FROM ORPHANHOOD TO TRAFFICKED: EXAMINING CHILD TRAFFICKING FOR THE PURPOSE OF ORPHANAGES Kathryn Elizabeth van Doore BA/LLB (Hons); Grad Dip Legal Skills, Prac & Ethics; LLM Griffith Law School Arts, Education, Law Griffith University Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy October, 2018 ABSTRACT There are an estimated eight million children residing in orphanages, or residential care institutions, globally, however it is estimated that at least four out of five of these children are not orphans. It is well documented that many children in developing States are recruited from their families into orphanages for the purpose of exploitation and profit, a process known as ‘paper orphaning’ or ‘orphanage trafficking’. Paper orphaning involves the recruitment of a child from their family by a child finder or orphanage operator; the manipulation of gatekeeping procedures to admit the child to an orphanage; the construction of fraudulent documentation to attest to the child’s orphaned status; and the maintenance of the child in ongoing institutionalisation for the purpose of profit through donor funding and orphanage tourism. Since 2005, paper orphaning has been anecdotally referred to as ‘trafficking’ but without a legal basis given for the assertion. More recently, the trafficking of children into orphanages was included in the United States Department of State Trafficking in Persons Reports of 2017 and 2018, and considered by the Australian Government as part of its Inquiry into whether Australia should have a Modern Slavery Act in 2017. This thesis provides the legal argument that underpins this recognition, establishing that the recruitment of children into orphanages for the purpose of exploitation and profit is a form of child trafficking under international law. A comprehensive analysis of paper orphaning as a form of child trafficking is presented in this thesis. It details the process of paper orphaning, and demonstrates the prevalence of paper orphaning in developing States by analysing eight representative States across four regions in the developing world where there is evidence that the rising number of children in institutional care is in part due to the presence of donor funding and orphanage tourism. The prevalence of paper orphaning globally establishes the need for a consistent international response and provides a rationale for the application of international law. Paper orphaning is facilitated by an enabling environment where the utility of the orphan child in aid and development is manipulated by governments and non-government organisations in part to profit from donor funding and orphanage tourism. Orphanage ii tourism, where people pay to visit or volunteer with orphans, has become an increasingly popular tourist activity over the past decade. The increasing demand for orphanage tourism has created a demand for the maintenance of an orphan population to visit and volunteer with. Paper orphaning meets this demand by recruiting children under the guise of providing an education, and forcing them to pretend to be orphans. Paper orphaning is a form of child trafficking under the definition found in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000 (‘Trafficking Protocol’). To meet the requirements of the definition of child trafficking in the Trafficking Protocol, both the act and purpose elements of that definition must be satisfied. Previously, the major point of contention for paper orphaning being regarded as child trafficking is that it did not meet the purpose element. This thesis argues that there are two ways the purpose element is satisfied in paper orphaning. The first is that paper orphans are subjected to forms of exploitation that are listed in the Trafficking Protocol. The second is that where paper orphans experience forms of exploitation that are not listed in the Trafficking Protocol, the ‘purpose element’ can be satisfied in situations where the conduct exhibits that an unfair advantage is present and a threshold of seriousness is met. Paper orphans commonly experience two forms of exploitation that meet the purpose element: ongoing institutionalisation for profit and orphanage tourism. Thus, in many, and perhaps most, cases, paper orphaning can be interpreted as a form of child trafficking under international law. To combat paper orphaning as a form of child trafficking, a comprehensive multi-sector framework focusing on both anti-trafficking and child protection mechanisms should be implemented. This framework entails the criminalisation and prosecution of paper orphaning as child trafficking; the prevention of paper orphaning through addressing vulnerability, demand, corruption and complicity; and the provision of protection and assistance for child victims