Child Law notes based on lectures and tutorial. PDF

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First Lecture – 11 March 2021 Intro to Child Law Content of the Course Part 1

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Who is a child & understanding child development International legal framework on the rights of the child Development of child law and child rights in Malaysia

Part 2

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Children, Parents/ Guardian and the State: Protection of children from harm Children in need of protection and case: child abuse and neglect, child in minority groups, children in need of protection and rehabilitation, children beyond control

Part 3

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Children and Society: Children in conflict with the law

Part 4

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Selected legal issues: Issues with sexual reproductive health, child marriage

L1 & L2 Child Development Scope of discussion:  

Who are children and the different age categorizations Brain development & how it impacts child development

A) Who are Children?  United Nation’s Convention on the Rights of the Child (CRC) & Child Act 2001 =A child is anyone who has not attained the age of 18 years old *A child who has not been born or about to be born will not come within the definition of child under the Child Act. (The period of being a child starts from birth towards the ends of 18 birthday) 

Different age limits for criminal liability of children Below 18 years old Everyone below the age of 18 years old is regarded as child under the law where he/she deserves all the protection accorded to the law. (For instance, S97 of Child Act = death sentence shall not be pronounced against the offender if it appears to the court that the offence was committed at the time when he was a child and shall be detained in a prison during the pleasure of the YDPA/ Ruler)

For person age from 18-21, he or she will be regarded as youthful offender under S2 of the Criminal Procedure Code (they can still be sent to Henry Gurney School rather than jail, however they have to bear the death penalty under the law) 10 years and above

Child above 10 years old is deemed to have attained the age of criminal responsibility and can be held liable if they come into conflict with law. However, S82 of the Penal Code provides that no liability can be imposed on child below the age of 10 For child age between 10-12 years old, they can raise the defence of doli incapax under S83 of the Penal Code if they have not attained the sufficient maturity

Boys below the age of 13 years old

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S113 of Evidence Act = boys below the age of 13 years old is presumed to be incapable of committing the offence of rape under the law (although they can be medically proven to have committed the act)

Different age limits for other purposes Evidence of Child Witness Act A child witness S2 – Child witness means a person under the age of sixteen years who is called or proposed to be called to give evidence in any proceedings S4 – A child witness may be prevented from seeing or being seen by the accused or a child charged with any offence. Statutory rape victim

S 375(g), Penal Code Anyone who has sexual intercourse with any girl below the age of 16 years old is guilty of statutory rape (regardless if she consented) *However, consent will have an impact on the sentencing (judge may impose lighter punishment if consent was given)

Early marriage

Islamic law

Children below 16y/o for girls and below 18 for boys must seek permission of Syariah Court (except for Selangor = 18 y/o for both boys and girls) for child marriage. *However, there is no absolute prohibition of child marriage under Islamic law for any age as long as permission is granted Civil law Complete prohibition for girl below 16 and boy below 18 but permission may be sought from the Chief Minister if the girl has reached 16 years old

B) Understanding Child Development i)

Neuroscience and Law  Neuroscience is the empirical study of the brain and connected nervous system.  Contemporary neuroscience seeks to explain how human behavior arises from brain activity. Neuroscientists seek to determine how brain function affects behavior.  The interplay between neuroscience and law is inevitable for the law is concerned with regulating behavior. 

The most important conclusion from recent research: -Significant changes in brain anatomy activity take place far longer into development than had been previously thought -Adolescence particularly is a period of substantial brain maturation with respect to both structure and function -The understanding of the interplay between neuroscience, child development and the law lays the basic premise on the crucial need to perceive, treat and handle children differently in the different situations where they intersect with the legal system

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2 main factors which influence why child development differs from adult: -physiological -evolving mental and physical capacities -environmental -family/ schools/ others

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Brain Development Frontal lobe is the most important part of human brain. It is the “control panel” of the brain where its mainly controls one’s personality and ability to communicate. such as emotional expression, problem solving, planning, creative thinking, sexual behaviors, judgment, memory and language.

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Scientifically, a brain is developed fully at the age of 20 (which leads to the question of should age of majority be 21 or 18? This would then lead to dilemma faced by doctors when dealing with cases that involve children that is statutorily required to get parental consent before proceeding to the treatments but at the same time medical ethics require doctors to prioritize patients) At the same time, we are facing an issue that children hit puberty faster than their brain fully developed. Apart from frontal lobe, another important part of the brain is the amygdala that controls arousal (particularly sexual arousal), regulation of emotion & initial emotion response to sensory information. 90% of brain development happens before the age of 5. (The frontal lobe, despite being the most important part of the brain, is the last reaming 10% to be developed) Also, the amygdala is developed earlier than the frontal lobe, that’s why children can be sexually aroused despite the frontal lobe being “underdeveloped”. Brain Development of Adolescence (12-19 years) According to WHO (World Health Organisation), adolescence means people in the age of 10 to 19 years old. This is contradicting Convention on the Rights of the Child (which define adolescence as people in the age of below 18 This leads to some legal issues especially children pregnancy and abortion. The parietal lobe getting mature at the adolescence stage Dr. Elizabeth Sowell, a member of the UCLA brain research team: -The frontal lobe undergoes far more changes during adolescence than at any other stage of life. -It is also the last part of the brain to develop, which means that even as they become fully capable in other areas, adolescents cannot reason as well as adults (which reflects on their cognitive functioning)

