Study On The Right Of The Child To Freedom From Neglect

Child neglect is one of the most prevalent,widespread,and impactful types of child injury,a global public health issue with lifelong consequences,and a child rights protection issue that falls under the study of human rights jurisprudence.Freedom from neglect is a right that children should enjoy,as explicitly stated in the UN Convention on the Child’s Rights.Neglect is both a cause and a consequence of violations of children’s rights.Compared to the other three internationally recognized types of child harm(physical,emotional,and sexual abuse),the content of child neglect and its place in the child protection system is exceptional:Firstly,neglect is a multidimensional phenomenon with a heterogeneous structure and therefore has multiple manifestations,which also determines that the right of the child to be free from neglect embraces multiple interests and is essentially a "bundle of rights";Secondly,child neglect is in the middle of the structural model of child ‘harm-protection’,where neglect is a form of child harm and freedom from neglect is the minimum requirement of the child’s positive duty to protect,and largely determines the bottom line and end state of child protection.“Freedom from neglect” is a human right to which children are entitled as a vulnerable group and a positive law right granted to children under the UN Convention on the Child’s Rights.Currently,the international community and many countries have adopted legislation to provide a normative basis for the identification and intervention of child neglect to guarantee the realization of the child’s right to be free from neglect.Research on child neglect in China has started late and progressed slowly and is mainly focused on medicine,psychology,and education,with relatively little involvement in the field of law.Although there are no official statistics on child neglect in Chinese mainland,it is easy to see from the empirical studies done by scholars nationwide since around 2000 and the frequently reported child injuries that the situation of child neglect in China is not optimistic,especially for some particular groups of children,and has even reached a severe level.National and international research has repeatedly demonstrated that neglect can lead to lifelong health,emotional and relationship problems in children and that the consequences of neglect,mainly when it occurs early in life,are more severe,with damage that isn’t easy to recover from and can be passed on from generation to generation.Children who are neglected alone are more likely to develop cognitive,emotional,and behavioral abnormalities than children who are abused alone or neglected and abused at the same time.In addition,neglect can lead to other types of harm to children and child delinquency,resulting in highly high social governance costs.As ISPCAN argues,child neglect requires a multidisciplinary effort across the legal,medical,and mental health sectors.The current positive law system in China is basically in a legislative gap about the regulation of child neglect.The existing superior rights and underwriting provisions can hardly protect children from decay.Still,these provisions can serve as the basis for accommodating the right of children to be free from neglect in our current legal system.In addition,the experience of child neglect protection practice abroad shows that simply regulating neglect as a type of child harm without integrating a rights-based perspective usually results in the placement of the child in a new environment under the neglected process rather than establishing standards of protection for the child’s rights,which is likely to lead to secondary harm to the child.Accordingly,this article intends to examine the issue of child neglect from a rights-based perspective.It is dedicated to the theoretical and normative study of the child’s right to be free from decay.Emphasize that children are not just objects of protection in the context of neglect but subjects of ownership and that all interventions should be directed towards this goal.An examination of the phenomenon,concept,and rights of child neglect as a basis for establishing and realizing the right of the child to be free from decay.It is hoped that the construction of this right will provide a systematic approach to protecting children.It will improve the fragmentation,fragmentation,and weakness of the safety of children’s rights while protecting them from neglect.This study focuses on four areas: the foundational scope of the child’s right to be free from neglect,the justification analysis of the request,the construction of the right,and the guarantee of the right.The full text is divided into five chapters,except the introduction and concluding remarks.Chapter 1 is a historical retracing of the formation of the child’s right to be free from neglect.Although the emergence of child neglect as a right is relatively recent,it has always been associated with children as a social phenomenon.From phenomenon to the right,from’discovered’ to ’pinpointed,’ the right of the child to be free from neglect has taken a long time to develop.In terms of child neglect as a phenomenon,Western societies have evolved from neglect of groups of children as a whole to neglect centered on the neglect of care,to neglect in which the needs of the individual are not met.This process has been accompanied by the child protection movement and the awakening of awareness of children’s rights.Unlike child neglect in the West,our country has a late understanding of child neglect and lacks direct institutional regulation,but through various laws and policies on child protection,conclusions can be drawn from the side.Similar to child neglect in the West,the characteristics of child neglect in my country also change with the change of children’s ideas and status,and it has experienced the development process from subjective neglect to neglect of individual needs.In the case of child neglect as a right,the most direct normative basis is article 19 of the United Nations Convention on the Child’s Rights,which provides for the child’s right to be protected from all forms of violence.Of course,as a right,child neglect does not happen overnight and can find its source and complement other child rights.In addition,the Committee on the Rights of the Child has placed particular emphasis on a rights-based approach to promote a paradigm shift in child protection,which coincides with the affirmation of the child’s right to freedom from neglect.Chapter 2 defines the foundational scope of the child’s right