SOME ISSUES IN THE PROVISIONS OF THE LAW ON CHILD PROTECTION FROM VIOLENCE

“Children, by reason of his/her physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, it is the content presented in the United Nations Declaration of the Rights of the Child 1959. In addition, Article 37 of the Constitution of the Socialist Republic of Vietnam also confirms that “Harassing, persecuting, maltreating, abandoning or abusing children, exploiting child labor or other acts that violate the child rights are prohibited." Institutionalizing this provision of the Constitution, on April 5^th, 2016, the 13^th National Assembly passed Law on Children in 2016 (effective from June 1st, 2017). This act is an essential and meaningful legal corridor for the prevention, control, and child protection from violence in Vietnam.

 

However, the number of cases of child abuse in Vietnam has been increasing dramatically. In particular, from 2015 to 2019, there were 8,442 cases of child abuse in Vietnam, with 8,709 abused children[1]; and only the first six months of 2020, there  were 1,1012 cases of violence against children, with 1059 abused children; especially the rate of children exploited sexually has increased significantly[2]. On May 26^th, 2020, the Prime Minister had to enact Directive No. 23/CT-TTg on strengthening solutions to ensure the implementation of child rights and child protection, accordingly, the Prime Minister identified that some issues related to children still remain and have complicated developments.

 

Therefore this article, through the practical perspective, going into the details of the inadequacies of the law (provisions) on child protection from violence, proposes and recommends some suggestions to complete the law, contributing to the protection of Vietnamese children.

 

II. THE CONTENT OF THE RESEARCH

1. Some basic definitions of the law on child protection from violence

1.1 The concept of a child 

According to Article 1 of the United Nations Convention on child rights, a child means any person under the age of 18, except for the cases that the law may apply to a child stipulating an earlier age of youth. The concept of the child is officially referred to in Article 1 of the Order on the Child Protection, Care and Education in 1979 is as follows: “A child mentioned in this Order includes a person from  new-born  to 15 years old", in particular,  Article 1 of the Law on Children 2016, which is currently in effect provides: “Child is the person who are under the age of 16”. Therefore, different from the CRC, in Vietnam, a child is a person under 16 years old, regardless whether they are Vietnamese citizens or foreigners residing in Vietnam.

 

1.2. The concept of the child protection

In Clause 1 Article 4 of Law on Children 2016 defined Child Protection as follows: "Child Protection refers to the implementation of appropriate measures for ensuring a safe and healthy life for children, the prevention and handling of  child abuse and the support for disadvantaged children." It can be seen that this is a fairly comprehensive term for child protection with a level-by-level approach from ensuring a safe living environment for children to preventing, stopping, and dealing with violation against children and helping children belonging to disadvantaged situations.

 

1.3. The concept of violence against children 

According to the definition of the World Health Organization (WHO), violence against children includes all forms of physical or mental mistreatment, sexual abuse, exploitation, or neglect, resulting in harm or potential harm to health, dignity, or child development. The violence against children can be performed by parents, caretakers, or an older child, etc[3]. The violence against children also known as “child abuse” as defined in Clause 5 Article 4 of Law on Children 2016, child abuse refers to any act that results in harm to the body, emotion, psychology, honor, or human dignity of such child through violence against the child, child exploitation, sexual abuse, neglect and abandonment, and other forms of causing harm to the child. 

 

The common and basic acts of child abuse are identified as follows:

1. Violence against the child refers to acts of maltreating, persecuting or beating a child; physical abuse or causing harm to the child’s health; reviling or offending honor or dignity of the child; segregating, driving the child away and other deliberate acts that cause physical and mental harm to the child.
2. Child exploitation refers to the act of forcing the child to work against the law on labor; performing or producing pornographic products; organizing or supporting  tourist activities for the purpose of child sexual abuse; offering, adopting or supplying the child for prostitution and other acts of using the child for profiteering purpose.
3. Child sexual abuse refers to the act of using violence, threatening to use violence, forcing, persuading or seducing a child to engage in sexual acts. The child sexual abuse includes rape, aggravated rape, sexual intercourse or molestation with children and use of children for prostitution or pornography in any form.
4. Child neglect and abandonment refer to the child parent’s or the child caregiver’s failure to perform or inadequate performance of their duties to take care of the child.

