Relevant Laws and Practices in Pakistan and other Countries

ACTS Laws Pakistan
March 26, 2019
Law In Pakistan
March 26, 2019

 

Missing Children’s Cases and Reporting & Investigation by Police:

Relevant Laws and Practices in Pakistan and other Countries

Roshni Helpline

in collaboration with SZABIST Legal and Research Clinic, Qaaf se Qanoon

Summary

The recovery of missing children in Pakistan would be more effective if police change their customary practice of filing reports of such kids in the Roznamcha and instead file FIR and immediately commence investigation on the presumption that one of the cognizable offences listed in the PPC has been committed against the child. The “window of intervention” in these cases is small and any delay in investigation reduces the chances of a child’s recovery. The range of cognizable offences that necessitate investigation are kidnapping of a child under 14 (S.364A), procuring a minor girl (S.366-A), kidnapping to commit grievous harm (S.367), kidnapping of a child under 10 (S.369), and trafficking (369A).

In the BBA case, the Supreme Court of India makes it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles.

We recommend that the following two changes to the Pakistan Penal Code 1860 (PPC) would make these sections of kidnapping of children compatible and apply to all children under 18 as per the Convention on the Rights of the Child. Moreover, police officers must be directed to presume that one or more of these offences have been committed when a parent reports that their child is missing.  These are cognizable and mandate the filing of an FIR.

  • Section 364A of the Pakistan Penal Code, “Whoever kidnaps or abducts any person under the age of fourteen eighteen in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or maybe so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years (cognizable offence).

 

  • 369: Kidnapping or abducting child under ten years with intent to steal from its person: Whoever kidnaps or abducts any child under the age of ten eighteen years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

 

  • 366-A. Procuration of minor girl: Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

 

1.  Introduction

 

  1. Issue of missing children:

According to Roshni, a Karachi based NGO, 2200 children went missing in Karachi in 2015 alone. Kidnapping/abduction and trafficking of children are serious crimes and police officers should investigate accordingly. The biggest problem is in the reporting of such a case to the police who do not file an FIR until 48 hours have passed since the child’s disappearance. These 48 hours, however, are crucial when it comes to saving a child, especially if the child is being taken out of the country or trafficked internally or being harmed in any other way. Roshni, with the aid of Mr. Naveed Ahmed, Advocate High Court filed a petition for missing children in Sindh High Court in which he has identified the issue that police report missing children a non-cognizable offense and hence record these cases as a Kachi Report (Register 3 or Roznamcha). In a kachi report, the missing child’s name is noted on official paper, but there is no practical effort made to retrieve her.

  1. Legal requirement of dealing with missing children:

This is against the law as kidnapping and trafficking children are cognizable offences according to Schedule II of the Pakistan Penal Code (PPC) which requires that police officers start investigation right away. In fact, a police officer must immediately file an FIR in a case of a missing child on the presumption of an offence of kidnapping or trafficking. There are several sections in the PPC that can be written into the complaint. Most of these are cognizable offences which require that the police start investigation promptly. In cases where the offence is non-cognizable, police can begin investigation soon after receiving an order from a Magistrate.

III. Constitutional protections for children:

The Constitution of Pakistan provides for certain protections for children which are relevant to the issue of kidnapping. In particular, Article 25(3) of the Constitution allows the State to take special measures for the protection of children and in doing so, recognises the need to protect children as a vulnerable group. Further Article 35 requires the State to protect children as a specific unit in a family. In addition, the Constitution prohibits any child (under the age of 14 years) from working in a factory, mine or other hazardous condition (Article 11).

  1. Aim and structure of this policy paper:

The goal of this paper is to highlight the importance of a directive to the police to file FIRs and immediately commence investigation of a missing child. Karachi is a vast city with readily available transport networks to all parts of Pakistan and children can be taken to distant cities and villages in a matter of hours for malicious ends such as begging, sex work, and hard labor. An immediate investigation is critical to ensure the child is not trafficked out of their native town and therefore a matter of public importance for the National Assembly.

We will examine the following three areas:

  • The current procedural and substantive laws in Pakistan for cases of missing children reported to the police and child protection laws.
  • A comparison of reporting/procedural laws and best practices of other countries.
  • Recommendations for reform of the law to better protect and safely recover missing children and prevent delays in the filing of FIRs

 

2.  Laws Protecting Children in Pakistan

  1. Trafficking, Kidnapping and Abduction Laws covering child victims:

Trafficking:

Two anti-trafficking laws have been enacted, one in 2002 and the other in 2016.

The Prevention and Control of Human Trafficking Ordinance (PACHTO) (2002). This statute criminalizes whoever “purchases, sells, harbours, transports, provides, detains or obtains a child or a woman through coercion, kidnapping or abduction, or by giving or receiving any benefit for trafficking him or her into or out of Pakistan or with intention thereof, for the purpose of exploitative entertainment…”. This is a cognizable offence – which means that police must lodge an FIR and begin investigation of the case.