to be free from neglect.The area covers the concept,types,characteristics,and harmful consequences of child neglect,which are not directly related to the right of the child to be free from neglect but are fundamental to the study of the right of the child to be free from neglect and have a profound impact on the realization of the request.Firstly,the vagueness of the concept of child neglect is the major constraint in the light of the experience of extra-territorial safeguarding of the right of children to be free from neglect.The development and definition of the conceptualization of child neglect involve three controversial aspects: ’perspective,’ ’scope,’and ’subject,’ and no consensus has yet been reached.Each country defines it differently in its domestic law,taking into account its circumstances.Secondly,there is a consensus on the types of child neglect,with the mainstream view including four subtypes: physical,psychological,medical,and educational neglect,and in some countries,’abandonment’ is also included in the law.Thirdly,in terms of the characteristics of child neglect,the person obliged to protect children from neglect is a specific subject,i.e.,they must have the particular definition of a subject who is compelled to act as a result of a statutory,conventional,or previous act.The subjective aspect is negligence,and the condition of "being able to do something but not doing it" is met.Fourthly,the complexity of child neglect is also closely related to the diversity of factors that influence it.It includes both individual elements and factors such as family and social culture.Finally,the effects of child neglect on children are far-reaching and long-lasting,with most consequences being lingering and lasting,except for the more immediate implications of episodic harm.Psychological research has shown that many children neglected in childhood take a lifetime to heal.Chapter 3 analyzes the justification for the child’s right to be free from neglect.Although the child’s right to be free from neglect is well established in documents with the force of international law,it still lacks a clear normative basis in the domestic jurisprudence and never even appears explicitly in official documents.For domestic jurisprudence,it is inevitable to be suspicious when faced with an "emerging" right.This article analyses the right in terms of reasonableness,legality,and feasibility.Firstly,the concept of justification of rights implies criteria for them to become moral rights,analyzed in four main directions: human dignity,the value of justice,the theory of vulnerability,and the ethics of care.Secondly,the existence of a legal right depends primarily on whether it is provided for by a specific rule in the legal system,and "the determination of a derivative right relies on the method of presumption of a right to detect it.” The child’s right to be protected from neglect,as a subordinate right to the freedom of the child to be protected,is legitimated by the presumption of ownership,which is derived from the underlying rights,related obligations,and legal principles.Finally,as " rights can never exceed the economic structure of a society and the cultural development of that society as conditioned by that structure,” this paper analyses the feasibility of legislation in terms of its costs and benefits to ensure that the right of the child to be free from neglect is established in domestic law.Chapter 4 is a comprehensive presentation of the child’s right to be free from neglect.It is mainly concerned with the structure of the child’s right to be free from neglect,the attributes of the right,and the boundaries of its exercise.Firstly,the design of the child’s right to be free from neglect shows that the subject of the right is the "child,” which is synonymous with the term "minor" in our domestic law.In addition,given the complexity of the right of the child to be free from neglect,the subject of the request has been defined in a more detailed manner,using the knowledge of developmental psychology;the object of the right of the child to be free from neglect is the personality interest inherent in the care of the child,and the content of the right of the child to be free from neglect refers to the relationship of rights and obligations between the subjects of care.The content of the request often competes with the child’s rights to life,health,and education,and the assertion and application of this right are more about its specificity.In specific cases,it usually needs to be understood and applied in the context of the child’s other fundamental rights.Secondly,in terms of the nature of the request,the right of the child to be free from neglect is a comprehensive right that has both public and private law attributes and has also been identified as a social right.Finally,the boundaries of the child’s right to be free from neglect are determined in discernment with other rights.This includes,in particular,an analysis of it in comparison with the right to guardianship and the child’s right to protection,as well as a balancing of the rights that may conflict in its exercise.Chapter 5 analyzes the realization of the child’s right to be free from neglect and remedies.The legitimacy of interest claims and the clarity of the ownership structure cannot and should not replace the transformation of abstract values into a legal system;only when they are confirmed by law can rights be stable and reliable.This chapter focuses on the rule of law that safeguards children’s right to be free from neglect and uses a comparative study approach to analyze three aspects: legislative,administrative and judicial.Specifically,about the legislative protection of the right of the child to be free from neglect,a summary of overseas legislative models and a review of the current legislative situation in China lead to the conclusion that it is appropriate to adopt a comprehensive legislative approach under the concept of "cooperation" in China’s legislation.In terms of administrative safeguards,through a theoretical analysis of the legitimacy of state intervention in child neglect and an analysis of the experience of administrative safeguards in overseas countries,the idea of safeguards based on the perfection of prevention and intervention mechanisms is derived in China.Finally,in terms of judicial guarantees,the analysis of the justiciability of the child’s right to be free from neglect and the study of the experience of judicial guarantees in extraterritorial jurisdictions lead to the direction of contracts based on judicial amicability and multiple remedies in China.