Using regulation to ensure the well-being of children

Scientific evidence shows that child well-being investment pays off, particularly in early childhood, as those children become adolescents and those adolescents become adults who do well. Such adults have higher employment and earnings, better health, and lower levels of welfare dependence and crime rates than those adults who did not have such investment as children. Regulations, be they legislation or delegated rules, are a critical feature of any state seeking to ensure the well-being of children because it organises in a systematic way the responsibilities, enforcement, the budget and services that allow children to thrive. This howtoregulate explores good examples of child well-being laws from around the world.

A. International law

I. United Nations and well-being

1. Central to the idea of well-being is the state of being comfortable, healthy and happy. It points to healthy in a physical and mental sense, the latter focussing on concepts such as having a purpose and high life satisfaction. The United Nations (UN) Sustainable Development Goals has as Goal 3: Ensure healthy lives and promote well-being, outlining nine top-level targets around:

  • providing more efficient funding of health systems that tackles maternal mortality, neo-natal mortality, prevalent communicable diseases and prevalent non-communicable diseases;
  • ensuring universal access to sexual and reproductive health -care services;
  • increasing access to physicians and universal health coverage; and
  • reducing number of illnesses and deaths from ambient pollution in water, air and soil.1

It is important that states regulating child well-being define clearly in regulation what child well-being is, as this is critical for data collection to measure whether or not the regulation is effective in improving child well-being. Both Canada and most recently New Zealand have put in place legislation concerning poverty, which directs data collection across various government agencies and sets targets. Canada’s legislation focusses on poverty across the population whereas New Zealand’s focus is on children in poverty.

II. United Nations Convention on the Rights of the Child

2. Never at any point in human history has child well-being been so good as it is today. Millions have reached their fifth birthday, the number of undernourished children has halved since 1990 but millions are still left behind: 262 million are out of school, 650 million girls were married before their 18th birthday.The Convention on the Rights of the Child (the CRC) is the most widely ratified human rights treaty in history, with 196 parties (all parties to UN except the United States) and sets out the civil, political, economic, social, health and cultural rights of children. The CRC has three optional protocols:

  • the first restricts the involvement of children in military conflicts;
  • the second prohibits the same of children, child prostitution and child pornography; and
  • the third relates to communication of complaints.

3. Specifically, the CRC regulates the following items (a list of key elements, not all of the CRC):

  • Age: a child is a human below the age of 18;
  • Non-discriminatory protection of rights for all children irrespective of the child’s or the parent’s or legal guardian’s race, colour, sex, language, religions, political or other option, national, ethnic or social origin, property, disability, birth or other status;
  • Ensuring that the best interests of the child are considered in all actions undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies;
  • Measures, be they legislative or delegated rule-making, that implement economic, social, cultural rights and the right to life, identity;
  • Rights and duties of parents, extended family or community depending on local custom;
  • Birth registration and nationality: right to know and be cared for by his/her parents;
  • Child separation from parents to be conducted only in accordance with applicable law and procedures, where separation is necessary for the best interests of the child;
  • Procedures for parents that reside in separate states to maintain personal relations and direct contact with their child;
  • Assure opportunities for the child capable of forming his/her own views the right to express those views freely in all matters affecting the child, particularly in any judicial and administrative hearings affecting the child;
  • Access to mass media and information relevant for the child’s age, including the development of guidelines for the protection of child well-being from such media and information;
  • Child care services and child protection services that respect the child’s ethnic, religious, cultural and linguistic background;
  • Appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child;
  • Adoption rules in the best interests of this child;
  • Rules for refugee children that ensure appropriate protection and humanitarian assistance regardless of accompanied or unaccompanied by parents or by any other person (Article 22)
  • Children in conflict with the law: concerns detention, setting minimal age for criminal responsibility, preferably 12 progressively increasing up to 14-16; and
  • Marriage: setting minimal age, preferably 18.

III. Other international child protection frameworks

4. The UN Children’s Fund (UNICEF) is the international body that leads the effort for the protection of children’s rights. UNICEF manage a web page with a range of global Child Rights and International Legal Framework, which includes references to other important child protection frameworks:

B. National laws for child well-being

Based on the international and national laws concerning child well-being researched for this howtoregulate article, categories for regulation are arranged according to key topics during a child’s lifespan, such as health (maternal and foetal care, postnatal/post partum care), early childhood, education, adolescence and vulnerable children.