The Criminal Law (Second Amendment) Act of 2016 creates a new section 369A in the Pakistan Penal Code titled “Trafficking of Human Beings”. This law sentences people convicted of human trafficking with imprisonment of up to 7 years or a fine of up to Rs. 7 lacs. Ostensibly, this section aims to criminalize not just transnational trafficking but also internal trafficking within Pakistan. Unfortunately however, it fails to do this since it gives human trafficking the same definition as the 2002 act thus ruling out trafficking within Pakistan. This is:

“human trafficking” means obtaining, securing, selling, purchasing, recruiting, detaining, harbouring or receiving a person, notwithstanding his implicit or explicit consent, by the use of coercion, kidnapping, abduction, or by giving or receiving any payment or benefit, or sharing or receiving a share for such person’s subsequent transportation out of or into Pakistan…”

In addition, it also introduces new crimes namely, sexual abuse of a child, child cruelty, child pornography as well as child seduction.

Age of Criminal Responsibility: The above-mentioned law also changes the age of criminal responsibility from seven to ten years by amending Section 82 of the Pakistan Penal Code.  Nothing done by a child under age ten can be a criminal offence. (http://www.na.gov.pk/uploads/documents/1467011388_916.pdf)

Kidnapping:

Pursuant to Section 364A of the Pakistan Penal Code, “Whoever kidnaps or abducts any person under the age of fourteen in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or maybe so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years (cognizable offence).”

Sections 366A and 369 both pertain to minors and can easily be put on the FIR in case of a missing child.  Both are cognizable offences that trigger immediate police action to recover the missing child (now presumed kidnapped).

  1. 366-A: Procuration of minor girl: Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

S.369: Kidnapping or abducting child under ten years with intent to steal from its person: Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

PPC sections 359 to 374 deal with various forms of kidnapping.

  1. 365. Kidnapping or Abducting with intent secretly and wrongfully to confine person; S. 365-A. Kidnapping or abducting for extorting property, valuable security, etc.; S. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.; S. 366-B. Importation of girl from foreign country; S. 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.; S.368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person; In addition, these sections may be applicable as well in case of a missing child. S. 371. Habitual dealing in slaves; S.373. Buying minor for purposes of prostitution, etc; S. 374. Unlawful compulsory labour; S. 370. Buying or disposing of any person as a slave.

The procedure for reporting and investigating into the alleged offence varies for cognizable and non-cognizable offences. From the aforementioned list of offences, S.364A, S.366-A, S. 369, S.365, S.365-A, S.366-B, S.367, S.368, S.371, S.373, S.374 are cognizable offences while S.366 and S.370 are non-cognizable offences [Schedule II (Tabular Statement of Offences) of PPC].

Cognizable Offences: The procedure of lodging an FIR is prescribed in Section 154 of the Code of Criminal Procedure, 1898 (CrPC)[1]. Police officers should be aware that it is as follows:

When information about the commission of a cognizable offence is given orally, the police officer must write it down. It is the complainant’s right as a person giving information that police officers make note and then read the complaint verbatim as to strike out any errors. The police must also record which section of the Pakistan Penal Code this offense falls under. Once the police have recorded the information in the FIR Register, the police should ensure that the complainant has been given a chance to read their statement and then sign it to be accurate; People who cannot read or write must put their left thumb impression on document after being satisfied that it is a correct record, this practice should be ensured by the police officers in charge. The police should ask the complainant to verify the report before signing it. The Police should always provide a copy of the FIR – even if the complainant does not ask for it, it is their right to get a copy of FIR free of cost.

Investigation of Cognizable offences: Under CrPC Section 156. Investigation into cognizable cases:

  • (1) Any officer in-charge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would, have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
  • (2) No proceeding of a police-office in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.

 

Non-cognizable Offences: Under CrPC Section 155. Information in non-­cognizable cases:

  • (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate
  • (2) Investigation into non-cognizable cases: No police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case [or send the same for trial to the Court of Session] (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police ­station may exercise in a cognizable case.

 

  1. Sindh Child Protection Authority Act 2011

This Act establishes an authority in Sindh, the Sindh Child Protection Authority (SCPA) to protect the rights of children in need of special protection. SCPA is also obliged to make necessary efforts to enhance and strengthen the existing services to different children welfare institution, set minimum standards for social rehabilitative and reformatory institutions and services, and supervise the functions of all such institutions established by the government or the private sector for the special protection measures of the children. The Act provides for a Child Protection Institution for the admission, care, protection and rehabilitation of child requiring special protection measures;

Section 2(c) of the Act refers to child in need of special protection measures. Where a child:

  • is victim of violence, abuse and exploitations;
  • is subjected to physical and psychological violence, sexual abuse or commercial sexual exploitation;
  • is forced into the worst forms of the child labour, exploitative labour, or beggary;
  • is subject to human trafficking within and outside Pakistan;
  • is being misused for drug trafficking or is subjected to abuse of substances like glue drugs, spirit; … “

SCPA sets up Child Protection Units at the district level and Child Protection Officer at these units to carry out the purposes of this Act.  Some provisions relating to such officers:

  • A station house officer shall provide appropriate police assistance to the child protection officer, whenever required. s 15(3)
  • A child protection officer may, in case of a child in need of special protection measures, ask relevant authorities for an appropriate action. s17(1)
  • A child protection officer may, in consultation with the child protection committee, apply to the nearest magistrate to take into custody a child requiring special protection measures. s17(2)
  • Whenever a child is taken into custody, he shall immediately be taken to the nearest Child Protection Institution for temporary custody till appropriate orders are passed by the appropriate authorities. s17(3)

 

The Social Welfare Department in Sindh is responsible for facilitating abandoned and/or abused children through CPUs by providing them with social case workers, legal representation and support services. Currently there are 11 CPUs in 23 districts of Sindh. The authority was notified after a delay of a few years but and has not been able to accomplish many goals. Committees, advisors and child protection officers were to be appointed under it; that too has not been done. CPUs operations could also be vastly improved for the protection of children.

On August 30, 2016 Rules of Sindh Child Protection Authority were approved.

 

III.       The Khyber Pakhtunkhwa Child Protection and Welfare Act 2010

This act defines a “child at risk” as including:

(i) .. an orphan, child with disabilities, child of migrant workers, child working and or living on the street, child in conflict with the law and child living in extreme poverty;

(ii) is found begging;

 (iii) is found without having any home or settled place of abode or without any ostensible means of subsistence ….

(vi) is being or is likely to be abused or exploited for immoral or illegal purposes or gain; or

(x) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence;

It establishes the Child Protection Commission, Child Protections Institutions (to provide children at risk with accommodation, treatment, education, etc.) Child Protection Units and Child Protection Officers.

Some of the functions of the Child Protection Unit include:

  • Receiving and registering children at risk and their families who are considered to be in need of protection and assessing their needs. s10(a)
  • Planning and coordinating the provision of services in cash or in kind to meet the assessed needs of children at risk and their families; s10(c)
  • Introduction and use of indicators related to the child abuse and exploitation prevention aspects in the monitoring visits to families, residential institutions, services, schools etc. s10(e)
  • Developing consultative community structures and preparing them to support initiatives for the prevention of abuse, neglect and exploitation through the formation of Child Protection Committees. s10(f)
  • Follow-up of children at risk after their release from the Child Protection Institution or jail.

The Child Protection Officer has powers and responsibilities under the Act.  One of them is their right to:

  • Register First Information Report or Complaint against any person or persons who have committed any offence under this Act. s11(4)

The Act also allows for Sessions Courts to be designated as special Child Protection Courts. S16 and s17.  In addition, this Act sets forth various offences against children which include:

  • Corporal punishment, fraud or deceit on a child, violence, abuse, cruelty, giving drugs to a child, employing a child for begging, dealing with a child’s organs, giving intoxicants to a child, child pornography, exposure to seduction, and child trafficking within Pakistan. See sections 33 to 53.

 

  1. Balochistan Child Protection Act 2016

This Act describes the child in need of protection under s5:

A child in need of protection shall include any child is subject to, or is under serious threat of being subjected to:

(a) physical violence or injury;

(b) mental violence;

(c) neglect or negligent treatment;

(d) maltreatment;

(e) exploitation; and

(f) sexual abuse or sexual exploitation

The Act establishes a Child Protection Commission. The Social Welfare Department is mandated to provide services to this commission.  These include maintaining data on child abusers and a helpline for direct complaints, as well as regulating all providers of child protection services in the province. s10.

Child Protection Units at the district level, headed by qualified Child Protection Officers, are required under the Act. The functions of the CPUS include:

(a)receive and register report(s) of alleged child abuse in the Child Protection Referral MIS;

(b)based on a report of alleged child abuse, assess whether the child requires protection under the provisions of this Act;

 (c) pursuant to a formal determination that a child requires protection under this Act, develop and maintain a child protection plan;

(d)in accordance with the child protection plan, refer the child to relevant departments/agencies at the district level (obligatory to comply with requests) for provision of applicable child protective services;

(e) manage reported cases of child abuse, including maintaining a record of reports, monitoring cases and following-up until case closure;

(f) collect, maintain and update child protection case management data;

(g) monitor the application of child protection regulations at the district level

 

  1. The Punjab Destitute and Neglected Children Act 2004

 

This act’s protections are aimed at anyone who may be a destitute and neglected child” which means a child who–

 

(i) is found begging; or

 

(ii) is found without having any home or settled place of abode and without any ostensible means of subsistence; or

 

(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the child; or

 

(iv) lives in brothel or with a prostitute or frequently visits any place being used for the purpose of prostitution or is found to associate with any prostitute or any other person who leads an immoral or depraved life; or

 

(v) is being or is likely to be abused or exploited for immoral or illegal purpose or unconscionable gain; or

 

(vi) is beyond the parental control; or

 

(vii) has lost his parents or one of the parents and has no adequate source of income; or

 

(viii) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence;

 

  • The Act sets up a Child Protection & Welfare Bureau (s5), Child Protection Officers and Units for local areas (s15), a fund, Child Protection Institutions, and Child Protection Court.

