Doc. 8041: Abuse and neglect of children

Doc. 8041

17 March 1998

Abuse and neglect of children

Report

Social, Health and Family Affairs Committee

Rapporteur : Mr Nicolas About, France, Liberal, Democratic and Reformers' Group

Summary

      The discovery in recent years of serious crimes committed against children, especially sexual violence, and the existence of paedophile networks, which are undoubtedly aided by the easing of moral standards and increased inequalities, has prompted a painful awareness of this problem in Europe.

      The Assembly notes that children require special protection because of their vulnerability, and invites member states to step up efforts to protect children from various physical and psychological abuses, particularly sexual exploitation for prostitution or pornography, incest, abuse within the family circle, sexual mutilation and fraudulent actions with a view to adoption. It consequently proposes a number of preventive and punitive measures.

I.       Draft recommendation

1.       The Council of Europe's purpose is to promote the rule of law and to protect the rights of individuals, as understood throughout the continent. A fundamental principle of this "European model" is the effective protection of the weakest members of society and, in particular, of children.

2.       The Parliamentary Assembly draws attention to the considerable amount of work it has already carried out to strengthen the legal and social protection of children, in particular to its Recommendation 1065 (1987) on the traffic in children and other forms of child exploitation, its Recommendation 1121 (1990) on the rights of children, itsResolution 1099 (1996) on the sexual exploitation of children, and its Opinion No. 186(1995) on the draft European Convention on the exercise of children's rights.

3.       The discovery of serious crimes committed against children and the existence of paedophile networks in Europe prompted a painful awareness of this problem and led the Assembly to hold an emergency debate in September 1996 and adopt Resolution 1099 (1996) on the sexual exploitation of children.

4.        However, new dramatic events lead the Assembly to propose strengthening the protection of children from serious and, it would seem, increasingly frequent abuse of their rights and of their physical and psychological integrity.

5.        Sexual exploitation and abuse of children know no borders, be they geographical, cultural or social, and are afflictions requiring resolute action and genuine consultation and co-operation at European level.

6.       It has to be said that the European Convention on Human Rights does not specifically protect the rights of children except where the courts have upheld them on grounds of the protection of family life. Similarly, the European Convention on the exercise of children's rights, opened to signature on 25 January 1996, governs minors' access to the courts and judicial representation but contains no provisions on the substantive rights which might be granted children and legally safeguarded.

7.       Europe still needs to develop a genuine culture of children’s rights: children need specific protection because of their vulnerability and their less developed capacity to judge various risks, which adults are able to assess, such as sexual abuse, rape, prostitution, pornography, incest or ill-treatment.

8.       The horror provoked by various recent instances of sexual violence against children should not distract our attention from the violence and ill-treatment within the family circle, from which tens of thousands of children suffer even from the earliest age.

9.        The Assembly calls upon member States to incorporate the necessary protection against the specific dangers facing children into their national legislation. In particular, it believes that children must be afforded legal and social protection against:

a.       paedophilia;

b.       exploitation for pornography;

c.       prostitution;

d.       incest;

e.       inappropriate criminal proceedings

f.       repetition of offences of sexual violence against minors;

g.       abusive sterilisation;

h.       violence and mutilations against girls;

i.       abuse, including abuse within the family;

j.       refusal of necessary care;

k.       fraudulent actions with a view to adoption.

10.       The Assembly, emphasising that the ill-treatment of children and especially ill-treatment of a sexual nature, is characterised by a high rate of recidivism, points out that, from a legal point of view, recidivism is deemed to occur only if the offences are committed on the territory of the same state; and that therefore persons who have been convicted in one state are not regarded as re-offenders if, after serving their sentence, they commit the same offence on the territory of another state, and thus are not subject to the more severe sentences imposed upon recidivists.

11.        It also notes that many sexual offenders indulge in sexual abuse of minors abroad, thereby too frequently escaping any judicial proceedings or convictions both in the country where such offences are committed and in the state of which they are nationals.

12.       For all of the above reasons, there is a need to draw up a Council of Europe convention providing for the exchange of relevant information and making provision for previous convictions in one or more member states of the Organisation to be taken into account by national courts.

13.       The Assembly therefore recommends that the Committee of Ministers ask the member states of the Council of Europe:

a.       to step up the fight against paedophilia:

i. by improving prevention, which presupposes special training for those professionally in contact with children. Persons convicted of paedophilia should be systematically excluded from such contact;

ii.        by setting up a national file or register of final convictions for paedophile acts, which is accessible to national and foreign authorities;

iii.       by arranging suitable medical and psychological treatment for offenders both during imprisonment and during the period deemed necessary after release to prevent recidivism; this follow-up should include judicial supervision;

iv.       by establishing effective legal co-operation throughout all Council of Europe member States, in particular by standardising the legal definition of paedophile offences in order to ensure punishment not just of rape but all the physical and psychological offences known to have a devastating effect on the equilibrium of children;

v.       lastly, by establishing necessary procedures making punishment of this behaviour possible in cases where it is perpetrated in "closed communities" or sects, in some cases with the family's consent.

