Juvenile Justice Policy Gaps Identificat

Pakistan Journal of Criminology
Volume 1, No. 3, October 2009
Contents
Editorial i
Comments from Anne Hollis Reese, L.I.C.S.W.
ii
Child Victims
Prof. Gwyneth Boswell
Investigative Police Practice in the UK: Achieving Best Evidence in 1
Work with Young Victims of Abuse
Prof. Julia C. Davidson & Prof. Antonia Bifulco 19
Alternatives to Imprisonment for the Juveniles: A Case Study of Pakistan
Mirza Mashhood Ahmad 47
Missing Children and The NWFP Police: Missing Children Centre
Fasihuddin 73
Child Sexual Abuse in Pakistan: The Need for an Indigenous Scientific
Knowledge Base, Effective Policy Making and Prevention
Uzam Gillani 81
A critical Review of Juvenile Justice Law in Pakistan
Muhammad Saeed 97
Judging Juvenility: Determination of age of Juvenile Offenders under
Pakistan's Juvenile Justice System
Khurshid Iqbal 105
Juvenile Justice Policy: Gaps Identification and Role of Key
Stakeholders in Pakistan
Imran Ahmad Sajid 119
Criminal Justice for Juveniles: International and National Law
Abdul Aziz & Kamran Adil 139
The Plight of Street Children in Quetta, Balochistan
Shakeel Ahmed Imtiaz 149
Glimpses from Launching of Second Issue of Pakistan Journal of
Criminology 169
Visit: http://www.pakistansocietyofcriminology.com
Email:pscatpeshawar@yahoo.com
Free access to tables of contents and abstracts.
1
Editorial
As criminology continues to grow and develop, it generates new ideas, thoughts, and
approaches, and new fields of inquiry are uncovered. Until recently, child abuse and neglect,
and crimes against children were discussed under the heading of family violence. In addition,
most countries did not have separate juvenile justice legislation, or separate child safety
bureaus, or comprehensive juvenile justice systems. That began to change subsequent to the
United Nations Convention on the Rights of the Child (CRC) of 1989. The last two decades
has seen remarkable progress in this juvenile justice arena, particularly in the developing
world, initiated not only by governments, but also by local, national, and international NGOs.
Pakistan is a signatory to the CRC and has taken some positive steps in this arena, such
as the passage of the Juvenile Justice System Ordinance of 2000. However, Pakistan has not
shown much progress with respect to child protection issues, though a draft bill is under
consideration before the legislature. There is much yet to be done - enhanced levels of data
collection on crimes against children and juvenile offenders; the establishment of child
protection centres; providing proper legal, medical, social and psychological support to
child victims; creating special units in the law-enforcement agencies to focus on cases of
crimes against children (particularly commercial sexual exploitation and child trafficking);
and providing immediate relief, security, rehabilitation and re-integration services to
children in need. In addition, there is a specific need within Pakistan to protect children from
being indoctrinated by the radical and militant extremist groups.
This current issue of the Pakistan Journal of Criminology focuses on these concerns.
We have received some much appreciated support from Save the Children-Sweden for
publication and distribution of this special issue. We must note that the views expressed by
the authors are their own and are not necessarily reflective of the policies and positions of
Save the Children-Sweden. We also wish to expresses its special gratitude to Prof. Gwyneth
Boswell (UK), Prof. Julia Davidson (UK), and Prof. Belfacu Antoni (UK) for contributing
their articles to this special issue. Our special thanks go to Jawadullah Khan (Save the
Children-Sweden), Salman Khan (Director Human Rights, NWFP), Nasiruddin Mashood
Mirza (Director Federal Ombudsman's Office), Syed Wajid (UNIFEM), and Saeed Khan,
Zia-ur-Rehman and Waseem Ahmad for taking personal interest in the special issue of the
Pakistan Journal of Criminology.
Fashiuddin (PSP)
Editor-in-Chief
ii
Comments from Anne Hollis Reese, L.I.C.S.W.

I am pleased and honoured to send comments on the Pakistan Journal of Criminology,
whose first two issues have been sent to me by my old friend, Fasihuddin Ashraf. These
arrived just as I returned to Pakistan for the first time in 14 years and just as the third issue is
about to appear. Fasihuddin has told me that it will focus much on children, including topics
relevant to the kind of work that I did with a Pakistani NGO in Islamabad for one year, 1994-
95. It was then that I met Fasihuddin, who has kept in touch ever since.
The journal seems excellent and is an impressive venture. It is remarkable to find such
a range of sensitive topics covered locally in a climate of much social and political difficulty.
Fasihuddin has shown great courage in his continuing determination to take on problems that
require serious attention and work.
I shall add a few words concerning my qualifications to comment on such matters. I am
a Westerner and have been a psychiatric social worker for several decades, with much
experience in the diagnosis and treatment of children and adults, as well as training of a great
range of health and mental health professionals - psychiatrists, pediatricians, psychologists,
medical students, nurses, and psychiatric social workers like myself. I have worked in
several countries and cultures.
In the mid-90's, the NGO mentioned above hired me as consultant and trainer for the
first child sexual abuse program established in this region. This was a very exciting
opportunity for me and also gave me considerable knowledge of the nature and extent of
such problems in this country. It has been wonderful to follow the enormous success and
expansion of this Pakistani program, which has flourished without foreigners like me. I have
just returned to Islamabad for a few months of consulting to other private local organizations.
I have loved this country and been fascinated by it for decades. It is a privilege to be here
again. I am greatly looking forward to reading the third issue of the journal and hope to see
other positive developments.
After I sent the above words to Fasihuddin, he kindly transmitted to me Uzma Gillani's
very thorough article on child sexual abuse, for the journal issue that is about to appear.
Fasihuddin asked me for additional comments. It seems appropriate now to mention that the
program for which I worked in the mid-90's was Aangan and that I have kept in touch with
their outstanding work ever since then. I expect to meet with them almost immediately.
I certainly agree that more research, including statistics, is essential. I was pleased to
see that mentioned also in Naushad Ali Khan's article on suicide bombers in the first issue of
this journal; however, as a clinician, I want to express a concern. I believe that clinicians
who know how to work with victims of abuse or have the chance to learn to do so should
mostly not be heavily engaged in gathering statistics. This takes away from some victims the
chance to get help and treatment, so that their lives will be less damaged and their futures
psychologically more positive. There is not nearly enough such treatment in Pakistan and
probably not in any country, for that matter. More training of health and mental health
professionals is crucial and must sometimes be quite specialized. The treatment of abused
children, as well as adults who were abused in childhood, is technically difficult and also
emotionally stressful, even for experienced professionals.
On the topic of laws, I surely don't need to mention that I have no expertise on this in
Pakistan. Yet I have heard of many instances where an equally great problem seems to be the
implementation of laws that, in some cases, have existed for years.
iii
FInally, I think that organizations must work together on all of these matters, rather
than altogether independently or even in competition. I know of many outstanding
Pakistanis able to contribute to, and to collaborate in, such work. I also know NGOs, in
addition to the few mentioned here in Uzma Gillani's article,, that are doing serious work.
Just since returning, I have heard of a number of significant efforts by individuals and
organizations, including that of Pakistan Society of Criminology. These are very
encouraging signs.
My congratulations to all who have worked on the journal.
Anne Hollis Reese, L.I.C.S.W.

Psychiatric Social Worker
Pakistan Journal of Criminology Volume 1, No. 3, October 2009, pp. 1 - 18
1
Child Victims
Abstract:
This paper provides some critical reflections on the relatively neglected topic of child
victims. In an attempt to address some current knowledge gaps, it considers the scope of
available crime data, examines how children may be victims on the grounds of their personal
characteristics, and looks at children's relationship to prevailing legislation and societal
power dynamics, both in the UK and abroad. In highlighting some of the consequences of
child victimisation, it argues for the shoring up of both interprofessional responses and
potential prevention strategies.
Key words:
Child Victims / Victimisation / Homicide / Abduction / Smacking
Introduction
The law in England and Wales classifies a child as anyone under the age of 18
years. This means that any consideration of child victims necessarily spans the range
of those who might be victimised as babies, as toddlers, as primary schoolchildren,
and as early or late adolescents.
Child victims have tended to be somewhat overlooked as a category within the
literature on victimisation. This is in spite of the fact that there is much in the
published domain about the types of crime which have frequently been perpetrated
upon them. In all likelihood this is an omission which reflects both their structural
location within family/state care, education and community systems and the
priorities of the adult world upon which they are dependent.
This article will examine the ways in which crimes against children may be
categorised, how society and the law respond to children as victims and why some
children may be victimised on the grounds of their personal characteristics alone. It
will chronicle some of the outcomes of victimisation as a child, and consider
appropriate methods of working more proactively to support those who are, have
been, or may become child victims.
Categorisation of and Data about Child Victims

There is currently no single national source on the nature and prevalence of
childhood victimisation. Discrete sets of statistics on specific crimes to children can,
however, be found in annual publications such as Criminal Statistics in England and
Wales; the British Crime Survey sections on the self-reports of 12-15 year old
2
victims; Mortality Statistics sections on children up to 15 years; Children and Young

People on Child Protection Registers; and in one-off pieces of published research
about, for example, the prevalence of school bullying and particular types of child
abuse, both of which, in common with around 58% of all offences (Ashworth, 2000)
are liable not to be reported to the Police. This constitutes a major omission in the
fund of data which is available about children.
As the Gulbenkian Report of the Commission on Children and Violence notes,
'…children suffer far more violent victimisation than do adults' ( Calouste
Gulbenkian Foundation, 1995: 256). The report argues that this level of
victimisation is because of their largely dependent status, which renders them more
vulnerable to 'conventional' crimes such as homicide and assault, to family violence
including violent punishments, sexual abuse by parents and others, and assaults by
siblings, and to institutional violence such as bullying in schools. To this list might
be added abuse and bullying in children's homes, secure units and juvenile Young
Offender Institutions (YOIs), in all of which children and adolescents have
variously sustained racist attacks, other serious assaults including rape, and have in
some cases died or committed suicide as a result.
Two reports by Sir William Utting (1997, 2004) set out graphically the way in
which social care systems are still failing to safeguard children living away from
home. Reference is made, for example, to the Staffordshire 'Pin Down' Inquiry
(Levy and Kahan, 1991) and to the case of Frank Beck, a social work training
manager who was found to have carried out systematic rape and buggery in
Leicestershire Children's Homes from 1973 to 1986; and to the Clwyd Inquiry
(Waterhouse, 2000) which revealed abuse of children in residential care in the
possible context of a paedophile ring.
Between 1990 and 2002, 152 juveniles died in custody as a result of self-
inflicted injuries (Amnesty International, 2002).Amnesty's report chronicles
prominent cases of children who have died in custody in recent years including:17-
year old Kevin Henson who hung himself in Feltham YOI in 2000, not having been
placed on suicide watch despite known emotional and anxiety disorders; and 16-
year old Kevin Jacobs, who also hanged himself in Feltham, having been placed on
suicide watch but with lack of clarity as to whether hourly checks had been carried
out during the night he died.
As Goldson (2002:9) notes, secure accommodation which is for the express
purpose of restricting a child's liberty, 'straddles the conceptual space that
awkwardly separates the child welfare and youth justice systems'. Deaths in secure
care during 2004 included 15 year old Gareth Myatt who died while being restrained
in the privately-run Hassockfield Secure Training Centre, and 14 year old Adam
Rickwood, the youngest person ever to die in custody, who took his own life also in
3
Hassockfield. In this connection, it is material to note that children in England and

Wales are criminalised from the age of 10, and have been more likely to be so since
Jack Straw, as Home Secretary, rescinded the rebuttable presumption of doli
incapax (incapable of understanding the difference between right and wrong) for
10-13-year olds, in 1997, following its unsuccessful application to the two 11-year
old children convicted of the murder of James Bulger in 1993. In the majority of
European countries, children's offending would be a matter for the welfare agencies
up to at least the age of 14, and in some cases up to 18 years.
Wales are criminalised from the age of 10, and have been more likely to be so
since Jack Straw, as Home Secretary, rescinded the rebuttable presumption of doli
incapax (incapable of understanding the difference between right and wrong) for
10-13-year olds, in 1997, following its unsuccessful application to the two 11-year
old children convicted of the murder of James Bulger in 1993. In the majority of
European countries, children's offending would be a matter for the welfare agencies
up to at least the age of 14, and in some cases up to 18 years.
Finkelhor (1997) suggests a framework of four categories for child victimisation:
! Conventional specialised crimes homicide, assault (on young children mostly

by parents; on adolescents mostly by peers and other acquaintances); sexual
assault; theft and robbery.
! Child abuse (emotional, physical, sexual) and neglect.
! Specialised crimes abduction of children by (a) strangers or (b) family
members
! Non-criminalised violent acts - e.g. assault by other children including
siblings; Corporal punishment (including smacking); child prostitution. Child
labour, female circumcision and witnessing domestic violence (where a child
may be an indirect victim) constitute other examples.
Although exact numbers cannot be ascertained through current data systems,
some of the victimisation types referred to in each of Finkelhor's four categories will
be discussed here.
Homicide
Homicide is the rarest, but clearly the most serious crime to be committed on
children. Criminal statistics show an average of 79 child deaths per annum for the
last 28 years (babies being the most at risk); in 78% of these cases, parents are the
principal suspect. (Creighton and Tissier 2003). Those killed by friends,
acquaintances, other associates and strangers are, thus, very much in the minority.
4
It is important, however, to underline that there is general dissatisfaction with

the reporting, recording and analysis of deaths of children and young people.
Current statistics are thought to afford a significant underestimate of prevalence. As
one example, in the case of suspicious deaths of babies and younger children, where
parents deny guilt and there is insufficient evidence for a prosecution, open verdicts
are usually recorded. As shown earlier, annual mortality statistics published by the
Office for National Statistics do not include rates for 16 and 17 years olds who are at
much higher risk of death than younger children.
Child abuse
In the UK, child abuse is generally recognised as belonging to one or more of
the categories of physical, emotional, sexual abuse or neglect. There is debate about
the definitions of these terms, but those seeking more information may refer to the
Government guide to inter-agency working to safeguard and protect the welfare of
children (Dept. of Health et al.1999). As with child deaths, the prevalence of child
abuse is generally believed to be seriously under-reported and recorded and also
frequently to go unrecognised. Recent figures suggest the following in relation to
the year 1st April 2002 to 31st March 2003.
! There were 4109 reported offences of 'cruelty or neglect of children' and 1880
of 'gross indecency with a child under the age of 14' in England and Wales
! There were 30,200 children's names added to child protection registers in
England
! There were 570,000 referrals concerning child maltreatment to social services
departments in England
A breakdown of all these cases shows the following proportions: Neglect, 39%;
Physical abuse, 19%; Emotional Abuse, 18%; Sexual Abuse, 10%; Mixed
categories, 15%. (Creighton, 2004). As in the case of child deaths, much of the
abuse is parental.
Child Abduction
Abduction constitutes a very small proportion of all offences against children.
In 2002/3, just over half of abductions were attempted only; 56% involved a stranger
and 47% of these were unsuccessful. Of the remaining 9% abductions which were
successful (68 in number) at least 6% were sexually motivated. These figures
represented an increase on previous years, but this is generally put down to greater
public awareness, and higher levels of reporting and recording (Newiss and
Fairbrother, 2004).
5
Smacking
In their national study of parents, children and discipline in the UK, Ghate et al.
(2003) included in the category of severe violence, 'smacking/slapping of the head
or face', and found a rate of 90 per 1000 children in this category. Eight European
countries have now imposed a complete ban on the physical punishment of children.
In England and Wales, smacking remains legal but, since the Human Rights Act
1998 (incorporating the United Nations Convention on the Rights of the Child,
1989) came into force in October 2001, courts have been obliged to consider
whether punishment amounts to 'reasonable chastisement'. The factors to be
weighed are the nature and context of the treatment and its duration; its physical and
mental effects and, in some circumstances, the sex, age and state of health of the
victim.
At the same time, protection from harm is as much of a human rights issue for
children as it is for adults - arguably more so as they are both smaller and more
fragile. The Convention on the Rights of the Child may now have acquired the status
of international law, but children cannot on their own seek justice through the courts
when they are victimised (frequently within behind the closed doors of their own
family) and their Convention rights are breached. On the day this article was
finalised ( 2 November 2004), a majority of MPs voted against an outright ban on
smacking within the new Children Bill, and in favour of an amendment allowing
light chastisement, with the caveat that no grazes, scratches, minor swellings, cuts or
bruises should ensue. In the event that they do, the maximum sentence will be 5
years' imprisonment. It was notable, however, that the Government allowed a free
('conscience') vote on fox-hunting but retained its three-line whip on the question of
physical punishment to children.
Victimisation on the Basis of Personal Characteristics

As is the case for adults, some children are more likely to fall prey to
victimisation by reason of identity-based characteristics such as gender, race,
religion, disability and so on:
Certain groups of children are particularly at risk of violence, including

disabled children and children from some minority ethnic groups. Victimisation
statistics in crime surveys and other interview research provide prima facie
evidence of discrimination. Racial harassment, always a form of violence and
often involving physical violence, threatens many children in the community and
in schools.
(Calouste Gulbenkian Foundation, 1995: 115).
6
Children may be singled out for school bullying and find themselves victimised
as members of families of black and ethnic minority origin and/or of minority
religions. Added to this is the risk of such victimisation going unrecognised by
schools and criminal justice agencies because of institutional racism (Macpherson,
1999) and despite the requirement of the Race Relations (Amendment) Act, 2000 for
Public bodies to have due regard to the need to eliminate unlawful racial
discrimination. More recently, the misperception of Muslims as terrorists, linking
them with al Qaida and the attacks on the World Trade Center on 11th September
2001, has triggered well-documented victimisation and 'hate crime' towards
Muslim families and communities. The Nottinghamshire Common Monitoring
Scheme found that 11.4% of the victims of racially motivated crime were under the
age of 10 years (Midlands Probation Training Consortium, 1998). Other studies
have shown the pervasion of racial bullying, harassment and attack across the
lifespan, beginning in childhood. (Bowling, 1998 Clancy et al.2001; Garland and
Chakraborti, 2004)
In terms of gender characteristics, a review of the research shows that boys are
more vulnerable than girls to physical abuse and non-family assaults, whilst girls are
more vulnerable than boys to sexual abuse (Calouste Gulbenkian Foundation, 1995).
Female children are particularly (though of course not exclusively) likely to become
the subjects of child pornography, and increasingly so on the internet, where it is fast
becoming a major social problem. The debate surrounding the issue of what actually
constitutes child pornography, and at what point viewing it actually becomes a crime,
serves only to reduce the significance of the child victim concerned. Two
researchers in this field make the point that the process of trying to understand an
unpalatable phenomenon brings with it the accompanying danger of appearing to
condone it; they refer to a 6 year old female child victim whom no-one could
actually remember, and this is reminiscent of the victim 'grid' which depicts a victim
submerged and faceless under a density of psychosocial projections and legislative
paraphernalia (Boswell et al. 2002). They also note the pervading tension of official
reluctance to censor on the internet versus obvious child protection issues, both set
against the increasing sexualisation of childhood in the media. (Taylor and Quayle,
2003)
Research on children with disabilities has been sparse, but recent work has
shown that they are a distinct high-risk group for victimisation and maltreatment,
being on average two to three times more likely to be abused than non-disabled
children. (Little, 2004). Further, while they often come to the attention of the health
services, their condition may mask the fact that they have been abused or otherwise
victimised, thus undermining the quality of the assessment and treatment they
receive.
7
Legal Responses to Child Victims

As Walklate (1989) noted, many professionals have been concerned at the
potential for the formal court processes to intimidate victims, particularly existing
vulnerable groups, such as children, and to victimise them further in the process.
This is likely to be especially true in cases where children have been abused and
have to face both their abusers and an adversarial system in a judicial climate not
known for its sensitivity to children or indeed its understanding of abuse and its
effect on the victim. Thus, until relatively recently, the Police and Crown
Prosecution Services have tended to take the view that it is not in the public interest
to proceed with a prosecution.
This is one example of the way in which children have historically been denied
their right to due process. It may be argued that everyone, whatever their age, should
be entitled to a full public hearing, when judge, jury and society at large can weigh
up the evidence and draw conclusions appropriate to their role. Adolescents, in
particular, may also wish to be credited with the capacity for independent thought,
judgement and decision-making. In recent years, however, Courts have begun to
adapt their procedures where child victims are involved, so as to make those
procedures both meaningful and non-intimidating. For example, there have been
moves by court personnel to remove wigs and other formal trappings. Courts have
used video recordings and live link facilities in an attempt to make children more
relaxed when giving evidence. These developments culminated in the guidance
issued to Crown Prosecutors under the Youth Justice and Criminal Evidence Act
1999, to the effect that children should now automatically be entitled to these special
measures.
Prior to this enactment, however, an evaluation of the use of videotaped
evidence in England and Wales, had found that this facility had not been used as
widely as expected. Only a low proportion of cases led to a recommendation of
prosecution, though the number of cases to reach court was rising. Most applications
to show videotaped evidence during a trial, however, were granted. The majority of
cases using videotaped evidence at trial were cases of child sexual abuse (Bull and
Davies,1996).Follow-up research found that children using tape seemed
significantly less anxious than those using the live link facility (now installed in over
half of all Youth Courts) and that there appeared to be no impact on the apparent
credibility of the child as a witness. The researchers also observed that one of the
most critical factors in the extent of distress levels was the approach and questioning
tactics of the defence barrister, again highlighting the dependence of children on the
adult world for sympathetic and just treatment (Wilson and Davies, 1999). It is also
important to note that not all courts by any means yet have special facilities in place
for child victims to give evidence by video tape or live link.
8
Prior to 1990, in England and Wales, the Rules of Evidence determined that it
was unsafe to convict on the uncorroborated evidence of a child (in practice under
the age of 6) again reducing the ability of child victims to make their voice heard.
However, the Court of Appeal subsequently ruled that evidence could be given by
children of any age if they could understand the need to tell the truth. More recently,
the Youth Justice and Criminal Evidence Act 1999 introduced a presumption of
'competency' for all witnesses, children included, except where there were queries
over their ability either to understand the questions or give comprehensible
answers. However, there is a long way to go before courts can be persuaded to take
fully into account the developmental stages of childhood (Erikson, 1968), how
these can affect child perceptions, levels of understanding and articulacy, and how
they may be profoundly damaged by prolonged victimisation (Cameron, 2000).
The Criminal Injuries Compensation Authority is a non-departmental public body,
which administers the Criminal Injuries Compensation Scheme for England,
Scotland and Wales. Under this scheme, children of parents or carers who have died
as a result of their criminal injuries can claim an award for 'loss of parental services',
for 'fatal injury' and 'dependency'. The numbers of claims made by adult former
victims of child abuse are also steadily climbing. These measures are reinforced by
Article 39 of the UN Convention on the Rights of the Child, 1989 which requires
that all appropriate measures be taken to promote the physical and psychological
recovery and social integration of child victims. However, where children make a
claim, the claims officer will make an award only where he (sic) is satisfied that it
would not be against his (sic) interest for an award to be made. While this is intended
as a protective measure, in the wrong hands it could be misapplied.
Power Relations Between Societies and Their Children

Beyond the formal, legalised responses which society makes to its child
victims are other powerful responses, to be found for example in the media, which
offers very mixed messages about crime, particularly violent crime. In the UK, this
has impacted upon the populace as a consequence of public inquiry either because
of abusive practices in children's homes, as discussed earlier; or because of the
mismanagement of suspected child abuse; or because of child death within or
outside the family. High profile examples in respect of the latter three arenas have
included: Cleveland, where large numbers of children suspected of having been
abused were taken into care, and the social work and health professionals vilified
for unwarranted interference (Butler-Sloss, 1988); the long-term abuse and
eventual murders in their families of Jasmine Beckford (Blom-Cooper, 1985) and
Victoria Climbié (Laming, 2003), where professionals were accused of neglecting
their duty of intervention; and the murders in Soham of Holly Wells and Jessica
Chapman, where the failure of professionals to communicate and liaise effectively
about a known sex offender was highlighted (Bichard, 2004).
9
According to the particular circumstances, then, those with professional

responsibility have been criticised either for intervening too much or intervening too
little. Public feeling seemingly runs as high about the increase of state interference
in domestic and family life as it does about that same state's failure to prevent the
death or abuse of a child. Cleveland or Climbié which is worse? Either way, the
child is the victim.
Power relations within and beyond UK societies have similarly institutionalised the
victimisation of children. For example, Governmental regimes predicated upon
political oppressions have both portrayed violence as a behavioural norm for
children and engaged them in it. In other parts of the world, child soldiers are the
epitome of state-sanctioned violence for the young. The apartheid regime in South
Africa prompted strikes and demonstrations by school children against 'Bantu
Education' in 1976; the response of the authorities was to shoot them. In the Western
world, children in Northern Ireland lived through the longest period of sustained
conflict in recent times. In all these situations, children died, witnessed death, were
maimed, lost parents through imprisonment, were themselves imprisoned and saw
or used guns in their daily lives.
Further, violence is enshrined in the response of a range of justice systems to
criminalised anti-social behaviour - that is to say torture and other forms of physical
retribution, and capital punishment - all of which, in some countries, may be applied
to children and young people, despite wide ratification of the UN Convention on the
Rights of the Child, 1989. Similarly, reports from the Bureau of International Labor
Affairs (1996, 1998) emphasise that mental and physical violence to victims of child
prostitution and child labour is to be seen not only in Asia, the Far East, Central and
South America, as popularly imagined, but also in parts of the 'developed' world -
Europe, North America and Australia. Physical violence between family members
is frequently seen as normal for many societies (Gelles and Straus, 1988).
At national and international levels, then, these issues raise fundamental
questions about how children experience power and its applications. As John (2003)
notes, democracies are created both in the public sphere and within the emotional
intimacies of the family. In these settings, without either fully developed cognitive
skills or legal standing, it is highly problematic for children to engage in the process
of recognising and realising their rightful autonomy and agency.
Some Outcomes of Victimisation as a Child

The foregoing sections have described the structural settings in which children
are most likely to become victims. The aetiology of their victimisation may produce
a range of outcomes either within these settings as they become older, or beyond
10
Them when they reach adulthood. As one writer observes, 'Children are both victims
and survivors of many violent acts.... whether within the family or outside it' (Yule
1993: 153).
In terms of bullying which frequently takes place in school settings, there is
evidence to suggest that those most likely to become bullies tend to live with (male)
models of dominance and aggression who abused their power over their children
(Bowers et al. 1992) Similarly it has been suggested that children who have been
sexually abused and subjected to the abuse of authority coupled with the perversion
of physical intimacy are conditioned to respond along a domination/submission
continuum (Sanderson, 1992). Bagley and King in their search for the meaning that
attaches to sexual abuse in childhood provide a wide range of published personal
accounts of such abuse, most of which have in common feelings of anger, rage and
hate which, set against positions of utter powerlessness, have to be internalised but
nevertheless endure over time and surface in a variety of ways during adolescence or
adulthood. (Bagley and King, 1991). Earlier, Miller had studied the childhoods of
some authoritarian personalities and in the case of Hitler, for example, who was
responsible for mass oppression and murder, had traced his actions back to a
physically emotionally (and possibly sexually) abusive father who persistently
humiliated the young Adolf (Miller, 1987). Such well-organised and unrelenting
compulsive destruction has been described as narcissistic rage, an extreme form of
self-defensive revenge against early childhood helplessness and humiliation (Kohut,
1985; Wolf, 1988).
If young people have been denied their victim status by having no-one to
confide in about what has happened to them then it is possible that they will seek
redress by finding their own form of domination, sometimes within the family but,
where this is unfeasible, sometimes also as a 'displacement' activity beyond it. In
attempting to illustrate the latter form of redress Miller, for example, offers the
speculation that millions of Jews might have escaped persecution if Hitler had had
children of his own upon whom he could have taken revenge for his father's abuse of
him (Miller, 1987). Although speculative, this is nevertheless a sobering thought
which, again, leads back to a realisation of the crucial nature of preventive,
protective action for victims of child abuse. It is also a further reminder that many
societal structures render it more difficult than it should be for an abusive act against
a child to merit a formal response. As two authors writing about child victims aver,
'Routine acts of minor violence such as bullying, chastisement or assault appear
resistant to being defined as criminal when committed against children'. (Morgan
and Zedner, 1992: 22).
In more extreme cases of abuse, children have been likened to hostages or to
concentration camp inmates whose 'captors' are also their significant attachment
11
Figures and whose means of survival will often be a direct function of the only
relationship dynamic they know - that of the captor/hostage relationship (Goddard
and Stanley, 1994). In such circumstances it seems not implausible that without any
intervention to tell them otherwise, children may come to believe that to take
'captives' for the purpose of physical, sexual and emotional abuse is the norm for
adult behaviour. At the extreme of this spectrum (i.e. with no mediating factor to
intervene) the victim may seek to become the survivor by finding her or his own
victim to dominate in turn.
Studies of violent young people in a range of countries have shown how the
oppressed may evolve into the oppressor and the victim and the offender become
located in one single, damaged young person (e.g. Boswell 1995, 1996, 2000 in the
UK: Widom and White, 1997, in the United States; Wedge, Boswell and Dissel,
2000 in South Africa). Although there are clearly differences which relate to cultural
and political variables, these studies show remarkably similar retrospective patterns
in terms of earlier traumatic experiences. The UK study, for example, found that
72% of children sentenced between the ages of 10 and 17 years inclusive for murder
and other grave crimes had experienced abuse of some kind - physical, sexual,
emotional or combinations thereof; 57% had experienced traumatic loss of a close
family member or friend (Boswell, 1995,1996).
Indeed there seems little doubt that childhood abuse and loss, when no effective
opportunity is provided for the child to make sense of these experiences, constitutes
unresolved trauma which is likely to manifest itself in some way at a later date.
Many children become depressed, disturbed, violent or all three, girls tending to
internalise and boys to externalise their responses (American Psychiatric
Association, 2000).
Working With Those Who Are, or Have Been, Child Victims

Henry Kempe, who first identified the 'battered child' syndrome over four
decades ago, pointed out in 1978 that the first stage of addressing the problem is to
recognise the denial that it exists other than in 'people not like us' (Kempe, 1978).
Society holds dear its warm images of childhood play, happiness and innocence. As
another author observes:
Our culture's view of childhood is built upon images of sweet-smelling

babies,chubby hands dragging teddies, pony rides, science projects, piano
lessons, prom dresses and graduation ceremonies. Sadly, for many children, the
list would be more accurate if it included broken bones, chipped teeth, black eyes,
burns, unexplained vaginal or anal infections, night terrors, empty stomachs and
lonely hearts.
( Everett and Gallop, 2001:3)
12
In a critique of issues and findings relating to childhood abuse, one author has
pointed out that 'one reason why professionals did not believe that children were
subject to physical or sexual abuse, or suffered from PTSD (post-traumatic stress
disorder) was simply that they never asked them!' (Yule,1993: 165). Yule's view
confirmed an earlier study of 105 hospitalised psychiatric patients, which found that
51% of them had been sexually abused in childhood or adolescence, but that in the
majority of these cases hospital staff were unaware of the sexual abuse (Craine et
al.1988). Further, only 20% of the abused patients believed that they had received
adequate treatment for their abusive experiences. Everett and Gallop, who make the
important point that 'the denial of abuse can also mean the denial of recovery'
(2001:4), point to a series of systemic barriers which cause society to suppress or
ignore the existence of child abuse. Broadly, these may be represented as follows:
· The family as sacred

· Authority should not be questioned
· Violence is normal
· The victim is at fault
· We are not our brother's (or our sister's) keepers
· Gender stereotypes
· Taboo subjects
· Nature versus nurture
· Finding the words (to name the unpalatable)
These issues have all been touched upon in previous sections and are more or
less self-explanatory. What is important, here, is for professionals and policy-
makers to consider how these barriers may impinge upon both society's and their
own attitudes and behaviour towards children who have been victimised in any way
and to seek ways of raising the visibility and voices of those children.
Conclusion
This paper has critically reflected on the topic of child victims with the
intention of highlighting gaps and anomalies in the framework of statistical,
legislative and societal responses which surround them. Noting, in particular, the
need for improved interprofessional working and for sound preventive measures,
three main suggestions are now offered for improving the quality of professional
and policy responses in the process of working effectively with child victims.
13
Firstly, those likely to be in formal contact with children, such as health and
social care professionals and teachers must be furnished with a firm knowledge base
about the nature of the trauma which can follow childhood victimisation, and also
acquire the relevant skills to make accurate assessments which lead to appropriate
treatment and measures which will prevent adverse responses.
An important example of such a knowledge base is the growing body of work
on post-traumatic stress disorder (Wilson & Raphael, 1993) which confirms that
children suffer the after-effects of traumatic stress in the same way as adults. The set
of criteria commonly used to establish whether an individual is suffering from post-
traumatic stress disorder (PTSD) is set out by the American Psychiatric Association
(2000). Professionals need to be equipped with the knowledge which will help them
recognise these signs and to be provided with the training and resources which will
enable them to intervene appropriately before behaviour manifestations along the
risk continuum become entrenched within young adulthood.
Secondly, children and young people who have been victimised, abused and
otherwise traumatised need communities which support them by validating rather
than ignoring their experiences, making it more acceptable for them to report,
describe and discuss these traumatic events, and placing emphasis on prevention,
also offering support to parents in difficulty, and providing parenting classes in
schools. As Morgan and Zedner observe:
Child victims and their families have a diversity of needs. Many of them could best
be met by the development of child-centred assistance. It is important that
children be given a voice to express their feelings, needs and wishes. Listening to
child victims themselves will allow criminal justice and support agencies to take
greater account of their needs and, in doing so, to respond more
effectively…….There should be far greater public awareness of the needs of child
victims, better publicity about possible sources of support, improved interagency
co-operation, and easier accessibility for victims seeking help for themselves.
(Morgan and Zedner, 1992:183)
Such awareness would require a genuine commitment to interprofessional

working, possibly even beginning with interprofessional training so that
commonalities rather than differences are emphasised, and the risk of children
falling through professional safety nets, because vital information has not been
shared, is eradicated. It would also require a much more developmental perspective
on child victims. 'Understanding and appreciating the emotional and developmental
levels of children and the developmental issues they are experiencing are extremely
important first steps when assessing the impact of stress and crises'. (Zubenko,
2002). It would further be enhanced by the introduction of a national database
integrating annual figures on all officially reported crimes and forms of abuse
14
committed against children, supplemented with regular national studies to assess

the undoubtedly high levels of unreported direct and indirect victimisation of this
age group. Though the role of the Children's Commissioner for England, due to take
up post in April 2005, is widely seen as insufficiently independent of Government,
this is a development which could very usefully be instigated by the post-holder. The
new independent Commissioner for Victims, to be appointed under the Domestic
Violence, Crime and Victims Act 2004, might also take this work forward.
Finally, there is a need for full integration of research programmes into the
process of policy formulation and effective application in the justice system for
young people. Such a process should take into account the views of professionals,
the public, and the young victims themselves, moving society towards a greater
sense of collective responsibility in the process. It is necessary to ensure that what
Saunders (2003) refers to as the 'Balkanisation' of the professionals and the
academics is diffused by a framework of interdisciplinary working and sharing of
information about the complex and under-studied phenomenon that is childhood
victimisation.
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19
Investigative Police Practice in the UK:

Achieving Best Evidence in Work with Young
Victims of Abuse
Prof. Julia C. Davidson & Prof. Antonia Bifulco
Abstract:
This article presents findings from research undertaken by the Authors with police officers in
the UK. The initial findings are reported here, the research sought to review police practice
with child victims of sexual abuse with direct reference to the views of children and their
parents/guardians about their experiences. Although the research was conducted in the UK it
has relevance for police practice elsewhere. The aim of the research was to inform the
development of professional practice and police training in this sensitive area. This article
describes findings from a review of the literature focusing upon interview practice with child
victims and findings from Stage One of the work which draws upon documentary evidence
from case files and a small number of interviews with police officers. This preliminary work
has highlighted several key issues: First, a large number of unresolved cases which are
recorded as 'no crime', often due to insufficient evidence and the unwillingness of child
victims to participate further in the process. Secondly, although police officers receive
training, insufficient training opportunities appear to exist beyond this particularly in respect
of child interviewing techniques.
Keyword:
Child Abuse, Investigative Practice Children, Child Victims Interviewing; Achieving Best
Evidence
Introduction:
Uk Policy And Practice With Young Victims
Research intending to place the child at the centre of police practice is
particularly timely given recent and continuing UK policy emphasis on taking
children's perceptions into account in monitoring and planning services. This is
highlighted in the recent Department for Children, Schools and Families publication
'Every Child Matters: Change For Children' [21] where it is suggested that 'listening
to children, young people and their families when assessing and planning service
provision' (2004, p5) constitutes good practice. In addition, emphasis has also been
placed upon the importance of successful inter-agency practice in the Children Act
2004 [25] and the National Service Framework [29]. Examining how the child and
parents view the police process in child abuse investigations will potentially allow
for more sensitive use of such approaches and greater effectiveness of such services
in the future.
Julia C. Davidson & Antonia Bifulco
20
Following directives by The United Nations Convention on the Rights of the

