Mapping and Assessment of the Child Protection

Mapping and Assessment of the Child Protection System KHYBER PAKHTUNKHWA COLLECTIVE FOR SOCIAL SCIENCE RESEARCH JANUARY 2013

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Contents


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ACRONYMS ............................................................................................................................ v


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GLOSSARY ............................................................................................................................. vii


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EXECUTIVE SUMMARY ............................................................................................................. i SECTION 1. INTRODUCTION .................................................................................................... 2 1.1.Background and Rationale for Study 1.2. Pakistan in a Global Context 1.3. Institutional Changes in Pakistan, i.e. Devolution (18th Amendment) 1.4. Report Contents 2.1. The Process 2.2. The Toolkit 2.3. Outputs

2 3 4 6 7 8 9

SECTION 3: PROVINCIAL PROFILE AND BASIC DATA .............................................................. 11 3.1. Demographic and Macroeconomic Indicators 3.2. Child Health and Education Indicators 3.3. Birth Registration 3.4. Child Labor 3.5. Harmful Cultural Practices • Child Marriage • Other Harmful Customary Practices 3.6. Physically, Sexually and Psychologically Abused and Severely Neglected Children 3.7. Children Without Adequate Family Care or Alternative Care 3.8. Child Trafficking and Commercial Sexual Exploitation 3.9. Children and Justice 3.10. Emergencies and Armed Conflict 3.11. HIV/AIDS 3.10. Disabilities

11 11 12 12 13 13 14 15 16 16 17 18 19 19

SECTION 4: LAWS AND POLICIES ........................................................................................... 21 4.1. National Laws Applicable to Khyber Pakhtunkhwa 4.2. Legal and Policy Assessment in light of Child Protection Thematic Areas 4.3. Recommendations

21 24 32

SECTION 5. FORMAL SYSTEMS AND CAPACITIES ................................................................... 33 5.1. Overall Child Protection System in Khyber Pakhtunkhwa • Bilateral and Multilateral Agencies • Steering Committee on Child Protection • Working Group on Birth Registration • Social Protection and Child Protection • Human Resources and Social Work Training • Adoption/Kafalah/Guardianship • HIV/AIDS and Child Protection 5.2. Primary Department: Social Welfare and Women Development Department • Child Protection and Welfare Commission • Coordination • Gaps in Services • Resources

33 33 34 34 35 35 35 36 37 39 40 40 40


• Emergency Contexts 5.3. Secondary Department: Industries, Commerce and Labor Department • Coordination • Capacity Building • Service Provision • Emergency Contexts 5.4. Recommendations

41 41 42 42 42 42 42

SECTION 6.THE CHILDREN AND JUSTICE SYSTEM OF KHYBER PAKHTUNKHWA ...................... 45 6.1. Mapping and Assessment of the Children and Justice System in Khyber Pakhtunkhwa45 • The Judiciary 45 • Home and Tribal Affairs Department 46 • Social Welfare Department and Child Protection and Welfare Commission 49 • Children and Informal Justice Mechanisms 49 • Justice Process 50 • Effectiveness in Implementing Child Protection Mandate 51 6.2. Recommendations 52

SECTION 7. CONTINUUM OF CARE, CIVIL SOCIETY AND CHILD PROTECTION SYSTEM AT A DISTRICT LEVEL ..................................................................................................................... 54 7.1. Negative Attitudes/Customs and Practices 7.2. Services Available for Child Protection 7.3. Civil Society Organizations and Child Protection 7.4. Child Protection System and Community Actors at the Local Level 7.5. Recommendations

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Ayesha Khan 6/25/2018 10:32 PM Deleted: 48


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SECTION 10. CONCLUSION: CHILD PROTECTION SYSTEM DEVELOPMENT .............................. 71


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BIBLIOGRAPHY ..................................................................................................................... 77


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SECTION 8.RESOURCE MOBILISATION AND FISCAL ACCOUNTABILITY ................................... 63 8.1. 8.2. 8.3. 8.4.

Allocations and Budgeting for Child Protection Monitoring and Accountability Role of Donors Recommendations

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SECTION 9. OPTIMAL CHILD PROTECTION SYSTEM IN KHYBER PAKHTUNKHWA .................... 67 9.1. Proposed Changed in the Child Protection and Welfare Commission 9.2. Proposed Staff for the Child Protection and Welfare Commission 9.3. Costing for the Child Welfare and Protection Commission

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List of Figures, Tables and Boxes Figure 1. Diagrammatic representation of study methodology ................................................................... 8 Figure 2.Overall child protection system in Khyber Pakhtunkhwa ............................................................ 33 Figure 3. Social Welfare and Women Development Department ............................................................. 37 Figure 4. Children and justice system in Khyber Pakhtunkhwa ................................................................. 45 Figure 5. Optimal child protection system ................................................................................................. 67 Figure 6. Optimal staffing of the Child Welfare and Protection Commission ............................................ 68

Table 1. Demographic and macroeconomic indicators ............................................................................. 11 Table 2. Child health and education indicators ......................................................................................... 11 Table 3. Birth registration .......................................................................................................................... 12 Table4. Child labor ..................................................................................................................................... 13 Table 5. Child marriages ............................................................................................................................ 13 Table 6. Harmful customary practices ....................................................................................................... 14 Table 7. Child abuse reports ...................................................................................................................... 15 Table 8. Children subject to abuse [Madadgaar data] ............................................................................... 15 Table 9. Children without adequate family care ........................................................................................ 16 Table 10. Children in conflict with the law ................................................................................................ 17 Table 11. Children in emergencies ............................................................................................................. 18 Table 12.Costing for the Child Welfare and Protection Commission (in Rupees) ...................................... 69 Box 1. Child protection federal laws applicable in Khyber Pakhtunkhwa .................................................. 21 Box 2. Laws Specific to Khyber Pakhtunkhwa ............................................................................................ 23 Box 3. Social Welfare and Women Development Department activities and projects ............................. 38 Box 4. Organizations and effectiveness in implementing child protection mandate ................................ 47 Box 5. Negative attitudes and practices .................................................................................................... 54 Box 6. Harmful cultural attitudes and practices ........................................................................................ 56 Box 7. Life skills based education .............................................................................................................. 56 Box 8. Emergencies ................................................................................................................................... 57 Box 9. Advocacy ......................................................................................................................................... 58 Box 10. Child abuse and neglect ................................................................................................................ 58 Box 11. HIV/AIDS ....................................................................................................................................... 59 Box 12. Legal aid services .......................................................................................................................... 59 Box 13. Residential services/shelters ......................................................................................................... 59


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ACRONYMS BISP CBO CEDAW CPC CPM&A CPMIS CPU CPWC CRC CrPC CRSR CSO DG DVC FATA FCR FIA FIR HRCP IDP IDSP ILO INGO JJSO KP JPI KPCPWA LSBE MDG MICS NADRA NCCWD NCRC NCRCL NDMA NFC NGO NSF PACHTO PCCWD PCPC PPC PPTCT PSC

Benazir Income Support Program Community-Based Organizations Convention on the Elimination of All Forms of Discrimination Against Women Child Protection Committee Child Protection Mapping and Assessment Child Protection Management Information System Child Protection Unit Child Protection and Welfare Commission Convention on the Rights of the Child Criminal Procedure Code Convention Relating to the Status of Refugees Civil Society Organizations Director-General District Vigilance Committee Federally Administered Tribal Areas Frontier Crimes Regulations Federal Investigation Agency First Information Report Human Right Commission Pakistan Internally Displaced People Institute of Development Studies and Practices International Lab our Organization International Non-Government Organization Juvenile Justice System Ordinance 2000 Khyber Pakhtunkhwa Just Peace International Khyber Pakhtunkhwa Child Protection and Welfare Act Life-Skills Based Education Millennium Development Goals Multiple Indicator Cluster Survey National Database and Registration Authority National Commission for Child Welfare & Development National Commission on the Rights of Children National Centers for Rehabilitation of Child Labor National Disaster Management Authority National Financial Commission Non-government Organization National Strategic Framework Prevention and Control of Human Trafficking Ordinance Provincial Commission for Child Welfare and Development Police Child Protection Center Pakistan Penal Code Prevention of Parent to Child Transmission Pakistan Society of Criminology

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PSLM SEHER SOP SPARC SW&WDD UNDP UNGASS UNHCR UNICEF

Pakistan Social and Living Standards Measurement Society for Empowering Human Resources Standard Operating Procedures Society for the Protection and Rights of Children Social Welfare and Women Development Department United Nations Development Programme United Nations General Assembly Twenty-sixth Special Session United Nations High Commissioner for Refugees United Nations Children's Fund

GLOSSARY Ghag Hadd Jirga Kafalah Madrassah Malik Maulana Nikahnama Qisas and Diyat Shariat Swara Tehsil Ulema Zina

The customary practice that allows a man to claim the right to marry any woman without her consent. Maximum punishment under Islamic law. Tribal council of elders. Islamic form of adoption, akin to guardianship. School for the teaching of the Quran and Islam, i.e. seminaries. Tribal elder. Religious leader at a mosque. Marriage contract. Islamic law of retaliation and compensation for a crime. Islamic legal and moral code. The exchange of girls in marriage to resolve a dispute. Second lowest tier of local government, part of a district administrative unit. Religious scholar of Islam. The crime of committing sex outside of marriage.

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EXECUTIVE SUMMARY A child protection system constitutes of structures, functions and capacities that work together for child protection goals. It works on several levels of society, from government to community, and engages several actors, including government and civil society organizations or representatives [User’s Guide: 7]. Child Protection Systems are currently organized around these themes: birth registration; child labor; harmful cultural practices; child marriage and discrimination; physically, sexually and psychologically abused and neglected children; children without adequate family care or alternative care; child mobility and child trafficking; commercial sexual exploitation; children and justice; and child protection in emergencies/armed conflict. A Child Protection Mapping and Assessment (CPM&A) exercise on child protection in Pakistan was carried out with the support of UNICEF during 2012. Its objectives were to assess the key risks facing children, the capacity of current structures, and the legal framework/policy agenda relevant to child protection. The assessment was used to plan for future services, engagement and coordination of key players, and financial and human resources required to strengthen child protection. The child protection system is comprised of both formal and informal actors and institutions. While this study includes a basic mapping of the informal sector, a detailed mapping of informal and community level systems was outside the scope of the study. Global Context Pakistan is signatory to the Convention on the Rights of the Child (CRC), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and other Protocols and Conventions protecting children from sale and prostitution, hazardous labor, and discrimination on the basis of education or disability. It is not party to the Convention Relating to the Status of Refugees. National Context The process of devolution has altered the political, programmatic, policy, and service context of child protection. After the 18th Amendment to the Constitution, introduced in 2010, the sole legislative and administrative authority on all matters relevant to child protection lies with the provinces. Methodology The Child Protection Mapping and Assessment (CPM&A) was a comprehensive process that engaged stakeholders from government, civil society and UNICEF, from November 2011-December 2012. A Provincial Steering Committee comprised of government officials, approved and customized the Toolkit based on the provincial contexts, and granted time for interviews. The Toolkit was a detailed questionnaire used to gather data on all of the child protection thematic areas mentioned above. This report is based on data from the Toolkit. Findings were shared with the Steering Committee in the form of a completed Toolkit, final report, and a presentation.

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Basic Provincial Data Khyber Pakhtunkhwa (KP) has dealt with the double burdens of natural disasters, in 2010 and 2011, and on-going violent conflict, which have negatively affected its efforts to reduce poverty and meet its targets for the Millennium Development Goals (MDGs). KP has a population of just over 25 million, half of which is under age 19. The provincial population growth rate is 2.4% per year. Only 17 per cent of the population lives in urban areas. The level of poverty is striking, at almost 40 per cent of the population. Child protection indicators further underscore the seriousness of the problems faced in KP. The birth registration rate under age 18 is only 15.7 per cent. Almost nine per cent of children ages 5-14 years do some form of child labor, most of whom work in the agricultural sector. Despite the fact that it is illegal, there are over 40,000 child marriages (almost all girls) in the province. Honor killings and the custom of exchanging girls in marriage to solve disputes between families continue although precise data is difficult to collect. Violence against children includes injury, rape, sodomy and corporal punishment, all of which are to a small degree reported in police stations or the media. The number of children affected by HIV/AIDS is very low (less than 200 children estimated in Pakistan), fortunately policy and programme efforts are in place to care for HIV positive children. Current figures state that 44 children have been registered as such, out of which 16 are still receiving treatment. According to the most recent available data, six per cent of children ages 2-9 years reported some disability, such as hearing, vision, or a developmental impairment. In Pakistan the most permanent form of family-based care for children who are orphans is guardianship. Full adoption is not possible, and there is no foster care system. 4.3 per cent of children up to age 17 are orphaned, and 3.9 per cent have only one living parent. The minimum age for criminal liability is seven years. Most children in conflict with the law are males. 219 children were in detention at the end of 2012. Laws and Policies Many national laws are applicable in KP, e.g. the Pakistan Penal Code which addresses various thematic areas of child protection. The Juvenile Justice System Ordinance (JJSO) 2000 is the most important law that addresses processes and standards for handling criminal cases involving children. Other applicable national laws cover child marriage, employment, birth/death registration, human trafficking, and guardianship. Laws specific to KP include the Khyber Pakhtunkhwa Child Protection and Welfare Act (KPCPWA) 2010, which provides a legal basis for child protection and sets up a Commission within government to oversee its related policies and activities. KP has also made birth registration and primary education compulsory under the law, and a notification has been issuedbanning corporal punishment in schools. A new Borstal Institutions Act was passed in 2012 to build three facilities in three districts, with separate compartments for female juvenile offenders.

A number of laws do not directly refer to the CRC, and some violate it although Pakistan is a signatory. These contradictions need to be overcome as a policy priority. The legal status of Afghan refugee children is another area that needs to be clarified. Existing laws need to be effectively enforced, as does the ban on jirgas as a conflict-resolution mechanism. There is no legislation on domestic violence. A bill that would declare domestic violence to be a penal offence has been proposed by the name of the Domestic Violence (Prevention and Protection) Bill, 2012 but it has not yet been passed in the Provincial Assembly. In areas lacking a law, such as a law on adoption, policy dialogue needs to start so as to develop one. This report recommends that the JJSO 2000 needs to explicitly override existing laws so as to be properly enforceable. Formal Systems and Capacities The Social Welfare Department and Women’s Development Department (SW&WDD) were merged as one in 2001. As part of the KPCPWA (2010), a Child Protection and Welfare Commission (CPWC) has been set up, headed by the Secretary for Social Welfare and having members from the Departments of Labor, Law and Parliamentary Affairs, Home and Tribal Affairs, Finance, Local Government, Election and Rural Development, Elementary and Secondary Education, civil society organizations, members of the Provincial Assembly, lawyers and ulema (religious scholars). The various Departments coordinate on issues of child protection from this platform. The CPWC also has district level offices called Child Protection Units (CPUs) in eight districts of KP. CPWC’s mandate is to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk in the province. The SW&WDD runs some services that are directly relevant to child protection, such as orphanages, shelter homes for destitute children, and schools for the disabled, but these activities are not coordinated with the CPWC. To avoid duplication of efforts and maximize limited resources, the SW&WDD must streamline its efforts to provide child protection services and avoid setting up parallel systems. There is a governmental Steering Committee on Child Protection chaired by the Additional Chief Secretary Planning and Development with representatives from other relevant departments. It has established a Working Group on Birth Registration that functions under the Department of Local Government. There is a Federal Ombudsmen Office and Provincial Ombudsman Office in KP. Both have a mandate to investigate complaints against public offices, which include those that may be relevant to child protection issues. Children may file complaints, although the services are underused. The formal system also includes some actors from the national level, such as Bait-ul-Mal, Federal Investigation Authority (FIA), National Database and Registration Authority (NADRA), Benazir Income Support Program (BISP) and the National Disaster Management Authority (NDMA). International organizations and agencies play a significant role in enhancing and improving systems, raising awareness, and providing service delivery for child protection. They also partner with provincial nongovernment organizations.

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There are no fixed professional standards for social workers. Some civil society organizations conduct training based on specific issues, but they have limited outreach. At least three universities offer degrees in social work, but their curriculums need improvement. Residential care for children without adequate care does exist in both the private and public sector, yet standards are not uniform and not all facilities are registered. The Provincial Disaster Management Authority (PDMA), working under the National Disaster Risk Management Framework, takes care of child protection issues during emergencies. The SW&WDD and the CPWC have links with PDMA for this purpose. Department of Social Welfare and Women Development The CPWC as part of its mandate states it will build a rapid-response child protection intervention capability for provincial level emergencies such as natural disasters or the outbreak of armed conflict; the strategy is not yet developed. The SW&WDD has District Officers in each district of KP. There are also various institutions and services being provided in the districts which are supervised by the District Officers. The Social Welfare Directorate then oversees the District Officers. The subsidiary unit of SW&WDD manages the child protection institutions such as welfare homes for destitute children and schools for disabled children. There is an overlap in mandate between SW&WDD and the CPWC. There is no local level structure of the SW&WDD or CPWC in place at present. The CPWC plans to set up CPUs at the union council level so that outreach and access to children is increased. There is an overlap in the responsibilities of SW&WDD and CPWC, which, if resolved, would result in a saving of resources for the provincial government. CPWC plans to initiate a Certificate Course on Child Protection, and to developed standards operating procedures for its child protection services. It also plans to establish a mechanism to certify institutions involved in child protection and monitor their activities. Children and Justice System The judiciary plays the primary justice role in the province. The JJSO 2000 spells out the mandate of juvenile courts and procedure for cases of child offenders. No judges or courts have been notified to deal with juvenile cases yet. There are no children’s courts and there is no witness or victim protection program. The mandate of the Home and Tribal Affairs Department of KP is maintaining law and order in the province, but it does not have a specific mandate pertaining to children in conflict with the law. It does, however, have a place in the CPWC. Systematic coordination of CPWC with the Home Department is still being established. There is a Police Child Protection Center (PCPC) in Peshawar District run by the Police Department, which comes under the Home Department. Its mandate is counseling, rehabilitation and provision of residence to children in need, although its capacity is very limited. The CPWC is mandated to set up a Child Protection Court and ensure that all national and international standards are met during the trial and detention of children. The CPWC thus has a role to play in

identification of a child at risk of becoming a victim, the provision of shelter and protection of victims, and provision of legal aid for victim and referral services. The CPUs at the district level establish linkages and referrals for children in conflict with the law. Justice Process The justice process for children in conflict with the law is coherent but there are some gaps in practice. At the stage of arrest, children are entitled to the input of a Probation Officer, which they do not receive. There is no diversion mechanism in place after pre-trial detention. There is no easy access to legal aid for children. Separation of children from adults at all stages of detention and incarceration is not practiced. At present probation is the only alternative to detention, yet there are not enough probation officers in place. Rehabilitation services for children after detention are also inadequate. Community, Civil Society and Continuum of Care Corporal punishment is accepted as a norm and is prevalent in schools, households, madrassas and work places. Parents do not consider this to be an issue and are seldom willing to take action against it. As an outcome of poverty, there is high involvement of child labor in the agriculture sector, tobacco industry, domestic labor, and brick kilns and mining industries. Early marriages of girls is another issue, which leads to increased poverty and low health status of women. Many forms of discrimination are prevalent throughout KP, including discrimination based on gender, religion, and refugee status. Trafficking of children across the border to and from Afghanistan is another problem, as is internal trafficking. There is also drug addiction and increasing number of children forced into begging. Another worrying trend is the use of children by non-state forces in the on-going political conflict within the province and region. Civil Society Organizations and Child Protection There are several non-government organizations (NGOs) in KP that are directly working in the sphere of child protection while other organizations are indirectly linked to child protection. These organizations constitute the formal system that contributes to the ‘continuum of care’ available to children. The SW&WDD, through the services it provides to disabled, destitute, and drug addicted children also has a role in countering the negative attitudes and practices that place children at risk. Currently the SW&WDD is the primary agency responsible for registering and overseeing civil society organizations.There is no separate procedure to license civil society organizations (CSOs) and NGOs that directly care for children. Civil society organizations directly work on areas of child protection that include life-skills based education, flood and conflict rehabilitation, child sexual abuse, HIV/AIDS, legal support and advocacy on child rights, to name a few. There is some coordination among NGOs/CSOs on child protection. For example, under the SPARC-led Child Rights Movement, after the 18th Amendment, CSOs came together to advocate on a number of different child rights issues. Media also plays a significant rule in creating awareness about services for children by government and civil society.

