The Evolution Of Child Protection Laws

Crimes against children have been recognised as a specific type of child maltreatment in US federal law since the initial Congressional hearings on child abuse in 1973. In 1932, Congress gave the FBI jurisdiction under the Lindbergh Law to investigate the disappearance or kidnapping of a child of tender age, usually 12 or younger. The FBI's Violent Crimes Against Children program aims to counter all threats of abuse and exploitation of children.

In the US, child sexual abuse laws vary by state, but it is illegal in every state and under federal law. Child abuse and neglect laws also vary by state, but generally refer to any form of cruelty inflicted on a child by a parent, caregiver, or another person meant to provide childcare.

In Australia, criminal offences relating to child protection are covered by both general criminal law and child protection legislation. Parents, caregivers, and those with parental responsibility have a legal duty to provide children with the necessities of life, including financial support, food, clothing, accommodation, healthcare, and access to education. Failing to do so may result in criminal proceedings.

Child abduction

In the US, child abduction typically falls under the federal kidnapping statute, which applies when the victim is willfully transported in interstate or foreign commerce, or when the victim is a child under the age of 16 and the abduction involves international parental kidnapping. International parental kidnapping occurs when a parent or guardian removes a child from the US or retains a child outside the US with the intent to obstruct the other parent's lawful exercise of parental rights. In such cases, a criminal arrest warrant can be issued for the abducting parent or guardian.

In addition to federal laws, all US states have their own laws regarding child abduction and parental kidnapping. For example, in California, parental kidnapping is referred to as "child stealing" and is illegal under the California Penal Code Section 278. Child stealing is treated differently from kidnapping as it recognises the custodial parent whose rights were violated as the victim, and it does not require proof of force or movement of the victim.

While stranger abductions often receive more attention, it is important to note that, according to the National Center for Missing and Exploited Children, approximately 200,000 out of 260,000 children abducted each year are taken by a parent or family member, often during bitter divorce or child custody battles. These abductions are still considered very serious criminal offences and can have severe consequences for the abducting parent, including prison sentences.

Child sexual exploitation

The FBI's Violent Crimes Against Children program plays a crucial role in addressing this issue. It aims to counter all threats of abuse and exploitation against children, including child sexual abuse material (CSAM) production, sextortion, and international travel for sexual activity with minors. The FBI also collaborates with the National Center for Missing and Exploited Children, utilizing their CyberTipline to receive reports of child sexual exploitation incidents.

The legal consequences for child sexual abuse vary depending on the specific offenses committed by the perpetrator. Criminal penalties can include imprisonment, fines, registration as a sex offender, and restrictions on probation and parole. Civil penalties may include liability for damages, injunctions, involuntary commitment, and loss of custody or parental rights for perpetrators related to their victims.

To further strengthen the fight against child sexual exploitation, the U.S. Supreme Court has made significant rulings. In Kansas v. Hendricks, the Court decided that a predatory sex offender could be civilly committed upon release from prison. Additionally, in Stogner v. California, the Court ruled that California's ex post facto law, which retroactively extended the statute of limitations for sexual offenses against minors, was unconstitutional.

The issue of child sexual exploitation is not limited to the United States. Globally, there is a growing recognition of the importance of specialized child justice systems. However, many countries still lack such systems, resulting in children being processed through conventional criminal justice frameworks designed for adults. This highlights the urgent need for the establishment of laws, procedures, and institutions specifically tailored to address children who are victims or perpetrators of sexual exploitation.

Child neglect

Types of Child Neglect

• Physical neglect: This is the most common type of child neglect and involves the failure to provide for a child's basic physical needs such as food, shelter, clothing, and sanitary living conditions. It also includes abandonment or failure to supervise a child over an extended period.
• Educational neglect: This occurs when a caregiver does not enrol a child in school, encourages them to skip school, or fails to provide a proper education.
• Psychological or emotional neglect: This includes behaviours such as humiliation, insult, lack of affection, ignoring the child's basic needs, and threatening serious punishment. It can also involve isolating the child or allowing them to use drugs and alcohol.
• Medical neglect: This happens when a parent or caregiver fails to provide necessary medical or health care for the child, including delaying or denying treatment.
• Neglect by sexual exploitation: This occurs when a parent or caregiver permits or benefits from the child's involvement in sexual exploitation, such as sex trafficking.

Legal Perspective on Child Neglect

The legal consequences of child neglect vary depending on the state and country. In the United States, child neglect is generally considered a misdemeanour crime, with penalties including jail time, fines, community service, or probation. However, the specifics of child neglect laws differ across states. For example, Ohio has a "Nonsupport" law that makes it illegal to abandon or fail to support a child, and a separate "Endangering Children" law that prohibits a broader range of conduct, including creating a substantial risk to the child's health or safety.

In the United Kingdom, the Children and Young Persons Act 1933 defines neglect as wilfully neglecting a child "in a manner likely to cause unnecessary suffering or injury to health" by failing to provide adequate food, clothing, medical aid, or lodging. The penalty for this offence is determined by the court and can include imprisonment, a fine, or both.