Child [36] there has been a clear endorsement of giving the child a voice, and
recognizing a child's competence in assimilating and reporting their views.
Children's views offer a valuable insight, shedding light on their perceptions and
experiences which can help to evaluate the effectiveness of services, whilst
engaging children in research can give them a sense of ownership and inclusion.
Research exploring the investigative process has tended to be conducted from an
adult perspective and young victims' have been treated as passive subjects when it
comes to exploring issues which fundamentally affect them. Little work directly
involving children's views has been undertaken in this area, although there are some
exceptions [18]. This type of research does require a sensitive balance in order to
avoid overburdening children already subjected to investigative procedures. One
exception is Plotnikoff and Woolfson's (2004) research funded by the UK National
Society for the Prevention of Cruelty to Children (NSPCC)[20] in which the views
of 50 young witnesses were sought regarding their experiences of the investigative
process, with 32 of the young people giving evidence about sexual abuse. This study
suggests that young people expressed a sense of frustration with case delays.
Although this study is highly relevant, its focus was upon the pre-court and court
experience and did not explore the investigative police process as in the proposed
study.
Most research conducted has focused upon 'investigative interview' methods
involving video recording [30] in relation to 'Achieving Best Evidence' (ABE) [32].
This has included methods of questioning children and interviewer approach [5,6,8],
interviewer authority and style [7]. The aim of such studies has been to explore the
validity of child victim's accounts and their credibility as witnesses. There has been
some research exploring the use of the Memorandum of Good Practice (MOGP) in
investigative interviewing with children, but this has largely focused upon the
effectiveness of the interview in eliciting evidence and not upon the child's
experience of the entire police investigative process [14,22,16]. This is an important
aspect of effectiveness and practitioner training to date, but is incomplete without an
attempt to elicit children's and young people's experience of the process. If children
have a largely positive experience in working with the police and other professionals,
their accounts are likely to be more detailed and credible in judicial proceedings and
their tolerance for questioning likely to be greater.
It is increasingly clear that a large number of sexual abuse cases reported to the
police in the UK do not result in a conviction [12]. This may in part be accounted for
by factors such as the difficulty of obtaining evidence and the reliability of children's
accounts as influenced by the child's developmental stage and trauma responses. It is
clear that obtaining children's evidence in a form acceptable to a court is extremely
difficult and that disclosure itself is often problematic for victims, although
21
Somewhat easier with increasing age. For example, recent research conducted
in Norway suggests that rates of disclosure of sexual abuse increase with victim age
with only 50% of 3-6 year olds compared to 74% of 11-14 year olds disclosing abuse
when questioned [15]. The study also concludes that rates of disclosure were lower
in intra-familial than non-familial abuse cases. Thus reporting of abuse with family
perpetrators and at preadolescent ages requires particular attention. Davis [12], in
his research on the Crown Prosecution Service (CPS) addresses the high rate of
discontinuance of child sexual abuse cases and suggests that the low rate is in part
due to the failure of children to provide a clear account of the abuse that will be
acceptable to a court. Mudaly and Goddard [18] have argued that the adult view that
children are unable to provide reliable accounts of their experience due to emotional
immaturity often underpins investigative work and that, in their experience,
children are often able to articulate their experiences confidently. It is argued that
young victims' often demonstrate significant strategic decision making skills in
disclosing and describing the abuse they have experienced and case study evidence
from young victims is provided to support this claim [18].
Research investigating children's views of themselves as central to police and
social work investigative interviews is scant -although there are exceptions [15, 18,
21] - there is evidence that children have strong views on the way in which direct
work with them is undertaken [2,13,14,18] but this area needs more systematic
investigation if findings are to influence service provision. Farmer and Owen [13]
suggest that the majority of young victims studied describe their treatment in terms
of social policing rather than as providing help. Children reported that being
'protected' by services at times was experienced as more traumatic than the alleged
abuse. It is necessary for children to be debriefed about professionals' actions in
order to understand the process. This may reflect not only on the investigative
process per se, but also on the number of different practitioners involved, the length
of time taken for proceedings and the lack of understanding of steps in the process
[19].
There has already been extensive documentation of the experience of child
witnesses in court proceedings by the Scottish Executive [35]. This has advocated
an integrated witness support structure to augment the services available to young
witnesses. As well as recommending extensive information and explanation for
families and the judiciary, it also includes codes of practice for the legal profession
and the creation of independent Child Witness Officer (CWO) support figures as a
central point for information and advice, and to prepare children for the court. The
recommendations also sought to influence interviews and precognitions by
restricting the number of times child witnesses were asked to discuss the
circumstances of the alleged offence and to be aware of the stress caused by multiple
interviews.
22
Plotnickoff and Woolfson [19] provided an evaluation of child witness support

researching the role of an intermediary to assist communication with vulnerable
witnesses at the investigative interview, or at trial, in 6 pathfinder areas. The
research found that the intermediary scheme had not been well integrated into the
work of local criminal justice organisations with action plans and local monitoring
frameworks still in development. This was in large part due to 'witness initiative
overload'. However, when intermediaries were in place the matching of skills to
witness needs worked well and both intermediaries and police officers felt that the
intermediaries' contribution at investigative interview was most valuable when
planned in advance. The advantages of the scheme cited were: higher rates of
conviction; greater access to justice with double the number of cases reaching trial;
avoidance of miscarriages of justice and facilitating communications at trial with
help for witnesses to respond effectively. There were a number of benefits cited at
the investigative stage, including the identification of witness poor comprehension,
saving time by informing decisions where it was not possible to proceed to
interview and assisting at the efficient planning of interviews. Assisting witnesses at
identification procedures, helping inform CPS decisions about witness
suggestibility, ability to cope with cross-examinations and how the witness should
give evidence were also cited as positive outcomes. Despite these clear benefits
pathfinder areas had difficulties in identifying eligible witnesses and there were low
levels of requests for the intermediary appointments. The evaluation concluded that
there were problems in rolling out the scheme. Indeed the scheme is at present very
limited and has yet to be introduced to the London area. Metropolitan Police
Officers supporting this research bid had recently become aware of the scheme but
thought that it would be introduced on a limited basis with certain cases, but that it
would probably not become a widespread, standard element of practice in work
with young victims. The issue of multiple interviews at the investigative stage was
raised as a problem not only in terms of stress for the child, but also in terms of
contamination of evidence since the loss of spontaneity and emotional response
negatively influenced credibility [19]. There were examples of as many as 30
interviews of the child before trial. It was noted that high quality of investigative
interview, properly retained (e.g. as video-tape) together with appropriate updating
and sharing of information could help reduce the number of interviews. This
evaluation provides a valuable insight into the intermediary scheme and the impact
of this upon the investigative process, highlighting problematic areas.
The Children's National Service Framework [28] requires all practitioners
working with child victims to undertake common training in core skills, knowledge
and competencies. The Assessment Framework similarly requires social workers
to undertake more standardised and evidence-based assessments in child protection
work [28], and this is now extended to other related professions in the Common
23
Assessment Framework . Guidance provided to police officers identifies a number

of key practice aims, including: the sensitive management of victims and their
families; a well managed forensic strategy; a thorough and comprehensive search
for evidence; an effective arrest strategy and case disposal. The guidance also
states that the police should work closely with local authorities and other agencies
by sharing information relating to child welfare with specific requirements set out
for inter-agency work. Training is intended to play a pivotal role in guiding
practice around investigative interviewing and reliable and systematically high
standards are only achievable with high training commitment. Various
recommendations are made for training elements for police officers working with
child victims [17]. These include training on content and protocol; conducting
practice interviews; controlled observations with an experienced officer and
working in pairs with an experienced officer acting as a mentor. It is suggested that
training should be ongoing and that intensive bursts of training are unhelpful. This
longitudinal approach is thought to aid assimilation of key issues and to help
inexperienced officers build upon early practice experience. It is apparent from
the training guidance issued by the Home Office (Achieving Best Evidence (ABE)
http://www.homeoffice.gov.uk/documents/ach-bect-evidence/), that sensitivity
to the child's state is explicitly indicated with extensive discussion of approved
interview techniques. However, the ABE guidance is rather broad and no specific
interviewer approaches or techniques are discussed for example utilizing
standardised measurement approaches, nor about how the information is
categorized and shared between agencies. The availability of training for more
specialist techniques for police officers and social workers in child abuse are not
indicated. An update on how such training translates into practice is also required.
Researching Police Practice with Young Victims
A small, qualitative research project was undertaken on behalf of a UK Police
Force to explore interagency practice and young victim's experiences of the
investigative process in the context of a high national rate of discontinuance of
child sexual abuse cases. The research aimed to investigate current practice in
police investigative work with young victims of sexual abuse, in relation to
interview practice; the preparation of the victim for participation in the process;
the nature and adequacy of the support and information provided to young victims
and their families regarding the process; practitioner experience and victim
perceptions following case outcome.
The research was policy and practice driven and had several intended
outcomes: First, to begin the process of affording young victims an opportunity to
express a view regarding their treatment in, and experience of the police
24
investigative process; second, to identify the way in which aspects of the

investigative process and inter-agency communication might be counter-
productive in achieving best evidence with young victims; third, to identify
strategies/mechanisms to enable police services to address key problems in the areas
of interview training; inter-agency communication and child victim/family support.
These are initiatives expected to impact positively upon the rate of detection in child
sexual abuse cases. Finally, to inform good practice for professionals working with
child victims in the investigative process, to devise methods which can routinely
incorporate the views of children and young people regarding effective working
practices.
Method
The research has two distinct stages. Stage One has been conducted and the
findings are reported here, Stage Two is currently ongoing.
Stage One: Exploring Police Practice.

This stage of the research aimed to develop a full narrative about current police
procedure in dealing with child abuse victims, involving interviews with police
practitioners (N=11); analysis of case documentation (N= 53); together with a
literature review of studies showing good practice in investigative interviewing with
children in sexual abuse cases. Reference to key documents such as the 'Police Child
Protection' Manual and the Home Office 'Achieving Best Evidence' publication
was made along with an exploration of other research on children's perceptions of
practice and what is considered to be good practice. This element of the work was
conducted in 2007.
Stage Two: Exploring Family And Child Victims Views Of Services &
Processes.
In Stage Two of the study documentary analysis of 'closed cases' (cases not
prosecuted) has identified families and child victims/alleged victims who have
either gone through the investigative process, or for whom no further action was
taken. Whilst it was not possible to provide either a random or fully representative
sample due to constraints of scale and likely barriers to cooperation, the aim was to
select a non-random sample of young alleged victims and a non-random sample of
safe family members. The sample included closed cases with the following
characteristics (a) detected and prosecuted (b) discontinued by the Crown
25
Prosecution Service (c) for whom no further action was taken. These cases were
drawn from police records during the period December 2004- December 2007 in
order to ensure that the views of respondents with differing case outcomes were
included and examined in relation to features of the procedure and of the outcome.
A sample of 60 respondents (combination of young victims and safe family
members with differing case outcomes) will shortly be interviewed. Access was
initially sought via the Police who identified safe parents/carers explaining the
purpose of the work and the research process . Where respondents indicated a
willingness to participate, their details were passed to the Research Team. A postal
questionnaire was sent to all potential parent/family respondents with the police
letter inviting comment on the process. The child interviews will shortly be
undertaken by researchers with experience of work with young victims and their
families.
Achieving Victim Co-Operation

The inclusion of (alleged) victims and their families in research, while an
essential part of practice evaluation, is likely to be difficult given the sensitive nature
of the crimes involved and possible dissatisfaction with case discontinuance or
outcome. While the aim is not to achieve a fully representative or consecutive series,
it is hoped that by selecting families with different case and demographic
characteristics (gender of victim, age of victim and ethnicity) from the area that a
range of experience will be represented. It is also likely that questionnaire responses
will be received from those families who do not agree to interview, which allows
inclusion of some quantitative information on a much wider group. The interview
data collected during Stage Two will be amenable both to quantitative and
qualitative analysis. Quantitative data (including data from the survey) will be
analysed via SPSS and qualitative data will be analysed via an analysis programme
such as NVIVO.
It is anticipated that co-operation will be improved in the following way: (a)
full backing of police and social services in the research investigation and in helping
to make initial contacts, (b) selecting closed cases in order not to confound any
ongoing investigation, (c) emphasizing the opportunity of victims and families to
have their views recorded by an independent university group confidentially with no
individuals report being revealed to agencies involved in the original case (d)
offering information about victim support groups and psychological treatment
facilities locally where necessary, (e) ensuring brief time of interview (under one
26
hour) with emphasis solely on the investigative process not on features of the
alleged abuse (f) offering to hold the interview at the most convenient location
including families own homes (g) to only include victims over age 8.
Ethics
The research referred to three published ethical codes [1,3,4] in its procedures.
University ethical permissions were gained. Young people interviewed will be
given age-appropriate information and consent forms to sign. The Fraser
competence level principle will be used to ascertain the level of understanding of
informed consent amongst young respondents, this is usually deemed appropriate
for those aged 8 and above. Careful adherence to Barnardo's guidelines for ethical
research, which informed the development of the pilot stage of this work, with
vulnerable children and British Psychological Society guidance has been adhered to.
Those researchers working with children will have appropriate levels of expertise
and all are Criminal Records Bureau cleared.
Careful consideration has been given to all relevant ethical aspects of this
research to ensure that any discomfort to the children is minimised and these are
clearly outweighed by the benefits of the research. The following considerations
have informed ethics and have guided the research design and method:
1. Parent / Guardian Consent.
Informed consent was sought from parents/guardians of the children
interviewed in the project. This is a requirement for researching children under
aged 16, and this should be routinely sought. In the case of abused children
there may however be some exceptions: where for example, relations with
parents/carers have broken down the intention is to gain the consent of the non-
abusing parent, but this may not always be possible; or where the child does
not wish the researcher to gain parental consent because of concerns about
confidentiality. Such requests will be observed and each case treated in relation
to relevant context.
2. Child Informed Consent.
The informed consent of the children participating in the research will be
obtained. Children will be informed that they may withdraw from the research
at any time. The Fraser competence level principle will be utilized through
which the researchers can assess if the child can comprehend the giving of
informed consent. Accessible language will be used to encourage participation
and the research aims and expectations will be explained clearly. Children will
be encouraged to question the researcher about the research and the methods.
The procedure for gaining children's (age 5-12) consent recommended by
Barnados will be adapted for use, this is cited below:
27
‘Hi (child's first name)

My name is (researchers first name), and I am trying to learn about (describe
project briefly in appropriate language)
I would like you to (describe what you like the child to do. Don't use words like
'help' or 'cooperate', which can inform a subtle form of coercion)
Do you want to do this? (If the child does not give clear affirmative agreement
to participate, you may not continue with this child)
Do you have any questions before we start? (answer any questions clearly)
If you want to stop me at any time just tell me (if the child says to stop you must
stop)
(Barnados , p4, 2005)
3. Assurance of Confidentiality and Anonymity.
A statement regarding confidentiality and anonymity will be given, with the

usual provisos. For example disclosures of previously undisclosed abuse are
exempt from this. It is recognised that some of the children may have specific
concerns over the confidentiality of their participation given their experiences.
Barnados (2005) recommend that limitations upon confidentiality should be
addressed with vulnerable children in the following way:
'Whatever you have to say in this interview is confidential (we would change
the use of language) unless what you disclose ('tell us' seems preferable) that
you or someone else is in danger of serious harm (this should probably be
'harm'). In such a case I would need to report that to someone who might be
able to help' (p5).
Whilst this statement needs to be adapted for use with younger children and
some of the language should be more child friendly, the framework is good and was
adopted in this research.
4. Nature of Interview.
The researchers will use semi-structured - open questions during Stage Two, to
ask the children about feeling states and perceptions of the investigative
process they have experienced. Interviewers will not be asking children to
recount their experiences of abuse per se. Use of projective and play techniques
will aid the children to be open about their psychological responses.
28
5. Approaches Rejected:
Whilst use of other approaches such as the use of other children as interviewers
has been considered, this has been rejected because of the potential for leading
to more serious ethical breaches. Thus the child interviewers would be
potentially exposed to information and feeling states for which they were
unprepared and untrained. Also the child interviewees could similarly be
exposed to inappropriate handling of sensitive and confidential information
leading to feelings of shame and stigmatization.
6. Use of specialist Interviewers.
Only specialist interviewers will be used to interview the abused children
during Stage Two and those with counseling skills and who are familiar with
referral procedures to support services who can advise on use of such services
should any untoward responses occur.
7. A safe / Relaxed Interview Approach.
Every attempt to ensure that the children's experience of participating in the
research is both positive and enjoyable will be made, this will be addressed
through creating an informal and relaxed interview environment (attention will
be paid to the interview setting, style of interviewer dress and use of language
for example) and through the use of play and games as projective and
engagement techniques (Garbarino & Stott, 1989; Graue & Walsh, 1998; Scott,
2000).
8. Companions at Interview.
In addition, safeguards to avoid any distress or coercion will be in place, for
example children will be asked if they would like to bring a friend or advocate
with them to the interview.
9. Ethical Guidance:
The Barnados Statement of Ethical Research Practice (2005) will guide this
work as will the British Society of Criminology Ethical Guide (2005). In
addition reference will be made to the British Psychological Society guidelines
and to those imposed by the Universities represented.
29
Findings: Stage One

Literature Review: Children's Experience And Reporting Of Stressful
Events: The Impact Of the investigative Process Upon Child Victims
Over the past two decades increased awareness of the impacts of stressful and
emotionally traumatic events on children has led to investigations of how children
process, remember and then report such events (Fivush, 2002, Stein, 2002). This
research has stemmed predominantly from forensic considerations and has focused
on the accuracy and suggestibility of children's testimony as well as on techniques
for evaluating the credibility of children's accounts (Ceci & Bruck 1993, (Goodman
and Bottoms, 1993). Thus research into the recall of stressful events tends to show
that children have better recall of distinctive rather than routine events and are able
to report single experiences of trauma in highly detailed accounts (Fivush, 2002).
Within the conceptual framework of developmental victimology recent
research has approached children's emotionally traumatic experience with a special
interest in the way that victims engage with services such as the police, courts and
social services, and how this experience interacts with their existing trauma
response (Finkelhor and Dziuba-Leatherman, 1994, Finkelhor, 1995). These studies
have sought to analyse how the environmental responses to child victimisation
impact children at different stages of childhood. An important finding is that
environmental buffers have crucial and positive bearing on individual differences in
response (Finkelhor, 1997). As children at different stages of development operate
in different social and family contexts this can significantly alter how the
victimisation affects them. For example, the way in which the child's mother
responds (as non-perpetrator parent) is crucial in determining outcome, and can be
more important than objective elements of the victimisation itself (Toth and
Cicchetti, 1993). Thus the reactions of institutions such as the police and social
services to school aged children involved in intrafamilial abuse has the potential to
affect the impact of victimisation. The possibility for services to validate the child's
experience, offer a respectful view of the child as informant and constitute an
additional buffer and support has rarely been investigated, but is likely to impact on
psychological health and well being.
The reverse view that services inadvertently amplify the child's trauma through
revisiting the painful issue and escalating the victim's feelings of helplessness and
guilt is more often highlighted. Some authors stress that the way the child is handled
within the law enforcement and judicial systems in the context of victimisation can
be experienced as abusive in children with primed abuse-reactive responses
(VanFleet and Sniscak, 2003). This is particularly observed when the first interview
is handled insensitively. The initial absence of sensitivity to the child's sense of
30
blame for the family break-up and punishment of the primary perpetrator who
may be close to the child may further impact the child's negative emotions and
heighten his/her sense of guilt, shame, anger, fear and embarrassment. Failure to
talk with children about these adverse experiences and emotions, by key adults and
in ways that can facilitate both understanding and coping may serve to impact
existing traumatisation and increase the child's sense of mistrust and isolation
(Fivush, 2002).
Farmer and Owen demonstrate that the majority of children describe their
treatment in terms of social policing rather than help, With children reporting that
being protected at times felt more traumatic than the alleged abuse (Farmer and
Owen, 1995).. Some children need to be debriefed as to why the professionals acted
in the way that they did in order to understand the process. However, this may not
reflect on interview practice per se, but on the number of different practitioners
involved and lack of understanding of steps in the process.
In a study of children as participants in child protection conferences, Farnfield
highlights evidence of heightened distress as a compounding factor for prior trauma,
with reports that children were able to identify the specific emotions of curiosity (as
a motivator, to find out what is going to be said and to try and influence decisions)
but above all shame and embarrassment, emotions which were most likely to occur
if the child was implicated in events (Farnfield, 1997). These emotions are likely to
impact the way the child appraises his/her victimisation and contribute to the child's
view of the self as blame-worthy. This may influence the outcome of how the child
negotiates future developmental tasks with longer term problems set in train
(Finkelhor, 1995; Finkelhor, 1997). In addition to the anxiety, and feelings of guilt
and shame which Farnfield's study identified, children who have experienced sexual
abuse may also exhibit a range of symptoms that more broadly characterise
childhood trauma. Among the symptoms identified (Terr, 1991, Bentovim, 1998)
those such as dissociative reactions, thought suppression, exaggerated startle
responses, deliberate avoidance and hyper-vigilance are noteworthy in that they
may be indicated in response to specific stresses present during the interview
process. These behaviours may be successfully mobilised to protect against
returning traumatic visualisations being triggered and thus require recognition and
appropriate responsivity. There is a need for recognition and appropriate sensitivity
to the resulting behaviours as these may exhibit heightened lack of trust, shame,
guilt, inferiority and role confusion, each of which represents the negative valence
of healthy emotional developmental competencies (Wilson et al., 1998).
Further elicitors of distress in the criminal justice process identified by children,
were listening to negative comments about parents and feeling invisible (Farnfield,
1997). Importantly, children were reported both as feeling 'examined' or
31
'on trial' and at the same time being 'invisible' during discussions about their
behaviour. In order to feel less marginalised children welcomed being asked more
questions and wished to be considered as important as adults in being informed of
'what it was all about'. Children felt distortion of their views was a particular source
of discontent and difficult to redress. This is in contrast to the common view from
adults that extending questioning will increase the unpleasantness for the child. It
may in fact serve to reassure the child and by empathic listening to validate his/her
experience. Respect for the child's account of circumstances, as well as opportunity
to correct misinterpretation may prove to be important in achieving a successful
outcome. It is important to note that although interviewing children about an episode
of sexual abuse can increase the number of reminders about the victimisation, no
systematic effects have been found in any of the studies investigating adverse
impact on children from criminal prosecutions of sexual abuse. While having to
provide testimony on multiple occasions seems to delay recovery (Goodman, 1991)
children do not seem to display significant developmental damage from having their
victimisation investigated and progressed to criminal prosecution (Oates, 1995).
This suggests that achieving resolution is important for subsequent well being. This
is an important finding given preliminary findings regarding the low rate at which
cases progress to prosecution and the very low number of resulting convictions.
Child Assessment Techniques: Retaining A Child Centred Approach
The emphasis on the use of non-threatening procedures when engaging children in
research as a fundamental ethical principle (Barnardos, 2005) has prompted the
resurgence of methodologies that acknowledge the need for greater sensitivity in
assessment particularly when investigating potentially painful experiences. These
have included more projective and indirect ways of exploring emotions around the
abusive situation. This is predicated on the basis of children's potential reluctance to
share their perceptions of experiences when asked about them directly, especially if
these experiences are negative (Buchsbaum, 1992). Thus uses of projection, as in
imagined scenarios, and talk about the self in relation to recalled similar episodes in
the child's life, can be useful in retaining a child-centred focus. Such procedures may
have a place in certain circumstance, for example in initial stage of police contact, or
where even children in mid childhood have cognitive or emotional immaturity and
reluctant to communicate (op cit).
Van Fleet and Sniscak emphasise that in interviewing abused children it is
paramount to bear in mind that first interview sets the tone for all that follows
(VanFleet and Sniscak, 2003). Thus the need for interviewers to use empathic
listening to show understanding of children's feelings is stressed and can divert
32
belligerent or avoidant responses when children feel they are being judged.
Research stresses the importance of tone of voice, non- verbal communication and
the need to avoid over-zealousness or pressure on the child to optimise information
obtained and retain the child's psychological equilibrium. In contrast, minimising
the seriousness of the situation or providing negative or judgmental statements
about the parents, can have detrimental effects. In developing new interview
techniques with children who have experienced potentially stressful events, it is
suggested that the focus is on probing the child's views about their experience by
way of techniques in which the researcher is able to adopt a position of reflective,
non-directive empathic listening with the aim of showing understanding as well as
increasing greater autobiographical responding. Thus the sequence of interviews
exploring emotional context and investigative procedures needs careful
consideration in the light of such findings.
Investigative Interview Format

Investigative interviews seeking the facts of a situation also rely on good
rapport and close attention to the interview style and format to encourage reliable,
evidence based response. Semi-structured formats give the opportunity for
following a schedule of questions which need to be asked to elicit necessary
information, but also to vary pace and style of interview to encourage full response
and probe for elaborations of response. Research indicates that there are two
primary communication skills that can assist in establishing rapport and gaining
accurate information from abused children. These are empathic listening skills and
questioning skill. Empathic listening shows that the interviewer is giving their
undivided attention and understands the child's feelings and needs. Questioning
skills require the interview prompts to be at the appropriate developmental level for
the child and not leading the child or hinting at an expected response. It is
particularly important for first interviews to use open-ended questions so that they
are not planting suggestions in the child's mind and will stand up to scrutiny in court.
This is the 'free narrative' approach recommended in the ABE guidance.
However, it is also important to provide sufficient structure (perhaps rather
more than is suggested in the ABE guidance) in the interviewing environment for the
child to understand the purpose of the interview and what sort of information is
being asked for, particularly in a criminal justice setting where the information will
be used as evidence. Children maybe asked whether specific events have occurred
and follow-up probes ask to discover what happened, when, to whom, etc. This
gives a clear message to the child that factual, behavioural information is required.
This directive approach is of course only appropriate once the key experience to be
33
Investigated has been identified by more open questioning, but structured

questioning can allow for a more 'routinised' and concrete approach which may
make a child feel safer and more boundaried than the more nebulous questions with
accompanying silences which may accompany overly open questions. The fact that
children (and adults at times) need help to provide relevant vocabulary for sexual
activity, and may require the same question to be asked in different forms before
responding, is well documented (Finkelhor, 1986).
Research into the assessment of stressful events for children has been highly
developed in clinical fields and adult versions adapted for children and adolescents.
Yet the principals and methods determined have not yet been utilised in police and
social work investigations of child abuse. The approach follows from a social
epidemiological one (Brown and Harris, 1978) attending to the context and meaning
of life events, assessed not only in terms of their classification and timing, but also
their threat or unpleasantness compared to population norms as exemplified by
benchmarked examples. The Life Events and Difficulties Schedule interview
(LEDS) has versions for adults (Brown and Harris, 1978), adolescents (Harris et al.,
1992); (Frank et al., 1993; Monck and Dobbs, 1985) and children (Sandberg et al.,
1993, Bifulco et al, 1999, Sandberg et al., 2001). The strength of the approach lies in
its development of narrative about the recent past (e.g. 6 months or a year), by
progressing through a series of questions about possible changes and stressors
occurring in different life domains. These are followed by additional probing
questions to elicit further detail, but taken at the child's own pace. The child version
is also paralleled by a parent version for supplementary and validational purposes.
Ratings are then combined into a 'best estimate' rating of the likely events and
difficulties and their severity, according to predetermined rules for synthesising the
information with established reliability and validity (Sandberg et al., 1993). This
may have specific relevance for investigations where different witness testimony
may have to be combined into a systematic account.
Response to the events and feelings attached to these events are rated by the
children through an active process. While at the younger age children can indicate
their feelings by posting tokens through appropriately labeled post boxes, for
children aged 8 or over indicating their feelings about recent events on a series of
smiley and sad faces works equally well (Bifulco et al., 1999). The interview also
has a strategy for dealing with the notoriously difficult aspect of ascertaining
sequence and timing of events. Thus a calendar, in the form of a white board, to
which all key 'public' occasions (e.g. bonfire night, valentine's day, Xmas day) and
family ones (e.g. child and siblings birthdays, summer holidays, key visits by wider
family) have been marked is used as an aide memoir. Because the interview covers
34
both normative and non-normative changes and events as well as pleasant and
unpleasant experiences, it has a more routine, extensive and contextual approach to
assessing the child and family experience than usually accommodated in abuse
interviews and those utilized by the police and social workers. This has the
advantage of dealing with more routine questions about the household, school life
and leisure activities which can put the child at ease and allow the child to get used to
a 'fact' and 'feeling' differentiation in talking about experience.
Retrospective interview measures of childhood neglect and abuse used with
adolescents also provides a very useful framework for questioning about sensitive
and traumatic experience (Bifulco et al., 1994, Bifulco et al., 2002). Following in the
same style as the life event measures, the Childhood Experience of Care and Abuse
(CECA) uses a series of questions to cover a broad range of child and family
experience in earlier years. Thus details of the quality of day-to-day interactions
with parent figures, routines in the household as well as neglect, discipline,
supervision, physical abuse and sexual abuse are all covered in detail. One
consequence of such broad coverage is the context, which is contained in the
detailed descriptions which gives more clarity of the meaning and interpretation of
particular events and behaviours and the severity of any abusive experience.
Documentary Analysis of Police Reports
This element of the work sought to explore the context of police work with
child victims via the analysis of data from CRIS reports. The entire caseload of
allegations of intra-familial child sexual abuse made, that fitted the research criteria,
between December 2004 and March 2006 were included in the research (N= 53).
The data was collected on a proforma and analysed via SPSS (Statistical Package
For The Social Sciences). Qualitative data contained in police reports was also
collected where relevant. The findings are reported below.
Victims were overwhelmingly female (91%), although there were very few
male victims in the sample (5 in total), males were more likely to have their crime
detected, 40% of males' cases were detected, compared to 25% of females. But the
actual numbers are comparatively small here and it is difficult to draw any
conclusions regarding this finding. It is however an issue that should be explored
further. The highest percentage of victims fell into the 13-17 year old range (68%),
whilst 28% of cases feel into the 9-12 year old range. And only four percent of cases
dealt with children aged 8 or younger, it is difficult to know how representative these
findings are but if it is the case that allegations regarding younger children are
infrequent, this may be to do with the difficulty experienced in disclosing and even
recognising abuse. There was no difference in rates of detection among pre-teens
and teenagers.
35
Father figures represented the largest percentage of suspects (36%, this

includes stepfather, father and mother's partner). Peers, including relatives (such as
cousin and brother) were suspects in 25% of cases. Twenty-one percent of cases
involved suspects who were 'other male relatives', such as Uncle or Grandfather.
Other Adults (dance teacher, etc.) were suspects in 19% of cases. When the suspect
was an adult family member (father figure or other relatives adult), 40% of these
cases were detected. The rate of detection for 'other adult' and 'peers' including
relatives is much smaller, at 9%. This could be to do with the nature of different
offences, it was apparent that where children were abused by family members the
abuse was more likely to be ongoing, more recent and the perpetrator was more
likely to be contactable. It may therefore be easier to gather evidence for such cases.
The two largest offence categories were rape (40%) and sexual assault (34%),
with other sexual activity at 26%. There appeared to be no relation between the
type of offence committed and the rate of detection. Social services referred 38% of
cases (Social Services combined with other services accounted for 46% of case
referrals). Victims self reported 23% of cases. Victim's Mother's reported 17% of
cases. The offence is more likely to be detected if the reporter is the victim or parent:
these reporters have rates of 55% detection, whilst services have much lower rates of
detection (4%). When an allegation is made by services, there appears to be very
little chance of it being detected. This should be of particular concern given that
services are the single largest reporting group, clearly this finding needs further
investigation but it may be the case that when victims and their parents self report
there is a greater willingness to participate in what is often a painful and difficult
process, whilst cases reported by social services are often picked up via others such
as teachers and doctors. In these instances victims may be more unwilling to
participate.
It was apparent from reports that police officers expended an enormous amount
of time in investigating child abuse cases and in inter-agency working. However the
majority of cases were 'undetected' (68%) as there was clearly insufficient evidence
to proceed. On some occasions child victims had initially participated in the process
but withdrew as they unwilling to proceed in giving evidence. On other occasions
victim's accounts were unclear or contradictory and cases were dropped in the
absence of any corroborating forensic or witness evidence and an inevitable denial
on the part of the suspect. Police reporters identified this as a frustrating element of
the work and recognised the negative impact this may have upon child victims. A
minority of cases (26%) were 'detected' and 6% were recorded as 'no crime'. It is
unclear at this stage how many of the detected cases were proceeded against by the
Crown Prosecution Service and how many resulted in a criminal conviction. It is
interesting that cases were more likely to be 'detected' if an ABE interview took
place, this highlights the importance of interviewing child victims.
36
Police Officers Perceptions

A small sample of police officers working in Child Protection Units were
interviewed (N =11) in order to explore the findings arising from both the analysis of
the police reports and the literature review. A semi-structured interview technique
was employed with a convenience sample of officers from the two units. Interviews
lasted for approximately 45- 60 minutes and were tape recorded with officer's
written permission.
Officers views about the effectiveness of inter-agency working varied across
the 2 Child Protection Units. One unit appeared to have a stronger working
relationship with social services, this was attributed to the effectiveness of
established relationships with social services staff and some joint
training/working that had been undertaken and to effective communication:
“Everything is good, it's a working relationship. Multiagency meetings, child
protection conferences, where we are part of a decision-making process. I get
annoyed because the majority of the time, the police are overlooked. It's
obvious that the other agencies work together and we go in there as strangers.
If you give them a snippet of information, they want you to provide them with a
landslide more of information. I think that social services want a lot more
sometimes than we need to give them.” (Respondent 6)
Officers in the 2nd CPU were less positive about their relationship with social
services and described a less stable staff group and high staff turnover as well as
what were seen as unrealistic expectations about the policing role and a general
lack of understanding about the boundaries between the work of social services
in child protection and the role of the police as crime investigators.
“Their [Social Services] role is to look after the child, not ours. Our role is to
investigate crimes, and to have a say into the registration of a child, but it stops
there. We're not concerned, it sounds awful, although we're concerned with the
welfare of the child, we're not concerned with where that child is living, who it's
living with our concern is, is it safe? And it ends there, really.” (Respondent 7)
“It can be very difficult to get a response from a social worker, get them to call
you back when you've left them messages. You get problems with them going off
doing their own investigations, and then saying they want a police
investigation, but they've already gone and ruined it. Or there are things where
they tell us about things a month afterward, which is no use to us. We obviously
work together, but we need to do the criminal investigation part… They think
that they are the lead agency on a lot of these investigations. Again, it's them not
37
getting back to you, them going and visiting people when they shouldn't, and
wanting strategy meetings for every bloody case, which is a waste of time. They
do like to have their strategy meetings and paperwork.” ( Respondent 10).
Some officers also described difficulty in communicating effectively with
social services and a tendency to employ overseas social workers with poor
English. Some also spoke of the way in which inexperienced social workers
were employed:
“Some social workers can't speak English, and are useless.” (Respondent 5)
“A majority of Social Workers are young, newly qualified, from abroad, and
they just don't know how to work with us. They have such a high turnover
rate there.” (Respondent 9)
“I would doubt some of the quality of their staff, that's what really bothers me
down there. I've had people on the telephone in there who I can't understand I
can't basically understand what they're saying to me. That kind of thing. This is
a serious game, people's lives are at stake here, and if we can't communicate
between us, then there's a massive problem there. Again, I think it's down to
location.------- it does concern me the quality of the people working there and
the lack of experience of life. They make some incredible decisions. Thankfully
they can come to us sometimes before, to make things right. That's probably
why there's such a big turnaround of staff there. I bet it's a stressful existence.
I'm not knocking social workers, they are all trying to do the right thing, I just
don't think they have the armory sometimes, they don't have the numbers. I
think it's sometimes a matter of putting bums on seats, that numbers will sort
things out, but that's doesn't work. It's quality.” (Respondent 8).
The lack of communication was perceived as having serious consequences
for the progress of a case one officer commented that :
“I get very frustrated a lot of the time that social services are aware of a crime,
but they don't refer it to us immediately, and then you've obviously got the
slowing down of a procedure because social services might get to hear of it, and
they won't make a decision and they ask for the referral desk to do it. It's a quite
busy, two-borough system here, and we don't really have the staff at the referral
desk to cope with all this. It does take time for it to be passed down the referral
desk and to us for allocation.” (Respondent 9)
Clearly it is possible to develop effective multi-agency working relationships,
the root of the difficulty described by officers appears to center around several key
issues: first, and central to effective working is establishing good channels of
communication and attempts were being made at local Chief Inspector level to
develop a better working relationship; second there appeared to a misunderstanding
38
on the part of some social workers about the role of the police in child abuse
investigations which was exacerbated by a regular influx of new, inexperienced
social services staff recruited from overseas. The frustration in attempting to
communicate with social services the officers described during interview, was borne
out by the analysis of the CRIS reports. It was apparent in many cases that officers
had expended a huge amount of time in attempting to contact social services at the
outset of a case and often throughout. Some officers had a good working
relationship with social services and this was apparent from the CRIS reports. This
is a key issue that must surely impact upon case progress and eventual outcome. On a
positive note one officer suggested that social services place a social worker with
each CPU as a link and point of communication, but also in order that the role of the
police might be fully understood:
“I think they're (social services) doing their best. They seem to be involved in
meetings, their bosses and our bosses, so we're getting there. Maybe a little bit
more grassroots kind of liaison. I've always been in favour of having one of
their members of staff working here with us. Because even the most serious
allegation goes on this one form, and we go through this rigmarole of printing it
off and faxing it over if we had someone from SS working here with us, we
could discuss it together. If they made it a priority posting I think a lot of
problems would be ironed out. But I don't know if that'll happen.” (Respondent
4)
Officers were asked to reflect upon the high number of undetected and
discontinued cases, several issues were identified including: a lack of evidence
particularly where cases were reported retrospectively and there was no forensic
evidence or witnesses; the unwillingness of children to testify particularly against
members of their family and the unreliability of children's accounts, officers
frustration regarding this was apparent:
“A lot of children don't want to make statements against their parents, their
carers.” (Respondent 1)
“A lot of times it's kids saying, 'I'm not going to say anything against my mum or
dad. I don't want them arrested or to go to jail.' If they start saying that, you can't
go against their wishes. That starts the difficulties. Sometimes they'll be ABEed
and then after that they'll say they don't want to go to court.” (Respondent 10)
“Children do make things up. They do lie. I think it's the difficulty they have with
articulating what's happened to them. It doesn't make for good evidence. Often
there's no evidence of sexual abuse. Despite all the medicals and all the trauma
of putting a child through that, it'll come back and they'll say, 'I can't say no, but I
can't say yes.' Unless you can get something like a semen stain, which we don't
usually, because it's usually a few days after, and the child has been washed.
39
Frustrating. Because you'll be thinking, 'I know he did it.' There are all sorts of
other indicators. And even getting the family to see it through the process. So,
very frustrating------And the other problem is, where quite a lot of this is
historic, more than 2 weeks old, we get out of that forensic cradle that we have,
you then have to have corroboration” (Respondent 7).
Conclusion: Implications For Police Practice with Young Victims