b.       to combat the exploitation of children in pornography:

i.       by following the same recommendations as those set out above for paedophilia, in particular in respect of magazines, films, cassettes and Internet sites;

ii.       by establishing and incorporating into their domestic legislation a legal definition of this type of criminal behaviour which takes full account of the existence of the inalienable rights of minors to respect for their privacy and their image, including in relations with their family since the latter is not entitled to determine the enjoyment of this right;

iii. by refusing to draw a distinction between the private possession of pornographic pictures and trading in such pictures, since both kinds of behaviour entail denial of children's right to respect for their privacy and image. At most, this distinction may be reflected in a scale of penalties;

c.       to combat child prostitution:

i. by stating unequivocally that prostitution of minors always constitutes rape or sexual abuse and that, even where money has been handed over, there is a presumption of violence since a child cannot be regarded as a consenting party;

ii. by organising conferences with the host countries of "sex tourism" so as to create a more general awareness that a growth in profits from this sector will result in the short and medium term in disastrous human and social costs, including the spread of Aids, the social exclusion of tens of thousands of young people and the growth of crime centred on procuring;

iii. by running training programmes for the social services, the police and the courts so that they can provide assistance and physical, psychological and occupational rehabilitation of the young victim;

iv. by limiting punishment to the clients and all those (brothel-keepers, travel agents and others) who promote child prostitution, make money from it and should accordingly be prosecuted for aggravated procuring and complicity in rape;

v.       when punishing "sexual tourism" in developing countries, by taking poverty into account as a factor in child prostitution and therefore giving absolute priority, both in national development aid budgets and in international aid programmes, to improving education and care provision for children, especially girls, who are traditionally subject to social discrimination;

vi. by recognising the extent of the growth of child prostitution in states which have recently converted to the market economy, since for children prostitution is merely a miserable means of survival, which damages their physical health and jeopardises their psychological equilibrium;

vii.        by organising international judicial and police co-operation against child prostitution networks, in particular by promoting the exchange of information;

d.       by reinforcing the prevention and punishment of abuse, including within thefamily circle;

i. by concentrating primarily on prevention, establishing care and therapy for abusive families and providing medical and social follow-up for the child and his or her family;

ii. by helping to restore the self-image of mistreated children so that they do not in turn become abusive parents;

iii. by complementing the sexual education given at school with information about the responsibilities and constraints of very young parents involved in caring for new-born children and their needs;

iv. by arranging for children who have been taken away from abusive families to be adopted by foster families rather than institutions and, in particular, encouraging the accommodation of siblings together in stable “children’s villages”;

v. by training all professionals who work with children, as well as doctors and health care professionals, to be able to detect abuse and all signs that may lead to a suspicion of physical or psychological violence;

vi. by establishing medical and social services in co-operation with schools so as to provide children both with an easily accessible listening ear and an initial place in which any physical traces can be detected;

vii.       by making a single, free phone number generally available and making school-children aware of this, so that they can contact qualified doctors or psychologists who would be authorised, where appropriate, to launch a medical and social procedure or even a judicial investigation;

e.       to legislate against incest

i.       by giving a legal definition of sexual abuse within the family to make it possible to punish an offence whose seriousness has been ignored for too long;

ii.       by organising appropriate staff training for the social services, the police and courts which takes account of the ambivalence which often surrounds such offences, by working to restore young victims' self-image;

iii.       by promoting the exchange of experiences of family therapy;

f.       to arrange for non-traumatising criminal proceedings, and appropriate time-limits for bringing legal proceedings:

i. by establishing procedures restricting questioning of young victims to the absolute minimum and by arranging for such questioning to take place in conditions which reassure children and do not on any account induce in them feelings of guilt;

ii. by establishing a specific time limit for reporting the offence so that victims can take legal action after reaching the age of majority;

iii. by allowing child protection organisations to bring an action in all cases of sexual offences against minors.

g.       to prevent abusive sterilisation:

i.       by encouraging persons with parental authority and persons working in institutions providing care and accommodation to have recourse —where the state of physical or mental health of a minor causes concern lest reproduction entail a serious risk to their health and/or for their descendants — to reversible methods of contraception;

ii.       by resorting to sterilisation only in exceptional cases, when reproduction entails particularly serious risks for the minor and/or the minor's descendants and in these cases to secure the prior authorisation of a judge with jurisdiction over family matters and/or the protection of individual rights, in addition to the agreement of the minor's legal representatives and a panel of three doctors, including at least one independent medical expert.

h.       to eliminate discriminatory practices affecting girls:

i.       by making a distinction between, on the one hand, the necessary degree of tolerance or protection of minority cultures and, on the other, blindness to customs which amount to torture and inhuman and barbaric treatment which the Council of Europe is committed to eradicating;

ii.       by proclaiming the pre-eminence of the universal principles of respect for the individual and the individual's inalienable right to self-determination and for complete equality between men and women;

iii.        by adopting the position of the World Health Organisation, Unicef, the Office of the United Nations High Commissioner for Refugees, and the United Nations Commission on Human Rights which now treat genital mutilations as torture and call for their prohibition as well as the prosecution of those who carry them out, in accordance with the 1989 United Nations Convention on the Rights of the Child aimed at protecting children from sexual violence, and the conclusions of the United Nations Conferences in Cairo in 1994 and Beijing in 1995;

iv. by declaring contrary to human rights the genital sexual mutilation of young girls, the practices to control virginity of young girls, as well as the customary marriage of under-age girls, polygamy and repudiation;

v.       by systematically informing people arriving in any member state of the Council of Europe from countries where this mutilation of young girls still exists that these practices are prohibited, whether they are benefiting from family reunion, asylum seekers or refugees;

vi. by arranging, on the basis of an offence of violence resulting in mutilation or a specific offence, for the punishment of these acts by prosecuting offenders and their accomplices, including the parents;

vii. by arranging, for special time-limits enabling victims to bring actions after they have reached their majority as well as entitling child protection organisations to bring actions.

