The law provides that “whosoever, having found a newly born child, shall fail to provide for its immediate safety, or, having assumed the care thereof, shall not, within twenty-four hours, deliver the same, or give information thereof, to the Executive Police, shall, on conviction, be liable, in the first case, to imprisonment for a term from four to six months, and, in the second case, to imprisonment for a term from one to three months: Provided that in either case, the court may, in its discretion, award a fine (multa or ammenda) in lieu of imprisonment.”
Facts and information: child abuse
The law provides for crimes against humanity. The law defines a crime against humanity “where any of the following acts is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Among the list of crimes listed under crimes against humanity is “enslavement” which the law defines as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children”. The punishment for enslavement would entail a term of imprisonment not exceeding 30 years.
The law gives a definition to what trafficking is. The law provides that “the phrase "trafficks a person" or "trafficks a minor" means the recruitment, transportation, sale or transfer of a person, or of a minor, as the case may be, including harbouring and subsequent reception and exchange or transfer of control over that person, or minor, and includes any behaviour which facilitates the entry into, transit through, residence in or exit from the territory of any country,” for the purposes listed below. The law describes the crimes of” trafficking of persons” of age and then goes on to describe the punishment when committed against a minor.
The law provides that “whosoever…. traffics a person of age for the purpose of exploiting that person in:
(a) the production of goods or provision of services; or
(b) slavery or practices similar to slavery; or
(c) servitude or forced labour; or
(d) activities associated with begging; or
(e) any other unlawful activities not specifically provided for elsewhere under this sub-title, shall, on conviction, be liable to the punishment of imprisonment from four to twelve years.”
The law goes on to define exploitation which means “requiring a person to produce goods and provide services under conditions and in circumstances which infringe labour standards governing working conditions, salaries and health and safety.”
The law also provides that there must be certain means used to be liable for this offence. These include:
(a) violence or threats, including abduction;
(b) deceit or fraud; (c) misuse of authority, influence or pressure;
(d) the giving or receiving of payments or benefits to achieve the consent of the person having control over another person;
(e) abuse of power or of a position of vulnerability:
Provided that in this paragraph "position of vulnerability" means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse
involved.” It is also irrelevant if the victim consented to be exploited like this, whether such consent was intended or actual.
The law provides that “Whosoever…. trafficks a person of age for the purpose of exploiting that person in prostitution or in pornographic performances or in the production of pornographic material or other forms of sexual exploitation shall, on conviction, be liable to the punishment laid down in article 248A(1).” The punishment for this offence is like the previous one that is from four to twelve years. Also the same means described above also need to be used to traffic such person.
In this case if the means used as described above are used for the removal of human organs, then the offender is liable for a term of imprisonment from six to twelve years.
The law provides that “Whosoever shall practice or engage in child labour for any of the purposes mentioned in article 248A shall, on conviction, be liable to the punishment established under article 248D”. These are the same punishments for crimes committed against minors as aforementioned.
For the purposes of this article child labour shall include the coercion of a person under age into forced or compulsory labour for any purpose whatsoever including the forced or compulsory recruitment of minors to take part in armed conflict”.
The law provides for aggravations to the punishment for the trafficking of persons where the offence:
“(a) is accompanied by violence, or has caused grievous bodily harm; or
(b) generates proceeds exceeding eleven thousand and six hundred and forty-six euro and eighty-seven
cents (11,646.87); or
(c) is committed with the involvement of a criminal organisation within the meaning of article 83A(1); or
(d) is committed by a public officer or servant in the course of the exercise of his duties; or
(e) is committed against a vulnerable person within the meaning of article 208A(2); or
(f) when the offender willfully or recklessly endangered the life of the person trafficked, the punishment otherwise due shall be increased by one degree.”
The law also putsresponsibilities on corporate entities where children are exploited by forcing them to work in such corporate entities. Since a body corporate is not a legal person, it can only be fined. In this case the law imposes a fine of not less than €11,646.87 and not more than €1,863,498.72. However the physical persons who represent the body corporate are also subject to punishment. Here the law provides that “Where the person found guilty of any of the offences under this sub-title:
(a) was at the time of the commission of the offence an employee or otherwise in the service of a body corporate, and
(b) the commission of the offence was for the benefit, in part or in whole, of that body corporate, and
(c) the commission of the offence was rendered possible because of the lack of supervision or control by a person referred to in article 121D,
the person found guilty as aforesaid shall be deemed to be vested with the legal representation of the same body corporate which shall be liable to the payment of a fine (multa) of not less than ten thousand euro (€10,000) and not exceeding two million euro
The law provides that “the provisions of article 208B(2) and (2A) shall apply to any person found guilty of any offence under Sub-titles I to V, both inclusive, and Sub-title VIII when committed against a person under age”. Article 208B(2)provides that “in addition to the punishment established for the said offences, the Court may order that the offender be temporarily or permanently prevented from exercising activities related to the supervision of children.”
