POLICY RESPONSES AND CHALLENGES: NATIONAL CHILD PROTECTION SYSTEM IN INDONESIA
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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.
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guardians and adoptive parents, there are no similar standards or approval procedures for foster care or placement of a child in a childcare institution.
A recent report on child and family welfare services in Indonesia commissioned by the Ministry of Social Affairs recommended a series of interventions in order to address these issues.
400
1. Comprehensive guidelines for the prevention and response to violence, abuse, neglect and exploitation of children should be issued, preferably through a strengthening of the 2002 ILCP
or if not feasible through the issuance of comprehensive and binding government regulation. Whilst a new Law on Social Welfare should lead to improvements on the general delivery
of social services, those provisions are currently too broad to address the specific needs of children and families.
2. Measurable standards for the quality of care in relation to child and family services should be set up through binding ministerial regulations. A licensing system linked to the national
standards of care will require service providers to fulfil at least minimum standards. 3. Protocols for inter-agency coordination should be developed, and roles, responsibilities,
information sharing, processes and procedures for referral should be defined. The child welfare authority should have a central decision-making role especially with regards to protective
interventions in contrast to punitive procedures against perpetrators.
4. Finally, the protocols for inter-agency coordination should emphasize integrated service centres, but should not be dependent on a physical location.
In the justice sector, Law No. 31997 on the Juvenile Court is not fully in line with international standards, which has pushed the GoI to draft a completely new juvenile justice bill in line with
the CRC and other international standards. The current Juvenile Court Law sets the minimum age of criminal responsibility unacceptably low at the age of eight years, as the Committee on the
Rights of the Child has stated. It furthers criminalizes status offences such as child misbehaviour, fails to set sufficient guarantees to make detention a measure of last resort in practice, and does
not incorporate mandatory diversion schemes at the different stages of the justice process.
401
3.5.7.5 Coordination in child protection Coordination and harmonization are important aspect of child protection system and these
demands are particularly challenging in the context of a country as large, diverse and bureaucratically and institutionally as complex as Indonesia. There are several entities that
are dedicated to aspects of child protection. These specific entities include the Indonesian Commission of Child Protection set up in 2004, which is responsible for the socialisation of child
rights in the law as well as for reporting on Indonesia’s progress with the implementation of the CRC.
402
Another key institution is the Ministry for Women’s Empowerment and Child Protection KPPA where the Directorate on Child Protection is located.
403
The Directorate is headed by a Deputy, at Echelon 1 level. The central remit of the KPPA is to coordinate, monitor and evaluate
the implementation and protection of child rights. The KPPA is involved in policy development, data collection and monitoring, but not in the delivery of services.
400 Child Frontiers 2009 Child and family welfare services in Indonesia 401 Ibid.
402 Ibid,. pp24-25 403 Ibid., pp23-23; Note: The Ministry changed in 2009 from the Ministry of Women’s Empowerment to the Ministry of Women’s
Empowerment and Child Protection. Some offices at the provincial and district levels have also changed the nomenclature.
KPP structures are located in the centre of the state apparatus. Similar structures are established at the provincial and district levels.
404
While in the past the structures were formed mostly for the Bureau of Women’s Empowerment, the offices in most provinces have been transformed into a
Badan agency often combining women’s empowerment and child protection with other tasks.
405
However, as the case studies in Section 4 will demonstrate, these are still in incipient form. Several key ministries and departments have critical responsibilities in child protection, such
as the Ministries of Social Affairs, Health, National Education, and Justice and Human Rights. However, given the number of actors, this general structure is proving insuficient to tackle
the challenges of child protection because it is weak in providing a lead actor, coherence and coordination, which weakens the prospects of effective coordination and harmonization
throughout the field of child protection, and not solely with regards to data. These institutions and entities have been depicted as being insufficiently developed and funded to be in a position to
fulfil their remit.
406
3.5.7.6 Service delivery Social welfare systems should provide a continuum of services from prevention to emergency
response through comprehensive primary, secondary and tertiary services. Studies have shown that Indonesia has made good progress to develop tertiary services for children who have
experienced various violations of child protection, while secondary services are inadequate. In general terms, effective child protection in Indonesia requires the continued development of the
resilience of the family, through social work functions with vulnerable families and the strategic use of social cash transfers to decrease a family’s vulnerability to various shocks.