 

  • The Child Protection Officer may take custody of a neglected/destitute child and produce him in court within 24 hours (s24). A warrant may also be obtained to search for a child who may be within the ambit of protection (s30).

 

  • Creates offences such as unauthorized custody of children (s34), cruelty to children (s35), employing children for begging (s36), i giving intoxicants to a child (s37), inciting child to bet or borrow (s39), exposure to seduction (s40). All these offences are cognizable and should prompt police officers to investigate. (s42)

 

 

  1. The Sindh Children Act, 1955

 

This is an Act for the development and protection of children in the province of Sindh. These are a few of its salient features:

 

  • Protections for children in the criminal justice system, for example constituting juvenile courts, waiving the appearance of a child in court, rehabilitative mechanisms including remand homes and institutions.

 

  • Under Section 40, police officers and others authorized must bring cases of children found homeless, begging or destitute on the streets before Juvenile Court. The Court is empowered to commit them to a certified school or a person fit for their care.

 

  • Creates offences such as cruelty to children (s48), employing children for begging (s49), giving intoxicants to children (s51), inciting a child to bet or borrow (s53), publication of certain pictures relating to children (s62). All these offences are cognizable and should prompt police officers to investigate.

 

 

VII.     National Commission for Child Welfare and Development

Also, a local body in Pakistan was established in 1991 under the mandate of the Ministry of Health and Social Welfare as an advisory body to the Government of Pakistan on matters related to Children. It’s called National Commission for Child Welfare and Development (NCCWD). In 2011, the mandate fell under the Ministry of Human Rights.  NCCWD is responsible to coordinate, monitor & facilitate implementation of the United Nations’ Convention on the Rights of the Child (UNCRC) and other national/ international obligations. The NCCWD also submits mandatory Periodic Reports on implementation of the UNCRC to the UN Committee on the Rights of the Child, Geneva & other quarters. Their objectives include: To formulate a National Policy for Child Welfare and Development in the Country; suggest amendments and additions to the Constitution and national laws, where feasible so as to bring them into harmony with the United Nations Convention on the Rights of the Child; and assess the impact of the constitutional, legal and administrative provisions having bearing on welfare and development of children and suggest measures to provide full opportunities for their complete growth.

 

3. Laws in Other Countries for Reporting and Investigating Cases of Missing Children

 

  1. India

Overview: India had the same problem as Pakistan regarding the failure of police to lodge FIRs in cases of missing children and to begin investigations. In a landmark decision from 2013, the Supreme Court emphatically directed the police to file FIRs and investigate cases, and placed multiple safeguards to recover missing children including dedicated police officers for juveniles.  Another noteworthy practice in India is the coordination efforts encouraged between NGOs, police and child protection units at every level of government from block to village, city, district and state.

The Supreme Court Case, Bachpan Bachao Andolan

In the Bachpan Bachao Andolan (BBA) v. Union of India & Ors., (2013), the Supreme Court of India underscored the importance of filing timely FIRs in cases of missing children. The court cited to an Office Memorandum of 2012 issued by the Ministry of Home Affairs which defined a missing child as:

“a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”

In the BBA case, the Supreme Court of India makes it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles. It noted that in 3000 cases of missing children in year 2011, only 500 FIRs were filed while the others remained untraced and “mere slips of paper in police stations.”

These are the highlights of the case:

  • Doctrine of presumption of kidnapping or trafficking to apply to all cases of a missing child.
  • FIR to be lodged in all cases of a missing child and investigation to be initiated on the presumption of offence committed.
  • Special Juvenile Police Units to be formed in all districts
  • SOP on missing children to be formulated along with the petitioner BBA.
  • National Legal Services Authority (NALSA) to appoint paralegal volunteers to all police stations to assist in cases concerning children.