“Plasticity” Concept – Environmental Impact The ability to adapt to our environment is a part of normal development. But regardless of the general environment, all children need stimulation and nurturance for healthy development. If these are lacking/ a child's caretakers are indifferent or hostile/ the child's brain development may be impaired. Because the brain adapts to its environment, it will adapt to a negative environment just as readily as it will adapt to a positive one. New discoveries provide scientific confirmation that the childhood and teen years are a time of significant transition. Therefore, at this stage, adolescence have significant neurological deficiencies that result in stark limitations of judgment. Research suggests that when compounded with risk factors (neglect, abuse, poverty, etc.), these limitations can set the psychological stage for violence. It was proven that child maltreatment will lead to lifelong impact in particular:

Health Risk Behaviours -Sexual promiscuity -Sexual violence -Alcohol abuse -Illicit/injecting drug use -Smoking -Behaviour problems

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Disease and Injuries -Ischaemic heart diseases -Stroke -Diabetes -Cancer -Suicide -Skeletal fractures -Asthma -STDS (e.g.HIV) -Hepatitis

Mental/ Social Problems -PTSD -Depression -Anxiety -Eating disorders -Cognitive Development Delay -Unwanted Pregnancy -Obesity -Repeat Victimization

A comprehensive study of traumatic experiences in the lives of death row juvenile offenders deduced the following findings: - 74% experienced family dysfunction - 60% were victims of abuse and/or neglect - 43% had a diagnosed psychiatric disorder - 38% suffered from substance addictions - 38% lived in poverty. Stages of Child Development Piaget’s Theory No Stage Age 1 Sensorimotor 0-2 2

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Cognitive Capacity -Simple sensory-motor integration and primitive symbolization Preoperational 2-7 -Representational stage of extended verbal symbolism. -Language becomes progressively more elaborated and governed by external feedback, including language from other persons. -The child learns to delay gratification. Concrete 7-11 -Language and behavior become more operational structured, more independent of external stimuli and more creative. -Interests in games, sports, erector sets and proble m solving. Formal Adolescence -Utilize logical reasoning for the operational into adulthood construction of hypotheses and for the (at 12) testing of alternative solutions. -Both induction and deduction become the means to do it. -Most critically, the subject becomes progressively better capable of integrating information in the time

domain, and thus of constructing extended goal directed gestalts of speech and behavior. 

Skills developed through play: -teamwork/ problem solving/ empathy/ creativity/ self-expression/ negotiation/ communication/ goal setting/ following rules/ self-confidence/ self-reliance/ social interaction

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Left brain vs right brain Integration & Expression -conscious -logic and reasoning -language processing -detailed oriented -upbeat state -slower speed of data processing -factual

Creativity & Imagery -subconscious -intuitive senses -imaging ability -big picture oriented -calm and relax -high speed data processing & memory retention -empathetic

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Childhood Inner Development

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Brain Development for Early Adulthood (20 - 30 y/o)

-At this stage, the brain is anatomically, physiologically and functionally mature. -However, the brain is still continuing to develop throughout adulthood. -However, synapse formation is much slower than in childhood (synapse are formed based only on specific experience in the adult’s life). v) 

Why is a special approach to children necessary? Why we ought to treat children differently? -There are a variety of justifications for employing special safeguards when dealing with cases involving children: 1) Children are not fully mature and require special protection. 2) Children have unique and special needs. 3) Children are less culpable for their actions. 4) Children have greater rehabilitative potential. 5) Improves the effectiveness of justice proceedings. 6) Prevents secondary traumatization of child victims.

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How Adults Ought to Treat Them? -There are several aspects of children’s development which are directly relevant to how adults ought to treat them: 1) Cognitive 2) Language 3) Moral 4) Memory

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Preamble of Child Act 2001 The preamble to the Child Act acknowledges that children require special care and attention due to their physical, mental and emotional immaturity (in line with United Nations’ Child Guidelines): “Acknowledging that a child, by reason of his physical, mental and emotional immaturity, is in need of special safeguards, care and assistance, after birth, to enable him to participate in and contribute positively towards the attainment of the ideals of a civil Malaysian society.”