Article 208B(2A) provides that “where the court makes an order under subarticle (2) such order shall be registered in any criminal record of the offender”. The offences listed in sub-titles I to V and title VIII are numerous but they include willful homicide, bodily harm, involuntary homicide or bodily harm, concealment of
wilful homicide, bodily harm or concealment of dead bodies, abortion, and abandonment, exposure and ill-treatment of children.
This new bill will replace the Children and Young Persons (Care Orders Act). The proposed law provides that there should be mandatory reporting where “Any person who has reason to believe that a child, born or to be born, is in actual or potential significant harm, or in need of care and protection shall report the circumstances on which the belief or suspicion is based to the CPS or the Executive Police.”
If a person is working, even if doing voluntary work, and comes into contact with a child and has reason to believe that “a child is in actual or potential significant harm, or in need of care and protection, that person shall, without delay and not later than two days, report to CPS or the Executive Police.” The same obligation would arise if a person comes into conduct with a pregnant mother, and has reason to believe that the unborn child is in actual or potential significant harm, but in this case the report necessarily has to be made to the CPS and not the Executive Police. The law also provides that “All efforts shall be made to keep mother and child together after birth, unless this is manifestly contrary to the safety and well-being of the child.
If a person fails to fulfil his duty and fails to report such matters shall be liable to a criminal offence, which is punishable by imprisonment from four months to one year and, or by a fine not exceeding €5000. However one has to ensure that the report is a genuine one since if a person maliciously reports a case, then such person shall be liable to the same punishment. However such person may also be liable to any other punishment under any other law for providing wrong information.
“The Court may issue one or more of the following Child Protection Orders:
a. an Emergency Order which is issued for the immediate removal of the child from the person(s) having the legal or actual care of the child where that child is in danger of significant harm;
b. a Supervision Order placing the child under the supervision of the designated agency for a time to be specified in the order and under those conditions which it may deem expedient;
c. a Parental Treatment Order ordering any person having the legal or actual care of the child to submit to treatment or training under the supervision of a competent entity or professional, including treatment for any drug or alcohol abuse, psychiatric or psychological treatment, and parental skills training, subject to any conditions which the Court may deem appropriate;
d. a Care Order which is issued where the child is not receiving such care and protection as a good parent may reasonably be expected to give.
The law gives a non-exhaustive list of what not receiving care and protection such as
1. serious deficiencies in the everyday care of the child or in terms of personal contact and security,
2. where a parent fails to give the requisite treatment and specialised care if the child is ill, disabled or in need of assistance,
3. where a child is mistreated or subjected to other serious abuses, whether in the home or outside the home, and is not being provided with the adequate protection,
4. where it is highly probable that the child’s health or development may be seriously harmed because the parents are unable or unwilling to take the required responsibility for the child,
5. where the child is an unaccompanied asylum seeking child in terms of the Refugees Act,
6. where the child exhibits very challenging behaviour that is harmful to itself or to others or has been arrested or detained pending proceedings or convicted of an offence
a. Removal Order, which is issued to remove the perpetrator of violence against the child from the home and to provide protection to the child, and this without prejudice to the provisions of the Criminal Code and the provisions of the Civil Code:
Provided that in the issuing of any such child protection order, due consideration shall be given to the maintenance of family relationships and the possible reunification of the child with the family where this is shown to be conducive to the child’s well-being.
Once and if a Child Protection Order is issued, all efforts will be made so that any trauma that a child may endure is minimized. This also entails setting up a Children’s House which is defined as a safe place where the child is interviewed in one sitting, by a team of experts, in order to reduce trauma to the children, while ensuring that the rights of all parties are duly respected. However if there are any unaccompanied asylum seeking children, all efforts will be made so that any additional trauma to the child is minimized by requiring that the child receives appropriate psycho-social care even prior to the issue of the Order but always immediately on issue.
When an Emergency Order or Care Order is issued, the child shall be assessed in a Residential Assessment Centre (RAC) to plan the best out-of-home plan for the child. If again, there are any unaccompanied-asylum seeking children, the RAC will also look into issues such as health, psycho-social, and age assessment procedures which may apply to the child.