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Community-based organizations, family networks clans, teachers and health workers are the key players at the local level. Religious leaders/groups also have a significant influence, as do the police if called upon. Strong family structures do provide significant support to children however there is no way to standardize and monitor their care. There are no specific referral mechanisms in place at the community level. Where the CPUs are functional, efforts are being made to develop a system by involving government, community members and CSOs, but this work is in a preliminary phase. Resource Mobilization Child protection expenditures in the province are difficult to track as there is no separate classification for child protection in budget documents. The same is true within individual Departments. However, an assessment based on available data suggests that allocations that contribute to child protection are low. There is a case, therefore, for the provincial government to prioritize child welfare/protection related spending, especially since the 7th National Finance Commission award has increased the resource envelope of the province substantially. KP is also in the process of initiating outcome based budgeting which will be very useful in developing the costing for a child protection strategy. Donor funding plays a significant role in providing child protection services and systems in the province. A coordinated child protection work plan needs to be prepared and funding sought on that basis. This will also reduce transactions cost for monitoring and accountability allocations, and for introducing outcome-based budgeting for child protection. Optimal Child Protection System The CPWC can serve as the central institution that coordinates the optimal child protection system in the province. However, a few changes need to be introduced to the Commission in order for an optimal system to emerge. The Secretaries of the Health and Planning and Development Department should be made members of the Commission. Representatives from FIA, NADRA, Bait-ul-Mal, BISP and UNICEF should be co-opted members of the Commission to facilitate coordination between federal and provincial bodies. Under this Commission, CPUs should be set up in all districts and linked to a CP Management and Information Service (CPMIS). Child Protection Committees should be set up at the tehsil/community level. A Standing Committee that oversees child protection issues and the working of the Commission should be set up in the Provincial Assembly. The CPWC may also set up and oversee Thematic Working Groups that focus on resolving specific issues in child protection. Setting up this system would require increasing staff, funding and capacity of the CPWC. Recommendations This section lays out action points, based on recommendations from this report, in an order of priority. Much has already been accomplished by introducing legislation and establishing the CPWC. While the challenges of developing a strong child protection system in the province may be daunting, close coordination across government departments, with civil society, and with actors at the district and

community level, can reap enormous benefits in the years to come. The key recommendations discussed are: Laws, Policies, Standards and Regulations All laws brought into conjunction with CRC and ILO Conventions. Existing laws strictly enforced and penalties increased if needed. Training of stakeholders in laws and their enforcement at all levels. Prepare Rules of Business of KP CPWA. A law to be developed to protect IDPs. Specific laws on armed conflict related and registration of refugee children. JJSO should override all other laws. Age of criminal liability increased to at least 12. Age of marriage standardized at 18 for both males and females. Draft legislation to prevent domestic and home-based child labor. Amendments to Prevention and Control of Human Trafficking Ordinance (2002), to combat internal trafficking. • Legal changes in the Guardians and Wards Act 1890 so that abandoned children are legally given into the guardianship of suitable persons. • Laws to develop and regulate foster care systems. • Legislation on domestic violence should be drafted and adopted. • Amend PPC 89 (2) which sanctions corporal punishment. • Make law for registering birth of children with unknown fathers. • Enforce ban on jirgas. • All civil society organizations involved in child protection should be certified by the CPWC. Cooperation, Coordination and Collaboration • • • • • • • • • • •

More coordination, data-sharing and referrals between and within all stakeholders in the child protection system. • All child protection institutions functioning under SW&WDD need to be closely linked with CPWC. • Cooperation among civil society organizations at provincial, district and local levels needs to be strengthened and streamlined. • More effective means of communication and coordination need to be established between all players in the justice process. • A CPMIS should be established and run by CPWC to collect and share relevant data. Capacity Building •

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Directorate of Labor should be given the manpower to inspect all factories in the province, and the mandate to assess informal sector as well. The capacity of Probation Department to be strengthened. Police, lawyers and judges need to be sensitized and trained on child rights issues and made aware of legal (JJSO) requirements. Public prosecutors and public defenders must be put in place. Develop capacity of health workers and educators on child protection.

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Service and Service Delivery Mechanisms •

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CPUs to be expanded to all districts of KP and develop a mechanism for community level coordination on child protection issues that involves civil society organizations and advocates and key players. Children's Complaint Cell (within Ombudsmen office) must be put to optimal use by government and communities. A free helpline should be set up for children at risk. Child witness and child protection programmes to be established. Juvenile courts, Borstal Institutions and remand homes need to be built to cover all the districts of KP. Legal aid services for children in conflict with the law to be made accessible. Counseling services for children in detention. Strict segregation of adults and children during justice process. More alternatives to incarceration must be used. Aftercare services to rehabilitate children leaving juvenile jails.

Communication, Education and Mobilization for Change • • • • •

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Curriculum of social work degree programmes should be reviewed and revised to incorporate modules on child protection. Life-Skills Based Education (LSBE) should become part of KP primary and secondary school curriculum. The CPWC should set up thematic issue working groups to tackle specific child protection issues. Juvenile justice should be formally made part of syllabus of judicial, prison and police training institutes. Awareness-raising on issues of child abuse, exploitation and trafficking. Disaster Management Authorities should develop public awareness programs of early warning and disaster education.

Financial Resources • • • •

Each Department having a role and function in child protection should be provided with a separate budget for child protection related activities. Child protection fund (for CPWC) should be adequately funded through government or other agencies to support expansion of services. Expenditure tracking, based on outcomes should be extended to the CPWC. Civil society should advocate for higher allocations for child protection.

Accountability Mechanisms •

A Standing Committee should be set up in the Provincial Assembly to oversee the functioning of the CPWC.

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Standard operating procedures for civil society organizations and relevant government services for child protection. All resources should be collected in a transparent manner, including donor resources. Donor funds for child protection should be audited, along with all other funds spent through government programs. Strengthen the role of the Ombudsmen. All government bodies involved in child protection activities must be held to standards of accountability based on performance. Outcomes of CPUs should be monitored to help cost effectiveness.

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SECTION 1. INTRODUCTION 1.1.Background and Rationale for Study Until recently, children’s needs have been addressed by the government and civil society organizations (CSO) on issue-based agendas, with goals developed to improve indicators and achieve progress in tackling specific issues. Child labor is one such example, as is trafficking in children. Programmatic and policy approaches to tackle the former are not integrated with efforts to tackle the latter. The concept of child protection, instead, seeks to bring collaboration and coordination among stakeholders working for the welfare of those children who are most vulnerable in our society. In order to build a system to protect the most vulnerable children, clarity of understanding needs to be achieved first: “By definition, a child protection system has certain structures, functions, and capacities, among other components that have been assembled in relation to a set of child protection goals”(User’s Guide1: 18). The system “operates at several levels (ranging from the formal to the less formal), involves several nested contexts, and relies on different actors. … The actors include children, the family, the community, and the state, and they can operate at one or more levels” (User’s Guide: 21, 7). This approach is being applied to the Child Protection Mapping and Assessment (CPM&A) exercise in Pakistan and the different components of such a system have been mapped. “Child protection systems are currently organized around a number of themes. This is evident in global legal frameworks and conventions, national policies and laws, government structures, NGO and civil society projects, and informal practices. The Toolkit breaks these themes down to (i) birth registration; (ii) child labor; (iii) harmful cultural practices (e.g., female genital mutilation/cutting, child marriage, discrimination); (iv) physically, sexually, and psychologically abused and neglected children; (iv) children without adequate family care or alternative care, (vi) child mobility and child trafficking; (vii) commercial sexual exploitation; (viii) children and justice; and (ix) child protection in emergencies/armed conflict. Using these themes as a way to gather information on what exists, enables the user to begin the process of creating an integrated systemic approach. In essence the themes become the building blocks of an integrated system (User’s Guide:16). The purpose of the mapping and assessment exercise carried out in Khyber Pakhtunkhwa (KP) was to assist in future planning for an improved child protection system in the province. It comprised of two main areas (Box 1). The first was an assessment of the basic data with regard to the thematic areas; the capacity of government, non-government, informal and other actors to protect children at risk; and a review of laws and policies in place for the same purpose. Next, the task was to use this information for future planning, i.e. to assist in building a child protection system that would engage human and 1

This document is not dated. It was produced for the purpose of understanding the toolkit to be used in the mapping and assessment of child protection.

financial resources, services and key players in order to prevent children from risk and protect them more effectively. Box 1. Summary of key objectives of study

Part 1: Assessment Key Risks facing children Capacity of child protection structures Legal framework/Policy agenda

Part 2: Future Planning How to improve services? How to coordinate key players? Financial and human resources required?

1.2. Pakistan in a Global Context The first step of the mapping and assessment exercise was to contextualize Pakistan in terms of its global commitments. Since Pakistan signed the Convention on the Rights of the Child (CRC), it has committed itself to protecting children’s human rights and preventing their exposure to harm. Its other international commitmentsdirectly address some of the thematic areas under research in this report, such asthe Convention on the Rights of Persons with Disabilities (ratified in 2011) and International Labor Organization’s (ILO) Worst Forms of Child Labor Convention (ratified in 2001). These commitments require Pakistan to report on their implementation and create systems within the country to achieve their goals. The National Commission for Child Welfare & Development (NCCWD) created on an executive order is responsible for coordinating the implementation of and reporting on CRC. NCCWD is due to be replaced by the National Commission on the Rights of Child (NCRC). This is being deferred due to the delay in the adoption of the NCRC Bill at the federal level. To meet its reporting requirements, Pakistan submitted its Periodic Reportto the UN Committee in March 2009. The Committee reviewed the Reports and forwarded its concluding observations in September 2009. It noted a “lack of a legislative framework harmonized with the Convention in many areas and delays in the adoption of laws”2. Of particular concern was the delay in the adoption of the Child Rights Bill, the Child Protection (Criminal Law Amendment) Bill, the NCRC Bill and the implementation of the Juvenile Justice System Ordinance (JJSO) 2000. Pakistan has made some progress in implementing its commitments with regard to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) but further action needs to be undertaken. The Ministry of Women Development is responsible for reporting on CEDAW. The UN Committee reviewing these reports was concerned, among other observations, that violence against women and girls persists, including domestic violence, rape and crimes committed in the name of honor, and that there is lack of accountability for these crimes; and that the Convention has not yet been fully

2

Committee on the Convention on the Rights of the Child (b). 2007.

3

incorporated into the domestic law of the State.3 The current CPM&A will take a similar view on these particular thematic areas as they pertain to children. A summary of Pakistan’s international commitments relevant to child protectionaresummarized in Box 2. Box 2. Pakistan’s international commitments relevant to child protection 4

PAKISTAN IS PARTY TO:

STATUS

DATE

Convention on the Rights of the Child (CRC), 1989

Ratified

12-Nov-90

Ratified

12-Mar-96

Ratified

5-Jul-11

Signed Non-Party

26-Sep-01

Non-Party

Non-Party Ratified Non-Party Ratified Ratified Ratified

5-Jul-11 6-Jul-06 11-Oct-01 13-Jan-10

Non-Party

Non-Party Ratified Ratified

23-Jun-10 17-Apr-08

Ratified

23-Jun-10

Ratified Non-Party

15-Feb-60

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) Optional CRC Protocol on Sale of Children, Child Prostitution and Child Pornography Optional CRC Protocol on Involvement of Children in Armed Conflict Optional Protocol to CEDAW (1999) Hague Convention on Protection of Children and Inter-country Adoption Hague Convention on Civil Aspects of International Child Abduction Convention on the Rights of Persons with Disabilities (2007) Convention Against Discrimination in Education (1960) Minimum Age Convention (ILO Convention #138, 1973) Worst Forms of Child Labor Convention (ILO #182, 1999) Convention Against Transnational Organized Crime (2000) (Palermo) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) Convention Relating to the Status of Stateless Persons (1954) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Indigenous and Tribal Populations Convention (1957) Convention Relating to the Status of Refugees (1951)

1.3. Institutional Changes in Pakistan, i.e. Devolution (18th Amendment) The domestic context of Pakistan’s social sectors has changed dramatically over recent years. Pakistan has gone through a significant process of devolution since 2009. The 18th Constitutional Amendment, enacted in April 2010, and the 7th National Financial Commission (NFC), enacted in December 2009, have together devolved substantial administrative, fiscal and legislative powers to the provinces from the federal level. This devolution has addressed a long-standing politically contentious issue with respect to the federal character of the state. It has thus added to underlying political stability in a multi-ethnic 3

Committee on the Elimination of discrimination against Women, June 2007.Concluding comments of the Committee on the Elimination of Discrimination against Women: Pakistan.CEDAW/C/PAK/CO/3.United Nations. 4 ‘Accession’ is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature. “To ratify a treaty, the State first signs it and then fulfills its own national legislative requirements.” “Signature’ of a treaty is an act by which a State provides a preliminary endorsement of the instrument. Signing does not create a binding legal obligation but does demonstrate the State’s intent to examine the treaty domestically and consider ratifying it.” [http://www.UNICEF.org/crc/files/Definitions.pdf]

state. However, there are a number of issues with regard to service delivery in general, and child welfare and protection in particular that need to be addressed that have surfaced as a result of this devolution. The 18th Constitutional Amendment abolished the concurrent list in the Constitution. This list had allowed both the federal and provincial governments to concurrently legislate on a range of issues pertaining to social, cultural and economic areas. After the 18thAmendment, 44 of the 47 items on the concurrent list have been devolved to the provinces, i.e. the provinces now have exclusive administrative and legislative jurisdiction over these functions. These include education, health, population, social welfare, labor and others. Virtually all areas relevant to child protection have now come under the provincial domain. The 7th NFC Award has created the requisite fiscal cushion for devolution of functions through the 18th Constitutional Amendment. At the vertical level, the Award has reduced the federal share in revenues from 57.5% to 47%. This vertical devolution of fiscal resources to the provinces has enhanced the revenue base of all four provinces significantly. Moreover, by broadening the criteria for horizontal distribution of resources, the share of smaller provinces in revenues has increased substantially. The magnitude of the fiscal impact can be gauged from the fact that in the last year before the new NFC Award was announced, federal transfers to provinces were Rs. 635 billion and the year after the NFC was enacted, it increased to Rs. 1033 billion and by 2011-12 had reached Rs. 1313.7 billion. KP’s share increased by Rs.79 billion, in one go after the NFC award was finalized. There are numerous teething problems associated with the quantum of devolution that has come the provinces’ way rather suddenly. There are primarily four areas that the provincial government will have to address to overcome these problems. The first is the lack of capacity of provincial governments in a number of areas to effectively formulate and execute policies and to monitor outcomes. The second area is the lack of prioritization of social sectors in the incremental expenditure that has come about as a result of enhanced revenues. Although the KP Government has increased its development expenditure as compared to the pre-NFC award era, expenditure on the social sectors has remained low on the priority list. Third, while the NFC Award has increased the resource base of the provinces significantly, it has created an adverse incentive so far as their own fiscal effort is concerned. Given the new responsibilities and obligations that the provinces have undertaken as a result of the abolition of the concurrent list, it is all the more important that they increase their revenue effort. The fourth area where KP, along with all other provinces, has also failed is the development of a local government system. The third tier of government is constitutionally enshrined but it is a provincial subject and the provinces have to enact the law and hold local government elections. Since important child protection functions have to be carried out by local governments, it is imperative that an effective local government system is put in place as soon as possible. As stated earlier, these are however teething problems, and can be resolved over time. Civil society monitoring and advocacy to resolve these issues and donor support will be critical to overcoming these issues.

5

1.4. Report Contents This Report comprises of ten Sections. The next Section (2) introduces the study design and methodology. Section 3 lays out the provincial risk profile and basic data relevant to child protection. Section 4 introduces all the relevant federal and provincial laws that affect children, and efforts underway to streamline laws and policies in KP. Section 5 describes the formal systems and capacities in the provincial government to protect children. Section 6 is a discussion of what happens to children who come into conflict with the law. Section 7maps out the broader context, beyond formal systems, that makes up the continuum of care for children, as well as civil society efforts and the situation at the district level. In Section 8,there is discussion on resource mobilization and fiscal accountability in the existing system. Section 9 maps out an optimal system for child protection and costs such a system. Section 10 summarizes the main recommendations of the CPM&A.

SECTION 2: STUDY DESIGN 2.1. The Process The CPM&Awas a comprehensive process that engaged stakeholders from government and civil society, as well as UNICEF. It was carried out during 2012, and coordinated by consultants from the Collective for Social Science Research, Karachi. The process went through the following stages: 1. UNICEF selected national consultants to coordinate and conduct the CPM&A. 2. Provincial Steering Committees consisting of government department representatives who were stakeholders in the formulation of a child protection strategy for their provinces were notified. 3. The Collective for Social Science Research met with each Provincial Steering Committee along with UNICEF representatives to introduce the CPM&A Toolkit and process. The Provincial Steering Committees amended and endorsed the Toolkit, and named officials from relevant departments who would form Working Groups. 4. Three Working Groups were established for each Province as follows: • Legal and Policy:The first working group was formed to review legal and policy issues relevant to child protection; • Continuum of Care: The continuum of care working group reviewed the response to child protection in the province, including preventive and rehabilitation services provided by the government as well as civil society; • Resource Mobilization and Fiscal Accountability: The third working group reviewed the specific child protection related budgets of key government departments, donors and multilateral agencies such as UNICEF 5. The Collective organized and conducted the Working Group meetings with the assistance of UNICEF and Provincial Social Welfare Departments. The minutes of these meetings were subsequently reviewed by the Social Welfare Departments and shared with all participants. 6. The Collective conducted key informant interviews with government and non-government representatives to gather information and data on the thematic issues highlighted by the Toolkit, systems in place to address these issues, and suggestions for improvement. 7. The Collective held focus group discussions with CSOs to discuss the provincial continuum of care spectrum forchildrenand understand which organizations were engaged with child protection at the local level. 8. Findings from all the above interviews and synthesis of available data were plugged into each provincial Microsoft Excel Toolkit. 9. Provincial Steering Committees are to be presented with the findings of their respective provincial CPM&As and their endorsement is important to building a stronger child protection system.

7

Figure 1. Diagrammatic representation of study methodology

Working Groups Legal and Policy, Continuum of Care, Resource Mobilization & Fiscal Responsibility

Steering Committee Finance, P&D, Labor. E&S Education, Health, LG&RD, SWD, FATA: Admin and Coordination, Finance, SWD and UNICEF Key Informant Interviews Government representatives, Experts, Civil society members

Secondary Data Sources MICS, PDHS, PSLM, National Nutrition Survey, Economic Survey, Child Labor Survey, NGOs

2.2. The Toolkit The Toolkit referred to above is an Excel file organized to gather relevant data on all the thematic areas pertaining to child protection. Researchers entered into the toolkit all data gathered from various sources, including surveys and interviews. “The Mapping and Assessment Toolkit consists of 20 inter- related tools with a number of questions embedded in each tool. These tools are organized into five sections in the Comprehensive Toolkit version. Those sections include (1) General Provincial Information, which establishes a context within which the system operates including the global legal and policy frameworks, the policy and legislative framework, and the specific risks that children face within a province; (2) System Overview, including system structures, functions, capacities, and the children and justice sector, with tools assessing the community context and role of civil society; (3) Continuum of Care, which assesses the protective environment, including norms and attitudes; (4) Resource Mobilization and Fiscal Accountability, which assesses the human and financial needs of the system and how well child protection is reflected during the budget process, and (5) Moving Forward on System Development, which allows users to frame and cost a program to develop the child protection system drawing on the results of the mapping and assessment” (User’s Guide: 6).

