Strasbourg, 7 March 2022 CDENF-GT-VAE (2021)04rev2
Steering Committee for the Rights of the Child (CDENF)
Working group on responses to violence against children (CDENF-GT-VAE)
Draft Recommendation CM/Rec(2022)XX of the Committee of Ministers to Member States containing Guidelines on Strengthening reporting systems on violence against children (working title)
Revised draft prepared by the Secretariat
Provisional version – specifying questions yet to be considered by the Working Group at the beginning and throughout the text
Reaffirming the principle of the inherent and equal dignity of all human beings, and underlining the importance of guaranteeing all children within a State’s jurisdiction the full exercise, respect, protection and promotion of their human rights and fundamental freedoms, without discrimination on any ground;
Bearing in mind the Council of Europe Strategy for the Rights of the Child (2016-2021) under which the present text was initiated and prepared and the new Strategy (2022-2027), adopted by the Committee of Ministers on 23 February 2022, which continuously refers to freedom from violence for all children as one of its strategic objectives;
Having regard to the obligations and commitments towards children as undertaken in international and European Conventions, notably the United Nations Convention on the Rights of the Child (UNCRC) and its Optional Protocols; the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), and the protocols thereto; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS. No. 126); the European Convention on the Exercise of Children’s Rights (ETS No. 160); the revised European Social Charter (ETS No. 163); the Convention on Cybercrime (ETS No. 185); the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197); the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201); the Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210);
Recalling the relevant case law of the European Court of Human Rights and the standards contained in the recommendations, resolutions and guidelines of the Committee of Ministers and of the Parliamentary Assembly of the Council of Europe, in particular CM/Rec(2009)10 containing guidelines on integrated national strategies for the protection of children from violence, and the relevant recommendations of international and European monitoring bodies;
Having regard to the fact that the best interests of the child must be a primary consideration in all actions in their regard, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies;
Recognising that any form of violence against children, whatever its degree of severity, constitutes a serious violation of the rights of the child, compromises children’s development and affects the enjoyment of their fundamental rights;
Bearing in mind that many forms and incidences of violence against children remain largely underreported and undetected and that children in vulnerable situations are at a heightened risk of experiencing violence;
Noting further that since the beginning of the COVID-19 pandemic the frequency and severity of violence against children have evidently increased and became less visible and underreported;
Conscious of the persistence of violence against children in various settings, including in their circle of trust, and of the national evidence that is predominantly professionals (also including volunteers) working for and with children who spot and identify signs of violence and are in a position to report reasonable suspicions to the relevant authorities;
Realising that a clearly defined duty to report for professionals should ideally be embedded in national legal and policy frameworks as an essential element of their child protection and reporting systems;
Convinced that barriers perceived and experienced by professionals for the timely and effective identification and reporting should be removed, in order to create a favourable context for reporting violence against children;
Convinced that professionals working with and for children should be provided with specific and regular training in order to have the capacities to report violence against children in the most effective manner;
Recognising the need to ensure and design effective reporting procedures as part of holistic child protection systems;
Perceiving the need for comprehensive data collection and robust monitoring of the effectiveness of mechanisms in place;
Bearing in mind that sufficient financial and staff resources should be allocated to build strong child protection and reporting systems;
Determined to support all Council of Europe’s member States to develop consistent and effective laws, policies and mechanisms, to build a general culture of respect and protection of the rights of the child by public and private stakeholders in Europe and to ensure that the voice of the child’s informs all these processes.
Recommends that the governments of member States:
- be guided, in their legislation, policies and administrative practice by the principles and measures set out in the Guidelines contained in the Appendix to this Recommendation;
- ensure that this Recommendation, including the Guidelines in the Appendix, are translated and disseminated as widely as possible among competent authorities and stakeholders, including supervisory authorities, human rights organisations, civil society organisations, the private sector and all professionals working for and with children as well as their collective bodies;
- further develop international and domestic co-operation to strengthen reporting systems on violence against children by enhancing the exchange of essential information and promising practices;
- examine the implementation of this Recommendation and the Guidelines in its Appendix within the Committee of Ministers and with the participation of relevant stakeholders, every five years.
I. Aim, scope and definitions
II. Fundamental principles
III. Legal and policy-based duties to report
IV. Creating a favourable context for reporting violence against children
V. Effective reporting procedures
VI. Responding to violence against children reports and follow-up
VII. Data collection and monitoring
VIII. Media and communications
IX. Review of the Recommendation and international cooperation
As mentioned during the meeting, I strongly prefer a clear formulation of the purpose of this recommendation. In a previous version, it was formulated as:
The purpose of this [draft] Recommendation will be to address the following main challenges:
1. Violence against children is a violation of the child’s right to protection and compromises the enjoyment of many other rights. It is a complex and widespread phenomenon that takes many forms. Violence against children is largely underreported and dark numbers are enormous, particularly in the case of violence in the circle of trust.