These initial findings support the view children should be offered the
opportunity to voice their views about how they have experienced police practice.
First, this can act as a debriefing exercise, second it demonstrates that their views are
important and are being heard, and third it can inform improved practice. Although
the practice guidance offered to those working with child victims of abuse in
'Achieving Best Evidence' is clear and research -based it may need improving to
reduce the current high rate of undetected sexual abuse cases. More importantly its
implementation in ongoing training sessions held across services needs to be
enforced. Balancing the requirements of courts for evidence to resolve abuse cases
and at the same time listening to children's views and respecting their feelings and
attending to their level of understanding requires sophisticated interview techniques
which borrow from clinical, forensic and social psychological fields.
Police investigation of child sex abuse victims has to steer a difficult course
between optimising the investigation of abusive events in order to 'achieve best
evidence' and to satisfy the Crown Prosecution Service, and attending to the child's
developmental level, emotional and psychological state. In terms of the process this
may mean reviewing the nature of inter-agency communication and joint training
initiatives to enable efficient sharing of key information and to impart
understanding about the distinctive nature of roles and boundaries across
organisations. Attention certainly should be paid to the content and structure of
current child protection training available to police officers. In terms of
interviewing child victims a balance is required in interview pace and format
between searching out the factual nature of recent events, and providing a secure and
sensitive environment in which the child can be open and protected from
overwhelming feelings of guilt and self-blame and reactivation of trauma responses.
High reliability and validity of interview protocols and scoring is crucial for the
requirements of best evidence in the judicial system. This is not an easy process and
requires careful design of interview protocols and extensive, ongoing training. It
may at times require supplemental interviewing from other specialists for very
young children or with the use of specialist techniques. It also requires careful
recording of the information not only through video or audio-tape of what occurred
in interview, but also predetermined scoring criteria to establish severity and
40
categorisation of abusive incidents, which can be computer-rated and readily shared

with other agencies where appropriate. Although much has been achieved in the UK
through the recommended practice (ABE) there is still more that can be done in
exploring different interviewing techniques for children of different ages, and
providing training in their use. Also more should be done to fully address the
specific, ongoing training needs of professionals working in this arena.
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End Notes
1. Barnados (2005) Statement of Ethical Research Practice
2. Berkman, M.and Esserman, D.(1995) Police in the Lives of Young Children
Exposed to Domestic Violence, Series paper 4,Child Development Policing
Program, New Haven, Connecticut.
3. British Psychological Society (2006) Ethical Guidance
4. British Society of Criminology (2006) Ethical Guidance
5. Bull, R (1992) Obtaining information expertly. Expert Evidence, 1, 5-12.
6. Bull, R (1996) Good practice for video recorded interviews with child victims
for use in criminal proceedings. In Psychology, Law and Criminal Justice (Eds,
G, D, Lloyd-Bostock, S, McMurran, M and Wilson, de Gruyter, Berlin.
7. Bull, R and Corran (2002) Interviewing child witnesses: Past and
future.International Journal of Police Science and Management, 4, 315-322.
8. Ceci, S and Bruck, M (1993) Suggestibility of the child witness: A historical
review and synthesis.Psychological Bulletin, 113, 403-439.
9. Davidson J. Bifulco, A., Thomas G., and Ramsay, M. (2006 in press) Child
Victims Of Sexual Abuse: Children's Experience Of The investigative Process
In The Criminal Justice System. Practice Journal.
10. Davidson, J, Bifulco A, Thomas, G and Ramsay, M (2006) Putting the child at
the centre of police procedure: Preliminary report to the Metropolitan Police
Child Abuse Investigation Command., University of Westminster; Royal
Holloway, University of London, London.
11. DavidsonJ & Bifulco A (2006) Placing Children and Young People at the
Centre of Police Practice: Consulting Young Victims of Intra-Familial Sexual
Abuse. Report 2 Practice - to the Metropolitan Police Child Abuse
Investigation Command. University of Westminster & Royal Holloway,
University of London, London
12. Davis, G (1999) The admissibility and sufficiency of evidence in child abuse
prosecutions.,Home Office, London.
45
13. Farmer, E and Owen, M (1995) Child protection practice: private risks and
public remedies, HMSO.
14. Farnfield, S (1997)The involvement of children in child protection conferences,
Gloucestershire Social Services,, pp. 1-82.
15. Jensen, TK, Gulbrandson, W, Mossige, S, Reichelt, S and Tjersland, OA (2005)
Reporting possible sexual abuse: a qualitative study on children's perspectives
and the context for disclosure. Child Abuse & Neglect, 29, 1395-1413.
16 Lamb. M, (2006) 'Enhancing the Quality of Investigative Interviews by British
Police Officers' Second International Conference on investigative
interviewing University of Portsmouth,July 5th 7th
17. McBride, K (1996) Child sexual investigations: a joint investigative approach
combining the expertise of mental health and law enforcement professionals,
College of Police and Security Studies, Slovenia.
18. Mudaly, N. & Goddard, C. (2006) The truth is longer than a lie: Children's
experiences of abuse and professional interventions Jessica Kingsley: London
19 Plotknikoff J & Woolfson R (2001) An evaluation of child witness support. The
Scottish Executive Central Research Unit.
20 Plotknikoff J & Woolfson R (2004) In their own words NSPCC
21 Staller, K.M. & Nelson- Gardell, D. (2005) A Burden In Your Heart: Lessons
Of Disclosure From Female Pre-adolescent And Adolescent Survivors Of
Sexual Abuse. Child Abuse & Neglect, Vol 29, Issue 12, pp1415-1432
22 Sternberg, Kathleen J. and Lamb, Michael E. and Davies, Graham M. and
Westcott, Helen L. (2001) The memorandum of good practice: theory versus
application. Child Abuse & Neglect, 25 (5). pp. 669-681. ISSN 0145-2134
Government Reports
23. DfES (2004) Every Child Matters: Change for Children, Stationery Office.
24. DfES (2004) Every Child Matters: Delivering Change for Children.
25. DfES (2004) The Children Act,London.
http://www.everychildmatters.gov.uk/_content/documents1
26. DfES Registrations to child protection registers (2004), DfES
27 DfES (2005) Statistics of Education: referrals, assessments and children and
young people on child protection registers: year ending 31st March 2004.
28. DH (2000) Framework for the Assessment of Children in Need and their
Families In Ouality Protects
29. DH (2004) National Service Framework for children, young people and
maternity services.,Stationery Office, London.
46
30. Guidance on Interviewing Child Witnesses in Scotland Supporting Child

Witnesses Guidance Pack. www.scotland.gov.uk/library5/justice/cwis-03.asp
31. Home Office & DH Memorandum of Good Practice for Video Recorded
Interviews with Child Witnesses (1992.
32. Home Office: Achieving Best Evidence in Criminal Proceedings: Guidance for
Vulnerable or Intimidated Witnesses, Including Children. (2002). 20.
33. London Child Protection Committee (2005) Competence Matters: London
multi-agency safeguarding children training framework. Association of
London Government, London.
34. ODPM: The English Indices of deprivation (2004). Office of Deputy Prime
Minister.
35. Scottish Executive: An evaluation of child victim support Annex B the Lord
Advocate's working group report and recommendations. (1995)
www.scotland.gov.uk/cru/kd01/purple/witness-1.3.htm
36. UN High Commissioner For Human Rights (1989- enacted 1990) Convention
on the rights of the child www.unhchr.ch/htm/menu3/6/kzcrc.htm
47
Alternatives to Imprisonment for the Juveniles:

A Case Study of Pakistan
Mirza Mashhood Ahmad
Abstract:
This article sets out to explore alternatives to imprisonment in the context of human rights,
and as an obligation of Pakistan under international law. Firstly it explores the contextual
issues of juvenile imprisonment. It tackles the central issue of age of criminal responsibility
and goes on to analyze international norms and practice, including principally the CRC
Committee recommendations and prescriptions of relevant child right bodies, in identifying
the variety of dispositions available to imprisonment for the juvenile offenders. Secondly,
the case of Pakistan is examined in the light of established international standards as well
emerging norms of handling juvenile offenders. As a signatory what are Pakistan's
obligations and how far Pakistan is fulfilling its obligations and how relevant and effective
are the CRC's recommendations? Such questions will be critically examined. This paper
attempts a holistic view of the subject from the perspective of international law as well as
counter poses it against the exigencies of the local situation before offering considered
conclusions on the direction the emerging debate of alternative imprisonment may take in
the world context as well at a local level in Pakistan.
Keywords:
Criminal Justice System, Juvenile Justice System, Juvenile Delinquency, Diversion,
Probation, Juvenile Courts, Age of Criminal Responsibility, Borstal Institution,
Imprisonment, Alternative dispositions.
Introduction
Children, by nature, are vulnerable to human rights abuses. It is arguable that
the locus of International Human Rights Law is the individual in the shape of an
adult rights - conscious person. Children do not necessarily fall into the category of
aware individuals and hence the need of specially designed laws and more
importantly specially designed machineries to implement the laws. The judiciary
plays a crucial role in giving shape and direction to all laws that affect children. But,
more than anything, it plays a critical role in addressing the rights of the deviant or
delinquent child. The rest of the criminal justice system is also very important to the
ultimate enjoyment of basic rights and opportunities. There is an increasing
realization that rehabilitation not retribution is the preferred rights based approach
1
to correct the delinquent child. The best interests standard underscored by the
2
United Nations in its Declaration on the Rights of the Child recognizing the need to
provide every (emphasis mine) child with the opportunities and facilities “to enable
him to develop physically, mentally, morally, spiritually and socially in a healthy
48
3
and normal manner”. It need not be overemphasized that the declaration mentions
every child and does not make any exceptions prejudicing the law against the
deviant child. To that effect the non-discrimination clause of the Declaration states
that:
'the child shall enjoy all the rights set forth in this Declaration. Every child
without any exception whatsoever shall be entitled to these rights, without
distinction or discrimination on account of race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status, whether himself or his family'.4
These standards of non-discrimination are echoed by other international

instruments and are applicable in the context of children's rights.5
6
In 1989, the Convention on the Rights of the Child (hereinafter CRC) stated in
Article 3 that:
'In all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration'7(emphasis added). The mention of both welfare
institutions and administrative and legal institutions in the same statement
is symptomatic of the felt need of treating children differently even when
they are 'offender' in the eye of law. Young people committing the highly
publicized serious crimes are only a tiny fraction of the children who come
into conflict with the law in some way. Majority of the children get into
trouble for minor offences, or may not be guilty at all. As indicated above,
a large number of the detainees implicated are awaiting trial. And while
they wait, they are subjected to the worst forms of abuse at the hands of
inmates, guards and other prison authorities.8 For many of them, the
criminalization process begins in prisons. It is a fact that prisons, meant
for rehabilitation, are in reality training grounds for criminals. They serve
mainly as retributive structures, reflecting the “punish the criminal
approach” as well as the discriminative attitude of the society towards the
delinquent. While it is arguable that the adult deviant may be subjected to
retributive penalty, it is necessary to recognize the juvenile offender
should not be undergoing a similar treatment. It is not clear however that
the alternatives to imprisonment are necessarily categorically out of the
purview of the criminal justice system or are non-institutionalized options
of correction. The idea is to avoid incarceration of the juvenile through
imprisonment.
49
International laws are implemented by and through sovereign nations. CRC is no

exception. Article 4 outlines the obligations and duties of States Parties to the
Convention. It states:
'States Parties shall undertake all appropriate legislative, administrative,

and other measures for the implementation of the rights recognized in this
Convention. In regard to economic, social and cultural rights, States
Parties shall undertake such measures to the maximum extent of their
available resources and, where needed, within the framework of
international cooperation'.
Of course, it has to be recognized that local socio-economic and cultural

differences have a bearing on both the acceptance and the implementation of law. In
the case of many countries the child is not regarded as an autonomous individual
who can enjoy his individual rights qua an individual. At best, his rights are seen as
derived from the ones ascribed to the elders in the family. Pakistan like many other
developing countries of Asia and Africa is socio-culturally geared to such a
perception. Naturally, the rights of a juvenile who has also caused an infraction of
law is an issue of marginal social consideration. As a consequence, the established
law in Pakistan reflects this marginalization of the juvenile offender. In the case of
Pakistan, the reality unfortunately is that the children who are deemed to have
committed a legal violation have to spend months, even years of their precious
childhood behind bars. A large number of children remain in jails as under-trials for
long periods, perhaps, even longer than the time they would have spent in the prison
if they had been sentenced.9 Ironically, some are not even found guilty at the end of
the legal process and suffer amidst hardened criminals in jails for no fault of their
own. The childhood and innocence of these children is lost for all times. In 2008, out
of the total number 10 of 1788 juvenile prisoners in Pakistan, 1653 were under trials
and only 153 were finally convicted. These children are the victims of the system of
juvenile justice, which fails to respond to their special needs. By no means it is
suggested here that by providing alternative sanctions, children are any less guilty of
an offence or that they should not in any case be held accountable for their acts of
omission or commission. Rather, the point is that there has to be recognition of the
11
fact that children have special needs and a right to special treatment under the law,
because of child's capacity for change. Children have not yet completed their growth
and development and with appropriate education, training or psychological
treatment, those involved in criminal acts may be helped to grow into law abiding
citizens without the stigma of criminality attaching to them.
50
Exploring International Norms
A. Question of the Age of Criminal Responsibility:
‘The child by reason of his physical and mental immaturity, needs special
12
safeguards and care, including appropriate legal protection’
To start with we may look at the age of criminal responsibility to see how a
particular criminal system is treating children coming in conflict with the law. In any
criminal justice system the most crucial element is the age of criminal responsibility
at which a child could be held responsible or obliged to take responsibility for his
criminal actions.13 The importance of age of criminal responsibility can be gauged
from the example that there is less obvious need for a child to be protected from
making incriminating admissions when being interviewed about his or her
responsibility for a certain action, if by virtue of age, that action cannot be defined as
a criminal offence at all. An admission of guilt would not then constitute part of that
child's criminal record. In any case if the age of criminal responsibility is set too high,
then there is a risk that it may bring the law in disrepute and easy to flout; if set too
low then it may cause the law to be savagely harsh. International instruments have
recognized “the importance of adopting an appropriate age for criminal
14
responsibility, without being particularly helpful about what this should be”. Thus
the fixing of a minimum age limit is a decisive factor when determining those
children in trouble with the law who can be subjected to and sentenced in criminal
proceedings.
The International Covenant on Civil and Political Rights (hereinafter ICCPR)15
was the first International Human Rights Convention to impose an express
obligation on states parties to provide for a special procedure for the juvenile
persons in the administration of justice that was different from the procedure for
adults. In particular, Article 14(4) of the ICCPR provides that “in the case of juvenile
persons, the procedure shall be such as will take account of their age and the
desirability of promoting their rehabilitation”.
In the ICCPR the term 'juvenile persons' in Article 14(4) is not defined,
therefore, in the estimation of Nowak, the term 'juvenile person' is principally used
in connection with criminal law, he states that, “it undoubtedly describes those years
in a persons life beginning with the age of criminal responsibility and ending with
majority age” Although the determination of these two age limits is left to the
16
discretion of states parties, they are obliged to establish specific age limits. The UN
Human Rights Committee (hereinafter HRC) has observed that the age at which the
child attains the majority in civil matters and assumes criminal responsibility should
not be set unreasonably low and that in any case a state party cannot absolve itself
51
from its obligations under the covenant regarding persons under the age of 18,
17
notwithstanding that they have reached the age of majority under domestic law. In
its General Comment on Article 10 of the ICCPR the HRC stated that:
Article 10 does not indicate any limits of juvenile age, while this is to be
determined by each state party in the light of relevant social, cultural and other
conditions, the committee is of the opinion that article 6, paragraph 5, suggests that
all persons under the age of 18 should be treated as juveniles, at least in matters
18
relating to criminal justice.
Besides this under Article 6(5) the ICCPR prohibits death penalty for crimes
committed under the age of 18, which is another indicator of the age of criminal
responsibility.
Interestingly, if we look at the Article 24 of ICCPR, it recognizes the right of
every child, without any discrimination to receive from his family, society and the
state, the protection required by his or her status as a 'minor'. The Covenant does not
define 'minor', nor does it defines the age at which majority is attained. But as per
Article 40(3) (a) of the Convention on the Rights of the Child, requires state parties
to set, “the establishment of a minimum age below which children shall be presumed
not to have the capacity to infringe the penal law”19, although it does not specify what
that age should be?
In the words of Geraldine Van Beuren, the Beijing rules, “apply to anyone
under the age of eighteen. They therefore have the advantage of applying to all
individuals under eighteen years of age who are deprived of their liberty, without
any reference to national definitions of childhood and without being dependent
upon the jurisdiction of special proceedings”.20
It is rightly contended that Article 1 of the CRC should not be interpreted as
allowing states parties to establish ages that are incompatible with the provisions,
aims and objectives of the CRC, including the principle of the best interest of the
child embodied in its Article 3.21
B. Alternatives to Imprisonment in the International Instruments:

It is a recognized principle of international law that “juveniles should only be
deprived of their liberty as a last resort and for the shortest possible period of time”
(see Convention of the Rights of the Child, Article 37(b) and Rules 13 and 19 of the
Beijing Rules). The sub paragraphs (b) to (d) of Article 37 of the CRC relates to
deprivation of liberty. Article 37 (b) prohibits unlawful or arbitrary deprivation of
liberty. Furthermore, it imposes the obligation on states parties to use the arrest,
detention or imprisonment of a child only as a measure of last resort and for the
shortest appropriate period of time. The first sentence of article 37 (b) provides that
“No child shall be deprived of his or her liberty unlawfully or arbitrarily”.
52
Furthermore the first part of its second sentence provides that “the arrest, detention
or imprisonment of the child shall be in conformity with the law...” According to the
CRC's travaux preparatoires, these provisions are based on article 9(1) of the
ICCPR, which provides that:
“Everyone has the right to liberty and security of the person. No one shall
be subjected to arbitrary arrest or detention; no one shall be deprived of his
liberty except on such grounds and in accordance with such procedures as
are established by law.”
In its General Comment on Article 9 of the ICCPR, the UN Human Rights

Committee (hereinafter HRC) states that the provision of article 9 (1) apply with
respect to all deprivations of liberty whether in criminal cases or other cases.
Similarly, in its general guidelines for periodic reports of the CRC indicates that, in
its opinion, the deprivation of liberty referred to in the first sentence of article 37(b)
means any form of detention or imprisonment, as well as any other form of
placement in the public or private custodial setting, from which the child is not
permitted to leave at will by order of any judicial, administrative or any other public
22
authority. The committee refers in this regard to the definition of “deprivation of
liberty” contained in rule 11(b) of the 1990 UN Rules for the Protection of the
23
Juveniles Deprived of their Liberty (hereinafter JDL). Furthermore, in the section
on Article 1, the CRC requests the state parties to provide information in their
reports on the minimum legal age defined by their national legislation for
deprivation of liberty, including arrest, detention and imprisonment, in the areas of,
inter-alia, administration of juvenile justice, asylum seeking and placement of
children in welfare and health institutions.
The second sentence of the article 37(b) further provides that, “The arrest,
detention or imprisonment of a child only as a measure of last resort and for the
24
shortest appropriate period of time”. In the commentary on rule 13 of the Beijing
Rules, it is stated that the danger to juveniles of “the criminal contamination” while
in detention pending trial must not be underestimated. Therefore, it is important to
stress not only the basic principle that pretrial detention should be used only as a
measure of last resort and for a shortest possible period of time, but also that minors
should not be held in a facility where they are exposed to the negative influences of
adult detainees, and the need for alternative measures. The Rules 17 of the Beijing
Rules concerns guiding principles in adjudication and disposition, and encourages
25
the use of alternatives to institutionalization to the maximum extent possible. The
approach in rule 17 is closely in consonance with the internationally accepted
26
principles. In the commentary it is also noted that rule 17.1(b) of the Beijing Rules
implies that strictly punitive approaches are not appropriate. In juvenile cases the
53
possible merits of just desert and retributive sanctions, “should always be

outweighed by the interest of safeguarding the well-being and the future of the
27
young persons.”
The provisions of article 40(4) of CRC follow the approach taken in rule 17 of
28
the Beijing Rules. The Article 40(4) provisions indicate its aim to ensure making
use of variety of dispositions. The CRC travaux preparatoires reveals that these
examples are directly taken from rule 18 of the Beijing Rules.
According to the rule 18, some of the important reactions and sanctions that
have been practiced and proven successful so far in dealing with juvenile offenders
in different legal systems are enumerated in rule29 18.1 of the Beijing Rules. They
have in common, above all a reliance on and an appeal to the community for the
effective implementation of alternative dispositions.30 International instruments
stress the importance of diverting young offenders out of the courts, whenever
possible, without resorting to formal trial.31 In the Commentary on rule 11of the
Beijing Rules it is noted that diversion involving removal from criminal justice
proceedings and often redirection to community support services, is commonly
practiced in a formal and informal basis in many legal systems. The purpose of such
practice is to hinder the negative effects for the juvenile offender of subsequent
criminal proceedings .e.g. the stigma of conviction and sentence. It is further
observed that, especially in cases where the offence is of non serious nature and
where the family, the school or other informal social control institutions have
already reacted, diversion at the outset without referral to alternate social services
may be the optimal response.32 Research indicates that those children who enter the
criminal justice system are unlikely to emerge reformed characters, particularly if
they receive institutional care or custody. The UN Standard Minimum Rules for
Non- Custodial Measures33 (The Tokyo Rules) is also relevant to provision of article
40 of the CRC. The rules do not refer specifically to juveniles, but state that they
should be applied without discrimination based on age. They provide minimum
safeguards for persons subject to alternatives to imprisonment. The growing trend
towards alternative measures internationally can be judged from the Model Treaty
on the Transfer of Supervision of Offenders Who Have Been Conditionally
34
Sentenced or Conditionally Released. This provides us with the contextual
framework on how to deal with children in conflict with law and what possible
measures should be taken for their rehabilitation and hinder the relapse/recidivism
among them through alternative dispositions to imprisonment as is evidenced by the
fact that incarceration/imprisonment in any institutional setting, does not help to
reform the offender, rather it has negative effects and those coming out have
offended most.
54
C. Committee on the Rights of the Child and Fulfilment of State Obligations:

The Committee's Guidelines for periodic reports asks under Article 1
(definition of the child) for information on the minimum legal age defined in the
legislation for criminal responsibility (Para 24). Despite this clear obligation,
several States that have ratified the CRC, filed their implementation report, and
35 36
appeared before the Committee on the CRC without ever having set a bottom age.
An inappropriately low age for criminal responsibility shows that the State does not
have a clear idea of what the criminal law can achieve with young children, and does
not appreciate the harm that it can cause or for that matter the benefit of deliberately
keeping these children out of the formal system of criminal justice. This is a major
demarcation that completely shuts young children out of the judicial system. A too
low an age of penal responsibility shows that the State has not re-examined its penal
system with the aim of promoting the healthy development of children. Moreover
the Committee has never specified the age, it should in fact be taking strong position
on such issues and should be more definitive in approach and very clear in sending
messages and what it want to be done.
The Committee on CRC while in its concluding observations to Nicaragua
stating that the, “state party give particular attention to ... ensuring that deprivation
of liberty is used only as a measure of last resort,… and to developing alternative
measures to deprivation of liberty……consider reviewing its penal policies
concerning "property offences" committed by children, and establish alternative
37
measures to address the needs of children involved in this type of offence.
The Committee showed concern about the unjustified, disproportionately high
percentage of Aboriginal children in the juvenile justice system and that there is a
tendency normally to refuse applications for bail for them. The Committee was
particularly concerned at the enactment of new legislation ……… which provides
for mandatory detention and punitive measures of juveniles, thus resulting in a high
percentage of Aboriginal juveniles in detention.38 Now, what do the Concluding
Observations to Australia show? The Committee did not condemn the mandatory-
incarceration laws as violations of articles 37 and 40. Instead, it handled the matter
exclusively as an indigenous people's issue. The Committee did not relate this
“concern” to any specific CRC article. In other words, the focus shifted from
juvenile justice to indigenous people. The mandatory-incarceration laws in question
are matters of international concern from both perspectives, and both need to be
raised. But the attention in the recommendations went to only one of the issues. As a
result, the recommendation to Australia missed an opportunity to drive home a
fundamental point about juvenile justice, a point that applies to all States, and
irrespective of any differential impact on any particular social group. And the
recommendation failed to condemn the unjust sentencing laws in the strongest
human rights terms: that they are per se violations of CRC articles 37 and 40.
55
The Observations on juvenile justice are not connected to the social context,
with few exceptions. This lack of linkage may be one reason why prevention and
rehabilitation are often not given attention in the recommendations, except
indirectly though the references to various UN guidelines. For example, in the
Observations during 1999 there are no specific recommendations on prevention
with respect to Mexico, Mali, South Africa, and Peru (although reintegration is
covered); and neither prevention nor rehabilitation is expressly mentioned for Sierra
Leone and India. All of these Observations do refer to the Riyadh and Beijing
guidelines and the Rules for the Protection of Juveniles, but this is no substitute for
39
specific recommendations from the Committee.
Unfortunately, there are far too many Concluding Observations that fall into
this pattern of insufficient attention to juvenile justice. Moreover the
recommendations are too “thin” in their content. For instance, a 1994
recommendation to France reads: “The Committee is also concerned that legislation
and practice relating to arrest, detention, sentencing and imprisonment within the
system of the administration of juvenile justice might not be fully consistent with the
provisions and principles of the Convention, and in particular articles 37 and 40”.
And a 1999 Concluding Observation to Mexico recommends the State to
“effectively implement a juvenile justice system in accordance with the Convention
and other related international standards”.
Recommendations that are vague like those just quoted are not very useful to
government officials, or to NGOs working for young people. It is far more helpful
when they are concrete, such as: “guarantee prompt access to justice for children in
pre-trial detention”. (Mexico; some other recommendations to this State are equally
specific.)
In evaluating the recommendations since the first review session in 1993, it is
important to note that there have been significant improvements, particularly in the
past couple of years. The recent Concluding Observations are, overall, more specific,
more comprehensive, and more readable. Nevertheless, the juvenile justice
recommendations still tend to lag behind those made in respect to other major areas.
The Committee has not hesitated to criticize overcrowding of detention
facilities, bad conditions in these institutions, lengthy delays in trials, and other
abuses, all of which will require significant outlays of money to correct. But the
recommendations almost never speak directly about increasing the budget
allocations for the administration of justice. In fact, it has done so only once, to the
Russian Federation: “The Committee urges the State party ... to make the necessary
resources available for the administration of such alternatives [to incarceration] and
to restructure reform institutions ...” (second report). To be sure, on several
occasions the Committee said that it was aware of a State's lack of financial
56
resources (e.g. Burkina Faso, Nicaragua, Sierra Leone, Chad), but it did not take the
next step of making a recommendation on spending priorities.
The Case of Pakistan

A. The treatment of children under the Pakistan Criminal Justice System:
i. An Overview of the Laws and how are they implemented?
To understand the status of the juvenile offenders in the Criminal Justice
System of Pakistan we need to have an overview of the Laws affecting children. The
main body of the criminal offences is set out in the Pakistan Penal Code 1860; while
criminal procedure is dealt with under the Code of Criminal Procedure, 1898. These
laws extend to all parts of Pakistan with the exception of certain tribal areas and parts
40
of Balochistan Province. In Pakistan the minimum age for criminal responsibility
41
is 7 years, but can be raised up to 12 years if the child has not attained sufficient
maturity or understanding to judge the nature and the consequences of his act.42But
this ambiguity of the criterion of “sufficient maturity of understanding” and the
arbitrary power that is given to the court to evaluate criminal responsibility of a child
between 7 and 12 years, this age should rather be raised in order to better respond to
43
the International standards, otherwise children above the age of seven are,
therefore, potentially eligible for the full range of penalties provided for in the code,
including death and life imprisonment.
Besides this, Hadood Ordinances of 1979 (so called Islamic Laws) relate to
offences relating to rape, adultery, use of alcohol and drugs, theft, robbery which are
dispensed through special proceedings and prescribed punishments. They apply to
all Pakistanis regardless of age, religion or geographical residence. Therefore,
children accused of offences falling under the ambit of Hadood Ordinances do not
receive any benefits of the special laws.
The Criminal Procedure Code provides for the confinement of any person
under the age of fifteen, sentenced to imprisonment, in any reformatory established
44
by the Provincial Government as a fit place for confinement. This provision relates
to the Reformatory School Acts, 1897(A Federal Legislation) that has also never
been used and is dormant for all practical purposes, as no such reformatories exist in
any of the four Provinces. The provision is also not applicable in areas where the
Sindh Children Act 1955,45 is in force. This Act was the only federal law on the
subject of juvenile justice until the enactment of the Juvenile Justice System
Ordinance, 2000. Till to date, no reformatory school has been established in
Pakistan, and the law has not even been notified for it to come into force in the
whole of the Country. Then we have provincial laws. i.e. in the Punjab and Sindh
provinces Borstal Schools Act 1955, cover convicts below the age of 21 years.
57
Furthermore, then there is Sindh Children Act 1955,46 and Punjab Youthful
47
Offenders Ordinance, 1983. Besides this Pakistan has probation and parole system
laid out in the Probation of Offenders Ordinance 1960, which is most underutilized.
My main contention is that since the provision of alternative sanctions presents
another, perhaps more feasible, solution to the detrimental effects of sentencing
48
children. Both the Convention on the Child and Beijing Rules address a variety of
dispositions to divert children from the juvenile justice system49 among such
alternatives probation, restitution, community service, and victim compensation,
thereby sparing children the stigma of conviction and punishment. Cases most
appropriate for diversion might include minor offenses or ones incurring only
financial liability. Nevertheless even in the case of minor offences, magistrates and
50
courts fail to employ alternatives to incarceration. According to one estimate, the
use of probation and parole alone could reduce the amount spent on prisons from
800,000,000 to 70,000,000 rupees annually.51 Utilizing probation and parole,
therefore, could eliminate severe overcrowding and simultaneously free needed
resources to improve prison conditions. Wretched and depressing conditions persist
in Pakistani prisons, cramped with pretrial as well as convicted children and adults.
While sufficient resources may not exist to correct an insufficient infrastructure in
the near future, possible interim and incremental steps do exist now.52
B. Latest Developments in the Law and State Obligations of Pakistan:

Article 4 of the CRC codifies State obligations by stating, “States Parties shall
undertake all appropriate legislative, administrative, and other measures for the
implementation of the rights recognized in this Convention”. Similarly, Article 2
states that “States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any
kind” … Thus, Pakistan as a signatory is bound to undertake positive obligations to
ensure the enjoyment of all guaranteed rights by children. Even in the context of
resource constraints it must meet 'due diligence' standards. On the face of it, in recent
years Pakistan seems to have initiated some steps, at least on paper. In order to
harmonize national law and policy and to ensure conformity of legislative and other
measures with the provisions of the CRC, the most significant change came on July
1, 2000, when the Government of General Pervez Musharraf promulgated the
Juvenile Justice System Ordinance 2000 (hereinafter JJSO 2000),53 the first ever
54
federal legislation on the subject. The Ordinance, fixed the age of a child at 18 years
for the first time and abolished the death penalty for children, and envisaged
establishment of Juvenile Courts and release of juvenile offenders on probation.
Thus, this law linked the police, probation, and judiciary and prison staff with one
another. Prior to the introduction of the JJSO 2000, several laws were prevalent in
Pakistan that pertained to the rights and welfare of children. The difficulty has been
58
that there was no law that had uniform applicability across the four provinces of
Pakistan. The law which governed children in the Province of Sindh was (and still
has applicability) the Sindh Children Act 1955; in the Province of Punjab, the
Punjab Children Ordinance 1983 and the Punjab Youthful Offenders Ordinance
1983 provided a legal framework. Sadly, no laws existed in the Province of NWFP
and Balochistan. One of the highlights of the JJSO 2000 is that it was made
applicable to the whole of Pakistan. However, the promulgation of this law did not
bring to an end the ordeal faced by children who come into conflict with the law.55
All four provinces as well as the Islamabad Capital Territory (ICT)
Administration had notified rules (hereinafter JJR) for implementation of JJSO by
2002. The AJK has promulgated the Juvenile Justice System Act 2003. The JJSO has
been extended to FATA, PATA and Northern Areas through notification. The
Provincial Governments have further established Juvenile Courts by vesting powers
to the Courts of Sessions Judges at the District level and in some districts to First
Class Magistrates.56
When going through the four stages of criminal procedure the arrest of the child
is the most important stage and it is from where the child could be saved from
experiencing the hardships of imprisonment and other problems. This stage is also
important as the police register the age of the child in the First Information Report
(FIR) which is important for further trial of the case and qualifying a child to the
benefits of the JJSO 2000. According to the JJSO all juveniles which the court
cannot release on bail because of various reasons: “should be placed under the
custody of a Probation Officer or suitable person or institution dealing with the
welfare of the children if parent or guardian of the child is not present, but shall not
under any circumstances be kept in a police station or jail in such cases”.57 To the
contrary the juvenile delinquents as a general practice are either kept in police
stations or sent to jail, as there is no remand home on ground in NWFP and
Balochistan province, which is in fact clear violation of the JJSO 2000 and its JJR
and CRC. The child coming in conflict with law will take ages to prove that at the
time of the commission of the offence he was a juvenile, as majority of the child
delinquents are illiterate and cannot prove their age with a school certificate.
Moreover, the police or the courts have seldom resort to medical checkups to
58
ascertain the age of the delinquent child. But the problem is that police are not
aware of the JJSO and they continue to treat children like adults and hardened
criminals. Police and probation departments have no coordination with each other
and staff members of a police station, including DSP (Deputy Superintendent of
Police) and SHO (Station House Officer .i.e. In- charge of police station) level
officers, have little or no knowledge of the role of the Probation Department.
59
Authority to release children on bail is not practiced by the police in particular

and by the courts in general. Majority of children who come into conflict with the
law are sent to prison and spend more time there as under trial prisoners than the term
59
of imprisonment in case of conviction. Under Section 10 and 11 of the JJSO
Probation officer has the most important role to play in diverting the first time child
offender away from institutional treatment. Here too the police have a very
important role to play in saving the future of a first time offender by using the
concept of diversion60 as provided under the newly established Police Musalihati
Committees and diverting him from entering the criminal justice system.
Under the JJSO 2000, children cannot be sent to ordinary prisons rather they
must be sent to a Borstal Institution61 for rehabilitation. There are only two Borstal
Institutes, both in Punjab Province (Both are administered by the Punjab Prisons
Department), one Youthful Offenders Industrial School and one Remand Home for
juvenile offenders, in Karachi, Sindh Province, in the country. Since the number of
Borstal Institutions is limited in the country, juvenile inmates are kept in separate
sections of the prisons called “Juvenile Section”. Interestingly, the existing Borstal
institutions are governed under the Jail manual and not under the Borstal Act with
virtually no rehabilitation taking place which in fact falsifies the claim of Pakistan
Government.62 In view of the prevailing situation, rehabilitation is taken out from
the very outset by keeping these institutions under the prisons Department who
Know little about rehabilitation and where one cannot make a difference between
the criminals and the keeper (Jail Staff)?
i. A legal reality check- Respect, Protect, Fulfill?