I. Health: maternal and foetal care

1. The World Health Organisation (WHO) highlights the importance of maternal and foetal care as being critical to healthy babies, healthy children and healthy adults. The WHO states that 830 women die from preventable causes related to pregnancy and childbirth each day and that 99% of all maternal deaths occur in developing countries. It is also undisputed that focussing on the early years of life saves money on health expenditure for acute health problems that are solved through investment in early immunisation and follow-up health services in this period. Low levels of maternal and infant mortality are associated with states whose economies are growing and the rule of law is respected. Some developed states researched have provided incentives to women to become pregnant in an effort to increase the birth rate, which is positive for economic growth in countries with an ageing population. In states with over population the opposite is true, incentives are created to reduce the birth rate. This part will look at the types of regulation states use to ensure the well-being of the mother and baby, noting the broad concept of well-being in a physical and mental sense.

Family planning

(a) Incentives to becoming a parent

2. Parental leave regulation that enables mother and/or father to take time off of work to care for a child helps to reduce mental and financial strain. The Organisation for Economic Development (OECD) developed a comprehensive report of key characteristics of parental leave systems with data up to April 2016.

  • Bulgaria is top of the OECD list for weeks of paid maternity leave under its Social Insurance Code (in Bulgarian but can be read here using free online machine translation).
  • Finland is top of the OECD list for weeks of paid paternity leave under its Employment Contracts Act (Chapter 4) and see here for key characteristics.
  • Korea’s Labor Standards Act has many protections for pregnant women, including paid leave for prenatal visits and prohibition from working in dangerous situations.
  • Increasing father participation in child-rearing was the objective of Germany’s Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz)
  • Some jurisdictions give cash gifts for births, recognise credits or offsets for child care in their tax systems. In Singapore a cash gift called a Baby Bonus is paid within 7 to 10 working days after birth registration or completing an online form, 3 to 5 working days following birth registration or completing the online form, a Child Development Account (CDA) will be opened, which is a special savings account that encourages parents to save money for a child’s education and Singapore matches the savings put there in the first two weeks of opening.
  • Australia helps with the costs of child care through its Child Care Subsidy scheme, which is money paid directly to the child care provider to reduce the fees the parent pays. The subsidy is adjusted according to the parents income and hours worked. The child must be immunised to be eligible. Definition of child care provider includes many types of child care such as in a centre, family day care and in home care.

(b) Prenatal and postnatal care

3. Healthy pregnancies are associated with regular visits to obstetric services, foetal scans, Korea’s Mother and Child Health Act is a good example of legislation that regulates such visits. Korea also operates a system of Sanhoojoliwon, a culturally specific form of postnatal confinement that focuses on eating healthy food, doing exercise and warming up the body. Soon after birth mothers go into a Sanhoojoliwan, which is a postnatal clinic that helps mothers ease into life with a baby through support systems that allows the mother to focus on recovery and her baby. The South Korean government regulates these postnatal care businesses, also in the Mother and Child Health Act, through a strict reporting regime, regulating numbers of nurses and other health professional, treatment of infections and insurance (Article 15).

4. Child abandonment, particularly of newborn infants, can be problematic where abortion laws are restrictive.3In the US child abandonment laws are developed on a state-by-state basis and is illegal in all states. The penalty for child abandonment ranges from a felony offence to a misdemeanour, from a fine of USD 2,000 up to five years in prison and a USD125,00 penalty. Some US states have safe haven laws, which apply to babies left in designated places such as hospitals and police or fire stations.

5. Birth registration is a critical administrative document for participation in most state affairs and is more likely to occur where it is facilitated at hospitals or other centres that receive babies for follow-up health checks or immunisation. A good example of this kind of regulatory system is Singapore’s registration and collection of birth certificate process. Singapore’s Registration of Births and Death Act and its Rules provide for a number of registration centres in hospitals and medical centres4, places where newborns visit frequently. Births are required to be registered within 42 days of birth5, late registration may incur a fine6and where one parent is a Singaporean citizen they may use an online application called Moments of Life to complete online registration. The Moments of Life app was developed by Singapore under its Smart Nation initiative to support citizens at different moments of their life by bundling government services across different agencies, and includes easy application for the Baby Bonus government payment and a map of the nearest child care centres and preschools.

(c) Breastfeeding

6. Many European jurisdictions incentivise continued breast feeding when mothers return to work by providing “time off of work” for breastfeeding:

  • The Portuguese Labour Code (in Portuguese) contains several provisions that protects the mothers’ ability to breastfeed or express milk, and gives fathers the time to give that expressed milk to their baby (No. 2, Article 39, Labour Code, for English summary of key provisions “Protection in Parenthood”)
  • The French Labour Code (in French) also contains special provisions for breastfeeding that entitles the breastfeeding employee to one hour per day, to be broken up in two 30 minute periods.