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2. Inadequacies in the provisions of the law on child protection from violence

​2.1. The age of child definition in Vietnam is not yet compatible with that of the World

Vietnam is the second country in the world and the first in Asia to have ratified the CRC without reservation. In addition, the Convention 182 of the International Labor Organization (ILO), which Vietnam ratified in 2000, emphasized that the term "child" is applied to all people under the age of 18.

 

It can be seen that all the Conventions related to the child that Vietnam ratified recognize children as people under 18 years of age. However, Article 1 of the Law on Children 2016 of Vietnam stipulates as follows: “A child is a person under the age of 16”, the age of 16 to 18 is deemed to be a teenager. This determination is inconsistent with the CRC as well as inappropriate with the popular opinions of the international community on the maturity of the child. This regulation will cause troubles in the implementation of international commitment on child rights and the comprehensive and effective protection, care for those at the age of 16 to under 18.

 

Due to the envelopment of Vietnamese parents when raising their children traditionally, 16 to 18 years of age seems to be the period that a child is not (still) fully developed both physically and mentally; their social awareness and self-consciousness is  not complete. According to Article 11 of Law on Teenagers 2020, the State still applies conventions on child rights, to which Vietnam is a signatory, towards youths aged between full sixteen and eighteen years old, but Vietnam is seemly inadvertently missing the maximum protection against a group of persons that are internationally regarded as “children” because this is the period of age that such children are easily “tempted”, sexually abused, and exploited for labor, etc.

 

The concept of the child applies not only to both Vietnamese citizens but also to foreigners residing in Vietnam as prescribed in Law on Children 2016. Accordingly, this provision inadvertently turns “foreign children at the age of 16 to under 18” when immigrating to Vietnam will no longer be children and will not enjoy special care and protection that only belongs to children.

 

2.2 Deficiencies in the determination, classification of groups of children need to be protected

Currently, Vietnamese Law classifies children based on special circumstances. Disadvantaged children refer to those who are unable to exercise their rights to life, protection, nurture, and education, and need special assistance and intervention from the Government, families, and society so that they can live safely and fall in line with their families and the communit[4]. There are 14 cases[5] considered as disadvantaged children with special circumstances, including Double orphans; Abandoned children; Homeless children; Children with disabilities; Children affected HIV/AIDS; Children who committed illegal acts; Children who are drug addicts; Children who must give up their studies to earn their living and fail to complete the universalization of secondary education; Children who suffered serious physical and mental harm due to violence; Exploited children; Sexually abused children; Trafficked children; Children who have fatal disease requiring long-term treatment and are children of poor or near-poor households; Immigrant and refugee children whose parents are not yet identified or those who have no caring person. 

 

However, the enumeration and classification as above is not enough because  in practice, there are many other cases in  which children needed to be supported, cared for by the Government such as: children living in bad conditions or street children without having a suitable accommodation and not  having a clear means of living; children whose parents, guardians are inappropriate, unable to look after, neglecting such children, putting them in situations where they have bad relationships, threatening to morality, putting them at risk of being abused or becoming abusive orientated; children who need  examination and medical treatment to ensure their health and development but their parents or guardians neglect or reject to do such duties; children is affected seriously by persistent contradictions with their parents, guardians or conflicts, breakdowns in their family leading to emotional damages; children who are abandoned, not permitted to play, contact with friends, society by their parents; children having a living environment involved, or  influenced by criminal offenders or criminal acts.