Children held for petty crimes, which are eligible for bail or for probation are
sent to jail. A weak probation system and lack of exclusive Juvenile Courts are partly
responsible for this violation. Some of the judges of the lower courts are not aware of
the JJSO and the probation system. Trend in the courts is more towards the punitive
approach than to look for non custodial means.Though death sentence has been
abolished under the JJSO 2000 for all those under the age of 18 years at the time of
committing the crime, but there are cases where the fate of the children still remains
63
undecided because of the determination of age.
ii. Remedies?
Although probation is not the due right of any accused rather it is court's
leniency towards the accused and first offenders. Almost 60 percent64 of these
prisoners are eligible for probation. They are asked they would be released if they
confess before the court. But this alternative to incarceration is very sparingly used
for the reasons that not many legal practitioners are aware about this measure or are
reluctant to use it. There are only 70 Probation Officers65 in Pakistan and only two
60
66
Female Probation Officers. While defending the lesser number of probationers and
parolees, officials of probation and proclamation department in all four provinces
were of the view that more human and financial resources should be provided to the
probation department and awareness should be created about the probation and
parole system not only among general masses but also among, judiciary and police.
There is a need to improve the working relationship among judicial professionals,
particularly judges and probation officers. High Courts may give instructions to the
67
lower courts to utilize the system of probation.
iii. Possible Avenues for Redress
Specific judicial laws and procedures for minors, extendable to whole of
Pakistan, including the Tribal Areas both Federally and Provincially
Administered, without any discrimination of sex, race etc.
Special provisions for the female offenders, as they have no separate detention
centres for them, so they have to be kept out from the institutions in any case.
Initiate a debate on alternatives to prison for children by e.g., publishing a
report, inviting someone from another country to lecture, factual news releases,
publicizing stories of good experience of children given an alternative sentence
rather than prison.
An awareness raising campaign should be launched targeting judges of juvenile
courts, probation officers, police prison authorities, management of special
institutions (e.g. borstal institutions and certified schools) and the relevant civil
society actors. Children at risk also need training and orientation on the
applicable laws and standards in the field of juvenile justice.
There should be appropriate monitoring and evaluation systems to support
juvenile rehabilitation institutions and the withdrawal of children from jails on
priority basis, with a special focus on the protection of vulnerable street
living/working children and other groups of children that most frequently come
into conflict with law. These children should be provided with
educational/vocational skills development programmes.
Ensure that children are detained in separate facilities from adults at all stages
of the judicial process.
The implementation process needs greater profile at the national level,
clarifying the significance of the Ordinance and renewing the nation's
obligation to the children. The wide range of actors involved in the juvenile
justice system: police, judges, lawyers, prosecutors, probation officers and jail
officials all need focused training and capacity building in order to realize their
commitments.
61
Prevention: emphasis on preventive policies facilitating the successful

socialisation and integration, with a high priority on the family and children in
risk.
Analyze the current legislative situation and ensure that it is understood by the
important players, e.g. new legislation may not be needed.
Early Intervention: emphasis on community-based services, specific
programmes, non-institutional treatment, coordination, and interdisciplinary
effort.
More stress on reducing pre-trial detention.
Set up a working group (on the pattern of Juvenile Justice Working Group in
NWFP) ensuring that all agencies with an interest are represented. Draw up
some proposals to introduce alternatives or new methods of supervising
alternatives and ensure wide discussion.
Pakistan should give consideration, wherever appropriate, to dealing with a
juvenile offender without resorting to a formal trial, provided that human rights
and legal safeguards are fully respected. Alternative methods include referral to
community or other services (Police Musalihati Committees and reformative
justice for diverting children out of the criminal justice system).
Application of the principle of “doli incapax”, so that the age of criminal
responsibility could be raised in accordance with internationally acceptable
standards, which further help in blocking the young offenders from entering the
criminal justice rigmarole.
Ensure that arresting officers follow the correct procedure in determining the
age68 of the child arrested, and that they have prompt access to adequate external
verification sources if necessary.
Courts must ensure that sentencing is proportionate to the crime and takes into
consideration the age and best interests of the child.
Listening to children would be a valuable exercise when developing schemes to
prevent crime.
69
Run some pilot schemes and evaluate the process and the outcomes very
carefully.
Once a major debate is generated and alternatives have been broadly accepted
there is the potential to look at other areas of necessary reform, e.g., more diversion
and crime prevention. However, on balance it has to be said that the record of
Pakistan in this area continues to be a matter of concern. The obligations of the State
to respect, protect and fulfill have not in any way been met by the passing of a few
62
laws like the new ordinance. Even the basic steps to respect the obligations
undertaken are not seriously implemented. For example while Probation is an
established system, many in the criminal justice system, including judges are not
fully aware of the presence of Probation officers in the local area. This violates the
provisions in CRC- Article 42 of the CRC states that "States Parties undertake to
make the principles and provisions of the Convention widely known, by appropriate
70
and active means, to adults and children alike and Article 44 provides that "States
Parties shall make their reports widely available to the public in their own
countries."71 This sums up the lack of policy commitment and also the absence of
civil society commitment to juvenile justice matters. Ultimately, the State has failed
to honour its international obligations. When Pakistan submitted its second periodic
report to the Committee on the Rights of the Child made the following observations
and recommendations, comments:
" welcomes the promulgation of the Juvenile Justice System Ordinance
(JJSO, 2000), but is concerned at the poor implementation of this
Ordinance and that many of the authorities in charge of its
implementation, particularly within provincial governments and tribal
areas, are unaware of its existence. The Committee is also deeply
concerned at the high number of children in prisons, who are detained in
poor conditions, often together with adult offenders and thus vulnerable
to abuse and ill-treatment. The very low minimum age of criminal
responsibility (7 years) is also of concern to the Committee. Further, the
Committee is deeply concerned about the reports of juvenile offenders
sentenced to death and executed, which have also occurred after the
promulgation of the Juvenile Justice System Ordinance''
The observations were clear but not authoritative and nothing much on why
Pakistan submitted its report after four years delay, such an approach sends wrong
signals, that's why the Committee has to assert and play proactive role to make the
states fulfill their obligations under the international law. However, the Committee
slightly upped the ante in its concluding observations and recommendations on
Pakistan's 3rd & 4th periodic report in 2008:
“…The Committee welcomes the promulgation of the Juvenile Justice
System Ordinance (2000), but is concerned at its poor implementation
and that many of the authorities in charge of its implementation,
particularly within provincial governments and tribal areas, are unaware
of its existence. The Committee is also deeply concerned at the high
number of children in prisons who are detained in poor conditions, often
together with adult offenders and thus vulnerable to abuse and ill-
treatment…”
63
“… The Committee recommends that the State party:

a. Ensure the full and effective implementation of juvenile justice
standards, in particular articles 37, 40 and 39 of the Convention and other
United Nations standards in the field of juvenile justice, including the
United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the
Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United
Nations Rules for the Protection of Juveniles Deprived of Their Liberty
and the Vienna Guidelines for Action on Children in the Criminal Justice
System, and, in the light of the Committee's 1995 discussion day on the
administration of juvenile justice (CRC/C/46);
c. Consider deprivation of liberty only as a measure of last resort and
for the shortest possible period of time;
f. Ensure that children in detention are always separated from adults”
A lot still need to be done for full implementation of the JJSO 2000, perhaps a
country visit by the Committee on CRC would bring the desired change and
realization in the government circles in this low priority area.
Conclusion
"Childhood is entitled to special care and assistance” CRC preamble.
International standards set out clear guiding principles relating to alternative
dispositions to imprisonment. These are founded on the duty of the state to secure
the best interests of each child and the corresponding duty to ensure that measures
affecting children who have broken the law are proportional to the gravity of the
offence and take into consideration the personal circumstances of the juvenile.
Every child has the right to protection by their family, the state and society as
required by their status as a minor. The best interests of the child must be a primary
consideration in all actions concerning children, including those undertaken by
courts of law, administrative or legislative bodies. In line with the rehabilitation into
society as the standard of true correction of a deviant child, the juvenile justice
system must emphasize the well-being of the juvenile and ensure that any reaction to
juvenile offenders is always in proportion to the circumstances of both the offender
and the offence as per Rules 5 and 17(1) of The Beijing Rules.
Pakistan should recognize the right of every child accused of a criminal offence
to be treated in a manner consistent with the promotion of the child's sense of dignity
and worth, taking into account the child's age and the desirability of promoting the
child's reintegration and assumption of a constructive role in society. Juvenile
justice systems should uphold the rights and safety and promote the physical and
64
mental well being of juveniles and take into account the desirability of rehabilitating
the young person. Policies should involve consideration of the fact that "youthful
behavior or conduct that does not conform to overall social norms and values is
often part of the maturation and growth process and tends to disappear
spontaneously in most individuals with the transition to adulthood", as rightly
asserted in Article 5(e) of The Riyadh Guidelines.
Most international standards encourage - but do not require - states to establish
separate or specialized procedures and institutions for handling cases in which
children are accused of or found responsible for having committed criminal
offences. The American Convention, however, requires states to establish
specialized tribunals for handling cases of juveniles accused of crimes.72 Coming
specifically to the case of Pakistan, as a party to the Convention on the Rights of the
Child (CRC) Pakistan should be confronted for non-implementation of the relevant
laws on the subject. The issue in Pakistan is not non-existence or lack of requisite
laws on the subject but the implementation of these provisions. Pakistan ratified the
CRC on November 12, 1990, and upon signature Pakistan made the following
reservation: “provisions of the Convention shall be interpreted in the light of the
principles of Islamic laws and values,” but withdrew it in 1997. When a country
ratifies the Convention, it assumes a legal obligation to implement the rights
recognized in the treaty. The Beijing Rules recognized the necessity to factor in local
conditions by stating that child criminal justice should be "be conceived as an
integral part of the national development process of each country." 73 But this cannot
be a valid excuse to keep improvement of child justice system as lowest priority in
terms of resources and policy commitment. It is the imperative of international law
today to treat the children themselves as 'full and equal partners' 74 and to involve
progressive civil society institutions. The State must play its role in promoting,
protecting and fulfilling the rights of children without any bias against delinquents.
In other words international norms expect state not to hide behind the 'delinquency'
excuse to deprive children of their basic rights. Pakistan cannot be an exception. In
Pakistan it is time now to step away from "a general tendency to inflate and overreact
to the delinquency "problem''75 and truly work for the best interests of the child as
envisaged in the CRC.
65
End Notes
1
Preamble of the United Nations Convention on the Rights of the Child, G.A. Res.
25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/736
(1989),“by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection, before as well as
after birth”
2
Declaration on the Rights of the Child,1959
3
Ibid, Principle 2
4
See Principle 1, U.N. Declaration of the Rights of the Child
5
Standard non discrimination provisions, extendable to children, appear in the other
major conventions. See, e.g., Article 2(1) of the International Covenant on Civil and
Political Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N.
Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976)
[hereinafter ICCPR]; Article 2(2) of the International Covenant on Economic,
Social and Cultural Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16,
at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, (entered into force Jan. 3, 1976).
6
United Nations Convention on the Rights of the Child, G.A. Res. 25, U.N. GAOR,
44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/736 (1989).
7
Art. 3, ibid
8
UN Doc E/CN.4/1998/35 (1998) on the “Question of the human rights of all
persons subjected to any form of detention or imprisonment”, which stated that,
“The risks and the consequences of arrest and detention pending trial appear to be
underestimated. Juveniles can be exposed to authorities' violence, which is still
tolerated in certain countries and to hardened criminals attention which could
transform the juvenile's stay into a life-long nightmare”. See also generally the
reports of Human Rights Watch, Prison Bound, The Denial of Juvenile Justice,1999
http://www.hrw.org/en/reports/1999/11/01/prison-bound and Amnesty
International, Denial of basic Rights of the Child Prisoners,2003 Pakistan: Denial
of Basic Rights for Child Prisoners. (2003). Retrieved 09 03, 2009, from Amnesty
International USA: http://www.amnestyusa.org/document.php (Imprisonment of
juveniles-male and female in jails and conditions they live in.)
9
See Supra note 8 (Human Rights Watch Report, “Prison Bound(1999).
10
Data as provided in CRC/C/PAK/Q/3-4/Add.1:2009. Written Replies by the
Government of Pakistan to the List of Issues (CRC/C/pak/q/3-4) Prepared by the
Committee on the Rights of the Child in Connection with the Consideration of the
third and fourth Periodic Reports of Pakistan (CRC/C/PAK/3-4 (2009), Website :
http://tb.ohchr.org/default.aspx?country=pk.
66
11
Jahangir, Asma & Mark Doucet, “Children of a lesser God”: Child prisoners of
Pakistan (1993), p.44.
12
Declaration on the Rights of the Child,1959 and the CRC 1989, both put it so.
13
Fortin, Jane, Children's rights and the Developing law,(1998),at p.439,
Butterworths, London,at p.439.
14
Ibid
15
International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N.
GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171,
(entered into force Mar. 23, 1976)
16
Nowak, M, UN Covenant on Civil and Political Rights: ICCPR
Commentary,1993.p.265, (Kehl am Rhein: Engel),
17
HR Committee, General Comment 17.(1989)
18
HR Committee ,General Comment 21(1992)
19
Article 40(3) (a) of the UN Convention on the Rights of the Child. See also for
background of Article 40(3) (a) ,UN Doc. E/CN/4/1989/48. para 534, and
20
Van Bueren, Geraldine, International Perspectives on Adolescents Competence
and Culpability: A Curious Case of Isolationism: America and International Child
Criminal Justice,(1999) Bridgeport Law Review/Quinnipiac Law Review.
21
Rachel Hodgkin and Peter Newell, Implementation Handbook for the CRC
(1997),p.414
22
See UN Doc. CRC/C/58,p40,at note 1(1996)
23
1990 UN rules for the protection of the juveniles deprived of their liberty were
th
adopted by General Assembly resolution 45/113 of 14 December 1990..
24
This provision is based on the 1985 UN Standard Minimum Rules for the
Administration of Juvenile Justice (Hereinafter Beijing Rules), in particular rules 13,
17 & 19 thereof and UN Rules for the protection of the JDL, in particular its rules 1, 2,
and 17.See also Article 10(2)(b) of ICCPR.
25
Compare it with Article 40(4) of CRC.
26
Article 40 of CRC.
27
Ibid
28
Compare it with rule 17.1 of the Beijing Rules.
67
29
A large variety of disposition measures shall be made available to the competent
authority, allowing for flexibility so as to avoid institutionalization to the greatest
extent possible. Such measures, some of which may be combined, include:
a. Care, guidance and supervision orders;
b. Probation;
c. Community service orders;
d. Financial penalties, compensation and restitution;
e. Intermediate treatment and other treatment orders;
f. Orders to participate in group counseling and similar activities;
g. Orders concerning foster care, living communities or other educational
settings; and
h. Other relevant orders.
30
Beijing Rules, Part Four-non institutional treatment.
31
See Article 40(3) (b) of the CRC and the Beijing Rules, rules 11.1-11.4, together
with the commentary.
32
Detrick, Sharon, “A Commentary on the United Nations Convention on the Rights
of the Child”(1999), p 702,Martinus Nijhoff
33
Standard Minimum Rules for Non-Custodial Measures [The Tokyo Rules] (UN),
1990
34
Adopted by General Assembly resolution 45/119 of 14 December 1990.
35
Astonishingly low ages that a number of countries have set, and which the
Committee has found to be violations of the treaty: 7 years (Australia, Bangladesh,
Cyprus, Ghana, India, Myanmar, Nigeria, Syria, Yemen), 8 years (Sri Lanka), 10
years (Fiji, Sierra Leone, United Kingdom), and 11 years (Barbados). In addition,
the Committee has expressed disapproval of the ages set by 21 other States by
recommending that they review their criminal responsibility laws for CRC
compliance. (Belize, Chile, China, Guatemala, Hong Kong, Ireland, Jamaica,
Jordan, Lebanon, Mexico, Morocco, Nepal, New Zealand, Pakistan, Philippines,
Poland, Slovenia, Sudan, Thailand, Trinidad & Tobago, Zimbabwe).
36
Guatemala, Micronesia, Panama, and Senegal.
37
Concluding Observations of the Committee on the Rights of the Child: Nicaragua
24/08/99. CRC/C/15/Add.108, at para 43.
38
Concluding Observations of the Committee on the Rights of the Child: Australia
10/10/97. CRC/C/15/Add.79
39
In fact, there is a danger that the habitual citation to these UN documents becomes a
crutch; citing these documents may substitute for the making of concrete
recommendations.
68
40
Federally Administered Tribal Areas, Provincially Administered Tribal Areas and
parts of Balochistan are governed by special criminal legislation (Collective
responsibility under which the question of age does not arise at all).
41
Section 82 of the Pakistan Penal Code, 1860.
42
Ibid, Section 83.
43
Article 4.1 of the Beijing Rules states that “in those legal systems recognising the
concept of the age of criminal responsibility for juveniles, the beginning of that age
shall not be fixed at too low an age level, bearing in mind the facts of emotional,
mental and intellectual maturity”. The commentary that goes with this article
clarifies that the minimum age of criminal responsibility differs widely owing to
history and culture, but if the age of criminal responsibility is fixed too low or if there
is no lower age limit at all, the notion of responsibility would become meaningless.
44
Section 399 of the Criminal Procedure Code, 1898
45
Section 6 of the Sindh Children Act 1955
46
Sindh Children Act, 1955: The Act applies to children in difficult circumstances
who are below the age of sixteen, with specific provisions for children in conflict
with the law. It authorizes the establishment of juvenile courts. Where such courts
are not established, the law provides for powers to be expressly conferred on
existing courts with exclusive jurisdiction to deal with children under this Act.
47
Alternatives to placement provided by the Ordinance include discharge after
admonition, release on probation of good conduct for a period not more than three
years, or punishment of fine payable by the parent or guardian of the child.
48
See Jahangir & Doucet, See Supra note 11(asserting law could afford child
offenders much greater protections). Jahangir & Doucet recommend that courts
neither sentence nor imprison children at all. See at 44 (recognizing such ideas as too
premature for Pakistan).
49
Ibid. at 44 (asserting alternatives to sentencing do not make children any less
accountable for their offenses).
50
Geiger, Andrea, Juvenile Justice in Pakistan, 23 Suffolk Transnat'l L. Rev.
713(2000)
51
Arshad Mahmood, SPARC, Discourse, issue No. 14 December 2003, page 8, 9 &
10. by
52
Geiger,Andrea,Supra50
53
The JJSO focuses on the child in the criminal justice process. It defines the child in
line with international standards as a person below 18 years of age(2); provides for
69
the establishment of special juvenile courts exclusively to try juveniles under

special procedures suitable for children; regulates the arrest of children by police as
well as bail and probation; provides for the appointments of special panels of
lawyers to assist children free of charge in court; and prohibits the death penalty and
the use of fetters and handcuffs for children. Interestingly, JJSO states
unequivocally in its first section that it "extends to the whole of Pakistan", it was
initially only applied in the four provinces, Sindh, Punjab, Balochistan and the
North West Frontier Province (NWFP), but this Ordinance is not extendable to
Federally Administered Tribal Areas, Provincially Administered Tribal Areas and
parts of Balochistan, Under Article 247 of the Constitution, a separate notification
has to be issued by the President and the Governor of the province for extending a
law to the Federally-Administered Tribal Areas (FATA) and PATA, respectively.
also see “Progress Report on the implementation of the Convention on the Rights of
the Child”, Government of Pakistan, 2000, p. 103.
54
But the age of the Criminal responsibility has not been raised as yet from 7 years, a
child is allowed to work at 14, but he can open an account in the bank at the age of
18.,but off course can now vote at the age of 18 (latest development).Boys are not
free to marry until they are 18 and majority is attained under the Majority Act of
1876 , at 18.How can it be that they are denied rights and privileges which adults are
free to enjoy, presumably because they are not mature and yet at the same time they
are often treated as fully grown adults for the purposes of criminal sanctions? The
Correct approach would be to recognize that a young boy and girl under the age of 18
is a child, and then bring the penal laws in conformity with that fact.
55
It is pertinent to note that the Lahore High Court struck down the JJSO in
2004.However, the Federal Government went to the Supreme Court against the
decision of the Lahore High Court in 2005. In response to the Federal Government's
petition, the Supreme Court restored the JJSO through a short order. It was decided
by the Supreme Court that the case will be taken up later. The case came up for
hearing on 19 May 2009. Since then there have been number of hearings on the issue.
Though the Supreme Court has not yet decided the matter, it is strongly felt that it
will restore the JJSO very soon. The last hearing of the case was on 23 July 2009
when it was adjourned.
56
No exclusive Juvenile Courts exist to date.
57
Section 10(3) of JJSO 2000. See also Rule 19 of the JJR states that “The juvenile
shall not under any circumstances be kept in a police station or jail.” See generally
JJR 53, which talks of “No Stigmatization”. Incarceration in a jail is in fact
stigmatization.
58
Section 7 of JJSO 2000 that on “Determination of age… If a question arises as to
whether a person before it is child for the purposes of this Ordinance, the Juvenile
70
Court shall record a finding after such inquiry, which shall include a medical report
for determination of the age of the child.”
59
See Generally Amnesty International Report 2003 at Supra note 8.
60
It is based on the understanding that formal responses to juveniles who come into
conflict with law do not always protect the best interests of children or the
community and that it can do more harm than good to certain juveniles. A juvenile
may be diverted from the formal criminal justice system on admission of guilt, or if it
is the first time offence, or the matter is a minor one. O'Connor, I., & Carmeron, M.
(2002). Juvenile Justice in Australia.
61
In its recommendation the Sub- Committee constituted in 2006 by the Provincial
Human Rights Monitoring Committee (NWFP) stated that, “The article 40 of the
Convention of the Rights of the Child talks of institutional care as a measure of last
resort and for minimum period of time. It has at no point of drafting of the
Convention equated institutional care with imprisonment. Moreover the inspiration
that we got from British concept of Borstal institution too at no point made a mention
that a juvenile offender can be sentenced to imprisonment in a prison. Instead he
may be sentenced to detention in a young offenders institution. It was evident to the
subcommittee during the course of the visits of the three Borstal institutions of
Pakistan that the Borstal institution and the prison department cannot become
natural partners in this process, because they are two differently administered
institutions by two differently trained staff. From the very outset the rehabilitative
factor is taken out, if a Borstal institution becomes a part of the prison department.
The apparent apathy attached by the prison department is abundantly clear to all the
members of the subcommittee and strongly recommend that separate staff
specifically trained for dealing with juvenile offenders should administer all Borstal
institutions.”
62
Pakistan stated in its report on the implementation of CRC CRC/C/PAK/Q/3-
4/Add.1:2009 at supra note 10, that “Over 95 per cent of all the convicted juvenile
prisoners are housed in exclusive Borstal Institutions and Youthful Offenders
Industrial Schools. There are two Borstal Institutions in the Punjab province while
there are two Youthful offenders Industrial Schools in Sindh for the rehabilitation of
juvenile prisoners. The NWFP Government has set an Adolescent Training Centre at
Central Jail Haripur for the juvenile prisoners. In addition to that, Sindh
Government has set up a Remand Home for the under-trial juvenile offenders in
Karachi. In all other places, juveniles are detained in juvenile cells within the
District or Central Jails. Other male prisoners are not allowed entry into such
juvenile cells. The NWFP Government has built a new Borstal Institution at Bannu
which will be operational soon. The provincial government has allocated funds to
that effect as well”. A Sub-Committee of the Provincial PHRMC (NWFP) in 2006
71
conducted the survey of above stated institutions and found them wanting in
providing even the basic elements required for the rehabilitation of juveniles
practiced world over i.e. formal education, skill development and most importantly
psychotherapeutic treatment. I am not talking at all of the staff deputed to attend to
these juveniles. Report placed on record for perusal. So in all earnest the institutions
for the rehabilitation that we are boasting about are prisons rather than rehabilitative
institutions.
63
Despite the slowness in implementation and the lack of awareness amongst
members of the criminal justice system of the JJSO, some progress has no doubt
been made, largely thanks to several child rights organizations in Pakistan which
have formed the Juvenile Justice Network, lobbied for the full implementation of the
JJSO and undertaken awareness training programs for staff of the criminal justice
system. See also Supra Amnesty International Report,2003.
65
See.Supra 51
66
Supra,at 51
67
Only 133 juvenile probationers released on probation “The State of Children
Rights in Pakistan 2008 SPARC”.
68 rd th
According to 3 and 4 periodic report on CRC submitted by Pakistan, “there is
lack of awareness about the [probation] system and its significance. Police, prison
officials and even in the ranks of lower judiciary there is lack of awareness
concerning probation system.” There is no authentic system of birth registration in
the whole country. The birth registration rate in the country is only 29.5% as
provided in the 3rd & 4th periodic report by Pakistan to the Committee on CRC in
2008. In the absence of such a system it becomes very difficult to determine the
exact age of a person accused of having infringed the penal law. This difficulty in age
determination results in many mishaps to the child in conflict with law in the
province.
69
A. Coleridge; G. Qadri; Save the Children Sweden: Pakistan Programme
Publisher: Save the Children [Sweden], 2006.
Website:http://sca.savethechildren.se/upload/scs/SCA/Publications/Towards%20J
uvenile%20Justice.pdf. This document has documented the project launched by Mr.
Mashhood Ahmad Mirza Deputy Director of Regional Directorate of Human Rights,
Ministry of Law, Justice & Human Rights together with Save the Children Sweden.
The project's goal was to rehabilitate juvenile prisoners by providing them
education, vocational training, recreation and psychological support. Training of
prison staff and police officials in child rights and human rights is also undertaken to
bring positive changes in their attitude towards children. This very project is cited
rd th
as a success story by the Govt of Pakistan in its 3 & 4 Periodical Reports to the UN
Committee on CRC in 2008, See generally Paras on Juvenile Justice.
72
70
CRC, supra note 1, art. 42
71
Ibid art 44
72
Article 5(5) of the American Convention. ,prohibiting death penalty to under 18.
73
United Nations Standard Minimum Rules for the Administration of Juvenile
Justice, G.A. Res. 33, U.N. GAOR, 40th Sess., Supp. No. 53, at 207, U.N. Doc.
A/40/53 (1985) ("The Beijing Rules").
74
United Nations Guidelines for the Prevention of Juvenile Delinquency, G.A. Res.
112, U.N. GAOR, 45th Sess., Supp. No. 49A, at 201, U.N. Doc. A/45/49 (1990)
("The Riyadh Guidelines").
75
A.D. Viccica, The Promotion and Protection of Children's Rights Through the
Development and Recognition of an International Notion of Juvenile Justice and Its
Child-Centered Perspective in the United Nations, 58 Nordic J. Int'l L. 73 (1989).
The author, Mirza Mashhood Ahmad, has done his M.A. in International Relations from the University
Peshawar and LLM in International Human Rights Law from the University of Essex, UK as a British
Council Chevening Scholar. He is a civil servant by profession. He has served in the Ministry of Human
Rights for nine years and is currently serving as Director in the Federal Ombudsman. His area of special
interest is human and child rights (Juvenile Justice Reform). He has got hands on experience of
successfully conceiving and implementing a pioneering project titled “Rehabilitation of Juvenile
Prisoners in NWFP” and Balochistan Provinces.
73
Missing Children and The NWFP Police

Missing Children Centre
Fasihuddin
Abstract:
Missing Children is a serious issue and the term has many connotations in the western world.
However, for the purpose of this paper, the word missing children is used for a certain
category of children who are reported to the local police as missing but little is done for their
recovery and rehabilitation. No proper laws are available in Pakistan to deal with the issue of
missing children as described in this paper. The performance of the NWFP Police Missing
Children Centre has been discussed as a case study in this respect. National and international
stakeholders have to devise new strategies and frame new laws to address the issue of
missing children.
Keywords:
Missing Children, NWFP, Police, CRC, NGO, Police Child Protection Centre, NISMART,
Data.
Introduction
Prior to 1988, little information was known about missing children in the USA.
The juvenile justice system and the criminal justice system provided few resources
to assist parents of missing children and law enforcement agencies looking for
missing children. As a result of the recognition of this flaw in the criminal justice
system, nationwide attention focused on developing resources and coordination of
law enforcement agencies. In 1983, President Ronald Regan emphasized the
importance of responding to the problem of missing children by proclaiming May
25 as National Missing Children's Day. The first reliable nationwide information on
missing children, as a result of the Missing Children's Assistance Act, was the 1988
survey of missing children (published in 1990). The first study is known as the
National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway
Children, or NISMART 1. In 1999, NISMART 2 estimated there were 1,682,900
missing children in the United States. Both the surveys gathered data from multiple
sources and provided a standard definition of the various categories of missing
children. Amongst the key findings of NISMART 2 was that approximately 71
percent of missing children have been endangered during their
runaway/thrownaway episode by virtue of factors such as substance dependence,
use of hard drugs, sexual or physical abuse, presence in a place where criminal
activity is accruing or extremely young age (Fagin, 2007). Children runaway, (the
largest of the missing children), for a variety of reasons. Some come from homes
where there is little love and affection. Others clash with their parents over disputed
Fasihuddin
74
activities within the home, problems in school, and difficulties with friends. Some
are lured away from home by the promise of drugs or the money that drugs might
bring. Some leave homes because of sexual abuse while other leave because of
beatings. Official estimates show that the vast majority of the children who remain
at large for a week will resort to theft or prostitution as a method of self-support. Of
all children who do run away, only 20% ever come into official contact with police
or social service agencies (Schmalleger, 2007).
The above discussion from the US perspective shows that the issue of missing
children has been recently become a centre of attention but has rightly been
addressed by a variety of government initiatives, including national surveys, data
collection, new legislation, establishment of new departments and the overall
changes in the criminal justice system and law-enforcement. On the contrary, the
situation is deplorably bleak and unsatisfactory in Pakistan. First, there is no
national or local surveys, no official statistics and no patchy or comprehensive data
and its analysis available in Pakistan. Secondly, there is no legislation or clear-cut
policy in the country. Thirdly, no single government or law-enforcement agency or
social sector has taken the responsibility of dealing with missing childrenright from
tracing and reporting to the reintegration and rehabilitation. Fourthly, the issue is not
a top priority concern with most of the NGOs either, except a few. So no tangible
work is available on the subject-matter. Despite these facts a small initiative by a few
officers of the North-west Frontier Province (NWFP) Police Department is a
positive step in this direction, which is the focus of this paper.
The NWFP Police Missing Children Centre

Due to the high profile cases, media news, public complaints and inexorably
rising tide of missing children, as reported in the police station of Capital City Police
Peshawar, a few young officers decided to establish a “Missing Children Centre” On
December 12, 2007. The centre was to register the report/complaint of a missing
child, communicate the same i.e; particulars of a missing child to all the police
stations of the Province through wireless message, and when found and recovered,
inform the family/guardian of the child. If the family was not readily accessible, the
child would be handed over to one or other shelter homes, established by a few local
NGOs. This was an apparently nice arrangement and it started with much applause
from the local community, the NGOs and mass media. However, there were some
fundamental drawbacks in this arrangement which can be summarized as:
a. The centre was established with no proper legal authority or administrative

support from the Central Police Office (CPO) which is the provincial police
headquarters. All such initiatives need necessary legal and administrative
cover from the higher police authorities.
75
b. No proper standing order was issued by the police department which could
have identified the role and responsibilities of the staff/officials in the centre,
and so Terms of Reference (TORs) were not determined at the very inception.
Such lacunae result in problems of efficiency and accountability.
c. The pioneers of the centre didn't design a proper record system for missing
children, so all information were entered into a self-styled registers which were
maintained manually. No senior officer ever checked and reported upon such
record.
d. No extra funds were allocated to the centre. Unfortunately, the centre was not
given a separate telephone connection. Also, the centre was not provided a
police vehicle of its own. The centre depended on the local police station for
communication facilities, which was a burden on its limited resources and the
only telephone line in the police station. This was the most unfortunate aspect
of the said centre. Often children were stuck in the police station till their
families or social workers of the NGOs could be informed or till the only police
mobile of the said police station could arrive and take the child to the nearby
shelter home.
These were some of the flaws in the overall establishment, working and
services of the centre. This clearly shows that not only the police leadership failed to
fully utilize this opportunity and appreciate the vision and commitment of a few
young officers, but also it indicates the poor support system and zero assistance from
international organizations whose financial or technical support could have made
the centre as a role model for all other provincial police departments and law-
enforcement agencies. Interestingly, despite these basic shortcomings, the centre
delivered excellent services by keeping a record of the missing children, which
otherwise was not available, and by locating them through regular wireless
messages to the police stations and by bringing them back to their families with the
help of local NGOs. Unlike the US initiatives for missing children, which include
more than the runaway, missing or thrown away, the term missing in the Pakistani
context is used only for those children who are lost to their families and about whom
no apparent reason or credible information is available for being abducted, kidnaped,
trafficked or smuggled, injured or killed. Such actions are cognizable offences and
are registered in a police station for proper police investigation. Mere “missing” is
recorded as a report in the Daily Dairy, called Roznamcha, of the police station,
where after an enquiry is conducted to ascertain the validity of the report and assess
the circumstances in which a child is missing or found, whether some crime is
committed against the child or not. Unluckily, all such police enquiries are not
properly done, as rarely a Roznamcha is seen for the pending reports and enquiries
by senior officers or the outcome of such enquiries are reported to the higher offices
Fasihuddin
76
for record, unless categorically called by a senior officer or required by a court of law.
No mechanism is available in the police department for looking after such reports
and the enquiries therein. This provision of enquiry was not observed in the centre
and thus detailed analysis on the causes of missing and the events happened to the
child during the missing period, or the psychological assessment of the child or
family could not be done at the centre. Even the legal status of the children who are
still missing could not be determined, as whether a proper police report is to be
lodged with the local police for investigation or otherwise. Such issues need
intervention by the courts and need legal interpretation.
After the formation of a Police Child & Women Protection Committee
(PCWPC) by the NWFP Police in 2009, headed by the writer, the record of the centre
was thoroughly checked and perused. A new data base was designed by the PCWPC,
with the support from Save the Children Sweden, and all the manually recorded
information were computerized. The available record shows that since December,
2007 to September 2009, a total of 1700 missing children were reported to the centre,
whereby 1349 children were shown as recovered and reintegrated with their
families (79.35% recovery). Due to the initial drawbacks, many vital information
indicators were missing and the record of only -1238 children were put into the
newly designed data-base system. Later on, when the NWFP Police established a
Police Child Protection Centre (PCPC) in collaboration with the Ministry of Human
Rights and Save the Children Sweden, the centre was shifted to PCPC, where now
the officials are given a separate telephone, a vehicle, a separate office and where
they enjoy the support of two lady clinical psychologists. If the family is not readily
traceable, the child can be kept in a child-friendly environment in the PCPC with
proper care and food. The data system is being revised and now ample information
indicators will be included in the fresh data. However, many more steps are yet to be
taken by the police department, civil society and international organizations to have
separate, independent and fully equipped missing children centre.
Key Findings from the Available Data

As indicated above, out of the 1700 reported cases, only 1238 could be put into
the newly designed database system. The full record of the remaining 462 children is
yet to be traced and put into the said data base. Following are some of the findings of
the data available so far:
a. Figure 1 shows that the majority of missing children have been reported in
2009 (till September). This may be due to the increase in the number of
incidences of missing, especially after the 2.9 million people were displaced
from their native home towns in Swat, Dir and Buner in wake of the military
operation in 2009. The other reason may be the wide publicity of the Missing
77
Children Centre through all available means after the NWFP Police Child and
Women Protection Committee (PCWPC) started looking after its affairs. The
newly designed database system will include the reasons for missing, and soon
fresh research will explain the underlying phenomena therein.
498 200
40% 16%
540
44%
Figure I: Details of Missing Children. (2007Sept.2009)
b. Figure 2 shows that maximum number of missing children were recovered on

the same day of reporting (49.30%). Those who recovered within the first week
of initial reporting were not put to any psychological assessment, and we don't
know exactly what happened to them when they were missing from their
families.
600
500
Series1
400 Series2
30.80% 32.50%
Series3
300
18.50% 17.90% Series4
200
Series5
0.1
100 Series6
0
0
M 302 F 181 M 318 F 176 M 1 F 0
Same day During a week More than a week
483 (49.30)% 494 (50.40%) 1 (0.10%)
Figure II. Duration of Missing Children Recovery

Fasihuddin
78
c. Table I analyses the available data according to the age group of missing
children. Out of the 1238 reported cases 978 have been shown as recovered and
260 children including 76 female as unrecovered. The fate of such unrecovered
children is not known to the police. The enquiry reports are either not available
or incomplete and don't provide any clue of their whereabouts. This is a serious
issue and needs proper legal action by the respective police stations where the
initial report of missing was taken and recorded into the Daily Dairy. The
maximum of children reported to be missing belonged to the age group of 1-5
(33.11%). This speaks volume of parental or family care and other protection
facilities in the country.
Table I. Details of Missing Children & Recovery
Age Group Missing (1238) Recovered (978) Un-recovered (978)
M F M F M F
327 83 239 43 58 26
1-5 (26.413%) (6.704%) (24.437%) (4.396) (22.307%) (10%)
227 87 302 42 63 23
6 - 10
(18.336%) (7.027%) (30.879%) (4.294%) (24.230%) (8.846%)
289 33 197 45 40 18
6 - 15 (23.344%) (2.665%) (20.143%) (4.601%) (15.384%) 6.923%)
175 17 96 14 23 9
6 - 18 (14.135%) (1.373%) (9.815%) (1.431%) (8.846%) (3.461%)
1018 220 834 144 63 76
Total (82.228%) (17.769%) (85.274%) (14.722%) (24.230%) (29.23%)
d. In this case police are not the only agency who recovered the missing children
but other stakeholders have also joined the rank of searching teams. Table II
shows that the police recovered the maximum of the missing children (38.85%),
followed by the efforts of the parents and family themselves (32.71%). The role
of NGOs in this respect is not very promising, which indicates that either the
NGOs network is not very strong in the NWFP or the issue of missing children
is not on their priority agenda.
Table II. Details of Missing Children & Recovery

NGOs Police Parents / Guardian
M F M F M F
134 12 380 77 58 26
(13.701%) (1.226%) (38.854%) (7.873%) (22.307%) (10%)
146 457 375
Total (14.927%) (46.727%) (38.342%)
79
e.Many more information indicators can be drawn and identified from the
existing data but at the moment, the available record needs to be properly researched,
documented and analysed, for which a fresh version of data base is under process
with the support from Save the Children Sweden.
Legal Aspects of Missing Children Issue

Pakistan has no law to deal with the issue of missing children. As indicated
above, the term missing children has many connotations in the western world,
whereas it is restricted only to the accidentally missing children about whom no
proper complaint is lodged with the police for a crime perpetrated against them.
Abducted, kidnaped or trafficked children are dealt in accordance with the available
laws. However, the case of missing children as described in this paper has not been
addressed by any provision of the national law so far. The police enter the
information of a missing child in the Daily Dairy and conduct an enquiry into the
matter of missing till the child is recovered or some credible information or evidence
is received for commission of any cognizable offence against the child. Police
exercise such powers under Section 156 of the Criminal Procedure Code. The
difficulty is this that the enquiries so conducted are not available with the police and
not produced before the Magistrates and there is no specific time limit for such
enquiries. The police normally persuade the complainant (parents or guardians) to
register the First Information Report (FIR) against someone as allegedly responsible
for missing of the child or wait till the outcome of the enquiry. The particular case of
missing children as mentioned in this paper has not been an issue of due
consideration with many of the stakeholders.
The Draft National Child Protection Policy (as of March 2009) in Section 3
enumerates many categories of children in need of help and protection, but the long
list doesn't mention anything about missing children. Similarly, the proposed bill for
National Commission on the Rights of Children, 2009 in its Section 2 (e) defines
twelve different categories of a “child at risk”, but again it does not mention the issue
of missing children who otherwise are predisposed to numerous kinds of abuses,
crimes and deviance as noted in the US national surveys. The Convention on the
Rights of the Child (CRC) mentions many forms of separation between a child and
his/her parents or family in Article 9, 22, and 36, but still these provisions don't fully
cover the situation of missing children. The writer is of the view that either some
specific provisions of law be incorporated into the existing Pakistan Penal Code and
Criminal Procedure Code or a comprehensive law, like that of the USA, shall be
provided to cater for all kinds of missing children. The present situation of missing
children in Pakistan is neither clear nor satisfactory. The issue is not properly
researched and addressed. Many aspects need immediate attention, clarification and
action by the government, civil society, NGOs and especially the law-enforcement
agencies in Pakistan.
Fasihuddin
80
References:
Fagin. A, James (2007): Criminal Justice, Second Edition, Pearson Education, Inc.
NJ, USA.
Frank, Schmalleger (2007): Criminal Justice Toelay, Ninth Edition, Pearson
Prentice Hall, NJ, USA.
Convention on the Rights of the Children (CRC), United Nations.
Official Record of the NWFP Police Child Protection Centre (PCPC), NWFP,
Peshawar.
Draft National Child Protection Policy, as of March 2009, drafted by National
Commission for Child Welfare & Development, Ministry of Social Welfare &
Special Education, Government of Pakistan, Islamabad.
Draft Bill of National Commission on the Rights of Children.
The writer, Fasihuddin is a senior police officer, President of Pakistan Society of Criminology and
Chairman, Police Child and Women Protection Committee (PCWPC), NWFP Police Department.
81
Child Sexual Abuse in Pakistan:

The Need for an Indigenous Scientific Knowledge Base,
Effective Policy Making and Prevention
Uzma Gillani
Abstract
Child sexual abuse is a big social problem worldwide with concomitant suffering, though its
acceptance as such in Pakistan is a recent phenomenon. Given the sensitivity of the issue in
Pakistan, while the measures taken in this regard by various government and non-
governmental organizations are commendable there is still a lot more that to be done. This
entails both improving our existing efforts and addressing neglected but important issues
regarding CSA in Pakistan. Effective policies in this regard need to be based on an
indigenous scientific knowledge base, which in turn will be translated into effective policy
formulation and interventions to curb and prevent CSA crimes in the country. Furthermore
where CSA is concerned it means close liaison amongst the criminal justice system, health
care professionals, researchers and community based organizations.
Keywords:
Child Sexual Abuse, Pakistan, Scientific Knowledge Base, Policy, Interventions, Prevention.
Introduction
Children are not objects to be used or misused neither are they broken toys to be
discarded (Holmes & Holmes, 2002). They are the future of our society and as
responsible adults we should protect them from those who want to harm them.
However, the very idea of child abuse (CA) not to speak of child sexual abuse (CSA)
has been historically contentious. It's being seen as a big social problem and a main
cause for the suffering of many people's, is a recent phenomenon and even that too in
some countries and settings only. Throughout history children have been abused but
the way it's dealt with now i.e. to formulate legal definitions of CSA, to make child
protection government agencies and to conduct lots of researches on it, to
understand its various aspects have been a matter of time and place (Hopper, 2009).
Definitely no society can tolerate the sexual abuse of children whether inside or
outside the family in this millennium, given its devastating consequences (Parsons,
2000).
In a developing country like Pakistan many factors like lack of awareness about
CSA i.e. its conceptual knowledge; the theoretical foundations of this phenomenon;
its devastating effects on the victims; lack of knowledge about sex offender
characteristics; treatment for sex offenders, and counseling for CSA victims, make
Uzma Gillani
82
issue a challenge. Social taboos regarding sexual matters, religious sanctions, false
prestige and social status as a matter of honour also explain the denial of CSA in
Pakistan and the secrecy enshrouding it (Fasihuddin, 2006). Not surprisingly, the
absence of legal definitions regarding CSA and accompanying laws to define these
crimes, absence of true prevalence rates (the percentage of people who have had
such experiences) and incidence rates (the number of new cases each year) plus
other empirical researches regarding CSA, consequently result in a lack of effective
policy making and effective interventions to curb these crimes and protect our
children from its negative outcomes. Therefore, taken together these factors make
dealing with this issue difficult, but certainly not impossible.
In Pakistan the proposed National Child Protection Policy could provide the
foundation for a future child protection system. The (Draft) Child Protection Bill,
under which Child Protection Bureaus, Child Protection Courts and Centers will be
established throughout the country, will be a step in the right direction, though it is
yet to be passed by the National Assembly. The recommendation of the Child
Protection Monitoring and Data Collection System by the UN Committee is also
commendable, though it is not yet functional. There are some observations and
some suggestions which if considered will greatly benefit the future Child
Protection System in the country particularly regarding CSA crimes.
CSA is multifarious and as such requires a multidisciplinary approach in
coming up with effective policies and interventions to understand and curb this
crime. This means cooperation between the legal system including the legislature
and law enforcing agencies; academics, researchers and professionals especially
forensic psychologists, clinical psychologists, psychologists, criminologists,
psychiatrists, government organizations, non government organizations (NGOs)
and other community based organizations.
CSA Definition in Pakistan