(d) Immunisation

7. Immunisation is an important element of children’s health and the science behind its effectiveness is irrefutable. See paragraphs 16-18 in our howtoregulate article “Infectious diseases: howtoregulate an agile system equipped for the unknown”.

(e) Organising a health system

8. The New Zealand health and disability system’s statutory framework is made up of over 20 pieces of legislation. The most significant are the New Zealand Public Health and Disability Act 2000(NZPHD), the Health Act 1956, and the Crown Entities Act 2004. New Zealand’s health system is underpinned by key legislation which outlines the structure, representative bodies that make the health strategy. postnatal care, immunisation.

9. The NZPHD Act establishes the structure underlying public sector funding and the organisation of health and disability services.7It establishes district health boards (DHBs), and sets out the duties and roles of key participants, including the Minister of Health, Ministerial committees, and health sector provider organisations.

10. The NZPHD Act also sets the strategic direction and goals for health and disability services in New Zealand. These include to improve health and disability outcomes for all New Zealanders, to reduce disparities by improving the health of vulnerable population groups (including children), to provide a community voice in personal health, public health, and disability support services and to facilitate access to, and the dissemination of information for, the delivery of health and disability services in New Zealand.

11. Portugal’s regulation of health outlines basic principles for health policy in its health law (Lei n.º 48/90, de 24 de Agosto in Portuguese). Children and adolescents are subject to special measures [Basis II, 1.(c)] and the health system must structure appropriate responses for this category of people. Similar to New Zealand, there is a government consultative body, the National Health Council that is made up of representatives from the health system.

II. Early childhood

(a) Mandatory reporting by professionals of children services

1. Monitoring child well-being is difficult given the private nature of family and parent responsibility for observing the best interests of their child, Australia has created a a statutory obligation, in all states and territories for mandatory reporting requirements for a range of professionals who are frequently in contact with children: doctors, nurses, teachers and the police.8Some states provide a very extensive list of professionals and other states provide mandatory reporting for everyone concerning sexual offences. The Australian Institute of Family Studies provides a good summary of the legislative framework of the Australian states and territories, including:

  • Table 1: Key features of legislative reporting duties: “state of mind” that activates reporting duty and extent of harm.
  • Table 2: Mandatory reporting requirements across Australia by state
  • Federally, the Australian Family Law Act 1975 creates a mandatory reporting duty for personnel from the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia. Section 67ZA states that when in the course of performing duties or functions, or exercising powers, these persons have reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

(b) Child care centres

2. For child care centres Australia’s Education and Care Services National Regulations (a national applied law in that Australia’s states and territories adopted the same legislation9that allowed for additions based on local context), created a national regulator that oversees the following operational requirements for an education and care service including:

  • the National Quality Standard (at schedule 1)

    • Quality Area 1 is educational programme and practice
    • Quality Area 2 is children’s health and safety
    • Quality Area 3 is design, concerning design and location of the premises
    • Quality Area 4 concerns staffing arrangements
    • Quality Area 5 concerns relationships with children
    • Quality Area 6 is collaborative partnerships with families and communities
    • Quality Area 7 concerns governance and leadership
  • application processes for provider and service approval

  • setting out the rating scale

  • the process for the rating and assessment of services against the National Quality Standard

  • minimum requirements relating to the operation of education and care services organised around each of the seven quality areas

  • staffing arrangements and qualifications

  • fees for a range of transactions.

  • jurisdiction-specific provisions

  • Child care workers salaries are regulated in the Childrens Services Award 2010 made by the Australia Fair Work Commission, which regulates rates of pay connected to experience and education, overtime and weekend work, and leave entitlements.

  • Australia has also developed as part of its Education and Care Services National Regulations a standard for developmental milestones for each year up to 5 years of age that a child in such care services ought to achieve. Where milestones are not reached , the parents are informed with the view to identifying the relevant health or education intervention.

(c) Child protection services

3. Any abuse or neglect that a child suffers would typically occur in the privacy of the home and can therefore be difficult to detect. It is important that child protection services are rigorous, connected or integrated with children’s services and well resourced. In the UK the four nations of England, Northern Irelands, Wales and Scotland are responsible for its own policies and laws around child protection. In England the legislation underpinning the child protection system is the Children Act 1989, which established key principles around the paramount nature of the child’s welfare and the expectation and requirements around duties of care to children. The Children Act 2004 encourages partnerships between agencies and creates more accountability by:

  • placing a duty on local authorities to appoint children’s services members who are ultimately accountable for the delivery of services
  • placing a duty on local authorities and their partners to co-operate in safeguarding and promoting the well-being of children and young people.