The law provides a punishment “for any person who o knowingly compels, incites or assists or in any way abets any person to violate any order given by the Court shall be liable, on conviction, to imprisonment for a term not exceeding six months or to a fine (multa) not exceeding two hundred and thirty-two euro and ninety four cents or to both such fine and imprisonment”.
If a person has the legal and actual care of the child, and such person breaches any agreement concluded with the CPS, or of any child protection order imposed by the court, the professional sharing responsibility for the child or working to promote the best interests of the child may at any time refer the case to the Court. However the Court will always make an effort to ascertain what the child’s wishes and views are, and may also hear the child if he or she would like anyone present during the interviewing process. Such interviews must be carried out by persons who have received appropriate training and in the case of asylum-seeking children it must be ensured that there is a linguistic and cultural sensitivity. A formal record is kept detailing the way in which the child’s views are ascertained and the principal substance of these views.
Where ascertaining the child’s views would affect the child’s well-being and endanger the child’s health or development, this shall also be formally recorded.
Any views given by the child “shall be established with sensitivity and in a manner that does not cause unnecessary harm to the relationship between the child and the child’s parents or other persons close to the child, provided that all efforts shall be made to preserve the confidentiality of the child’s views.”
“The CPS, the court or any other party acting in the best interest of the child, shall inform and explain to the child according to that child’s maturity and understanding, and any particular needs”. Such explanations entail
(a) the procedures that have been taken with respect to the child and the reasons for taking them;
(b) any further procedures that may be required with respect to the child;
(c) the child’s right to consult with a Child Advocate; and
(d) any other information which may be pertinent to the child’s well-being.
The best interest of the child shall be looked at by the Court, the CPS and any other professional regulated body. The law gives a list of considerations to be looked at when considering the needs of the child. These are
a. balanced development and well-being, and close and continuing human relationships;
b. the opportunity to be given understanding and affection, as well as supervision and care that accord with the child’s age and level of development;
c. an education consistent with the child’s abilities and wishes;
d. a safe environment in which to grow up, and physical and emotional freedom;
e. a sense of responsibility in becoming independent and growing up;
f. the opportunity to become involved in matters affecting the child and to influence them; and
g. the need to take account of the child’s linguistic, cultural and religious background.
These considerations apply even if the child is placed in an out-of-home care. Care plans and care reviews shall be drawn up which reflect such considerations.
As stated above the Court will adopt the best interests’ principle, even if this requires that the child’s freedom of movement may be restricted to the extent required by the well-being of the child. In such cases the Court shall review the circumstances regularly and at least every twenty-eight days. The Court may also appoint appropriate persons to deliver specialised care required in the best interests of the child, including medical and psychological treatment, therapy and training. Where such persons are appointed, the Court shall ensure they submit regular reports and record measures taken in the child’s care plan.
The law also provides that “Where a child exhibits behaviour which places that child or others in danger of harm, the guardian shall take immediate steps to place the child in safety and shall notify the Court of these steps without delay and within not later than two days shall provide the Court with recommendations to amend the care plan of the child, following consultation with the child’s carers, social worker and any other appropriate persons”.
A child protection order will remain in effect either until the child turns 18 years old or until the Court revokes or terminates it. Before revoking such order the Court will listen to the child, his social worker, the guardian and the child’s advocate as applicable to see if such revocation is justified, since the Court needs to be convinced before revoking such order. The Court will “reject such application where it is satisfied that the child has developed a significant attachment to the person taking care of him and alternative environment, which indicate that removing the child may lead to the child suffering significant prejudice or harm.
In fact the Court may decree that a child who has been placed under a child protection order may be freed for adoption. The Court may also decree that the child is put in permanent foster care. This is done when there is a child in foster care where after four foster care reviews, the Court after listening to the views and wishes of the child may decree such foster care permanent.
The Law provides that “the Court shall have exclusive jurisdiction to hear and determine matters relating to the issuing of review, termination and all other ancillary matters concerning child protection orders, subject to the provisions of this Act.” The Court shall also be assisted by two members of the Child care Advisory Group. This is a group of six persons of good repute and who must have a minimum of seven years of professional experience in child care, child welfare, child development, child protection, child law and, or child psychology. Children shall automatically be assigned a Child Advocate, unless they expressly decline the offer. If the child refuses a Child Advocate, the child’s wishes shall be respected. Any party to the proceedings before the Court who feels aggrieved by a decision of the said Court may appeal to the Court of Appeal sitting in its inferior jurisdiction, on points of law. The Court of Appeal will have the power to confirm, revoke or alter the decision appealed against and to give such
directions as it may deem appropriate.