 

In a later order from October 2013, the court directed further safeguards for missing children and these include:

  • FIRs filed under Section 154 cognizable cases and investigation to follow and where cases fall under Section 155 (non-cognizable cases) refer the case to the magistrate and continue inquiry.
  • Special Juvenile Officer on duty in the police station to ensure that the directions contained in this Order are duly implemented.
  • Placement of National Legal Services recruited paralegals in police stations to observe how police treat cases of missing children or other offences against children.
  • NALSA directed to explore their own suggestions with child and women protection departments of a computerized network that links information on missing children with state, district, city, and block level child protection units.
  • NALSA to work out coordination between all NGOS to recover and reintegrate missing children.
  • Every found/recovered child must be immediately photographed by the police for purposes of advertisement and to make people aware of the missing child. Photographs of the recovered child should be published in all forms of media.
  • Standard operating procedures should be developed for missing children. According to the court, these should include a protocol amongst High Courts, local police and state legal services for monitoring the case of a missing child.
  • In case a missing child is not recovered within four months from the date of filing of the First Information Report, the matter may be forwarded to the Anti-Human Trafficking Unit in each State.
  • In cases where FIRs were not lodged, they should be lodged within a month of the communication of the decision.
  • Adequate shelter homes for recovered children.

 

See full case at: http://www.bba.org.in/sites/default/files/MissingChildrenJudgement.pdf

Further protections for missing children are in the Constitution of India 1949[2]. These include prohibition of traffic in human beings and forced labour (art 23); prohibition of employment of children in factories, mines or engagement in any hazardous employment (art 24) and obtaining remedies for enforcement of fundamental rights including the right to move the Supreme Court by appropriate proceedings for enforcement of the rights (art 32). The Indian Penal Code 1860, contains sections similar to their counterpart provisions in Pakistan. s340 (wrongful confinement), s345 (Wrongful confinement of person for whose liberation writ has been issued), s362 (abduction), s366B (Importation of girl from foreign country), s368 (wrongfully concealing or keeping in confinement, kidnapped or abducted person), s369. Kidnapping or abducting child under ten years with intent to steal from its person.

Juvenile Justice (Care and Protection of Children) Act 2000 is a statute that provides further safeguards for missing children.  It defines a child in need of care and protection and it includes a missing or a runaway child.  It also sets forth the procedure for such children.

National Commission for Protection of Child Rights (NCPCR) is an Indian governmental commission, established by an Act of Parliament, thus making it a statutory body.  The commission works under the ambit of Ministry of Women and Child Development, a branch of the Government of India. The Commission considers that its mandate is “to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and the UN Convention on the Rights of the Child.

 

  1. Bangladesh

Overview: An achievement in Bangladesh is the SAARC, Plan International and SAIEVAC led effort to prevent and protect children from losing their contact with safe environment. This project aims to use technology to trace missing and trafficked children in three countries – Bangladesh, India, and Nepal. This is definitely something Pakistani government and academia must research and explore for the safety of our very own children. Kidnapping laws here are similar to those in Pakistan.

In other instances, non-governmental organizations have also produced some positive results in regards to reporting missing children. One of the initiatives is a collaboration with a NGO and government bodies. Missing Child Alert (MCA) is a project in coalition with the SAARC Apex body on child protection that is database programme to record the victim’s data, including their name, photo and place of origin with the aim of sharing that data between South Asian nations. It aims to respond to the grave issue of child trafficking and missing children in South Asia. The project is led by Plan International and SAIEVAC (South Asia Initiative to End Violence against Children) with financial support from Post-Code Loterij of the Netherlands. The pilot phase of the project has commenced in July 2012. The project is implemented in Bangladesh, India and Nepal.

 

Dnet is the regional partner of the MCA and the primary objective of Dnet is to design a technology blueprint for  the Missing Child Alert and Response system in Bangladesh and Nepal linked with India that focuses on tracing, rescue, repatriation, rehabilitation and re-integration of missing children. Dnet focuses on Project collaboration with all regional partners including India and Nepal. They have also developed an advanced case management system for rescued victims which allows to expedite cases of repatriation and have designed a blueprint for Missing Child Alert and Response system.

Additional DIG (Organised Crime) of Criminal Investigation Department Shah Alam, urged for a system that can notify the seven police control rooms, based in the six divisional districts and the capital, and also 600 police stations across the country. MCA would integrate the Police response with their case management system making this process efficient. This would also help curb trafficking outside Bangladesh as there will always be a constant track of missing persons. At this time there is no local legislation on following a special procedure for finding missing persons but as advised by the DIG, they should at least file a missing persons report at the local police station and follow up on their investigation.

 

III.       United Kingdom:

Overview: UK police have a special protocol for missing and runaway children. They require that local authority set up a Local Safeguarding Children Board and work in coordination with police, health and education. In addition, there are mechanisms to identify children who are at risk of going missing or are runaway.