First of all a legal definition of CSA is imperative. This has practical
implications for a number of things e.g. for sound statistics and empirical researches,
meaningful communication on the issue between different concerned organizations,
and most of all the formulation of specific CSA laws, effective policy making, and
for interventions as well as prevention strategies. Currently, the definition of CSA
as provided by the World Health organization (WHO) seems to be more
comprehensive and unambiguous as compared to varied definitions adopted by
different NGOs in Pakistan. WHO (2006) together with the International Society for
the Prevention of Child Abuse and Neglect defines CSA broadly as, " the
involvement of a child in sexual activity that he or she does not fully comprehend, is
unable to give informed consent to or for which the child is not developmentally
83
prepared, or else that violates the laws or social taboos of society. Children can be
sexually abused by adults or other children who are by virtue of their age or stage of
development in a position of responsibility, trust or power over the victim" (WHO
2006: 10).
While conceptual ambiguities surround each term in the phrase child sexual
abuse (Haugaar, 2000) generally, conceptual clarity in Pakistan may be achieved in
the following way . The Convention on the Rights of the Child (CRC), to which
Pakistan is a signatory, defines child using the chronological age threshold of 18
years. The term sexual is also problematic universally but lack of clarity of the term
sexual abuse in Pakistan has often led to denial and prevented the community from
taking the issue seriously. Aangan's (2002) explication of the phrase in the following
way is helpful, since it's based on indigenous data:
a. An adult gaining sexual satisfaction through watching naked children
b. An adult making suggestive comments to the child that are sexual in
nature
c. An adult revealing his or her sexual parts to a child
d. Encouraging or forcing a child to read/watch pornography, giving
pornographic literature, pictures or movies to a child or using the child in
pornographic material (i.e. photos, videos, etc.)
e. Kissing a child with sexual undertones/inclinations
f. Fondling a child's breasts or genitals or if an abuser forces a child to fondle
his or her genitals
g. Encouraging or forcing a child to masturbate with the adult as either a
participant or observer
h. Encouraging or forcing a child into oral sex (using one's own or the child's
mouth in a sexual act)
i. Vaginal penetration
j. Anal penetration
This explanation is helpful in a country where lack of knowledge about this
issue can lead to misunderstanding regarding certain forms of CSA as harmless and
denying others in the name of false piety. We still need a national consensus on this
issue, by agreeing on a definition and explanation of the term that is supported by
indigenous empirical evidence and the expert opinion of those who are dealing with
CSA issues. Moreover, a legal definition of CSA has direct implications for
authentic statistics in this regard that will highlight the scope of this problem in
Pakistan, another important issue, to which we now turn.
Uzma Gillani
84
CSA Statistics in Pakistan

In order to effectively deal with CSA in Pakistan, we need to develop its true
incidence and prevalence rates in the country. Unfortunately no national surveys or
official statistics are available in this country. The inability of Pakistan to present
proper data and statistics on CSA to the UN Committee on the Convention on the
Rights of the Child is often frowned upon in the committee's reports (Fasihuddin,
2006). According to a local NGO, the Society for the Protection of the Rights of the
Child (SPARC) there are no official statistics on CA and CSA in Pakistan (SPARC,
2008), neither any such statistics are provided by SPARC itself. In giving statistics
on CSA, SPARC relies on Sahil's 'Cruel Numbers', an annual database of CSA cases
in Pakistan based only on a number of newspaper reports (Sahil, 2007). According to
the Committee on the Convention of the Rights of the Child report, an assessment of
the data collection system in the country indicated that data is spread across various
official agencies and is not always in an easily accessible form. Furthermore, there is
no centralized system for data collection to receive input from units spread
throughout the country. It's not computerized and in various instances the data is not
disaggregated on age or gender basis. Another important observation was that the
media is being used as a widely used source, both by the official agencies and the
civil society, to report data on child protection issues. Since media usually is mostly
interested in sensational news that interest the public (Wilczynski & Sinclair, 1999),
statistics on only the severest forms of CSA, like rape or sodomy, murder, abduction
for rape are given in Sahil's 'Cruel Numbers'. Aangan's (2002) report, 'The Bitter
Truth' gives statistics on other forms of CSA also, but sample representativeness is a
concern for researchers in this case. According to Aangan, rape and sodomy are not
the only forms of sexual abuse that are present in Pakistan but less severe forms,
though with profound adverse psychological and emotional effects, like touching,
kissing and fondling are also common forms of CSA in our culture This makes the
need for national prevalence and incidence studies on CSA in Pakistan
indispensable. Additionally, some of the CSA indicators too can only be measured
by conducting periodic nationwide surveys (CCRC, 2009).
Rozan's, ' Rabta' course for police officials while sensitizing them to violence
against women and children, human rights and gender issues, was another
individual effort to guide and train police officials in how to interact with children
reporting crimes, especially CSA. However, according to the law enforcing
agencies in the country such training workshops are geographically and temporally
limited in scope, and no good training manual has been developed by anyone so far.
The NWFP Police, however, have taken a much needed and concrete step forward in
this regard by making the reporting of crimes against children more systematic,
objective and high tech. a series of training workshops were organized by Save the
85
Children Sweden and Pakistan Society of Criminology (PSC) for all the 72
police stations of districts Peshawar, Nowshera, Charsadda, Mardan and Swabi for
this purpose. The NWFP Police have introduced a new register called 26 (A) for this
purpose which has already been printed and provided to all of the 218 police stations
of NWFP. The new computerized database system will record crimes against
children that are child victims and also crimes committed by Juveniles on separate
pink and blue forms respectively. The data will be generated from January, 2009 and
will be forwarded to the Central Police office (CPO) for compilation and analysis
(PSC, 2009). This is a very commendable step and other provinces need to follow
suit, in addition to a central data compilation and monitoring system on all CSA
related activities in the country.
Four main types of studies provide large scale CA statistics including CSA
(Hopper, 2009).
a. Studies based on official government statistics.

b. Studies based on official government statistics plus other sources of data
like data from community professionals including such children who are
included in official statistics and those who are not.
c. Adult and adolescent surveys of a representative sample (e.g. from a
country, province etc.) regarding child abuse incidence in the respondents'
own house in the past year.
d. Adult surveys of their own child abuse.
Such national surveys seem indispensable if we want to have authentic

statistics on CSA in Pakistan. Additionally, we also need to conduct different
empirical studies to understand the concept indigenously for effective policy
making and evidence based interventions. This means research on different
dimensions of CSA, like CSA offender characteristics including, but not limited to
such relevant variables as age, gender, persistence, criminal versatility, the
offender's modus operandi; CSA victim characteristics like gender, age, outcomes
for CSA victims and situational factors that facilitate CSA, etc.
Very little empirical research has been done in Pakistan on many CSA
offenders issues mentioned above, not to speak of CSA offenders' treatment,
rehabilitation and prevention programmes which are almost completely ignored by
all concerned. Some limited statistics in this regard are provided by Sahil and
Aangan (2002) like offender types, though the statistics on offender types are
somewhat different for Sahil's (2007) Cruel Numbers and Aangan's (2002) 'The
Bitter Truth'. The acquaintance category is not clear in 'Cruel Numbers' as many of
the acquaintances are given as separate categories too. In Aangan's 'The Bitter Truth'
Uzma Gillani
86
the highest percentage of perpetrators was that of family members while in Sahils's
'Cruel Numbers' they are acquaintances. Consensus regarding the definition of
these offender types will result in gathering more authentic data on them which can
then be communicated in a meaningful way between different organizations and
individual researchers. Nonetheless they throw light on offender types and the
different CSA crimes committed by them in Pakistan. The differences in statistics
regarding offender types may be a function of the victims socio- economic status
(SES) and the seriousness of the CSA offence. However more empirical research is
warranted to substantiate these observations. Some statistics on CSA victim
characteristics like age, gender are also provided by Aangan and Sahil, however a
clearer picture can emerge from national incidence and prevalence studies. Also,
while statistics regarding various places where CSA takes place is available for a
limited number and some types of CSA, situation characteristics that play an active
role in the initiation and maintenance of CSA behaviour (Smallbone et.al, 2008) are
totally unaccounted for in these two sources of data.
Unless empirical studies with methodological soundness are carried out on
these issues, we will not be able to design more effective intervention as well as
prevention programmes regarding CSA, for both the offenders and victims.
Empirical research methods like surveys, interviews, grounded theory and
ethnographic approaches are some ways to study these issues scientifically.
CSA Laws in Pakistan

The dearth of relevant CSA laws is another issue, which if addressed can render
the role of the law enforcement agencies more effective. In 2006, the Federal
Investigation Agency (FIA), Ministry of Interior and UNICEF commissioned an
analysis of enforcement gaps in child related protection laws in Pakistan. The
review found that full protection to the child is not guaranteed by the current laws.
Either the laws are not sufficient or they are vaguely applied (CCRC, 2009).
Secondly, the police, who are basically responsible for enforcement of laws, are not
fully sensitized to child rights and child protection (Fasihuddin, 2006), not to speak
of the lack of knowledge regarding CSA crimes and the skills to report such crimes.
Further there are delays experienced in the judiciary and recommendations have
been made for making the justice system more efficient and capable to respond to
the protection needs of the child. It is expected that findings of the review will help
in greator understanding of the gaps in the child protection environment in the
country (CCRC, 2009).
Some progress has been made in this regard e.g. the Pakistan Penal Code and
Hadood Ordinances of 1979 can be used to prosecute some child sexual abuse cases.
The Pakistani Criminal Justice System does not deal with sexual offences against
87
children any differently than sexual offences against adults. Similarly the abuse of
children or sexual abuse not involving penetration could be dealt with under Section
511 of the Pakistan Penal Code.
Likewise the police normally register a case of sexual abuse (only the severe
form) under section 377 of the Pakistan Penal Code which deals with unnatural
offences. This section does not cover all aspects of CSA and a new section 377-A is
proposed in the new amendments (not yet passed by the legislature). There should
be specific laws regarding different kinds of sexual crimes against children so as to
make law enforcement efforts more effective.
CSA From a Forensic Psychological Perspective

In order to understand the pivotal role that forensic psychology can play in
issues related to CSA a definition of Forensic Psychology will be enlightening.
Forensic Psychology, sometimes called criminological and legal psychology, is the
application of psychological theories and methods to the understanding of crime,
criminal behaviour, policing and the legal system (School of Psychology, Module 1:
Psychology, the Legal System and Criminology, 2008). By the late 1980s CSA was
recognized as a serious social problem. The myth that children fabricate allegations
of CSA was dispelled by research (Goodman, 1984). The short and long term effects
of CSA are detrimental and as such child victims should be supported and counseled
(Morgan & Zender, 1992).
1. Effects of CSA
According to research the following factors influence the effects of abuse
(Hopper, 2009):
· Child's age at the time of the incident. Younger age at adverse experiences
is more harmful, but different developmental periods are associated with
different effects.
· If the abuser is a parent, grandparent, step-parent or another trusted adult
than a stranger, the abuse effects are really drastic.
· In case the child tells someone, the person's doubting, shaming, ignoring,
and blaming responses can be extremely harmful, even more than the
abuse itself.
· The duration of the abuse, extended periods of abuse are more detrimental.
According to Aangan's (2002) analysis of 200 letters from victims and
survivors of CSA, among the effects reported, feelings of guilt rated the highest for
Uzma Gillani
88
both genders followed by depression but a higher percentage of females reported it

as compared to males. The third highest rated effect was fear. Manipulation by the
abusers plays a great part in inducing fear in these individuals. In addition to these
effects feelings of shame, lack of confidence, anxiety, suicidal ideation,
helplessness, feelings of abusing others and problems in interpersonal relationships
were also reported. CSA may also lead to girl's delinquency and women crimes
(Siegel & Williams, 2003). Fifty percent of women mental health clients are CSA
survivors (Bryer, Nelson, Miller, & Krol, 1987; Jacobsen & Herald, 1990). While
these women have multiple mental health problems and diagnoses (Pettigrew &
Burcham, 1997) mostly they are diagnosed as having borderline personality
disorder (Laporte & Gutman, 1996). Interfamilial CSA (ICSA) or more commonly
incest also results in personal space boundary (PSB) violations leading to
subsequent poor PSB regulation (Geanellos, 2003). Personal space has four levels
(Scott, 1998) and perpetrators of ICSA penetrate every boundary to reach the core
of a child's being, every boundary, physical, psychic or spiritual is exposed and
broken and the evolving self is thrown into chaos. PSB regulation problems can lead
to dire consequences, which cannot be portrayed more accurately than in Peck's
(1997) personal space boundary analogy to a drawbridge. According to him, "his
patient's (mental health patients) drawbridges were either laid down open all the
time, or stuck shut. If open, virtually anyone and everyone could amble into their
personal space, stay as long as they like, and do whatever harm they would. If shut,
their drawbridges prevented everyone and everything from penetrating their
isolated solitude. Neither case was healthy".
2. Dimensions of CSA
While CSA is regarded as a distinct and singular phenomenon, it is actually
multifarious. Its multiple empirical dimensions like the where, when, how, to whom
and by whom may seem to make the task of prevention extremely difficult if not
impossible. The pattern of variations in these dimensions and the interactions
between them should be reliably identified for prevention strategies to be narrowed
and appropriately prioritized (Smallbone, Marshall & Wortley, 2008). While some
data on these dimensions is available in Pakistan in the form of Sahil's 'Cruel
Numbers' and Aangan's 'The Bitter Truth' report. These statistics have certain
limitations like representing only particular socio economic strata, only particular
type of CSA crimes, sample representativeness problems, limited information on
the who and by whom dimension, which means victims characteristics and offender
characteristics. These shortcomings can only be addressed effectively in empirical
indigenous researches on these dimensions.
89
3. Some CSA Offender Characteristics

As regards the by whom dimension criminal justice and victimization surveys have
identified males as responsible for the vast majority of CSA offending, though a
very small percentage of females are also involved (Cortoni & Hanson, 2005). A
similar gender pattern of the perpetrator is also evident in Pakistan, albeit in limited
and specific samples (Sahil, 2007; Aangan, 2002). This calls for research on female
CSA offenders also. As regards the age of the offender adolescence and early middle
age seems to be the two main risk periods for the onset of CSA offending (Bourke &
Donohue, 1996; Finklehor & Dziuba-Leatherman, 1994). This calls for different
prevention strategies when dealing with these two offender groups. Prior to
detection and conviction, CSA offending is persistent though recidivism rates after
conviction are low, except in a small number of persistent CSA offenders. CSA
offenders show criminal versatility and are often convicted for a number of other
nonsexual offences. Research on these factors regarding the CSA offender has not
been done in Pakistan. Offender identification and incarceration is indispensable to
save our children from this heinous act. The perpetrators of such crimes should be
properly assessed and appropriate punishment meted out and/ or rehabilitation
services provided. Mental health services should be provided to these incarcerated
child abusers and their release should be conditional upon the mental health
professionals certain assessment that they will not reoffend. It is better to keep such
an abuser for an indefinite period of time in jail/correctional facility than to release
them to abuse another innocent child. Provincial/local websites displaying
information about convicted sex offenders especially pedophiles should be
launched thus enabling people residing in those areas to protect themselves and their
children (Risley, 1997). In Pakistan, amidst all the hue and cry for children rights,
efforts definitely need to be directed towards the understanding, identification,
incarceration and treatment or punishment of people who sexually abuse our
children. If this issue is not addressed properly this means that the very perpetrators
from whom we are trying to protect our children are allowed to roam freely to target
more victims. Furthermore, the fact that certain CSA offenders can be treated
successfully can greatly help us in reducing CSA recidivism rates.
4. Some CSA Victim Characteristics

As regards the to whom dimension girls are twice as likely to be victims of CSA
offences as compared to boys (Finklehor & Dzuiba-Leatherman, 2001). This
research finding is supported by 'Cruel Numbers' statistics for the year 2008 (Sahil,
2008), however according to Aangan's (2002) statistics girls and boys are equally
vulnerable to sexual abuse. This disparity may be either due to the type of CSA
offences, Sahil's statistics related to serious CSA offences while Angan's statistics
Uzma Gillani
90
include other less serious CSA offences too. But according to Ketring and Feinaur
(1999) sexual abuse of girls predominantly involves sexual touching and fondling,
which makes us question Aangan's statistics as it included both serious and less
serious CSA offences and as such girl victims should have been more. It may be
assumed that Aangan's victims belong to the middle and upper middle class and
coming from urban or peri urban settings as compared to the bulk of Sahils' CSA
victims coming from rural areas, may explain these differences. Caution in
interpreting these data as such is again warranted since these data are limited to
certain geographical locations and in the case of media reporting of CSA in Pakistan
many cases don't get reported, due to many reasons including to preserve the family
honour. Victimization surveys are needed to throw light on these CSA victim
characteristics. Girls being abused for longer periods of time and in familial settings
(Gold, Elhai, Lucenko, Swingle & Hughes, 1998) are also confirmed in Pakistan.
Similarly, when force and violence is used adverse outcomes are associated with
more adverse effects for the victims (Hebert, Parent, Daignault & Tourigny, 2006).
5. CSA Settings
Most CSA offending occurs in settings like homes, schools etc. where victims
and offenders encounter each other on a regular basis. According to Wortley and
Smallbone (2006) there are three types of settings in which CSA occurs,
Domestic settings, like the victim's or offender's home, which in the case of
incest is the same place.
Institutional settings, such as hostels, schools, recreational clubs and so on.
Public settings, such as parks, play areas, public swimming pools etc.
Most CSA occurs in domestic settings and the least in public settings. In
Pakistan this fact is supported by Aangan's and Sahil's statistics too. The NWFP
Police have done an exercise on the registered cases of child sexual abuse and it was
observed that no place was safe in this regards.
6. CSA Reporting
For various reasons sexually abused children are reluctant to tell parents who
in turn are reluctant to tell law enforcing agencies like the police (Smallbone et.al.
2008). The latter has been attributed to parent's harmful experiences with the
criminal justice system like police insensitivity and the stress of the court process
(Sauzier, 1989). In the former case children may be too young to tell in the first place
or if they are old enough may fear blame and disbelief from non offending adults
(Finklehor & Ormrod, 2001). In order to increase reporting one sensible policy
91
would be to make the experience more positive for CSA victims and their families,
however obviously what is more preferable is to prevent CSA offences from
occurring in the first instance. In Pakistan some other reasons in addition to these are,
lack of knowledge regarding the different forms of CSA, denial due to the
perception that Pakistan being an ideological state following Islamic ideals, the
society is somehow immune to immorality and even if there is a problem of CSA it is
on a very small scale (CCRC, 2009). Furthermore people may also not report CSA
cases so as not to dishonor the family's name (Fasihuddin, 2006).
7. CSA Prevention
To develop effective preventive strategies for CSA we need not only to
empirically determine the key dimensions of CSA just discussed above, but we also
need an unambiguous theoretical basis that will organize and make sense of the
available researches and to make defensible inferences about causal mechanisms
and processes. Without it, evidence based preventive strategies may only be
managing CSA consequences rather than targeting its causes (Smallbone et.al.
2008). This seems to be completely neglected in Pakistan as no reference to
scientific theories regarding CSA is made on the different organizations website
working to curb CSA in Pakistan, neither does it seems to be guiding their different
activities when dealing with CSA issues. This is not surprising in the case of
community based CSA organizations, because community based CSA prevention
programmes make very little reference to scientific theory (Smallbobe et.al. 2008).
There is a need for a direct involvement of professionals and researchers in
community focused CSA prevention. There are many theories of sexual offending
but those particularly developed to explain CSA (Brown, 2005) are:
a. Hall and Hirschman's quadripartite model
b. Finkelhor's integrated theory of child sexual abuse
c. Ward and Siegert's pathway model
d. Smallbone, Marshall and Wortley's integrated theory of CSA (Smallbone et.al.
2008)
CSA theories generally throw light on the many individual, ecosystemic and
situational factors and their interactions that result in CSA. Such knowledge and
understanding can guide us in planning and conducting research on CSA in Pakistan
in a meaningful way. We can test the validity of these different theoretical CSA
underpinnings in our culture, and seeking guidance from them we can come up with
our own evidence based theoretical formulations regarding CSA in Pakistan.
Current approaches to CSA prevention use interventions that are employed only
after the offenders have already started offending, and children have already
Uzma Gillani
92
experienced sexual abuse. Smallbone et.al. (2008) based on their integrated theory
of CSA, have identified key prevention targets in this regard by putting forward a
comprehensive evidence based approach to preventing CSA. Four distinct sets of
prevention targets according to this model are:
a. Offenders and Potential Offenders:

· Treatment programmes should be in response to the risks, needs and
responsively of individual offenders.
· Different treatment programmes should be developed for adolescent and
adult CSA offenders
· Proper research on risk assessment of potential abusers is needed
b. Victims and Potential Victims
· By developing interventions that increase resilience among CSA
survivors.
· Responsible adults whether in the family or friends and professionals in
the child protection and criminal justice system should ensure the child's
protection from sexual abuse
c. Situations in Which Sexual Abuse Occurs
· Situations play an important role in initiating and maintaining CSA, as
evident from the Situational Crime Prevention strategies and
Environmental Design Theories of crime prevention of the modern day
criminological literature.
· Altering these situations/ environments can play an important role in
preventing CSA
· Research is needed in this area regarding CSA prevention
d. Communities
· Prevention campaigns for community awareness and providing a wide
range of public education resources including different forms of media,
religious scholars, school administration, NGOs, etc.
· Telephone help lines, either of police or social welfare departments or
community based organizations
· Professionals and researchers involvement
93
Using the Public Health model, Smallbone, Marshall and Wortley (2008) gave
an outline of how offenders, victims, situations and communities may most
effectively be targeted at the primary secondary and tertiary prevention levels. At
the primary level it will mean taking measures and developing programmes that will
prevent offenders from offending in the first place; save children from becoming
victims in the first place; remove or reduce the situational variables that initiate
CSA; and in the community target public education, community services
development etc. At the secondary level it will mean CSA risk prevention. For
offenders it will mean identifying and preventing at risk offenders from actually
offending by developing risk assessment instruments for CSA offenders, counseling
for at risk offenders and developmental prevention; counseling and support for at
risk victims; situational interventions in at risk places; support for at risk families
and interventions with at risk communities. At the tertiary level it means prevention
from occurring again. With offenders it will mean early detection, deterrence and
offender treatment; with victims also it will mean early detection, harm reduction
and preventing becoming victims again; regarding settings where CSA has occurred
developing safety plans to prevent such incidences from occurring again and with
high prevalence communities it would mean developing interventions to curb CSA.
However, the strength of any CSA prevention model will be based on the theoretical
and empirical knowledge and practice experience regarding its conceptual and
applied domains indigenously. This calls for the need for extensive empirical
research on CSA in Pakistan and its application therein.
Conclusion
CSA is a heinous crime and it is our duty to protect our children from its detrimental
effects. CSA is multifarious and needs the concerted efforts of professionals and
experts from different organizations like the criminal justice system, the health care
professionals, researchers and community based organizations. While in Pakistan
some work has been done in this regard which is encouraging and commendable. We
need to do more to improve our existing efforts and address others which have not
yet been addressed despite their importance for CSA. In this regard first of all there
is a need for the development of an indigenous scientific knowledge base which will
guide effective policy formulation, interventions and prevention, regarding CSA
offenders, CSA victims, CSA settings and communities, targeted at the primary,
secondary and tertiary prevention levels.
Uzma Gillani
94
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Uzma Gillani (MSc, M.Phil) is Lecturer. Department of Psychology, Frontier Women University,
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UK and also her PhD in Clinical Forensic Psychology from GC University, Lahore, Pakistan. She is
a senior member of the Pakistan Society of Criminology.
97
A Critical Review of Juvenile Justice Law in Pakistan*

Muhammad Saeed
Abstract:
The promulgation of JJSO, 2000 was appreciated and welcomed almost by all stakeholders
and human rights activists and organizations. Despite a warm applause, the said law suffered
many a legal difficulty during its implementation and interpretation. The last seven years
experience demand a fresh review and re-interpretation of certain provisions. This paper is
an attempt to critically evaluate the implementation and interpretation of the said law from a
strictly legal perspective.
Keywords:
JJSO, 2000, CRC, Criminal Responsibility, Juvenile Court, Probation,
Investigation Diversion, Juvenile Offender
Origin and Need of Juvenile Justice System a Historical Perspective

The Convention on the Rights of the Child (CRC) is the fundamental treatise
formally laying down the resolve of the international community concerning
protection of child rights. Establishment of a separate criminal justice system for
juvenile offenders is one of the key features of the Convention which envisages such
treatment to a child in conflict with law (CICL) which should primarily attempt
his/her reintegration into society and enable him/her to play a constructive and
positive role.
The Convention chalks out broader, yet fundamentally important, principles
and areas of focus in the area of juvenile justice system, which include custodial
arrangement separate from adult prisoners, providing him/her with legal assistance,
prioritized disposal of their cases and reformatory, rather than punitive measures
upon conviction. The Convention puts a clog on the award of capital punishment,
life imprisonment, physical torture and cruel treatment to a child.
It was under this international commitment that Pakistan promulgated the
Juvenile Justice System Ordinance, 2000 (JJSO) in order to provide a legal basis to
the juvenile justice system. For the separate trial of juvenile cases, the Ordinance
provides for the establishment of juvenile courts having exclusive jurisdiction to try
cases in which a child is accused of commission of an offence (S.4 of JJSO 2000); it
prohibits joint trial of a child with an adult (S.5); special protective procedure is laid
*
The author is thankful to PSC for providing him the draft review of JJSO, 2000 as a reference
guide, which was conducted by PSC under the JJR Project of UNICEF
Muhammad Saeed
98
down for proceedings of juvenile cases (S.6); it prohibits publication of proceedings

of juvenile cases (S.8); it provides special procedure of arrest and bail of a child
giving him/her extra protection and safety (S.10); upon conviction, the court is
empowered to release a child on probation (S.11); award of death penalty,
handcuffing, corporal imprisonment and labour in borstal institution is barred (S.12).
Though JJSO provides for the basic skeleton of a juvenile justice system, it is
yet to be developed into a comprehensive legal instrument encompassing all
relevant aspects and firmly establishing a procedural mechanism in this direction.
Therefore, it needs to be reviewed, modified, improved and reconciled with the
international standards and other existing laws respecting juvenile offenders.
In this space JJSO shall be analyzed with a view to explore (a) whether the
existing provisions of JJSO 2000 are in consonance with the international standards
laid down in CRC and other related international documents; and (b) whether it is
correctly legislated to achieve the desired objectives of the Convention and (c) what
practical, procedural and administrative impediments are there in its
implementation and making it functional. Some of the issues are analyzed and
discussed:
Minimum Age of Criminal Responsibility

Article 1 of the Convention on the Rights of the Child (CRC) provides that for
the purpose of present Convention, a child means every human being below the age
of eighteen unless under the law applicable to the child, majority is attained earlier.
This clause is aimed at prescribing the maximum age of a human being where he is to
be considered a child generally for the purposes of the Convention and for enjoying
special protections provided therein.
JJSO 2000 has blindly followed this definition of a child and incorporated it in
its S. 2(b) which reads: “Child” means a person who at the time of commission of an
offence has not attained the age of eighteen years”.
This definition is too simplistic and replicating. The definition of a child in
perspective of age i.e. below 18 years in the CRC, is broader and general, which is
not at all relevant and befitting in the context of criminal liability. Also while
defining the age of a child, JJSO completely ignored Article 40(3)(a) of the
Convention wherein it is provided that state parties shall seek the establishment of
minimum age below which children shall be presumed not to have the capacity to
infringe the penal law.
99
The issue of minimum age of criminal responsibility has already been

incorporated in Pakistan Penal Code. However, the definition of child and issue of
criminal responsibility must also be covered by JJSO. In this regard it is
recommended that JJSO must lay down that a juvenile offender is a child (i) who is
not below the age of 12 years; or (ii) who is below 12 years of age but above 7 years
and has attained sufficient maturity and discernment to understand the consequence
of his act and understand the difference between right and wrong. A child of 7 years
of age or below shall be presumed to be incapable of committing any offence.
Legal Assistance to a Child in Conflict with Law (CICL)

Section 3 of JJSO provides that every child who is accused of an offence or is a
victim of an offence shall have the right to legal assistance at the expense of the
state. It further provides that a legal practitioner appointed by the state for legal
assistance to a child, shall have at least five years standing at the Bar.
At the first place this provision is defective so far as it brings into its fold a child
victim of an offence. JJSO is a law which revolves round a juvenile offender or a
child in conflict with law. Entire scheme of this legislation is not for the protection of
such victims. For them other child protection laws shall be worked out.
Secondly, Article 40(2)(b) (ii) of CRC recognizes the guarantee to a child,
alleged as or accused of having infringed the penal law, to have legal or other
assistance in the preparation and presentation of his defense. It is in view of this right
that the said provision of JJSO is formulated declaring that a child shall have a right
to legal assistance at the expense of the state. But the declaration is sweeping,
general, vague and theoretical. It is not at all provided as to which government
agency shall provide legal assistance to what category of the child and how; who
will appoint a legal practitioner for a child and at whose instance and how he will be
paid. These are questions of practical importance. Without having an elaborate
mechanism, Section 3 of JJSO would remain a shallow provision.
In order to really provide legal assistance to a child in conflict with law, a better
practical legal arrangement must be shaped in the JJSO. The Juvenile Court must be
empowered to maintain a panel of legal practitioners from the local Bar and to
nominate a legal practitioner from the said panel to conduct the case of such child.
He shall be entitled to such fee or remuneration as may be prescribed by the
Provincial Government under the rules made under JJSO.
Juvenile Court's Exclusive Jurisdiction in Conflict with other Laws

Section 4 of JJSO 2000 provides for the establishment and jurisdiction of
juvenile courts which have exclusive jurisdiction to try cases of the child accused of
an offence. But this law seems to be in conflict with certain other laws specially
Muhammad Saeed
100
legislated for certain category of offences wherein special courts are established
having exclusive jurisdiction to try such offences. Anti-terrorism Courts
established under the Anti-terrorism Act, 1997 and Anti-Narcotic Courts established
under the Control of Narcotic Substances Act, 1997 are a case in point.
The conflict of laws is evident: on the one hand an offence is triable by a special
court under a special law exclusively and on the other side, a child committing that
very offence would be cognizable by a juvenile court under JJSO having exclusive
jurisdiction as to juvenile offenders.
In order to overcome this conflict Section 4(3) of JJSO may be given overriding
effect and it may specifically be provided therein that in all cases where for the trial
of an offence, a special court is established under a special enactment, the
jurisdiction of the said court shall be barred if the accused of such offence is a child.
Joint Trial of a Child with an Adult

Section 5 of JJSO enjoins that a child accused of an offence shall not be tried
together with an adult co-accused. This provision has got serious practical
complications. Practically all criminal courts of Magistrates of 1st Class and all
courts of Sessions are empowered to try juvenile cases as juvenile courts. But at the
same time these criminal courts are trying offences and cases under other general
and special laws. The real theme of JJSO for having a separate set of justice system
and juvenile courts is no more in practice.
The recommendation in this respect is that Provincial Government and High
Courts may issue administrative orders to entrust the cases of juvenile offenders to
the Family Courts i.e. the courts presided over by a Civil Judge-cum-Judicial
Magistrate and entrusted with cases of family nature including civil matters as to
custody of child, his maintenance and guardianship etc. Such civil courts are also
magisterial courts and are generally otherwise empowered to exercise jurisdiction
of a juvenile court under JJSO. Hence at least at magisterial level this issue can be
resolved if not at sessions' courts level.
Separate trials of a single case has another serious implication-two separate
courts may come up with conflicting judgments and factual findings on identical
issues of facts, one trying an adult and the other a juvenile offender in the same case.
JJSO does not at all address this issue. In this respect it is proposed that in cases
where a child is accused along with an adult, such cases may have a single trial by a
juvenile court. JJSO may also provide that in such cases joint trial shall be conducted
by a juvenile court. The adult accused shall be dealt with in accordance with the
Code of Criminal Procedure and provisions of JJSO shall not be applied in his case.
A juvenile court shall also ensure that all concessions are made available to the
juvenile offender during the joint trial under the JJSO.
101
Publication of Juvenile Cases Proceedings

Section 8 of JJSO prohibits publication of proceeding of a juvenile court in any
newspaper, journal or other publication disclosing the identity of the child without
prior permission of the court. This provision does not cover telecasting such
prohibited information on electronic media like television channels, documentaries,
movies and internet. Suitable amendment may be introduced in this regard.
Probation
Section 9 of JJSO provides that a probation officer shall assist a juvenile court
by making a report on the child's character, his educational, social and moral
background, which may then be sent to the child or his guardian. This legal
provision is vague and seems to be out of place and context. It is not clear when a
juvenile court will ask the probation officer, and for what reasons, to report as to
child's character. It is also not clear on what occasion or stage of a criminal case such
report is to be prepared and for what use; whether it will serve as an evidence against
the child during a criminal case, and if yes, then this purpose is quite unjust, as the
juvenile court will have to focus on facts of the case and not on the general character,
educational or moral background of the child.
The provision also does not reveal any reformatory objective. It is not provided
that if at all a child is ill-reported by the probation officer, what next step the court
would take beyond giving information to the child or his guardian.
The legal mechanics should always be purposeful, practicable and
institutionalized. The said legal provision as to reporting of the child's character may
be utilized in cases where a child is reported to be violent and is likely to commit
breach of peace or is about to commit a crime or is developing into a criminal. As a
pre-emptive and preventive security measure, the court may direct a probation
officer to report as to a child and if it appears that such situation exist, the court may
take security measures, emulating those as provided in section 107 CrPC, including
taking bonds from the guardian of the child for his proper care and good behaviour.
It is therefore, proposed that suitable amendments may be introduced in JJSO
providing that where upon a complaint, police report or upon its own information, a
juvenile court is satisfied that a child is having bad character, or is likely to cause a
breach of peace or disturb public tranquility or commit a crime, the juvenile court
may summon the child or his guardian and direct the probation officer to submit a
report as to child's character, his general activities and social and moral background.
In case where after taking into consideration the circumstances of the case, the
report of the probation officer and other evidence recorded and after hearing parties
of the proceeding, the juvenile court may (a) direct the guardian of the child to
Muhammad Saeed
102
submit a bail bond for the good character of the child and for his maintaining peace,
(b) send the child to a borstal institution or reformatory school established under the
law for such period as the court deems proper or (c) make an order of probation
under Section 10 of JJSO.
Investigation and Interrogation in Juvenile Cases

