Child Protection

last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Child Protection Provisions

In addition to the general victim protection provisions described in the preceding section, drafters of “honour” crimes legislation should take into account the fact that victims of “honour” crimes are often minors, and drafters should ensure that “honour” crimes legislation addresses the special needs of these young victims.

  • Legislation should ensure that there are child welfare laws and policies to prevent child abuse.
  • Legislation should identify “honour” crimes as a form of child abuse.
  • Legislation should mandate that prevention and prosecution of “honour” crimes and killings are given the same resources as other forms of child abuse. 

Core elements in child protection laws and systems to protect against “honour” crimes and killings

The following elements should be established as the core elements in child protection laws and systems to protect against “honour” crimes and killings.  Elements are discussed in detail further below. 

  • Legislation should provide for an emergency order for protection remedy for a female in need of protection from an “honour” crime or killing. 
  • Legislation should authorize the removal of a child from the home if the court determines that a responsible adult has a reasonable fear that a parent or parents or guardian are considering authorizing or carrying out an “honour” crime or killing against that child. 
  • Legislation should authorize the placement of a child in danger of infliction of an “honour” crime or killing in a shelter, refuge or foster home. Authorization for the child to live in shelter or foster care should include authorization to attend school locally, or attend a boarding school to continue her education.
  • 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 on how “honour” crimes and killings constitute a violation of women and girls’ rights.
  • Legislation should provide that where court orders are issued for protection against an “honour” crime, the order will remain in place until the parents have demonstrated at a court hearing that they understand that “honour” crimes are illegal, and that they will not carry out this practice. 
  • Legislation should provide for child-centered legal services, including representation for petitioning for civil or criminal liability victim compensation. 
  •  Legislation should presume that there is no justification for the practice of “honour” crimes and killings. 

ExampleGhana Children’s Act of 1998, section 5 states:
 

“No person shall deny a child the right to live with his parents and family and grow up in a caring and peaceful environment unless it is proved in court that living with his parents would— 

(a) lead to significant harm to the child; or           


(b) subject the child to serious abuse; or 

(c) not be in the best interest of the child. 

Termination of parental rights  

Child protection laws should also provide that, if after a hearing a court finds by clear and convincing evidence that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent intent and desire to carry out an “honour” crime or killing on a child, it may terminate parental rights. Upon the termination of parental rights all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceeding concerning the child.

Child protection advisory body 

Legislation should mandate the formation of a child protection advisory board consisting of experts in the field who will be able to identify problems with implementation of the law and areas in which more research is needed.

Legislation should require that the advisory board be charged with the duty of researching customary laws, community practices, and attitudes so that evolving practices may be noted and amendments to the law may be drafted as needed.

Order for Protection

Legislation should establish a civil order for protection remedy for women and girls at risk of an “honour” crime or killing. Laws should provide for both an emergency, ex parte order for protection remedy as well as a longer-term order for protection issued following a formal hearing.

Standing to apply for order for protection  

  • Legislation should provide that any reputable person, such as a family member, teacher, neighbor, or counselor, having knowledge of a child who appears to be in need of protection, and having reason to fear imminent bodily harm for the child from the perpetration of an “honour” crime or killing, may petition the court for an order for protection from the crime or killing.
  • Legislation should provide that a girl or woman over the age of 10 who has reason to fear her own imminent bodily harm from the perpetration of an “honour” crime or killing also has standing to apply for an order for protection. 

Evidence needed to obtain order for protection

Legislation should state that the testimony of those with standing to apply for an order for protection from “honour” crimes and killings, in court or by sworn affidavit, is sufficient evidence on its own for the issuance of the order for protection.  No further evidence should be necessary. 

Petition for emergency order for protection

  • Legislation should provide for an emergency order for protection remedy for a female in need of protection from an “honour” crime or killing. A woman or girl at risk of an “honour” crime should be able to seek an emergency order for protection on an expedited basis, and judges should be available to issue such orders 24 hours a day, seven days a week. Legislation should empower judges to issue such emergency orders on an ex parte basis without a hearing. (See: Domestic Violence Section)
  • Legislation should provide that the petition for an emergency order for protection shall allege the existence of or immediate and present danger of an “honour” crime or killings.
  •  Legislation should provide that the court has jurisdiction over the parties to a matter involving “honour” crimes and killings, notwithstanding that there is a parent in the child's household who is willing to enforce the court's order and accept services on behalf of the family. This ensures continued protection in cases where parents may be divided over the issue of the “honour” crime or killing.   
  • Legislation should state that there is no waiting period necessary for the emergency protection order to take effect.

An order for protection should include:

  • Injunction against “honour”-based violence;   
  • Suspension of parental authority if the court determines that a parent or parents are considering authorizing the “honour” crime or killing of a minor child or that the child or a responsible adult has a reasonable fear that the parents are considering authorizing the “honour” crime or killing;

Legislation should also provide that an order for protection may, if appropriate: (1) prohibit the perpetrator from contacting the complainant, (2) require the perpetrator to stay away from the complainant (and other people, if appropriate) and the places that she frequents, (3) require the perpetrator to vacate the family home, (4) prohibit the perpetrator from purchasing, using, or possessing a firearm or other weapon specified by the court (such as acid or other weapons frequently used in “honour” crimes), and/or (5) require the perpetrator to provide financial assistance to the complainant. 

Legislation should also make clear that an order for protection remedy is available regardless of whether criminal charges are filed and irrespective of the complainant’s participation in any criminal proceedings against the perpetrator. 

