This book should be read by Child Protector, Social Welfare Officer, Child Protector Team, Child Welfare Team, Advisor Court for Children and all of those responsible in the well being of children in the community. I want to highlight few important points from the book :
United Nations Convention on the Rights of the Child (UNCRC)
According to UNCRC, well-being of children should be evaluated based on four principles. The principles are;
i) Non-discrimination in Article 2 which means that all children should be treated fairly and enjoy every opportunity of life without discrimination,
ii) The best interests of the child in Article 3 states that any decision made on the life of the child must first take precedence over their welfare,
iii) The right to survival, development and protection; and
iv) Right to participation in Article 12 ensures that children's opinions are heard and respected.
Emphasis on Family Based Care
The Amendment Child Act in 2016 places emphasis on family based care and accordingly, placement of children outside their home would only be resorted to as the last resort, upon exhausting all other options which support the concept. Therefore, parents, family or community members should be held jointly responsible for the misconduct of the children through the implementation of the court orders such as placing the child under the care of suitable individual other than parents, putting the child in a family based centre or assigning the child to be supervised by a probation officer. The implementation of the family based care concept places the institutional detention as the last resort in rehabilitation process of the children.
Establishment of Aftercare
Aftercare is the period of supervision of children/juveniles once they complete their out-of-home programming and treatment and are returned to the community. The goal of the aftercare supervision programme is to equip the children/juveniles with the ability to conduct himself/herself in a lawful manner.
Establishment of the Child Welfare Team
The Child Welfare Teams are established to co-ordinate locally-based services to families and children if children are or are suspected of being in need of protection and rehabilitation or if they are guilty of any offence. The Team shall consist of not more than seven persons with the appropriate experience, knowledge and expertise relating to the protection and rehabilitation of children, an Education Officer and a senior police officer.
The Five Categories of Children under Child Act 2001
i) Children in Need of Care and Protection
ii)Children in Need of Protection and Rehabilitation
iii)Children Beyond Control
iv)Children who are Trafficked and Abducted
v)Children in Conflict with the Law
Trial Procedure
The new revisions to the relevant provisions now require the probation officer to prepare and submit a probation report to the Court For Children and within 30 days from the date the direction is given by the Court to prepare such report.
Court Orders for Children Beyond Control
The Court For Children has the jurisdiction to make an order either
(i) to place the child in the care of a fit and proper person,
(ii) to place the child in a centre (a shelter established or operated by any person including a State Government, either individually or through a co-operation or joint-venture with the Federal Government, as approved by the Minister for the purpose of care, protection and rehabilitation of children),
(iii) to detain the child in a probation hostel, or
(iv) to place the child under the supervision of a probation officer. Each of the first three orders is attached with an additional order which places the child under the supervision of a probation officer for a period of not exceeding three years from the date of the order.
Parental liability in Children Beyond Control
The court may order the parents either to visit the child on a regular basis, attend interactive workshops together with the child, attend counselling sessions together with the child, or consult with the child's teacher once a month, depending on its suitability in each case. The parent who fails to fulfil any condition/s imposed will be considered as committing an offence and may be fined to a maximum of RM5,000.
Duty of Mandatory Informing
Under the Amendment Child Act 2016, if any family members, child care providers and medical practitioners, has reason to believe that a child is physically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, is sexually abused, he or she may give such information to a Social Welfare Officer. Failure to do so is a punishable offence which are a fine not exceeding RM5,000 or to imprisonment for a term not exceeding two years or to both.
Protection of Informer
Child Act 2001 also provides protection to those who gave information pertaining to cases of child in need of protection. Section 116 of the provides:
Any person who gives any information that a child is in need of protection shall not incur any liability defamation or otherwise in respect of the giving of such information.
Disposal of Caning
Previously, one of the options upon the finding of guilt is for the child to be whipped with not more than 10 strokes of a light cane within the Court premises. This option was a clear transgression of the child's basic right against cruel and degrading punishment, as laid down by Article 37 of the UNCRC. The CRC Committee urged Malaysia to immediately abolish all forms of cruel, inhumane or degrading punishments, including caning and other forms of corporal punishment imposed on a person having committed a crime when under the age of 18 years and as a disciplinary measure in penal institutions.
Minimum Age to Marry
The minimum ages for marriage for Muslims are 18 years for males and 16 years for females. However, the State of Selangor passed an amendment to its Islamic Family Law (State of Selangor) Enactment 2003 in 2018 which effectively raised the minimum age for females to 18 years of age, similar to the males. Nevertheless, the Syariah Judge may grant his permission in writing if the parties are below the minimum age in certain circumstances.
The Right to be Forgotten
It is suggested that a principle must be laid down by the Malaysian courts as a first step to ensure that everyone in Malaysia, children included, be accorded the right to have certain personal information erased from the internet. Subsequently, the right to be forgotten must be made a part of the Malaysian Legal System in terms of legislating a law that mirrors the General Data Protection Regulation (GDPR) of the European Union. The ASEAN Human Rights Declaration, though considered as a 'soft' law and not binding on member States, is a good start to achieve more comprehensive data protection legislation in Malaysia.
Successful rehabilitation of these children does not depend solely on the laws, but rather it also needs to be strong and continuous support from each member of the family and community. It is hoped that children can be treated with respect and dignity in order to restore the harmony in the family and strengthen family relations. One must never forget that a family is the cornerstone of a society for strong families make up a robust nation.
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