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The Legal Framework for Child Protection in South Asia

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THE LEGAL FRAMEWORK FOR CHILD PROTECTION IN SOUTH ASIA Cover Photo: 1 2 1 © UNICEF/UN048309/Kiron Rabbi (14) engaged in recreational group activities at 3 an Adolescent Club in Chachra Modhopara, Jessore 4 Sadar, Bangladesh. 5 2 © UNICEF/UN0285283/Mohammadi 6 Zeinab, 12 years old left Qades district of Badghis 7 province due to conflict in Afghanistan. Settled in 8 Zaimati camp, she participates in the child friendly space and enjoys sometime with her friends. 3 © UNICEF/UNI28601/Haviv A boy at a camp for displaced people of the Tamil ethnic group in Eastern Province, Sri Lanka. 4 © UNICEF/UN0331393/Das The Kanyashree Club girls discuss ideas with their teacher, Karanjali Balika Vidyalaya, Kulpi, 24 Parganas, West Bengal, India. 5 © UNICEF/UNI202391/Lopez Child monks were among the most disadvantaged of Bhutan’s children alongside poor/working children and children with disabilities. 6 © UNICEF/UN0308126/Zaidi A married girl attending her class in UNICEF supported Accelerated Learning Programme (ALP) center in Hussain Buksh Jatoi village, Khairpur district, Sindh province, Pakistan. 7 © UNICEF/UNI41465/Pirozzi A girl smiles on Gan Island in Laamu Atoll, Maldives. She is from a host family that took in 13 people affected by 2004 earthquake. 8 © UNICEF/UN0118463/Shrestha A group of children walk to school on the first day of classes since floods disrupted schooling in Shitalpur Bairgania village in Rautahat Districts, Nepal. © UNICEF ROSA 2020 The material in this report has been commissioned by the United Nations Children’s Fund (UNICEF) Regional Office for South Asia. UNICEF accepts no responsibility for errors. The designations in this work do not imply an opinion on the legal status of any country or territory, or of its authorities, or the delimitation of frontiers. Permission to copy, disseminate or otherwise use information from this publication is granted so long as appropriate acknowledgement is given. The suggested citation is: United Nations Children’s Fund, The Legal Framework for Child Protection in South Asia, UNICEF, Kathmandu, 2020. THE LEGAL FRAMEWORK FOR CHILD PROTECTION IN SOUTH ASIA ACKNOWLEDGEMENTS UNICEF would like to thank Shelley Casey the author of this report for her extensive efforts in gathering, synthesizing and analysing a large number of laws, rules and regulations in the region. We acknowledge the vision and guidance of Kendra Gregson, Regional Advisor Child Protection from UNICEF Regional Office for South Asia, for this initiative. This report would not have been possible without invaluable assistance of staff in UNICEF Country Offices who provided key information and reviewed the draft report, in particular, Khalid Ahmad, Shabnaaz Zahereen, Deki Dema, Tannistha Datta, Mohamed Naeem, Rajan Burlakoti, Farrah Ilyas, Hemamal Jayawardena and Rehana Dole, as well as Settasak Akanimart from UNICEF Regional Office for South Asia who coordinated preparation and finalization of this report. This report immensely benefited from insights and contributions from an expert group including Neginah Khalili, Attorney General’s Office, Afghanistan; Justice Sheikh Hasan Arif, Supreme Court, Bangladesh; Sangay, Office of the Attorney General, Bhutan; Bharti Ali, HAQ: Centre for Child Rights, India; Aisha Shujune Muhammad, former judge, Maldives; Rom Bahadur Thapa, Child Justice Coordination Committee, Nepal; Justice Ali Nawaz Chowhan, National Commission for Human Rights, Pakistan; Ingrid Fitzgerald, United Nations Population Fund (UNFPA) Asia and the Pacific Regional Office and Chair of South Asia Coordinating Group on Accelerated Action to End Violence Against Children (SACG); Monica Bulger, Future of Privacy Forum; Philippe Lortie and Laura Martinez-Mora, the Permanent Bureau for the Hague Conference on Private International Law; Insaf Nizam, International Labour Organization (ILO); Kerry Neal, UNICEF Headquarters; and Sheeba Harma, Regional Advisor Gender, UNICEF Regional Office for South Asia. PREFACE Every child has the rights to be protected from violence, abuse, exploitation and neglect guaranteed by the Convention on the Rights of the Child. All countries in South Asia are a State Party to the Convention. State Parties are obliged to undertake all appropriate legislative, administrative and other measures to implement the rights enshrined in the Convention. Violence, abuse, exploitation and neglect are part of the lives of the children of South Asia. 36 per cent of girls and women aged 15-19 years in Bangladesh suffered domestic violence. 72 per cent of boys and men aged 15-49 years in Afghanistan considered a husband to be justified in hitting or beating his wife. 82 per cent of girls and boys in Nepal experienced violent discipline. 