407
Indonesia has not yet developed comprehensive, focused national or provincial level strategies for the prevention of violence, abuse and exploitation of children through, for example,
systematic programmes on parenting skills or targeted behaviour change. There are some creative media-led awareness campaigns, generally focused on prevalent issues such as
traficking and child labour. However, the more common approach to ‘socialisation’ and ‘advocacy’ has been the distribution of informational materials and presentations to communities
on new legal provisions and policies. During the interviews for the study by Child Frontiers 2009, the scope and impact of these campaigns were questioned by some respondents. They
felt that traditional, more spontaneous methods of imparting information such as through village meetings and religious discussion were more effective than organised campaigns. Whatever
the method, it was suggested that campaigns need to be more sustained and reach the wider population, rather than a few targeted marginalised communities.
408
Secondary prevention, or early intervention services, are those directed at children and families who have been identified as vulnerable or at risk of maltreatment or neglect. Early intervention
services target families that are already at risk of engaging in abusive behaviours, in order to change those circumstances before they result in actual harm to a child.
404 The Bureaus are divisions in the provincial or district governments, which report to the head of the secretariat of the provincial or district government. These coordinate policy but do not implement programmes.
405 A Badan is a technical agency that supports the head of the region, notably with the development and implementation of specific provincial or district policies.
406 Save the Children 2010 Review report Indonesia 407 Child Frontiers 2009 Child and family welfare services in Indonesia
408 Ibid.
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Secondary level services designed to identify families and children at risk remain limited in all three provinces studied in the Child Frontiers study 2009
409
. It is hoped that the establishment of community social workers will help to address this important gap. At present, community
social workers, supported by Dinas Sosial the district-level institutions responsible for the delivery of services under the Ministry of Social Affairs, have concentrated on ensuring children’s
basic rights and have relied upon cash transfers and economic empowerment to remedy family conflict and breakdown. While financial assistance to poor families is an essential component
of a welfare system, this cannot be prioritised at the expense of family strengthening services. In all three provinces, there are customary mechanisms in place to support parents and protect
children. These need to be maintained in changing community environments, and good practices formalised.
Tertiary interventions are those use to respond to circumstances where a child is at serious risk of, or is already being abused, exploited, neglected, or harmed in any way. This requires a
continuum of interventions, including both voluntarycommunity-initiated interventions in less serious cases mediation, counselling and advice giving, and community monitoring, as well as
compulsory state interventions which must be used where children have experienced or are at risk of serious harm. This includes structured supervision and family support services, such as
parenting programmes, family and individual counselling, therapeutic treatment programmes, andor temporary or permanent removal of the child and placement in alternative care. Decisions
regarding the use of compulsory measures are generally made through a formal administrative or court process, based on the assessment and recommendations of the social welfare authority.
In Indonesia, tertiary responses have focused primarily on the development of integrated medico- legal services for responding to reported cases of violence, abuse and exploitation, and in the
development of specialised residential rehabilitation homes RPSA, Rumah Perlindungan Sosial Anak. Through the establishment of specialised police units and hospital-based integrated
service centres PPT, Pusat Pelayanan Terpadu, child victims of the most serious forms of violence, sexual abuse, and trafficking now have access to medical care, psycho-social support,
legal advice, and child-sensitive investigative procedures. However, as a hospital-based, crisis intervention model, PPTs generally address only the most serious cases of violence and
exploitation; predominantly sexual abuse and physical violence causing injuries warranting medical attention.
While these new services provide temporary sanctuary and care, they should be considered as elements in a wider continuum of tertiary services, rather than a comprehensive solution.
The PPTs, for example, are able to provide essential medical and forensic services for abused and exploited children. They do not, however, have the mandate or capacity to case manage
or assess the family environment before a child is returned home, or to ensure that children receive appropriate care and protection after they leave the centre. These limited prevention
strategies are symptomatic of a broader reactive approach to family and child welfare. Without early identification mechanisms, services provided by government agencies and NGOs tend to
respond when a family or child is already in crisis. This partially explains the over-reliance on the emergency response services of the PPA pelayanan petirahan anak, PPT and RPSA. The UNICEF
and Child Frontiers report 2009 drafted four recommendations that are critical to making the current welfare system more responsive to the needs of women and children:
409 Ibid.
1. Promotion of behavioural change through the elaboration of comprehensive strategies to promote changes in public attitudes towards child protection issues reinforcing the
importance of family-based care and introducing standardised approach to parenting skills education through organisations such as the PKK and women’s empowerment clubs.
