Rationalizing child protection policy

Prof Rajiva Wijesinha, MP

I have long been worried about protection issues with regard to women and children. Apart from trying to develop structures at regional level to provide community level safeguards, I have also asked questions in Parliament about the state mechanisms available, in an effort to find out how they operate and whether they in fact contribute to abuse of the vulnerable. Shockingly, I have not received answers to these questions, and once again last week I had to rest content with a request for further time.

The Justice Minister, to whom the question had been addressed, informed me that data had to be collected from another Ministry, but it is quite appalling that answers to such questions are delayed for half a year. In the first place such data should be readily available in the responsible ministry and, if there is uncertainty about where responsibility lies, there should be much better coordination.

Further evidence of the suffering inflicted on the vulnerable through the absence of clearcut responsibilities emerged recently through the problems that have arisen with regard to Prem Nivas, and the exposure of what can at best be described as serious lapses with regard to procedures designed to ensure safeguards. A thorough investigation is also needed to see whether anything illegal has occurred. Though I am inclined to believe, having studied the case, that the nun in charge of Prem Nivas has not profited from what was going on, the Church must conduct its own internal investigation to ensure that others have not made merry with her good intentions.

Foreign adoptions

The facts of the case, insofar as I have been able to study it, are that on Wednesday November 23rd, following information conveyed to them on the hotline, officials of the National Child Protection Authority went to Prem Nivas. First they found there several children, well in excess of the number for which the home was registered. That in itself does not seem to me criminal, since obviously good Samaritans could not turn away children who came or were brought to them. But the state I think is at fault in not having a mechanism to ensure that such cases are reported, and that remedies are available to limit overcrowding. This is a point I have been trying to get across in asking for statistics with regard to houses of detention and suchlike, and the fact that I have not been answered speaks volumes for the lack of concern of those in authority.

More worryingly for the NCPA, they also found a large number of pregnant women, and babies, and also a foreign couple who had come to adopt a child. The NCPA had no record of this Chidren's Home also being a shelter for pregnant women, and providing children for adoption. It seems that Children's Homes cannot in fact provide children for adoption unless they have been registered for five years, and Prem Nivas had only been registered in 2008. Subsequently it transpired that in fact children from Prem Nivas who were adopted were recorded as having been adopted from a place called Shanthi Nivas, run by the same order.

Religious order

I was told that Prem Nivas had in fact been told in 2008 that they required Registration on three separate counts, one as a Children's Home, the second as a shelter for pregnant mothers, the third as a centre for babies with mothers. It seemed that only the first registration had taken place, and the other two suggestions had not been taken up.

However the Home had previously been providing children for adoption. In 1989 they were told that they could provide for local adoption but there were regulations that applied to foreign adoptions. That letter said that action was being taken to register the Home, but there is no evidence that this happened. Such a lapse, if it occurred, is clearly the fault of the authorities rather than the Home, and must be investigated, though one hopes the Church will also of its own accord investigate even lapses that occurred in the distant past with regard to failure to ensure adherence to regulations. Whilst I can understand that, in fulfilling a mission of mercy, corners might be cut, there should be institutional concern with regard to ensuring compliance with legal requirements as possible.

The Home continued to function for the next 20 years, albeit there were two investigations towards the end of the last century, and papers were indeed sent to the Attorney General's office with a view to prosecution. Nothing further happened, perhaps because the laws were not very clear at the time, but soon afterwards there were changes in the law and these should have been complied with, though one can see that the main fault in not ensuring such compliance is clearly that of the Probation Department, which continued to sign off on children being adopted, including several by foreigners.

Police investigations

It was clear, both from websites and what the investigation last month brought out, that these foreigners pay massive amounts for such adoptions. Some of the amounts paid are supposed to cover expenses in Sri Lanka, and I hope there is a thorough investigation of who benefits. I do not suppose for a moment that the nuns involved or the religious order was motivated by money, but they should have been aware of the possibilities of exploitation that the situation opened up. Though the sublimely innocent may not have considered such possibilities, those responsible for them should have made themselves aware of the relevant laws and procedures and ensured compliance, in particular following the Police investigations of the past and the correspondence in 2008 which had led to the formal registration as a Children's Home.