The Toolkit was designed to generate and synthesize data, or lack of data, as well as recommendations in a condensed format. It can continue to be updated and used in order to guide future mapping and assessment exercises.

2.3. Outputs The first output of the study was the set of completed Toolkits for Sindh, Punjab, KP, Balochistan and Gilgit-Baltistan. Second, a synthesis report for each province collated the findings from the CPM&A. Third, presentations summarizing the provincial findings will be shared with the Steering Committees comprising selected government officials in each of the provinces.

9

SECTION 3: PROVINCIAL PROFILE AND BASIC DATA 3.1. Demographic and Macroeconomic Indicators KP has a population of just over 25 million, half of which is under age 19. The provincial population growth rate is 2.4% per year; 17 per cent of the population lives in urban areas. Poverty is striking, at almost 40 per cent of the population. Table 1. Demographic and macroeconomic indicators Value

Male

Female

Source/Date

Total Population (thousands)

Indicator

25,772

12,840

12,932

Population (thousands) under 19

12,644

6,324

6,320

Population (thousands) under 5

3,581

1,795

1,786

Population annual growth rate (%)

2.4%

2.4%

2.4%

Population that is urbanized, %

16.9%

Projections based on the Pakistan Demographic Survey 2003 and 2007 Projections based on the Pakistan Demographic Survey 2003 and 2007 Projections based on the Pakistan Demographic Survey 2003 and 2007 Projections based on the Pakistan Demographic Survey 2003 and 2007 KP MDG Report 2011: 3

% of population below US$1.25/day

39.0%

p VI, KP MDG Report 2011

3.2. Child Health and Education Indicators The infant mortality rate is higher for females than males in KP, as is the under 5 mortality rate, suggesting male preference in health care and nutrition among children in families. The maternal mortality ration is 275. Almost a quarter of children under age five are moderately or severely underweight. The net enrollment rate in primary school is 67%, again with a bias in favor of male enrollment, i.e. 75 percent for boys and only 60 per cent for girls. While the net enrollment rate for secondary schools drops dramatically, down to 40 per cent only, the gender gap increases as well, with 50 per cent of males enrolled and only 28 per cent of females. In short, KP has to contend with extremely wide gender gaps in a context of unfortunately low health and education indicators. Table 2. Child health and education indicators Value

Male

Female

Source/Date

Infant mortality rate (under 1)

Indicator

76

73

79

Under 5 mortality rate

100

95

105

CM.1, p69, KP Multiple Indicators Cluster Survey (MICS) 2008 Pakistan Demographics Household Survey (PDHS) 06-07

11

Maternal mortality ratio, reported

275

PDHS 06-07

Percent Under-5 underweight moderate & severe

24.1%

National Nutrition Survey. 2011

Primary school enrollment ratio, net

67.3%

74.5%

59.1%

Secondary school enrollment ratio, net

39.6%

50.2%

27.5%

Urban school enrollment ratio, net (Total)

70.8%

74.5%

59.1%

Rural school enrollment ratio, net (Total)

59.5%

69.4%

48.3%

Pakistan Social and Living Standards Measurement (PSLM) 2010-2011 Pakistan Social and Living Standards Measurement 2010-2011 Pakistan Social and Living Standards Measurement 2010-2011 Pakistan Social and Living Standards Measurement 2010-2011

3.3. Birth Registration Birth registration is a core indicator of child protection, without which children cannot access the benefits of citizenship in a modern state. It refers to the “registration of a child at birth with name, nationality, and right to be known and cared for by parents” (CRC Article 7). Table 3. Birth registration Indicator

Value

Male

Female

Source/Date

Birth registration, total

19.8%

20.2%

19.4%

KP MICS 2008, p.176

Birth registration, urban

27.2%

KP MICS 2008, p.176

Birth registration, rural

18.4%

KP MICS 2008, p.176

The birth registration rates in KP hover around 20 per cent as do those of all provinces with the exception of Punjab, which has the highest rate (70 per cent) in the nation. The gender disparity is negligible. The urban to rural disparity is almost ten per cent.

3.4. Child Labor Child labor refers to “any work performed by a child which is detrimental to his or her health, education, physical, mental, spiritual, moral, or social development (CRC Article 23/33 Provisions).” Pakistan is signatory to the ILO Convention banning children from hazardous work up to the age of 14. The intricacies of the law related to child labor vary in different countries and in Pakistan the minimum age of employment is 14.

The last Child Labor Survey in Pakistan was conducted in 1996, and current figures are derived from a variety of additional sources, such as MICS. Unfortunately there are no accurate figures for children working in different sectors, such as hazardous industries and domestic work. Table4. Child labor Value

Male

Female

Source/Date

Child labor (5-14 years) total

Indicator

5.8%

6.2%

5.3%

KP MICS 2008, p. 180

Children in labor force not attending school

54.9%

43.1%

70.0%

KP MICS 2008, p. 180

Among working children, % in agricultural sector

84.2%

80.2%

92.9%

Child Labor Survey 1996

Among working children, % in industrial sector

2.2%

2.6%

1.1%


Among working children, % in services sector

13.7%

17.1%

6.0%


Working outside the household

0.3%

0.4%

0.2%

KP MICS 2008, p. 178

In KP, 5.8 per cent of children ages 5-14 years do some form of child labor, according to the MICS 2008. Among those, more than half do not attend school and 84 per cent work in the agricultural sector. Again, the gender disparity is evident, since the proportion of girls who work in that sector is higher than boys.

3.5. Harmful Cultural Practices •

Child Marriage

Under Pakistani law girls can enter marriage at age 16 and boys at age 18. CEDAW, to which Pakistan is signatory, stipulates that betrothal and marriage of a child below the minimum age should have no legal effect (Article 16). According to CRC, the minimum age for both boys and girls to enter marriage should be 18 years. Table 5. Child marriages Indicator

Child marriage, total Child marriage, urban Child marriage, rural

Value

Male

Female

40,962

2,193

38,769

6,480

267

6,213

34,482

1,926

32,556

Source/Date Pakistan Social and Living Standards Measurement 2010-2011 Pakistan Social and Living Standards Measurement 2010-2011 Pakistan Social and Living Standards Measurement 2010-2011

13

It is difficult to get accurate data on child marriages, since all marriages are not registered with the union councils as they should be by law, and neither can the ages of the couple be determined unless they have been noted on the nikahnama. Nonetheless to the extent that it has been possible to collect data, the Pakistan Social and Living Standards Measurement Survey (PSLM) 2010-2011 has identified around 41 thousand such marriages in the province. Child marriage is a practice that mainly affects girls, as evidenced by the figures above. The practice appears to be much curtailed in urban areas, however the gender gap remains. •

Other Harmful Customary Practices

Table 6. Harmful customary practices Indicator

Value

Male

Female

Honor Killings (all ages)

22

n/a

22

Swara

6

--

6

Ghag

n/a

--

n/a

Source/Date Aurat Foundation 2010, p. 44 Aurat Foundation 2010, p. 44

Comprehensive and reliable data on honor killings and other customary practices are also extremely difficult to collect. Aurat Foundation has made a remarkable effort to collate data that should become a mainstay of recorded data kept by provincial governments, particularly in an age-disaggregated form. Data on honor killings is based largely on media reports, and it is unclear whether cases are actually increasing over the years or whether the media has grown more interested in reporting the crime. While the numbers are not as great as those for other child protection indicators, they do reveal the extent of vulnerability to the most severe form of patriarchal control. Honor killings refer to the murder of a couple by family members in response to the couple’s suspected or actual liaison without the permission of their male relatives. An assembly of tribal/family elders (jirga) take the decision and the act is carried out as soon as possible, so that the family’s honor stands restored. There were 22 such cases that came to public notice in KP in 2010, none of these resulted in the death of males, however. Swara is the practice of offering girls in marriage to settle disputes between parties in a community; it usually involves very young girls below marriageable age. Only six such cases were recorded in 2010, however the actual figure is likely to be higher. Ghag is the custom that permits a man to public declare his choice of a girl or woman in marriage, after which her family may not marry her to anyone else.

3.6. Physically, Sexually and Psychologically Abused and Severely Neglected Children Child abuse is the “deliberate act of ill treatment that can harm or is likely to cause harm to a child’s safety, well-being, dignity and development. Abuse includes all forms of physical, sexual, psychological or emotional ill treatment” (Save the Children, UK and Toolkit 1a).It includes all forms of sexual violence including incest, early and forced marriage, rape, involvement in child pornography, and sexual slavery. Child sexual abuse may also include indecent touching or exposure, using sexually explicit language towards a child and showing children pornographic material (UNICEF CPM&A Toolkit 1a). Child sexual abuse includes sexual activities with a child who is below the country’s minimum age of marriage, and the use of coercion, force or threats by an authority figure to carry out these activities (Article 18 of Council Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse). This form of abuse and exploitation includes child pornography, forcing children to witness sexual activities, and soliciting them for sexual activities (Articles 18-23 of above Convention). Table 7. Child abuse reports Indicator

Value

Male

Female

Source/Date

Percentage of schools with protective school policies in place

56.0%

70.4%

27.3%

FAFEN Education Institution Monitor

Number of children victims of sexual abuse as reported by newspapers in 2010

59

n/a

n/a

Sahil Cruel Numbers 2010

Number of rape cases reported during 2010 (all ages)

5

0

5

Aurat Foundation 2010, p. 44

Madadgaar is an NGO that runs a helpline to support women and children exposed to violence. Its data indicates that nationally the most common violence against children that is reported is murder, followed by injury, rape and sodomy. Figures available for KP, in Table 8, show some inconsistency in annual reporting rates. At best it can be stated that reported cases are unlikely to represent the full scope of violence against children. Table 8. Children subject to abuse [Madadgaar data] Indicator

Value

Male

Female

Source

Child abuse KP 2010

929

n/a

n/a

Madadgaar Data 2010

Child abuse KP 2011

467

284

183

Madadgaar Data 2011

15

3.7. Children Without Adequate Family Care or Alternative Care Alternative care is provided to those children whose families are unable to take adequate care of them or abandon/relinquishthem. Alternative care may be formal or informal, including arrangements such as: kinship care, foster care, other forms of family-based or family-like care placements, residential care or supervised independent living arrangements (Guidelines for the Alternate Care of Children 2009). Adoption is “the legal transfer of parental rights and responsibilities for a child which is permanent” (Save the Children UK andCPM&A Toolkit 1a). In Pakistan, adoption as such is not provided for in the law. Instead, courts can confer guardianship of orphaned children, but this can sometimes be a temporary, not permanent, responsibility (CPM&A Toolkit 1a). A version of adoption/guardianship called kafalah in Muslims countries involves no change in kinship status but allows an unrelated child to receive care, legal protection and inheritance (Toolkit 1a). In Pakistan the most permanent form of family-based care permitted to orphans is guardianship. Children without parental care are those who are not living in the overnight care of at least one parent. Such children who are out of their home countries or victims of emergency situations can be designated as unaccompanied or separate (Guidelines for the Alternative Care of Children). Table 9. Children without adequate family care Indicator

Value

Male

Female

% of children (0-17) orphaned by all causes (000s)

4.3

n/a

n/a

% of children with one living parent (half orphans)

3.9

n/a

n/a

Source Pakistan Demographic and Health Survey 20067 Ibid.

Fortunately there is some data on orphans in KP. Relevant indicators for which there is no data available include details of orphans living arrangements, such as foster care/residential care/familybased care, and guardianship. We also do not have figures on domestic and inter-country adoptions.

3.8. Child Trafficking and Commercial Sexual Exploitation We know that child trafficking takes place in Pakistan, in which children have been brought across the country and into the Gulf to be used for camel races, and brought from one part of the country to another to be used as sex workers. What we have less information on is exact figures. One reason for this is that the Federal Investigation Agency (FIA) collects data on cross-border trafficking from all the provinces, but this remains to be shared with concerned departments at the provincial level. Another reason is that the movement of children from one province to another has not been tracked, obviously due to the difficulty of doing so, which leaves us with little information about children’s mobility and related safety. There is virtually no comprehensive data on children trafficked in and out of the

country for labor exploitation, or estimates for child migrants within the country, or estimates for children trafficked for commercial sex within the country either. Some national level data is available from Madadgaar, and NGO that runs helplines for women and children who are victims of abuse. For the years 2011 and May to June 2012, the number of children reported as trafficked is 382.

3.9. Children and Justice Children who come into conflict with the law are those who come in contact with enforcement authorities because they are suspected, or guilty, of breaking the law (UNICEF Toolkit on Diversion and Alternatives to Detention, 2009 draft, quoted in Toolkit 1a). In Pakistan the minimum age for criminal responsibility is 7. Alternatives to detention refer to legal measures that do not involve deprivation of liberty. Aftercare is the “control, supervision and care exercised over children after they leave community-based programs or are released from detention. It may include probation or enrollment in a community program” (UNICEF Toolkit on Diversion and Alternatives to Detention, 2009 draft, quoted in Toolkit 1a). Probation is the only system of non-custodial punishment in the country, but there are not enough probation officers to make it effective. Though some data was available for children in conflict with the law there were still several gaps, which include the overall number of children that have come into conflict with the law. There is no information on the juvenile’s contact with parents and families. There is no system of pre-sentence diversion, such as community-based programmes, to avoid sending children to jail. Aftercareprogrammes to help them reintegrate into society after prison are providing insufficient support.Incomplete systems and data collection combined provide an unclear picture of children in the justice sector. Table 10. Children in conflict with the law Indicator

Value

Male

Female

Source

Children in detention

219

n/a

n/a

Data from Home Dept, 10-01-2012

Children in pre-sentence detention

199

n/a

n/a


Custodial sentencing

64

31

33


Pre-sentence diversion

107

n/a

n/a

Correspondence with UNICEF Islamabad

3,004

n/a

n/a


Number of children tried/convicted for: Murder (2001-2011)

17

Number of children tried/convicted for: Narcotics (2001-2011) Number of children tried/convicted for: Zina (2001-2011) Number of children tried/convicted for: Others (2001-2011)

2,290

n/a

n/a


974

n/a

n/a


6,590

n/a

n/a


3.10. Emergencies and Armed Conflict Landmine and Cluster Munition Monitor observes that casualties in 2011 were showing a marked increase from the 2010 and 2009 figures. Most casualties occur in the Federally Administered Tribal Areas (FATA) and KP, where on-going conflict between government forces and extremist insurgents continues, and still results in intermittent displacement of populations. Table 11. Children in emergencies Indicator

Value

Male

Female

Source

Number of unaccompanied or separated children due to emergency or conflict

1,000

IDMC and NRC 2010: 15 [figure reserved for displaced due to conflict in 2007-10] IVAP (based on survey of 94,389 displaced families June 2010 to July 2011. http://www.ivap.org.pk/) UNHCR Statistical Update on IDPs in KP and FATA, Dec 31st 2012 UNICEF KP Office, Jan 2013

Number of internally displaced children

264,587

Internally displaced persons from tribal areas

757,996

Afghan refugees (0 to 17 yrs) in KP and tribal regions adjacent to KP living in host communities Afghan refugees (0 to 17 yrs) in KP and tribal regions adjacent to KP living in refugee camps

576,241

135,446

125,449

548,453

144,395

136,240

UNICEF KP Office, Jan 2013

Number of attacks on schools (boys/co-ed and girls)

119

111

8

Total landmine/ERW/victim activated IEDs casualties national (all ages) 2010

394

332

18

Of above, total children casualties and deaths (national)* 2010

44

41

3

UNICEF KP Situation Analysis 2012: 92 [This figure is for 2008] Landmine Cluster and Munition Monitor http://www.themonitor.org/index.php/c p/display/region_profiles /theme/1260#_ftn4 Landmine Cluster and Munition Monitor http://www.themonitor.org/index.php/c p/display/region_profiles /theme/1260#_ftn4

Casualties from antipersonnel mines, victim-activated IEDS and ERW in KP (all ages) 2010

63

Landmine Cluster and Munition Monitor http://www.themonitor.org/index.php/c p/display/region_profiles /theme/1260#_ftn4

3.11. HIV/AIDS Only 204 children with HIV have been registered in any of Pakistan five pediatric centers from 2007 to July 2012. In Pakistan the most common comorbidity with HIV/AIDS infection in children is tuberculosis. Mother to child transmission is the most common form of transmission to children. Fortunately the number of HIV/AIDS infected children in KP is low, although the above figures only reflect the number of patients that are registered at a treatment center in a Peshawar hospital. Table 13. Children and HIV/AIDS Indicator

Value

Male

Female

Source/Date

Estimated number of children age 0-14 living with HIV/AIDS

42

n/a

n/a

Number of children (age 0-14) receiving ART drug therapy

16

n/a

n/a

National Aids Control Program Pakistan and UNICEF. 2012 Pakistan Pediatric AIDS Situation Analysis. Islamabad National Aids Control Program Pakistan and UNICEF. 2012 Pakistan Pediatric AIDS Situation Analysis. Islamabad

3.10. Disabilities KP is one province that decided to include the Optional Module on Disabilities in its most recent Multiple Indicators Cluster Survey, which is already almost five years old. Nonetheless it provides insight into one sector of the child population, i.e. up to age 9, for a set of disabilities pertaining to mental development, as well as hearing and vision impairments that could be categorized as functional disabilities. The Survey showed that about six per cent of children ages 2-9 had at least one disability.

19

Table 14. Children with disabilities Value

Male

Female

Source/Date

Children with disabilities, total (2 to 9 yrs)

Indicator

6.0%

n/a

n/a

p182, KP MICS 2008

Children with disabilities, total urban (2 to 9 yrs)

7.1%

n/a

n/a

p182, KP MICS 2008

Children with disabilities, total rural (2 to 9 yrs)

5.8%

n/a

n/a

p182, KP MICS 2008

6.9%

5.1%

Children with disabilities by gender

Children with disabilities total (2 to 4 yrs)

6.5%

n/a

n/a

Children with disabilities, total (5 to 9 yrs)

5.7%

n/a

n/a

Children reported with a speech impairment (speaking cannot be understood, 2-9 yrs)

1.2%

n/a

n/a

p16, KP MICS 2008 [Social Protection and SocioEconomic Indicators Report] p16, KP MICS 2008 [Social Protection and SocioEconomic Indicators Report] p16, KP MICS 2008 [Social Protection and SocioEconomic Indicators Report] p182, KP MICS 2008

Children reported with a speech impairment (speech is not normal, 3-9 yrs)

3.9%

n/a

n/a

p182, KP MICS 2008

Children reported with a naming objects impairment (Cannot name atleast one object, 2 yrs)

25.5%

n/a

n/a

p182, KP MICS 2008

Children reported with a mental impairment (appears mentally backward, dull, or slow, 2-9 yrs)

1.9%

n/a

n/a

p182, KP MICS 2008

SECTION 4: LAWS AND POLICIES This Section outlines the range of laws and policies that have a bearing on child protection issues and are applicable to the province. Legal and Policy Working Group members helped to analyze the laws and suggest recommendations for improving legislation where necessary.

4.1. National Laws Applicable to Khyber Pakhtunkhwa The table below outlines laws that have been adopted from national legislation and endorsed by the KP government. Key features in each legislation have been summarized, gaps identified and recommendations made for improving existing legislation (i.e. the policy agenda for moving forward). Box 1. Child protection federal laws applicable in Khyber Pakhtunkhwa Name Child Marriage Restraint Act 1929

Key Features Legal minimum ages for marriage. Boys = 18, Girls = 16

Gaps Discrepancy between male and female minimum ages; Minor penalties; Muslim family / Shariat laws override this law.