 

These are groups of children who are also at high risk of being abused or exploited physically and mentally. If the Law only considers children with disabilities in some aspects deemed disadvantaged children to be particularly supported and intervened, it is a large "gap" because there are still many other groups of children with special circumstances and at risk of being abused but are not cared for, protected timely. Child protection must be seen from the root, not to start to intervene and support only when things happen.

 

Besides the general classification of disadvantaged children, Vietnam law has not yet classified children according to the level of need for protection. Malaysia, for instance,  has classified groups of children that need to be protected based on the level of children themselves or situations causing harm to children; including the following groups:  children in need of care and protection;  children in need of protection and rehabilitation; children beyond control; children trafficking and abduction; etc[6].

 

The classification of children is extremely crucial because it affects the application of child protection measures. Each group of children will be applied a different method, measure, from that, discrepant agencies and organizations may intervene to each group without overlapping, avoiding, and stagnating in child protection work.

 

2.3. The child protection measures are pretty general, not specific.

According to Article 47 of Law on Children 2016, the State protects children by three levels, which are prevention, support, and intervention.

 

At the prevention level, there are measures to provide information, equip with knowledge about child protection responsibility, prevention skills in order to detect causes, behaviors of child abuse or exploitation. However, these measures are only applied to parents, teachers, caregivers, persons working in child protection service providers, is inadequate because those measures are necessary for everyone, not just the caregivers of children. For this reason, most child abuse cases are not intervened promptly, because people around them cannot identify and detect the violations, especially when children are abused by their own caregivers.

 

The level of support includes protective measures applied to children at risk of violence, exploitation, neglect, or disadvantaged children. The purpose of the child protection measures is to promptly detect, reduce or eliminate the risk of harm to children. However, in Clause 2 Article 49 of the Law on Children 2016, the protective measures are only presented generally and very vague. At the support level, measures such as “warn about risk factors for child abuse; advice on intervention measures, etc” ought to be grasped thoroughly at the prevention level so that it shall be conducted in the support level. Child protection, saving from violence must be urgent and prompt to eliminate the risk of children being abused, therefore, it is not appropriate to regulate a period of within 12 hours to isolate such children from harmful environments as prescribed in Clause 3, Article 26 of Decree No. 56/2017/ND-CP because the offense can be performed and completed before the isolation. Therefore, when receiving information about children at risk of harm, such children should be protected, isolated, and taken to a safe place immediately.

 

Because Vietnam has grouped children according to their circumstances, not classified according to the levels of need to be protected, the application of child protection measures is fairly general. Specifically, there is no clarity about the groups of subjects, each type of measure, process, and implementation period. There have also not been any sanctions related to the application of child protection measures, so the organizations and individuals with assigned responsibility have not paid attention to this issue until the children get abused, or the consequences occurred.

 

In case of the little boy abused by the Banh Xeo shop’s owner in Bac Ninh province, the child did not know who he should report to when he is abused. The next-door neighbor had suspicions, heard shouting, knew that this child had to work from night to morning, but no one paid attention to denounce to the competent authorities[7].

 

It means that people have not paid much attention to the issue of child abuse prevention and control. Procedures for the receipt, settlement, and child protection measures at the prevention level are still inefficient, therefore the acts of child abuse are not prevented thoroughly.

 

The skills of defending and handling situations when facing dangers are significant, but the education law has not yet enacted any provision to force schools to incorporate such skills into the curriculum. If these skills are only touched in the form of extracurricular sessions, propaganda, it is not enough to provide sufficient and correct approach to potential dangers.

 

2.4. Sanctions for the violations are not deterrent

2.4.1 As provisions on administrative sanctions

According to Article 27 of Decree No. 144/2013/ND-CP providing penalties for administrative violations in the patronage, social relief and child protection, care, the maximum fine ranging imposed to violations against regulations on prohibiting maltreating child abuse; taking advantage of children for profiteering purposes; preventing children from participating in social activities is from VND 10,000,000 to VND 15,000,000. The maximum fine ranging of VND 15,000,000 is too low, but from 2013 to now, it has not been amended or supplemented even though many violations have occurred.