30 per cent of South Asian women aged 20-24 years were married before age 18. Child labour continue to exist with about 29 per cent in Afghanistan and 12 per cent in India. A legal framework is one contribution to the prevention and response to violence. It contributes to the functioning of child protection systems; providing a framework for prevention, early interventions and response services and direction on funding required. While countries in South Asia continue to strengthen their national and sub-national legislation in their efforts to tackle these harms, there continue to be significant gaps. The Report on the Legal Framework for Child Protection in South Asia reviews the legislation in the eight countries in South Asia and their alignment with international laws and standards. While progress has been made, the review finds significant gaps in the legal framework for child care and protection services, prohibition of all forms of violence against children and justice for children. The report provides recommendations in areas where countries may need to consider strengthening. No child should experience violence. I am confident that this report will contribute to the efforts to end all violence against all children. Jean Gough Regional Director South Asia CONTENTS ACRONYMS AND ABBREVIATIONS i EXECUTIVE SUMMARY ii 1. INTRODUCTION 2 1.1 Scope of the review 3 1.2 Methodology and approach 5 2. CHILD CARE AND PROTECTION SERVICES 6 2.1 Mandate for prevention, early intervention and response 6 2.2 Report, assess, respond: Procedures and services 8 2.3 Alternative care 13 2.4 Adoption, guardianship, kafalah and surrogacy 17 3. PROHIBITION OF ALL FORMS OF VIOLENCE AGAINST CHILDREN 22 3.1 Physical and emotional abuse, neglect and maltreatment 22 3.2 Sexual abuse and exploitation 25 3.3 Abduction, sale and trafficking of children 29 3.4 Child marriage and forced marriage 31 3.5 Child labour 34 3.6 Children in armed conflict 37 3.7 Traditional practices harmful to children 38 3.8 Extraterritoriality and extradition 40 4. JUSTICE FOR CHILDREN 42 4A. CHILD VICTIMS AND WITNESSES IN CRIMINAL PROCEEDINGS 42 4B. CHILDREN IN CONFLICT WITH THE LAW 47 4B.1 General due process rights 47 4B.2 Age and criminal responsibility 49 4B.3 Arrest, investigation and pre-trial detention 51 4B.4 Diversion 53 4B.5 Courts and trial proceedings 54 4B.6 Sentencing 55 4B.7 Children deprived of liberty 58 4B.8 Records and privacy 60 4C. ACCESS TO JUSTICE FOR CHILDREN IN CIVIL PROCEEDINGS 61 5. CONCLUSIONS AND RECOMMENDATIONS 64 ANNEX I. REGIONAL REPORT CARD 74 ANNEX II. COUNTRY REPORT CARDS 75 BIBLIOGRAPHY 84 COUNTRY CHECKLISTS AFGHANISTAN 111 BANGLADESH 143 BHUTAN 175 INDIA 211 MALDIVES 249 NEPAL 285 PAKISTAN 319 SRI LANKA 365 ACRONYMS AND ABBREVIATIONS Beijing Rules UN Standard Minimum Rules for the Administration of Juvenile Justice CRC Convention on the Rights of the Child CEDAW Convention on the Elimination of All forms of Discrimination against Women ICT Islamabad Capital Territory (Pakistan) ILO International Labour Organization IT information and communication technologies KP Khyber Pakhtunkhwa Province (Pakistan) LGBTQ lesbian, gay, bisexual, transgendered and queer NGO non-government organization OPAC Optional Protocol to the CRC on the involvement of children in armed conflict OPSC Optional Protocol to the CRC on the sale of children, child prostitution and child pornography Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Protocol Women and Children, 2000 SAARC South Asian Association for Regional Cooperation UN United Nations UN CRC United Nations Committee on the Rights of the Child Committee UN CEDAW United Nations Committee on the Elimination of Discrimination against Committee Women UNICEF United Nations Children’s Fund i THE LEGAL FRAMEWORK FOR CHILD PROTECTION IN SOUTH ASIA EXECUTIVE SUMMARY Children’s protection from all forms of violence, abuse, neglect and exploitation is a fundamental right guaranteed by the Convention on the Rights of the Child (CRC). Violence against children occurs in every country of the world and in all spheres of their lives, including in the home, at school, at work and in the community generally. For millions of South Asian children, violence is widespread and pervasive and remains a harsh reality of their lives, with long-lasting consequences. This report assesses the progress of eight South Asia countries – Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka – in aligning national child protection legislation with international standards. This includes: 1. Legal framework for child care and protection services: Whether governments have a solid legal framework in place to guide the delivery of child protection prevention, early intervention and response services for children and their families;
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