i.       to overcome refusal to provide vital care:

i.       by passing legislation enabling doctors to decide to hospitalise children and determine their treatment, whenever their health would be endangered by failure or refusal on the part of the persons exercising parental authority;

ii.       by establishing an offence of non-assistance to a person in danger in order to make it an offence for persons exercising parental authority to forgo or refuse care, whenever doing so puts the child's health at risk.

j.       to introduce international sanctions for abduction with a view to adoption:

i.       by uncovering mafia networks which organise trafficking in new-born babies or young children to supply the international adoption market and which have no compunction in taking children away from families in the poorest regions of developing countries;

ii. by improving transfrontier police and judicial co-operation to deal with such networks, which also operate across borders;

iii. by calling on all Council of Europe member states to ratify the Convention on Protection of Children and Co-operation in respect of Inter-country Adoption, opened for signature in the Hague on 29 May 1993, which to date has been signed by only 32 countries and ratified by only 17 of the member states of the Hague Conference on Private International Law;

iv. by subscribing in this way to provisions which will guarantee children the right to grow up within their natural family provided that no court has ruled that the latter is not in a position to fulfil this role and has permanently withdrawn parental rights and provided that the family has not given its explicit and informed consent for the child to be legally adopted in his or her best interests.

14. The Assembly invites the Committee of Ministers:

i.       to exert its influence on the environment which nurtures this criminal behaviour by drawing up a Council of Europe convention open for signature by non-member States, aimed at:

a.       prohibiting the dissemination of paedophile pictures and messages both in the written press and via new communication and information technologies, particularly on the Internet;

b.       harmonising the definition of criminal use of pornographic pictures of minors, so that possession of, and trade in, such images can be punished;

c.       co-operating with a view to monitoring and tracking down the international dissemination of such pictures, whatever the media or technology used and including encoded communications between private persons;

d.       making provision to ensure that the encoding of messages between private persons cannot be designed to hamper checks carried out by the national authorities responsible for law and order and the application of criminal law;

ii. to organise judicial co-operation between Council of Europe member States in order to punish recidivist sex offenders, by drawing up, in conjunction with the Parliamentary Assembly, a Council of Europe convention setting up a register of convictions for offences against minors:

a.       by providing for this register to be placed under the authority of the President of the European Court of Human Rights in Strasbourg;

b.       by giving the President of the European Court of Human Rights authority to monitor compliance with the convention, in particular as regards confidentiality, the validity of requests for consultation and application of rules on amnesty;

c.       by providing that, for the purpose of compiling the above-mentioned register, the President of the European Court of Human Rights shall be notified by the criminal courts of signatory states of all final convictions carrying a sentence for an offence against a minor as well as ancillary penalties, depending upon the definition, procedural rules and sentences in force in the state in which the offender is convicted; by providing also for notification of amnesties and cancellations of convictions occurring after notification of the original judgment;

d.       by defining the rules for access to data held in this register, which may be requested only by:

i. a court trying an offence or crime against a minor,

ii. any person requesting a certificate to the effect that his/her name is not listed in the register, where such a certificate is required in order to apply for a job entailing direct contact with children;

e.       lastly, by providing for the application of the rules on amnesty to convictions which have been notified and cancellation of entries in the register set up under the convention, in accordance with the provisions of the criminal law of the state in which the judgment notified was passed.

15.       Finally, the Assembly asks the Committee of Ministers to transmit this recommendation immediately to the Follow-up Conference to the Stockholm World Congress against Commercial Exploitation of Children, to be held on 28 and 29 April 1998 in Strasbourg.

II.       Draft order on international adoption

1.       The Assembly, recalling its Recommendation … (1998) on the abuse and neglect of children, notes aberrations in current international adoption practices.

2.       Recent events have highlighted the existence of mafia networks which organise trafficking in new-born babies or young children to supply the international adoption market. Unscrupulous intermediaries have no compunction in exploiting the extreme poverty of the populations of certain countries and in organising the abduction of children from families in the poorest regions of Europe, in order to offer them for adoption by couples unable to find children for adoption in their own countries. This transfrontier criminal activity, facilitated by the opening of borders in Europe, generates substantial profits.

3.       The Assembly cannot but speak out strongly against this despicable form of exploitation of children who are abducted from their natural families.

4.       The Assembly instructs its Social, Health and Family Affairs Committee, in conjunction with the Committee on Migration, Refugees and Demography, to draft a report on the problem of international adoption.

III.       Explanatory memorandum by Mr Nicolas About

In the space of almost fifty years European societies have radically changed: most of the collective constraints on the individual have weakened within Europe whereas inequalities between western and eastern Europe as regards economic and social development have worsened.

The freer moral climate and the greater inequalities have made the deviant or the morally irresponsible less inhibited, and this has resulted in all kinds of exploitation and ill-treatment of the most vulnerable, children in particular.

The Council of Europe Parliamentary Assembly has long been aware of the trend in European societies and has adopted instruments to give children more protection, in particular Recommendation 1065 (1987) on the traffic in children and other forms of child exploitation, Recommendation 1121 (1990) on the rights of children, Resolution 1099 (1996) on the sexual exploitation of children, and Opinion No. 186 (1995) on the draft European convention on the exercise of children's rights.

The Council of Europe has thus unambiguously condemned sexual exploitation of children and other forms of child abuse.

Anxious to continue its action on behalf of children, the Assembly, in Order No. 526 (1996), instructed the Social, Health and Family Affairs Committee "to produce a detailed report on sexual violence committed against children, incest, sexual exploitation of children and child prostitution and pornography in the Council of Europe member States". For that purpose the committee held an exchange of views with Unicef in Florence on 30 May 1997.

