CHILD PARTICIPATION CHILD SPECIAL PROTECTION IN INDONESIA

THE SITUATION OF CHILDREN AND WOMEN IN INDONESIA 2000-2010 162 THE SITUATION OF CHILDREN AND WOMEN IN INDONESIA 2000-2010 163 3.5.7.2 System building approach to child protection as a strategy to build a protective environment Since signing the CRC in 1990, Indonesia has acknowledged that all children are subject to their developing capacities, and therefore are in need of special safeguards and care, and are entitled to certain fundamental rights. By ratifying the CRC, the GoI has made a legally-binding commitment to respect, promote and fulfil children’s social, economic, cultural, civil and political rights. This requires the creation of an environment where all girls and boys are free from violence, exploitation, abuse, neglect, inappropriate judicial responses, and unnecessary separation from their families. As discussed in earlier subsections of Section 3, in general the situation for Indonesian children has considerably improved, particularly with regard to access to health care and education. However, tangible gains for child protection are not keeping pace with progress in other areas. Children continue to face grave protection violations, such as sexual exploitation and abuse, neglect, detention as a first response, the worst forms of child labour, trafficking, corporal punishment, unnecessary institutionalisation and violence in their homes, schools and communities. Such violations have persisted over time, despite ongoing efforts. Global analysis, clear evidence, and systematic practices in other countries demonstrate that it is indeed possible to establish effective strategies to address child protection violations. Many child protection systems in other countries have proven to be more cost-effective and of greater benefit to the diverse range of child protection concerns, in contrast to other development approaches that have focused on individual problems or specific child protection issues. Thus, the global evolving strategic approach to child protection concentrates on developing comprehensive national child protection systems. An effective national child protection system strengthens the protective environment to safeguard children against all forms of abuse, exploitation, neglect and violence, and should consist of three interlocking components: the social welfare system for children and families, the justice system, and an integrated social behaviour change component. Such systems and components should be structured in a way that both prevents and responds to all child protection concerns in an integrated manner. Thus, the national child protection system should prevent violations from happening and protect children in all situations regardless of the nature of the violation or the context in which it occurs, including in emergencies, conflicts, and in periods of transition. The work of the national child protection system should promote attitudes, beliefs, values and behaviours that ensure children’s well-being and protection, and affirm children’s human rights, as set forth in the CRC, its Optional Protocols, and other international instruments. Social welfare and justice systems, structures and services are the ‘who’ and the ‘what’ of the national child protection system. These structures refer to the organisation of institutions, including the different ministries, departments and agencies, as well as their mandates, lines of accountability, responsibilities, capacities human, financial and physical, and services provided, including for children, and the supporting monitoring and coordinating bodies. Social welfare and justice structures support different strategies, which include prevention of and response to and mitigation of child protection violations. Social welfare systems for children and families should be mandated in law to ensure that children’s rights to protection are fulfilled by those who have a role in their care, welfare, protection and guidance, ensuring justice for children. Actors in the social welfare systems are accorded the authority and responsibility to undertake actions to prevent, respond to and mitigate the impact of any significant harm occurring to children, whether by their parents or relatives, other children, individuals, groups of individuals, or by officers of the State itself, such as teachers, police officers, and government institutional care providers. Social welfare systems within a national child protection system should prevent and respond to such violations, in all situations regardless of the nature of the violation, or the context in which it occurs, including in emergencies, conflicts, and periods of transition. Social welfare systems should provide a continuum of services from prevention to response through comprehensive primary, secondary and tertiary services. A well-functioning national child protection system also needs an integrated child protection information management system. A commitment to collecting and analysing accurate information, along with ongoing development work on child protective systems, implementation capacity and building solid policy and practices at all levels, will ensure country systems are better able to respond to protection concerns on a daily basis, as well as those that emerge in emergencies. Successful implementation of child protection programme interventions as well as child protection services in Indonesia is in part contingent upon the availability and timely use of good quality information. Availability of good quality strategic information is fundamental for guiding policies and for designing, monitoring and evaluating programmes. 