Copy of order for protection to law enforcement agency 

An emergency order for protection shall be forwarded by the court administrator within 24 hours to the local law enforcement agency with jurisdiction over the residence of the complainant.

Each appropriate law enforcement agency shall make available to other law enforcement officers through a system of verification, information as to the existence and status of any order for protection issued. Each appropriate law enforcement agency shall make available to other law enforcement officers, through a system of verification, information as to the existence and status of any order for protection issued. Legislation should provide for the establishment of a nationwide registration system for orders for protection so that police can efficiently determine whether such an order is in place. 

Parental intervention and education programme

Legislation should provide that the parent, parents, or guardian of a child in a shelter, refuge or foster care home shall attend an intervention and education program on the issue of “honour” crimes and killings and women’s human rights. Legislation should require that the intervention and education program be established by NGOs with experience in this field. Legislation should require that the state fund the intervention and education program. 

Review of status of child in shelter, refuge or foster care home

       When an emergency order for protection is in effect with respect to a child and the child is residing in a shelter, refuge, or foster care home, the court shall periodically review the status of the child and of the parent or guardian regarding the issue of “honour” crimes and killings. (See the section on Hearing by Court).

       If the court finds that it is in the best interest of the child, the court may order that the child may return home to her parents. 

       Legislation shall provide that all other terms of the order for protection, including the injunction against travel and the injunction against “honour”-based violence, shall remain in place until the court finds that it is in the best interest of the child for each injunction to be lifted.

       Legislation should require follow-up monitoring of the child who returns to her parents to ensure that an “honour” crime or killing does not take place later. 

       Legislation should provide that if the court finds that it is in the best interest of the child to remain in the shelter, refuge or foster care home, the court may continue the child’s placement in the facility. 

Violation of order for protection 

Legislation should state that violation of an order for protection is a crime and a separate criminal offense from any “honour”-based violence that may occur in connection with the violation of the order. The penalty for violation of an order for protection should be sufficiently severe to deter such violations (e.g., a fine would not be a sufficient penalty), and laws should provide enhanced penalties for multiple violations of an order for protection.

No time limit on order for protection

Legislation should state that an order for protection should be left in place permanently, or until lifted by decision of the court after a hearing, or (in cases where the order relates to a minor) until the child attains the age of majority.

Hearing by court

  • Legislation should provide that a parent or guardian may request a hearing on an emergency order for protection for his/her child to determine whether the child shall continue to reside at a shelter, refuge, or foster home.
  • Legislation should provide that the hearing shall occur within 3 days of the removal of a child to a shelter, refuge, or foster home.
  • Legislation should provide that hearings by the court on an emergency order for protection shall be without a jury and may be conducted in an informal manner. In all court proceedings involving a child alleged to be in need of protection, the court shall admit only evidence that would be admissible in a civil trial.
  • Legislation should provide that allegations of a petition alleging a child to be in need of protection must be proved at trial by clear and convincing evidence.

Right to participate in proceedings

Legislation should provide that a child who is the subject of an emergency order for protection hearing, and the parents, guardian, or legal custodian of the child, have the right to participate in all proceedings on the emergency order for protection hearing.

Testimony of child

  • Legislation should provide that in the hearing for the order for protection, the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so, including by taking the child's testimony outside the courtroom.
  • Similar protections should be provided for minors testifying as victims in “honour” crimes prosecutions, including permitting testimony by closed-circuit television or other video display to prevent the minor from having to confront the defendant in person.
  • Legislation should provide that the court may also require counsel for any party to an order for protection proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed.
  • Legislation should provide that the court may excuse the presence of the child's parent, guardian, or custodian from the room where the child is questioned when it is in the child's best interest to do so. 

CASE STUDY:  The Child Protection Statutes for the State of Minnesota in the United States provide protective provisions regarding the examination and testimony of a child within the child protection services.      

2009 Minnesota Statutes, Child Protection, Minn. Stat. 260C.163 – Hearing: 

Subd. 6. Examination of child.

In any child in need of protection or services proceeding, neglected and in foster care, or termination of parental rights proceeding the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so. Informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom. The court may also require counsel for any party to the proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed. The court may excuse the presence of the child's parent, guardian, or custodian from the room where the child is questioned in accordance with subdivision 7.

Subd. 7. Waiving presence of child, parent.

The court may waive the presence of the minor in court at any stage of the proceedings when it is in the best interests of the minor to do so. In any proceeding, the court may temporarily excuse the presence of the parent or guardian of a minor from the hearing when it is in the best interests of the minor to do so. The attorney or guardian ad litem, if any, has the right to continue to participate in proceedings during the absence of the minor, parent, or guardian.

Data collection on emergency orders for protection

  • Legislation should require data collection on specific aspects of the implementation of the new law relating to “honour” crimes, including the number of emergency orders for protection sought, granted, denied, cancelled, or appealed.
  • Legislation should require that the data be able to be disaggregated by the type of order for protection sought so as to permit identification of an order for protection on the basis of “honour” crimes, as well as the general identity of the petitioner (e.g., the individual at risk, family member, or other aware individual).
  • Legislation should require that this data be kept and made publicly available.
  • Legislation should require qualitative data about the effectiveness of orders for protection to be gathered on a regular basis from police, courts, child protection agencies, counseling centers, shelters, schools, and survivors.
  • Legislation should require that this data be compiled by the relevant government ministry and be published on an annual basis.

 

(For more details on order for protection remedies, see: Section on Domestic Violence, subsection on Civil Remedies for Domestic Violence – Order for Protection Remedies)