No specific provision of the JJSO deals with the pre-trial stage of a criminal
case where investigation and interrogation by police is made. Though arrest and
detention of a child accused of an offence are dealt with under Section 10, yet this
subject need an elaborate and exhaustive treatment.
Violations of the rights of children, their physical abuse and torture by law
enforcing agencies in cases where children are accused of an offence are important
issues of a juvenile justice system. In detention they are exposed to physical torture,
sexual abuse and inhuman treatment. From the protection of these violations, JJSO
is completely silent to our astonishment. Drastic amendments need to be made in
this respect. It is proposed that JJSO may provide that no child shall be subjected to
physical torture, mal-treatment, violence, abuse, mental distress and inhuman and
disrespectful treatment, during his detention with the police. In case a juvenile court
is of the view that such provisions are violated in any way and the child in subjected
to torture or was not produced before the court forthwith despite having sufficient
time to do so and with malafide intention to prolong his detention, person
committing such act shall be punished with imprisonment which may not extend to 3
years. A juvenile court shall send the case of such person to the Court of Sessions
alongwith a complaint recording reasons for such proceeding. The Court of Sessions
shall proceed with the trial of the case under the CrPC. It may also be provided that a
child while in police custody shall be kept in special remand homes established by
the Provincial Government.
Diversion and Re-Integration
Conducting a criminal trial and finally sentencing a child may have adverse
effects on his/her personality and it may have deep scars of stigmatization on his
mind. The Convention on the Rights of Child requires states parties to take measures
before trial for dealing with juvenile offenders without resorting to judicial
proceedings. (Article 40 (3) (b) of CRC). Before commencement of a formal trial,
the juvenile court must resort to other means of disposal of the case and corrective
methods. These measures include restitution and reconciliation with the victim of
offence, warning and counseling of the child, supervision and surety by a guardian
or community of the child's future conduct and taking from him commitment to
attend school etc. These measures of diversion, prevention and mediation will not let
103
The child enter into the formal justice system and it will help him change his
behavior and reintegrate into the society. These methodologies of diversion are to be
applied in less serious and minor offences, which make up a majority of cases in
which children are involved. Such methods would be inappropriate for cases of
murder, extreme violence, rape and major drug trafficking. JJSO must cater for these
significant issues of pre-trial diversion methodologies.
Release on Probation and Rehabilitation
JJSO provides and empowers a juvenile court to release a child, upon
conviction, on probation placing him under a guardian or such other suitable person
or sending him to a borstal institution where child offenders may be detained and
given education and training for their mental, moral and psychological development.
Section 11 of the Ordinance as to release on probation is defective in many
respects. There are two approaches: one, if the court decides to release him on
probation, various options should be available to the court; two, if it decides that
he/she may be detained then a separate section may spell out various detaining
options.
Detention and Reformation
As said earlier that Section 11 of JJSO in no way comprehensively treats the
issue of detention of the convict child in reformatory prisons in cases where the court
does not release him on probation or give him in supervisory custody. The law must
elaborately give explicit options to a court which may award imprisonment to a child
in such places where his reformation and rehabilitation is taken care of.
Presently, the Reformatory School Act, 1897, the Borstal Institution Act, 1926
and some other provincial laws do cover the establishment of these rehabilitative
institutionalized prisons. However JJSO must separately and elaborately deal with
this issue. It may also be provided in this law that the Provincial Government shall
establish such institutions where facilities of education, health, rehabilitation and
counseling are available for developing a convict child's vocational abilities, moral
character and personality.
Muhammad Saeed (BA, LLB) is a Senior Civil Judge/Judicial Magistrate. He has keen interest
in research on human rights issues.
105
Judging Juvenility:
Determination of age of Juvenile Offenders under
Pakistan's Juvenile Justice System
Khurshid Iqbal
Abstract:
Determination of age of Juvenile Offenders is a crucial issue in Pakistan's Juvenile Justice
System. This issue goes to the spirit of Pakistan's Juvenile Justice System Ordinance, 2000
(JJSO) as it is after the determination of his/her juvenility that an offender can avail the rights
available to him/her and a Juvenile Court assumes its jurisdiction under the JJSO. The article
argues that the JJSO and other relevant statutes in the field are inconsistent in determining the
age of Juvenile Offenders. Examining in details the case law since the introduction of the
JJSO in the year 2000 till this year, the article further argues that while the courts, too, have
been giving conflicting judicial views, of late, the growing body of case law shows a visible
tendency of the courts to settle the issue, which is of great significance. Equally important,
however, is the role of the law-makers to set right the legislative inconsistencies to resolve
the issue by amending and consolidating the law relating to juvenile justice system. The
article concludes that Pakistan has both national and international obligations to make
serious efforts in ensuring effective protection of human rights of the children in conflict
with law.
Key words:
Criminal Justice, Juvenile Justice, Juvenility, Pakistan
Introduction
Pakistan introduced its Juvenile Justice System Ordinance (JJSO) in the year
2000. The main impetus behind this law is Pakistan's international obligation under
the Convention on the Rights of Child (CRC), adopted by the United Nations (UN)
in the year 1989.2 The Reformatory Schools Act, 1897 appears to be the first
example of a law relating to the rehabilitation of juvenile offenders. This law, which
was promulgated during the British colonial time, empowered courts to direct
youthful offenders sentenced to transportation or imprisonment, to reformatory
schools.3 Before the JJSO, there was no specific central law governing criminal trials
of juvenile offenders. However, the provinces of Sindh and Punjab each have had
The views expressed in this article are those of the author's and motivated by research interests only. I
am thankful to Dr. Niaz A Shah, Lecturer, Law School, University of Hull, UK; Jehanzeb Khan of
Society for Protection of the Rights of the Child, Peshawar; Wahid Anjum and Saifur Rahman,
Advocates, DI Khan and Amir Abdur Rahman, Librarian, Peshawar High Court, DI Khan Bench, for
supplying to me copies of the relevant court cases and other reading material. All errors are, however,
mine.
Khurshid Iqbal
106
one such law: the Sindh Children Act, 1955 and the Punjab Youthful Offenders Act,
4
1983, which created Juvenile Courts.
The JJSO protects children involved in criminal litigation and in doing so,
seeks to rehabilitate such children in society, reorganize juvenile courts and deal
5
with matters connected therewith and incidental thereto. The key features of the
JJSO include the provision of legal assistance to the juvenile offenders6 and
7
establishment of separate juvenile courts. The law requires that juvenile offenders
8
shall be separately tried. It prohibits publication of criminal proceedings against
juvenile offenders and bars award of death penalty for and handcuffing of juvenile
9
offenders. In safeguarding the freedom and liberty of children in conflict with law,
the JJSO provides that keeping in view his/her welfare and safety, a child accused of
an offence that is bailable, shall be immediately released on bail with or without
sureties.10 The law makes it mandatory for the authorities that in no case shall a child
accused of such offences, be kept in a police station or jail. It also provides for the
11
release of juvenile offenders on probation in case of conviction.
Though the promulgation of the JJSO itself is a significant measure for the
protection of the rights of juvenile offenders in Pakistan, but its implementation has
been inadequate in many respects.12 For example, the law has not been put into full
operation in certain areas such as the Federally Administered Tribal Areas (FATA),
despite the express provision of the law and its extension through a formal
government notification. The death penalty is still awarded to juvenile offenders
showing courts' lack of concern for the fact that the same has been expressly
outlawed. Similarly, juvenile offenders are still jointly tried with adult accused by
the same court. The probation services are neither adequate nor efficient. Juvenile
offenders are kept with adult accused in jails in poor and vulnerable conditions.
These and many other issues are significant, but the most crucial one is the
determination of age of juvenile offenders. The reason is obvious. It is the issue of
age that brings the criminal liability of a child within the competency of a juvenile
court. If this issue is not resolved at proper time by the concerned authorities with
due care and diligence, a juvenile offender will run the risk of ending up in formal
13
judicial system after arrest. This important issue is the main focus of the present
article. Part I briefly examines the relevant statutes and part II critically analyzes the
case law pertaining to determination of age of the juvenile offenders vis-à-vis the
JJSO, followed by conclusion of the discussion.
The JJSO Versus the Relevant Statues
The JJSO defines child as 'a person who at the time of commission of an offence
has not attained the age of eighteen years.'14 The same age has been fixed by the
107
15
Majority Act, 1875 and the Zina Ordinance, 1979. The Pakistan Penal Code (PPC),
1860, the principal body of law that defines offences, provides two general
exceptions regarding juvenile offenders. First, the PPC determines the minimum
age of criminal liability of a child at the age of 7.16 Second, it sets the maximum upper
age limit at the age of 12 provided the child accused of an offence has not attained
sufficient maturity of understanding to judge the nature and consequences of his/her
17
criminal act. An act of a child of below 7 is undoubtedly covered by the first
exception. The second exception makes it discretion of the court to evaluate
maturity of a child accused, whose age is above 7 and under 12. Commentators
argue that being extremely over-worked, Pakistani courts are 'unlikely to spend time
18
in assessing the maturity of accused'. This situation, it is argued, has certain
implications. First, the plea of lack of maturity needs to be specifically raised and
19
proved. Secondly, the court will presume that the accused had attained sufficient
maturity.20 Thirdly, the prosecution may not feel obliged to produce evidence on the
question of maturity.21 It may be added here that there are no worthwhile education
and training opportunities for judges and lawyers, particularly in respect of the
internationally accepted standards of the administration of juvenile justice system.
Indeed, the assessment of sufficient maturity of an accused must be, in the first
instance, assumed by the police investigation and prosecution as their bounden duty
in order to ensure fair trial and protect other due process rights of the juvenile
accused. A regular and effective follow up by the supervising authorities of the
police, prosecution, lawyers and judges will also prove a contributive factor in
protecting the rights of a child accused. The Code of Criminal Procedure (CrPC),
1898the main law governing the procedure of criminal trials provides that a juvenile
accused under 15 years may be tried by certain category of courts.22
The Sindh Children Act, 1955, does not define 'child'; it defines 'adult' as 'a
person who is not a child.'23 It defines 'youthful offender' as 'any child who has been
found to have committed an offence.'24 The Punjab Youthful Offenders Act, 1983,
while defining 'child', determines the minimum age of criminal liability at 15 years.25
But the law does not confer the privilege of being a child on one who is 'a pubert even
26
though a child who has committed an offence' under the Hudood law. There is
sufficient confusion in the Sindh law as it does not specifically define child. The
confusion appears to be confounded when it defines adult as a person who is not a
child. The Punjab law may be given credit for two reasons: first, it provides specific
definition of 'child' and second, it enhances the age of criminal liability. However,
the phrase 'a pubert even though a child” appear to be self-contradictory. It, however,
creates sufficient confusion by excluding what it terms “a pubert even though a
child'.
Khurshid Iqbal
108
A question arises how will the courts resolve the issue of determination of age
of juvenile accused. During the last nine years of the enforcement of the JJSO, a
considerable body of case law has developed. The next part examines case law in
greater details.
An Examination of Case Law
Since the introduction of the JJSO, the determination of age of a juvenile
offender has been the subject of criminal litigation. The basic reason for this being
the moot question in our criminal justice system, is the maintenance of poor birth
record, particularly in the rural areas. The question gets further enmeshed if the
child has not been admitted to school. Due to carelessness or unawareness of the
schools' staff about the registration of correct age of children, the documenting of
correct age has been a vital issue, not only in the administration of criminal justice,
but also, sometimes, for the purpose of employment. Perhaps the inefficiency of the
national registration authorities also adds further complexities. Thus it appears that
birth certificates, school leaving certificates and the national registration cards
create considerable difficulties for the courts as to which of these documents should
be relied upon. Under Section 7 of the JJSO, it is mandatory for the Juvenile Court to
conduct an inquiry for the determination of age of the accused. While the said
provision of the JJSO states that the inquiry shall include a medical report, a critical
study of the case law would reflect that courts, sometimes, give preference to other
documents (such as the birth certificate, the school leaving certificate, and national
registration cards) over the medical report.
1. Issues in early case law (2001-03)

A careful study of the 2001 cases reveals that soon after coming into force of
the JJSO, which has got retrospective effect, in several cases applications were
submitted to the courts for trial of the Juvenile Offenders by the Juvenile Courts.
Ahmad Ali v The State may be called one of the earlier cases as it was decided on
March 01, 2001. In this case, the Lahore High Court issued directions for the
determination of age of the accused by a medical board and if the accused was found
27
to be a minor, he shall be tried by the Juvenile Court under the JJSO. Ahamd Ali
was a simple case involving the transfer of a case to the Juvenile Court. A similar
transfer application in Muhammad Ishaque v Muhammad Nadeem and others,
came up before the Sindh High Court, for hearing, which was decided on March 26,
2001.28 The Court ruled that in the presence of birth certificate and certificate issued
by t he Educational Institution, the opinion of Police Surgeon and the Medical
Board, was not necessary. Two other cases in point are Muhammad Hanif v
Muhammad Yaqub29 and Hassan Zafar v The State.30 Both cases were decided by the
Lahore High Court in the same month (i.e June, 2001), but by different Judges. In
109
the former, preference was given to medical opinion over birth certificate. The
reasons cited are firstly, no sanctity is attached to the entries in birth certificate and
secondly, such birth certificates or school leaving certificates 'are easily available in
this country'.31 In the latter, preference was given to the entry of birth recorded in the
school record at the time of admission of the offender into the school. The reasoning
of the Court was: firstly, at the time of admission of a child to school 'there is no
contemplation about any future criminality.'32Secondly, the medical opinion may be
obtained for extraneous consideration and that such an opinion is based on mere
33
approximation. It is important to note that while interpreting the law contained in
Section 7 of the JJSO, the Judges in both cases expressed their respective views on
the intention of the legislature. In Hassan Zafar case, the Court thought that
Intention of Legislature was clear that determination of age of a person
accused in a case, merely on the basis of School Leaving Certificate or
Birth Certificate is not safe, hence report from Medical Board should be
obtained for the said purpose due to the reason that the Birth Certificate
34
or School Leaving Certificate are easily available in this country.
The Muhammad Hanif Court argued that the words 'shall include a medical
35
report' used in Section 7 of the JJSO 'are enabling in nature.' The word 'include used
in the said provision is enumerative, which means that the medical examination is a
mode of the inquiry into the juvenility of the offender. Thus one Court attached high
sanctity to the medical opinion, while the other gave more weight to the relevant
school record, particularly the record of entry of birth at the time of admission of the
child.
Another important aspect discussed in Hassan Zafar is that the JJSO creates
what the Court termed a feeble right. The Court has not elaborated this point. One
glaring reason for this opinion seems to be that the plea of juvenility was set up by
the offender. Hence, the onus lied on the offender to prove his juvenility. It may be
argued that the language of Section 7 of the JJSO candidly provides that the Juvenile
Court shall conduct inquiry only 'if a question arises as to' the juvenility of an
offender. Thus an adverse plea may be raised by the prosecution, arguing that the
offender is not a juvenile within the meaning of the said provision. However, if no
plea is raised, a Juvenile Court will presume that the offender, in respect of whom a
case is entrusted to it, is a juvenile. For this reason, the right of a Juvenile Offender
under the JJSO may not be seen as a feeble right.
While disposing the plea of juvenility, courts have also held that medical
examination is not essential for determination of age of an offender. Hence, Section
36
7 of the JJSO needs not to be invoked in each and every case. Where difference was
found between the age of the offender assessed by a Medical Board and the entry
Khurshid Iqbal
110
made in the record of the Union Council, the Court believed in the opinion of the
37
former, arguing that the entry in the latter record could be forged. In a 2002 case, a
38
Division Bench of the Supreme Court gave judicial credence to birth certificate.
In the year 2002, a couple of other relevant issues also caught the attention of
the courts. First, the question pertaining to the determination of age may also be
considered at a preliminary stage, such as the request of the offender for his/her
release on bail.39 Secondly, the courts emphasized on giving liberal interpretation to
the provisions of the JJSO vis-à-vis the determination of age of the Juvenile
Offenders. In one case, the Court underlined the importance of the JJSO in the
following words:
---Preamble---Purpose and import---Liberal interpretation--- [JJSO],
2000, is aimed at extending protection to the children involved in criminal
litigation and their rehabilitation in society---Ordinance in a way
safeguards the human rights of a section of society who deserve
reasonable concession because of their tender age and therefore, it is to be
construed liberally in order to achieve the said object.40
This view suggests that the right of the juvenile offenders is not feeble as
discussed in the above case of Hasan Zafar. This issue will be further discussed
below. While the question of determination of age continued to occupy the attention
of the courts in the year 2003, two more questions emerged during that year. First,
whether the collection of medical evidence is mandatory? Second, at which stage,
the question of juvenility has to be raised? Regarding the first question, it was held
that the collection of medical evidence is mandatory.41 In one case, the Court,
however, cautioned that it is not necessary to solely rely on the medical evidence.42
In reply to the second question, the Court opined in the case of Mustafa Tariq v
Pervaiz Ahmad and others43 that the plea of juvenility could be raised at any stage.
This view does not seem to have been endorsed in the case of Muhammad Rashad
and 2 others v The State, holding that less than 18 years age of an offender
(sentenced to death) mentioned in his statement recorded under Section 342 CrPC,
is not a conclusive proof. The rationale for this view obviously is that the said
statement is not recorded on oath. Conversely, it may be argued that such statement
does form part of the evidence. Indeed, the court is bound to specifically ask the
accused if he/she is willing to produce evidence in defence and/or record his/her
statement on oath. Another justification is that the issue of minority was not agitated
at the early stage of the trial. The plea was, however, raised at the hearing of the first
appeal before the High Court, which was rejected. This ruling is in contradiction
111
with the verdict delivered in Mustafa Tariq, referred to above, in which the Court
held that the plea of juvenility could be raised at any stage. The consideration of age
at the first appellate level might have saved the alleged juvenile offender from
capital punishment, which has been banned by the JJSO. Hence, the JJSO was not
liberally interpreted by the Court as held in Afsar Zamin, examined above.
It is established from the above discussion that during the early years of the
enforcement of the JJSO, the most important question faced by the courts was the
conflict between medical evidence and birth certificate as well as School Leaving
Certificate. As seen above, the courts generally remained divided on this vital point.
However, it is worth appreciation that the courts laid stressed on liberal
interpretation of the JJSO. The case law since 2004 shows that guidelines are being
set up by the superior courts for the guidance of the lower courts, which are
discussed in the next section.
2. Guidelines of the Superior Courts (2004 and afterwards)

An important case is that of Sultan Ahmad v Additional Sessions Judge-I,
44
Mianwali. The significance of this case lies in the fact that the Supreme Court
interpreted the phrase 'if a question arises' and the word 'inquiry' used in Section 7 of
the JJSO. The trial Court and the first appellate Court relied on School Leaving
Certificate, birth certificate and the police record, and refused the prayer for the
medical examination of the offender. The genuineness of the School Leaving
Certificate and birth certificate were seriously challenged.
The Court argued that the phrase 'if a question arises' is different from the
phrase 'if a question is raised'. The Court was pleased to observe:
The word 'ARISE' means 'TO RISE UP' while the word 'RAISE' means TO
CAUSE TO RISE'. 'ARISES' thus involves someone else causing it to rise.
Therefore, what is meant by the said provisions of the said section is not
that the Courts are required to wait to undertake an inquiry to determine
the age of an accused person till such a question is raised before them.
Underscoring the dispensation of justice as the obligation of courts, it was
further ruled:
It would be horrendous to visualize 'CHILD' or a 'MINOR' being hanged
only because the question of his minority has not been raised before the
relevant Court. It is the function of the Court that no illegality is permitted
to occur and no injustice is allowed to creep into its decisions.
Khurshid Iqbal
112
The Court was further pleased to set out the following guidelines about
'inquiry':
[A]n inquiry is a judicial proceeding in which evidence could be legally
taken. Therefore, whenever a Court is confronted with the question of the
age of an accused person, it is incumbent upon it to hold an inquiry and the
learned Presiding Officers should always feel free to requisition the
original record; to summon and examine the author and the custodians of
such record and documents to determine the genuineness of the same; to
summon persons, if need be, who on account of some special knowledge,
could depose about the age of the concerned accused person and to take
such other and further steps which could help the Court in reaching a just
conclusion about the said matter…the issue of age of an accused person at
a trial which could result in a punishment of death, was by now of vital
significance and the learned Presiding Officers should never hasten to
decide the said issue in summary or in a slipshod manner.
The Court also ruled that medical examination is a must in determining the age
of an offender and strong reasons must exist for not doing so. Lastly, the Court
directed that the examination of an offender by the plea of juvenility should be raised
“at the earliest possible opportunity and preferably during the course of
investigation so that the Investigation Officer could collect evidence…”
Another leading case is Babar Ali v The State decided by the Lahore High
45
Court. In this case the question of juvenility was extensively discussed and new
means of solution were explored by resorting to what the Court called 'judicial
engineering'. The Court issued the following guidelines to the police investigators
46
and subordinate judiciary:
First, soon after the arrest of a young person on a criminal accusation, 'the
arresting police officer must make a tentative assessment as to whether the arrested
young person is a 'child' for the purpose of the [JJSO], 2000 or not and, thus, can
he[/she] be handcuffed, etc. or not.
Second, the concerned police officer should inquire from the accused about
his/her age and 'also make an appropriate inquiry' to find out whether the arrested
young person is a child under the JJSO. In doing so, the concerned police
investigator 'should collect or consult all possible material'. Such material may
include the record of hospital, the record pertaining to entry of birth maintained at
the relevant Union Council, the record of educational institution, the record
maintained by the National Database Registering Authority (NADRA), Electoral
Roll and the marriage (Nikah) Registrar and a medical opinion about his/her age, if
necessary.
113
Third, the concerned police officer should record his tentative opinion about
the age of the young accused person in his report under Section 173, CrPC, to be
forwarded to the concerned Magistrate.
Fourth, the police report under Section 173 CrPC must mention the plea of
juvenility if set up by the young accused person and the material collected for the
tentative assessment of age.
Fifth, on receipt of a report under Section 173 CrPC, a Magistrate 'must
examine the entire record of the investigation, make his[/her] own assessment' of the
material relevant to the question of juvenility. If the Magistrate finds the inquiry
deficient, then he/she may hold an inquiry of his/her own to assess the age of the
young accused person. If the Magistrate finds the young accused person as a
juvenile within the meaning of the JJSO, then if he/she is not empowered as a
Juvenile Court, shall take cognizance of the offence and forward the case to the
concerned Juvenile Court.
Sixth, if the question of juvenility is raised before a competent Juvenile Court,
such Court must decide that question according to the provisions of Section 7 of the
JJSO.
Seventh, if the question of juvenility is raised before an ordinary court, to
which a case has been sent for trial, the ordinary Court shall decide the issue 'under
subsection (2) of section 5 of the [JJSO], 2000 through an inquiry akin to that
contemplated by Section 7 of the said Ordinance.
Eighth, 'all Magistrates and trial courts must pay special attention to the age of
the accused person before them and must record his age in the relevant record,
charge-sheets and final judgments as the matter of age is important to issues
pertaining to the forum of trial, sentence and custody, etc.'
Ninth, an adverse inference may be drawn in case the plea of juvenility is raised
at a belated stage of the judicial proceedings.
Recent case law shows that the verdicts laid down in Sultan Ahamd and Babar
Ali have proved greatly helpful to the courts dealing with the issue of juvenility. For
47
example, in a 2008 case Atta Muhammad v Muhammad Umer Farooq and another,
among others, both the above cases were relied upon. However, it appears that in
some cases the above guidelines do not seem to have been followed, particularly by
the trial courts. In an appeal against the conviction of a juvenile accused, the Chief
Justice of the Federal Shariat Court observed that once it was brought into the notice
of the trial court that the appellants were juveniles, they should have been separately
tried under the JJSO.48 Taking rather serious note of the fact, the Court further
observed that the conviction of the appellants to rigorous imprisonment amounted to
Khurshid Iqbal
114
violation Section 12 of the JJSO, which prohibits the award of corporal punishment.
The Court also expressed its view that the juvenile convicts 'must have suffered
great deal of hardship and torture till such time bails was granted to them…'
A more recent example is Niaz Muhammad v Umar Ali49 in which the Court
rejected the plea of juvenility for the reason that the same was raised at belated stage
the time when the final arguments were heard. The High Court did not agree with the
contention that the case should be remanded to the trial Court for determination of
the age of the convicted child by a medical board. This case has attracted criticism
from child rights activists. It is argued that the issue of juvenility was raised on
several occasions before the trial as well as the appellate court, but no inquiry was
50
conducted under Section 7 of the JJSO. Although the decision appears to be a
departure from early rulings, for example, Mustafa Zafar, but it seems to be in line
with the recent judicial dicta expressed by the Supreme Court in Sultan Ahamd and
the Lahore High Court in Babar Ali. However, these rulings have not been referred
in the judgment, which means that these were not produced before the Court. One
may argue that one of the principles laid down in Sultan Ahamdthe Court itself has to
resolve the issue of juvenility and not to wait till the plea is raised by parties was
ignored in this case. But, on balance, however, one cannot help appreciate that the
Supreme Court has also finally decided that the plea of juvenility must be raised at
the earliest possible opportunity. It may be argued that the legal advisor of the
juvenile offender, too, was under a legal duty to have raised the plea in the first
instance and in the event of its dismissal, to have resorted to the higher courts for
their relief.
Critics further argue that the case was not decided within four months period
provided under subsection 6 of Section 4 of the JJSO. There is enough force in this
argument for as the trial was concluded after one year and two months and the
appeal was decided after two years and seven months.51 Thus the offender remained
for about four years in incarceration, when the proceedings against him were
pending.
Conclusion
The article has argued that determination of age of juvenile offenders is the
most crucial issue pertaining to an efficient juvenile justice system in Pakistan.
Different laws provide different age limit for criminal liability. This inconsistency
has rendered children, a disadvantaged group, susceptible to discrimination and
unfair treatment. In order to fulfill its national obligation under the constitution as
well as international obligations under the CRC, the State should consolidate
juvenile laws and adopt uniform legislation, compatible with international
standards.
115
guidelines in police investigation process and the practice of subordinate courts

through workshops of judges, investigators, prosecutors, local lawyers and
probation officers, may prove helpful in the determination of age of the child
accused. One must appreciate that beyond this spectrum, due attention may also be
given to the process of marriage and birth registration. It is also highly desirable to
ensure effective implementation of the laws relating to such registrations, coupled
with adoption of new legislation, where the need be.
End Notes
2
Convention on the Rights of Child (CRC) adopted by the United Nations (UN) on in
1989; came into force on September 02, 1990, after signed by the required number
of states; ratified by Pakistan in November, 1990. As of December, 2008, the CRC
has been ratified by 193 states except the United States (US) and Somalia.
3
See the Reformatory Schools Act, 1897, Section 8.
4
See the Sindh Children Act, 1955, Section 7 and the Punjab Youthful Offenders Act,
1983, Section 4. The former law, which replaced the Bombay Children Act, 1924,
could not be formally enforced in 1955 as the Province of Sindh was made part of the
West Pakistan (also called One Unit). The law was formally introduced in
Hayderabad and Sukkur in 1974 and in Karachi in 1974. But it was repealed in 1974.
The latter law, which replaced the Punjab Youthful Offenders Act, 1952 has not been
formally notified to come into force except in the District of Sahiwal. For details see
Anees Jilani, Unheard Cries: Juvenile Justice System in Pakistan, SPARC,
Islamabad, 1999, pp 64-66.
5
See The Juvenile Justice System Ordinance, 2000 (JJSO), Preamble.
6
JJSO Ibid. Section 3.
7
Ibid. Section 4.
8
Ibid. Section 5.
9
Ibid. Section 8.
10
Ibid. Section 10. An exception provided by the law is that if 'there is reason to
believe that the release of the child shall bring him into association with any criminal
or expose the child to any danger, in which he [she] shall be placed under the custody
of a Probation Officer or a suitable person dealing with the welfare of the children if
parents or guardian of the child is not present…'
11
Ibid. Section 11.
Khurshid Iqbal
116
12
Amnesty International, 'Pakistan: Protection of juveniles in the criminal justice
system remains
inadequate'. Online. Available at
http://www.amnesty.org/en/library/asset/ASA33/021/2005/en/24a9ffb0-d4b6-
11dd-8a23-d58a49c0d652/asa330212005en.pdf (Last accessed Oct. 09, 2009).
13
Society for the Protection of the Rights of Child (SPARC), The State of Pakistan's
Children, Islamabad, SPARC, 2008, p 140.
14
JJSO, Section 2(b).
15
See The Majority Act, 1875, Section 3 and The Offences of Zina (Enforcement of
Hudood) Ordinance, 1979, Section 2(a).
16
The Pakistan Penal Code (PPC), 1860, Section 82.
17
Ibid. Section 83.
18
Jilani, op. cit., p 63.
19
Ibid.
20
Ibid.
21
Ibid. p 64. Abdul Sattar (1948) 50 CrLJ 336.
22
The Code of Criminal Procedure, 1898, Section 29-B.
23
The Sindh Children Act, 1955, Section 1(a).
24
Ibid. Section 1(s).
25
The Punjab Youthful Offenders Act, 1983, Section 2 (a).
26
Ibid. Hudoodplural of Hadd (Arabic), means 'limit' punishments for certain
crimes fixed in the Holy Qur'an.
27
2001 The Month Law Digest (MLD) [Lahore] 1191.
28
2001 MLD [Karachi]1561.
29
2001 Pakistan Criminal Law Journal (PCrLJ) [Lahore] 1939.
30
2001 The Yearly Law Reporter (YLR) [Lahore] 2060.
31
2001 PCrLJ 1939, op. cit. p 1943.
32
2001 YLR 2060, op. cit. p 2062.
33
Ibid.
34
2001 PCrLJ 1939, op. cit. p 1943.
35
2001 YLR 2060, op. cit. p 2061.
36
Muhammad Akram v Muhammad Haleem, 2002 PCrLJ 633 [Lahore];
Muhammad Hayat v Muhammad Iqbal, 2002 PCrLJ 1237 [Lahore].
37
Gohar Abbas v The State, 2002 YLR 637 [Lahore].
117
38
See, e.g., Muhammad Ishaq v Muhammad Nadeem and another, 2002 Supreme
Court Monthly Review (SCMR) 440.
39
See Afsar Zamin v The State, Pakistan Legal Decisions (PLD) 2002 Karachi 18;
See also 2002 MLD 1817 [Karachi]; 2002 YLR 170 [Lahore].
40
Ibid. p 20.
41
Muhammad Afzal v the State, 2003 YLR 1983 [Lahore]; Muhammad Nadeem v
The State and another, 2003 YLR 321 [Lahore]; Ashraf Javed v The State, 2003
YLR 1377 [Lahore].
42
Ibid. 2003 YLR 321 [Lahore].
43
Mustafa Tariq v Pervaiz Ahmad and others, 2003 MLD 431 [Lahore].
44
PLD 2004 Supreme Court (SC) 758.
45
PLD 2007 Lahore 650.
46
Ibid. pp 676-678.
47
2008 PCrLJ 1542 [Lahore].
48
Muhammad Noman and another v The State, 2008 PCrLJ 1439 [Federal Shariat
Court].
49
2009 PCrLJ 191 [Peshawar].
50
SPARC, The State of Pakistan's Children, 2008, op. cit., p 154.
51
Ibid. p 155.
Khurshid Iqbal is MA, LLB (Peshawar, Pakistan); LLM (Hull, UK); PhD (Ulster, UK); Additional
District & Sessions Judge; Visiting Lecturer, Law College, University of Peshawar.
119
Juvenile Justice Policy:

Gaps Identification and Role of Key Stakeholders
in Pakistan
Imran Ahmad Sajid
Abstract:
This article presents the situation of juvenile justice in Pakistan and the need for a
comprehensive, meaningful and effective policy for addressing the problems associated
with juvenile justice. As such there is no policy for juvenile justice in the country at the
present. The only major law dealing with children in conflict with law is Juvenile Justice
System Ordinance 2000. Owing to some practical difficulties the law is not implemented
properly in the country. Pakistan has many good policies, may be on paper sometimes, like
health policy, educational policy, labour policy, etc but we neither have a criminal justice
policy nor a specific juvenile justice policy at national or provincial level. This paper
explains how a juvenile justice policy should look like in the context of Pakistan.
Keywords:
Policy, Criminal Justice System, Juvenile Justice System, Juvenile Delinquency, Diversion,
Restorative Justice, Police, Prosecution, Juvenile Courts, Borstal Institution.
Introduction
Crime and deviance are the undeniable characteristics of human society. No
country in the world can claim to be free from such evils. When people start living
together in a society, these and a wide range of other problems always emerge. In
response to these problems society establishes formal and informal institutions in
order to tackle with such problems. Criminal justice system is one of these
institutions established by the state for social control, with the purpose of delivering
justice to its citizens, by convicting and punishing those who violate the state laws,
help them rehabilitate by stopping further criminal activities, and protection of the
innocents from harms and threats by these criminals (Bohm & Halvey, 2005).
According to Sage Dictionary of Criminology “[criminal justice is] the process
through which the state responds to the behaviour that it deems unacceptable.
[Further], the criminal justice is delivered through a series of stages: charge;
prosecution; trial; sentence; appeal; punishment. These processes and the agencies
which carry them out are referred to collectively as criminal justice system”
(McLaughlin & Muncie, 2001). In the words of Chamelin, Fox, and Whisenand,
“criminal justice system is an apparatus society use to enforce the standards of
conduct necessary to protect individuals and the community” (Chamelin, Fox, &
Whisenand, 1975).
Imran Ahmad Sajid
120
Juvenile Justice: Concepts and Definitions

Modern societies have developed a separate system of justice for adult
criminals and juvenile offenders. Juvenile justice system is basically a part of an
overall criminal justice system specialized in dealing with children in conflict with
law. It is one of the means to achieve justice for all juveniles. Before detailed
discussion on juvenile justice in Pakistan, some frequently used terms in the juvenile
justice literature are subsequently described for conceptual clarity and reference.
A juvenile, as defined in Cambridge Advanced Learner's Dictionary, is “a
young person who is not old enough to be considered an adult.” In legal context a
juvenile, is “someone who falls within an age range specified by the state law”
(Elrod & Ryder, 2005). This legal age range varies the world over, from the lower
limit of 7 to the upper limit of 18 years. According to Article 1 of the UN Convention
on the Rights of Child (hereinafter CRC) and Section 2 (b) of the Juvenile Justice
System Ordinance 2000 (hereinafter JJSO 2000), “a juvenile is any person below
the age of 18 years.” The Dictionary of American Criminal Justice, Criminology
and Criminal Law defines juvenile as, “a person under statutorily specified age
(usually between seventeen or eighteen years of age) who is potentially under the
jurisdiction of the juvenile court” (Falcon, 2005). It is also worth noting that the
terms juvenile, child, adolescent and teenager are often used interchangeably in the
juvenile justice system.
1. Juvenile Delinquency
The term juvenile delinquency is often used for a broad range of behaviours
like noisy teenage gathering, truancy, shop-lifting, breaking and entering, and car
lifting etc (Scott & Marshall, 2005). As defined by Merriam-Webster online
dictionary, “[juvenile delinquency is] conduct by a juvenile characterized by
antisocial behaviour that is beyond parental control and therefore subject to legal
action.” The children or juveniles who come into contact with law are not termed
criminals, in juvenile justice. Rather they are termed delinquents. Their unlawful
acts are termed delinquency rather than crime.
2. Diversion
Diversion is an emerging concept in the criminal justice system. The term
diversion is used to refer to various measures to 'divert' juvenile offenders from the
formal criminal justice system. According to Sage Dictionary of Criminology
“[diversion is] the process of keeping offenders and other problem populations
away from the institutional arrangements of criminal justice or welfare”
(McLaughlin & Muncie, 2001). It is based on the understanding that formal
responses to juveniles who come into conflict with law do not always protect the
best interests of children or the community and that it can do more harm than good
121
to certain juveniles. A juvenile may be diverted from the formal criminal justice
system on admission of guilt, or if it is the first time offence, or the matter is a minor
one (O'Connor & Carmeron, 2002).
3. Restorative Justice
Restorative justice is a wide subject and some of its concepts are akin to the
Jirga system of the Pukhtoon culture or Panchayat in the Punjab or Sulh in the Arab
world. It focuses on the relationships between crime victims, offenders and the
community (McLaughlin & Muncie, 2001). Advocates of this restorative justice
practices suggest that, once found guilty, the priority should not be to punish the
offender but our priority should be to repair the harm done to the victim and ensure
that the offender realizes the damage he has done to the victim and community
(Johnstone, 2002). It is further argued that this goal can not be achieved through the
formal criminal trial and judicial punishment. It needs something other than the
formal criminal justice proceedings. Restorative justice practices are based on this
theory. It is an ancient practice and has its roots in eastern societies, but the renewed
attention to this practice in the west has started in the last few decades. The
beginning of the contemporary restorative justice is traced to the Canadian
experiments with victim-offender mediation in Elmira, Ontario in 1974 (Johnstone,
2002). This practice is still in its evolutionary process. Restorative justice processes
include among other practices; victim-offender mediation, family group
conferencing, community conferencing, restorative circles, circles of support and
accountability, Victim Offender Reconciliation Programmes (VORPS), and
punishment circles (Johnstone, 2002).
Need for a Separate Juvenile Justice System
Why do we need a separate juvenile justice system? There is a group of
criminologists who argue that a single consolidated system of justice dealing with
both adults and juveniles is enough and that there is no need for a separate system of
justice for juveniles. But most of the actors in criminal justice argue in favour of a
separate system dealing exclusively with children. The following two paragraphs
provide good arguments in favour of a separate juvenile justice system.
The basis for the juvenile justice system, separate from the adult criminal
justice system, has been provided by social construction of the childhood (Jensen &
Jorgen, 2006). At this stage (Childhood/Adolescence) the child's mental and
physical faculties are not developed to the level of an adult. The child lacks the
ability to realize what he/she exactly is doing and what will be the consequences of
his/her actions (Junger-Tas, 2006). Therefore, he/she can not be held responsible for
his/her actions unlike adults. On the basis of this notion children in conflict with law
Imran Ahmad Sajid
122
are in need of nurturing and guidance to grow into responsible adults, and they
deserve a chance to rectify their law violating actions (Jensen & Jorgen, 2006). This
is one of the reasons, put forward by international jurists, policy makers and
criminologists, for a specialized criminal justice system for juveniles.
Secondly, it has been found by the researches that in most of the juvenile cases they
have been used by the adults (Pakistan: Denial of Basic Rights for Child Prisoners,
2003). The juveniles are unaware of the consequences of their act and therefore they
less deserve to be blamed for an offence (Jensen & Jorgen, 2006). Therefore, a
juvenile justice system separate from the adult criminal justice system is justifiable
and the children below a certain age should be dealt with differently than the adult
criminals.
Juvenile Justice System in Pakistan
Pakistan is a signatory to the CRC and other agreements. Article 3 (1) of the
CRC states that:
“In all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary
consideration.”
Article 4 states that:
“State Parties shall undertake all appropriate legislative, administrative, and
other measures for the implementation of the rights recognized in the present
Convention. With regard to economic, social and cultural rights, State Parties
shall undertake such measures to the maximum extent of their available
resources and, where needed, within the framework of international co-
operation.”
In the light of these international provisions it is the responsibility of the state to
take specific measures to bring reforms in its laws, policies and institutions so that
the best interests of the child are served. Prior to the JJSO 2000 only two provinces in
Pakistan had juvenile laws: Sindh and the Punjab. The North West Frontier Province
(hereinafter NWFP) and Balochistan had no such laws before the implementation of
the JJSO 2000. Some of the other important laws dealing with juveniles in Pakistan
are:
· Sindh Children Act, 1955;
· Punjab Children Ordinance, 1983;
· Punjab Youthful Offenders Ordinance, 1983;
123
· Sindh Borstal Schools Act, 1955;

· Punjab Borstal Act, 1926;
· Punjab Supervision & Control of Children Homes Act, 1976;
· Reformatory Schools Act, 1897;
· Juvenile Smoking Ordinance, 1959;
· Probation of Offenders Ordinance, 1960;
· Employment of Children Act, 1991; and
· Bonded Labour System (Abolition) Act, 1992.
The JJSO 2000 is the most recent law but since its inception, in some instances,
it has remained ineffective. The reasons are manifold and complex. There are some
practical difficulties in the JJSO 2000 and, generally, there is a lack of awareness
among the concerned departments and institutions. Furthermore, all the
components of the criminal justice system lack proper infrastructure. For example,
Section 4 (1) of the JJSO 2000 demands separate courts for juveniles and Section 10
(3) prohibits to keep a child in a police station or jail, but to date we not only lack
separate juvenile courts but also no rehabilitation/reformatory institutions and pre-
trial detention centers like remand homes, in true sense.
The situation of juvenile justice in Pakistan is really deplorable. The spirit of
the CRC and other international rules and guidelines, like the Riyadh Guidelines and
the Beijing Rules, is that justice system dealing with child in conflict with law
should focus primarily on reintegration of the child into society and encouraging
him/her to play a constructive role in the society. But unfortunately the approach and
spirit of these international rules and guideline is direly missing in Pakistan. The
following presents a brief picture of juvenile justice in Pakistan.
First, the Minimum Age of Criminal Responsibility is one of the basic issues
and sadly in Pakistan, it is one of the lowest in the world: seven years but can be
raised up to 12 years if the child has not attained sufficient maturity or understanding
to judge the nature and the consequences of his act [Section 82 of Pakistan Penal
Code, 1860].
Second, there is a nominal structure dealing with children in conflict with law.
In Pakistan, we have laws and departments regarding children in conflict with law
but we lack a system and proper infrastructure. The country lacks specific
institutional facilities, like there are only two Borstal institutions in the Punjab and a
Sindh Industrial School in Sindh for juvenile accused of having infringed the penal
law. The establishment of Borstal institution in Bannu district in the NWFP has been
approved by the government but still it has not begun to function. It is important to
mention here that the Borstal institutions of the Punjab province have failed to fulfill
Imran Ahmad Sajid
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the purpose of rehabilitation / reformation for the social reintegration of the child in
conflict with law. The Borstal institutions are not run under the Borstal Act but are
functioning under the jail manual. Furthermore, there is no psychotherapeutic
treatment, and formal education of juveniles in Borstal institutions i.e two most
important elements for the rehabilitation of juvenile delinquents practiced world
over. That's why the Borstal institutions of Pakistan have failed to fulfill their
purpose.
Third, there is no mechanism in the country for keeping the record of juveniles,
who have been in conflict with law, awaiting trial, pending cases, in detention, in
prisons, and juvenile probationers etc. There are no proper official statistics
available on these variables. The concept of restorative justice is generally not put
into practice by many. That's why there are no fruitful and well-received
diversionary programmes for juvenile offenders. With regards to diversionary
programmes, the probation is the only non-custodial punishment in the country but
the lack of awareness about the system and its significance is obvious. The
probation system is mostly less known to the key protagonists involved in the
juvenile justice system (Pakistan: 3rd and 4the Periodic Report, 2009). Furthermore,
the probation department is ill-staffed throughout the country. In 2008, there were
only 58 probation officers and 14 parole officers for 113 districts of the country with
only 133 juvenile probationers as reported in some government documents
[unpublished].
rd th
Fourth, the 3 and 4 periodic report to the UN Committee on the Rights of
Child by Pakistan (hereinafter The Periodic Report) has not provided any verifiable,
authentic, and reliable data regarding juvenile justice information indicators at the
national level (Pakistan: 3rd and 4the Periodic Report, 2009). The report shows that,
as on June 2007, there were total 91prisons in the country keeping 2018 male and 3
female juvenile offenders. Out of these figures only 201 were convicted and the rest
were under trial. That is to say 90% are under-trial juveniles. This shows a slow
process of justice in the country.
Fifth, the national and international laws provide for free legal assistance to the
juveniles but rarely a child is provided legal assistance. Only some civil society
organizations (hereinafter CSOs) are providing legal assistance to juveniles in
conflict with law but their efforts are still not enough to deal with the magnitude of
the problem (Pakistan: 3rd and 4the Periodic Report, 2009, para 542-43).
Sixth, there is no published official data on juvenile justice indicators. Most of
the data contained in the periodic report has been taken from the studies and small
surveys conducted by CSOs and other organizations. To many, their reports are not
reliable and lack proper presentation. Mostly their studies are not empirical and to
rely on that information will present a picture of the situation which is not tangible.
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Seventh, there is no authentic system of birth registration in the whole country.