As it stated in Resolution 1099 (1996), the Assembly fully subscribes to the proposals in the final declaration and action programme adopted in Stockholm on 31 August 1996 by the World Congress against Commercial Sexual Exploitation of Children, an event to which the Council of Europe made a large contribution.

The Assembly must likewise fully play its part in implementing the action plan which heads of state and government adopted at the second Council of Europe summit meeting on 11 October 1997, an action plan which expressly includes a programme to promote children's interests.

A number of recent dramatic events prompt us to question the definitions of adult individual rights which end where children's indefeasible rights begin. The international realisation of that fact has highlighted the inadequacy of the legal armoury available to the individual state. If there are gaps in national law, they need plugging and offences against children more carefully defining. In particular, adult sexual relations with a child cannot be allowed to become a commonplace occurrence. On the contrary, it has to be made very clear indeed that if they occur, the child must always be regarded as a victim.

We have a duty to pay utmost heed to the findings of child-welfare specialists, who assert, on the basis of observation of children who have been subjected to abuse and adults who were abused as children, that sexual interference with a child, whether or not accompanied by physical violence, very seriously affect the child's personality development.

The aforementioned conjunction of events leads the Assembly to press for proper legal and social protection of children against:

—       paedophilia;

—       exploitation in pornography;

—       prostitution;

—       incest;

—       trauma caused by inappropriate procedure;

—       repeat sexual offending against minors;

—       abusive sterilisation;

—       violence against girls;

—       abuse, including abuse within the family;

—       refusal of necessary care;

—       fraudulent action with a view to adoption,

and for repeat violent offences to be punished as such, even if committed in different countries.

A.       Paedophilia

      Prominent among occurrences which dictate that we strike a new legal balance between adult freedoms and the need to protect children have been recent discoveries of paedophilia offences committed by individuals or by members of networks. Crimes of this kind have alas always featured in the legal annals, but today there are additional factors to be borne in mind:

—       an increasingly urban way of life and greater mobility weaken the social control that, not so long ago, gave children better protection and made it easier to keep an eye on offenders and if necessary remove them from society;

—       border checks have been all but done away with, and this obviously creates opportunities for the well organised criminal;

—       development of means of communication — ranging from the telephone to the Internet — and the parallel development of travel, including travel to the remotest destinations, make it easier to seek out young victims with near impunity.

      Lastly, there are society's paradoxical tolerance on the one hand of all manner of adult and adolescent sexual behaviour and desire on the other to protect children — doubtless more than in the past — from physical assault and psychological trauma. And here we cannot overstress the devastating effect of violence on the child's development into a balanced adult: many sexual abusers were themselves victims of sexual abuse as children.

      Parliaments must accordingly take these various tendencies into account and ensure that the law gives children the necessary protection against paedophiles. Although it is hard to say whether paedophilia offences are on the increase in absolute terms, it can scarcely be denied that information technology and ease of travel have a disinhibitory effect on the potential deviant, and equally that there is growing public condemnation of the physical and psychological violence that paedophiles inflict on children.

      To give children better protection in positive law, the following proposals can be put forward:

—       as a preventive measure, improve training of everyone whose duties bring them into contact with children and in appropriate cases make sure that adults who present a risk are not allowed to perform such duties;

—       in addition to prevention and punishment, call on States to provide medical and psychological treatment for offenders both during imprisonment and after release. Exchange of experience between Council of Europe member States, bringing in states such as Canada which now have observer status and are already engaged in medical and psychiatric treatment of paedophiles, should be used to establish the treatment approaches which are most effective at preventing re-offending;

—       standardise the definitions of criminal offences in Council of Europe member countries so that no country is seen to be more "permissive" than another;

—       lastly, adjust definitions of paedophilia offences so that a practice which seriously affects its young victims' physical and mental health can be prosecuted and punished.

      Mention should be made here of communes and sects in which adults force children to engage in sexual behaviour on the pretext of liberating drives and instincts. The "Actionists" (as they called themselves), an Austrian group of pseudo-artists, in the Vienna area, were a very serious example of this. The victims themselves brought the affair to light when they came of age several years later and it transpires that their own parents had connived in it to varying degrees. By then the permissiveness of the 1970s was a thing of the past and those responsible were finally given prison sentences in belated recognition that some of the children who had grown up in the commune had been subjected to rape. Similar occurrences in sects in France and other European countries are currently under judicial investigation.

B.       Child exploitation in pornography

      Council of Europe action here is urgently needed. The Council has devoted a great deal of work to child welfare but the challenge posed by the new information technologies forces us to reconsider our national law.

      The prime requirement is to define exploitation in magazine, film, video, Internet and other forms of pornography: producing material made available by these various means must always be treated as a criminal offence when it depicts people under 18. The presumption of criminal conduct here needs to be irrebuttable, making it impossible for anyone to allege that a minor consented to the distribution of nude pictures of him/her for purposes of sexual stimulation. Similarly it must not be possible for parents or guardians to consent to such pictures on the minor's behalf.

      The second requirement is to draw up an international convention binding, firstly, Council of Europe member States but also, as with "open" conventions, on any state accepting its provisions, so as to regulate transborder circulation of material of that kind.

It is regrettable that, to preserve (so it reasoned) a balance of power between the federal state and the federated states, the United States Supreme Court ruled to be contrary to the first amendment of the United States Constitution a federal law prohibiting the dissemination of indecent material by means of the new communication technologies, in particular the Internet.