 

2.4.2. Criminal sanctions

2.4.2.1. The penalties imposed on crimes against children are still very low

The current criminal law has regulated many penalties against child abuse. However, the penalties for some crimes are not strict and are still very light. For instance, in the crime of ill-treating other persons (under Article 140 of Criminal Code 2015), the maximum penalty is three years in prison; the crime of maltreatment or abuse of one’s grandparent, parent, spouse, child, grandchild, or caregiver, the maximum penalty is only 05 years’ imprisonment (under Article 185 of Criminal Code 2015); the crime of murder or abandoning of a newborn child, the maximum penalty is only 02 years’ imprisonment (under Article 124 of Criminal Code 2015) and many other crimes where the victim is a child.

 

 

 Typical case: Ms. D is the mother of N, at the beginning of August 2017 to the middle of September 2017, Ms.D did not allow N to go to school because she thought that N was hyperactive and naughty. Ms. D used a whip to beat N many times. Every time D hit N, caused many open wounds, bleeding, after the wounds healed, left scars and bruises, D continued to beat. Ms. D’s acts has damaged the health of N at the rate of 13%, but Ms. D’s acts was only punished with 09 months’ imprisonment and was given a suspended sentence[8].

 

It is thought that if the criminal law increases the level of penalties imposed on violators conducting acts of violence and does not allow offenders to a suspended sentence in the cases where the victim is child, then this point can be commensurate with the crime and deter those who are committing and have a tendency to commit the crime.

 

2.4.2.2. Not prosecuting the criminal case due to not having requests from the child’s representative

According to Clause 1 Article 155 of Code on criminal procedures 2015, only prosecute crimes  defined in Clause 1 of Articles 134, 135, 136, 138, 139, 141, 143, 155, 156, and 226 of the 2015 Criminal Code upon the requests of the victim or the representative of the victim less than 18 years of age or having mental or physical defects or passing away. This provision is "abetting" the violators to conduct illegal acts against children, because in the above ten crimes, there are eight crimes where the victims are usually children.

 

With such provision, it will be difficult to detect and handle acts of child abuse when the child’s representative does not request for prosecution, and many parents, caregivers did not ask the Court to prosecute the case  because they fear of affecting the honor of the family, children’s mental;  fear of being impugned and shunned by people around; because the offender is a family member; the biggest reason is that the offender compensated an amount of money to conceal the illegal acts.

 

Therefore, child abuse still happens every day and keeps increasing, but offenders are still outlawed.

 

2.4.3. Some acts have been guided but unspecific, so competent authorities are still perplexed when settling such cases

The Council of Judges of the Supreme People’s Court enacted Resolution No. 06/2019/NQHDTP guiding the application of a number of regulations of Articles 141, 142, 143, 144, 145, 146, 147 of the Criminal Code and settlement of cases of sexual exploitation and abuse of persons under 18. However, in Clause 1 Article 5 of this Resolution listed 11 cases of not being criminally responsible for molestation includes: “a caretaker of a person under 10, a patient or a disabled person touches their reproductive organ or private part without sexual intention…” and “A health professional; or a person providing emergency aid or first aid to an injured person touches a reproductive organ, a private part or one of the other body parts of a person under 16 without sexual intention", accordingly, these exclusions are all “without sexual intention”. But this Resolution does not refer to the definition of "without sexual intention" or in the case where relatives of a person under 16 (grandfather, grandmother, father, mother, brother, sister, brother, aunt, uncle, etc.) cuddle, hug, caress private parties of a person under 16 according to Vietnamese customs, such relatives are also likely not to commit this crime if they can prove that their act is “without sexual intention”. Therefore, the competent authorities to conduct proceedings will have difficulty in determining whether or not the presence or absence of the crime.