The birth registration rate in the country is only 29.5% as provided in the periodic
report. In the absence of such a system it becomes very difficult to determine the
exact age of a person accused of having infringed the penal law. This difficulty in age
determination results in many mishaps to the child in conflict with law in the country.
Eighth, Section 4 (1) of the JJSO 2000 provides for the establishment of
exclusive juvenile courts but the establishment of exclusive juvenile courts
remained a challenge. In all the provinces of the country, the respective High Courts
have conferred the powers of Juvenile Courts upon Courts of all the District and
Sessions Judges or Civil Judges. For example in the NWFP, 146 Courts have been
conferred upon the powers of Juvenile Courts. Similarly all other Provinces have
conferred upon the powers of Juvenile Courts upon the Courts of all the District and
Sessions Judges or Civil Judges (Pakistan: 3rd and 4the Periodic Report, 2009, para
544). Now the cases of juveniles in conflict with law are dealt by the district and
session judges in Pakistan but owing to the burden and lack of facilities they often do
not follow the procedures as laid down in the JJSO 2000.
The reason for the ibid mentioned difficulties lies in the absence of any
comprehensive and well-thought juvenile justice policy within the national
framework and in accordance with the international laws. So a policy for juvenile
justice is required to regulate the activities of the various organs involved in
criminal/juvenile justice administration and to provide guidelines so as to facilitate
their functioning. It is important to know that a policy, in general, is “a principle that
[people] believe in and that influences how [they] behave.” It is the guiding
principles which influence the decisions taken by the authorities in the management
of their affairs (Wehmeier, 2004). Likewise, a juvenile justice policy provides
guidelines for all the components of the juvenile justice system, so that the decisions
are taken in accordance with these guidelines or rules for the best interests of the
child. The aim and objectives of the juvenile justice policy are to facilitate and
enhance country level coordination amongst the actors of the juvenile justice system
in accordance with the CRC and other relevant international norms and standards.
Juvenile Justice Policy and Role of Key Stakeholders
The above discussion fully substantiates that Pakistan needs a comprehensive
juvenile justice policy, the blue print of which is provided in this paper. A policy in
any discipline, department, institution, or organization is based on some guiding
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principles which are “the underlying assumptions in a system of thoughts” (Police,

2008). Some of the guiding principles for a juvenile justice policy in Pakistan, which
are considered necessary by the author, are given as:
· All children in conflict with law should be dealt with courtesy and mercifully
[Article 37 (c) of the CRC].
· All children in conflict with law shall be treated equally and they shall not be
discriminated on any ground [Article 2 (1) of the CRC].
· The best interest of the child shall be the primary consideration in all processes
of juvenile justice administration [Article 3 of the CRC].
· All forms of abuse and violence shall be prohibited in all juvenile justice
processes [Article 19 of the CRC, The Beijing Rule 17.3].
· Family and religion and other institutions shall be strengthened for the
reintegration of the child and prevention of delinquency (Wilson & Howell,
2005).
In order to achieve the desired results of the policy in light of these guiding
principles, an effective and target-oriented strategy is to be adopted. The rest of the
text deals briefly with the strategies to be adopted in a proposed juvenile justice
policy. Here it is worth mentioning that a strategy is “a detailed plan [of action] for
achieving success in some situation” (Strategy, 2009).
As stated before, a juvenile justice system consists of police, probation,
prosecution, courts, and the correctional institutions like prisons, borstal institutions,
day care centers, remand homes etc. This section highlights some of their features
and problems, and suggests recommendations for various components of the
juvenile justice in Pakistan in the light of researches and international conventions
and guidelines.
a. Role of Police
Police is the primary and first agency in any type of criminal justice system
whether dealing with juveniles, adults, or women in conflict with law. Police is “the
governmental department, bureau, or agency of a city, township, county, or
state/nation charged with the responsibilities of maintaining public order,
preserving the peace, providing emergency services, preventing crime, the
detection of criminal activity, and the enforcement of the criminal law” (Falcon,
2005). Police are the first respondent to any encounter with the law-breakers in all
criminal justice systems. The primary functions of the police are the prevention of
crime and delinquency, detection and investigation of the cases, and prosecution of
127
the offenders. However, in Pakistan, the prosecution has been recently separated
from the police and is now a separate department. The Police Order 2002 Articles 3,
4, 5 and numerous others describe these functions in detail and the range of duties for
the police.
With reference to police role in juvenile justice in Pakistan, there is a general
lack of specialized teams for juvenile delinquency, prevention and investigation in
the police. The awareness regarding the rights of the child in conflict with law is very
minimal, particularly at lower level amongst the police. Lack of trainings on
national and international juvenile justice laws, is obvious, particularly on the JJSO
2000. Police department lacks computerized mechanism for keeping the record of
all the juveniles in conflict with law. These, and some others, are the lacunae in the
police department in Pakistan. However, there are some individual efforts to rectify
the situation. For example, the NWFP Police has taken some new initiatives
regarding children in conflict with law. The establishment of Police Child Protection
Centre (PCPC) in Peshawar for diversion of juvenile offenders, new data-base
system for juvenile offenders and victims, and the Police Child and Women
Protection Committee (PCWPC), are a few of the such initiatives to mention here.
Sindh Police have also taken a few good steps in this direction in collaboration with
local NGOs. Moreover, the National Police Bureau of Pakistan is trying to synergize
and organize all such efforts into a national policy. The establishment of a Juvenile
Justice Working Group (JJWG) at provincial level with police in the leading role in
the NWFP is also commendable.
In the context of the above presented situation analysis the following are a few
policy recommendations for the police:
Firstly, the attitude of the police towards the juveniles in conflict with law is a
very big problem. In a five days training, organized by Pakistan Society of
Criminology (PSC), for educating and sensitizing the police station clerks, called
Moharirs and Naib Moharirs, of the NWFP Police, it was observed that they have
utter lack of awareness about national and international juvenile laws and the child
rights. When asked “who has heard the name of JJSO or CRC?” only a few
participants of the trainings-mostly from Peshawar district-raised their hands in
affirmation (Events: NWFP Police Training on Data Collection on Crimes against
Children and Juvenile Offenders, 2009). It gives an idea about the awfully low level
of awareness regarding juvenile laws in the police station officials of the NWFP.
The situation will not be different in other provinces as well. Therefore, awareness
and sensitization in the police officials shall be given priority. The JJSO 2000 and
other child related national and international laws should immediately be included
in the syllabus of the Police Service of Pakistan (PSP) officers, upper courses and
intermediate courses of the upper and lower subordinate officers at the police
training institutions. Special trainings on national and international laws, such as
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128
United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules), United Nations Guidelines for the Prevention of Juvenile
Delinquency (The Riyadh Rules), UN CRC, JJSO 2000 and the Rules formulated
under the JJSO, should be a part of the capacity building and in-service/on-job
police training.
Secondly, under Section 10 (3) of the JJSO 2000, a child in conflict with law
cannot be kept at police stations nor he/she can be detained in jails. To the contrary in
Pakistan due to lack of facilities, the children in conflict with law are kept at police
stations before the disposal of their cases. In this regard it is recommended that the
Police Station Officers must ensure to contact the Probation Officer(s) immediately
on arrest of the juvenile, and give the juvenile under his custody, who can detain the
child in conflict with law into any facility etc [Section 10.1. (b) of the JJSO 2000].
Astonishingly there is no pre-trial detention or remand home facility in Pakistan
except Karachi (established under Sindh Children Act 1955), so where on earth the
probation officer would keep the child in conflict with law if at all he is given the
custody of such a child a legal gap in the implementation of the law?
Thirdly, to collect and analyze the cases of juvenile offenders and victims and
find out the causative factors and devise ways and means to curtail the inhumane
behaviour towards children, the establishment of a data-base at the Central Police
Office (CPO) of all the provinces and at the regional level should be the top priority.
The profile of children in conflict with law-by gender, age, offence category etc- be
recorded separate from the adults' record.
Fourthly, juvenile delinquency, the world over, is considered to be the problem
of urban centers. Therefore in big cities of the country, where the rate of juvenile
delinquency is high, special police units for dealing with children in conflict with
law can be created on priority basis [The Beijing Rule 12.1]. These police officers
shall be trained properly and skillfully on the process of interacting and interviewing
with a child while keeping in mind the needs, wishes and feelings of a child. A child
shall be treated by a police officer in light of the internationally agreed guidelines.
Fifthly, there are reports on child sexual and physical abuse by the police
authorities. This is something very discouraging on part of the protectors of people.
For that reason, an independent and impartial investigation mechanism regarding
reports of misconduct, brutality, and the denial of children's rights by the police
should be established. There should be specialized units in the police who deal,
particularly, with child sexual abuse and child trafficking.
Sixthly, but the most important is that the police officers should pay more
emphasis on diversion of the juveniles in conflict with law from the formal justice
system. In this regard the police officers can use warnings, fines, restitution,
compensation, restorative justice practices, and other diversionary options.
129
Finally, for all these steps the police should be given special budget immediately,
and the police themselves should allocate sufficient amount from its own budget for
these direly needed initiatives in the best interests of the child.
b. Role of Prosecution
Prosecution is a liaison department between the police and the court.
Prosecution plays a pivotal role in the administration of justice. According to Black's
Law Dictionary, “Prosecution is a proceeding instituted and carried on by due
process of law, before a competent tribunal (court), for the purpose of determining
the guilt or innocence of a person charged with a crime” (Prosecution, 1999). A
prosecutor or public prosecutor is an expert of the law to represent the state, in court
proceedings, against the law breaker. Prosecution in Pakistan was a branch of police
but it has recently been separated, with a view to achieving speedy justice process. It
is now made an independent department after the promulgation of the Prosecution
Ordinance of 2005. This department is highly developed in other countries, but in
Pakistan it has not yet developed to that extent. In the area of juvenile justice the
prosecution department has several gaps including lack of specialized prosecutors
in children's issues, low interest and lack of concern in such cases, and the problem
of prosecuting a child like the adult criminal.
The following steps are recommended for the role of prosecution department in
a proposed juvenile justice policy:
First, special public prosecutors (PP) on juvenile justice are needed to be
appointed at first in the big cities and later on at each district. For the existing
prosecutors who are frequently dealing with juvenile cases special trainings should
be arranged. These trainings should include, besides national and international laws,
courses on psycho-social development of child, counseling of a child, proper
production of juvenile offenders before the court and securing the rights of the
juvenile offenders when they are in police/judicial custody etc.
Secondly, priority should be given to an appropriate conclusion of the case of
juveniles through diversion by the prosecutor. The prosecutors should continuously
explore the possibilities of alternatives to a court conviction as recommended by UN
General Comment No. 10 Para 68.
Thirdly, Section 4(a) (ii) (2) of the Prosecution Ordinance 2005 states that the
prosecutor on receipt of the final report (chalan) shall withhold the same for want of
proper evidence and return it to the Investigation Officer with written direction to re-
submit the report after removal of the deficiencies so identified by him. Generally, if
a child's age can not be determined properly, the police officers put an ambiguous
age on the age card (chalan). For example the age may be recorded as 'eighteen /
nineteen'. Now it is the duty of the prosecutor under Section 4 of the
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130
Prosecution Ordinance 2005 to ensure that the age is recorded properly and correctly.
But sadly, the prosecutors, in general, do not perform this function. Therefore it is
recommended that the prosecutors dealing with child cases must ensure proper
recording of age in line with Section 7 of the JJSO 2000, in order to qualify child in
conflict with law to the benefits of the JJSO 2000.i.e. it can be done through medical
tests, if no other document is available. It is the prosecution department which has
to make it certain and ensure that the investigations are properly and timely
completed by the police in the stipulated time as required by the law under Section
173 of the Criminal Procedure Code of Pakistan (hereinafter Cr.P.C) by adopting
due diligence in the recording of age the most important factor in dealing with child
related cases. The District Public Prosecutors (DPP) should perform their duty of
taking disciplinary actions against the Investigation Officers who prepare the final
report (chalan) inefficiently, misrepresent the facts, and who do not exercise due
diligence or honesty in conducting investigation etc [Section 5(d) of the Prosecution
Ordinance 2005]. Strict departmental actions are also needed to be taken against the
prosecutor who fails to put the Chalan (Final Report) in the court after the
investigations are complete.
Finally, close liaison of prosecution with the police and probation be promoted.
c Role of Judiciary / Courts
Judiciary is the third pillar of the state which is responsible for its legal system
and which consists of all the judges in the country's courts of law (Judiciary, 2009).
Courts are one of the basic components in all justice systems. In fact when we think
of the juvenile justice system, the first concept which strikes our mind is the
exclusive juvenile court dealing only with the juveniles. The children in conflict
with law, who are not diverted from the formal legal system at an early stage, are
dealt with by the juvenile courts or by the criminal courts in case of non-existence of
juvenile court. Juvenile Court is the heart of the juvenile justice process. It is an
agency where the decisions made by all the other child related agencies are
supported or altered. A juvenile court is the court responsible for holding hearings
and making decisions regarding disposition of juveniles who have entered the
juvenile justice process (Elrod & Ryder, 2005).
The courts in Pakistan are suffering from various problems. Section 4 of the
JJSO 2000 provides for the establishment of separate juvenile courts by the
Provincial Governments. This ordinance provides a good detail of the juvenile court
proceedings but the establishment of exclusive juvenile courts has yet to be realized.
Therefore, it is recommended that at least one exclusive juvenile court should be
established immediately in each province.
131
If the judges have to dispose off the cases of the children in conflict with law,
they must be trained in dealing with children. Therefore specialized courses on
juvenile justice should be included for judges in curriculum in the judicial training
institutes. Training should be imparted to all lower-courts judges in national and
international laws regarding children in conflict with law.
Most often the juveniles in prisons are detained for longer due to non-
completion of investigation in such cases. Therefore, the court must ensure that the
police have submitted the Final Report (Chalan) within fourteen days as required by
the law under Section 173 of Cr.P.C, for an early trial.
Age assessment of the juvenile in conflict with law is a very big problem in
Pakistan. Generally there is a very low tendency in masses about birth registration of
their children, and education too. Therefore age determination of the children who
have no official documents regarding age, becomes a big problem. In such cases the
police officers often use their personal judgment by examining the physical
appearance of the offender. Although it is the duty of the prosecutors to make it
certain that the exact age of the child in conflict with law has been written on the age
card (chalan), but whenever the prosecutors fail to do so the court must ensure the
proper age assessment in order for child in conflict with law to qualify to the benefits
of the JJSO 2000.
If a child found guilty of the alleged offence(s), the court should look for the
alternatives to institutional care and deprivation of liberty, to assure that deprivation
of liberty be used only “as a measure of last resort and for the shortest possible period
of time” [Article 37 (b) of the CRC, & The Beijing Rule 13.1]. Preference should be
given by the judges to measures like fines, restitution and compensation, probation,
and community services, and group counseling activities etc [The Beijing Rule
18.1].
d. Role of Probation
Imprisonment is not the only way to respond to the criminals. There are various
alternative methods to imprisonment including probation which is arguably one of
the most progressive contributions to modern criminal policy (Qureshi, 1999). It is a
very important agency in juvenile justice system. Those offenders who, according to
the court, are likely to be reformed, and who are not dangerous to society, are not
sentenced to imprisonment and are kept on probation under the supervision of the
state-probation officer. Probation is “a period of time when a criminal must behave
well and not commit any more crimes in order to avoid being sent to prison”
(Probation, 2009). As defined by Elrod and Ryder, it is the supervised release of an
individual by a court (Elrod & Ryder, 2005). Islamic philosophy of crime does not
Imran Ahmad Sajid
132
profess hating the criminal rather it professes hating the crime and reforming the
criminal (Tahir-Ul-Qadri, 2006). Similarly, the probation system is based on the
philosophy of “eradicating the crime not the criminal.” Probation department in
Pakistan performs its functions under The Good Conduct Prisoner's Probation
Release Act 1926, Probation of Offenders Ordinance 1960, JJSO 2000, and the rules
formulated under various laws. Section 10 (3) of the JJSO 2000 provides for all
those juveniles who can not be released on bail by the court “should be placed under
the custody of a Probation Officer or suitable person or institution dealing with the
under any circumstances be kept in a police station or jail in such cases” (Pakistan:
3rd and 4the Periodic Report, 2009, Para. 537). According to the periodic report on
the CRC submitted by Pakistan, “there is lack of awareness about the [probation]
system and its significance. Police, prison officials and even in the ranks of lower
judiciary there is lack of awareness concerning probation system.”
The following presents a few recommendations which the policy makers must
take into account for a specific role of probation in a proposed juvenile justice policy.
Firstly, the periodic report Para 539, points out that there is a lack of probation
officers and that many districts are still without probation officer. Therefore the
number of probation officers should be immediately increased. At least three
probation officers should be posted in each district. The female probation officers
are only a few in a country of 170 million people, which must be taken into account
at once.
Secondly, the probation officers complain that their present scale has failed to
give them due respect and that it should be raised at least to grade 17. Service
conditions shall be made more attractive and rewarding to attract the most
competent persons to this department.
Thirdly, diversion is the key element of juvenile justice system. “It avoids child
getting criminal record and being labeled at an early age, and avoids being
stigmatized and minimizes the deprivation of liberty” (UNODC, 2006). The
concept of diversion should be promoted at all levels in the juvenile justice process,
right from the initial contact of a child with the police. It is the probation officers
who perform key role in diversion programmes-such as close supervision,
community services. It has been noted that most often the child diverted to
community services is kept as a servant in residences of the officers. This form of
service is included in the category of “child labour”, and it is a labour without any
fruit. This practice needs to be abandoned at once and other community services
should be sought while keeping in view the inherent dignity of the child.
133
Fourthly, to lower the burden on the courts, where appropriate, the probation
officers should be empowered to dispose off juvenile cases at their discretion before
lodging of report with the police and institution of trial.
Finally, more Borstal institutions should be established under the probation
department and they should be run under the Borstal Act instead of Jail Manual.
e. Role of Institutional Treatment
According to the Section 10 (3) of the JJSO 2000 all juveniles which the court
can not release on bail because of various reasons “should be placed under the
custody of a Probation Officer or suitable person or institution dealing with the
under any circumstances be kept in a police station or jail in such cases.” To the
contrary the juvenile delinquents, as a general practice, are either kept in police
stations or sent to jail-where they are kept in the so called Munda Khana or Juvenile
Section-as there is no remand home in any province except the Sindh province,
which is in fact clear violation of the JJSO 2000, Juvenile Justice Rules, and the
CRC (Ratified by Pakistan in 1990).
Pakistan Society of Criminology (PSC) has recently conducted a research
study on selected prisons of the NWFP (Report on Gaps in Existing System of Jails,
2009) under Juvenile Justice Reforms Project (JJRP) by the UNICEF. Its findings
and observations include:
· overcrowding in jails-which has also been noted by Amnesty International's
research report on Pakistan 2003 (Pakistan: Denial of Basic Rights for Child
Prisoners, 2003);
· no separate places for juveniles and likely indoctrination by radical inmates;
· no separate sector inspector or officials entitled to handle juvenile inmates;
· lack of recreational facilities for juveniles, and no separate transport facility for
under-trial juveniles;
· no proper record of juvenile offenders;
· no formal education provisions for juvenile offenders;
· no separate interview facilities for juvenile offenders; and
· lack of medical facilities for juvenile offenders.
These are very deplorable and serious problems seen and noticed in the central
and district jails of the NWFP. The situation is almost the same in all prisons
throughout the county. The recommendations of PSC report regarding the prisons
provide a very good source for policy consideration. In the light of aforementioned
findings and observations, the following are a few recommendations for future
juvenile justice policy:
Imran Ahmad Sajid
134
First, at least one Borstal institution, or similar institutions with all necessary
facilities should be established in all the provinces. After the establishment of the
Borstal institutions the children detained in prisons should be immediately
transferred to them. The supervision of Borstal institution should be transferred to
the probation department. It is not a prison rather it is a rehabilitation institution and
rehabilitation is neither the responsibility of prison department nor they are trained
for this purpose.
Secondly, Section 10 (3) of the JJSO 2000 prohibits keeping a juvenile in a jail
or prison. Similarly, the Beijing Rules 26.3 states that “juveniles in institutions shall
be kept separate from adults and shall be detained in a separate institution or in a
separate part of an institution also holding adults.” The placement of children in
adult prisons or jails compromises the children's basic safety, well-being, and their
future ability to remain free of crime and to reintegrate (General Comment No. 10,
2007, Para. 85). Therefore, every child deprived of liberty should be separated from
adult criminals.
Thirdly, the present staff in prisons is trained to deal with adult criminals and
their approach to juvenile is also like that of adult criminals. Therefore, there should
be special staff in the rehabilitation/reformation institutions, for dealing with
juvenile inmates. These officials must be especially trained in dealing with juveniles
such as interviewing the juvenile, taking case history, and counseling etc. Similarly,
separate places for interviewing the juvenile offenders should be created which are
designed keeping in view the juvenile needs. We need separate juvenile facilities
which are in no way part of a prison or under the prison department.
Fourthly, recreation plays a key role in child physical and psychological
development and there are no such facilities in jails as observed by PSC study
(Report on Gaps in Existing System of Jails, 2009). Therefore, wherever possible in
jails, some sort of recreational facilities should be created for juveniles such as in-
door and out-door games.
Fifthly, infants and children accompanying the under trial or convicted mothers
need special attention. The prison rules do not provide for any special provision for
such children and infants. At least proper nutrition should be given to such infants
and children for their physical development. The jail and prison system has a weak
health and medical facility for juveniles. It is recommended that the medical history
and periodic medical reports should be kept in the juvenile file for the record.
Sixthly, as exclusive juvenile courts are missing in the country, so until the
creation of exclusive juvenile courts, the proceedings of juvenile offenders should
take place within the jails for early disposition.
Finally, the juvenile and child soldiers need special attention. They should be
kept separate from non-soldier offenders. Psychologists of high reputation should
135
be hired for their psychological treatment and de-radicalization and de-

indoctrination, which has become a serious challenge for our law-enforcement
agencies and government officials after the war on terror and military operations in
some parts of the country.
f. Role of Associated Agencies
The police, probation, prosecution, courts, and correctional institutions are the
primary components of the juvenile justice system. But juvenile justice policy must
take into account the various secondary components and associated agencies of the
juvenile justice system as well. The Social Welfare Department should be utilized to
a greater extent for devising diversionary programmes. The Ministry of Human
Rights, CSOs, media, Law Department and other agencies associated with criminal
justice, rehabilitation, and social services, should be given due attention and specific
role in policy making.
Conclusion
A juvenile justice system is based on the guiding principles of juvenile justice
policy in any country which is the reflection of the level of commitment of a country
towards internationally agreed children rights. The uncoordinated and fruitless
efforts of the agencies related to juvenile justice can be converted into synchronized
and fruit bearing efforts through a comprehensive policy for all these agencies.
Allocation of sufficient funds, establishment of exclusive juvenile courts, police
juvenile units, improvement in prison conditions, training of the probation officers,
establishment of Borstal institutions, devising diversionary programmes and
informal restorative justice practices are a few key points of special concern in a
juvenile justice policy in Pakistan. The ratification of the CRC has taken place in the
90s and now it is the right time for Pakistan to take concrete steps towards the
establishment of a viable and visible juvenile justice system, and announce a
comprehensive, well-thought and cost-effective juvenile justice policy.
References
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Elrod, P., & Ryder, S. (2005). Juvenile Justice: A Social, Historical, & Legal
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Juvenile Offenders. (2009). Retrieved 09 22, 2009, from Pakistan Society of
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The author, Imran Ahmad Sajid, is M.A. (Gold Medalist) and is currently doing M.Phil leading to Ph.D. in
The Department of Social Work, University of Peshawar, NWFP, Pakistan. He is an active member of
Pakistan Society of Criminology and can be reached at imranahmad131@gmail.com
139
Criminal Justice for Juveniles:

International and National Law
Abdul Aziz & Kamran Adil
Abstract:
Pakistan stands committed to international obligations under the Convention on the Rights
of the Child (CRC), and has thus its first comprehensive juvenile law as the Juvenile Justice
System Ordinance 2000. Though many issues have been addressed by the JJSO, 2000 in
light of the requirements of the CRC, yet there exist some legal, technical and practical
difficulties in implementation of the said law. Legal and academic debate is needed to
identify such discrepancies and suggest ways and means for the removal of such hindrances
in dispensation of juvenile justice and for securing the rights of children in conflict with law.
This paper examines some of these academic and practical hassles associated with
interpretation and implementation of the existing laws.
Keywords:
Juvenile Justice System Order 2000, CRC, Guardianship, Age of Criminality, Bail, Juvenile
Court
Introduction
The present articulation is aimed at an objective appraisal of the Juvenile
Justice System Ordinance, 2000, which in its preamble contains the following
recital, which expounds the objective of the Ordinance as:
Whereas, it is expedient to provide for
i. Protection of children involved in criminal litigation;
ii. Their rehabilitation in society;
iii. Reorganization of Juvenile Courts and matters connected therewith and
incidental thereto;
To the above-quoted recital delineating the purport of the legislature, Justice
Wahid Bux Brohi of the Karachi High Court in case of Afsar Zamin v. The State held
that the Ordinance is a special legislation to protect 'Human Rights' of children. The
ratio decidendi is reproduced here:
'…Ordinance in a way safeguards the human rights of a section of society

who deserve reasonable concession because of their tender age and,
therefore, it is to be construed liberally in order to achieve the said
objective.' 1
The instant article was published in Journal Section of Pakistan Law Decisions with PLD 2002
Journal 159 as its citation. It is reproduced here with certain changes and after permission.
140
As to the above stated objectives, one may feel inclined to express that the
Juvenile Justice System Ordinance, 2000 does not cater to them. The reason being is
that Juvenile Justice System Ordinance, 2000 quintessentially addresses issues
dealing with procedure of trial and interim custody during litigation of criminal
nature and not with the protection, 'rehabilitation' and 'reorganization' of juvenile
criminal justice. That's as may be, here the international and national law on the
subject as embodied in different instruments is elucidated with brief comments.
International Law
The Convention on the Rights of the Child 1990
The Juvenile Justice System Ordinance, 2000 has basically its roots in the
famous CRC, (the Convention on the Rights of the Child 1990. It defines a 'child'
and its language gives the expression as if the basic criterion in order to determine a
'child' is that he is one who has not attained age of majority according to the law
applicable to him (i.e. his national law). However, in absence of a national law
specifying the age of majority, the CRC says that a 'child' is a human being below
eighteen years of age.2
Likewise, Articles 37 and 40 of CRC provide important guidelines for the
following issues:
i. Prohibition of Torture of a child;
ii. Prohibition of inhumane or degrading treatment or punishment of a child;
iii. Prohibition of capital punishment;
iv. Prohibition of life imprisonment without possibility of release;
v. Right to life of a child;
vi. Right to liberty of a child;
vii. Treatment of child in accordance with law;
viii. Arrest, Detention or imprisonment of a child should be resorted to as a
measure of last resort;
ix. Humane and respectful treatment of a child;
x. Separate internment of children from adults;
xi. Access to justice against depravity of liberty of a child and the determination
of this depravity to be done by a competent, independent and impartial
authority;
xii. Ensuring prompt decision of the determination or adjudication of depravity
of liberty;3
141
xiii. Retroactive (Retrospective) effect of a penal law;

xiv. Minimum guarantees provided to a 'child' in a proceeding before a Court;
these are enlisted as:
· Presumption of innocence;
· Right to information in trial;
· Right to legal aid;
· Right to fair and impartial adjudication/trial;
· Right against incriminating evidence's procurement;
4
· Right to revision and appeal;
· Right to privacy at all stages of the proceedings;
xv. Enactment of a national law to effect presumption as to establish minimum
age below which absolute immunity from criminal liability is introduced;
xvi. Providing of alternative and non-judicial remedies; and
xvii. Ensuring dispositions like counseling, probation; foster care; education and
educational training programmes etc.
National Law
Juvenile Justice System Ordinance 2000
Most apposite form of elaborating the law propounded in the Juvenile Justice
System Ordinance, 2000 (hereafter referred to as the Ordinance) appears to be a
discussions of its characteristics. Thereby, following issues are discussed in line
with the scheme of the Ordinance.
1. Age of a Juvenile
5
The issue of age of an accused assumes significance at two stages generally
which are:
a. At the time of deciding whether a particular person is subject to special
law i.e. the Ordinance;
b. At the time of deciding the quantum of punishment of the accused if the
accused juvenile is found guilty. Moreover, in the ante-referred case of
Afsar Zamin, the learned Judge of the Karachi High Court held that that
the determination of age of an accused is a prerequisite condition. He held:
142
'… Had the point of age been determined in accordance with law as a
prerequisite condition, a statutory right would have accrued in favour of
accused for release on bail, as even the charge against him had not been
framed…'
In order to determine age, conceptually speaking two types of tests may be
employed: one objective and the other subjective. In objective test, the
determination of age is decided on the basis of any document proving age
of the accused to be 18 years provided the document merits the
presumption as to 'genuineness' of documents kept under the only law
under Article 92 of the Qanun-e-Shahadat Order, 1984. On the other hand,
the subjective test contemplates proving of age in absence of or in doubt of
or in case of rebutting (of presumption under Article 92), on the basis of
secondary evidence like medical opinion or 'hulia form' etc. The
objective test, it may be submitted has its roots in definition of 'child'
under section 2(b) of the Ordinance, while subjective test emanates from
Section 7 of the Ordinance, which makes the determination of question of
age, in absence of objective test, test of an inquiry which includes a
medical report.
Having delineated the two tests, it is adumbrated that in Section 10(5) of the
Ordinance, the legislation introduces a new 'age parameter', which is 15 years. This
new age parameter poses novel and an altogether irrelevant issue which has no
significance with respect to merits of the case save as in connection with bail.5 The
fifteen years slab may result in extraordinary hardship for the child and the Court as
two adverse things are bound to take place: First, the Court will have to determine
the age of the child before passing him the benefit of the provision; secondly the
aggregate time of the trial and the whole process of criminal justice would increase.
2. Guardianship
The Ordinance defines 'guardian' as a person who has actual care of the child
and includes relatives of child who are willing to take his responsibilities. On the
other hand, Guardians and Wards Act, 1890' enunciates in general, three kinds of
guardians which are:
a. Guardian of person;
b. Guardian of property; and
c. Guardian of both person and property.
143
To these three kinds, superior judiciary, through case-law, has introduced three
more types, which are:
a. Natural Guardians;
b. De facto Guardians;
c. De Jure Guardians;
The above three kinds are not mutually exclusive, which means that one person
may enjoy more than one kind of guardianship (i.e. A, father of B, a minor may be
natural, de facto, de jure and guardian of both person and property). However, the
Court would be required under the Ordinance to 'determine' in case of disagreement
or dissension of opinion of different contending guardians in order to commit child
into custody of any one of them. To illustrate, say A, a minor of more than 7 years
(and in custody of mother 'M') regarding whom a suit for custody of minor has been
filed, causes a grievous hurt. F, his father may opt to apply for the fight to
guardianship for the purposes of the Ordinance. In such a situation, Court would
have to exercise one out of two options: either it will send the child into Probation
Officer's custody or to 'M's custody but unnecessary hassle and inconvenience is
bound to occur. In our considered opinion, instead of redefining the concept of
'guardian' it would have been much better if an allusion to 'The Guardians and Wards
Act 1890's Section 4(2) would have been undertaken. Moreover, a proviso of either
vesting Judge with discretion or with a mandatory provision of committing child to
Probation Office's custody seems to be a better solution.
3. Juvenile Court Special Procedure
Special procedure coupled with the restriction on orders, which can be made by
a Juvenile Court characterizes the Ordinance. A statutory time limit has been laid
down for the disposing of the case by the Juvenile Court.6 Another section7 stipulates
that notwithstanding the law relating joint trail envisaged in section 239 of The
Criminal Procedure Code, 1898, a child shall not be tried with an adult. On the day
fixed for evidence, no other case shall be taken up by the Juvenile Court is another
provision, which it appears, is far from reality and the people who made
recommendations, and have codified this law seem to have little or no knowledge
about the practical knowledge of working of our Courts because ordinarily our
Courts are overburdened with case. In any event, if a Court chooses to apply this
principle of exclusive hearing, it would be done at the cost of other litigants.
Furthermore, the principle of exclusive hearing of case of a juvenile conflicts with
section 526(1)(d) of The Criminal Procedure Code, 1998. Section 526(1)(d)
empowers a High Court to transfer a case on the basis of general convenience of the
witnesses in a case. Exclusive hearing of a case of a juvenile implies double
144
summoning of the witnesses: once in the trial of a co-accused non-juvenile of a

juvenile and second time in the trial of juvenile. Invariably the double set of
evidence would culminate into conflicting judgments. However, it would be
prudent to review the same in the light of practice prevailing in the Courts.
Publishing proceedings and pictures regarding a case in which a child is involved
has been made subject to specific authorization of the Juvenile Court. Finally,
except members and officers, parties to the Court, police officers and guardian of a
child, there is a prescription on presence of any other person at the time of trial of
child in the Court.8
4. Bail under the Ordinance
For bailable offences a new concept is imparted. The Court, by virtue of this
novel idea, shall take all possible steps that under any circumstances a child shall not
be kept in a police station or jail.9 The custody of child, in the meanwhile, may under
the Ordinance, be given to a Probation Officer (appointed under Probation of
Offenders Ordinance. 1960) or to a suitable person or institution dealing with the
welfare of the children or to the guardian of the child. In the same vein, for a child
under the age of fifteen, who has been arraigned for an offence punishable with
imprisonment of less than ten years, a non-bailable offence is to be deemed
bailable.10 To further expedite a trial of juvenile and to improve upon rights of
children, the Ordinance lays down statutory periods beyond which the juvenile
would be entitled to concession of bail. These statutory periods are: (a) in case of an
offence punishable with death, a continuous period of detention for one year: (b) in
case of an offence punishable for imprisonment for life, a continuous period of
detention for six month; (c) in case of an offence not punishable with death or for
11
imprisonment for life, a continuous period of detention for four months. Two
points, however, are necessary to be kept in view. First, the above mentioned
statutory periods are to be found in existence with the fact that the trial of a child is
not concluded in this period. Secondly, a Juvenile Court may refuse extending the
benefit of statutory periods aforementioned if the Court finds reasonable grounds
for doing so.
In order to further fortify and to ensure corporal freedom of children, the law
lays down that law of preventive detention and of demanding sureties for keeping
peace and good behaviour (as is enacted in Chapter VIII of Criminal Procedure
Code, 1898) cannot be pressed into service against child or youthful offenders.12 The
Juvenile Court is empowered to pass three types of orders in order to specifically
make arrangement for release of a child offender. These three orders are that the
Court may (a) release a child on probation on execution of a bond by his guardians
and a child offender to Borstal Institution; (b) send a child offender to Borstal
Institution; or (c) finally, reduce period of imprisonment or probation if Court
considers its continuance unnecessary.
145
5. Orders That Shall Not Be Passed by Juvenile Courts