      It would be unworthy of the Council of Europe if, by failing to take action, it allowed the Supreme Court's ruling to be the last word on the question, allowing the legalisation of child pornography, some of which, as we know, depicts brutality and even murder.

      Council of Europe member States all recognise freedom of enterprise and freedom of the press — everyone's right, that is, to impart opinions and publish pictures for profit if he/she wishes. But European civilisation would be disowning itself if it failed to strike a balance between such freedoms and state-guaranteed protection of children from abuse of adult freedoms.

The definition of the offence should include possession and exchange where no money changes hands of any pornographic material depicting minors: one of the papers on which the Stockholm Declaration of 31 August 1996 states that the bulk of child pornography seized in the United States has not been commercially produced or distributed but exchanged informally for personal use.

Most European governments have in fact changed their regulations so that it is an offence not just to conduct trade in such material or distribute it but even to possess it privately. That is the case in Germany, Belgium, Denmark, Estonia, France and the United Kingdom, and it is also the case in Canada. (Even in the United States, anyone who is involved in producing child pornography abroad and importing it can now be prosecuted.)

The recognition of the need for international police co-operation whether within Interpol or Europol is to be welcomed. After several months of investigation in four continents and with co-operation from six governments, Operation Starburst dismantled a network of forty people who had been using the Internet to disseminate child pornography.

However, information exchange can now be protected by encryption, a device which anyone, including private transmitters, can legally use, and this is a worrying development: encryption must not be allowed to enable child pornography to flourish with impunity.

All encrypted services must be supervisable by the national law-enforcement authorities.

C.       Child prostitution

Papers to the August 1996 Stockholm Congress recorded that over 650 000 children were being prostituted in the Philippines, some 400 000 in India, 300 000 in the United States, over 200 000 in China, 60 000 in Taiwan, 40 000 in Pakistan, 30 000 in Nepal, 30 000 in Sri Lanka, 25 500 in the Dominican Republic, 10 000 in Bangladesh and 8 000 in France.

The Assembly would point out that the 1989 United Nations Convention on the Rights of the Child, which has been ratified by 188 States worldwide, asks governments to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices, and the exploitative use of children in pornographic performances and materials.

A number of States, including European ones, have made all sexual abuse of a minor an offence which they can prosecute even if committed abroad. In France these new powers came into force recently and under them paedophiles have been convicted of offences committed in Thailand and Morocco on the evidence of pictures they had kept in their homes which showed them subjecting young children to sexual abuse, including physical violence.

By no means the easiest aspect of international action to combat so-called "sexual tourism" is the winning over of governments which indirectly derive considerable revenue from it, and it will be even harder for the law to get at the procurers, hotel-keepers, tour operators, travel agencies, transport companies and other intermediaries that make money from child prostitution.

All Council of Europe member States should be asked to introduce — as European Union states decided to do at the December 1996 European Council — a criminal offence enabling child abuse committed abroad in the form of use of child prostitutes to be punishable in the State of residence.

Exchange of intelligence on this type of crime needs developing within Europol and Interpol.

Lastly, on the basis of regularly updated information about "sex tourism" destinations, Council of Europe governments must adapt their arrangements for development aid to the countries concerned: child prostitution is primarily a survival expedient resorted to by "street children" and the poorest sections of the population in developing countries — or, indeed, European States where living conditions have been made precarious by abrupt political and economic transition in which the collapse of dictatorship has created a situation of survival of the fittest.

D.       Incest

      All the statistics on sexual offences against minors show that a large proportion of such offences are committed in the immediate family (by a father, stepfather or brother) or by a family friend (sexual perversion in female ascendants takes the more insidious form of psychological manipulation except in rare cases of actual madness).

Psychiatrists point to particular features of this type of offence: in particular, to re-establish the child's psychological equilibrium, it is important to treat all sexual interference as extremely serious, even not overtly violent interference in which allegedly harmless caresses are forced on the child. The first essential is that such interference be classed as transgressing a social boundary to all so that the child can be given adult reassurance about right and wrong, its right not to be physically interfered with, and thereby relieved of the burden of guilt which generally accompanies occurrences of this kind and their disclosure to the family.

However, children's psychological frailty makes it necessary to proceed with extreme caution in establishing the facts. On the one hand the concern must be to avoid lending credence to fantasies, sometimes planted by members of the family: in divorce proceedings in particular it is not unknown for incest accusations to be fabricated in an attempt to sway the court, and in the United States especially, some doctors and lawyers are said to specialise in uncovering childhood trauma allegedly inflicted by family or teachers so that compensation can be claimed. Equally, though, the shame often experienced by young victims of sexual abuse by family and their fear of the consequences of disclosure have to be carefully borne in mind.

More training is needed for the people in whom children are liable to confide, particularly training in well-tried methods of analysis and evaluation (for instance, deciding whether the child's words are its own or have been suggested to it, helping the child give explanations by projective means such as toys or dolls, and non-leading questioning techniques).

E.       Adapting criminal procedure to deal with sexual violence against minors

      Member States must adapt their rules of criminal procedure.

Incest cases, for example, require an exception to be made to the general rules on time-barring of prosecutions so that victims can recover the right to institute proceedings once they have reached the age of majority and for several years thereafter. Even if very delayed, punishment of abuse suffered in childhood is generally crucial to victims' recovery of self-esteem.

Victims' identity needs protecting throughout the proceedings. The case must be triedin camera when the victim is under-age — and, indeed, even where the proceedings are instituted after the age of majority, unless the victim asks for the trial to be held in open court.