Policy Agenda Minimum age for both boys and girls should equal 18. Penalties should be increased and this law should have overriding powers over other laws.

Process and standards for handling criminal cases for children (under 18)

Not explicitly against solitary confinement for children

Stronger implementation of law. Capacity Building of police, prison staff, lawyers and judges on legislation. Employment under 16 should be banned; 1618 should be regulated. Penalties should be increased. Contradiction between ILO and law needs to be resolved. Should regulate domestic and home-based labor as well.

Juvenile Justice System Ordinance 2000 Employment of Children’s Act 1991

Standards and working conditions for children. Lists occupations that are not allowed for children less than 14 years of age.

Birth Marriage and Death Registration Act 1886

Birth registration standards and procedures

Contradiction between ILO Minimum Age Convention that requires minimum age of employment to be greater than or equal to age at which compulsory education ends (i.e. 16 for Pakistan). Does not cover domestic and home based labor. Birth registration for children with unknown fathers not possible. Weak implementation

Rules and regulations (by-laws) for registering children with unknown fathers. Stronger implementation of

21

legislation.

Name Prevention and Control of Human Trafficking Ordinance (PACHTO)2002

Pakistan Penal Code (PPC)

Criminal Law (Amendment Act) 2005

Probation of Offender's Ordinance 1960

Policy Agenda Amend legislation to include internal trafficking, drug trafficking, organ trade and forced marriages. Legislation should explicitly provide rescue and rehabilitation services for child victims of trafficking. Minimum age for While PPC does not Increase min age of criminal responsibility hold children under 7 criminal responsibility = 7. PPC is applicable criminally responsible, to 12 (as per CRC to honor killing, children under 7 can recommendations). corporal punishment, be tried under zinalaws PPC should override violence, murder, and Anti-Terrorism Act. zinalaws and Antiassault, trafficking, Corporal punishment is Terrorism Act. Corporal kidnapping, sexual allowed if considered punishment under any abuse, forced labor for best interest of circumstance should (slavery / bonded child. Weak be strictly banned. labor) implementation of honor killing laws. This law increased Allows the victim's The proposed penalties for honor family to negotiate a amendments on PPC killings. physical or monetary and Criminal settlement with the Procedure Code (CrPC) accused in exchange made by Aurat for dropping cases, in Foundation and keeping with the lawyers should be provisions of the Qisas adopted and passed by and Diyat Laws the Provincial Government. Under the Probation of Implementation of law The law needs to be Offenders Ordinance, is poor. implemented and 1960, if the court upon judges familiarized considering the factors with it in conjunction of (i) age of the with the JJSO which offender and (ii) the urges probation as a nature of the offence, preferred treatment which should not be for juveniles. Practice punishable with suggests that judiciary imprisonment for more is not familiar with the than two years, is provisions of this law. satisfied that it is inexpedient to inflict punishment and that a probation order is also Key Features Bonded labor; Trafficking in and out of Pakistan

Gaps Does not cover organ trade, forced marriages, internal trafficking and use of children for drug trafficking.

Name Guardianship and Ward Act 1890

Bonded Labor System (Abolition) Act 1992

not appropriate, makes an order discharging the young offender after due admonition. Key Features Gaps Legal guardianship / Full adoption under kafalah this law is not possible and the process can be complex. Foster care systems are not developed and there is no provision for tracking children in guardianship. The Act abolishes The Bonded Labor bonded labor including System Abolition Act in cases where families 1992 bans the practice along with dependent without containing children are bonded special provisions for labor in regarding children. consideration of an Penalties for keeping advance payment. It bonded labor are not mandates District severe. Vigilance Committees (DVC) to monitor bonded labor.

Policy Agenda This law needs to be expanded to include foster care and formal kinship care and/or supplemented with additional laws regulating the above.

DVCs mandated under this act need to be made operational. Law enforcement officials and labor inspectors need to be sensitized to this issue.

Other laws include the Abolition of the Punishment of Whipping Act 1996, Control of Narcotic Substances Act 1997, Reformatory Schools Act 1897 (Child Rights Information Network Report 2011), Conditional Discharge (Article 4) or release on probation (Article 5) are alternatives to incarceration and are specified in the Probation of Offenders Ordinance, 1960, and Calamity Act of 1958 is mainly concerned with organizing emergency response. There is a Child Rights Steering Committee established at the national level which comprises of twenty members. These include two religious scholars to help ensure that policies promoted are in line with Islamic injunctions. Box 2. Laws Specific to Khyber Pakhtunkhwa Name Khyber Pakhtunkhwa Child Protection and Welfare Act 2010

Key Features Provides legal basis for child protection and sets up a Commission within government. It protects children in need of child protection covering thematic areas.

Gaps Rules of business urgently needed for the proper implementation of the law. No formal consultative process with children undertaken.

Policy Agenda An exercise within government is needed to fix the costs of legislative and regulatory changes.

Khyber

This act mandates that

Rules of business need

Borstal Institution

23

PakhtunkhwaBorstal Institutions Act, 2011

Local Government Ordinance 2012

Khyber Pakhtunkhwa Elimination of Custom of Ghag Bill 2013

Borstal Institutions will be set up in KP for juveniles. A Borstal Institution shall provide to the inmates the facilities of basic education and training (moral and psychological development, and make proper arrangement for their health and accommodation etc.) Mandates Union Councils to register births.

A bill was passed in January 2013 in the provincial assembly to prevent the customary practice of ghag. It would make ghag a cognizable, nonbailable and noncompoundable offence.

drafting.

should be set up without further delay.

No uniform costs of birth registration across union councils. Not all union councils secretaries are well trained to register births as per NADRA requirements. The new law has not yet come into force.

Awareness of birth registration in communities and capacity training of local government must be undertaken.

Rules to enforce the law need to be made, and awareness raised among public and the judiciary about the new law.

4.2. Legal and Policy Assessment in light of Child Protection Thematic Areas What follows is a brief summary of how the above laws and policies influence the thematic areas of child protection. Further details may be found in the Toolkit. Birth Registration: The Local Government Ordinance 2001 is the most relevant among all the laws that have a role to play in birth registration. It mandates union councils to register births and prescribes penalties to heads of household for failure to do so. The Cantonment Act 1924 provides rules and regulations for birth registration in Cantonments. The NADRA Ordinance 2000, Birth, Marriage and Death Registration Act 1886 and Pakistan Citizenship Act 1951 are also relevant. Birth registration is compulsory. Problems: Afghan refugees are issued proof of registration but not given nationality. NADRA’s5 computerized system does not allow registration for children without known fathers or transsexuals to 5

The acronym stands for the National Data Registration Authority which is responsible for issuing identity cards.

be registered. Customary restrictions on girls’ education and mobility have limited their awareness of the importance of birth registration. NADRA and union councils need to collaborate closely to ensure maximum registration. Union councils can charge a fee for registration that is not standardized across the province. Deviations from CRC: Afghans should have right to registration and nationality as do Pakistani orphans. Overall, there is a lower level of female birth registration, as well as registration of children from religious minorities, which indicates discrimination. Policy Priorities: 1. The issue of registration of refugee children needs policy dialogue. 2. Regulatory change at level of union councils needed for proper implementation of law. 3. A policy of no charge for birth registration needs to be considered.

Child Labor and Child Work: Employment of Children’s Act 1991 prohibits and regulates child labor. The Bonded Labor System Abolition Act 1992 bans the practice of bonded labor and Article 11(3) of the Constitution of Pakistan also prohibits employment of children under age 14 in hazardous occupations. Deviations from CRC: Employment of Children’s Act 1991 defines a child as under age 14 instead of 18, and this too for only hazardous occupations. It also only addresses work in agriculture, household enterprises and domestic work. The ILO Convention 138, Article 26 states that the minimum age for all forms of child labor should be 15, and the minimum age may not be less than the maximum age for compulsory education, which in Pakistan is age 16. The law does reference CRC in Section 5. CRC requires states to eliminate traditional practices prejudicial to health of children, which includes hazardous child labor. Problems: Penalties for keeping bonded labor are not severe. Child laborers do not have access to labor-related facilities. However, a Child and Bonded Labor Cell has been established in the Directorate of Labor to provide them with legal assistance. Policy Priorities: 1. Different laws involving child labor need to be revised in line with CRC. Contradiction between Employment Act and ILO Convention 138 need to be resolved. 2. The contradiction between maximum age for compulsory education and minimum age of employment as per ILO Convention requirements needs to be resolved. 3. Penalties for breaking the law must be made more severe. 4. Area inspectors and District Vigilance Committees need training on child labor laws and power to prosecute employers who violate them.

Child Marriage: The Child Marriage Restraint Act (1929) is complemented by other laws relative to Muslim personal laws, family laws, PPC and Criminal Procedure Code. 6

http://www2.ohchr.org/english/law/ageconvention.htm

25

Deviations from CRC:The 1929 Act violates the CRC in defining a child as under age 16. According to Mohammadan Law, marriage is legal once the child reaches puberty. Zina laws define female adult as one who has attained puberty or is over age 16. The Supreme Court in 2005 stated that no law or judgment could override the Shariat as a superior law. CRC Article 24(3) mentions that state parties take appropriate measures to eliminate traditional practices prejudicial to the health of children, which is being violated in KP. CRC also opposes forced marriages in any form. Problems: The child marriage laws are reflected in religious laws as well and hence different laws apply to children of difference religions. Existing legislation does not mention mechanism of lodging complaint, or a mode of investigation or inquiry. Implementation of existing laws is almost nonexistent. Forced child marriages customs are still common. An amendment to the Child Marriage Restraint Amendment Bill to fix the minimum age for marriage at 18 years was rejected upon presentation in the provincial assembly in January 2013. One reason for this was the argument put forth by some politicians that the Bill limiting age of marriage of a girl was against Islam. Policy Priorities: 1. Age of marriage needs to be standardized at 18 for both males and females and no other personal, family or religious law should have authority to override this. 2. The Marriage Amendment Bill should be passed in the provincial assembly. 3. Penalties for all those involved in child marriages must be increased and made more severe. 4. Nikahnama should require a copy of birth certificate.

Honor Killings: The Pakistan Penal Code was amended in 2004 to add sections specifically addressing honor killings and outlawing Diyat as a possible form of compensation. Deviations from CRC: The Criminal Amendment Act 2004 does not reference CRC and it is not yet clear if it will be effective in abolishing this custom, as called for by CRC. Problems: There is a legal confusion created by the compoundability clause of the Qisas and Diyat laws, which does not remove the option of compromise and waiver of offence. Advocacy groups maintain that the amended law is not being implemented and the courts and police are not doing enough. Police lack legal training, crimes go unregistered, data is hard to collect, and other problems persist (Lari 2011: 74-79). Honor killings are linked to a particular cultural attitude prevalent in the region. Thus, while legislative change is an important first step, regulations that can moderate these specific cultural perceptions by ensuring strict enforcement and awareness of these laws are needed. Local tribal courts, jirgas, continue to pass judgments related to honor and the practice of offering girls in marriage to compensate for wrongdoings. Policy Priorities: 1. 2. 3. 4.

Ensure implementation of amended law. Clarify confusion created by Qisas and Diyat Laws. Enforce implementation of the ban on jirgas. Judiciary uses notion of mitigating cases in case of honor killing, in violation of the law.

Child Discrimination: There is no specific legislation outlawing discrimination with regard to disabilities, sex, religious denomination and other categories. Deviations from CRC: There is no existing legislation in place that refers to child discrimination. All child marriage-related laws discriminate on the basis of sex when stating the minimum legal age for marriage (it is 16 years for girls and 18 years for boys). Zina laws define adult differently for boys and girls. Traditional practices also encourage discrimination against girls to inherit. Problems:All legislation related to age of marriage is based on an age of majority that discriminates between boys and girls. Traditions and customs deprive girls of inheritance rights and full access to health care. The KP CPWA 2010 does not have a chapter on child discrimination, making the Commission explicitly unable to deal with the issue. Policy Priorities: 1. A policy dialogue needs to start in order to address child discrimination. 2. The Charter of Child Rights Bill 2009, if passed, does address discrimination and extends to all provinces. Physical, Sexual and Psychological Abuse and Severe Neglect: There is no specific national legislation that covers abuse. The PPC sanctions corporal punishment (Section 89). Sections 32-37 of the KPCPWA define violence and corporal punishment and prescribe punishments for each. Sexual violence is covered in several sections of the PPC and also in the KPCPWA Section 53. Cases of sexual violence, sodomy and rape can be tried under PPC’s various sections concerned with murder and aggravated assault. JJSO (2000) guarantees all children will get free legal aid. Children can lodge a formal complaint through the Children’s Cell at the office of the Provincial Ombudsman with respect to the public sector. Child Protection Units formed under the KP Child Protection and Welfare Commission in eight districts are mandated to protect children at risk of abuse, neglect and exploitation. Deviations from CRC: CRC is not referred to, but KPCPWA under Section 4b states as its mandate that it will coordinate with the National Commission on the Rights of Children (NCRC). PPC Section 89 can be read to justify corporal punishment. KPCPWA abolishes corporal violence in Section 33 but the contradiction remains. Problems: There is no legislation specifically addressing domestic violence. A bill has been moved in the Provincial Assembly named the Domestic Violence (Prevention and Protection) Bill 2012 but was tabled because of opposition in the Assembly. KPCPWA is silent on matter of free legal aid. Corporal punishment is still prevalent in public and private schools and religious institutions. Policy Priorities: 1. Legislation on domestic violence should be adopted. 2. Stronger implementation of existing laws with punishments is needed.

27

3. Amend PPC 89(2), which sanctions corporal punishment. 4. Dialogue must begin to resolve the legal contradiction in corporal punishment issue. 5. Training of teachers to stop corporal punishment must be a government priority.

Children without Adequate Care or Alternative Care: Adoption is not legal. The Guardianship and Wards Act 1890 allows for the court to grant legal guardianship to families. Under KPCPWA, unauthorized custody of a child is a punishable crime. The Supreme Court has heard the application for a legal strategy to resolve issue of registering children of unknown parentage. Part IV of KPCPWA deals with rescue, care, protection and rehabilitation of children at risk. Under KPCPWA a child protection institution is defined as an organization for the care, protection and rehabilitation of children at risk, which includes a children’s home or an orphanage established by the government for abandoned children. Further, children without adequate care and at risk are to be protected by the state, a functioned performed in large part by the CPU. Deviations from CRC: The law does not explicitly refer to CRC or the Hague Convention on Intercountry Adoption. The existing law does not explicitly promote/discourage family separation. While CRC takes into account a child’s ethnic, religious, cultural and linguistic background in matters of alternative care, none of the laws in Pakistan do so. Problems: There is no child adoption law (laws being restricted to kafalah or guardianship). Traditional kinship structures usually absorb those children in need of care within their extended family. There is no law regulating or instituting formal kinship care or foster care systems. KP has no adoption law. Policy Priorities: 1. Religious institutions that are providing alternative care facilities must be taken on board and included in the process of registration, monitoring and introduction of standards of care. 2. Legal changes should be brought in the Guardians and Wards Act 1890 so that abandoned children are legally given into the guardianship of suitable persons in default of biological parents or nearer relatives. 3. Laws should be instituted that develop and regulate foster care systems. 4. Custody should be given after proper inquiry regarding the prospective guardian. 5. The court should supervise the case of every child through periodic reviews once the child has been given in guardianship. 7 Child Mobility and Trafficking: This is addressed in a number of laws, including the PPC and PACHTO 2002 (see above). Relevant sections of the PPC criminalize kidnapping from Pakistan and from lawful guardianship (Sections 366-B, 369,371,372,373). Section 52 of KP CPWA addresses child trafficking and prescribes steep fine and imprisonment for criminals. Deviations from CRC: Existing laws, including KP CPWA, do not reference the CRC. Pakistan is not party to the UN Trafficking in Persons Protocol 2000. The PPC provisions do not adhere to CRC definition of a 7

http://pakistan.childrightsdesk.com/?p=13471

child, do not extend protection from kidnapping to street children, nor criminalize all types of trafficking (ILO Trafficking Report 2006: 40). PACHTO (2002) defines a child as under age 18 but it does not provide for children involved in drug trafficking (which CRC Article 33 does). Problems: PACHTO 2002 falls short of the UN Trafficking in Persons Protocol 2000 by not recognizing transfer and transportation of persons as part of trafficking, neglects to include trafficking due to abuse of power and ignores trafficking within Pakistan (ILO Trafficking Report 2006). PACHTO does not recognize end products of trafficking such as organ trade and forced marriage. PACHTO does not have separate provisions to safeguard the rights of survivors of trafficking and it is not mandatory to provide for the needs of rescued victims. KP CPWA only deals with punishment for child trafficking within Pakistan. It does not explicitly override other trafficking laws in the province. The Ordinance does not recognize the end products of trafficking, such as organ trade and forced marriage. The PACHTO 2002 does not provide protection for children from being returned to the same environment from which they were exposed to trafficking (ILO Trafficking Report 2006). Begging mafias rely on trafficking, and jirgas allow forced marriages to settle disputes. Policy Priorities: 1. More awareness-raising among professionals who work on issues of child abuse, exploitation or trafficking. Use of jirgas and mafias in child trafficking needs to be curtailed. 2. Increase of law enforcement activities, investigation and prosecution of complicit government offices. 3. Amendments to PACHTO, to strengthen it in light of above-mentioned problems are needed. 4. Enforcement of Bonded Labor System (Abolition) Act, improvement in methods to identify victims, and strengthening of Labor Departments’ capacity to combat bonded labor.8 5. A law to combat internal trafficking is needed, in conjunction with services provided for children trafficked within the country. Commercial Sexual Exploitation: The PPC has laws relevant to sexual abuse and sexual harassment, trafficking, prostitution, coercion to have unlawful sex and rape. The Anti-Terrorism Act 1999 covers gang rape and child molestation, and PACHTO address trafficking of children (under age 18) for commercial sex. Sections of KP CPWA address sexual abuse of children, child pornography, exposure to seduction. Pakistan ratified the Optional Protocol of CRC in 2010 that will require laws against child prostitution and child pornography to be made in accordance with CRC. Deviations from CRC: There is no direct reference to CRC or other conventions in existing legislation, including the PPC and KPCPWA, although the latter does state that the contents of the Act shall meet the government’s international commitments as long as they are not repugnant to the Constitution. PPC (Section 496b) makes a woman liable to punishment if she has had willful sexual intercourse with someone to whom she is not married, and it would apply to girls under the age of 16. The KPCPWA 8

Office to Monitor and Combat Trafficking in Persons. US State Department. 2011. Trafficking in Persons Report 2011. www.state.gov/j/tip/rls

29

under Section VIII, 38, states that harmful practices under the guise of a tradition or custom that may be harmful to a child are an offence. Problems: The law does not grant children at risk of sexual abuse, or subjected to it, or witnessing it, with rights to file complaints. Rules of business of KPCPWA are being developed and effort is underway to make them more consonant with the CRC. The Criminal Law (Amendment) Act proposes that existing laws be harmonized with the CRC. Policy Priorities: 1. Clarify status of Criminal Law (Amendment) Act 2009. 2. Policy dialogue needs to start so as to make necessary legal adjustments as per commitment to CRC and other international obligations. 3. More government ownership of implement of KPCPWA and establishment of CPUs in all districts of KP. Children and Justice: The JJSO is the primary legislation dealing with this; however it does not serve to repeal laws that have preceded it. It does override them, except in relation to hadd offences and cases in special courts dealing with drugs and terrorism. KP CPWA discusses Child Protection Courts with defined powers and functions. It provides children in conflict with the law with special treatment and it refers to JJSO in certain sections. Deviations from CRC: It is not specifically mentioned in the JJSO, but the CRC principles were adhered to in the drafting of this law. However there are a number of deviations from the CRC: Section 82 of the PPC establishes the minimum age of criminal responsibility as 7 years. Section 83 gives the court the arbitrary power to evaluate criminal responsibility of a child between 7 to 12 years, based on the child's maturity of understanding. The CRC does not establish a minimum age of criminal responsibility but the CRC Committee has developed a General Comment No 10 that encourages states to maintain the minimum age at 12 or above. The Beijing Rules recommend that the age be based on emotional, mental and intellectual maturity, and not be too low. While the JJSO prohibits death penalty for children, the Anti-Terrorism Law overrides the JJSO, meaning that children can be sentenced to death. Article 37 (a) of the CRC prohibits death penalty. Article 37 (a) of the CRC prohibits life imprisonment for children but Article 12 of the JJSO does not. Hudood laws, and their religious sanction, are very important to child protection in the justice system, because in their current form, age has no bearing on conviction if a crime falls under Qisas or hadd. Girls are liable for punishments from age 16 or attainment of puberty, and boys from age 18 or puberty. This is contrary to CRC, CEDAW, and the Constitution of Pakistan. The national government has withdrawn its original reservation on interpreting the CRC in light of Islamic laws, so it must proceed with making necessary changes to existing laws (Report on the Implementation of CRC in Pakistan 2003).