 

  • Under the UK law, there is protocol for local police to follow in regards to marking someone missing. This is set by College of Policing, Authorized Professional Practice. Under 2 the word missing has been defined in context with missing people. Since April 2013 police forces have been rolling out new definitions of ‘missing’ and ‘absent’ in relation to children and adults reported as missing to the police. These are: “anyone whose whereabouts cannot be established and where the circumstances are out of character, or the context suggests the person may be subject of crime or at risk of harm to themselves or another; and absent: a person not at a place where they are expected or required to be.”
  • 13 of the Children Act 2004 requires local authorities and other named statutory partners to make arrangements to ensure that their functions are discharged with a view to safeguarding and promoting the welfare of children. This includes planning to prevent children from going missing and to protect them when they do. Local authorities are required to set up a Local Safeguarding Children Board (LSCB) to coordinate the effectiveness of arrangements to safeguard and promote the welfare of children and young people in that area.
  • Additionally, the UK has enacted a Runaway and Missing From Home and Care Protocol (RMFHC Protocol) as a part of the Statutory Guidance on Children who run away or go Missing from Home or Care[3].
  • The key elements that should be described on Intelligence and Prevention in the protocol in the process of agreement include:
  • 1) arrangements for information sharing between the local authority, the police and other agencies 2) arrangements for information sharing between different local authorities when a child runs away to another area 3) details of data to be analysed on a regular basis, arrangements and frequency for data monitoring by LSCB and partners 4) agreed safeguards for runaways and missing children to identify those at risk of significant harm, particularly looking at the length of the missing episode, frequency of running away, risk factors, family history of the child 5) details of preventative approaches to avoid further instances of running away, including the provision of alternative accommodation when appropriate 6) details of work with children, including both those in care and those not in care, so that they understand the risks associated with running away and the support that is available to them.
  • A missing child incident would be prioritised as ‘high risk’ where the risk posed is immediate and there are substantial grounds for believing that the child is in danger through their own vulnerability; or the child may have been the victim of a serious crime; or the risk posed is immediate and there are substantial grounds for believing that the public is in danger. The high-risk category requires the immediate deployment of police resources. Police guidance makes clear that a member of the senior management team or similar command level must be involved in the examination of initial enquiry lines and approval of appropriate staffing levels. Such cases should lead to the appointment of an Investigating Officer and possibly a Senior Investigating Officer and a Police Search Advisor (PolSA). There has to be a media strategy and / or close contact with outside agencies. Family support has to be put in place. The UK Missing Persons Bureau need to be notified of the case immediately. CEOP and local authority children’s services also need to be notified.
  • A missing child incident need to be prioritised as ‘medium risk’ where the risk posed is likely to place the subject in danger or they are a threat to themselves or others. This category requires an active and measured response by police and other agencies in order to trace the missing person and support the person reporting. This involves a proactive investigation and search in accordance with the circumstances to locate the missing child as soon as possible.
  • Where a child is categorised as ‘absent’ within the police definition, the police need to record the details. Review timings and any on-going actions will be agreed as set out in the RMFHC Protocol. The case will remain the subject of constant review, particularly in the light of new information and changes in circumstances.
  • In regard to a child who has run away or is missing from home, the aforementioned statutory guidance lays down the provision for the child to be able to easily access support services, such as helplines or emergency accommodation that can be accessed directly at any time of the day or night. The police have powers to take immediate action to protect a child. Should it be necessary to take the child into police protection, the child must be moved as soon as possible into local authority accommodation. The local authority should consider what type of accommodation is appropriate in each individual case taking into account the age of the child besides other factors. It is important that children are not placed in accommodation that leaves them vulnerable to exploitation or trafficking.
  • In relation to collecting, sharing and analysing data on children who go missing, the Statutory Guidance on Children who Run Away or go Missing from Home or Care underlines early and effective sharing of information between professionals and local agencies as essential for the identification of patterns of behaviour and the relevant data may include times and duration of missing episodes, absence data from schools, etc. This may be analysed to identify areas of concern for an individual child, or to identify ‘hotspots’ of activity in a local area. This helps authorities to identify risks in their area, such as exploitation, gangs or crime related activity that might not be apparent. It also helps identify trends, for example, whether children are going missing from a particular children’s home or other patterns across the local authority. Data and analysis of children who go missing both from home and from care is included in regular reports to council members, especially to the lead member for children’s services and in reports by the local authority to the LSCB.
  • Additionally, the statutory guidance emphasises on local authorities to take measures to ensure a discussion is held, either with the child, their family or both, to offer further support and guidance if the child has run away two or more times. Actions following earlier incidents are to be reviewed and alternative strategies need to be considered in this case. Access to and timeliness of independent return interviews also have to be reviewed. There may be local organisations in the area that can provide repeat runaways with an opportunity to talk about their reasons for running away, and can link runaways and their families with longer-term help if appropriate. These may also be able to provide support to children while they are away from home or care in such circumstances. Local authorities need to work with organisations that provide these services in their area.
  • For children who are looked after by a local authority by reason of a care order, or being accommodated under S. 20 of the Children Act 1989 and are unaccompanied asylum seeking children or other migrant children may be trafficked into the UK and are at high risk of going missing. Unaccompanied migrant or asylum seeking children who go missing immediately after becoming looked after are treated by law enforcement authorities in the UK as potential victims of trafficking. The assessment of need to inform the care plan is particularly critical in these circumstances and has to be done immediately since the window for intervention is very narrow according to the Statutory Guidance on Children who run away or go Missing from Home or Care. The assessment must seek to establish a) relevant details about the child’s background before they came to the UK b) an understanding of the reasons why the child came to the UK c) an analysis of the child’s vulnerability to remaining under the influence of traffickers. In conducting this assessment, it is necessary for the local authority to work in close co-operation with the UK Human Trafficking Centre (UKHTC) and immigration staff familiar with patterns of trafficking into the UK. Immigration staff who specialise in trafficking issues are supposed to able to advise on whether information about the individual child suggests that they fit the profile of a potentially trafficked child. It is essential that the local authority continues to share information with the police and immigration staff, concerning potential crimes against the child, the risk to other children, or other relevant immigration matters. Where it is suspected that a child has been trafficked, they are to be referred by the local authority into the UK’s victim identification framework, the National Referral Mechanism (NRM). Local authorities are recommended to nominate a local professional who can develop specialist knowledge in relation to trafficked children – a ‘local trafficked children lead’ – to act as an adviser to other professionals and the lead professional in cases where the concerns in relation to a child are related to trafficking, states the London Safeguarding Trafficked Children Toolkit 2009[4].
  • In conjunction with the aforementioned law, a local city has enacted the following procedure to keep track of missing persons and recording information. The city in question is Cheshire, which shows how delegated legislation can work hand in hand with local laws. In Cheshire, they make an initial assessment, s22: “On receipt of a missing or absent call an incident record will be created on the NSPIS Command and Control system. The incident will be given the correct opening classification code. It will be necessary for the call taker to determine whether the person is missing or absent and the appropriate level of response. The questions listed in the ‘Pro Forma Questionnaire.” Then the local police go through a string of indicators helping them classify which category this missing report fits in[5].