There is also an urgent need to develop training for teachers, social workers, police officers and judges so that they recognise the possible signs of a child's having been sexually abused and so that, if they have doubts, they will conduct any questioning with the utmost tact. In a number of Council of Europe member states, including France, police questioning is conducted by a woman officer, on her own or together with a male colleague, or by a child psychiatrist in the presence of a police officer out of uniform, and every attempt is made to ensure that the first interrogation does not have to be repeated so as not to inflict further trauma on the child, which means recording the first interview.

In France the new Article 706-52 of the Code of Criminal Procedure provides that where the victim of an offence involving sexual violence is underage, the courts are not allowed to order any hearings of the parties or to confront them with one another unless it is "strictly necessary" as opposed to merely helpful to establishing the truth. In the same spirit, the new Article 706-53 allows child victims of sexual abuse to give evidence on video. The same facility is available in the United Kingdom, Belgium, Denmark and Canada.

F.       Repeated sexual violence against minors

      Of the various forms of offending, paedophilia has one of the highest rates of re-offending. Whether in the case of paedophilia, exploitation of child pornography, child prostitution or incest, repeat offences should not only carry a heavier penalty in the national law of Council of Europe member states but above all should be brought to the notice of all courts which try sexual offences against minors.

The fact is that recidivism (is the offence the same as previous ones or more serious?) is indicative of the prospects of socially rehabilitating as accused, and courts must have information about previous convictions if they are to properly access the chances of a change of behaviour and re-entry into society.

However, a charge of re-offending will only stand up if all the offences have been committed in the same country. A person with a previous conviction will not be regarded as having re-offended if the latest offence is committed in a different country and this means he will escape the heavier penalties laid down for repeat offences.

Although the criminal law and rules of criminal procedure on offences against minors need standardising, differing as they do from one Council of Europe member state to another, it is even more urgent to co-ordinate the information necessary to establish that an offence is a repeat one.

Tragic occurrences in various European countries in recent years highlight the gaps in legal systems. States must respond to widespread "Euro-pessimism" stemming from the impression that, by dismantling border controls, Europe has created an open area where crimes of the most unspeakable kind can be committed with total impunity.

Freedom of movement cannot be regarded as progress for Europeans if it creates an expanding Europe of criminal activity detrimental to personal safety and security. Investigation and prosecution of offences against minors accordingly needs organising at the European level.

The European Community has certainly agreed joint action in which Europol has responsibility for tracking down criminals. However this action does not involve any judicial or criminal-law co-ordination. Such co-ordination falls under European Union legal and judicial co-operation and presupposes an international convention.

Given its experience in this area, and the need for co-operation to extend across the whole of Europe, the Council of Europe is the most appropriate framework for drawing up a convention to co-ordinate investigation and prosecution of offences against minors.

A Council of Europe convention needs drawing up which provides for exchange of relevant information and allows national courts to take into consideration previous convictions in other Council of Europe member states.

The Assembly therefore recommends that the Committee of Ministers:

—       draw up, in consultation with the Parliamentary Assembly, a Council of Europe convention establishing a register of final convictions for offences against minors;

—       place the President of the European Court of Human Rights in charge of the register;

—       place the President of the European Court of Human Rights in charge of enforcing the convention and in particular ensuring the confidentiality and legality of requests to consult the register and the rules on pardons are applied;

—       provide that the criminal courts of signatory states are to notify the President of the European Court of Human Rights of any final sentence, together with any accessory penalties, imposed for an offence against a minor in accordance with the offences recognised and the procedural rules and penalties in force in the state where sentence was passed and that they must also notify him of any subsequent pardon or deletion of an offence from the criminal record;

—       provide that the convictions notified are to be entered in a register for which the President of the European Court of Human Rights has overall responsibility;

—        lay down rules for access to the data in the register, communication of which may only be requested by a court investigating or trying an offence against a minor, or any person requesting a certificate to the effect that his/her name is not listed in the register, where such a certificate is required in order to apply for a job entailing direct contact with children; the communication request could be forwarded, where appropriate, by the government authorities of the requesting state;

—       provide, lastly, that the rules on pardons are to be applied to the convictions notified so that entries in the convention register established by the convention are deleted in accordance with the criminal law of the state in which the sentence was imposed.

G.       Abusive sterilisation

Recent shocking revelations concerning surgical castrations of young mentally retarded patients and seriously disturbed minors caused a public outcry, particularly as some of them had been carried out under laws which fortunately have since been repealed.

      We must not underestimate the responsibility carried by parents and guardians of the legally incapable or by doctors when they are faced with the tricky task of weighing the risks to the mentally deficient child who will grow into an adult incapable of reasoned decision against the gravity of depriving them of sexual freedom and the possibility of having children, which are essential aspects of the autonomous individual.

As far as possible, recourse should be had to reversible methods of contraception and any decision affecting the faculties of the legally incapable minor or adult must be subject to legal safeguards comparable to those which when it drew up the Council of Europe Convention on Biomedicine the Assembly held to be essential in medical treatment of or therapeutic tests or trials on legally incapable minors or adults.

H.       Genital Sexual mutilation of and discrimination against girls

      The Assembly has always been respectful of traditions and customs, including those of minorities in Council of Europe countries resulting from immigration from outside Europe.

      Nonetheless, the right to be different does not include a right to have customs viewed with indifference which seriously impair children's sexual development. Some traditions are more deserving of respect than others and some of them need to change, which is the view expressed by associations in Europe of women immigrants from countries which still practise sexual mutilation.

