- Legislation should ensure that there are child welfare laws and policies to prevent child abuse.
- Legislation should identify child marriage as a form of child abuse.
- Legislation should mandate that child marriage prevention and prosecution are given the same resources as other forms of child abuse.
- Legislation should create a child protection system that contains, at a minimum, survivor support, alternative care options, family support services, justice system responses (see order for protection section below) and referral mechanisms. See: UNICEF Child Protection Strategy for all the components necessary to establish a child protection system. (See: Child Protection: A handbook for Parliamentarians)
Core Elements in Child Protection Laws and Systems to Protect against Forced and Child Marriage
The following elements should be established as the core elements in child protection laws and systems to protect against forced and child marriage. 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 undergoing forced and child marriage.
- Legislation should authorize the removal of the 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 the performance of forced and child marriage.
- Legislation should authorize the placement of a child in danger of forced and child marriage 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 force a minor child into forced and child marriage, 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 forced and child marriage or if the court determines that the child or a responsible adult has a reasonable fear that the parents are considering authorizing forced and child marriage.
- 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 enter into a forced and child marriage.
- Legislation should provide that where court orders are issued for protection against forced and child marriage, the order remain in place until the parents have demonstrated at a court hearing that they understand the adverse consequences of forced and child marriage, and that they will not subject their daughter to forced and child marriage.
- 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 forced and child marriage and it is in the child’s best interests to not marry before the age of 18.
See: Protecting Children from Harmful Practices in Plural Legal Systems, Office of the Special Representative of the Secretary on Violence against Children, 2012; “This Old Man Can Feed Us, You Will Marry Him”, Human Rights Watch, 2013.
Illustrative Examples:
In Ghana, the 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.
In The Gambia, the Children’s Act provides that “…no child is capable of contracting a valid marriage, and a marriage so contracted is voidable.”
In Egypt, amendments to the Children’s Act (Act No 126 of 2008), raised the age of marriage for girls from 16 to 18 years. The Act provides that no marriage contract shall be authenticated if the parties have not attained the approved age and prescribes administrative punishment for failing to meet this condition.
South Sudan’s Child Act (2008) defines a child as anyone under 18 and states that every child has the right to be protected from early marriage, but the Act doesn’t specify a minimum age for marriage. Under the Act children’s rights to nondiscrimination, birth registration, health, education, life, survival and development, an opinion, protection from torture and degrading treatment, and to protection from abuse also are protected. Article 22 states that, “Government shall take concrete measures to protect children from all forms of abuse and to ensure that any child who becomes the victim of abuse … shall be accorded appropriate treatment and rehabilitation. The law also provides that those convicted of abusing a child can be sentenced to 14 years, and specifies that anyone convicted of violating the rights of a child can be convicted and sentenced to up to seven years under the Act.
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 harm for the child from forced and child marriage, may petition the court for an order for protection from forced and child marriage.
- Legislation should provide that a girl or woman over the age of 10 who has reason to fear her own imminent harm from forced and child marriage 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 forced and child marriage, 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 that the petition for an emergency order for protection shall allege the existence of or immediate and present danger of forced and child marriage.
- Legislation should provide that the court has jurisdiction over the parties to a matter involving forced and child marriage, 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 on the issue of whether their daughter should be forced to enter into a forced and child marriage.
- Legislation should provide an emergency order for protection remedy for a female in need of protection from forced and child marriage. See: Domestic Violence.
- Legislation should state that there is no waiting period necessary for the emergency protection order to take effect.
The emergency order for protection should include:
- Injunction against the forced and child marriage;
- Suspension of parental authority if the court determines that a parent or parents are considering authorizing the forced and child marriage of a minor child or that the child or a responsible adult has a reasonable fear that the parents are considering authorizing a forced and child marriage; and
- Suspension of travel authority if the court determines there is risk that the child will be taken out of the country to enter into a forced and child marriage.
Travel Restrictions
Legislation should provide authorization for courts to suspend travel authority for the child if the court determines that the parents are considering authorizing a forced and child marriage or that the child or a responsible adult has a reasonable fear that the parents are considering authorizing a forced and child marriage.
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 child.
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.
Parental Intervention and Education Program
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 forced and child marriage and its adverse consequences. 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 and a 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 forced and child marriage. (See Hearing by Court below).
- 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 forced and child marriage, 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 a forced and child marriage 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 the emergency order for protection is a crime.
No Time Limit on Order for Protection
Legislation should state that an emergency order for protection should be left in place permanently, or until lifted by decision of the court after a hearing, or until the child attains the age of majority.
Hearing by Court
- Legislation should provide that a parent, parents or guardian may request a hearing on the emergency order for protection 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 an 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.
- Legislation should provide that informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom.
- Legislation should provide that 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.
- 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.
CASE STUDY: United States, Minnesota
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.
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.
Data Collection on Emergency Orders for Protection
- Legislation should require data collection on specific aspects of the implementation of the new law, such as number of emergency orders for protection sought, granted, denied, cancelled, or appealed.
- Legislation should require that the data be able to disaggregated by the type of order for protection sought so as to be able to identify an order for protection on the basis of forced and child marriage, as well as the general identity of the petitioner (the individual at risk, family member, or other aware individual).
- Legislation should require that this data be kept and made available publicly.
- 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 from survivors.
- Legislation should require that this data be compiled by the relevant government ministry and be published on an annual basis.