https://cheshire.police.uk/media/1716/missing-and-absent-persons-procedure.pdf

 

 

  1. USA:

Overview: It is important to note that police are prohibited from waiting before they accept a missing child’s report. Their national database stores information about all missing children.

 

The law prohibits law enforcement agencies from establishing or observing a waiting period before accepting a missing child report. When a child is reported missing, law enforcement may not require the reporter to wait a certain amount of time for the child to return home before taking the report (42 U.S.Code. §§ 5779 and 5780)[6].

Requires law enforcement agencies to enter the child’s information into the FBI’s National Crime Information Center database, known as NCIC, and the state law enforcement system database within 2 hours of receiving the missing child report (42 U.S.C. §5780). The complainant may contact the National Center for Missing & Exploited Children, known as NCMEC, at 1-800-THE-LOST (1-800-843-5678) to verify information whether the information about the child has been entered into NCIC.

Each State reporting under the provisions of (42 U.S.C. §5779) shall ensure that no law enforcement agency within the State establishes or maintains any policy that requires the observance of any waiting period before accepting a missing child or unidentified person report; ensure that no law enforcement agency within the State establishes or maintains any policy that requires the removal of a missing person entry from its State law enforcement system or the National Crime Information Center computer database based solely on the age of the person; provide that each such report and all necessary and available information, which, with respect to each missing child report, shall include the name, date of birth, sex, race, height, weight, and eye and hair color of the child; a recent photograph of the child, if available; the date and location of the last known contact with the child;  and the category under which the child is reported missing; is entered within 2 hours of receipt into the State law enforcement system and the National Crime Information Center computer networks and made available to the Missing Children Information Clearinghouse within the State or other agency designated within the State to receive such reports; and provide that after receiving reports as provided in paragraph (3), the law enforcement agency that entered the report into the National Crime Information Center shall no later than 30 days after the original entry of the record into the State law enforcement system and National Crime Information Center computer networks, verify and update such record with any additional information, including, where available, medical and dental records and a photograph taken during the previous 180 days; institute or assist with appropriate search and investigative procedures; notify the National Center for Missing and Exploited Children of each report received relating to a child reported missing from a foster care family home or child care institution; maintain close liaison with State and local child welfare systems and the National Center for Missing and Exploited Children for the exchange of information and technical assistance in the missing children cases;  and grant permission to the National Crime Information Center Terminal Contractor for the State to update the missing person record in the National Crime Information Center computer networks with additional information learned during the investigation relating to the missing person[7].