4. Both of these acts were amended by the Children and Social Work Act 2017, and key provisions include:

  • the Child Safeguarding Practice Review Panel was established to review and report on serious child protection cases that are complex or of national importance (Sections 12 to 15).
  • the previous model of Local Safeguarding Children’s Boards (LSCBs) has been replaced by local safeguarding partners who will publish reports on local safeguarding practice reviews (Section 17).
  • child death review partners are required to review each death of a child normally resident in their area and identify matters that are relevant to public health and safety and children locally (Section 24).
  • local authorities must appoint personal advisers for care leavers up to the age of 25 (Section 3).
  • Social Work England is created as a regulatory body for the social work profession in England (Section 36).
  • relationships education will be provided to primary school children and relationships and sex education will be provided (instead of sex education) in secondary schools (Section 34)10.

5. The UK Department for Education is responsible for administering the child protection system and issued its updated statutory guidance, Working Together to Safeguard Children in 2018 to guide inter-agency protection of children making it clear what individuals, organisations and agencies must do to keep children safe. The guidance emphasises that effective safeguarding is achieved by putting children at the centre of the system and by every individual and agency playing their full part. Key elements of the guidance include:

  • Local organisations and agencies working together to identify children and families who would benefit from early help

  • Local organisations and agencies should have clear criteria for taking action and providing help across this full continuum to ensue that services are commissioned effectively and the right help is given at the right time (Sections 17, 20, 31 and 47 of the Children Act 1989).

  • Anyone who has concerns about a child’s welfare should make a referral to a local authority and should do so immediately, if there es a risk that the child is suffering significant harm or is likely to do so, practitioners who make a referral should always follow-up.

  • Fears about sharing information must not be allowed to stand in the way of the need to promote the welfare, and protect the safety, of children.

  • Outline the principles and parameters of a good assessment

  • Focus on the needs and views of the child

  • Develop clear analysis, by managing risks and making decisions with the best interest of the child in mind, informed by the evidence available and underpinned by knowledge of child development. Critical reflection through supervision should strengthen analysis.

  • Timeliness: within one day of receiving a referral, a local authority social worker should acknowledge receipt to the referrer and make a decision about next steps and type of response required, including deciding:

  • the child requires immediate protection and urgent action is required;
  • the child is in need and should be assessed under section 17 of the Children Act 1989;
  • there is reasonable cause to suspect that the child is suffering or likely to suffer significant harm, and whether enquires must be made and the child assessed under Section 47 of the Children Act 1989;
  • any services are required by the child and family and what type of services;
  • further specialist assessments are required to help the local authority to decide what further action to take; and
  • to see the child as soon as possible if the decision is taken that the referral requires further assessment.

III. Education

1. Education is a science of its own. Evidently, we cannot in this article present the many education systems that exist around the world and compare their pros and cons. On the other hand, we did not wish to skip this important topic. As a compromise, we refer to specialised documentation from the UN Educational, Science and Cultural Organisation (UNESCO), UNICEF and the OECD and present the law of two generally recommended education systems, the one of Finland and of Singapore.

2. Education transforms lives and UNESCObelieves that education is a human right for all throughout life and that access must be matched by quality. UNESCO is responsible for the Global Education 2030 Agenda through the Sustainable Development Goal 4. The Roadmap to achieve this is the Education 2030 Framework for Action. The Roadmap sets global indicators that States parties report against, some of the key indicators (not exhaustive) include:

  • By 2030, ensure that all girls and boys complete, free, equitable and quality primary and secondary education lead to relevant and effective learning outcomes.
  • By 2030, ensure that all girls and boys have access to quality early childhood development, care and pre-primary education so that they are ready for primary education-related.
  • By 2030, ensure equal access for all women and men to affordable and quality technical, vocation and tertiary education, including university.
  • By 2030, substantially increase the number of youth and adults who have relevant skills, including technical and vocational skills, for employment, decent jobs and entrepreneurship.
  • By 2030, eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples, and children in vulnerable situations.
  • By 2030, ensure that all learners acquire the knowledge and skills needed to promote sustainable development, including, among others, through education for sustainable development and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and non-violence, global citizenship and appreciation of cultural diversity and of culture’s contribution to sustainable development.

3. In 2018 UNICEFreleased a report about ending violence in schools, An Everyday Lesson #ENDviolence in Schools. The report found that globally half of students 13-15, about 150 million, report experiencing peer-to-peer violence in and around school. The report looks at all forms of violence against children in schools, from bullying and physical fights to corporal punishment and other degrading forms of punishment, physical and sexual attacks and gender-based violence. UNICEF is urging action in developing and enforcing the laws and policies to keep students safe in and around school, including online. This means fully prohibiting corporal punishment in schools, strengthening safety measures in schools, promoting peace building in schools and communities, and encouraging students and communities to challenge the culture of violence.