2. The development of a continuum of services between prevention and response services both through voluntary community measures e.g., family mediation and more formal protective
interventions, up to compulsory measures such as supervision orders or the removal of the child from the home for the more serious cases.
3. The clarification of decision-making processes and authority, which includes both the setting up of standardised procedures and criteria reporting, assessment, intervention planning and
case management and the development of designated institutions and processes in cases of interventions relating to childcare and prevention. The report highlights the importance
of accountable government agencies, and that all decisions regarding the removal of a child from the care of parents should be madeapproved by designated government officials
subject to judicial review.
4. The gradual development of specialised community-based services to support children who are vulnerable, neglected or victims of violence or exploitation. The report emphasises
the need to set up effective referral networks through government, community and NGO providers, as well as the need for the Ministry of Social Affairs and the Dinas Sosial the
district-level institutions responsible for the delivery of services under the ministry to develop more specialised child protection services parenting skills programmes, parenting support
groups, counselling services, temporary respite care, therapeutic interventions for drug and alcohol abusers, structured family supervision, and kinship and foster care arrangements.
3.5.7.7 Ongoing challenges to child protection advancements: A summary Since the last Indonesian SITAN in 2000, Indonesia has made considerable advances with child
protection. The signing of the CRC and its subsequent ratification through the adoption of the 2002 ILCP are foundational events for child protection in Indonesia. However, throughout the
2000s it has become slowly apparent that the ILCP in its current guise is not as solid or as far- reaching as once envisaged. The overview on child protection in Indonesia shows uneven
progress in the consideration of various aspects of child protection. For instance, the issue of children with special needs is still badly neglected and information, data and research are
scarce. However the situation of children with special needs, especially those living in poor rural households, needs attention. Few rehabilitation or appropriate access facilities exist. This
contravenes the 2002 ILCP, which stipulates that children with special needs have a right to access basic services. Thus child labour trafficking or birth registration have received considerable
attention but this has not been replicated with other vulnerable children such as children living on the streets, children forced into prostitution, children in conflict with the law, or children
with special needs. In these cases, not only are key vulnerable group being left behind but legal protection is insufficient and the judicial system and security forces are frequently part of the
problem rather than participating in the construction of child protection.
Furthermore, even in areas that receive considerable attention, impact is uneven. For instance, the issue of trafficking has mobilised attention and led to the enactment of a National Action
Plan, but this was then poorly funded and implemented. By contrast, child labour also received considerable attention and implementation of a National Action Plan, but in that case,
implementation and impact were far more satisfactory. Uneven child protection reflects in part prioritisation by the GoI and in part capacity issues. In some cases there are clear contradictions
between national and local level institution’s approaches to child protection as with birth
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registration - an area of substantial and energetic intervention by the GoI at the national level but neither harmonized nor well implemented at provincial or district level. Elsewhere, child
protection can be weakened too by some societal beliefs and practices, for instance with the issue of child marriage, where change sought by the GOI has failed to take place. However, the
picture is not altogether bleak and it is important to note too that notions of child rights and child protection are becoming increasingly disseminated and accepted both across society and state
institutions. For instance, a damning report by UNICEF, Save the Children and the Ministry of Social Affairs 2007
410
on alternative care has led to positive reactions by the GoI in addressing the issue, rather than ignoring or rejecting the findings.
At present, child protection in Indonesia, whilst progressing, is still incipient and further improvement requires addressing a complex blend of systemic, institutional and attitudinal
changes. It has been shown throughout this subsection that legal protection needs to be strengthened. In cases, this means ensuring that legal provisions be adopted to address specific
concerns, and in other cases harmonization across the national body of law need to take place as well as harmonization between national and provincialdistrict levels, to ensure that all are in line
with child protection. This overview has also underlined the central importance of improving data and information management if appropriate policies are to be conceived, appropriately funded
and then implemented. For child protection to take root and become increasingly effective in Indonesia, there is a need to move from ad-hoc and uneven responsiveness towards the adoption
of comprehensive, coordinated and holistic approaches that are both responsive and preventive. As detailed here, the setting up of a child protection system across the national territory is a
significant undertaking for the GoI, but it is a precondition to Indonesia meeting its international commitments, and its commitments to ensuring the welfare and well-being of Indonesian
children.