A middle course needs steering between the necessary tolerance and protection of cultural minorities and blind allegiance to customs which are akin to the torture and barbarity the Council of Europe is anxious to eradicate.

The Assembly must make it clear that the universal principles of respect for the individual, of the inalienable right of individual self-determination and of full equality between men and women prevail over all custom or tradition.

In doing so the Assembly would merely be aligning itself with the World Health Organisation, Unicef, the United Nations High Committee for Refugees and the United Nations Commission on Human Rights, all of which now classify such mutilation as torture and have called for its prohibition and prosecution of those who practise it in accordance with the 1989 United Nations Convention on the Rights of the Child, which protects children from sexual violence, and with the conclusions of the United Nations conferences in Cairo (1994) and Beijing (1995).

In France, the Lyon Administrative Court delivered a decision on 5 April 1996 setting aside a decision to deport a Guinean mother and her two small daughters who were illegally present in France on the ground that the two girls risked excision on their return to Guinea. The court based its decision on classifying excision, whatever the procedure used, as inhuman or degrading treatment within the meaning of the European Convention on Human Rights and the Council of Europe Convention against Torture.

The Assembly must add its voice to the increasing consensus among international organisations and in the case-law of Council of Europe member states and explicitly declare contrary to human rights, and in particular to the protection which children need on account of their vulnerability, not only sexual mutilations of young girls such as excision and infibulation but also virginity inspections and arranged marriage of under-age girls (any marriage of a girl under the member state's marriageable age should be preceded by an official or judicial interview with the girl to check that she fully consents to the marriage), polygamy (a misnomer since it is invariably polygyny that is involved) and repudiation (again only women are affected).

Council of Europe countries cannot claim to be champions of human rights if they allow such legal forms of discrimination against girls to continue to exist, depriving them of equality of personal rights. It is a question here not only of Europe's being true to what is best in European civilisation but also of lending support to the forces of emancipation that are at work in areas adjacent to Europe where women are the main victims of fundamentalist violence.

I.       Abuse, including abuse within the family

The horror aroused by paedophilia cases in which children have been murdered and by the spread of sexual exploitation of children, child pornography and child prostitution must not distract attention from the daily violence done to hundreds of thousands of children, mostly within the family.

The first step must be to improve knowledge of such violence, which tends to occur within the family unit, and then analyse its many causes (which include the inexperience of young parents, alcoholism, drug addiction, desocialisation involving psychiatric factors, unemployment, poverty and, in the case of some migrants, culture clashes).

Conferences of specialists, policy makers the different analyses of the problem and social workers in the Council of Europe member states are needed to compare and assess the various preventive and criminal approaches. Within the Council of Europe there should be a standardisation of definitions of the various types of abuse together with a comparison of national data and national experience of prevention and penalisation.

In France, figures given at the first National Children's Rights Conference, held at the Senate on 2 December 1996, showed an appreciable rise in cases of abuse, only part of which can be attributed to better knowledge of the problem:

1.       Children in danger = abuse children + children at risk

2.       Abused children: nature of the abuse

(1)       The ratio of serious neglect cases to psychological violence cases is approximately 2/3, 1/3

3.        Cases referred to the courts

      (Extract from Senate Report 110 — 1996-1997 "La première Journée Nationale des Droits de l'Enfant au Sénat" — Record of hearings of experts by the Law Committee and Proceedings of the Committee). Document available from the Senate, 15 rue de Vaugirard, 75291 PARIS Cedex 06.

At all events, national experience in various countries has shown the importance of family therapy and of medical/social-work monitoring not only of the abused child but the siblings as well, who may be subjected to in turn, and the importance of social workers' staying vigilant in the case of family pathology (such as psychiatric disorder, alcoholism or drug addiction) or where desocialisation factors are present (severe poverty, unemployment, family dislocation, culture clashes in the case of some migrants, etc.).

To protect the child, risk situations require a preventive approach with family counselling plus regular monitoring by social workers.

However, it must be possible for at least temporary removal of the child from an abusing family to be ordered whenever the child's safety is threatened or its physical or psychological development is endangered.

As placement in institutions such as we have at present is not satisfactory, the public authorities should be endeavouring to improve arrangements for removing the child from the abusing family rather than allow it to remain in an environment which endangers its physical or psychological health.

Where placement is necessary, placement with foster families is preferable: experience shows that this is the least expensive solution and the one likeliest to repair the child's self-esteem and ability to form relationships by replacing the trauma with directly experienced emotional security and non-violent interpersonal relations. The abused child may then not become an abusive parent in turn (data published in Quebec show that development into an abusive parent is in no way inevitable).

Similarly, placing all the siblings together as a matter of policy will avoid adding the pain of separation to the trauma which occasioned the removal from the natural family. The emphasis should be on foster families or on an approach which is tried and tested but unfortunately still rare, the "children's village", where the siblings are under the authority of an adult or a couple, responsible for their upbringing until they reach the age of majority just as in a "normal" upbringing.

But the penal/criminal aspect cannot be avoided given that we are dealing here with violence towards children and even infants, causing thousands of deaths every year - some of which are not even identified as resulting from abuse.

Teachers need training to identify the signs, including the psychological signs, of ill-treatment (withdrawnness/moodiness, self-destructiveness or aggressiveness, poor results, absenteeism, etc.); there should be medical and social-work staff in all youth institutions, and they should have special training.