4. The OECDworks on education to help nations identify and develop the knowledge and skills that drive better lives, generate prosperity and promote social inclusion. Since 2014 it has produced annually a report called Education at a Glance which looks at who participates in education, what is spent on it, how education systems operate and the results achieved. In 2019 the OECD also released its Measuring Innovation in Education 2019, which measures innovation in education and seeks to understand how innovations works so that quality in the education sector can be improved. The report aims to assist policy makers and regulators to better target interventions and resources, and get quick feedback on whether reforms do change educational practices as expected.

5. For many years, Finland has occupied the enviable position of being top of the list of jurisdictions with providing a good education system for children.11Finland’s law governing the education of children is comprehensive and is based on the principle of play in the early years. Around 33 pieces of legislation regulate Finland’s education system and in addition to the detailed list of legislation for school aged children below, there exists legislation regulating the following in education, including its administration and financing:

  • Basic education in arts: Act on Basic Education in Arts (633/1998);12
  • Liberal adult education: Act on Liberal Adult Education (632/1998);13
  • Financing: Act on the Financing of Educational and Cultural Provision (1705/2009), Act on Central Government Transfers to Local Government for Basic Public Services (1704/2009), Decree of the Ministry of Education on the Criteria for Certain Fees Charged from Students (1323/2001);14
  • Administration: Act on the Administration of Education Provided by the State and the Private Sector (634/1998), Student Welfare Act (1287/2013);15and
  • Teaching staff qualifications: Decree on the Qualifications Required of Teaching Staff (986/1998), Decree on the Pedagogical Qualifications Required of Certain Teachers in the Arts (948/1998), Government Decree on the Qualification Gained from Certain Studies at the University of Oulu for Teaching Technical Work (780/2001) and Act on Checking the Criminal Background of Persons Working with Children (504/2002).16

6. Pre-primary and comprehensive education is covered by three pieces of regulation:

  • The Basic Education Act (628/1998) covers comprehensive school education and compulsory education, pre-primary education, voluntary additional comprehensive school education, preparatory education for comprehensive school education, and morning and afternoon activities.17
  • The Basic Education Decree (852/1998) outlines the number of teaching hours, student assessment, legal protection and authorisation to provide education.
  • Government Decree on the National Objectives for Education Referred to in the Basic Education Act and on the Distribution of Lesson Hours (422/2012) contains provisions on the general national objectives for comprehensive school education and on the distribution of lesson hours.18

7. General upper secondary education and matriculation examination:

  • Act on General Upper Secondary Education (629/1998).
  • Decree on General Upper Secondary Education (810/1998).
  • Government Decree on the General Objectives for General Upper Secondary Education and Lesson Hour Distribution (942/2014).
  • Decree of the Ministry of Education and Culture on the Criteria for Student Admission to General Upper Secondary Education (856/2006).
  • Act on the Organisation of the Matriculation Examination (672/2005) and the related Decree (915/2005).19

8. The other jurisdiction whose students score well particularly in STEM related subjects is Singapore. Getting an education in Singapore is widely followed by all and is compulsory. The importance of education is underscored in Singapore’s Education Act 1985 where parents who fail to enrol their child in school and ensure their regular attendance incur a criminal penalty (either SIN$5,000, or to imprisonment for a term not exceeding 12 months, or both).20

IV. Adolescence

1. Adolescence is a period of transition between childhood and adulthood, where biological maturity precedes psychosocial maturity. Adolescence begins at puberty, which now occurs early, on average than in the past.21The end of adolescence is tied to social and emotional factors and can be somewhat ambiguous, which makes setting a minimum age for lawful adult activities complicated. Nevertheless, regulations must be clear about what activities are the domain of adults to be enforced in the best interests of the child. The Convention for the Rights of the Child provide that States parties should regulate the ages (preferably 18) with which children are prohibited from or enabled to participate in.

(a) minimum voting age

2. Eighteen is the most common minimum age for voting but notable exceptions include Argentina, Austria, Brazil, Cuba, Ecuador, Nicaragua and the three self-governing British Crown Dependencies (Isle of Man, Jersey and Guernsey), where the age for voting is 16. Argentina’s Law of Citizenship (Ley 26.774 in Spanish), Brazil’s Federal Constitution (Article 14, paragraph 1 in Portuguese) and Ecuador’sDemocratic Code in Spanish (Article 11) provides that voting is mandatory for citizens over 18 and optional for people over 16. Cuba (Article 5 of Ley Electoral No. 37 in Spanish) and Nicaragua (Article 31 of Ley Electoral de 1988 in Spanish) provide that voting is for citizens over 16 years.