Internationally, the Convention on the Rights of the Child, adopted by the United Nations General Assembly in 1989, provides a framework for protecting the rights of children, including those who are victims of neglect. It outlines the obligations of states to ensure the well-being and protection of children within their jurisdiction.

Child abuse

History of Child Abuse Laws

The legal definition of child abuse varies across different states and territories, with some prohibiting the use of physical force to discipline children, while others allow moderate forms of force. Despite these differences, child abuse is considered a criminal offence and falls under criminal law.

Great Britain was the first country to adopt child protection laws in 1889, and since then, other countries have followed suit by establishing national centres and federal laws. In the US, New York became the first state to pass laws protecting children in 1875, with the establishment of the New York Society for the Prevention of Cruelty to Children (NYSPCC). This served as a standard for other states, and in 1880, several states began raising the age of sexual consent for girls.

In the 20th century, age of consent laws began to change, and governments developed various child welfare policies to address child abuse and neglect. In 1935, the Social Security Act was passed, providing funding for children and families in need. Additionally, the FBI's Violent Crimes Against Children program was established to counter all threats of abuse and exploitation, identify and locate child victims, and strengthen relationships with law enforcement partners.

Sexual abuse is addressed under the criminal laws of each state and territory, creating a number of sexual offences against children. Additionally, the criminal law establishes specific offences related to child neglect and abuse, recognising the important role of the criminal justice system in defining acceptable standards of behaviour and sending a clear message to the community. Prosecution of offenders serves as a deterrent and reinforces the idea that child abuse and neglect are unacceptable and a violation of children's rights.

Challenges and Strategies

One challenge in promoting juvenile justice is the lack of data and statistics on children in conflict with the law, particularly regarding those deprived of liberty. Establishing systems for data collection, disaggregated by age and sex, is crucial for developing effective policies and programmes. Another issue is the lack of specialised juvenile justice systems, with many countries lacking specific legal or policy provisions for children in conflict with the law. This results in children being processed through conventional criminal justice systems designed for adults.

To address these issues, strategies such as the development of strong national child protection systems, training for professionals working with children, fostering cooperation between social welfare, education, and health services, and the establishment of a minimum age of criminal responsibility have been proposed and implemented.

Minimum Age of Criminal Responsibility (MACR)

The importance of establishing a minimum age below which children cannot be criminally responsible has been recognised in international law. The Beijing Rules of 1985 recommended that states set a MACR, and in 1990, the Convention on the Rights of the Child (CRC) made this a binding legal requirement. While the CRC does not specify an age, it is generally recommended that the MACR be set at 12 as a minimum and ideally higher.

However, the age at which children are held criminally responsible varies globally, with some countries prosecuting children as young as seven, while others set the age at 16 or 18. Additionally, factors such as the perceived seriousness of the crime, discretionary mechanisms, and the application of secular, religious, or customary law can further complicate the issue.

In conclusion, while child protection laws have existed for over a century, the recognition of child abuse as a specific form of child maltreatment is more recent. Efforts to address child abuse have evolved from awareness to intervention, with a growing understanding of the need to protect children's rights. Various laws and strategies have been implemented to prevent and address child abuse, but challenges remain, particularly regarding data collection and specialised responses. Establishing a minimum age of criminal responsibility is a key aspect of safeguarding young children from the criminal justice system.

Child trafficking

The first major international instrument dealing with child trafficking is the 2000 UN Palermo protocols, titled the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. This document defines child trafficking as the "recruitment, transportation, transfer, harboring and/or receipt" of a child for the purpose of exploitation. The definition applies only to cases of trafficking that are transnational and/or involve organised criminal groups, but recognition of child trafficking now extends well beyond these parameters.

The International Labour Organization (ILO) expands on the Palermo protocols' definition by asserting that movement and exploitation are key aspects of child trafficking. The ILO estimates that 10,000 children are trafficked each year, with the UN Office on Drugs and Crime (UNODC) reporting that the percentage of child victims rose from 20% to 27% between 2009 and 2012. In 2016, 28% of the 17,000 people brought to the United States were children—approximately 13 per day.

The main international documents dealing with child trafficking are the 1989 UN Convention on the Rights of the Child, the 1999 ILO Worst Forms of Child Labour Convention, and the 2000 UN Palermo protocols. National laws pertaining to child trafficking continue to develop worldwide, based on the international principles that have been established.

The intended or actual use of a child after they have been sold is not always known. However, the objective of child trafficking is often forced child labour, with UNICEF estimating that 150 million children aged 5–14 in developing countries were involved in child labour in 2011. Children may also be trafficked for sexual exploitation, used in the armed forces and drug trades, and for child begging.

Children may be trafficked for the purposes of adoption, particularly international adoption. They may be sourced from orphanages or kidnapped, or parents may be tricked, cajoled or coerced into relinquishing custody.

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