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Procedural Aspects Of Child Abuse: Comparative Study Of India And United Kingdom

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            <strong><u>ABSTRACT</u></strong>

Child abuse is taken as a serious problem in the countries around the world and should be dealt with caution and care as it is a question of children, not more than 5 to 15 years of age in general.  Abusing a child should be considered as a grave offence and punishment should be serious in nature. Child should not only be protected and cared for before but specially after he or she is being abused. Then the major protection should be taken to not hamper the psychological condition of the already abused child.

The project on child abuse a comparative study will deal with the two countries mainly India and United Kingdom. It will look into the procedural aspects of the laws made for protecting the children and victims of the abuse.

 

INTRODUCTION

Child abuse has been a major problem in the countries around the world. Children are abused in many ways by paedophiles, their relatives or even their parents. The main problem comes when there is no reporting of these incidents as many children are not aware of the abuse happening to them or they are not comfortable telling it to their parents. If they do tell then many times the abuser is the relative and family members try to curb the incident. Many times its their own parents. Countries are coming with new procedures to try and give justice to the children facing abuse of any kind.

In UK alone 50000 cases of child abuse were reported by police in the year 2014. 85% of the children are not getting any help or treatment after the abuse. Actual count of the children in UK was estimated to be 450000. Many programmers of educating the children about the many kind of abuses are run in the schools. Schools are now also trying to provide counseling for the children who are the victims of any kind of abuse. In the present time almost 57000 children are identified as needing care and protection from abuse. NSPCC claims that every 20 children in UK are victims of child abuse. Many efforts are being made by different organizations to help and curb the exploitation and abuses happening around the globe and in their own country. Groups like Action For Children and BACA offers help to children as well as their parents whenever needed.

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Situation in India is also nearly as same as UK. Government commissioned surveys show that the more than 53% of sexual abuse of children is not reported. Backdrop of Nithari killings brought into focus child safety issues in our country. Children ranging between 5 years to 12 years of age were reported victims of high level of abuse. Survey done in 13 States in India which has sample size of 12447, revealed 53.22% of children faced one or  more forms of sexual abuse. Andhra Pradesh, Bihar, Assam and Delhi reported the highest percentage. The study interviewed 2324 young adults between the age of 18 to 24 in which almost half of them were physically or sexually abused as children. In India every second child is the victim of emotional abuse where 83% of the cases parents were the abusers.

 

Child abuse Protection and Procedure – an Indian Overview:

Major policies relating to child abuse:-

Child abuse refers to the intentional or unintentional or perceived maltreatment of a child habitual or not habitual, including the following :-

  • Psychological and physical abuse, neglect, cruelty, sexual and emotional maltreatment. Any act, deed or word which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.
  • Unreasonable deprivation of his/her basic needs for survival such as food and shelter; or failure to give timely medical treatment to an injured child resulting in serious impairment of his/her growth and development or in his/her permanent incapacity or death. [1]

 

Code of criminal procedure, Indian penal code and Protection of Children from Sexual Offences Act are some legislation identifying the laws and procedure related to children. Code of criminal procedure is the first and general code of procedures identifying child abuse and its reporting and procedure.

Recording of statement:-

Under Section 164 of the Code of Criminal Procedure (CrPC), a magistrate should record the statement of a child in the exact language spoken by the child. The statement must be recorded in the presence of the child’s parents or another person of the child’s choice. The assistance of a qualified translator or interpreter can be taken and as far as possible, the statement must be recorded by audiovisual means. The Magistrate should also ensure that the child and the parents or representative are given a copy of the police report on the matter. While recording the statement of a disabled child, the assistance of a qualified special educator or a person familiar with the manner of communication of the child or an expert in that field, must be sought.[2] Once the police have registered the case a fixed procedure of CrPC has to be followed. Once the police have registered the first information report of the complaint then the investigation officer has to be informed which after collecting evidences files the case in the designated court of prosecution.

Investigation :-

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Sec 173 of the Act states the investigation done in the case of child sex abuse in a time bound manner-(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”;

  1. b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—

“(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.[3]

In cases in which the accused persons include a juvenile as well as an adult, the child victim will have to testify twice as per the current legal framework. Most respondents agreed that this was not desirable, but agreed that this was unavoidable because of the existing statutory framework. Similarly, children have to repeat the statement made to the Magistrate under Section 164, CrPC before the Special Court as the CrPC does not allow the earlier statement to be admitted as examination-in-chief, unless the child is disabled.[4]

Protection of children from sexual offences act 2012

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The POSCO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse. It also intends to protect the child through all stages of judicial process and gives paramount importance to the principle of “best interest of the child”. Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five offences against children that are covered by this act.[5] POCSO has sated many child friendly procedures which were not there earlier in the code of criminal procedure. It also gives for special courts for children.

