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Child protection provisions

Because so many harmful practices are perpetrated against girl children, drafters should acknowledge harmful practices as a form of child abuse and create or amend child protection laws and services to include harmful practices. 

The following elements should be established as the core elements in child protection laws and systems to protect against harmful practices. 

  • Legislation should ensure that there are child welfare laws and policies to prevent child abuse.
  • Legislation should identify harmful practices as a form of child abuse.
  • Legislation should mandate that the prevention and prosecution of harmful practices are given the same resources as other forms of child abuse. 
  • Legislation should create child protection protocols for each sector that comes in contact with abuse in the form of harmful practices, including social services, police and the judicial system. Such protocols can help in creating dialogue about harmful practices, aid professionals in assessing the level of risk to a child, and in ensuring consistent and appropriate referrals to various services based on the particular circumstances.  
  • Drafters should also create child protection laws or amendments to laws that allow for state intervention in cases harmful practices against girls by their parents or guardians. 
  • Legislation should focus on the best interest of the child as opposed to having the primary focus being the punishment or prosecution of the parents or guardian. 
  • Drafters should provide for an emergency order for protection for children at risk of harmful practices.
  • Drafters should provide a mechanism to allow the state to remove a child from the home if the court determines that there is a reasonable fear that a harmful practice has occurred or is likely to occur. 
  • Legislation should authorize the placement of a child in danger of infliction of a harmful practice in a shelter, refuge or foster home. 
  • Legislation should authorize the continuing placement of a child in a shelter or foster home until the child can be reconciled with the family, or, if the parent or parents will not give up their intention to have the child subjected to the harmful practice, authorization for the child to continue in shelter or foster care and attend school locally, or attend a boarding school to continue her education.
  • Legislation should authorize the suspension of travel authority for the child if the court determines that the parents are considering authorizing the performance of a harmful practice or if the court determines that the child or a responsible adult has a reasonable fear that the parents are considering authorizing the performance of a harmful practice. 
  • Legislation should provide for procedures by which the parents can regain custody of the minor child, including receiving counseling and warnings. Once the minor child has been returned to her parents, legislation should provide for on-going visits to the minor child by social service providers and counselors to ensure the well-being of the minor child. Legislation should provide for counseling of parents to ensure that minor children do not receive pressure to undergo harmful practices.
  • If there are multiple daughters in a family and one daughter has been subjected to a harmful practice, legislation should provide for on-going visits to determine the risk of the other children to being subjected to the same or other harmful practices. 
  • Legislation should provide for periodic physical examinations of a child if a court finds that there are reasonable grounds to suspect a child may be at risk of the harmful practice of FGM.
  • Legislation should provide that where court orders are issued for protection against a harmful practice, the order remain in place until the parents have demonstrated at a court hearing that they understand that the harmful practice is illegal and/or has adverse health consequences, and that they will not subject their daughter to the harmful practice. 
  • Legislation should provide for child-centered legal services, including representation for petitioning for civil or criminal liability victim compensation. 
  • Legislation should incorporate a presumption that there is no justification for the practice of any harmful practice and it is in the child’s best interests to not undergo the harmful practice.

In Uganda, for example, The Children Statute 1996 (Statute No.6 of 1996) [Section 8] explicitly protects children against harmful practices in general: 

Section 8. It shall be unlawful to subject a child to social or customary practices that are harmful to the child’s health.

In addition, the European Parliament resolution of 24 March 2009 on combating female genital mutilation in the EU (2008/2071(INI), Paras. 28 and 29, call on Member States to create legislation that focuses on the protection of children from FGM:

The European Parliament:

Calls on the member states to . . . adopt legislative measures to allow judges or public prosecutors to take precautionary and preventive measures if they are aware of cases of women or girls at risk of being mutilated;

Calls on the Member States to implement a preventive strategy of social action aimed at protecting minors without stigmatizing immigrant communities, through public programmes and social services aimed at both preventing these practices (training, education and awareness-raising among the communities at risk) and assisting the victims who have been subjected to them (psychological and medical support including, where possible, free medical treatment to repair the damage); calls also on the Member States to consider, in accordance with child protection legislation, that the threat or risk of being subjected to FGM may justify intervention by the authorities [.]

 

Both Kenya’s Children Act of 2001 and South Australia’s Children’s Protection Act, Section 26B, contain language in their child protection legislation to protect against harmful practices: 

14.  No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.

119. (1) For the purposes of this Act, a child is in need of care and protection -

(h) who, being a female, is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the child’s life, education and health; …

Protection of children at risk of genital mutilation

26B. (1) If the Court is satisfied that there are reasonable grounds to suspect that a child may be at risk of female genital mutilation, the Court may make orders for the protection of the child.

Examples — The Court might for example make an order—

(a) preventing a person from taking the child from the State; or

(b) requiring that the child’s passport be held by the Court for a period specified in the order or until further order; or

(c) providing for the periodic examination of the child to ensure that the child is not subjected to female genital mutilation.

(2) An application for an order under this section may be made by a member of the police force or by the Chief Executive Officer.

(3) The Court may make an order on an application under this section without giving a person who is to be bound by the Court’s order notice of the proceedings or an opportunity to be heard in the proceedings.

(4) However, in that case the Court must allow the person against whom the order is made a reasonable opportunity to appear before the Court to show why the order should be varied or revoked.

(5) In proceedings under this section the Court must assume that it is in the child’s best interest to resist pressure of racial, ethnic, religious, cultural or family origin that might lead to genital mutilation of the child.

 

UNICEF/Asociación por los Derechos Civiles, Guia de buenos practices para el abordaje judicial de niños, niñas, adolescents victimas o testigos de violencia, abuso sexual y otros delitos (2010). This guide is for judicial personnel and other professionals working with child and adolescent victims and witnesses through the justice processes. The three-part guide sets forth guiding principles and international standards for working with child and adolescent victims and witnesses; guidance for interviewing children and adolescents; and specific steps for each phase of the investigation process. Available in Spanish.

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