(b) minimum age of consent

3. By setting a clear age of consent for sexual intercourse is a clear signal that sex with a child is always non-consensual and therefore a criminal act. See our howtoregulate article “Breaking the silence: regulating against sexual crimes” (Part III, Special Aspects; 1. Age of consent).

(c) minimum age for marriage

4. Similar to the age of consent, setting a clear age for marriage is critical to focus administrative resources in curbing child marriages. Child marriages, disproportionately affect girls, and in South Asia almost half (45%) of women between 20-24 years old reported being married before 18. Even in jurisdictions where child marriage has been legislated against for some time, quasi-marriages occur where the child lives with the groom/bride-to-be until the age of marriage. UNICEF report, Economic impacts of child marriage, outlines the negative consequences of child marriage for early childbirths, population, health, nutrition, violence, education, labour and earnings. The UK Marriage Act sets the age of marriage at 18 years but enables 16 and 17 year olds to marry with their parents consent. The UK has also introduced the Anti-social Behaviour, Crime and Policing Act 2014 which made it a criminal offence to force someone to marry, carrying a sentence of up to 7 years in prison. The UK Family Law Act 1996 (section 63A) enables victims or those at risk of forced marriage to apply for a Forced Marriage Protection Order, breaching such an order can result in a sentence of up to 5 years in prison. In 2017 the UK introduced lifelong anonymity for victims of forced marriage to encourage more victims to come forward. The Forced Marriage Unit, is a joint Foreign and Commonwealth Office and Home Office unit which leads on the government’s forced marriage policy, outreach and casework. Noting that forced marriage has implications for UK citizens domestically and dual nationals overseas, this unit has been structured this way to facilitate a suite of services such as: consular assistance, assistance with rescues of victims held against their will overseas, helping a forced marriage victim prevent their unwanted spouse from moving to the UK, training and awareness programmes.22

5. According to the global coalition of Girls not Brides it is critical that legislation for the minimum age for marriage have no legal loopholes that permit children to marry with parental consent (UK and Australia) or on the basis of customary law (South Africa).23

(d) minimum age for criminal responsibility

6. Parties to the UN CRC are required to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.24The UN Committee on the Rights of the Child recommends that the minimum age should be at least 12 years, but preferably higher.25Article 37 (a) of the CRC explicitly prohibits the death penalty and a life sentence for children and (b) explicitly provides that deprivation of liberty, including arrest, detention and imprisonment, should be used only as a measure of last resort and for the shortest appropriate period of time. Having reviewed some of the states parties reports many emphasised the importance in general of flexibility in the juvenile system, than setting hard age minimums, but the following parties’ reports outlined their legislation and how it was consistent with the spirit of provisions around children in the criminal justice system: New Zealand (page 45), Finland (page 81) and Netherlands (page 78).

(e) crime and drug prevention

7. In addition to setting a minimum age for criminal responsibility regulations need to allow for diversion of young people from crime. Georgia has seen positive results from its approach to juvenile crime prevention through its diversion programme, which began after the Georgian Criminal Procedure Code was amended and discretionary prosecution was introduced. The new regulation made it possible to develop the Juvenile Diversion Programme, which gives the prosecutor the discretion to divert the juvenile from criminal prosecution where that juvenile committed a less grave crime and does not have a prior criminal record. The prosecutor passes the juvenile’s file to a social worker who will make an analysis of the juvenile’s psychological and social background and develop a programme that will help with recovery and social integration. The victim of the offence is also invited to participate in a conference with the juvenile to facilitate restorative justice dialogue. From this conference an agreement is signed between the juvenile, his/her parents, the prosecutors, the social worker and the victim of the crime. According to the agreement the juvenile will be provided with services to assist him/her with fulfilling the obligations in the agreement. The success of Georgia’s diversion programme for juveniles is the low recidivism rate among juveniles who complete the programme, only 9% of diverted young people have committed a repeat offence within 3 years of completing their agreement.26

8. The UK also operates a youth crime prevention programme but it operates at a broader level in that young people are placed on programmes where they have been in trouble with the police (much like the Georgian programme), they are ‘at risk’ of committing a crime or they are involved in anti-social behaviour27. Attending the programme is voluntary and both the parents of the young person and the young person must be happy to start the programme. These programmes are run by the local council’s youth offending team or by local organisations like youth charities based on a referral by either the police, a teacher, a social work or parent. An assessment is made about what kind of support the young persons needs and an ‘intervention plan’ is agreed to between the young person and their family. Activities and services in the plan could include mentoring for both the young person and the family, youth inclusion groups, learning new skills, help with finding a job and helping parents improve their own parenting skills.