SECOND LECTURE - 18 MARCH 2021 ANNOTATION IN BLUE L3L4 CHILD RIGHTS AND THE INTERNATIONAL LEGAL FRAMEWORK A. INTL LEGAL FRAMEWORK 1. The notion that children have rights of their own is not a new concept. It began in the 1920s, became part of the UDHR in 1948 and reframed in 1959. -

Animals gained earlier recognition as compared to children

2. In 1924, the League of Nations (LON) adopted the Geneva Declaration, a historic document that recognized and affirmed for the first time the existence of rights specific to children and the responsibility of adults towards children -

This is an extremely important document

3. We are all members of United Nations, this is the foremost, first declaration of Human Rights, United Nations Universal Declaration of Human Rights (UDHR). 4. Article 25(2) of UDHR provides “motherhood and childhood are entitled to special care and assistance”. 5. The second Declaration of the Rights of the Child (1959) -

was adopted unanimously on 20 November 1959 , by all 78 Member States of the United Nations General Assembly in Resolution 1386 (XIV).

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“…Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,

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“Whereas the need for such special safeguards has been stated in the Geneva Declaration of the Rights of the Child of 1924, and recognized in the Universal Declaration of Human Rights and in the statutes of specialized agencies and international organizations concerned with the welfare of children ,

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Whereas mankind owes to the child the best it has to give …

Convention on the Rights of the child 1. The first comprehensive convention on the rights of the child

2. Adopted by the General Assembly on the UN on 20 November 1989 3. The CRC is a widely acclaimed as a landmark achievement for human rights, recognizing the roles of children as social, economic, political, civil and cultural actors. guarantees and sets minimum standards for protecting the rights of children in all capacities. 4. The Convention sets out these rights in 54 articles and three Optional Protocols. UN Instrument adopted by resolution no. 44/25 of the General Assembly of the United Nations, 20 November 1989. Status of the CRC 1. As of 18 March 2021, the CRC had been ratified or acceded to, by 196 States. Only one Member State, the United States of America, is not yet party to the Convention. ● They signed it but signing is not the same as acceding/ratifying ● Acceding/ratifying = agreeing to be bound 2. The Optional Protocol to the CRC on the involvement of children in armed conflict had been ratified or acceded to by 166 States; 3. The Optional Protocol to the CRC on the sale of children, child prostitution and child pornography had been ratified or acceded to by 173 States; 4. The Optional Protocol to the CRC on a communications procedure had been ratified or acceded to by 34 States. (Latest one is this and Msia has not ratified) Child and Child rights 1. According to UNCRC – a child is any human being below the age of eighteen years 2. Child rights are specialized human rights that apply to all human beings below the age of 18 What are child rightS? 1. There are 4 domains -

Right to survival

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Right to development

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Right to protection

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Right to participation

2. Overview of Key underlying principles of the CRC -

Best interests of the child as primary consideration

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Principle of non-discrimination

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Right to survival, development and protection

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Right to participation

Dr Farah: -

These 4 principles underpin all of the 54 Articles of the CRC

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The 4 domains differ from the underlying principles

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These are the guiding principles when you interpret whatever provisions in the CRC and legal provisions for child rights

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They are a key element to the exercise of other rights

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Eg. in determining what would be the best interest of the child, you need to allow the child to participate, you are actually invoking the 4th principle in deciding what would be the best interest.

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Eg. need to apply principle of non-discrimination

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These 4 principles underpin and interact with each other when you are dealing with a child

3. Principles a. 1st principle - Art 3, para 1 CRC -

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration

b. 2nd principle – Art 2: Principle of Non-discrimination -

Children's rights are violated or left unfulfilled in ways in which those of adults are not. This is a result of systemic discrimination direct or indirect against children.

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Children face discrimination in most societies in comparison to adults because they have less power. This is a result of children’s dependence on adults and adults' reluctance to

give them more decision making power as they develop the ability to exercise it themselves. -

Besides experiencing discrimination as a group (or 'age-based discrimination'), children face discrimination on other grounds such as their gender (evidenced in our statutes), disability (case law which shows certain rights of child are violated simply because of their special needs), or sexual orientation, and sometimes because of a combination of reasons

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The UN Committee on the Rights of the Child has so far identified 53 grounds of discrimination against children based either on their identity or the identity of their parents.

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At this juncture, I want to remind you all that apart from CRC, you have another document general comments on CRC. These general comments are developed on particular issues concerning children. Eg. General comment on children who come into conflict with the law, General comment on Principle of non-discrimination, General comment on best interest, which are developed by the Committee on the Rights of Child. In UN, there is a committee, there are representatives from member states and they sit together to develop the general comments. These comments are extremely useful guidelines for the interpretation of the CRC. Can be downloaded from OCHR website.

c. 3rd principle: The Right to Survival, Development and Protection (cover various articles) -

One will realize when going through the CRC, These cover articles on different forms of education (formal and non formal), primary health care, leisure and recreation, cultural activities and the right to a standard of living that is adequate for the child’s physical, mental, spiritual, moral and social development. (The first para naturally supports the right to survival and development. For instance, vaccination, you provide education because not only you want to develop the child but because education is the key to survival today)

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Apart from these, one must read these rights to include protection from all forms of child abuse, neglect, exploitation and cruelty, including the right to special protection in times of war and protection fro...