Questioning children:-

Section 33(2), POCSO Act prohibits the Special Public Prosecutor and the defence lawyer from putting questions to the child directly. All questions during the examination- in-chief and cross-examination must be routed through the Special Court. It is the judge of the Special Court who can pose the questions to the child. Under no circumstances, can the questions be posed by the Special Public Prosecutor, defence lawyer, or the Investigating Officer. Further, under Section 33(6),  POCSO Act, the Special Court should not allow aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.[6]

Creation of a child friendly atmosphere:-

Sec 33(4) helps in creating the children friendly environment in the court by asking their parents or guardians or any relatives whom they are comfortable with to be in the court with the children. And most of the time these procedures are complied with. Sometimes judges go a step further to make the children comfortable. For example making the child sit with them on the dias and then asking questions.

Minimum appearance in the court and giving frequent breaks between the trials:-

Under section 33(3) and section 33(5) of the act court ensures that the appearance of the child in the court should be minimum so as not to startle the child. And it also keeps in mind the trials which have to be given frequent breaks so as not to overwhelm the child who is in the proceeding.

Protection of identity:-

Section 33(7) of the Act provides for the protection of the identity of the child which cannot be disclosed. And can only be disclosed with the permission of the special court. Because according to several respondents the identity of the children is poorly protect which brings the children in lime light poorly exposing them to the public in their venerable position.

Award of compensation:-

A conviction did not automatically result in an award of compensation. Compensation was awarded in only 36 cases out of 667 cases by Special Courts i.e., a measly 5.39% of cases. The quantum was determined by the Special Court in all cases except one. In State v. Dinesh Sharma[7], the defendant was found guilty of sexually assaulting his 14-year -old daughter. Recognizing that imprisonment of the breadwinner could stall the education of the girl, the judge recommended that a suitable compensation be paid u/s 357A, CrPC ‘to enable her to complete her study and become financially independent.’ He directed the Secretary, DLSA to determine the quantum of the compensation.[8]

Prompt recording of evidence and disposal of the case:-

As per section 35(1) of the Act the evidence should be recorded within 30 days of the reporting of the cognizable offence. And if the delay is made it should be recorded by the special court.

According to section 35(2) of the Act the trial should be completed within one year of the court taking cognizance of the offence.

In camera trials:-

Section 37 of the Act requires the court to resume the proceedings recorded in the camera and in presence of the child’s guardian or anyone who has the trust of the child it is not compulsory to keep the proceedings in the court room only, if the special court deems fit it can the proceeding can be held somewhere else also where the child is comfortable.

Avoiding exposure to the accused:- Section 36(1) of the Act requires the court to appoint supporters which can take the child to someplace when the proceeding of the accused is going on because exposure takes place almost every time when the child is in the court or waiting outside the courtroom.

Assistance of interpreters, translators or special educators:-

Section 38 of the Act requires court to appoint any special assistance to the child. Or if child doesn’t know the vernacular language then the translator is appointed to him or her. Children with disability have to be appointed special educators which know their language and easily communicate between the child and the court.

Assistance of private legal practitioners:-

Section 40 of the Act provides the party to appoint private legal assistance if they want and requires court to appoint a government litigator if the party cannot afford one. Independent advocates related to NGOs or other private organizations dealing with case can also be appointed to make the child comfortable.

 

Child abuse Protection and Procedure: in United Kingdom

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The child protection mechanism is far more developed in the United Kingdom. Guidelines by the government are designed to protect the victims of child abuse of further harm and to give them protection under Crown Prosecution Services. The child protection mechanism in UK is far more developed at local level as agencies like  Local Safeguarding Children Boards was created in 1974 because of the public outrage of not being able to give any law for protecting children in the country. The procedure laid down by the agencies include:-

  • Concerns about a specific child should be reported immediately by telephone to the DSP
  • Confirmed in writing within 24 hours using the form at Appendix E. Delay could prejudice the welfare of a child.

NATIONAL SOCIETY FOR PREVENTION OF CRUELTY TO CHILDREN

  • Gives certain guidelines regarding protection and procedure regarding child victim.

Criminal investigation of child abuse:-

All police forces in UK have a specialize unit known as child abuse investigation unit. Their main purpose is to investigate the case of child abuse in their jurisdiction. The unit makes the decision of filing criminal complaint against the accused after looking into the matter. Other agencies relating with child protection can also work with police units in helping them in taking care of the children abused.