9. Portugal was the first country to decriminalise drug use in 2001, in response to its near epidemic rates of drug use and HIV transmission rate amongst injecting drug users (in 1999 had the highest rate in the EU). Portugal Law 30/2000 of 29 November (in Portuguese) maintains the status of illegality for using or possessing any drug for personal use without permission but amends the offence from criminal to administrative. When a person is caught in possession of no more than 10 daily doses of drugs, and the police have no suspicion or evidence that supply offences are involved the drug will be seized and the offender is sent to the Commission for the Dissuasion of Drug Abuse (in Portuguese). The Commission meets the offender and evaluates his/her situation and then makes a ruling that aims to treat any additional and rehabilitate the person using the most appropriate interventions. Such interventions may include, warnings, banning from certain places, banning from meeting certain people, periodic visits to a defined place and removal of any professional or firearms licences. Sanctions include fines but is rarely used and certainly not used for addicts. The Cato Institute found that in the five years after the start of decriminalisation, illegal drug use by by adolescents had declined, the rate of HIV infections among drug users dropped, deaths related to heroin and similar drugs cut by more than half and the of people seeking treatment for drug addiction doubled.28

(f) sexual education

10. The countries with the youngest populations under 18 in the world can mostly be found in Africa: Niger 56.9% (ranked 1stfor prevalence rates of child marriage29), Uganda 55% (16thfor prevalence rates of child marriage), Chad 54.6% (3rdfor prevalence rates of child marriage), Angola 54.3%, Mali 54.1% (6th), Somalia 53.6% (10th), Gambia 52.8%, Zambia 52.6, Democratic Republic of the Congo 52.6% (19th) and Burkino Faso 52.3% (5th).30In Niger the average woman has 8 children, limited access to contraceptive measures, 76% of girls are married before 18 and 28% before 15. Sexual education is critical in such countries to better inform children and adolescents of their sexual and reproductive rights.31In 2018 the UN updated its Guidance on Sexuality Education, which stresses that sexuality education programmes must be grounded in human rights principles and in scientific evidence. The UN guidance presents important evidence about the effectiveness of programmes that focus on gender reduce rates of unintended pregnancies and sexually-transmitted diseases, stressing the importance of address social norms on gender and sexuality. The guidance also offers a framework for understanding sexuality as a social construct, linked to power.

11. The International Women’s Health Coalition uses this guidance in the sexuality programmes it supports in Cameroon, Kenya, Nigeria, South Africa, Pakistan, India, Egypt and Peru. These programmes develop school materials and curricula, carry out teacher training, with with young people – particularly girls – directly in communities and advocate for comprehensive sexuality education. This article “Six of the best sex education programmes around the world” outlines programmes that teach young people in developing countries about their sexuality and their rights. In the Cameroon young girl leaders are selected to join clubs in schools to teach their peers about sexuality and girl empowerment, and are given resources to do so. In India an online teachers tool is used to both educate teachers on comprehensive sexuality education and measure the effectiveness of such training.

V. Children in poverty

1. New Zealand’s well-being budget of 2019 focuses on child poverty and well-being and is a good example of using regulation to coordinate a whole-of-government effort to bring about change. New Zealand’s Child Poverty Reduction Act 2018, which amended the Public Finance Act 1989 by introducing Section 15E, which requires the supporting information for the main Appropriation Bill to include a report on child poverty. The child poverty report must discuss any progress made, in the most recent completed financial year, in reducing child poverty consistent with targets under the Child Poverty Reduction Act, and indicate whether and, if so, to what extent, measures in or related to that Bill will affect child poverty. The aim of the Child Poverty Act is to ensure an enduring focus on reducing child poverty, political accountability against published targets and transparent reporting on the progress made. The Child Poverty Act recognises the strong evidence that growing up in poverty can harm children in multiple ways. These effects are particularly evident when poverty is severe and persistent, and when it occurs during early childhood. The harmful effects of child poverty can continue into adulthood, impacting individuals’ future well-being and potential, and the economy and society more generally.

2. Like many developed countries sharp increases in the cost of housing meant that household income, after paying housing costs, left very little for healthy food, education costs, clothing and health. Children in such situations often did not have adequate clothing for the weather, for school or the necessary school materials. UNICEF New Zealand estimates around 27% of New Zealand’s children live in low-income families or families that experience material hardship. In response to the problem New Zealand created a Ministry of Children in 2017 but it has been difficult to define and measure poverty for the New Zealand context noting that poverty depends on a states specific economic situation.32The benefit of the Child Poverty Act is that it has settled on a definition of poverty, set measures for counting poverty and with this information hope to devise inventions based on the evidence.