General practitioners and hospital medical staff also need to be trained in recognising the signs of abuse and in particular must be careful to establish the cause of medically unexplained infant death (research, in Quebec and elsewhere, has shown that some deaths attributed to "sudden cot death" are in fact the result of physical violence). Here again, exchange of experience should make it possible to agree a protocol for clinical examinations (including X-rays of the skeleton and looking for any history of "accidents").

Although some member states have introduced ombudsmen for young victims in line with their legal traditions, the experience of countries which have opted to make generally available (to child victims or adult witnesses of abuse) a single free-phone number is worth studying: the telephone number, of which children are informed by the various institutions concerned with them, gives them an easy and discreet means, in cases of trauma, of making initial contact with specially trained skilled people (doctors, psychologists, social workers). These specially recruited people trained in dealing sensitively with calls are able, in the first instance, to reassure the child, assess the seriousness of the case and, if appropriate, bring in the health and social services or the police.

      The single free-phone number (119) introduced in France in 1989 for reporting child-abuse cases receives, on average, 3 000 calls a day, some 450 of which give rise to action followed, in each case, by a report.

      Applying the French approach in all Council of Europe countries could not but crucially assist protection of abused children.

J.       Refusal of essential care

      The proliferation of communities with shared beliefs, which are to varying degrees religious, faces parliaments with a classic dilemma: how to reconcile freedom of opinion, belief and assembly with certain principles of law and order.

Although the task is a tricky one where consenting adults are concerned, protecting children from physical interference and damage to health takes precedence over such freedoms and even over parental authority. The Assembly must state categorically that it is not permissible to involve children in adult sexual practices in communes or communities, even if their parents give consent.

      Legal protection must also extend to children whom parents, on account of religious beliefs, will not allow to be given treatment which is essential to maintaining or restoring their health.

      We must call on member States to introduce an offence, if none exists in their national law, of failure to assist persons in danger so that parents or guardians can be prosecuted for not seeking or for refusing medical care to the danger of a child's health. The law should also allow doctors to order a child's admission to hospital and its treatment if its health is endangered by a parent's or guardian's inaction or objection.

K.       Fraudulent action with a view to adoption

      The low birth rate in some social classes in the developed countries and the extreme poverty that exists in some developing countries have prompted unscrupulous middlemen, and indeed mafias, to organise kidnappings of children so as to offer them — through a series of camouflage organisations — or adoption by couples who cannot find "adoptable" children in their own countries. This transborder crime, which generates substantial profits, is shocking on two counts: on the one hand it criminally deprives children of their natural families while on the other it scandalously exploits the poorest section of the population in certain countries. Only police co-operation at international level will succeed in dismantling this traffic and punishing the culprits.

      The Assembly should devote a special report to the problem of adoption, which has been radically altered by the dismantling of international borders and by changes affecting procreation and descent. The report should not neglect "adoption" practices in certain sects which cause deep disturbance both to natural or adopted parents and, needless to say, the children assigned to some member of a sect at the whim of the sect leader.

      At all events Council of Europe member States must be asked to sign and ratify as soon as possible the Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption, signed at The Hague on 29 May 1993, which so far has been signed only by 32 States member of The Hague Conference and ratified by only 17 States (France's ratification is under way).

      Without claiming to be exhaustive, the present report seeks to promote measures for the protection of children which have already proved their worth and to introduce others which meet new challenges.

      This will ensure that the Council of Europe is true to its purpose: the affirmation of human rights and securing protection of the most vulnerable section of the population, the one with which the future lies — children.

Appendix

List of states that have signed or ratified The Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption

Reporting committee: Social, Health and Family Affairs Committee

Budgetary implications for the Assembly: none

Reference to committee: Order No. 526 (1996); Doc. 7107, Reference No.1953 of 28 June 1994; Doc. 7649 and Doc. 7650, Reference No. 2123 of 7 November 1996.

Draft recommendation and draft order unanimously adopted by the committee on 4 March 1998

Members of the committee: Mr Cox, Chairman, Mrs Ragnarsdottir, Mr Gross (Vice-Chairmen), Mrs Albrink, Mr Alis Font, Mrs Andnor, Mr Arnau, Mrs Belohorska, Mrs Biga-Friganovic (Alternate: Mrs Busic), MM. Boka, Christodoulides, Chyzh, Dees, Dhaille,Evin, Mrs Fleetwood, Mr Flynn, Mrs Gatterer, MM. Gibula, Gregory, Gusenbauer, Györivänyi, Haack, Hancock, Hegyi (Alternate: Mrs Barath), Mrs Høegh, Mr Janecek, Mrs Jirousova, MM. Kalos, Keller, Kotlar, Mrs Kulbaka, Mrs Laternser, Mrs Lucyga, Mrs Luhtanen, MM. Lupu (Alternate: Mr Popescu), Marmazov, Martelli, Mattéi (Alternate: MrAbout), Mrs Maximus, MM. Mozgan, Mularoni, Nestor, Niza, Pocas Santos, MrsPoptodorova, Mrs Pozza Tasca (Alternate: Mr Cangemi), Mrs Pulgar, MM. Raskinis, Regenwetter, Rizzi (Alternate: Mr Polenta), Sceberras Trigona, Sharapov, Silay, Sincai, Skoularikis, Mrs Stefani, MM. Tahir, Valk, Valkeniers (Alternate: Mr Weyts, Vice-Chairman), Mme Vermot-Mangold, MM. Volodin, Wojcik, Yürür.

N.B. The names of those members present at the meeting are printed in italics.

Secretaries to the committee: Mr Perin, Ms Meunier and Ms Clamer.