Problems: The status of JJSO with respect to other laws needs to be clarified within the judicial system. There are no Borstal Schools in KP, although approval for 3 has been given. Juvenile courts not established, weakness of probation system, and imprisonment of juveniles during fight with militancy is a growing problem. While children may get legal assistance, it does not extend to provision of bail by government or non-government sources. Alternatives to incarceration do exist in the law but they are often not utilized due to the slow number of children who access probation services. Law enforcement officials violate the law routinely, e.g. with respect to keeping juvenile offenders separate from adults. Policy Priorities: 1. A policy dialogue needs to be started to address the departures from CRC in the existing laws and policies. 2. Minimum age of criminal responsibility should be increased. 3. All those involved with the judicial process for children must know the laws and protections that exist and act accordingly. 4. JJSO should override all other contradictory laws by amending Section 14. 5. Juvenile courts should be set up, Borstal Institutes should be established in each district, and more probation officers should be appointed (at least 2 per district). Probation officers need special training on child protection and JJSO. 6. Parole and probation should be made more practical to implement. 7. Juvenile justice should be formally made part of syllabus of judicial, person and police training institutes (SPARC 2010: 107). Child Protection in Emergencies and Armed Conflicts: Pakistan is not a party to the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol. Pakistan has signed but not ratified the Optional Protocol on Children in Armed Conflict. The Calamity Act of 1958 is mainly concerned with organizing emergency response. The National Disaster Management Act (2010) provides for the establishment of national disaster management system for Pakistan to provide an effective relief and rehabilitation at the federal, provincial and district levels. A National Disaster Risk Management Framework was developed with government stakeholders and UNDP. It focuses on most vulnerable groups, such as children and seeks to protect them from criminal elements in the immediate aftermath of conflict or disaster. The KPCPWA only mentions children and armed conflict under Section 4 (m) in that it seeks to develop a rapid response child protection scheme capability for provincial level emergencies, including conflict and natural disasters. Deviations from CRC: Legislation does not explicitly reference the CRC or other Conventions. There is no legislation on refugees and IDPs. Pakistan has signed but not ratified the Optional Protocol to CRC which prohibits those less than 18 years of age from taking part in hostilities. Problems: The existing policy does not treat children differently on most counts, but registration of women and Ahmedis for relief with NADRA continues to be a problem. Ahmedis must declare themselves as non-Muslims to be registered and they are reluctant to do so; thus, they may be

31

deprived of assistance. There is no legislation that provides for asylum or refugee status. Resolution 1882 mechanism is not included in the law, reintegration of children affected by armed conflict not addressed in policy, no prescribed services to children affected by armed conflict. Policy Priorities: 1. Define and develop a framework/legislation that deals with the protection of IDPs (with a special emphasis on children and children with disabilities). 2. A set of guidelines should be developed providing clear definitions of roles and responsibilities of all stakeholders, including government departments, military, donors, UN agencies, humanitarian organizations, and civil defense. 3. Disaster Management Authorities should develop public awareness programs of early warning and disaster education with the help of electronic and print media. 4. Specific laws on armed conflict related to children are needed.

4.3. Recommendations The policy priorities listed above serve as recommendations for further action in areas described. An overarching recommendation is that the Rules of Business of the KPCPWA be approved as soon as possible, to allow for the law to be effectively implemented. In addition to making the reforms suggested as above, there needs to be parliamentary oversight in the form of a Standing Committee that monitors the functioning of the CPWC. The CPWC should submit an annual report to the Standing Committee, which should be made public so that accountability from civil society is also possible.

SECTION 5. FORMAL SYSTEMS AND CAPACITIES 5.1. Overall Child Protection System in Khyber Pakhtunkhwa The child protection system in KP is more developed than the child protection system in any other province of Pakistan. One of the reasons for this is the KPCPWA that was passed in 2010, establishing a CPWC in the province which acts as a focal child protection body. This body is meant to play a coordinating role between different departments relevant to child protection and provides certain services at a district level and has established child protection committees at a union council level. However, many other formal and informal actors have a role in the child protection system apart from the CPWC. The CPWC is linked to some of these actors and some work independently. The organogram below maps the child protection system in KP depicting the national, provincial, district and union council level players in this system and their links with each other. Section 5 will describe some of the key players in this system. Figure 2.Overall child protection system in Khyber Pakhtunkhwa

•

Bilateral and Multilateral Agencies

International organizations and agencies play a significant role in enhancing and improving systems, raising awareness, and providing service delivery for child protection in KP. They include UNICEF, Save

33

the Children and Plan Pakistan. At the moment, here is no established coordination among them through a formal mechanism except for the Child Protection sub-Cluster which is activated during emergencies. Within the UN system child protection is referred to in the UN Development Assistance Framework with Pakistan. UNICEF works in close collaboration with the CPWC and is providing it with financial and human resource support such that it is actually functioning as a project of UNICEF. In the future, however, it is hoped that the provincial government will be able to directly fund all CPUs functioning in the province. •

Steering Committee on Child Protection

This Steering Committee was established in November 2011 and its purpose is to provide an oversight and coordination role regarding all child protection interventions in KP and FATA. This includes establishing relevant thematic working groups, conducting bi-annual reviews of child protection initiatives in the province and ensuring that child rights are safeguarded in the province. It was also mandated to coordinate efforts on filling the CPM&A toolkit. It is chaired by the Additional Chief Secretary and its members are: Secretaries of Finance, Law, Planning and Development, Elementary and Secondary Education, Labor, Health, Local Government and Rural Development and Social Welfare and Women Development Departments of KP, the Secretaries of the Administration and Coordination, Social Welfare and Finance Departments of FATA and a UNICEF representative. • Working Group on Birth Registration This Working Group was established in July, 2012 by the Steering Committee on Child Protection in order to promote birth registration. It’s overseen by the Local Government and Rural Development Department of KP and its members include the Departments of Planning and Development, Probation, Social Welfare, Education and Health and representatives from NADRA and UNICEF. This group is meant to increase coordination between different actors key to increasing birth registration in the province and developing a strategy that improves the status of birth registration in the province. •

Accountability to Individuals

There are two parallel Ombudsman offices in KP; the Federal Ombudsmen Office and Provincial Ombudsman Office. The Federal Ombudsmen Child Complaint Cell takes complaints that have a federal nature and are governed by national level legislation, e.g. NADRA, FIA, and juvenile justice issues. The Federal Ombudsman may open an investigation based on a complaint if deemed necessary. Complaints related to provincial departments go to the Provincial Ombudsman. There is a Children and Women’s Cell in both the Ombudsmen Offices where children may file complaints. The two Offices are not directly linked but can refer cases to one another. Both Offices are under-staffed and under-utilized. The NGOS Society for the Protection of the Rights of the Child (SPARC) and the Human Rights Commission of Pakistan (HRCP) also monitor child rights in the province. SPARC puts out an annual report titled ‘The State of Pakistan’s Children’ and also undertakes advocacy issues highlighting certain

cases. It has set up child protection committees in almost all districts which meet on a monthly basis. Members include international NGOs, local NGOs, lawyers, media representatives and youth representatives. •

Social Protection and Child Protection

The Benazir Income Support Programme (BISP) is a federal cash transfer program targeted at women from the poorest households across the country. It plans to include child protection in its conditional cash transfer program for education and health that is currently being planned. The Bacha Khan Scheme in KP Federal-level Zakat and Bait-ul-Mal programs provide limited cash support to women. All of these programmes run alongside provincial systems and structures, with minimal interaction between the two. Better coordination among programmes would result in better outcomes on children from these schemes. •

Human Resources and Social Work Training

There are no fixed professional standards for social workers. Some civil society organizations conduct training based on specific issues, but they have limited outreach. The University of Peshawar offers BS, MA, PhD and M.Phil degrees in Social Work. It provides BS degrees to 50 students per year. Malakand University and Dera Ismail Khan University also offer degrees. Students conduct fieldwork, which enhances their skills, however they are limited to taking classes within their own department only. The Peshawar University Department of Social Work has conducted research studies in collaboration with a range of United Nations Agencies. It also has links with social work departments of some international universities. The curriculum of each University offering these degrees needs to be updated. The Pakistan Academy for Rural Development offers short courses on social issues, in which university students also participate. The Child Protection Units hire graduates of these degree programmes, as do NGOs. Several national and international NGOs (Save the Children; SPO, SRSP, HRDN, SPARC, Hayat Foundation, PVDP) offer a range of trainings for their own staff and other organizations. However, these trainings are generally donor funded and for specific projects. They are not institutionalized and endorsed by any relevant public authorities. •

Adoption/Kafalah/Guardianship

There is no system of adoption or foster care in Pakistan. Children without adequate care can be placed in orphanages or residential institutions. Formal granting of guardianship goes through the family court and serves as the best alternative to domestic adoption. No specific standards for granting of guardianship have been determined. For inter-country adoption, local family court authorizes guardianship status, after which the country where the child is to be taken takes over the adoption process. There is no foster care system for children. No formal kinship care system exists in Pakistan but informal kinship care is quite common. Relatives often take responsibility of children whose parents are dead or cannot care for children for other reasons. However, no state support is

35

given to families that informally care for these children and the status or well-being of these children is not monitored by a public authority. Residential care in public and private sector institutions does exist but accurate figures were not available from SW&WDD as to the number of institutions and children served. The federal government’s Bait- ul-Mal runs a project called Sweet Homes that provides children with residence and education if they have no father. There is 6 Sweet Homes in 6 districts of KP (each having a capacity of 100 children), and while children are allowed to stay in touch with their families they are not always able to do so due to the distance of the home from their place of origin. Some institutions provide vocational training skills to their residents. The Edhi orphanage tries to arrange the marriage of the girls in their care. In all types of residential care, there no system in place to ensure quality of services and the best interests of the child are being met. •

HIV/AIDS and Child Protection

AIDS is not a high priority in Pakistan as the number of people affected is relatively low. Pakistan has a National Strategic Framework (NSF) II (2007-2012) to prevent a generalized epidemic and eliminate stigma and discrimination against the HIV-infected and affected population. The NSF-II has registered children in HIV Treatment and Care Centers across the province, developed pediatric ART adherence tools, trained pediatricians, established drop-in centres for children. There is a Provincial HIV/AIDS Control Program in KP whose goal is to maintain prevalence at less than 1% of vulnerable population. HIV positive mothers have access to mother-to-child prevention methods free of cost only if the doctor refers them to the clinic in HMC in Peshawar. However, most often doctors are not familiar with the existence of such measures and may not refer the mother. The children born to affected mothers have access to early diagnosis only if the mother sees treatment at HIV clinics in Karachi.

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Emergency Preparedness and Response

The KP government established a Provincial Disaster Management Commission and a Provincial Disaster Management Authority (PDMA) in Oct 2008 to oversee relief, rehabilitation and emergency preparedness in the province. The Provincial Disaster Management Authority (PDMA), working under the National Disaster Risk Management Framework, takes care of child protection issues during emergencies. Establishment of local institutions, capacity building, awareness and small structural mitigation schemes are the core components of strategy. PDMA is the lead agency responsible for implementing this strategy. While the approach seems well-defined, it is weak in implementation, particularly in the lack of a district level presence of PDMA. In an effort to overcome outreach issues, during emergencies PDMA mandated NGOs to join in issuebased Clusters, joining together government, donor and civil society organizations, at a district level to share information and improve service delivery. The PDMA and UNICEF have set up a Child Protection sub-cluster which by the end of 2012 had successfully delivered protective services to 49, 310 children in KP and FATA. This cluster includes several CSOs who are engaged in emergency related work and convenes regular meetings to facilitate coordination. There is a Gender and Child Cell at the national

level at the NDMA which is works to mainstream gender and child rights issues in emergency responses and preparedness. In 2012, all provinces with the exception of KP and Gilgit-Baltistan notified Gender and Child Cells at the provincial level PDMAs. Other than the PDMA, the CPWC also has a mandate to raise awareness on child protection issues in an emergency context, as does the SW&WDD as a whole. However, there is much room for improvement in the notified linkages between the CPWC, the PDMA and Sub-Cluster. Media and civil society organizations may do so as well, however the major focus during emergencies is to provide relief services.

5.2. Primary Department: Social Welfare and Women Development Department The organogram in Figure 3 maps out the structure of the SW&WD department. It highlights managerial and administrative staff, specifically those that are relevant to child protection. Figure 3. Social Welfare and Women Development Department

The Social Welfare Department and Women Development Department were merged as one in 2001. The SW&WDD is concerned with the well being and up lift of the community at large and vulnerable

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groups in particular. The focus of programmes is on the neglected, disadvantaged, under privileged and exploited section of society, i.e. children, women (particularly the destitute), aged, disabled, beggars, drug addicts etc. The SW&WDD has its outreach in all districts with established offices. It provides cash and in kind support, services particularly for women and children in need and also coordinates with CSOs to uplift disadvantaged communities. However, it faces issues of capacity, including limitation of financial resources, inadequacy of staff etc. At the provincial level there is a Secretariat (administrative) unit and a Directorate (programmatic) unit. Under the Directorate, there are several facilities for child protection including shelters for abused women and their children (Dar-ul-Amans); welfare homes for destitute children; drug rehabilitation centers; centers for mentally & physically handicapped children and; schools for deaf, dumb and blind children. Further details of SW&WDD activities and services are given in Box 3. The SW&WDD has district officers in each district of KP who report to the Directorate. The various institutions and services being provided in the districts are supervised by the Social Welfare District Officers. The SW&WDD registers non-profit / civil society organizations operating in the province. According to SW&WDD website, currently 2046 NGOs are registered under the Voluntary Social Welfare Ordinance 1961. The registered NGOs are functioning in various sectors such as social welfare, gender, health, education, advocacy and many more. However, there is no system to monitor these registered NGOs and registration is sometimes undertaken in contravention of the by-laws. Box 3. Social Welfare and Women Development Department activities and projects

Activity or Project Welfare homes for destitute children

Drug rehabilitation centers

Dar-ul-Kafala

Centers for mentally and physically handicapped children

Description

Geographical Coverage

These are institutional cum residential care facilities to destitute and homeless children. Formal education, vocational and skill training to are also provided to the children as a safeguard against child labor, drug addiction, beggary, juvenile delinquency etc. The SW&WDD, along with the Dost Foundation, has established a major drug rehabilitation center in Peshawar and 6 smaller ones in other districts of KP. The center provides services to drug addicts (including children), such as psychosocial support, treatment, training and rehabilitation. Rehabilitation center for begging children in Peshawar that serves to extricate children from begging. It provides vocational training and rehabilitative services.

5 districts of KP: Peshawar, Kohat, Abbottabad, Bannu and D.I.Khan

Education, physiotherapy, counseling, treatment and support provided to children having such disabilities

Bannu, Chitral, Mansehra, Peshawer and Haripur

Peshawar. Swat, Lower Dir Lower, Kohat, D.I.Khan, Haripur and Nowshera

Peshawar

Schools for deaf, dumb and blind children

Industrial Training Centers for women

Dar-ul-Amans

The facilities include boarding and lodging; 6 schools for blind; 9 schools for deaf and medical assessment and referral facilities; free dumb learning materials and aids; individualized education; vocational training and music; sports and recreation; stipend; and free uniform. These centers are supervised by the SW&WDD 93 centers in various districts and impart vocational training and skills enabling women supplement family income. At least 20-25 women are trained at each center each year. 4 residential shelters (Swat, Mardan, Abbotabad and Dera Ismail Khan) and one crisis center in Peshawar.

Provincial Council for the Rehabilitation of Disabled Persons

These are residential shelters for destitute women and their children and provide vocational training and legal assistance as well. A crisis center in Peshawar has been established that provides rehabilitative services to such women. Provides financial aid to institutions working for disabled people as well as giving financial and other assistance directly to disabled people.

Artificial Limbs Workshop

Rehabilitates disabled people by providing them with various mobility aids.

Provincial

Exists at provincial level. Is chaired by the Secretary of SW&WD department but has members from other government departments and CSOs.

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Child Protection and Welfare Commission

The Government of KP took a positive step towards protecting vulnerable children by promulgating the KPCPWA 2010 on 21 September, 2010. As part of this law, a CPWC was set up. The members of this Commission include Minister for Social Welfare (Chair), Secretary Social Welfare (Vice Chair), Secretaries of the Departments of Finance, Home, Law, Local Government, Education, Child Protection Officer, two MPAs, a member of the KP Bar Council, one religious scholar and two civil society representatives (currently from the Dost Foundation and Pakistan Village Development Programme). Though this Commission is chaired by the Minister for SW&WDD it is an independent body established primarily for child protection in the province. However, there is an overlap in the mandate of the CPWC and the SW&WDD. CPWC’s mandate is to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk in the province. It is meant to hold quarterly meetings, although this practice has yet to be institutionalized. It is a specific body set up for child protection issues and has been able to represent these issues at high-level government meetings, been active in policy reviews, and has developed and integrated a system of child protection from central to district levels in KP. However, funding and resources are extremely limited and rules of business are still pending. The CPWC also has district level offices called Child Protection Units (CPUs). These are generally housed in existing government buildings or at the Social Welfare district offices. The CPU is headed by a district Child Protection Officer, who reports to the District Social Welfare Officer at the district level

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and to the CPWC Assistant Chief Operations, Administration and Finance at the provincial level. At the moment UNICEF supports 7 CPUs under the CPWC while one CPU (in Peshawar) is run on the government budget allocation to the CPWC. Each CPU consists of a Child Protection Officer, 5 Social Workers and 1 Psychologists. Children in need of protection are identified through various means, including referral, through media reports, over the telephone, or by field workers. Legal aid is provided through referral partners, shelter provided through CPWC and Police Child Protection Center (PCPC); also with support of referral partners. A total of 4299 children have been served by the CPUs in the last one year (2010-2011). The CPWC provides individual and family/group counseling to children and families, through their district CPUs. Children in need of temporary shelter can stay in the SW&WDD welfare homes. At a local level, Child Protection Committees have been set up under the CPUs in these 8 districts. Currently, there are a total of 314 such committees (156 female and 158 male). These Committees are meant to develop consultative structures at the community level that can support child protection initiatives introduced in the area. •

Coordination

While there is a link between the Secretariat of the SW&WDD there is no direct link between the Directorate of the SW&WDD and the CPWC. The Social Welfare District Officers work with the Child Protection Units at a district level but the nature of the coordination with the CPWC can be improved. Meetings of the body are conducted on a needs basis and should be regularized. Coordination in terms of systematic data collection and referral also needs improvement •

Gaps in Services

The CPUs are only active in 8 districts. Consultants are hired for specific projects on a needs basis, for example to help to develop Standard Operating Procedures for alternative care facilities, or for the development of a Child Protection Management Information Service (CPMIS). It also plans to establish a residential institution for vulnerable children in Swabi that can serve those in need from across the province. CPWC plans to initiate a Certificate Court on Child Protection, and to implement standards operating procedures for its services. It also plans to establish a mechanism to certify institutions involved in child protection and monitor their activities. •

Resources

There is an overlap in the responsibilities of SW&WDD and CPWC, which, if resolved, would result in a saving of resources for the provincial government. There are funding and resource gaps in the preventive services that SW&WDD provides that restrict its outreach and capacity. CPWC needs additional funding in order to establish 17 more CPUs so as to cover the province as a whole. Since currently it is primarily funded by UNICEF, expanded staffing is subject to ownership of CPWC by the provincial government.