 

On the other hand, according to the Resolution, the subjects to be excluded from criminal liability is “a caretaker of a person under 10 years of age, a patient or a disabled person”, but “direct caring, teaching” is also not defined specifically but only gives an open interpretation with the “…” sign in the example. In addition, the impact object of this act is only limited to “a person under 10, a patient or a disabled person”, not included children who are not in this category but has limitations in taking care of themselves and need someone else to care for. Because of the lack of legal guidance, the agencies conducting proceedings have different interpretations, prolonging the time to deal with the case or omitting criminals and offenders.

 

2.5. Lacking the coordination mechanism between agencies, organizations, and individuals when detecting cases of suspects child abuse

In Vietnam today, all social and political systems have roles and obligations to ensure the realization of child rights. But a shortcoming that occurs in most localities is that the interdisciplinary organization on children at all levels is still formal, lacks the direction and specific guidance of the National Committee on Children.

 

The Ministry of Labor – Invalids and Social Affairs enacted Official Letter No. 2805/LĐTBXH-TE dated July 15^th, 2019 on promoting child protection at the commune level, accordingly, the interagency coordinating organization on children at the commune level is directly in charge of the chairperson of the commune-level People’s Committee and other 12 members who are  individuals close to and directly manage children in the locality, however, the people settling issues related to children at the commune level is mostly concurrent cadres of the department of labor, war invalids and social affairs, they are overloaded with work, do not have the qualifications and professional capacity to do children’s work. In villages, hamlets, the collaborators mainly do the population control works in concurrence with  children(’s) related works, so most of these staff do not complete their duty as prescribed in Articles 53 and 72 of the Law on Children 2016.

 

In many localities, procedures for coordination to support, intervene, and handle cases of abused children have not been yet established, or if there is, the process is not logical, leading to a prolonged settlement period, this does not guarantee the urgency in protecting children from abuse.

 

The Malaysian has regulated when detecting a child is abused or is suspected of needing protection, the National Child Protection Council will establish a Child Protection Group consisting of a guardian as the head, a medical officer, and a senior police officer. This Child Protection group can be established anywhere in this Country without any local restrictions. As long as detecting a child suspected of abuse in need of protection, such child will be supervised by the Child Protection Team.

 

2.6. The State’s support policies and plans for children are not guaranteed

The current level of social allowance for children under 16 years of age without a source of nourishment according to Decree No. 135/2013/ND-CP is currently very low with a standard level of VND 270,000. The coefficient depends on each case, but the maximum is three. This allowance level does not meet the minimum demands for children. Therefore, many children living in bad conditions without any source of nourishment have to work by themselves to earn a living with all kinds of occupations, even wandering, begging. It is one of the reasons that these children are abused at work, cursed, and threatened by evil persons in society.

 

3. Some suggestions to complete the legal provisions on the child protection from abusing

Today, more than two-thirds of children from 1 to 14 are still subject to violent discipline and more than 170,000 children are without parental care, living in bad conditions, or being abandoned. Realizing this problem, the Government of Vietnam has cooperated with the UNICEF committing to building policies and laws to meet the needs and settle inequality in children as well as complying fully with standards of the child rights. So every child will have a chance to develop to their fullest potential and to receive benefits from our country’s prosperity. Therefore, from the inadequacies as analyzed above, the author makes some suggestions to improve the legal provisions against child abuse as follows:

 

Firstly, adjust the age in the concept of “Child” prescribed in the Law on Children 2016 to be compatible with other countries in the world and maximally protect the benefits of the age group from 16 to under 18 years from harm of abusive behaviors.

 

 

Secondly, add or divide more groups of children according to the level of need for protection to be compatible with the protection levels as well as to control and identify children at risk or being abused.