2. Mechanisms for professionals to report violence are a key pillar of any strategy to combat it. Unfortunately, very often, mechanisms for professionals to report violence are inexistant, ineffective or not sufficient. Reasons include lack of awareness, unwillingness or fear to report, as well as overburdened reporting systems and ineffective child protection systems. This draft Recommendation aims at providing guidance to member States for developing, strengthening and monitoring effective national reporting mechanisms of all forms of violence against children. Member States should embed reporting violence against children by professionals into their broader child protection system. Reporting is an important tool to prevent violence, to respond to it wherever it occurred, and to protect children, but should never be seen as a final step of professionals’ responsibility. Professionals who report should remain responsible to protect children and monitor their situation in cooperation with reporting centres and in dialogue with children and their families.
We have tried to respond to this comment in the current version. The Group may wish to adjust or eventually shift into the Explanatory Memorandum (EM).
1. The aim of this [draft] Recommendation and its Guidelines is to address violence against children as a violation of the right of the child to protection affecting many other human rights, and to orient member States in developing, strengthening and monitoring effective national reporting systems and mechanisms set up in response to all forms of violence against children as essential elements of national strategies to combat violence against children.
2. In line with international standards, violence against children includes violent acts such as physical, sexual or psychological violence, injury, maltreatment and abuse, as well as omissions such as neglect and negligent treatment, which result in actual or potential harm to the child’s health, physical and emotional integrity, survival or development and affects the child’s dignity. Violence against children also includes disciplinary measures inflicting pain, however light, as well as exploitation and harassment, but excludes accidental harm which is not the result of one of the precited acts or omissions by a physical or a legal person. It can be inflicted upon the child by adults (including those in the child’s circle of trust but also in the public domain) or other children. Different forms of violence have can be facilitated and exacerbated by digital technologies (“online violence”) and the media.
3. The Recommendation and the present Guidelines apply to all “professionals” working in direct or indirect contact with children (in the understanding that “professionals” also comprises “volunteers” thus non-paid professionals throughout the text) including more specifically:
- those whose functions involve regular, sometimes daily contact with children (e.g. teachers and professionals in early childhood education and day-care, primary health care, agents of social services, sports, recreational, religious, and other types of organisations serving children);
- those who may only come into contact with a child occasionally in the course of their work (e.g. doctors, nurses, legal professionals, police);
- those who work with and support parents or other caregivers of children (e.g. psychiatrists, psychologists).
4. For the purpose of this recommendation:
- A ‘child’ means an individual under the age of 18;
What if an unborn child is endangered – in Icelandic C.P. Act Article 16 it is written –
All persons shall be obliged to notify a child protection committee if they have reason to believe that a child: a. is living in unacceptable circumstances of upbringing, b. is exposed to violence or other degrading treatment or c. is seriously endangering his/her health and maturity. Furthermore, all persons are obliged to notify a child protection committee if there is reason to believe that the health or life of an unborn child is being endangered due to the unacceptable or dangerous life-style of an expectant mother, e.g. in the form of alcohol abuse or the consumption of drugs, or when an expectant mother is exposed to violence, or if there is reason to suspect that an expectant mother is exposed to violence, or of any incidents which may be regarded as falling within the child protection committee’s concerns.
So could we say that – A “child” means an individual under the age of 18; can be unborn child if its health or life is being endangered by their care giver.
- The child’s usual ‘circle of trust’, as defined by the , is understood as comprising the home, larger family context, caretakers, including teachers and other professionals in schools, childcare professionals, sports coaches or other professionals working in sports facilities, religious workers, healthcare professionals, adults in charge of extra-curricular activities, tutors and other persons with which the children have close relations, including their peers;
- The ‘legal duty to report’ refers to duties to report embedded in domestic legislation;
- The ‘policy-based duty to report’ refers to a duty to report embedded in other documents such as implementing norms, professional standards, codes of conduct, guidelines or manuals, e.g. based on a policy that applies to individuals practicing a given occupation or/and within a given context;
- ‘Child-friendly procedures’ refers to mechanisms designed considering the best interest of the child, guaranteeing safe and accessible quality services in conformity with the rights of the child, and conveying essential information to children in a child-friendly manner and language the child understands, at all stages of a reporting process/
New proposal: ‘Child-friendly procedures’ refers to mechanisms which guarantee the respect and the effective implementation of the rights of the child at the highest attainable level, bearing in mind the fundamental principles listed below, and which convey essential information that is adapted to a child’s age, maturity, language, gender and culture at all stages of a reporting process.
