As reports of child abuse arise from across the country with regular and horrifying frequency, it is evident that Sri Lanka is facing a nationwide crisis of child abuse. Within the first 60 days of 2020, the National Child Protection Authority (NCPA) received over 2,500 cases of child abuse and by July 2020 there were 5242 cases recorded. On average, their hotline ‘1929’ to report child abuse receives about 40 such complaints a day. A Non-Profit Organization Stop Child Cruelty Trust said that by the end of 2017, there were over 17,000 cases of child abuse stalled at the Attorney General’s Department dating back as long as ten years. This figure is believed to have risen over 20,000 by the end of 2018. A study done by the NCPA also revealed that over 80% of students experienced at least one episode of corporal punishment. While statistics show an extremely dire strait, these are only the reported numbers, there are many more cases that go unreported. Laws are in place and departments and ministries are established to protect Sri Lankan children. So where are we going wrong?

1. What does the legislation mean to a family whose child has been abused?

In the family, school and community, children should be fully protected so they can survive, grow, learn and develop to their fullest potential. Millions of children are not fully protected. Many of them deal with violence, abuse, neglect, exploitation, exclusion and/or discrimination every day. There is much abuse occurring against children, all around the country, may it be physical, emotional or sexual and unfortunately a large portion of this violence stems from the loved ones/ family of the child.

I believe that strong legislation is indeed helpful to parents whose child has been abused by a third party. However, I believe that the legislation needs to be wide enough to encompass the many kinds of abuse occurring against children, especially in the 21st Century, with the increase in the use of Information Communication Technology. We still lack good law in this area to protect children from the heinous crimes that occur in cyberspace.

There are unfortunately still laws that allow for corporal punishment of the child in Sri Lanka. When many other countries have amended their laws in this area, Sri Lanka is still behind. While welcoming the recent Supreme Court judgement SC FR 197/2017 in February 2021 that held very strongly against corporal punishment, it must be noted, that judges cannot make law, thus it is essential that the Legislation sees these issues as a priority and make the necessary amendments to the laws. I do hope that the Justice Minister will soon do so.

Further, having strong laws drafted by the legal draftsmen is insufficient, if we do not have a process that enforces the law effectively. From the first point of law enforcement till the time that justice is provided to the victim, the mechanism must be victim-centric. i.e. complaints must be written down with care, speedy investigations must occur and finally, the atmosphere of the court must be favourable to the child to be a witness. At no time should there be secondary victimization or victim-blaming. For a victim-centric approach, it is necessary that sensitive training is given to policemen, court staff and judges. Through this method, the number of cases reported and the level of speedy justice provided will indeed increase.

2. Legislation and the necessary reforms.

Some of the legislation present today for children are:

• National Child Protection Authority Act No. 50 of 1988 establishes the National Child Protection Authority (NCPA) for the prevention of child abuse and protection and treatment of children who are victims of such abuse;
• National Policy on child protection was formulated by the NCPA to fulfil the above purpose;
• The Prevention of Domestic Act mentioned above applies here too;
• The Children and Young Persons Ordinance (CYPO) established the Juvenile courts which look into the Juvenile Justice procedure of juvenile delinquents and the care and protection procedure for children who are in need of it.

There is a need for a systematic approach to curtail violence against children. The solution is not purely a legal one because a legal response is reactive as opposed to preventive. Therefore, we need both a politico-social and legal response in this regard. The following are some needed responses under the two aspects.

Politico-Social Response

• The State Ministry of Women and Child Development must regard countering violence against children as a priority area.
• Children must be taught of the prevalence of threats of violence in their own homes, schools and other places, along with appropriate means of reporting and/or self-defence against such threats.
• Age-appropriate sexual education so that children will recognize when they are being sexually violated.
• The Legal response
• Reforms to the Penal Code
• The law of statutory rape should apply to all children (those under the age of 18) irrespective of if they are married or not.
• Amend section 308A - ‘like to cause him suffering or injury', as any cruelty to children should be punishable irrespective of the suffering or injury it causes.
• Repeal illustration i of Section 341 which allows flogging of a child by a principal
• Amend Section 82 to include hurt in the third explanation so that a person can be held liable for not just causing grievous hurt but also hurt to a child.

Reforms to the Children and Young Persons Ordinance (CYPO)

• Section 29 should be repealed as it allows corporal punishment when found guilty in a court
• Section 71 (6) which refers to the punishment of a child should be repealed, as it allows corporal punishment, which is still seen as a recognized form of punishment in Sri Lanka.

Reforms to the Prevention of Domestic Violence Act

• Prevention of Domestic Violence Act must have provisions relating to the monitoring of protection order and provisions relating to support services.
• Domestic violence must be considered an offence under the Act or the Penal Code and a sentence of imprisonment, fine, and compensation to be made sentencing options.

Introduction of new laws to counter cyber harassment, cyberstalking and cyberbullying against children.

The Police, the Judiciary System, the Human Rights Commission of Sri Lanka (HRCSL) and all Ministries and Departments working in the areas of child's rights must all come together and do better if we are to protect the children of our nation.

Tarangee Mutucumarana

LL.B (Hons)(London), LL.M. (London)

Attorney-at-Law

Barrister-at-Law of England and Wales

FPA YTAC Member