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Emergency Contexts

The CPWC as part of its mandate states it will build a rapid-response child protection intervention capability for provincial level emergencies such as natural disasters or the outbreak of armed conflict; and develop a system to partner with private organizations for management of all child protection institutions, which may include arranging “kafalat” of a child by private citizens9. The department has not yet developed any strategy in response to emergency; however, the department has a transitional center which may be used in case any emergency occurs. A coordination mechanism for CPWC in emergencies has not yet been established.

5.3. Secondary Department: Industries, Commerce and Labor Department The secondary department relevant to child protection in the province is the Industries, Labor and Commerce Department. The Directorate of Labor is an attached unit of this Department and will be the focus of this section as this Directorate is directly relevant to child protection. The Directorate is the custodian of the guaranteed rights of the workers. It also is concerned with health and treatment of laborers and extends welfare facilities to them and their families. It enforces existing labor laws, including those regarding child labor, and caters to the health and education facilities of workers and their families. General labor inspectors are entrusted with the responsibility to check for child labor along with a long list of other inspections under the general labor laws. The Directorate of Labor has district officers that perform their functions under the overall supervision of the set up at the provincial level. At the district level there are field workers called Area Inspectors. There is no activity of the Directorate at the union council level. The department is represented in the CPWC by the Secretary of Labor. The Directorate has close linkages with the Workers Welfare Board, which provides education to children of workers (who would otherwise likely get engaged in child labor) and scholarships to children of workers to pursue higher/professional education. The Directorate of Labor participates in International Labor Organization (ILO) (IPEC) activities, trainings, seminars etc. It is in touch with INGOs and NGOs working in the field as well. Once again, the CPWC is a platform for coordination of various government departments as well as NGOs. Worker’s Welfare Board: The Directorate has linkages with the Workers Welfare Board, an independent federal institution which works for the rights of registered formal workers. The Workers Welfare Board has established free educational and technical / vocational training institutions for the children of workers and provided capacity building for thousands of children. It awards scholarships to children of workers pursuing their studies in other institutions. It provides health and medical facilities to workers and their families. The Board has wide coverage, especially in areas where industries exist, such as Peshawar, Mardan, Haripur, and Swabi. However, it is limited to working with formal, 9

http://kpcpwc.gov.pk/index.php/about-us/our-strategy

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registered workers only. The Employees Social Security Institution provides health benefits to the registered formal workers. Out of a working class of 3,400,000 in KP, only 55,000 are registered. •

Coordination

The Labor Department and Directorate of Labor’s existing coordination with government bodies and outside organizations is weak and needs to be strengthened. •

Capacity Building

There is no full time and dedicated inspection staff to implement the laws on child labor. •

Service Provision

The Directorate trains different stakeholders on various issues including child labor. The Directorate keeps close liaison with organizations catering for non-formal education for working children. The Department has prosecuted, under the Employment of Children Act, 1991, more than 200 defaulters during the last two years (please note there is no data available to back this claim made by a representative from Directorate Labor). •

Emergency Contexts

The provision of services has been aggravated by the law and order problems in the province as well as the adjoining tribal belt. It is further complicated by the presence of Afghan refugees in the province. Further, existing lack of resources and capacity impedes service provision and limits it to a few areas only.

5.4. Recommendations •

Laws, Policies, Standards and Regulations o System such as foster care should be developed for children without adequate family or alternative care (as recommended by CPWC). o Guardianship and Wards Act should be reviewed to streamline process of granting guardianship to individuals. o A system to track children who are under Kafalah (Guardianship) should be established. o A law or policy is needed to formally link the Directorate of Labor with the Workers Welfare Board, with definite roles for each regarding child labor. o The Directorate of Labor should be able to inspect factories without giving prior notice when it is checking for child labor.

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•

•

•

•

Cooperation, Coordination and Collaboration o Departments of Health, Zakat, Hajj, Auqaf and Religious Affairsand the federal bodies BISP, Bait-ul-Mal, FIA or NADRA should have representation in the CPWC as well. o Directorate of Labor needs to strengthen its linkages with the CPWC and other government bodies, civil society organizations, and international agencies. o The CPWC should set up thematic issue working groups to tackle specific child protection issues (e.g. thematic Working Groups on child labor, honor killings, children with disabilities, etc.). The Working Groups should include media, researchers, and others in the private sector. Capacity Building o A comprehensive CPMIS needs to be developed as well to link data from district to provincial level. o Capacity of CPUs needs to be developed to collect and maintain comprehensive data on orphanages, children under guardianship and kinship and include all actors in the child protection system, e.g. police, public training academies, lawyers’ training, social workers’ training, and emergency response training. o Directorate of Labor lacks the manpower to inspect all factories in the province, and lacks a mandate to assess the informal sector as well. Service and Service Delivery Mechanisms o CPUs are currently established in 8 districts of KP. These need to be expanded to all remaining districts as well. o Children's Complaint Cell (within Ombudsmen Office) must be put to optimal use by government and communities. A free helpline should be set up for children at risk (perhaps at CPU offices). o Directorate of Labor needs to expand its services throughout the province and down to the union council level. Communication, Education and Mobilization for Change o Curriculum of Peshawar University and other universities offering social work degree programmes should be reviewed and revised to incorporate modules on child protection. Accountability Mechanisms o A Standing Committee should be set up in the Provincial Assembly to oversee the functioning of the CPWC. o The role of the Ombudsmen should be strengthened. o All government bodies involved in child protection activities must be held to some standards of accountability based on performance.

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SECTION 6.THE CHILDREN AND JUSTICE SYSTEM OF KHYBER PAKHTUNKHWA 6.1. Mapping and Assessment of the Children and Justice System in Khyber Pakhtunkhwa The organogram in Figure 4 depicts all the actors and structures that play a role when children come in conflict with the law or are victims of a crime. Both formal and informal structures and actors at a national, provincial, district and union council level are included in the organogram as are the linkages between some of these actors. Figure 4. Children and justice system in Khyber Pakhtunkhwa

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The Judiciary

Mandate: The judiciary plays the primary justice role in the province. It is mandate to act independently from the executive to protect the Constitution and uphold the law. The Peshawar High Court exercises original jurisdiction in the enforcement of Fundamental Rights and appellate jurisdiction in judgments/orders of the subordinate courts in civil and criminal matters. The High Court can review all administrative acts or orders regarding children. Any legislation, or act or order against any constitutional provision or law in force may be reviewed and set aside by the High

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Court. The criminal courts comprise of Session Judge, Additional Session Judge and Judicial Magistrate Class I, II & III, and appeals against their decisions go to the Sessions Judge of High Court. Peshawar High Court has 19 total posts, out of which 8 are vacant. There are no judges specifically to hear children’s cases. The Supreme Court is the court of ultimate appeal. The JJSO 2000 spells out the mandate of juvenile courts and procedure for cases of child offenders. Under JJSO juvenile courts alone are competent to conduct proceedings against children who come into conflict with the law. Unfortunately judges at all levels are not very well-versed with the relevant laws and have on occasion passed judgments which are contradictory to the JJSO, such as death sentences and solitary confinement of children. (SPARC: 59) A National Judicial Policy was formulated in 2009 by the National Judicial Policy Making Committee which comprised of the Chief Justice of Pakistan, Chief Justice, Federal Shariat Court, Chief Justices of four Provincial High Courts and the Secretary, Law and Justice Commission. The NJP urged the use of probation, especially for underage offenders and emphasized on the early disposal of juvenile cases. There are no children’s courts. District Sessions Judges have been designated to hear children’s cases as per the JJSO regulations. If a child is convicted along with adults a separate trial of the child is to be carried out by a Sessions judge. According to KPCPWA, a Child Protection Court is to be established. Under the Police Order 2002, District Criminal Justice Coordination Committees are to be set up in each district. These committees are chaired by the District and Session Judge and include police, parole and probation officers, social welfare district officers, child protection officers (heading CPUs) and representatives from the District Bar Associations and CSOs. While these committees are functioning in some districts there is a debate over their role in the current system since the Police Order 2002 has lapsed. There is much confusion over whether this law is still applicable or not. Child witnesses: There is no witness protection program. The judiciary takes its own decision on how to deal with child victims, e.g. where to house them during or after a trial. Juvenile courts are bound to take all steps in relation to children in need of care and protection but no judges or courts have been notified to deal with juvenile cases as yet. The courts directly coordinate with police and prison staff from the Home Department to ensure that the decisions they have made are implemented. •

Home and Tribal Affairs Department

Mandate: The mandate of the Home and Tribal Affairs Department of KP is maintaining law and order in the province. This includes policing, law enforcement, administration of justice through courts, managing prisons and prisoners, civil defence, and matters related to Afghan refugees. The Home Department does not have a specific mandate with respect to children in conflict with the law, however through the CPWC, the Home Department has the opportunity to coordinate with Departments of Social Welfare, Labor, Education, Law and Finance on child protection issues. It also

works with the Commissionerate for Afghan Refugees (CAR) and UNHCR to coordinate work regarding the repatriation of Afghan refugees, which includes children. There seems to be a lack of understanding among those involved in the judicial process about the needs of children in conflict with law, hence they usually are not treated in accordance with the provisions of the JJSO. The mandate of the department does not include issues of in-country trafficking, children in need of protection, child witnesses or child victims. The mandate of the department does not deal with issues of rehabilitation of children after they have passed through the justice process. Systematic coordination of CPW Commission and Home Department is still being established. The Directorate of Human Rights played role in finalizing of the draft of the KP Borstal Institutions Act 2012 and the KPCPWA. The Home Department has several attached departments that also function down to the district level. These are Police, Prisons, Reclamation and Probation, Public Safety and Police Complaints Commission, Civil Defence and Prosecution Department. Two and a half years ago, a Child Protection Center was established in Peshawar District and is run by the Police Department. It caters only to boys whereas girls are to be sent to private shelters. The center has the capacity to host 15 boys. Twelve policemen along with a lawyer, a psychologist and a female teacher have been deputed to address their needs. The mandate of the Center is counseling, rehabilitation and provision of residence to children in need and to search for lost children. The Public Safety and Police Complaints Commission makes recommendations regarding reforms, and evaluates and administers the District Complaint Commissions. Box 4. Organizations and effectiveness in implementing child protection mandate Formal Organization Courts, including appellate mechanisms

Effectiveness in Implementing Child Protection Mandate There are no specific children’s courts, even though it is a requirement under the law. Courts are ineffective in ensuring JJSO is implemented, most judges are unaware of its content. The subordinate judiciary faces severe shortages of judicial staff, supporting staff and equipment. There is a significant backlog of cases as strength of judiciary has not kept up with rise in litigation.

Prosecutor's offices

Their role is to scrutinize and prosecute cases submitted by police; to supervise investigation and issue necessary guidelines to the investigation officers. There are 6 Public Prosecutor posts in the Prosecution Department. All 6 are currently vacant.

Public defenders

There are no public defenders in KP.

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Police agencies

Remand homes / Borstal institutions

Police are usually unaware of the JJSO and it's stipulations. However, the situation is improving after the establishment of the Police Child Protection Center set up in 2009. One PCPC has been set up in Peshawar. It has a total capacity of 15 children and staff includes 12 police officers, a psychologist, a lawyer and a teacher. Children at risk like missing children, trafficked children, abused children etc are kept here. By law children are not to be kept under lock and key but this is not followed by the PCPC. Children at risk are kept here under lock and key. Directorate of Human Rights is overseeing this PCPU in collaboration with the Police. Efforts by Save the Children and the KP Police led to separate Standing Orders being issued for record keeping of children and large scale trainings were held (especially in 5 districts) to sensitize the police to their children and justice mandate. Masalihati Committees have also been established at a Union Council level at police stations. There are no functional remand homes / Borstal institutes in KP. 3 are currently under development.

Incarceration (children mixed with adults)

The only infrastructure for children is that of judicial lock-ups, separate barracks for juveniles in the major prisons, and the PCPC shelter facilities. Children in jails are provided with education but no counseling services. According to the Home Department website, there are 4 judicial lockups in KP, in Nowshera, Swabi, Tank and Malakand districts. However, there is not always complete segregation as children may be detained at adult jails. Children and adults may also be mixed in prisons, especially female juveniles.

Incarceration for children only

There are none for children only.

Probation system

Providing counseling and evaluating the child during the probation period, overseeing release on probation. There are a total of 23 Probation Officers, 6 of them women. 31 boys and 33 girls accessed probation in 2011. Out of 800 plus convicted children, 67 were on probation in 2011. According to the SPARC report, the number of children on probation is decreasing each year (SPARC: 69). Bar Associations issue a list of councils who provide free legal aid.

Bar associations and legal aid societies Military

Afghan Refugees

Children are detained at various military camps in KP. These children are arrested under terrorism charges but according to SPARC it is not known whether a trial is conducted or not. Due process of law is not followed and they are detained without the knowledge of judicial authorities. (SPARC: 77) According to the SPARC report at least 300 children were being detained at various military camps in KP in 2010. The Home Department works with Commissionerate for Afghan Refugees and UNHCR to assist in repatriation and related functions.

Capacities: There is no Home Department staff specifically deputed to handle children in conflict with the law. However, from among existing staff, there are 12 police posted to the PCPC. While their job descriptions are determined under Section 30 of the CPPC, there is no child specific code of conduct in place across the board for the Home Department personnel. Some training on children in the justice system is held as part of the initial police training, and NGOs such as SPARC and Save the Children have conducted training of police personnel in 238 police stations of KP thus far.

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Social Welfare Department and Child Protection and Welfare Commission

The SW&WDD has no specific mandate with regard to children and justice. However, since the CPWC was set up in 2010, SW&WDD refers all child protection related cases to the CPWC, which in turn caters to the protection needs (such as referral, shelter, etc) of all children at risk. This includes children in conflict with law. The CPWC is also mandated to set up a Child Protection Court and ensure that all national and international standards are met during the trial and detention of children. The CPWC thus has a role to play in identification of a child at risk of becoming a victim, the provision of shelter and protection of victims, and provision of legal aid for victim and referral services. The Child Protection Units at the district level establish linkages and referrals for children in conflict with the law. • Children and Informal Justice Mechanisms The tribal justice system in KP is known as jirga. It conducts mediation, arbitration and reconciliation, and is a traditional form of Alternative Dispute Resolution. The system can be used within an extended family, in village community, and in the larger tribe. The Jirga protects collective rights only. The council is all male, and women and children do not appear before it. The kinds of disputes it engages with are agriculture and resource, community disputes, theft, honor killing, injury and murder, and kidnapping. Jirga does not focus on penalties and punishments, rather it emphasizes compensation instead, and standards may vary in different parts of the province. It uses swara, the practice of a girl given in compensation by one party in a dispute, as a means of resolving disputes. This informal justice system emphasizes compensation between parties to the dispute rather than the emphasis on punishment by the formal criminal justice system. In both cases a girl under age 18 may be given in compensation, or killed for so-called honor (Saleem et al pp.16,22-23, 28-30, 32). Maulanas, or religious leaders, have traditionally had a marginal role in dispensing justice as compared to local notables (maliks) and tribal leaders (who form jirgas) [Meboob 2011: 7]. The harmful traditional practices that are a result of the jirga system, such as honor killings and swara (exchange of girls in marriage to settle a dispute) as well as the exclusion of women and children from participating in the justice system violate Articles 8, 10,11 of the Universal Declaration of Human Rights. They also violate CEDAW and the International Covenant of Civil and Political Rights, which Pakistan is signatory to [Amnesty International Asia and Pacific website accessed 02/02/2012]. Informal mechanisms are employed by both urban and rural populations, and children and justice issues are most often managed through the community. In addition to the systems discussed above, Political leaders mediate settlements for a wide range of disputes, including those involving women and children. These political parties have significant presence in the province. There is, however, no specific mechanism separate from such organizations that deals with children and justice issues. Children from poverty-stricken homes and also those who are deemed to be out of parental control can be sent to madrassahs where they will be fed and housed, and also schooled in Islam by religious leader.

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Children who are bonded laborers have been known to be detained in the private jails of landlords along with their families, as punishment for non-payment of family debt or for attempting to run away. NGOs such as SPARC have been involved in their rescue and rehabilitation. The practice of bonded labor persists despite the Bonded Labor System (Abolition) Act 1992. Although those involved in informal justice claim not to punish and detain women and children, it does happen. In KP child bonded laborers are known to exist in the mining industry. The Taliban movement in Malakand imposed their harsh interpretation of Islamic law, outside the traditional informal system and the formal system, while they ruled 2008-2009. They retain a hold in FATA and Provincially Administered Tribal. Taliban-style justice included forbidding girls to attend school and beheading/whipping for alleged illicit behavior, theft and other crimes. They also banned music and videos. The Taliban continue to exert their influence through spreading fear within KP and other parts of Pakistan, and regularly carrying out terrorist attacks. Boys as young as fourteen have been used as suicide bombers. Just Peace Initiatives(JPI), based in Peshawar, works with communities and tribal leaders to train them in alternative dispute resolution, restorative justice, and diversion of youth offenders. KhwendaKor, an NGO working in KP and FATA strives to empower women and children to exercise their rights. Aurat Foundation works for legislative reform to protect women and girls, and plays an active role in helping women participate in voting and politics. The UNDP has recently started a project in KP (2011-2014) in 7 districts of Malakand to strengthen the formal justice system and also to assist the informal system (jirgas) and formal system to enjoy "increased harmonization10."The SW&WDD entered into agreements with other stakeholders and implementing NGO partners such as JPI, Pakistan Society of Criminology (PSC), and Dost Welfare Foundation to execute the Diversion programme in the districts of Mardan and Peshawar. These implementing partners conducted a gap analysis study of diversion and the rehabilitation of juveniles within the province. JPI, conducted diversion training sessions for 84 participants from priority districts (Peshawar and Mardan). In this regard Family Jirga conferencing was established in the two districts, while offices of Masalihati committee were established inside police stations. Under the project supported arrangement, 107 juvenile cases were diverted. • Justice Process Arrest: Children are commonly handcuffed in court and in police lock-ups, which is in violation of JJSO rules. They are also not kept separately from adults. Children are often illegally detained at lockups for long periods of time and then transferred to jails. Legal representation: According JJSO (section 3), legal assistance at the expense of the state is to be provided to child offenders and child victims. Legal representation is arranged by families, the government or civil society organizations. A child or someone on his/her behalf may file a complaint with the courts. Civil society organizations make regular visits to detention centres to see if children are in need of legal aid. However, children in need of care and protection, witnesses and victims do not have easy access to legal aid. There is no protection system for child witnesses or child victims. 10

http://undp.org.pk/strengthening-rule-of-law-in-malakand.html

Pre-Trial Detention: Most children are sent to jail during this period. The Court may grant the police a physical remand of a maximum of 14 days during which the police is required to complete its investigation. The child is often detained in police-lockup for the duration of the investigation. It is important to note that the Juvenile Justice System Ordinance 2000 does not allow children under the age of 15 to be kept in police custody. Court Process: There are no children’s courts, although it is required under the KPCPWA and the JJSO calls for juvenile courts. There are no notified judges available for children either. The Peshawar High Court can review all administrative acts/orders regarding children. Any legislation, regulation or act or order against any constitutional provision, law in force may be reviewed and set aside by the High Court under Article 199 of the Constitution. The High Court may also review and set aside unreasonable orders passed by juvenile courts e.g. in cases where bails are not granted, or probation is not ordered in appropriate cases. The Court may also at least, reprimand police or any other agency for their acts or omissions, or negligence and misconduct in dealing with child offenders or victims. In one case, a two-member bench of the High Court set aside the life imprisonment of two juvenile offenders (SPARC: 59). Alternatives to Incarceration: Conditional discharge (Article 4) or release on probation (Article 5) are alternatives to incarceration and are specified in the Probation of Offenders Ordinance, 1960. The JJSO 2000 states deprivation of liberty should be a last measure of resort and encourages courts to consider these alternatives, but age is not the only consideration for alternatives to incarceration. Post-Detention Including Probation: The Home Department mandate does not cover rehabilitation of children after they have passed through the justice process. • Effectiveness in Implementing Child Protection Mandate Legislation: While JJSO and KPCPWA 2010 do not specifically reference the CRC, they both reflect the principles of CRC. The Frontier Crimes Regulation (FCR) does not however, reflect the principles of the CRC. Ostensibly it is not operative in KP but only in FATA. However, children are being detained under the FCR in KP Prisons (mostly under the collective responsibility clause of the FCR) (SPARC: 84). Corporal Punishment: The KPCPWA abolishes corporal punishment. It states in Section 33 that corporal punishment stands abolished in all its kinds and manifestations and its practice in any form is prohibited as provided under Section 89 of the Pakistan Penal Code, 1860 (Act No. XLV of 1860). The reference to PPC implies that if corporal punishment is practiced in good faith or for the benefit of the child, it can be practiced. Diversion Mechanisms: There are no diversion mechanisms in place in Pakistan. However, Section 31 of the KP-CPWA states that “a child above the age of 12 and below the age of 15, when convicted may be asked to perform a community service through probation office."These alternatives are not utilized often as data reflects a small number of children accessing probation.