 

Thirdly, carry out and issue more detailed regulations on child protection measures at all levels of support, prevention, and intervention in order to create a comprehensive, general roadmap at local levels for effective implementation instead of self-enforcing but inappropriate and unfeasible policies. We should reduce the period of intervention to isolate children from the environment at risk of abuse to keep children safe. To be able to do that, it is necessary to establish a logical and scientific process and quick response mechanism as well as a professional team suitable for children when occurring violations against children’s rights.

 

Fourthly, adding more behaviors which will be administratively sanctioned due to violating the legal provisions on child protection. In addition, to increase the level of punishment for deterrence and prevention. For the criminal law, it is extremely urgent to increase the level of punishment for crimes against children, not allowing offenders to be given a suspended sentence, and stipulate that all crimes where the victim is a child  will be prosecuted even without the request of the child representative to avoid the crime omission causing danger to the children in particular and society in general.

 

Fifthly, the State needs to enact specific guidance on the coordination mechanism between agencies, organizations, and service providers when detecting cases at risk of child abuse so that local levels can implement synchronously, quickly, and promptly. From there, interdisciplinary issues can be settled by strengthening cooperation mechanisms for initiatives and intervention measures for child protection, care, support, and education combined with implementation monitoring with full representation of involved parties, including children.

 

Sixthly, policies and regimes for disadvantaged children need to be changed and adjusted to suit the reality and circumstances of children so that they can ensure their lives by themselves.

 

III. CONCLUSION

Changing, adjusting, and implementing the law on child protection from abuse is  a whole process of making policies towards child rights protection in Vietnam. The legal provisions and the solutions being deployed in practice will help protect children from abuse which is always a big danger in Vietnam today.

 

From the legal solutions to practical implementation, it is necessary to join the hands of state agencies, organizations, individuals, and families to ensure that children live in a safe and healthy environment.

 

REFERENCES

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2. La Van Bang (2011), Completing the law on rights to be protected for children with special circumstances in Vietnam, Master's Thesis in Law, National Political - Administrative Apprenticeship Ho Chi Minh, Hanoi.
3. Bao Ngoc – Vu Tuan (2020), Preventing child abuse, Tuoi Tre Newspaper, December 2, 2020.
4. The Government (2017), Decree No. 56/2017/ND-CP guiding the Law on Children, Ha Noi.
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7. The National Assembly (2012), Labor Code 2012, Hanoi.
8. The National Assembly (2013), the Constitution of the Socialist Republic of Vietnam  213, Hanoi.
9. The National Assembly (2015), Civil Code 2015, Hanoi.
10. The National Assembly (2016), Law on Children 2016, Hanoi.
11. The National Assembly (2017), Criminal Code 2015, which amended and supplemented in 2017.
12. The National Assembly (2005), Youth Law 2005, Hanoi.
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15. Hong Quan (2020), “The case of a boy being abused: Neighbors suspected but no one noticed”, source: https://tuoitre.vn/vu-be-trai-bi-bao-hanh-hang-xom-co-nghi-ngo-nhung-khong-ai-de-y-20201124205006105.htm, last accessed on December, 1, 2020.
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17. Malaysia (2001), “Child Act No. 611”, source: http://www.ilo.org/dyn/natlex/, last accessed on December 04, 2020.
18. Tuyet Chinh (2020) “Alarming the number of abused children”, source: https:// baotainguyenmoitruong.vn/bao-dongso-tre-em- bi-xam-hai-303586.htm - l#:~:text=Theo%20B%C3%A1o%20 c%C3%A1o%20c%E1%BB%A7a%20 Ch%C3%ADnh,tr%E1%BA%BB%20em%20 b%E1%BB%8B%20x%C3%A2m%20 h%E1%BA%A1i.&text=Trong%20 c%C3%A1c%20v%E1%BB%A5%20 x%C3%A2m%20h%E1%BA%A1i,v%E1%BB%A5%20x%C3%A2m%20 h%E1%BA%A1i%20tr%E1%BA%BB%20em, last accessed on December 24, 2020.
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