of paper orphaning focusing on identification, reintegration, and access to remedies. iii STATEMENT OF ORIGINALITY This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Kathryn Elizabeth van Doore 17 October 2018 iv ACKNOWLEDGEMENTS Sometimes life takes a unexpected turn, and you end up in place you never thought you would be. Such is the story of this thesis, which really began when I co-founded an orphanage in Kathmandu called ‘Forget Me Not’. Some six years into that journey, and with Forget Me Not operating two orphanages in Nepal and Uganda, we discovered that the resident children had been recruited from their loving families into orphanages for the purpose of our international funding. In that moment of discovery, when everyone we asked, and every fibre of my being, said to run, we chose to stay. This thesis represents the culmination of that journey. It stands as testament to the twenty children in Nepal and thirty-nine children in Uganda who went home to their loving families, and the hundreds more that Forget Me Not has since safely reintegrated, that when we know better, we must do better. I could not have contemplated completing this journey without the ardent support, patience and commitment of my amazing Ande, and our little girls, Anouk and Saskia. Ande, the generosity of spirit you have shown in providing time and space for this research has been immense. Thank you for choosing me every day; I couldn’t, and wouldn’t, do life with anyone else. For my darling Anouk and Saskia, you imbue a sense of wonder and pride in me every day. I have persisted with this research, in standing and telling this truth, because it is important that we acknowledge and learn from the mistakes we make, and try our best to fix them. I hope you will always know the power of your own truth, and never be afraid to speak it, even if your voice shakes. I am greatly indebted to my principal supervisor, Professor Mary Keyes, for her advice, patience, attention to detail, and many cups of coffee. I came to your tutelage very much a student, but I leave feeling like a scholar who has something worth saying. Thank you for your warmth and wisdom. I also owe my associate supervisor, Dr Patricia Fronek, a great deal of gratitude for talking me through the hard times and always offering encouragement. I have learnt so much from working with both of you, and I feel very grateful to have had such a supportive supervisory team. I acknowledge and thank the external examiner at the confirmation stage of my thesis, Dr Anne Gallagher, AO. Your work is inspiring, and I continually draw on words you once said v in closing a speech, ‘I urge you to be brave, to be visionary, but to be in this for the long haul’. Thank you for your continued interest in this research, and I guarantee that I am this for the long haul. For the Forget Me Not team, Andrea Nave, Emmalene Travers, Craig and Mel Manley, Greg and Robyn Biggs, Mel Faulkner, Pete Mackay, Michelle Hay and Matt Brice, and all who supported Forget Me Not in our transition from running orphanages to finding families, great people are forged in the fire and it has been a privilege being the ‘(wo)man in the arena’ with you all. It is an honour to work with our Nepal team, led by Anju Pun and DB Lama, who ensure that over 500 children are safe at home with their families; our Ugandan team, led by Patrick Ruhweza, who ensure that over 60 children are safe, and our Indian partners, led by Diptesh Singh and Puja Srivastava Singh, who provide innovative solutions to make sure over 2000 children are safe. Thank you for your passion and the daily work you do to ensure that so many children are vibrant, thriving and connected to family, community and opportunity. We must never forget that ‘we were made for these times’. I acknowledge the amazing advocates that work tirelessly to ensure that children are safe, loved and grow up at home, particularly my ReThink Orphanages Australia colleagues, Rebecca Nhep, Karen Flanagan AM, Leigh Matthews, Liz Manning, Andrea Nave and Tara Winkler, and the broader ReThink Orphanages global group (formerly Better Volunteering, Better Care), particularly Florence Martin, Rebecca Smith, Emmanuelle Werner, Dr Delia Pop and Michelle Oliel. Your commitment to this cause is inspirational and our shared drive motivates me to keep going. In addition, I acknowledge the Honourable Senator Linda Reynolds for her passion and work on the issue of orphanage trafficking. I believe that together we are really making a difference to millions of children who are currently residing in orphanages, but long to be safe at home. I am fortunate to work with many amazing colleagues and friends at Griffith Law School, all of whom have been unfailingly supportive of both me and my research.