Part of the problem I think lies in the plethora of agencies with which such institutions have to deal, compounded by the uncertainty as to whether this is a subject handled by the central Ministry of the Province. Such confusion about the relevant authority can have serious consequences, and is yet another reason for rapid reform that will remove ambiguities with regard to responsibility. I have long argued in this regard that the Concurrent List in the Constitution be abolished but it would also make sense to streamline the number of ministries, and therefore the number of officials, concerned with such protection issues.

Recently, in trying to suggest mechanisms with regard to the North, I went through a list of such and found that there were supposed to be Probation Officers and Counsellors and Social Service officials and Child Protection Officers and officials concerned with women's issues, though whether they were entrusted with development or support or both I cannot recall. In those days most cadre provisions remained unfilled, though I gathered at the first meetings of Reconciliation Committees in a couple of Districts that this has recently been remedied. But responsibilities remain unclear and, given the large areas each has to cover, it would make more sense for each to have a comprehensive mandate to care for all the vulnerable of this sort in a small geographical area, with very clear mandates and checklists of required activities.

Legal requirements

This is the more urgent in view of the proliferation of teenage and unwanted pregnancies in the area. I was pleased to find in Kilinochchi efforts to open a shelter for pregnant mothers, and hope that the Church, which has taken the lead here as elsewhere is given all encouragement, while also provided with support to ensure compliance with legal requirements. However, given also that this phenomenon is occurring elsewhere in the country too, if not with the same levels of helplessness as occur in a former conflict situation, there is clearly need also for policies to promote prevention rather than remedial action. Better education with regard to reproduction matters is a must, and also the strengthening of counseling programmes in schools.

Finally, while I believe there were lapses that the Church must investigate, there were also serious lapses in the procedures followed in the investigation, including a strange decision on the Friday afternoon to have the nun in charge of Prem Niwas committed to jail by a Magistrate. This occurred miles away from the area in which the investigation had occurred, an absurdity explained by the Magistrate having been off for the week. I gather that this was done without consulting officials of the NCPA or superior officers in the police, which suggests a very lax approach to the gravity with which such measures should be contemplated. The Police official concerned should be held to account for such an aberration, with inquiry as to whether consultation did take place.

In any case the IGP should lay down guidelines that make it clear that committals should not be sought except in cases in which there is more than mere suspicion of illegal conduct. The country is no longer under Emergency Regulations, and one reason for welcoming the return only to exceptional measures under the Prevention of Terrorism Act is that, whilst one can understand exceptional measures under the law to stop terrorist activity, far too often the measures were used because of laziness or incompetence with regard to investigation of ordinary crimes and even misdemeuanours.

I should also note that the press coverage that followed seemed excessive, and in some instances seemed designed to create tensions. We are of course used to this, to wild assertions based on hearsay, and since this has now been sanctified by a report presented to the UN Secretary General it is hard to single our own press out for criticism on this count. But the trouble with such excesses is that it puts people on the defensive, and therefore investigation of any possible problems is hampered.

Social workers

My consistent view has been that allegations which are specific need to be investigated, though initially this should be an internal matter when clear criminality is not apparent. When dates and times and places are on record, with regard to either commission or omission, relevant authorities must act, and I trust the Church will go ahead in this instance, and assist the police and other responsible authorities with investigation of the lapses that have occurred.

In addition, I should note, the police should play their part in promoting preventive measures and work together with active social organizations too. I hope very much that Women's and Children's desks are activated in all police stations, and liaise with the community to provide support for the vulnerable. They should involve not only social workers, of all descriptions as outlined above, but also religious orders concerned with providing shelter and support, and also educationists and medical personnel who could lead communities in ensuring protection, counseling and advice and assistance when legal proceedings are in order. The existence of such support groups will go far to ensuring that legal proceedings will need to be few and far between.