Maybe a bit late, but shouldn’t we include the principle based on art. 18 of the CRC that:
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
- Best interests of the child: In all actions and decisions, the best interests of the child shall be a primary consideration, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies;
- Non-discrimination: competent authorities shall respect the child’s rights without discrimination of any kind and shall take measures to ensure that the child is protected against all form of discrimination;
- Right to life and development: competent authorities shall respect the child’s right to life and shall ensure to the maximum extent possible the survival and development of the child;
- Right to be heard and have opinions respected: competent authorities shall ensure the possibility for the child to be heard in all decision-making processes, and give due weight to the child’s views in accordance with the age and evolving capacities; this includes providing child-friendly information, guaranteeing the right to be heard in a child-friendly environment and feedback and transparency about how the child’s opinion was taken into consideration;
- Protection against violence: competent authorities should take all appropriate measures to protect children against all forms of violence;
- Supporting families: competent child protection authorities, should take into account the rights and duties of their parents or other caregivers, provide support to families as appropriate, and ensure that children shall only be separated from parents or other caregivers as a last resort, except when this is deemed necessary for their best interests and subject to judicial review;
- Recovery and reintegration: responsible authorities should take all appropriate measures to promote physical and psychological recovery and social reintegration of children victims of violence, including reintegration into their families of origin wherever this can be ensured through family support programmes.
III. Legal and policy-based duties to report
5. States should ensure that national legal frameworks address and thoroughly cover the prevention of violence against children and include a clear definition and prohibition of all forms of violence against children in various settings.
6. States should review legislation and policies concerning professionals’ reporting violence against children to clearly define a duty to report for professionals in law and through policy standards and to ensure that such duty is complemented by thoroughly laid down, effective and transparent responsibilities and procedures, in accordance with the national child protection system.
7. Children should not only be heard but be empowered to contribute, through child-friendly procedures, to the design of these legislative and policy frameworks. Adequate resources should be made available to ensure children’s meaningful participation.
8. In laws or policies, States should clearly indicate the list of professionals which are under reporting duties on the basis of their relationship to children.
9. Where both legal and policy-based duties exist, coordination should be ensured between them in terms of when and how the duty is activated.
10. In order to protect children against violence, comprehensive reporting systems are needed, comprising identification, reporting, reception and follow-up.
10. States should ensure holistic child protection systems that stimulate the identification, reporting and responding to violence against children.
11. Professionals should be encouraged and supported to report violence against children. In order to increase the willingness of professionals to report and to create a better atmosphere of public trust in the system, including in the social services, Member States should eradicate all the barriers professional’s encounter when reporting violence against children.
12. Laws and policies should allow professionals’ reporting violence against children to remain anonymous vis-à-vis third parties other than public authorities in case of serious risks for the professional or the child.
13. Laws or policies should clearly provide for waivers from confidentiality rules / professional secrecy for professionals reporting cases of violence against children in good faith.
CP.Act: The duty of notification provided in this Article takes precedence over provisions in law or codes of ethics on confidentiality within the relevant professions.
Secretariat: The matter of anonymity – and different approaches hereto - should be addressed in more detail by the Explanatory Memorandum (EM).
14. National laws or policies, and related mechanisms and tools, should indicate in a clear and concrete manner the
threshold for reporting VAC / indicators triggering a report of violence against children. States should initiate reporting procedures on the basis of suspicion of violence and not only upon warranted knowledge.
CP Act - All persons shall be obliged to notify a child protection committee if they have reason to believe that a child: a. is living in unacceptable circumstances of upbringing, b. is exposed to violence or other degrading treatment or c. is seriously endangering his/her health and maturity.
Secretariat: We would suggest to replace the abstract concept of “threshold” by the more concrete approach of “indicators”. This aspect – and different solutions hereto – should also be addressed in more detail by the Explanatory Memorandum (EM).
15. Laws and policies should exempt professionals from disciplinary measures or - as the case may be - criminal liability when reporting in good faith, and dissemination campaigns regarding such waivers should be organised.
16. Laws and policies should prohibit professional’s reprisals and encourage a context where professionals are supported by their institutions when reporting in good faith.
17. Member States should guarantee a duty to report for professionals as an essential element of their child protection and reporting systems, this should be clearly anchored in law, policies and reporting procedures defined for different professionals.