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Training to Handle Child Cases: There is a lack of awareness and sensitization and children continue to be exposed to mishandling at every stage in the criminal justice process. However, training has been given by SPARC to 22 police officers from 22 districts and the situation seems to be improving. Court System Databases: The court system does not have adequate administrative databases to track the status of each child as it goes through the justice system. Child Immigration and Deportation: In cases where a child’s migration outside of Pakistan is under dispute, courts resolve it based on the principle of welfare of the child. Other factors to be considered are the same as those provided in Section 17 of the Guardians and Wards Act, 1890. Best Interests Determinations: Both civil and religious laws are used in custody cases in Pakistan. Under Muslim Personal Law father is the natural guardian of a child and the mother is allowed physical or actual custody of a male child up to the age of seven years and of a female child until puberty (15/16). Muslim family laws are not applicable to non-Pakistanis (whether Muslim or non-Muslims) or non-Muslim Pakistanis. However, a guardian judge has the power to award legal guardianship to either parent or even a third person “in the best interest of the child”. Under the provisions of the Guardians and Wards Act, 1890, which focuses on the welfare of the child, the guardian court is empowered to override religious laws where, in the view of the court, the child’s welfare is at stake. Foreign courts orders are, in principle, recognizable in Pakistan. The CRC Concluding Observations report notes that state party’s legislation uses age limits, instead of the best interests of the child, as criteria in determining custody in case of divorce (Concluding Observations of CRC Committee 1996).


Laws, Policies, Standards and Regulations o JJSO rules and regulations must be strictly enforced throughout the judicial process (e.g. hand cuffs should never be used on children, they should not be mixed with adults in the jails or courts, special courts for children should be established, children should never be kept in solitary confinement, etc. o Corporal Punishment should be prohibited without reference to the PPC, as that is in contradiction with the KPCPWA. o JJSO 2000 should explicitly state in section 12 that life imprisonment cannot be applied to children. o JJSO should be amended to include children who are trafficked and children in need of protection under its mandate. o Informal justice systems such as jirga system should be outlawed and strictly enforced. o Mandate of Home Department must extend to include prevention of in-country trafficking and protection of child witnesses and child victims.

•

•

•

•

Cooperation, Coordination and Collaboration o Coordination between Home Department and the CPWC needs to be systemized. o CPWC may develop a role of liaising with the military to assist those children whom they have detained. Capacity Building o The capacity of Probation Department should be strengthened so that deprivation of liberty can be used as a last measure for children in conflict with the law (as stipulated in the JJSO). o Police, lawyers and judges need to be sensitized and trained on child rights issues and made aware of legal requirements for handling and processing cases of children in conflict with the law (as per JJSO requirements). o The Home Department should be mandated to assist juveniles in the rehabilitation phase of their encounter with the justice process. o KP has no public prosecutors and no public defenders, these must be put in place at the earliest. Service and Service Delivery Mechanisms o Child witness and child protection programmes need to be established. o Juvenile courts must be established at the earliest. o Borstal Institutions and Remand Homes must be established.. o Legal aid services for children in conflict with the law must be automatically made available for those children who need them. o Counseling services for children in detention are needed. o Legal aid services must be expanded, including those offered by civil society.. o More alternatives to incarceration must be used, e.g. probation, diversion mechanisms, community service for juvenile offenders. Accountability Mechanisms o Data relevant to children in the justice system needs to be made available to civil society organizations so they can provide assistance and referrals where needed. o Data collection within the justice system pertaining to children must be monitored by the CPWC.

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SECTION 7. CONTINUUM OF CARE, CIVIL SOCIETY AND CHILD PROTECTION SYSTEM AT A DISTRICT LEVEL This component of the mapping exercise outlines the continuum of care that exists for children in KP. It consists of an analysis of the protective environment for children in the province. The promotion of positive attitudes towards child protection and open discussion of child protection issues are part of the protective environment, together with services to assist families, communities and countries to prevent violence, exploitation, abandonment and abuse, and response to their needs. Provincial or local child protection services and systems, protective social practices, the knowledge and capacity of communities, families and children, all contribute to building the protective environment. Major CSOs and their work have been identified below, but do not reflect an exhaustive province-wide review of all such activities.

7.1. Negative Attitudes/Customs and Practices The first step to assessing the protective environment was noting the attitudes, customs and practices that have a negative impact on children and also noting if there was an open discussion of these practices. The major negative attitudes and practices identified in KP are listed below, and further details may be found in the Toolkit. Box 5. Negative attitudes and practices

Issue Corporal punishment

Child labor

Under age marriages

Description

Impact

Corporal punishment is accepted as a norm and is prevalent in schools, households, madrassas and work places. Parents do not consider this to be an issue and are seldom willing to take action against it. Participants in interviews felt that corporal punishment cannot be eliminated unless systematic changes are brought in the education system. Though the Education Department has issued notifications banning corporal punishment it is still prevalent not only in public schools, but also in private schools and religious institutions all over KP. Child labor is most prevalent in agriculture, tobacco industry, domestic labor, brick kilns, and mining. Moreover, children of Afghan refugees are also involved, in begging, garbage collection etc. Large family sizes in KP force parents to send some of their children to work. Early marriages of children, particularly among girls, is fairly common in KP. It was discussed that the highest extent of child marriages is in Malakand Division as well as in lesser developed areas. To a lower extent it has been observed in urban settlements and Hazara Division.

There are high levels of dropout from formal schools, which have been linked with corporal punishment. Open discussion is possible on this issue.

Children involved in labor cannot acquire education. Hazardous occupations negatively affect their health. There is no barrier to discussion on child labor. This contributes to dropout of girls from schools. It is also a factor contributing towards large family sizes in KP. Under age and frequent pregnancies have a negative impact on the health of both mother and child. Open discussion on this issue is

Discrimination against girls and minority children (refugees, religious minorities etc.)

All forms of discrimination are prevalent throughout KP. Girls have less access to education, food and other essentials of life. Similarly, children of Afghan refugees are severe victims of discrimination in all forms. Hindu, Christian, and Ahmedis are marginalized religious communities.

Low commitment to child education

In most areas of KP, school enrollment is low and dropout of children from formal schooling is considerably high. The problem affects half of children.

Sale and trafficking of children due to poverty

Apart from external child trafficking to Afghanistan and beyond, domestic trafficking to and from PATA/FATA and other areas is fairly common and the government has no available mechanism to deal with it. Parents are often party to this crime.

Growing drug addiction

Drug addiction is a very common phenomenon in KP and expanding rapidly. Children are also engaged in it. Out of school and street children become the major victims of this abuse.

Children are forced into begging

Children of poor classes are engaged in begging. Individuals and certain gangs play a role in getting children involved in begging to earn money.

Involvement of children in conflicts

Adolescents have been engaged by extremist groups and trained for suicide bombing. Extreme poverty and socioeconomic disparities are among the causes. Although the prevalence is very low, this is a grave issue. Due to poverty and larger family sizes, parents are unable to care for and accommodate all their children. Many of them are left to tend to themselves, while others are enrolled in madrassas, where they are vulnerable to exploitation.

Neglect of children due to large family sizes and poverty

difficult as questioning child marriage is thought to contradict Islamic teachings Discrimination deepens social and economic disparities. Participants accepted the fact of discrimination however there is reluctance to discuss the discrimination being faced by children of religious minorities. Children get involved in labor, criminal activity and drug addiction. Girls upon their puberty, get married. Street wandering children and adolescents are attracted by extremist groups and can get involved in terrorist activities as well. Open discussion is possible on this issue. Recovery of child victims is almost impossible. Trafficking separates children from their families. It increases children’s involvement with extremist activities, crimes, smuggling, drug addiction and begging. Open discussion is possible on this issue. Drug addicted children have a very high risk of getting engaged with crimes, extremist activities and begging. Both society and parents are responsible for this growing trend. Open discussion is possible. Children who are engaged in begging are not attending schools, have poor health and hygiene conditions and limited access to food, clothes and shelter. Loss of precious children's lives and an increasing atmosphere of fear in society. Open discussion is possible on this issue Children neglected, vulnerable to exploitation, with low education levels. Open discussion is difficult if the nature of exploitation is sexual.

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7.2. Services Available for Child Protection There are several NGOs/CSOs in KP that are directly working in the sphere of child protection while other organizations are indirectly linked to child protection in one way or another. These organizations constitute the formal system that contributes to the ‘continuum of care’ available to children. The following tables summarize some of the major child protection activities being undertaken by CSOs, INGOs and multilateral agencies in the province. Box 6. Harmful cultural attitudes and practices

Organization

Description

Outreach / District Info

Family Planning Association of Pakistan (funding from UNICEF)

Training of 100,000 community workers nationally including 31,500 girls and 6,900 boys to be change agents in their communities

National and Provincial

KhwendoKor (with support from Aurat Foundation)

Awareness raising to prevent gender based violence

Peshawar

KhwendoKor(funding from Norwegian Church Alliance)

Local Action to Combat Gender Injustice in KP(project completed in Dec 2012)

Mansehra

Box 7. Life skills based education

Organization

Description


World Vision

Counseling of abused and traumatized children

Charsadda and Nowshehra

World Vision

Aims to reduce dropout from schools. Runs teacher trainings, and community awareness activities.

Charsadda and Nowshehra. Project outreach is up to 10 target schools

KhwendoKor (with support from UNESCO)

Life skills education, Education and Skills; Tools for Social empowerment

KhwendoKor (with support from Rutgers-WPF)

Life skills based education in government schools

Befare (with support from UNESCO)

Mainstreaming education of Afghan Refugee Children(January – March 2012)Engage stakeholders on the importance of quality and compulsory education to include all, including Afghan refugees.

Bannu

District Peshawar, Swat and Nowshera

Pakistan Village Development Program (PVDP) and UNICEF

Protection of flood/ conflict affected children. Capacity building of CSOs on child rights, LSBE etc.

SAHARA Development Foundation

Capacity building of teachers, communities and children on LSBE, child rights and child protection

District Swat, Khurram

District Charsadda

Box 8. Emergencies

Organization SPARC

( with UNICEF and District Partner Organizations0

Description

Outreach

Established Child Friendly Spaces in flood affected areas provide children with non formal education and other facilities including mainstreaming with formal education Provided protective services to flood affected children and conflict prone areas

Flood affected districts

KhwendoKor, PLAN Pakistan, Islamic Relief (with support from UNICEF)

Provide rehabilitation and rescue services to flood affected children and conflict prone areas

KhwendoKor

Health, shelter, education to conflict affects, including child protection centres and medical camps.

Flowers and TDH Switzerland

Protection and mainstreaming of flood affected children

SAHARA and TDH Germany

Restoration of flood affected schools. Capacity building of teachers, communities and children on LSBE, child rights and child protection Protection and mainstreaming of flood affected children.

JCDS (with TDH Germany)

Tank, D I Khan, Swat, Buner, Upper Dir, Lower Dir, Jalozai DI Khan, Tank Bajaur, Waziristan (in FATA) and Swat district District Peshawar, Nowshera and Charsadda Charsadda

Charsadda Pakistan Village Development Program (PVDP), with UNICEF

Protection of flood/ conflict affected children. Capacity building of CSOs on child rights LSBE etc.

District Swat, Khurram

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Box 9. Advocacy Organization

Description

Outreach

SPARC and other NGOs

Child Rights Movement, setting up of child rights committees to carry out awareness raising activities on child rights. Child Rights Committees carry out awareness and sensitization on children’s issues at a district level, identify issues and inform concerned authorities.

Active in 9 districts

Noor Education Trust, SPARC, Action Aid and more

Advocacy work to pass legislation in KP to amend law to standardize age at marriage to 18 for both boys and girls.

Impact would be provincial

World Vision and Local Government

Ensuring birth registration to all children.

Charsadda and Nowshehra districts. Registration of 15,000 children ensured.

SAHARA Development Foundation

Advocacy with communities on children’s right to education.

Charsadda

Jobs Creating Development Society (JCDS)

Advocacy and capacity building of communities on child rights.

Charsadda

Box 10. Child abuse and neglect

Organization

Description


SAHIL

Capacity building of CSOs and activists, awareness and monitoring of CSA. Monitoring and analysis of CSA data. An annual report of child sexual abuse.

National and Provincial. Districts Haripur, Abbottabad and Mansehra

World Vision

Counseling of abused and traumatized children

Charsadda and Nowshehra

Box 11. HIV/AIDS Organization

Description

Outreach

World Vision Pakistan and BEFARe

BEFARe (Basic Education for Awareness Reforms and Empowerment) aims to build capacities of BEFARes chool teachers in refugee camps and catchments areas covering local communities, about HIV/AIDS prevention, testing and treatment.

KP and FATA

KhwendoKor supported by Save the Children

Health services for communities, led by the communities.

Kohat

Box 12. Legal aid services Organization

Description

Outreach

SPARC

Child Protection Programme: A comprehensive child protection program, includes major components on violence, bonded and child labor and juvenile justice

KP

Noor Education Trust

Residential care and legal support

Peshawar

BEFARe

Protection and legal aid to children in conflict with the law

KP

Dost Foundation

Rehabilitation and legal counseling. Services for women and juvenile prisoners, rehabilitation and treatment for children drug addicts

Peshawar, Haripur, and others (not specified)

Box 13. Residential services/shelters

Organization SPARC

Pakistan Bait-ul-Mal

Description Drop-in center for run away / street children. The center hosts runaway and street children for their rehabilitation. Accommodated children provided with residential and food facilities along with counseling. Pakistan Sweet Homes: 5 centers in 5 districts of the province. Serves orphan children. The admitted children acquire optimum residential and educational facilities.

Outreach Peshawar

5 districts

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There are some interventions that rely largely on the role of the public sector. For example, identification of a child in need of protection, i.e. the reporting and referral of case, is primarily the responsibility of the police, CPUs, and hospitals. Civil society or community organizations may also be involved. However, the police is not very effective in actively identifying cases and make errors in the filing of statements. Investigation of identified children follows in a similar way. Assessment of the strengths and problems within a family and recommendation of appropriate solutions is also in the domain of CPUs, CPWC and judiciary, with non-government organizations involved on a case to case basis. SW&WDD first tries to achieve reconciliation of issues within a family, otherwise a child is referred to a shelter. There is no system in place for the follow-up of a child and record-keeping of a case.

7.3. Civil Society Organizations and Child Protection Currently the SW&WDD is the primary agency responsible for registering and overseeing CSOs. Some are registered as companies and those come under the jurisdiction of the Department of Labor. The Child Protection and Welfare Commission, as set up under the KP-CPWA 2010, is the primary body to oversee child protection. It is required to provide oversight and have good referral and networking with government and non-government organizations working in child protection. However, it does not have any registration authority. Further, under this Act, child protection officers have been designated to operate CPUs at a district level. These officers are meant to oversee all child protection activities at the district/community level. Due to human and financial resource constraints, CPUs have not been established in all districts of KP. If all child protection organizations were certified by the CPWC, monitoring and establishing standards would improve. There is no separate procedure to license civil society organizations that directly care for children. All civil society organizations are registered under either of these laws: Societies Registration Act 1860, The Trust Act 1882, Companies Ordinance 1984 (Section 42), Trade Organizations Ordinance 2007, Cooperative Societies Act 1925 and Voluntary Social Welfare Agencies (Registration and Control) Ordinance 1961. Each of these Acts is implemented by a different government department, which results in no one entity having information on the number of organizations operating in the province (registered or unregistered). Licensing of voluntary organizations under the Voluntary Social Welfare Agencies Ordinance is done by the SW&WDD on a district and provincial level. Licensed organizations are not regularly monitored. Information regarding the number of voluntary agencies in the province is not readily available. There is some coordination among the civil society organizations on child protection. For example, under the SPARC-led Child Rights Movement, post 18th Amendment, civil society organizations came together to advocate on a number of different child rights issues. SPARC has also established child protection committees in many districts of KP. These committees include representatives from community level organizations working on child rights, as well as individual advocates and service providers. Civil society organizations advocated in favor of the KPCPWA 2010 and assisted with drafting the legislation.

The media plays an active role in reporting child protection issues. Reports put out by civil society organizations on child protection issues are regularly reported. Media also plays a significant role in creating awareness about services for children provided by government and civil society, and about issues such as corporal punishment and child labor. It is instrumental in drawing attention to inefficiency or carelessness of institutions responsible for providing children with protection. Television stations also report cases of abuse and neglect, such as missing children, child abuse, and rape.

7.4. Child Protection System and Community Actors at the Local Level Community-based organizations, family networks, clans, teachers and health workers are the key players in child protection at the local level. Religious leaders/groups also have a significant influence as do the police if called upon. Strong family structures do provide significant support to children, however there is no way to standardize and monitor their care. For example, extremist groups exploit vulnerable children by involving them in conflict. Health workers have direct access in communities to households, yet they do not have any training in child protection. There are no specific referral mechanisms in place at the community level. Where the CPUs are functional, efforts are being made to develop a system by involving government, community members and civil society organizations, but this work is in a preliminary phase. In the case of conflict, communities generally turn to village elders or religious leaders for help, relying on the jirga as the basic justice mechanism. To develop consultative community structures that can play a role in child protection, Child Protection Committees (by the CPWC and SPARC) and Masalihati Committees (by the police and CSOs) are being set up at the union council level. There is a considerable human resource invested in helping internally displaced persons. In camps a number of organizations work on relief and rehabilitation, including child protection. Due to the support from UNICEF and NGOs, camp communities seem most able to respond to children’s needs. SPARC has established Child Rights Committees in 18 districts of KP, out of which nine are active. These committees include representatives from community level organizations working on child rights as well as individual advocates and service providers. Child Rights Committees carry out awareness and sensitization on children’s issues at a district level, identify issues and inform concerned authorities. They celebrate World Children’s Day, Child Labor Day and more. A District Coordinator of a Committee is elected for the term of one year through elections. However, these committees do not function at the Union Council or Tehsil level. In order to strengthen networking, the KP government plans for the CPWC and CPUs to establish a mechanism for coordination of government and nongovernment organizations working in child protection at the tehsil and union council levels. This will be subject to availability of funds and human resources.