410 UNICEF, Save the Children and Ministry of Social Affairs 2007 Someone that matters
SECTION 4:
SUB-NATIONAL CHALLENGES AND INNOVATIONS:
CHILD WELFARE UNDER DECENTRALISATION
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INTRODUCTION
Section 2 provided an overview of some of the major institutional changes which have taken place over the last decade. One major institutional change discussed in Section 2 was the
introduction of decentralisation, which has involved the transfer of decision- and policymaking powers and budgetary control for many key sectors of governance mainly to the district
municipal level in response to the demands for closer governance and greater self-rule for the diverse regions throughout the country. To reiterate, decentralisation was introduced through
Laws No. 22 and 251999, and was implemented in 2001, and later revised through Laws No. 32 and 332004. During the same period, these new laws and other laws allowed for the popular
election of the president, governors, district heads and mayors and village heads. Section 2 argued that decentralisation provided the opportunity:
• To better address child welfare at the provincial and district levels, in that local government can now respond to the very specific characteristics of each locality in terms of child welfare;
• To design innovations relating to child rights and welfare at the sub-national level through greater discretion to invest resources in creating child-friendly environments at district and
provincial levels; and • To improve public participation in sub-national policymaking through the musrenbang system
musyawarah perencanaan pembangunan, or consultative development planning forums, where practitioners, local leaders, community members, youth and even children can be
involved in priority-setting and development planning, which have the potential to shape local development and, ideally, to institute pro-child policies.
However, Section 2 also argued that decentralisation presents a number of challenges including: • Building the uneven capacity of the district and provincial level executive and legislative
arms of government and the civil service across the country, to enable better design and administration of local level policies and regulations;
• Improving the quality and performance of the growing number of civil servants at the sub- national level;
• The complexities of designing and passing necessary government regulations, directives and guidelines at the provincial and district levels, which provide the supporting regulatory
framework for policies, programmes and action at the sub-national level; • The pressure on budgets, resources and revenues with the creation of a plethora of new
provinces, districts, cities, sub-districts and villages, and in these new places the challenge of creating the new institutional structure for government; and
• Ensuring an even spread of quality of service delivery and administration. Section 4 aims to examine the sub-national context under decentralisation for different aspects of
child welfare through four provincial case studies. The section begins with further discussion of the decentralisation and planning processes. Following this, health and nutrition are examined in
East Nusa Tenggara NTT. Special Autonomy and HIV and AIDS are the focus of the case study on Papua. In Aceh, both Special Autonomy and education are examined, and finally, in the case
study on Central Java, there is discussion of child protection and policy responses to the problem of children living on the streets. These case studies should serve as examples of the practical
implementation of decentralisation and Special Autonomy in different contexts, illustrating examples of the policy innovations and constraints under decentralisation in relation to the
resources available, institutional capacity to deliver services, and the particular vulnerabilities prevalent in different provinces.
These case studies are not exhaustive sectoral reviews. Instead, they aim to elucidate the views of government policymakers and practitioners on the innovations they use to improve child
welfare and the challenges they face under decentralisation in relation to the particular theme of each case study. Each case study begins with a very brief overview of provincial and district
indicators, similar to the main indicators discussed at the national level also provided in further detail in annexes 4.2-4.5, before a larger discussion of the theme of the provincial case study.
In terms of the study of policy innovations and constraints at the end of each subsection, these discussions builds on the former subsections, rather than replicating the discussion of the entire
process in cases where the findings are similar. For example, the case study of NTT examines the complications in the processes of decentralisation for malnutrition and health policy, planning
and implementation, with a detailed examination of the planning and institution building process. While the fieldwork in Papua also examined the same aspects and the case study on Papua does
illustrates similarities and differences, this subsection instead focuses on the added complications in planning and institutional building processes under the Special Autonomy Laws in that
province. By the end of the four case studies, readers should have a clear understanding of the policy innovations and challenges under decentralisation, as well as the factors that contribute
to the vulnerability examined in each province, in the areas of health and nutrition, HIV and AIDS, education and child protection. Throughout the case studies, life histories of children are
included, and the relevant issues are further elucidated at the end of the section, in the subsection that explores child agency in difficult contexts Section 4.6, The voices of children. Section 4 also
demonstrates not only that disparities exist at the sub-national level, but also that each province has a unique set of constraints and challenges in terms of child welfare.