18. This duty should be implemented through targeted and clear comprehensive protocols and procedures, outlining the steps to be taken in reporting and its follow-up, including the involvement of colleagues, superiors and other agencies and should clearly define the responsibilities of each stakeholder/professional involved.
19. Reporting protocols should clearly indicate the authorities or agencies responsible and involved at national, regional or local level for receiving and processing reports of violence against children, notably law enforcement services and social service units/agencies.
20. Sufficient financial and staff resources should be made available by member States to ensure the development of solid reporting mechanisms, the regular provision of high-quality training to all professionals concerned, and the swift and accurate processing of reports.
21. States should ensure that national reporting mechanisms pay special attention to children in vulnerable situations who are at a heightened risk of experiencing violence.
22. Professionals should be encouraged to discuss any concerns about the child’s safety, well-being or suspicions of violence with parents or caregivers as appropriate and before passing on to the step of reporting. If it is in the child’s best interests and does not put the child’s safety at risk, professionals should inform parents or caregivers and the child about their report and the reporting procedure.
23. States should guarantee that a professional suspecting a child being subject to violence does not need to obtain the parents’ or caregivers’ consent in order to report.
24. Reporting procedures should allow for professionals to consult with children as appropriate in the light of the child’s specific case and evolving capacities, and professionals should be trained in undertaking such consultations.
25. Authorities processing reports should have access to databases to access any information about previous concerns, in terms of efficient “case management”, and be able to undertake risk assessments with other agencies in order to fully assess the information in relation to the child; international cooperation in this context is strongly encouraged and should be facilitated by bilateral agreement.
26. Organisations should guarantee the provision of mandatory and regular training on essential components of child protection and reporting systems across professional groups.
27. Information about child protection and reporting systems must be included in relevant curricula of the initial education of professionals covered by these Guidelines.
28. States should promote and implement measures aimed at raising awareness among children, the general public and professionals about what defines violence, the harmful effects of violence against children and the importance of reporting any such instance for their effective protection, while providing support to the child’s family.
29. Reporting systems should foster cross-sectoral co-operation and co-ordination between different agencies involved. Member States should take action to implement and evaluate a professional environment that stimulates multi-agency co-operation and co-ordination to facilitate identification of violence against children. Contact points for relevant authorities are recommended to facilitate a liaison of relevant authorities for effective interagency cooperation and coordination.
30. Reporting procedures should be in line with data protection and privacy legislation at European and national levels, both to ensure that children’s privacy and data are protected, and that limited access to the data of potential perpetrators of violence against children does not constitute a major obstacle to the reporting process.
31. Reporting systems should allow for rapid and coordinated interventions where violence has occurred.
32. Support services should be set up in order to strengthen families and accessible on a voluntary basis; such services should be provided to families on a mandatory basis only if a need for this has been formally established by the child protection system.
33. States should consider setting up a follow up system ensuring that reporters are given feedback on a specific case after a referral.
34. Appropriate services must be available both for child victims and witnesses of violence, and include counselling and referrals to child protection services, the police, health-care providers, and social welfare workers, special services for intra-family violence and assistance with securing temporary accommodation when necessary.
35. Through reporting systems, children having committed violence themselves should also receive the necessary attention and support for full rehabilitation.
36. Online databases and inter-operable systems for information sharing between relevant agencies should be developed, with due respect for the applicable data protection norms.
37. Reporting obligations in law and/or policy and the effectiveness of related reporting mechanisms should be examined and kept under regular review; reporting data should be analysed regularly to monitor the effectiveness of reporting mechanisms.
38. States should encourage research on reporting violence against children by professionals and on the effectiveness of national reporting mechanisms currently in place.
39. States should set up accountability mechanisms, so the functioning of a reporting system is regularly monitored by competent bodies which have the mandate to make recommendations and publish their findings, which will involve specially trained agents, and follow a comprehensive approach.
40. Information about laws, policies and practices linked to reporting systems for professionals should be available and accessible in the public domain.
41. Media campaigns should be encouraged to build institutional awareness and accountability and a sense of personal responsibility for protecting children against violence, and notably amongst professionals working for and with children.
42. States are encouraged to co-operate within the Council of Europe by sharing, on a regular basis, examples of legislation, policy and good practices, by exploring the need for any transnational arrangements and mechanisms, and by examining the implementation of this Recommendation and the Guidelines in its Appendix within the Committee of Ministers and with the participation of relevant stakeholders every five years.
43. This recommendation and its implementation should be regularly assed at Council of Europe level and in the light of any significant developments in the area of mechanisms for professionals to report violence against children and, if necessary, the recommendation should be reviewed and revised accordingly.