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•

•

•

•

•

Laws, Policies, Standards and Regulations o All child protection organizations should be certified by the CPWC, to enable monitoring and establish best standards of practice. Cooperation, Coordination and Collaboration o There should be more coordination, data-sharing and referrals between and within all stakeholders in the child protection system. o All child protection institutions functioning under SW&WDD need to be closely linked with CPWC. o NGOs should establish more links at the local and community level. Capacity Building o The capacity of health workers and educators needs to be developed on child protection as they have primary access to children and their families and can play a bigger role than they are currently playing in addressing their needs. Service and Service Delivery Mechanisms o CPUs need to be expanded to all districts of KP and need to develop a mechanism for community level coordination on child protection issues. Communication, Education and Mobilization for Social Change o LSBE should become part of KP primary and secondary school curriculum. Accountability o Standard operating procedures for civil society organizations are needed to raise the quality of services and accountability.

SECTION 8.RESOURCE MOBILISATION AND FISCAL ACCOUNTABILITY 8.1. Allocations and Budgeting for Child Protection In the budget documents and functional classification of expenditure used by the KP Government, there is no separate classification or sub-classification for child protection. Since child protection functions and activities are spread across a range of Departments, it is difficult, if not impossible, to accurately decipher the total outlay on child protection. Even within allocations for individual Departments, there is no head under which child welfare or child protection expenditures are provided. In many cases budgets for child specific functions are embedded in broader categories and cannot be separated. There is a 'Comprehensive Development Strategy (CDS) 2010-2017' in KP that is supposed to drive budget allocations. In part, budget discussions are guided by this framework. However, the real binding constraint on the budget process is resource availability. Revenues are predominantly driven by transfers from the federal government on account of provincial share in the National Finance Commission Award and from royalties on hydel profits. The CDS does provide allocations for 'child support schemes' for the 2010-17 period. Allocations stated are: 2010-12: Rs. 96 million, for 20132015: Rs. 144 million, 2016-2017: Rs. 96 million. It is not possible to ascertain if expenditure during 2010-12 were met as disaggregated data for child protection or child support is not provided in budget documents. In 2011-12, Rs. 10 million were allocated for the CPWC. This allocation only covers the head office expenses. Reportedly, expenses of the district level CPUs are being provided by UNICEF. Without incorporation of donor funds, this amount is significantly less than the allocation mentioned above. In addition, there is the KP Social Protection Strategy that is expected to inform annual allocations. It aims to "scale up child support programs and measures for vulnerable children." (CDS 2010-17: 34). Other than that there is no other explicit commitment to child protection allocations. There is indirect reliance on donors (particularly UNICEF) to fund child protection initiatives and activities. For the development budget, figures are available from two sources. A report by Save the Children (2011) has calculated that the 'child focused' budget of the SW&WDD in 2009-10 was 0.075% of the total development budget of the province. According to the Annual Development Plan document for 2011-12, the child focused budget was 0.11% of the total development budget and 23.8% of the budget for the SW&WDD. The CDS allocated 2.6% of the provincial budget to social protection for the 2010-12 period. However, the budget document for 2011-12 provides allocations for current expenditure on social protection which is 0.29% of total current expenditure. It is noted that this expenditure is much less than that planned in the CDS. In addition to this, the Local Government department is working on a donor funded project to promote universal birth registration. The allocation for this in 2011-12 was Rs. 76.5 million. The tentative conclusion that can be drawn is that allocations for child related functions in the province are low. There is a case, therefore, for the provincial government to prioritize child

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welfare/protection related spending, especially since the 7th NFC award has increased the resource envelope of the province substantially. It is also important that child protection is provided as a consolidated head in budget documents. Only then will it be possible to monitor expenditure in this area with some degree of accuracy. Since the KP government has recently added social protection as a separate functional classification in budget documents, it will be appropriate if child protection is added as a sub-head in this classification and all cross-departmental allocations are clubbed together here.

8.2. Monitoring and Accountability As mentioned above, the first prerequisite for effective monitoring of financial allocations is to develop proper accounting procedures that collate cross departmental allocations and provide details of individual projects and functions. The other condition for effective monitoring and accountability is that allocations across different heads are tracked so that it is ensured that resources are flowing in the direction where they are intended to. Moreover, resource inputs have to be matched with outputs in terms of non-financial indicators of child welfare and protection. It is thus important that expenditure tracking and outcome based budgeting is introduced in the province. The government has initiated an outcome based budgeting process (led by DFID) recently. Once this is combined with the CDS costed plan, a coherent costed strategy for child protection can evolve.

8.3. Role of Donors There has been an increase in donor financing so far as the overall provincial budget is concerned. This is mainly on account of the war on terror. There is also an increase in donor funding for social protection because of a number of new initiatives undertaken by the government in the last 4 years. The main donor for child welfare and protection in KP is UNICEF. Apart from funding the CPUs of the CPWC, it provides technical support for various awareness raising campaigns and capacity building initiatives in the province. There is high level of aid dependency in the province. Although child protection is not explicitly mentioned, according to the CDS (2010-17), 49% of resources for Social Protection are expected to come from foreign assistance. Moreover, a number of initiatives in the area of child protection are exclusively foreign funded; such as the birth registration initiative and the creation of district level CPUs. UNICEF is currently engaged in institutional strengthening of the SW&WDD. One area that is being focused on is strengthening its planning capacity to mobilize more resources. Once this capacity increases, it will be able to absorb more resources and spend them effectively. Other projects currently financed by UNICEF in KP focus on strengthening the child complaints and redress section with the Ombudsman Office, promoting universal birth registration, transferring (benefits) to children and families in conflict affected districts (pilot), protection of children without parental care and a

juveniles support program. ILO is funding a project to combat the worst forms of child labor, in Haripur district. UNDP, USAID and DFID are also funding projects that have a bearing on child protection issues. Currently, donor funds for child protection are not audited by the Auditor-General’s Office. All funds spent through government programs, even donor funds, should be audited by the Auditor General's office. Contribution of donor and government financing for each project should be presented in detail for independent third party assessment.


Laws, Policies, Standards and Regulations o o

•

Capacity Building o

o

•

Training and capacity building of staff in the Departments of Finance, P&D and SW&WDD, especially with regard to incorporating outcome based budgeting procedures, should be initiated. Training for child protection officers in the District CPUs is required. In addition, training of CPMIS staff is also necessary.

Financial Resources o

•

Child protection should be provided as a consolidated head in budget documents. Expenditure tracking based on outcomes has been introduced for the SW&WDD in the province. This should be extended to the CPWC and an appropriate module developed to measure and monitor allocations with outcomes.

The resource commitment for child protection has to be enhanced, rationalized and made transparent. While donor funding should not be discouraged, higher allocations from government resources will be necessary if the CPWC is to be appropriately operationalized.

Accountability Mechanisms o o o o

All funds spent through government programs, including donor funds should be audited by the Auditor General's office. Contribution of donor and government financing for each project should be presented in detail for independent third party assessment. An additional element in the CPMIS developed by the CPWC should track financial allocations to child protection. Donor cooperation to develop expenditure tracking expertise within the CPMIS should be sought.

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SECTION 9. OPTIMAL CHILD PROTECTION SYSTEM IN KHYBER PAKHTUNKHWA 9.1. Proposed Changed in the Child Protection and Welfare Commission The KP CPWC Act is a comprehensive child protection legislation and the CPWC has the potential to develop into an optimal child protection system. However, a few important changes need to be introduced to the Commission. Each government department having a role and function in child protection should be included in the Commission and provided with a separate budget for child protection related activities to make the system effective. Currently, the Secretaries of Health and Planning and Development Department are not members and should be made members of this Commission. Other departments that could be added to the CPWC are the Zakat and Auqaf, Hajj and Religious Affairs departments. Representatives from FIA, NADRA, Bait-ul-Mal, BISP and UNICEF should be co-opted members of the Commission to facilitate coordination between federal and provincial bodies. Figure 5. Optimal child protection system

Other than expanding its membership, the Commission should strengthen the CPMIS (currently active in 8 districts) that links data from district to provincial level. This would require a further capacity

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increase of the existing CPUs and setting up a CPU in all districts. Child Protection Committees established by the CPUs s should also be encouraged at a tehsil/community level. These Committees could include representation from community actors such as CBOs, child rights advocates, teachers, police and health workers. The Government of KP needs to prioritize child protection and set up a Standing Committee in the provincial assembly to oversee child protection issues and the working of the Commission. The CPWC may also set up and oversee Thematic Working Groups that focus on resolving specific issues in child protection. The Commission is an important initiative in creating an umbrella organization for child protection issues. It will also provide the requisite profile and priority to child protection that has been hitherto missing because of lack of coordination across departments, and their lack of focus on child protection because of multiple tasks assigned to them.

9.2. Proposed Staff for the Child Protection and Welfare Commission In an optimal system, the CPWC has a Head Office in Peshawar and a Child Protection Unit in each district of KP. The details of the staff are presented in Figure 7. Figure 6. Optimal staffing of the Child Welfare and Protection Commission

There will be one Director General (DG) or Chief Child Protection Officer who will oversee the functioning of both the Head Office and the district CPUs and will be responsible for setting up and managing Thematic Working Groups on child protection issues. One Senior Child Protection Officer

(SCPO) and one District CPU Coordinator will report directly to the DG. The SCPO will be responsible for overseeing a CPMIS at the provincial level, a training unit, a public relations team and a panel of advocates. The CPMIS will regularly input data provided by the CPUs on the number of children that have been helped by the CPU and will also monitor other information sources to compile data related to child protection that can be used for policymaking and allocation of funds. The training unit will be essential as the staff employed at the CPU will need regular trainings in order to bring them up to date with issues and methods related to Child Protection. The Panel of Advocates will represent the Commission and children in need of legal aid in legal matters. The District CPU Coordinator will be in charge of coordinating closely with the CPOs at a district level and create a bridge between the provincial and district level systems. The staff for each CPU will comprise of 1 Child Protection Officer, 1 Assistant Child Protection Officer, 10 assistants, 4 people in the Administration team and 2 in the Accounts team.

9.3. Costing for the Child Welfare and Protection Commission The total cost for setting up the optimal CWPC is provided below inBox18. The detailed costing has been provided in Annex 2. Table 12.Costing for the Child Welfare and Protection Commission (in Rupees)

Capital 71,467,130 7,146,713 14,293,426 21,440,139 28,586,852

Year 1 Year 2 Year 3 Year 4 Year 5

Recurrent 275,314,645 302,846,110 333,130,721 366,443,793 403,088,172

Total 346,781,776 309,992,823 347,424,147 387,883,932 431,675,025

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SECTION 10. CONCLUSION: CHILD PROTECTION SYSTEM DEVELOPMENT •

Laws, Policies, Standards and Regulations

Laws o

o o o o o

o

o o o o o

o

o o o o o

JJSO should override all other contradictory laws by amending Section 14. JJSO should explicitly state that the death penalty and life imprisonment should be strictly prohibited for children, in line with CRC.JJSO should be amended to include children who are trafficked and children in need of protection under its mandate. Age of criminal liability increased to at least 12, in line with CRC. Age of marriage standardized at 18 for both males and females and no other personal, family or religious law should have authority to override this. Legislation to prevent domestic and home-based child labor should be drafted. Clarify status of Criminal Law (Amendment) Act 2009. Amendments to PACHTO, to strengthen it in light of above-mentioned problems are needed. A law to combat internal trafficking, in conjunction with services provided for children trafficked within the country. Legal changes in the Guardians and Wards Act 1890 so that abandoned children are legally given into the guardianship of suitable persons in default of biological parents or nearer relatives. Laws to develop and regulate foster care systems. Legislation on domestic violence should be drafted and adopted. Amend PPC 89(2) which sanctions corporal punishment. Clarify confusion created by Qisas and Diyat Laws. Different laws involving child labor need to be revised in line with CRC, e.g. the contradiction between the Employment Act and ILO Convention 138 needs to be resolved. The contradiction between maximum age for compulsory education (age 16) and minimum age of employment as per ILO Convention requirements needs to be resolved. Laws for registering birth of children with unknown fathers need to be developed. Guardianship and Wards Act should be reviewed to streamline process of granting guardianship to individuals. Informal justice systems such as jirga system should be outlawed and the ban strictly enforced. A framework/legislation that deals with the protection of IDPs (with a special emphasis on children and children with disabilities). Specific laws on armed conflict related to children.

Enforcement of existing laws: o

Prepare Rules of Business of KP CPWA at the earliest. o Increase of law enforcement activities, investigation and prosecution of complicit government offices.

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o

o

o o o o

o o o o o o

Enforcement of Bonded Labor System (Abolition) Act, improvement in methods to identify victims, and strengthening of provincial labor departments’ capacity to combat bonded labor.11 Guardianship: Custody should be given after proper inquiry regarding the prospective guardian. The court should supervise the case of every child through periodic reviews once the child has been given in guardianship. 12 Training of teachers to stop corporal punishment must be a government priority. Penalties for all those involved in child marriages must be increased and made more severe. The nikahnama should require a copy of the birth certificates of the couple. JJSO rules and regulations must be strictly enforced throughout the judicial process (e.g. hand cuffs should never be used on children, they should not be mixed with adults in the jails or courts, special courts for children should be established, children should never be kept in solitary confinement, etc. Judiciary: All those involved with the judicial process for children must know the laws and protections that exist and act accordingly. Judiciary must no longer use notion of mitigating circumstances in case of honor killing, in violation of the law. Parole and probation should be made more practical to implement. Mandate of Home Department must extend to include prevention of in-country trafficking and protection of child witnesses and child victims. The operative Police Rules should be revised to include a chapter specifically addressing child protection issues. Area Inspectors and District Vigilance Committees need training on child labor laws and also the authority to prosecute employers who violate them.

Policies o o

o o o o

A policy dialogue needs to be started to address the departures from CRC and other international obligations in the existing laws and policies. A set of guidelines should be developed providing clear definitions of roles and responsibilities of all stakeholders, including government departments, military, donors, UN agencies, humanitarian organizations, and civil defense in child protection. A policy of no charge for birth registration needs to be considered. Dialogue must begin to resolve the legal contradiction in corporal punishment issue. A policy dialogue needs to start in order to address child discrimination. The issue of registration of refugee children needs policy dialogue.

11

Office to Monitor and Combat Trafficking in Persons. US State Department. 2011. Trafficking in Persons Report 2011. www.state.gov/j/tip/rls 12

http://pakistan.childrightsdesk.com/?p=13471

o

Child labor: A policy is needed to formally link the Directorate of Labor with the Workers Welfare Board, with definite roles for each regarding child labor; child labor must be included in the CPWA.

Standards of Care o o

o

All civil society organizations involved in child protection should be certified by the CPWC, so that monitoring and establishing standards become possible. Religious institutions, i.e. madrassas, that are providing alternative care facilities must be taken on board and included in this process of registration, monitoring and introduction of standards of care as they are currently not addressed. The presence of children in courts on the date of hearing should be ensured (by issuing standard regulations for authorities) and regulated in accordance with JJSO.

Systems System such as foster care should be developed for children without adequate family or alternative care (as recommended by KP-CPWC). o A system to track children who are under kafalah (guardianship) should be established. o The Directorate of Labor should be able to inspect factories without giving prior notice when it is checking for child labor. o CPMIS should be established and run by CPWC to collect and share relevant data. Cooperation, Coordination and Collaboration o There should be more coordination, data-sharing and referrals between and within all stakeholders in the child protection system. o All child protection institutions functioning under SW&WDD need to be closely linked with CPWC. o Directorate of Labor needs to strengthen its linkages with the CPWC and other government bodies, civil society organizations, and international agencies. o Cooperation among civil society organizations at provincial and district levels needs to be streamlined to avoid duplication and overlapping. o Coordination between Home Department and the CPWC needs to be systemized. o CPWC may develop a role of liaising with the military to assist those children whom they have detained during conflict with extremists. o More effective means of communication and coordination need to be established between all players in the justice process and during different stages of the process, e.g. it might be helpful to introduce a regulation to oblige the police to send intimation of arrest of a child to a Probation Officer along with a copy of this document to the concerned magistrate. o NGOs should establish more links at the local and community levels, rather than mainly at national and provincial levels. o

•

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•

•

Capacity Building o A comprehensive CPMIS needs to be developed to link data from district to provincial level. This should be managed by the CPWC. o CPUs should have capacity to collect and maintain comprehensive data on child protection services and related indicators. o Directorate of Labor should be given the manpower to inspect all factories in the province, and the mandate to assess informal sector as well. o The capacity of Probation Department to handle cases should be strengthened so that deprivation of liberty can be used as a last measure for children in conflict with the law (as stipulated in the JJSO). o Police, lawyers and judges need to be sensitized and trained on child rights issues and made aware of legal (JJSO) requirements for handling and processing cases of children in conflict with the law. o The Home Department should assist juveniles in the rehabilitation phase of their encounter with the justice process. o KP has no public prosecutors and no public defenders, these must be put in place at the earliest. o The capacity of health workers and educators needs to be developed on child protection as they have primary access to children and their families and can play a bigger role than they are currently playing in addressing their needs. Service and Service Delivery Mechanisms o CPUs need to be expanded to all districts of KP and need to develop a mechanism for community level coordination on child protection issues that involves civil society organizations and advocates and key players. o Children's Complaint Cell (within ombudsmen office) must be put to optimal use by government and communities. o A free helpline should be set up for children at risk (perhaps at CPU offices). o Directorate of Labor needs to expand its services throughout the province and down to the union council level. o Child witness and child protection programmes need to be established. o Juvenile courts must be established at the earliest. o Borstal Institutions must be established. o Remand homes need to be built to cover all the districts of KP. o Legal aid services for children in conflict with the law must be automatically made available for those children who need them. o Counseling services for children in detention are needed. o Strict segregation of adults and children during all phases of the justice process must be followed. o More alternatives to incarceration must be used, e.g. probation, diversion mechanisms, community service for juvenile offenders. o Aftercare services should be provided to rehabilitate children leaving juvenile jails.

•

•

•

Communication, Education and Mobilization for Change o Curriculum of Peshawar University and other universities offering social work degree programmes should be reviewed and revised to incorporate modules on child protection. o LSBE should become part of KP primary and secondary school curriculum. o The CPWC should set up thematic issue working groups to tackle specific child protection issues (e.g. child labor, honor killings, disabilities, etc.) and raise awareness. The working groups should include media, researchers, and others in the private sector. o More awareness-raising on issues of child abuse, exploitation and trafficking. o Disaster Management Authorities should develop public awareness programs of early warning and disaster education with the help of electronic and print media. Financial Resources o Each Department having a role and function in child protection should be provided with a separate budget for CP related activities to make the system effective. o Child protection fund (for CPWC) should be adequately funded through government or other agencies to support expansion of services. o Expenditure tracking, based on outcomes has been introduced for the SW&WDD, it should be extended to the CPWC and an appropriate module developed to measure and monitor expenditure. o Civil society should advocate for higher allocations from government for child protection given the 7th NFC Award and 18th Constitutional Amendment and increased resource envelope. o Each Department having a role in child protection should have a separate budget for related activities. o Donor dependence should be reduced over time as higher allocation from government resources increases to support the CPWC and related activities down to the district and local levels. Accountability Mechanisms o A Standing Committee should be set up in the Provincial Assembly to oversee the functioning of the CPWC and other child rights initiatives in the province. o Standard operating procedures for CSOs and government services working in child protection are needed to raise the quality of services. o All resources should be collected in a transparent manner, including donor resources. o Donor funds for child protection should be audited, along with all other funds spent through government programs. Contribution of donor and government financing for each project should be presented in detail for independent third party assessment. o Strengthen the role of the Ombudsmen. o All government bodies involved in child protection activities must be held to some standards of accountability based on performance.

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o

o

Data collection within the justice system pertaining to children must be monitored and shared by the CPWC, e.g. be made available to civil society organizations so they can provide assistance and referrals where needed. Monitoring outcomes of CPUs will also help cost effectiveness.

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