388 3.5.7.3 The Indonesian child protection system UNICEF works in close collaboration with the GoI in the process of building a comprehensive Child Protection System at both national and sub-national levels. The UNICEF approach to child protection focuses on building a safe environment where “girls and boys are free from violence, exploitation, and unnecessary separation from family; and where laws, services, behaviours and practices minimise children’s vulnerability, address known risk factors, and strengthen children’s own resilience.” This approach is human rights-based, and emphasises prevention as well as the accountability of governments. 389 In addition, since 2008 the UNICEF strategy towards child protection has focused increasingly on the establishment of systems of child protection. This is an acknowledgement of the fact that child protection spreads across national and sub- national government institutions and actors, as well as across non-government ones NGOs and community groups and that it requires “coordination, integrated referral mechanisms and a strong normative legal framework…” 390 This strategy is singularly appropriate in the context of a country as large and complex as Indonesia. Child protection represents a significant challenge because it requires coordinated intervention by multiple actors across a large number of fields and sectors, both at national and sub- national levels. 391 Decentralisation has tended to multiply challenges from the perspective of coordination, but also because capacity for child protection work at the district and sub-district levels is currently low. 392 Yet provided that capacity building takes place at the sub-national level, decentralisation also offers opportunities for rapid, appropriate and well-targeted responses, which need to be maximised. 388 UNICEF 2009 Child protection information system, p1 389 UNICEF 2008 Child protection strategy, available at: http:www.unicef.orgprotectionilesCP_Strategy_English.pdf Last accessed 11 September 2010 390 UNICEF 2009 Child protection information system, piv 391 Ibid., p6 392 Ibid., p3 THE SITUATION OF CHILDREN AND WOMEN IN INDONESIA 2000-2010 164 THE SITUATION OF CHILDREN AND WOMEN IN INDONESIA 2000-2010 165 As noted above, the GoI has acknowledged the importance of child rights and child protection. The GoI commitment and efforts towards achieving the MDGs, notably in the field of health, education and poverty reduction, as already reviewed in the preceding subsections of this SITAN, are essential contributions to child rights and child protection. It is notable too that some important steps have taken place towards making development planning child-friendly notably in the RPJMN 2010-2014. Aside from ratifying the ILCP and adopting the necessary legislation for its enactment i.e., Law No. 232002 on Child Protection, other activities of the GoI include drafting and implementing National Action Plans NAPs that address specific issues as and when they emerge, including NAPs against the worst forms of child labour 2002-2007, trafficking 2002-2007, and against the commercial sexual exploitation of children 2002-2007. More recently, the GoI has also adopted the NAP on the Eradication of Criminal Act of Trafficking in Persons and the Sexual Exploitation of Children 2009-2014, as well as set up a the National Task Force on the Prevention and Response to the Criminal Act of Trafficking in Persons by Government Regulation No. 692008. At a sub-national level, regulations on trafficking have already been adopted in most of the provinces and in some districts, and it is intended for NAPs and task forces to be set up at provincial and district levels. However, previously mentioned, the NAPs are not always well funded or well implemented e.g., the NAP Against the Commercial Sexual Exploitation of Children. In effect, the commitment of the GoI on child protection has been consolidated over the past decade and this is an essential starting point to ensuring child rights and welfare. However, much remains to be done not least in ensuring that the GoI is equipped with the necessary normative and institutional framework to address the multifaceted challenges of child protection. So far the impact of interventions in the field of child protection have not always been easy to evaluate, and whilst laudable they constitute ad-hoc responses which can supplement but cannot replace the establishment of preventative approaches that identify vulnerabilities. 393 3.5.7.4 Child protection legal and policy framework From the perspective of the legal normative framework, considerable progress has taken place since the 2000 SITAN see Section 1 for a general introduction and review of the adoption of key legal instruments. The 2002 ILCP was an important step forward, but questions are increasingly being raised about whether it provides a sufficiently solid basis for child protection. To a degree this point has been acknowledged by the GoI, with recognition that legal instruments are weakened by a general failure to accompany the ILCP with related Government Regulations. 