provisions?

Todres, Wojcik, and Revaz, “The Todres, Wojcik, and Revaz, “The U.N. Convention on the Rights of the U.N. Convention on the Rights of the Child: An Analysis of Treaty Child: An Analysis of Treaty Provisions and Implications of U.S. Provisions and Implications of U.S. Ratification,” Transnational Ratification,” Transnational Publishers (2006)Publishers (2006)

Art. 12 implementation (notes child’s Art. 12 implementation (notes child’s voice/legal representation) gapsvoice/legal representation) gaps

The corporal punishment problemThe corporal punishment problem Life without parole (LWOP) for juveniles Life without parole (LWOP) for juveniles

still allowedstill allowed

Barbara Woodhouse (Univ. of FL Law) Barbara Woodhouse (Univ. of FL Law) notes 3 areas where children’s rights notes 3 areas where children’s rights have yet to be clarified in the U.S.have yet to be clarified in the U.S.

1) Extent of protection for children’s 1) Extent of protection for children’s rights to relationships with parents, rights to relationships with parents, extended family, and other adults extended family, and other adults (Howard would add: siblings)(Howard would add: siblings)

2) Extent of children’s constitutional 2) Extent of children’s constitutional right to an attorney in custody and right to an attorney in custody and child protective caseschild protective cases

3) Extent of children’s rights to 3) Extent of children’s rights to protection from abuse and neglectprotection from abuse and neglect

Merle Weiner (Univ. of OR Law) says Merle Weiner (Univ. of OR Law) says CRC ratification might help U.S. get--CRC ratification might help U.S. get--

1) Universal health care as child’s right1) Universal health care as child’s right

2) More effective policies addressing 2) More effective policies addressing child hunger and homelessness, and child hunger and homelessness, and reduction of child povertyreduction of child poverty

3) Policy that criminalizes corporal 3) Policy that criminalizes corporal punishment of children or removal of punishment of children or removal of parental immunities in tort law for these parental immunities in tort law for these actsacts

4) Policy requiring separation of all 4) Policy requiring separation of all children from ever being in criminal children from ever being in criminal facilities with adultsfacilities with adults

Dan Skoler (former leader of ABA Dan Skoler (former leader of ABA CRC Working Group) and Jonathan CRC Working Group) and Jonathan Todres (NYU Law) add that:Todres (NYU Law) add that:

-- U.S. would be bound to reduce -- U.S. would be bound to reduce child and infant mortality and child and infant mortality and provide pre-natal and post-natal provide pre-natal and post-natal health care for expectant mothers, health care for expectant mothers, and to ensure that children receive and to ensure that children receive necessary medical assistance and necessary medical assistance and health care (“enjoyment of the health care (“enjoyment of the highest attainable standards of highest attainable standards of health”) through a “health rights” health”) through a “health rights” conceptconcept

Attorney Elisabeth Mason (advisor to Attorney Elisabeth Mason (advisor to Atlantic Philanthropies) says CRC Atlantic Philanthropies) says CRC would:would:

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

Maya Grosz (N.Y. Univ. Law) sees Art. Maya Grosz (N.Y. Univ. Law) sees Art. 20 requirement of due regard to a 20 requirement of due regard to a child’s ethnic, religious, cultural, and child’s ethnic, religious, cultural, and linguistic background when linguistic background when determining foster or adoptive determining foster or adoptive placements as potentially inconsistent placements as potentially inconsistent with current U.S. federal with current U.S. federal Multi-Ethnic Multi-Ethnic Placement ActPlacement Act law law

-- MEPA: placements cannot be denied -- MEPA: placements cannot be denied or delayed due to the race, color, or or delayed due to the race, color, or national origin of the child or familynational origin of the child or family

Attorney Catherine Taylor sees Art. 27 Attorney Catherine Taylor sees Art. 27 requiring U.S. actions to ensure requiring U.S. actions to ensure adequate standard of living for childrenadequate standard of living for children

OPTIONAL PROTOCOL TO CRCOn 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   

(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

 (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 

(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

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

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

Proposed: A New International Proposed: A New International Network of Attorneys for ChildrenNetwork of Attorneys for Children

Find funding to network:Find funding to network: Key Key national bar activists involved in national bar activists involved in child/youth issues; full-time frontline child/youth issues; full-time frontline child law practitioners; law professor child law practitioners; law professor children’s law scholars; key child children’s law scholars; key child protection/child welfare lawyers within protection/child welfare lawyers within governments; child NGO lawyers; governments; child NGO lawyers; other lawyers/judges/law studentsother lawyers/judges/law students

Conferences; e-mail list; newsletter; Conferences; e-mail list; newsletter; websitewebsite