 

4. Conclusion / Recommendations

  1. Directive to police to file immediate FIRS in cases of missing children:
  • Where the police are approached in cases of missing children, they should immediately file FIRS and commence investigation on the presumption that one of the cognizable offences listed in the PPC has been committed against the child. The “window of intervention” in these cases is small and any delay in investigation could lead to harm to the child.
  • The range of cognizable offences that necessitate investigation are kidnapping of a child under 14 (364A), procuring a minor girl (S.366-A), kidnapping to commit grievous harm (S.367), kidnapping of a child under 10 (S.369), and trafficking (369A).
  • In addition, these cognizable crimes are available and the police should begin investigation right away under any one of these sections presuming that these have been committed.369, S.365, S.365-A,S.366-B, S.367, S.368, S.371, S.373, S.374.
  • If the police consider, in their reasonable judgment, that a non-cognizable offence has been committed (for example 366 or 370 – kidnapping of a woman, or buying as a slave) they can begin inquiries right after obtaining a court order from a Magistrate.
  • In no circumstance should there be delay in investigation as this could harm and jeopardize the wellbeing of the child, allow the kidnapper to take the child outside the jurisdiction of the police station, permit evidence to be destroyed, witnesses to be interfered with.

 

  1. Areas for Law Reform:
  2. Criminal Law Amendment to make kidnapping sections compatible with regard to the age of juvenility

 

The UN Convention on the Rights of the Child (CRC) defines a child as “every human being below the age of eighteen years under the law applicable to the child, majority is attained earlier.” (Article 1)

In keeping with this definition, we recommend these PPC sections apply to all children under 18.  This would protect kidnapped and missing children as anyone presumed to be around or under that age will be covered by the law, and police can presume these particular cognizable offences have been committed and immediately commence investigation.  It would also make Section 364A and S.369 more compatible with S.366A as all will have the exact same age for child protection in conformity with the age of juvenility in the CRC. It will also make the law more consistent and make kidnapping with various forms of ulterior intent apply to all children.

  • Section 364A of the Pakistan Penal Code, “Whoever kidnaps or abducts any person under the age of fourteen eighteen in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or maybe so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years (cognizable offence).

 

  • 369: Kidnapping or abducting child under ten years with intent to steal from its person: Whoever kidnaps or abducts any child under the age of ten eighteen years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

 

  • 366-A. Procuration of minor girl: Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

 

  1. Amendments in all child protection statutes to include “missing children” in the definition of children at risk/in need of special protection.

 

The Balochistan Child Protection Act 2016 and the Sindh Child Protection Authority Act 2011 do not include missing children in the definition of a child in need of protection. The Khyber Pakhtunkhwa Child Protection and Welfare Act 2010 similarly does not include them in their definition of a child at risk. The Punjab Destitute and Neglected Children Act 2004 suffers the same gap in definition.

We recommend that provincial governments amend the definition to include:

  • children reported to the police or others as missing because their whereabouts are not known to his/her parents or legal guardians regardless of circumstances and causes of disappearance or time elapsed since the child went missing.

The relevant bodies authorized under all the above-mentioned provincial child protection acts to make rules could add a rule that empowers a child protection officer and/or special juvenile officers to ensure immediate investigation of a child reported missing to the police and monitoring and follow-up of that investigation.

 

III.       Best Practices in Other Countries

Some of the best practices in other countries regarding missing children include:

  • Supreme Court decision making presence of police officers dedicated to juveniles, filing of immediate FIRS and investigation mandatory, plus coordination between all levels of child protections units (India)
  • Computerized systems that link all missing children in the country and special protocols to trace missing children (UK, US).
  • Identification of missing children as medium to high risk requiring a comparable degree of police vigilance.
  • Cross border connections in cases of trafficked children (Bangladesh), and effort to collaborate with all relevant departments – health, education, police, and protection systems for runaways as well as kidnapped/trafficked children.(UK).

 

Thus, the following measures can be evaluated and implemented:

  • Network all child protection NGOS, child protection units, and government departments concerned with children. The network must be at the city or village, district, provincial and federal level and is a national issue as kidnapped/missing children could potentially be moved across city lines and provincial borders.
  • Computerized database that can be shared within the network and updated as soon as a missing child is reported to the police or as soon as a child who was missing is recovered.
  • Police officers and paralegals dedicated to the cause of missing children are placed at police stations; they can ensure that police file FIRS immediately
  • Coordination of media, NGOS, and government to publicize cases of missing children.
  • Government and NGO collaboration on research on trends in missing children.

 

[1] http://www.lawsofpakistan.com/wp-content/uploads/2012/03/Cr-P-C.pdf

[2] http://www.constitution.org/cons/india/const.html

[3]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/307867/Statutory_Guidance_-_Missing_from_care__3_.pdf

[4]http://www.justice.gov.il/En/Units/Trafficking/MainDocs/london_safeguarding_trafficked_children_toolkit_january_19th_2009.pdf

[5] https://cheshire.police.uk/media/1716/missing-and-absent-persons-procedure.pdf

[6] https://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap21.htm

[7] http://codes.findlaw.com/us/title-42-the-public-health-and-welfare/42-usc-sect-5780.html