394 More broadly, a recent review of the implementation of the CRC in Indonesia by Save the Children has highlighted a series of important issues. 395 First, it pointed out that the CRC was ratified with three reservations, one of which was subsequently withdrawn but the remaining two reservations considerably weaken some general principles of the CRC, notably those relating to freedom and participation as described previously. 396 Second, the ILCP has not been accompanied by a review of existing legal provisions, some of which remain decidedly child- unfriendly. There are currently contradictory provisions, notably those relating to the definition of children and minimum age requirements that create de facto loopholes, which weaken child protection. This lack of harmonization not only takes place within the body of national laws but also between national law and legislation at the districtmunicipal level. 397 Third, technically there 393 Ibid., pp6-7 394 Sardjunani, N. 2009 Human resources development in Indonesia national medium term development, Jakarta, p28 395 Save the Children 2010 Review report Indonesia 396 Ibid., pp8-10 397 Ibid., p10 are mechanisms that allow for the judicial reviews of national and regional legislations to ensure that they are in line with the CRC through the supreme and constitutional courts. In practice however, these are cumbersome procedures with little guarantee of success for instance the constitutional court rejected the review of the Law on Manpower. Some of the mechanisms, notably the Supreme Court’s power to bring legislation and regional laws in line with upper laws such as the CRC principles, are not well known. On the whole, whilst there are avenues to pursue judicial reviews to bring national and regional laws in line with the CRC, they are in effect of limited use, rarely pursued and rarely used. Lastly, as signalled above, the ratification of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography remains a priority to strengthen child legal protection in Indonesia. Indonesia has developed a fairly progressive legal framework for the promotion of children’s rights. However, the legal framework for prevention and response to violence, abuse, neglect, exploitation and abandonment of children remains less developed. An effective legal framework for child protection is one that: designates a government agency with a clear mandate, authority, and accountability for the management and delivery of child protection services; stipulates a continuum of prevention, early intervention and response services to prevent and respond to all forms of child maltreatment; stipulates the standards, criteria, authority and procedures for making decisions about which interventions are appropriate in individual cases, including the standard for when compulsory protective services may be used; requires that all decisions regarding compulsory protective services, the separation of a child from hisher family, and out- of-home care are made by a designated government authority, subject to judicial review; and includes a binding regulatory framework for compulsory registration, accreditation, monitoring, and inspection of all government and non-government service providers. While the ILCP guarantees children’s right to be protected from all forms of violence, abuse, neglect and exploitation, it currently lacks several essential provisions of a comprehensive legislative framework for the delivery of prevention and response services. Significant progress has been made in developing detailed guidance and regulations with respect to integrated medico-legal services for victims of violence and exploitation, which provide a solid legal framework for inter-agency collaboration. However, the provision of broader child and family welfare services is governed primarily by non-binding guidance documents issued by the Ministry of Social Affairs Kemensos, previously known as DEPSOS, which are not widely known, even amongst service providers. 398 Overall, the laws, guidelines, and regulations present an approach to child protection that is primarily community-driven and charitable, responsive and forensic medico-legal, primarily victim-centred rather than family focused, and largely centred upon institution-based services. There is no clear designation of authority to make decisions regarding protective services, and guidelines and criteria for making decisions about what interventions are necessary to protect a child are limited. Instead, authority for reporting, risk assessment, intervention planning, decision-making and case management has been delegated broadly to any individual, community organisation, NGO or childcare institution engaged in providing child welfare services. Interventions and services have not been conceptualised as a continuum of options, with priority given to family preservation, and there are broad grounds for removing a child from parental care. 399 While there are relatively clear procedures for the selection and appointment of legal 398 Ibid. 399 Throughout this report, the term ‘family preservation’ means the process by which parentscaregivers and children are supported to live together in a safe and appropriate family unit. At a minimum, the term means that a child is enabled to live with a family member, perhaps extended family, and is not sent to stay in an institution.