Criminal prosecutions in cases of child abuse:-

The Crown Prosecution Service decides whether or not a prosecution is in the public interest. The Code for Crown Prosecutors (Crown Prosecution Service, 2010) is a public document that sets out the basic principles to be followed when making a decision. Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must also decide whether the evidence can be used and whether it is reliable. If the evidential stage of the decision making process is passed then the case moves to the public interest stage. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect.[9]

Police protection:-

In an emergency situation the police can take the child away from the family and can keep him or her under protection for 72 hours. The police does not need the permission of the court for doing so but the local authorities have to be informed about the child and where he or she is being kept. If the situation seems safe the child can be returned to the family and if not than the court may take proper action.

Children as witness:-

In many child abuse cases children are the witness during the proceedings. If that happens police inform this to Crown Prosecution Services about it. Many Crown Courts have child liaison which helps the child during the proceedings. Many guidelines are also issued by CPS for children who have to attend the proceedings-

  • Entrance of the child from different gate away from the general public.
  • Placing a child in different waiting area and the person who is with the child.
  • Arranging the child to visit the court before the trial so they can get familiar with the environment.
  • Requesting the court to minimize the time for a child for giving evidence.

Organising lunch and toilet facilities:

Taking an oath:-

Some victims of child abuse want to stand in court in front of a jury and the person who has hurt or abused them. But if you don’t want to see the defendant or their family when you’re answering questions, you could ask for a screen around the witness box.

If you are 14 years or over, you may be asked to take an oath if you’ve

  • made a written statement, and
  • Decided to give evidence in the court room.[10]

Other special rules:-

The judges and lawyers go to an extent of taking off their wigs to make the child comfortable in the atmosphere of the court.

Identification of child:-

Though the evidences are given in the open court the name and address and other identifying qualities of the child cannot be disclosed and published in their lifetime. Court can lift the restriction in restricted circumstances.

 

Comparative Study between India and United Kingdom

As child abuse has always been a problem in the countries, the government has come up with many laws and legislations regarding safeguarding interest of children. If in case child is the victim of any kind of abuse then more care has to be taken in dealing with the matter that is what the legislation is trying to do while framing the procedure of the trial and investigation in the cases of child abuse.

The laws and procedure regarding child abuse and harassment are more or less same in both the countries. Both countries focus upon rehabilitating the child, providing him or her with utmost protection so as they are no more abused in any other form during the trial.

Special courts are made for dealing with the trials and proceedings of child abuse. And both the countries have look into this matter. As in India POCSO is legislated under which special courts can be setup for the trial of these kind of cases. In United Kingdom Crown courts are there to handle these kinds of cases.

Judges and advocates go out of their way to make the child comfortable during the trial, as again these things can create a bad image in the mind of the child and he or she can be psychologically can get effected by it.

Police in both the countries take special care while dealing with these kinds of cases. NGOs and other agencies are also allowed to help the children and their parents during the trial and investigation process.

 

CONCLUSION

Abusing a child is a grave offence in all the countries around the world. Special care and attention is to be needed while dealing with these cases and their victims. Both the countries have come up with new laws and legislations for protecting the children and framing the procedure for it. As earlier in India there was only code of criminal procedure that laid down the procedure of criminal offences in the country but it did not have any special procedure regarding children and their safety and protection. But many new acts have been framed from there and now specific guidelines have been given for the procedure and dealing with child abuse cases like POCSO. In United Kingdom too many surveys have been done and guidelines are issued by NSPCC for the procedure and conduct of the trials and investigation of these kinds of abuse cases.

Abusing a child is a serious matter because it harms the child as a very young age and harms society in general. Keeping the children safe should be the top priority of the State as they are the future generations of the country and the world. During making procedures and guidelines the legislature should keep in mind the age and delicate situation of child victims and effects of the proceedings and how to not further abuse them more because of the proceedings and trials.

[1] KOUSHIK MALAKAR, A project on “child abuse in india”, Tripura University

[2] Ganga Madappa, How should a case of child abuse be dealt with under POCSO,  12 Aug 2014 , Citizen Matters

[3] Code of criminal procedure amendment act 2008, section 173

[4] CENTRE FOR CHILD AND THE LAW, Report of Study on the working of Special Courts under the POCSO Act, 2012 in Delhi, NATIONAL LAW SCHOOL OF INDIA, UNIVERSITY, BANGALORE.

[5] Analyzing the POSCO Act 2012, http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-2012/articleshow/19718160.cms

[6] CENTRE FOR CHILD AND THE LAW, Report of Study on the working of Special Courts under the POCSO Act, 2012 in Delhi, NATIONAL LAW SCHOOL OF INDIA, UNIVERSITY, BANGALORE

[7] SC No. 155/2013 decided on 03.02.2014.

[8] CHILD Protection & Child Rights, http://www.childlineindia.org.in/Child-Sexual-Abuse-and-Law.htm

[9] An NSPCC factsheet,Child abuse cases: deciding to prosecute

[10] Child abuse – children as witnesses in criminal proceedings,

 

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