Comparative review on the legal protection provided to institutionalised children in the South Asian region

Legal systems around the world differ in the manner in which they deal with their obligations towards children in need of care and protection (CNCP), as well as children in conflict with the law (CCWL). Every State has a universal obligation to ensure that the rights of institutionalised children are protected effectively regardless of the type of institution responsible for their protection. Central and State Ministries of Child Welfare and Development or any other Governmental Institution for that matter bearing the responsibility of the well-being of children need to facilitate and equip the States with effective policy-making instruments and not only implement, supervise, monitor, evaluate but also strengthen any type of institution that is willing to provide care and support whenever other alternative care options are not in place. For children in institutionalised settings, minimum well-being standards, effective juvenile justice mechanisms, comprehensive system of laws, active societal support and participation and most importantly, the notion of children as subjects of rights and protection are some necessary factors safeguarding their interests.

‘Child Institutionalisation’ is a broad concept, which has received little analysis till date. This has led to a more state centric versus a child centric approach. Issues such as age criteria for defining a child, child self care, education, health, nutrition, emotional and behavioural development, rehabilitation and restoration, reintegration, communication with children's family and/or relatives, outgoings and exposures, safety, human resources training and supervision, individual care plans at the time of admission and after care plans, among many others have to be specifically regulated. Organisations at all tiers from regional to international level have the responsibility to not only ensure that all requisite measures are taken in order to protect institutionalised children but also ensure that they are subjects of rights and not exclusively objects of protection. At national and regional levels, there have been considerable and appreciable efforts in the field of child protection child rights, nevertheless, there are still a lot of challenges and loopholes yet to overcome.

This paper is an initial effort towards drawing a comparative review of the legal protection provided to institutionalised children in the South Asian countries (i.e., Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka). It is aimed at highlighting the current applicable laws and provisions pertaining to the protection of CNCP & CCWL, and their respective lacunas, which need special attention. Our review will include an analysis of the available regional, state and national legal framework along with the international standards and guidelines available at hand. Furthermore, specific recommendations will be made to contribute to enhancing protection for institutionalised children in South Asia.