The Juvenile Court is not empowered, save as in exceptional cases, to order any
corporal punishment at any time while a child is in custody or to put him in fetters or
to handcuff him. Likewise, a Juvenile Court cannot award a capital punishment to a
child. While former has its roots in principle of humane treatment to be meted out to
a child offender, the latter is in line with Article 37 (a) of the convention on the
Rights of the Child, 1989.13
Conclusion
The propensity of making reality the conceptions of Human Rights' proponents
is good but needs careful observation of ground realities prevailing in our judicial
system. Unfortunately, besides governance of the country by Ordinance, the
military governments have developed a knack of treating District and Sessions
Judge in the same manner as the colonists used to put in service office of Deputy
Commissioner. Instead of establishing new Courts for dispensation of justice, the
already over-burdened Courts are further put to test by new assignments. In this
backdrop, the difficulties multiply when the provisions of exclusive fixing of a case
of juvenile for evidence is incorporated as practically the provisions remain
inapplicable and hence contribute in belittling the judiciary and further to
deteriorate the concept of the rule of law.
End Notes
1. PLD 2002 Karachi 18
2. It is interesting to note that the definition of a child under Article 1 of CRC has
given rise to various questions. In order to appreciate those questions, it is
recommended to first look on the wording of the Article, which is reproduced
thus:
“Article-1.For the purpose of present Convention, a child means every human
being below the age of 18 years unless, under the law applicable to the child,
majority is attained earlier.”
The questions, which cropped up of the definition may be formulated as: 'What
about a person who is exactly 18 years of age(as the article specifies that a child
is one who is below eighteen); secondly, as the language of Article suggests that
the basic yardstick to determine age is the national law of individual, which, if
absent, the 18 years age cap provided by the convention will come into play but
what will happen if national law of a country enacts the age of majority above
eighteen years in contrast to the CRC. In respect of former, it may be stated that
the benefit of the Convention should be extended to the accused; while the
146
latter may be catered to in two ways: first, those who favour international law
might be of the view that the national law shall prevail, on the other hand, the
ones who uphold the doctrine of supremacy of national law over the
international law might be of the view that the national law shall prevail. The
above two propositions, in authors' view, need contemplation by the people
engaged in the drafting of the Convention. It is importantly so for the obvious
reason that many countries have incorporated the Convention into their
national laws and there the Convention may be referred to for the purposes of
interpretation as 'extrinsic evidence'.
3. The tabulation is provided by the authors; Article 37 of CRC reads:
'States parties shall insure that:
a. No child shall be subjected to torture or other cruel, inhuman or degrading
treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences
committed by persons below 18 years of age.
b. No child shall be deprived of his or her liberty unlawfully of arbitrarily.
The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as measure of last resort and for the
shortest appropriate period of time.
c. Every child deprived of liberty shall be treated with humanity and respect
for the inherent dignity of human person, and in a manner, which takes
into account the needs of persons of his or her age. In particular, every
child deprived of liberty shall be separated from adults unless it is
considered in the child's best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and visits,
save in exceptional circumstances.
d. Every child deprived of his or her, liberty shall have the right to prompt
access to legal and other appropriate assistance, as well as, the right to
challenge the deprivation of his or her liberty before a Court of other
competent, independent and impartial authority, and to a prompt decision
on any such action.'
4. Although Article 40 of CRC has used the word review the word revision is used
intentionally to avoid confusion because in common law the concept of review
is akin to civil law as against use of the concept of revision in criminal litigation.
5. Under section 10(5), a child offender accused of an offence punishable with ten
years' imprisonment may be deemed to have committed a bailable offence.
147
6. (Four months time limit) Section 4 (6)

7. Section 5 (1)
8. Section 6 (3)
9. Section
10. Section 10 (5)
11. Section 10 (7)
12. Section 10 (5)
13. Section 12
Abdul Aziz is an advocate practicing in Islamabad. He has done his LLB from the University of the
Punjab.
Kamran Adil is a police officer serving in Islamabad Police. He has done his LLB (Hons) Shariah &
Law from International Islamic University Islamabad and his Bachelor of Civil Law from the
University of Oxford
149
The Plight of Street Children in Quetta, Balochistan

Shakeel Ahmed Imtiaz
Abstract:
The problems and number of the street children are increasing in Quetta. This study shows
that mostly the children are found on the streets in Quetta in order to augment family income.
Children below the age of seven work on the street. Lack of awareness and absence of
significant research has also aggravated the problems of street children in Quetta. Due to
inadequate government resources including financial and human, the problems of street
children are not given due importance and weight. This paper justifies the need for further
research into the subject-matter.
Keywords:
Street Children, Quetta, Pakistan, Government, NGOs, Poverty, Abuse, Problems, Research.
Introduction
“A world which abandons its children in the streets has no future; it no longer
renders it possible to create and develop a project of life.... A world which tries
to ignore the precariousness of the human condition inspires no confidence....
It is a world wherein each one survives amongst a complete spiritual
disintegration. It is a world that has become simply dehumanized, and which
today needs urgently to awake to the true values.”
--Judge A.A. Cancado Trindade, The Inter-American Court of Human Rights
(Villagrán Morales et al vs Guatemala-1999)
In Pakistan, the issue of street children has never been given any importance.
Khan (2007) provides that street children particularly with reference to Pakistan are
very unfortunate and forgotten. When we talk about children's rights in Pakistan we
normally talk about special children or those which left home due to one reason or
the other. There are very few persons or NGOs who talk about street children. Anwar
(2002) quotes a survey conducted by Centre for Research and Social Development
(CRSD), stating that, “about 1.2 million children are on the streets in Pakistan's
large cities working as beggars, vendors or shoeshine boys. Children become
homeless because of abuse and poverty and once on the streets, they are exposed to
countless hazards, including child labour and sexual exploitation".
Under the law, children are not allowed to work below the age of fourteen years
in Pakistan. According to Article 11 (3) of the 1973 Constitution of Pakistan "No
child below the age of fourteen years shall be engaged in any factory or mine or any
150
hazardous employment". The state has a foremost duty to protect the child and the
family. The state shall protect the marriage, the family, the mother and the child.
The state shall make provisions for ... ensuring that children ... are not employed in
vocations unsuited to their age ... Article 37(e). The Employment of Children Act
1
1991 also prohibits the child working below the age of fourteen years. Similarly, in
order to protect the rights of the children National Child Protection Policy (draft)2
has been prepared. According to Shahid (2009) the National Child Protection Policy
(draft) would address concerns of 15 to 20 per cent children in Pakistan who endure
some form of sexual abuse, make child trafficking punishable and rescue more than
eight million children under 14 from child labour. The policy would particularly
protect interests of more than two million children born into poor households every
year.
The United Nations Convention on the Rights of the Child of 1989 says that ...
Childhood is entitled to special care and assistance. (Preamble). In all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration. [Article 3(1)]. However,
neither the 1973 Constitution of Pakistan nor UN Convention on the Rights of the
Child of 1989 nor the Employment Act 1991 is being followed and implemented in
letter and spirit.
In Pakistan, the issue of street children has never been given any importance.
Khan (2007) provides that street children particularly with reference to Pakistan are
very unfortunate and forgotten. When we talk about children's rights in Pakistan we
normally talk about special children or those which left home due to one reason or
the other. There are very few persons or NGOs who talk about street children. Anwar
(2002) quotes a survey conducted by Centre for Research and Social Development
(CRSD), saying that, “about 1.2 million children are on the streets in Pakistan's
large cities working as beggars, vendors or shoeshine boys. Children become
homeless because of abuse and poverty and once on the streets, they are exposed to
countless hazards, including child labour and sexual exploitation".
There is no accurate data as to the number of street children in Pakistan.
"Lahore is host to around 14,000 street children compared to just 5,000 in Peshawar,
while Karachi and Quetta are thought to have around 15,000 each. The reliability
and potential of these estimates is, however, questionable, and there has been no
unified effort to assess the scale nationwide while using a single methodology,
perhaps because the issue of street children has not generally been considered
important or urgent enough in Pakistan to warrant such a check".(Tufail, 2004)
151
It is imperative to prioritize the reasons which normally lead to predicament of

street children, particularly, why does a child leave his home to live or work in the
streets alone? The origins of the street children phenomenon are varied and the
direct causes are many. Their experiences on the street are difficult to comprehend.
However, a correlation between the cause and effect is yet to be established on the
basis of sound empirical research. In Quetta, the street children can be seen
everywhere including bus stations, fruit and vegetable markets and city centre. The
street children in Quetta are classified into street living and street working children.
However, majority of the street children are street working children in Quetta.
Due to the mass influx of Afghan refugees in 1979 and after the US led Afghan
war on terror since 2001, the number of Afghan refugee street children in Quetta is in
large numbers. Majority of them are involved in garbage picking. Despite the huge
number of street children in Quetta, no research has been carried out particularly by
the NGOs. According to Qadeer Baig (2006) the primary aim of most of the NGOs in
Pakistan is to carry out programmes for the benefit of the underprivileged in the
shape of service delivery in areas of health, education, sanitation, rural development,
etc. Research, therefore, is not specifically seen as the prime mandate of such
organizations. Similarly, the government has also not carried out any study on the
burning issue of street children at the grass root level. In Quetta, street children are
extremely prone to various risky behaviours including drug use, sexual and physical
abuse and exploitation. Most of them do not have adequate access to health,
nutrition, hygiene and legal support. Thrust into a hard and uncongenial
environment, these children become rigid and insensitive. Various factors including
poverty, dysfunctional home and work place environment have contributed to the
abysmal situation of street children in Quetta. However, empirical research will
reveal that how many and how far these children are exposed to and affected by
criminal behaviour and crime indulgence are to be checked and verified from local
law-enforcement agencies.
Definition
The term street children was first coined in 1852. William (1993) states that the
term “street children” was first used by Henry Mayhew in 1851 when writing
London Labour and the London Poor, although it came into general use only after
the United Nations year of the child in 1979.
Brick (2002) says that the United Nations has defined the term 'street children'
to include “any boy or girl… for whom the street in the widest sense of the word…
has become his or her habitual abode and/or source of livelihood, and who is
inadequately protected, supervised, or directed by responsible adults”. According
to Lusk (1989) the most commonly used definition comes from UNICEF and
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distinguishes two groups: Children on the street: “Home based” children who
spend much of the day on the street but have some family support and usually return
home at night. Children of the street: “Street based” children who spend most days
and nights on the street and are functionally without family support.
In Pakistan, Tufail (2005) has categorized the street children into three types,
the first category is of those street children who maintain strong relationships with
their family of origin, then there are those street children who have very limited or no
contact with their family of origin, and who have no or temporary shelter without
consistent employment, while the third category include those children for whom
street has become their real home. It includes children who might not necessarily be
homeless or without families, but who live in situations where there is no protection,
supervision or direction from responsible adults. The argument is supported by
UNODC (2004) which states that there are different types of street children but
majority returns home. It defines street children as those for whom the family
support base is weakened and who must share in the responsibility of family survival
by working on city streets and market places.
All those children, for the purpose of this study, who are below 18 years of age
and who either work or live on the streets in Quetta are street children.
Statement of the Problem

The government does not have enough resources to cater the needs of street
children in Quetta. The non-government organizations have set up Drop-in-centres
for street children in Quetta. Non-formal education and the vocational training
centres are the two major components of the Drop-in-centres (DICs) along with the
provision of food, health and recreational education and free legal aid. Formal
education remains a far cry for street children. These DICs only cater to the
problems of street working children, those who work during the day time and return
to their homes at sunset. There are no shelter homes to accommodate abandoned or
runaway street children. As a consequence, abandoned or runaway are more prone
to sexual exploitation due to the fact that they live on the streets. The public view
street children as “scum's of earth” and treat them with utmost disdain. The paper
attempts to highlight the problems being faced by the street children in Quetta and
provides viable recommendations for various stakeholders to assess the nature and
extent of the problem associated with street children and to develop and implement
appropriate responses.
Limitations of the Study

The street children can be found in various districts of Balochistan; however,
the study will be limited to a sample in Quetta only, the capital of Balochistan.
153
Despite the fact that limited research and that no concrete data is available on
street children , this empirical study has brought forward the practical
recommendations with a view to sensitize the stakeholders on the issue of street
children and limitations are no bar to take appropriate steps to address the problems
so identified.. The study will be based on generalization and not particularization.
Literature Review
Although there has been increase in street children, their problems are further
aggravated with lack of significant research on the issue in Quetta. The issue of
street children in Pakistan has not been considered important enough for research
into the magnitude to be done. The study will be the first of its nature on street
children, to the best of my knowledge, in Quetta. The literature review will focus on
the micro factors related with the street children in Quetta.
Several hypotheses have been advanced to explain the origins of street children.
One relates to urban poverty, a second relates to aberrant families (e.g.,
abandonment, abuse, or neglect), and a third is associated with modernization
(Aptekar 1994). The main reason of children leaving their homes and turning to
street is poverty. The street children during the interview voiced that they have left
their homes in order to support their families. All over the world, children often turn
to the streets in an attempt to resolve problems that arise from the social structures
and situations in which they find themselves. Children that turn to the streets share
one common factor namely, 'working the streets' to make a living. This happens
because households are unable to provide adequate living arrangements for their
children (Grundling and Irma 2005). It is also stated by Mufune (2000) that "being
on the street is a public disclosure of destitution. It is a statement to both the public
and the individual concerned that one is poor".
With large family composition and limited opportunities to education and
inadequate home environment, children turn to street in Quetta. The consequence is
that children are often exposed to crime, abuse and sexual exploitation and with
little hope of the future and personal growth. Prevalent in the informal and
underground economies, these children are often exposed to exploitative
employment, illegal substances, urban crime, prostitution and abuse by authorities
with little or no protection (Basu, 2003; Sutherland and Richardson, 1998). Because
of the nature and milieu of their labor, street-working children often endure
consequences affecting their health, safety, and moral and social development.
Given this negative impact, this type of work constitutes one of the worst forms of
child labour (ILO, 1999).
The children also leave their homes due to neglect and abuse. Schurink (1993)
has put defined street child as:
154
A street child is a boy or a girl who is under the age of 18 and who left his/her
home environment, part time or permanently (because of problems at home and/or
school, or try to alleviate those problems) and who spends most of his/her time
unsupervised on the street as part of a subculture of children who live an unprotected
communal life and who depend on themselves and on each other, and not on an adult
for the provision of physical and emotional needs such as food, clothing, nurturance,
direction and socialization.(Schurink, 1993)
According to Tufail (2005) any of the processes of children becoming
separated from family may result in children living and working on the street at
some point and they may even end up in brothels and sweat shops. Parents are often
blamed for the departure of children from homes to streets. The parents' inability to
support large family often results in children turning to streets.
The street children are construed as a problem to the society and public at large
with no morals and have chaotic lives. Street children are in conflict not only with
the law but also the whole of society (Van Beers 2003). When the society fails to
protect children from abuse and exploitation, children turn to street or runway from
their homes.
Street children in Quetta are seen in groups and are headed by a leader who
controls their activities. Ennew J and Kruger JS (2003) posit that the role of the street
group is significant in terms of physical survival. Sharing resources and information
is vital and a group is often a means of protection from violence and police
harassment. Khan (2007) observes that children who live and work on the streets or
simply work in commercial areas at a young age, are subjected to gross injustice and
are frequently neglected by national law despite the fact that our own country has
ratified the UN Convention on the Rights of the Child in 1990 and played the host for
the World Summit on Children.
The research is particularly silent on the issue of orphaned or abandoned
children. The study shows that orphaned children are at a most disadvantageous
stage in Quetta. "Yet research has consistently failed to show either high numbers of
orphaned or abandoned children living and working on the streets, or children who
have permanently severed ties with their families" (see for example, Aptekar 1994;
Aptekar and Heinonen 2003, Baker 1998; Butler and Rizzini 2003, Ennew 1986;).
Neglect at the micro level often results children heading towards the street.
Beauchemin (1999) has stated that:
"….while the consequences of the growing numbers of street children are
a problem, these children are not responsible for their predicament. They
are turning to the street because of the failures of the education system,
parental negligence and abuse…..growing poverty (p.81). With large
155
family and neglect of parents along with poverty, street children either live
or work on the streets of Quetta. Majority of them work in order to
supplement family income."
The paper adds to the current, though unbelievably scanty literature. This
research identifies ways and means that the government and non-government
entities can adopt to address the problems of street children in Quetta.
Research Methodology
The research design is qualitative in nature. Patton (2002) posits that, “….
qualitative methods typically produce a wealth of detailed data about a much
smaller number of people and cases”. The research instruments were structured and
unstructured interviews. Structured interviews were conducted with the officials of
the government departments and members of non-governmental organizations.
Unstructured interviews were conducted with the street children in Quetta. The
writer also visited the Drop-in-centres of (DICs) of SEHER (Society for
Empowering Human Resource) and WESS (Water, Environment & Sanitation
Society) in Quetta.
Sample size and Population

The sample size comprise of 25 members including:
· 20 street children from Quetta

· 1 official of the Social Welfare Department, Quetta
· 1 official of Police Department in Quetta.
· 3 members of NGOs including SEHER and WESS
The sample was collected from Hazarghanji, Liaquat bazaar, Jinnah Road and
Sada Bahar Bus station.
Data Analysis
The data was analyzed qualitatively keeping in view the perceptions and
understandings of the street children study in Quetta. The final result was based on
the description of the street children of Quetta. Because of all the difficulties
associated with studying street children, it is helpful to give the reader a heuristic
analysis of the data. Such analysis gives logical arguments about how the data were
collected and what was done to overcome methodological problems (Kvale, 1986).
156
Unit of Analysis
The unit of analysis includes perceptions of stakeholders including social
welfare department, Quetta, NGOs such as SEHER and WESS, police, and the
experiences and perceptions of the street children.
Ethical Considerations
Since the study involved children, special care had been given to ethical
considerations including the principle of voluntary participation, the requirement of
informed consent, protection of privacy, participants' confidentiality, and principle
of anonymity. In this study, children names were kept secret.
Discussion
1. Profile of street children

During the interviews it was learnt that street children are street smart and it's
difficult to collect accurate information about their age, family, current
condition and future plans. Getting accurate information from the children is
quite difficult. They have developed an extraordinary capacity to tell stories.
Lying about their ages, family background, the reasons for being on the streets,
and their current circumstances is included in their well-rehearsed scripts
(Felsman, 1989; Leite &Esteves, 1991).
The research findings show that the average age of the street children is five and
the middle age of entering the street is seven and the majority of street children
are between the ages of 9-16. Nine children interviewed belong to Quetta and
only one child belongs to Dalbadin district of Balochistan province. The
children interviewed belong to the Baloch, Pashtun and Afghan ethnic
communities and were predominantly male. 70% of the street children
interviewed provided that they work in groups.
In Quetta, majority of the street children are street working children and they
return to their homes at dusk. There are a few street children who have left their
homes and live in various places of Quetta. However, this study could only
encapsulate three street living children in Quetta. In the absence of a
rehabilitation mechanism, street living children are more prone to commercial
sex and sexual harassment. There are no shelter homes to accommodate them.
Neither the government nor the NGOs can accommodate them or rehabilitate
these children. 90% of the children interviewed stated that they return home at
dusk. Kombarakaran (2004) labelled this phenomenon 'home-based children
on the street'.
157
During the interviews, 80% said that they work 7-9 hours every day and
sometimes sleep on the streets. 85% of the children have never gone to any
formal school. The average earning of street children ranged between Rs. 50 to
Rs 150 per day. The average family size of the children interviewed was 5-9.
30% said that they left the home due to family problems. 80% children were
garbage pickers. 20% were involved in different work including shoe polish,
supporting in shops and fruit selling.
Orphan street children complained of being hit hard by many in Quetta. The
father is the head of the family and with his death the burden of shouldering the
entire family members rests on male members including boy child. With no
adequate support from the government and society, these children head to
street to support family income. 5 children interviewed were orphaned by
father. One orphan child opined that he had to work hard in order to have both
ends meet. "If, I do not work, my younger brothers and sisters would not eat and
survive. I'm the sole breadwinner of the family."
2. Factors Accounting for Street Children

There are a variety of reasons why children turn to street. Some may quote
rapid industrialization, urbanization, urban and rural poverty and socio
economic pressure as major reasons for the rapid growth of street children in
the country. But these are over simplification and generalization of the social
implications of development process in a country. Such statements as made by
Tufail (2005) don't reflect the true underlying reasons for more number of
street children. Industrialization or urbanization has not given rise to such
problems in the developed world.
70 % stated they work in order to support their families. 30% of the children
interviewed had stated that they work on the street due to drug addiction of their
father. Only one child stated that his father was in jail and the environment in
his neighbourhood is not conducive to live, so he left the home. In response to a
question about his contact with his family, he said that he has maintained a
regular contact with his family and he talks to his younger brother quite
frequently.
One participant observed that
“He was an orphan by father. He has three brothers and four sisters. He was 15
years old and he's the eldest. His mother also works as a maid and she earns Rs
100 per day. He's a garbage picker and earns Rs 60 every day. The amount
varies depending upon the quantity of garbage he picks. This is how he and his
mother are running the family. If he goes to school, then who'll provide
sustenance to his family".
158
The major reasons for child labour include poverty, inadequate educational
system, and social behaviour. Second major aspect includes inadequate
education, fear of unemployment, increase in educational expenses, death of
head of household, large family composition etc (Achakzai 2009). Two
children stated that they have left their home due to physical abuse by either
their father or elder brother. Extreme physical abuse, according to Russell
(1998), in home promotes rebellious attitudes among many adolescents, who
may perceive leaving home the only opportunity towards emancipation.
The macro level issues have an impact on the micro level problems. This point
is supported by UNODC (2004) which states that the population explosion not
only gives birth to physical and environmental stresses such as shortage of food
supply, fuel and energy but also adds to the psychological problems such as
anxiety, tension, worries, depressions due to deprivation of need fulfillment
and technological advancement. Such malfunctions of society always strike
hard against the powerless including women and children. Children in
particular are highly susceptible to these highly volatile situations.parents,
friends and the physical environment all play an active role in the development
of a child personality. Any neglect, deprivation and indifferent parental
behaviour possibly due to a disruptive relationship can cause serious and
irreversible damage to the developing personality, pushing the child into
deviant behaviour.
3. Problems of street children

The street children face numerous problems on the streets. They spoke out
during the interviews that the major problems they face in Quetta are related to
health, education, drug use, sexual harassment, police mishandling and above
all, absence of respect and love. In Quetta, there are no statistics available as to
the total number of health related problems of street children, how many
children are involved in drug use and how many are sexually abused, and above
all, there is no social support system. The issues of street children are
highlighted by NGOs, however, absence of concrete data has exacerbated the
problems of street children in Quetta. Similarly, how many street children are
victimized in Quetta and how many are involved in criminal activities are still
to be examined. These questions pose serious concern for all stakeholders
including government and non-government entities. No consolidated effort has
been made in order to mitigate the problems of street children in Quetta in this
regard.
159
4. Police, Street Children & Child Protection

50% of the children stated that police is one of the major threats to them.
Whenever a crime is committed including theft, they face police abuse and
torture. According to Tufail (2005) the "public view of street children in
Pakistan is overwhelmingly negative. The public has often supported efforts to
get these children off the street, even though they may result in police round ups,
or even murder. There is an alarming tendency by some law enforcement
personnel and civilians, business proprietors and their private security firms, to
view street children as almost sub-human". This seems true but the police
station criminal record or courts files must have been seen for the same to
quantify this general observation against the police attitude. When asked that
the street children voice their concern over the abuse and harassment by police,
police official replied that
"The police are never involved in the abuse and harassment of street children.
On the other hand, police are facilitating the suffering children. For the
awareness of public and police officials, the board containing important points
of juvenile justice is fixed in every police station in Quetta and Provincial
Police Headquarters and branch office including 15 Madadgar in Quetta".
The Child Protection Unit (CPU) was established at Police Headquarters with
the support of UNICEF on 2nd July 2007. The service outlet at 15 was
established on 16th August 2007. Cases of 643 missing children were reported
to CPU Balochistan. The task was taken up and 238 missing children were
recovered and handed over to their parents/relatives. Whereas the other cases
are being followed-up. One case of the child in conflict with law was facilitated.
The police department has set up Child Protection Unit in district Quetta,
which only deals with missing children and children who are sexually harassed.
The main function of the service outlet 15 Madadgar is to coordinate with all
the police stations for the collection and responding to the issues of the children
in contact and in conflict with the law and to provide service to these children
directly or through referral partners including Edhi Centre in Quetta. However,
when asked about the criminal involvement of street children or data as to the
total number of crimes committed by street children in Quetta, the official
stated that they do not have any such a data, and the same may be available with
police stations. The CPU seems to be a god initiative, but it has not produced
the desired results as far as data collection or child rehabilitation issues are
concerned. It lacks proper structure, specialized staff and resources for such
activities. Street children are not dealt by them.
160
5. Social Problems of Street Children

100% street children interviewed indicated that the society does not trust them.
The attitude of the society is adverse to them. Street children have hardly any
social status in the context of larger society. Their existence is tolerated but they
are looked down upon by society as delinquents and are not trusted. While most
street living children are law abiding, the sheer need for survival compels some
into illegal activities like pushing drugs, contraband, etc. Some also acquire the
habit of smoking and gambling at a young age. They also run the additional risk
of sexual abuse and exploitation. Besides, they are deprived of love and legal
support.
"The government does not have enough funds to establish a shelter home nor
carry out research in order to mitigate the problems of street children in Quetta.
The government resources are very meager and human resources are required
for studying the causes of street children in Quetta."
6. Education Problems of Street Children

UNODC (2004) reports that majority of the street children have never attended
any school. According to their research 76% of the street children in Pakistan
never attend the school. The situation was found to be worse in Quetta where
according to UNODC (2004) 90% of the street children never attend school.
The lack of interest in education due to poverty and lack of awareness mostly
results in educational problems. The illiteracy of parents also leads to the
educational problems of their children. 90% of the children indicated that they
desire to have a formal education. 10% stated that they have no intention to
have an education, rather they preferred to work. Education of street children
depends on how they manage their financial resources.
7. Health hazards and Street Children

Out of the ten children interviewed, only three stated that they smoke cigarettes.
However, they indicated they were tempted by others to drug use but till now
they have resisted. However, they provided that there are many children on the
streets of Quetta who use drugs. According to Tufail (2005) among the most
serious threats to the health of street children is their high degree of exposure to
drugs and sex abuse. All the children stated that they have minor injuries during
their stay in the streets including minor cut and bruises. When asked about the
health problems of street working children in Quetta, WESS DICs coordinator
stated that smoke and cannabis are major problems in relation to drug use by the
street working children.
161
In the absence of provision of basic health facilities, these children face

numerous problems including skin diseases. When minor disease is not cured
timely, it would result in major health hazards including AIDS, hepatitis and
tuberculosis. During the harsh winter and summer seasons, these children can
be seen at various dust bins collecting garbage. Children as below as six and
five years could also be seen in these places. Younger children collect garbage
while walking through the streets in Quetta, while slightly older use handcart or
donkey cart in Quetta. The things they collect include plastic bags, mirror, iron,
animal bones, dry bread etc. Iron fetches them Rs 15 per kilogram (kg), good
quality plastic Rs 30 per Kg, dry bread Rs 10 per Kg. One child can
approximately collect 10 to 30 kg garbage and his earning amounts to 100-150
(Ackhakzi 2009). All these items in garbage are injurious to the health of these
children, causing mainly skin and lung diseases.
8. Resilience and Street Children

The street children in Quetta have a greater sense of resilience and self
independence. According to one stakeholder participant
"The street children have an independent nature. They are very confident
individuals. Majority of the street children in Quetta support their families.
Parents also send them to street for earning. The garbage pickers, for example,
start their work early in the morning at 6:00 am, without breakfast, and
continue work for 7-8 hours. They are also very skilful and very talented too.
However, they are used to scorning at the streets. With the passage of time, they
become more hardened individuals. They are more brave and unrelenting as
compared to the children of their age group. Working in street makes them
street-smart.
The street children know the art of making a living on the streets of Quetta.
They are thrown into unfriendly environment, yet they face every challenge
that comes their way with steadfastness. During the interviews, one orphan
child stated that "If I don't work and support my family on the streets of Quetta,
despite the fact that we are taunted and ridiculed every day, I stand unyielding
in my work including garbage picking. My family will suffer and my younger
brothers and sisters will not eat and live." Since they are engaged in a day-to-
day survival scenario, street children develop the resourcefulness, self-reliance,
independence and survival skills in an unfriendly and unsupportive street
environment.
9. Role of Non-Government Organizations
The number of street children are increasing despite various programmes and
projects of NGOs aimed at addressing the issue. Schurink (1993) concludes
162
that the problems encountered with these programmes do not stem from a lack
of initiative, but rather from a lack of sufficient resources, such as funding and
trained staff, as well as a lack of proper planning and government policies. The
international organizations seeking attention from funding agencies use their
publications to make their case for financial allocations. They, too, rely on
showing the youngest, the most drug dependent, and the most violent. Even
though these groups are motivated by high ideals and perform excellent
services, they can contribute to the existing biases against the children
(Felsman, 1989; Tyler, Holliday, I)rler, Echeverry, & Zea, 1987).
There are a few organizations carrying out day time activities in the Drop-in-
centres (DICs) for street children in Quetta including SEHER and WESS. The
main objective of these NGOs is to impart informal education and provide
vocational training to street children in the Drop-in-Centres (DICs). Non
formal education is the major component of these NGOs.
During a visit to the SEHER and WESS DICs in Quetta, the coordinator
informed that the DIC provides literacy programme, English language,
computer education, psychotherapy, recreational activities, health and hygiene
training, legal aid and tailoring. This only concerns with children who are
involved in commercial sex. The DIC is an opportunity for them to withdraw
from commercial sex. Five children who are provided non-formal education
and vocational skills were interviewed. They opined that they were satisfied
with the facilities provided at the DIC. A friendly environment has enabled
them to learn non-formal education and also develop their skills.
The NGOs have a target group within a certain time frame. Same is the case
with SEHER and WESS. Their projects are limited to an extent that they can
only operate within the bounds of their projects. There are many other street
children who are working on the streets of Quetta and who could not get the
benefit of either SEHER and WESS DICs. The basic premise of SEHER and
WESS is to facilitate street children and adopt ways and means of the
withdrawal of street children. However projects of SEHER and WESS cannot
mitigate the sufferings of the entire street children in Quetta.
In succinct, with the ever increasing number of street children, time is ripe that
the government should taken some concrete step to address the issue and solve
the problems of street children and such serious problems should not be left at
the mercy of NGOs and foreign donations. We as a nation should do something
as it is the state responsibility in all earnest; this principle was established by the
by the Inter-American Court of Human Rights in Villagrán Morales vs
Guatemala, which found the State had been responsible for the … right to life,
as enshrined in the American Convention on Human Rights (ACHR). The
163
Court stated that the right to life comprises not only the right of all persons to
not being deprived of life arbitrarily, but also the right to having access to the
conditions needed to lead a dignified life. The Court also concluded the State
had failed to comply with its obligation to adopt special measures to protect
children whose rights are under threat or violated (cf. Art. 19 American Charter
for Human Rights), resorting to several standards in the International
Convention on the Rights of the Child to define the scope of the “protection
measures” mentioned in the said article. This was the first time the Inter-
American Court referred to the States' obligation to adopt special measures to
protect children, basing its interpretation on the International Convention on
the Rights of the Child. I argue that international human rights litigation can be
a powerful means of political expression and community mobilization for
abused and victimized children in developing countries and can result in
precedent-setting interpretations of core treaties affecting the rights of children.
Recommendations
The recommendations of the study are as under:
The government has the primary duty to protect, respect and fulfil as a
responsible state, therefore, it should ensure that free primary education is
available to the street children in Quetta, and of course, anywhere in the
country where they are. The majority of the street children are unable to attend
school in Quetta due to financial constraints. The social welfare department
should establish an educational and vocational centre, whereby, street children
are not only educated but also provided some financial assistance. The
government should also allocate sufficient funds realize the right to having
access to the conditions needed to lead a dignified life.
A shelter home should be set up for runaways' street children and for those who
have left their homes. The government and the NGOs do not have a shelter
home where children could stay at night and are immune from sexual
exploitation and commercial sex. Hyder and Malik (2007) put forward that the
concept of post-event care and victim support for child victims barely exists in
Pakistan. Non-governmental organizations have initiated limited support
services in some urban parts of the country but there are no data to determine
either their accessibility or their effectiveness.
The government should ensure that every district administration should have a
database of street children within their areas of jurisdiction.
164
The problems of street children are multiple because there is lack of awareness
of the issue. The ethnic communities of Baloch, Pasthun, Hazaras , Afghan and
others in Quetta should be sensitized over the issue by publishing a literature in
their native languages/dialects, explaining the problems of street children,
importance of well-knit families and advantages of education. Religious
leaders and tribal elders can perform a pivotal function in this regard. Through
them, the social welfare department and the NGOs can reach the communities
and the general public easily on the issue of street children.
The society is patriarchal in Quetta. Effort should be aimed at supporting
children orphan by father on a priority basis, as they supplement family income.
The government should ensure that the amount of Zakat should reach these
children. Orphan child is the most vulnerable and government should properly
monitor the distribution of Zakat to them.
In Quetta, street children are involved in drug use and commercial sex. Street
children who collect hospital waste, for example, from the children hospital in
Quetta, are unaware of contracting HIV/AIDS, Hepatitis-C and sexually
transmitted diseases. The government should make plan in raising awareness,
prevention and the rehabilitation of such children including a provision of
detoxification and rehabilitation centre. There are various places in Quetta
where children are being commercially exploited for sex.
The role of police has not been up to the mark. The street children often
complain of being victims of physical and sexual abuse by the police. The
police should be sensitized on the problems of street children and be imparted
training on the Convention on the Rights of the Child 1989, Juvenile Justice
System Ordinance 2000 , Employment Act 1991 and other juvenile legislations.
The Social Welfare Department should be provided enough resources in order
to prepare a complete rehabilitation plan, whereby the process of returning
children to their families and schooling should be addressed. Additionally,
children at risk should be provided boarding and lodging and all other basic
facilities.
Street children are often treated by the public with hatred and disdain. The
media can play an effective role in disseminating information regarding human
rights of street children and highlighting their problems in Quetta.
Additional research must take place on all aspects of street children and
especially of those who are in conflict with the law and their problems during
their contact with the criminal justice system. Finally, street children who
collect hospital waste, as they are prone to catching dangerous diseases
165
including HIV, hepatitis-B and AIDS, and those street children who are
involved in drug use and in commercial sex in Quetta, should be meticulously
studied and helped.
Conclusion
Although the study was limited in scope, it revealed problems of street children
in Quetta and the need to tackle the issue on an urgent basis. Poverty, large family
composition, lack of importance, lack of significant research, lukewarm support and
absence of government's initiatives to tackle the issue effectively are some of the
major problems resulting in the increase in street children in Quetta. It's high time
for the government to undertake some concrete steps to address the problems of
street children in Quetta. The resources of the government are meager to solve the
problems of street children. With limited opportunities for formal education, the
street children in Quetta remain discriminated. Non formal settings by NGOs in
their drop-in-centers provide only a temporary relief to the street children. Since
there are no shelter homes for runaway street children in Quetta, therefore, they are
involved in commercial sex and drug use. Rehabilitation plan of children at risk is
the need of the hour. Finally, the miseries of the street children should be a concern of
the society at large.
End Notes
1
The Employment of Children Act, 1991 (Act No. V of 1991) is an Act to prohibit the
employment of children in certain occupations and to regulate the conditions of
work of children. Sec.2 (i) states that “adolescent” means a person who has
completed his fourteenth but has not completed his eighteenth year. Sec.2 (iii)
provides that “child” means a person who has not completed his fourteenth year
of age
2
The National Child Protection Policy (draft) was first prepared in 2006 as National
Child Protection Bill but rejected by the cabinet and prepared as a policy. This
information is taken from Shahid J (2009): Child protection policy draft sent to
social welfare ministry. Dawn News, 29 August 2009.
3
Interview with the Coordinator of SEHER Drop-in-centre on 20 August 2009 in
Quetta.
4
This information is taken from the Child Protection Unit in Quetta.
5
Interview with the official of Directorate of Social Welfare, Women Development
and Special Education , Social Welfare Department on 18 August 2009.
6
Interview with the WESS Executive Director on 25 August, 2009
166
7
This information is taken from http://seher.org.pk/imtizaj.html. Retrieved on 2
August, 2009.
8
Zakat (Wealth Tax) is a form of giving to those who are less fortunate. It is
obligatory upon all Muslims to give 2.5 % of wealth and assets each year (in
excess of what is required) to the poor. This is done on yearly basis. Giving Zakat
is considered an act of worship because it is a form of offering thanks to God for
the means of material well-being one has acquired, retrieved on 3 August 2009
from http://www.zpub.com/aaa/zakat-def.html
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Pakistan Journal of Criminology

Volume 1, No. 3, October 2009

Comments from Anne Hollis Reese, L.I.C.S.W.

My congratulations to all who have worked on the journal.

Anne Hollis Reese, L.I.C.S.W.

Categorisation of and Data about Child Victims

victims; Mortality Statistics sections on children up to 15 years; Children and Young

Hassockfield. In this connection, it is material to note that children in England and

Finkelhor (1997) suggests a framework of four categories for child victimisation:

! Conventional specialised crimes homicide, assault (on young children mostly

It is important, however, to underline that there is general dissatisfaction with

Victimisation on the Basis of Personal Characteristics

Certain groups of children are particularly at risk of violence, including

Legal Responses to Child Victims

Power Relations Between Societies and Their Children

According to the particular circumstances, then, those with professional

Some Outcomes of Victimisation as a Child

Working With Those Who Are, or Have Been, Child Victims

Our culture's view of childhood is built upon images of sweet-smelling

· The family as sacred

Such awareness would require a genuine commitment to interprofessional

committed against children, supplemented with regular national studies to assess

Erikson, E. (1968) Identity: youth and crisis. London: Faber.

MacPherson, Sir William (1999).The Stephen Lawrence Inquiry. London: The

Investigative Police Practice in the UK:

Following directives by The United Nations Convention on the Rights of the

Plotnickoff and Woolfson [19] provided an evaluation of child witness support

Assessment Framework . Guidance provided to police officers identifies a number

investigative process; second, to identify the way in which aspects of the

Stage One: Exploring Police Practice.

Achieving Victim Co-Operation

‘Hi (child's first name)

A statement regarding confidentiality and anonymity will be given, with the

Findings: Stage One

Investigative Interview Format

Investigated has been identified by more open questioning, but structured

Father figures represented the largest percentage of suspects (36%, this

Police Officers Perceptions

Conclusion: Implications For Police Practice with Young Victims

categorisation of abusive incidents, which can be computer-rated and readily shared

Finkelhor, D., & Dziuba-Leatherman, J. (1994). Children as victims of violence: A

Murray,L., Woolgar, M., Briers, S. & Hipwell,A., Children's Socila representations

Watson, M. W. (Eds.) Children's perspectives on the family. New Directions for

30. Guidance on Interviewing Child Witnesses in Scotland Supporting Child

Alternatives to Imprisonment for the Juveniles:

These standards of non-discrimination are echoed by other international

'In all actions concerning children, whether undertaken by public or

International laws are implemented by and through sovereign nations. CRC is no

'States Parties shall undertake all appropriate legislative, administrative,

Of course, it has to be recognized that local socio-economic and cultural

Exploring International Norms

A. Question of the Age of Criminal Responsibility:

B. Alternatives to Imprisonment in the International Instruments:

In its General Comment on Article 9 of the ICCPR, the UN Human Rights

possible merits of just desert and retributive sanctions, “should always be

C. Committee on the Rights of the Child and Fulfilment of State Obligations:

The Case of Pakistan

B. Latest Developments in the Law and State Obligations of Pakistan:

Authority to release children on bail is not practiced by the police in particular

i. A legal reality check- Respect, Protect, Fulfill?

 Prevention: emphasis on preventive policies facilitating the successful

“… The Committee recommends that the State party:

the establishment of special juvenile courts exclusively to try juveniles under

Prevention: emphasis on preventive policies facilitating the successful