3. The definition of poverty is not fixed, each year the statistician will make a definition in relation to the data (section 6). Primary measures to set measures, targets, reports, indicators and monitoring reports have four definitions:

  • Low income: less than 50% of median equivalent disposable household income (without deducting housing costs) for financial year;
  • Low income: less than 50% of median equivalent disposable household income (after deducting housing costs) for base financial year;
  • Material hardship; and
  • Persistent poverty.

Disposable household income is defined as household income less income tax (Section 5). The statistician must also prepare a report measuring child poverty in that financial year (Section 30), where analysis must be done of identified populations in the Act (Section 32), following statistical best practice (Section 35) and presented to the House of Representatives (Section 37).

4. The relevant Minister has a duty to set a target (Section 21), give a presentation to the House of Representatives about the targets (section 24) and a duty to explain non-compliance of targets (Section 27). The relevant Minister must also identify for monitoring reports, 1 or more child poverty related indicators not limited to income and employment, housing, education and development, health (physical and mental) and disability (Section 38). Lastly, the Minister is responsible for preparing the monitoring reports (Section 44), publishing this (Section 46) and presenting the report to the House of Representatives (Section 47).

Other links

US Best Practices to Address Community Gang Problems

https://www.ojjdp.gov/publications/PubAbstract.asp?pubi=253257

Policy Advocacy Communication Enhanced: reproductive health

http://thepaceproject.org/4dividends/

US National Conference of State Legislators on Child Welfare

http://www.ncsl.org/research/human-services/child-welfare.aspx

This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon. Simone Marins provided research assistance on the Portuguese and Spanish speaking

2 UNICEF, “Convention on the Rights of the Child: For every child, every right”, https://www.unicef.org/child-rights-convention.

3 “abortion availability has, on average, improved the socio-economic outcomes of the cohorts of children born after the change ”. Mitrut Andrea, François-Charles Wolff. The Impact of Legalized Abortion on Child Health Outcomes and Abandonment. Evidence from Romania. 2010.https://hal.archives-ouvertes.fr/hal-00470578/document.

4 Singapore Registration and Collection of Birth Certificatehttps://www.ica.gov.sg/citizen/birth/citizen_birth_register.

5 Section 17 Singapore Registration of Births and Deaths Act,https://sso.agc.gov.sg/Act/RBDA1937#pr5-.

6 Section 13 (2) Singapore Registration of Births and Deaths Act,https://sso.agc.gov.sg/Act/RBDA1937#pr13-.

9 List of Australian states and territories national applied legislation, Education and Care Services National Lawon the site of the Australian Childrens & Care Quality Authorityhttps://www.acecqa.gov.au/nqf/national-law-regulations/national-law.

10 Information taken from the Legislation and guidance page explaining Englands child protection system on the National Society for the Prevention of Cruelty to Children,https://learning.nspcc.org.uk/child-protection-system/england/?_ga=2.162050111.267741716.1563883680-823347299.1563883680.

11 World Economic Forum, “How does Finland’s top-ranking education system work”, Feb 2019,https://www.weforum.org/agenda/2019/02/how-does-finland-s-top-ranking-education-system-work.

16 Ibid.

17 Ibid.

18 Ibid.

19 Ibid.

22 UK Forced Marriage Guidance,https://www.gov.uk/guidance/forced-marriage.

24 The UN Committee on the Rights of the Child, “General Comment No. 10 2007 Children’s rights in juvenile justice, paragraph 31, https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf.

25 The UN Committee on the Rights of the Child, “General Comment No. 10 2007 Children’s rights in juvenile justice, paragraphs 32-33, https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf.

26 UNICEF Press Release, The rate of committing a crime by juveniles has considerably dropped as a result of restorative justice and diversion, https://www.unicef.org/georgia/press-releases/rate-committing-crime-juveniles-has-considerably-dropped-result-restorative-justice.

27 UK Youth crime prevention programmes,https://www.gov.uk/youth-crime-prevention-programmes.

28 Greenwald, G., Drug Decriminalisation in Portugal: Lessons for creating fair and successful drug policies, Cato Institute, 2009,https://object.cato.org/sites/cato.org/files/pubs/pdf/greenwald_whitepaper.pdf.

31 Ibid.

32 Mercer, P., “How New Zealand is trying to take on child poverty”, BBC News16 Oct 2018, https://www.bbc.com/news/world-asia-45819681.

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