International Law as Remedy: When the State Breaches Child Protection Statutes

Abstract

While legislative frameworks prescribe the legal obligations of the parents to protect and nurture their children, there is no equivalent legal framework requiring and sanctioning the conduct of agents of the state who act in loco parentis. In consequence some children continue to be “at risk” and may even be in greater danger once the state has intervened. This is a problem that is not confined to one or two countries, but a matter of global concern that touches most developed and developing nations alike. In this article I ask what remedies are available for addressing this perennial problem and suggest that one option is to use the existing human rights framework embodied in the United Nations Convention on the Rights of the Child (UNCROC) which specifies the rights of children. I outline the reporting UN mechanisms and provide an example of how evidence and argument can be used as part of that reporting process with a view towards securing some of accountability.

KEYWORDS:

• accountability
• child protection
• human rights
• international law
• the state

Notes

The problem of child protection and the incapacity of the state in most developed and developing nations to provide adequate care and protection is a general global issue. Given this there are ethical obligations, as well as good socioeconomic and political reasons to ensure that such vulnerable groups are protected, adequately cared, and provided with opportunities to develop in all the ways they can (Arnett and Tanner 2008; Osgood 2007).

In Australia child protection is the responsibility of each six state and two territory governments which have the job of ensuring children in their respective jurisdictions are not abused and/or neglected.

This includes history of forced removal of generations of indigenous children, babies of single mothers, and “children of the empire.”

Somalia and the United States are the only two countries that have not ratified the Convention.