LAWS AND HISTORY

The children’s rights movement has a long history dating back to 1924.

This history has shaped the way we view children’s rights and influenced the current laws and children’s rights policies in Thailand. 

Why we believe a child rights approach is the only way to work with and for children.

195 United Nations member countries have ratified the Convention on the Rights of the Child (CRC). This means that they have committed to developing the laws and child care systems in their country to fulfill the rights of children and standards of care described in the CRC.

Many countries still have a long way to go. The journey involves developing law, building systems and training child care specialists. Success also requires effective implementation and enforcement.

In some countries like Thailand, aspects of the law protecting children are impressive. However there are gaps that both foreigners and Thai nationals operate in without proper over-site. The absence of effective implementation of child protection laws allows private individuals to work with children in any way that they themselves judge to be “good”.

A survey of expats involved with children in Thailand reveals a broad assortment of the weird, the wonderful and the dangerous.

Children’s Rights in Thailand

Thailand joined the United Nations in 1946 and has ratified the 1989 Convention on the Rights of the Child on 27 February 1992.

The Thailand Child Protection Act 2003 currently is the main legislation covering the rights of children in Thailand, a full copy of the Act can be seen here.

  • The current constitution was proclaimed by His Majesty the King Vajiralongkorn on the 6th of April, 2017.
  • Article 32 proclaims the right to have a family along with some other personal rights.
  • Article 71 states that State should strengthen and support the family as the fundamental unit of society.

Although the act has been in place for many years, it is fair to say that it has yet to be fully and equally implemented throughout Thailand.

Thailand has a well-established child protection mechanism with a Baan Pak Dek (crises shelter for children and women) in every one of the 76 provinces and also special zones of Bangkok and Pattaya.

Thailand Child Protection Act 2003 – Sections Relevant to Alternative Care

Article 82

Any person who establishes or operates a nursery, remand home, welfare centre, safety protection centre or development and rehabilitation centre under Article 52 without a permit, or when the permit has expired or has been revoked shall be liable to a term of imprisonment not exceeding one month, or a fine not exceeding 10,000 Baht, or both.

If the person who violated the provisions under paragraph one applies for a permit or renewal of permit within the period specified by a competent official, the criminal proceedings against that person shall be halted.

Article 83

The owner or guardian of safety of a nursery, remand home, welfare centre, safety protection centre or development and rehabilitation centre who fails to comply with this Act or the ministerial regulations or regulations issued in pursuance of this Act shall be liable to a term of imprisonment not exceeding one month, or a fine not exceeding 10,000 Baht, or both.

If the person who violated the provisions under paragraph 1 has taken action to rectify or comply with the recommendations of the competent official or person having the duty to protect the child’s safety under Article 24, the criminal proceedings against that person shall be halted.

Article 84

Any person acting as a guardian of safety of a nursery, remand home, welfare centre, safety protection centre and development and rehabilitation centre without appointment in accordance with Article 55 shall be liable to a term of imprisonment not exceeding one month, or a fine not exceeding 10,000 Baht, or both.

Chapter 6: ARTICLE 51-62

Nursery, Remand Home, Welfare Centre, Safety Protection Centre and Development and Rehabilitation Centre

Article 51 The Permanent Secretary has the power to establish a nursery, remand home, welfare centre, safety protection centre and development and rehabilitation centre throughout the Kingdom and the Provincial Governor has the power to establish a nursery, remand home, welfare centre, safety protection centre and development and rehabilitation centre within his or her respective province.

Other government agencies, in additions to those duties specified under this Act, may establish and operate a nursery only by notifying the Permanent Secretary or the Provincial Governor, as the case may be, who shall advise or support such establishment and operation thereof.

Article 52 Under the provisions of Article 51, any person wishing to establish a nursery, remand home, welfare centre, safety protection centre and development and rehabilitation centre shall apply for a license to the Permanent Secretary or the Provincial Governor, as the case may be.

The application for licence, issuance of licence, application for renewal of licence, granting of permission to renew licence, application for temporary licence replacing a lost, destroyed or damaged licence, granting of temporary license, and revocation of licence shall follow the criteria, guidelines and conditions stipulated in the ministerial regulations, and a fee shall be charged at the rate specified in the ministerial regulations.

Article 53 The Permanent Secretary, Provincial Governor, the Committee, the Bangkok Metropolitan Child Protection Committee, and the Provincial Child Protection Committee shall supervise, promote and support the operation of a nursery, remand home, welfare centre, safety protection centre and development and rehabilitation centre in their responsible area.

Article 54 A remand home, welfare centre, safety protection centre and development and rehabilitation centre shall not be operated on a profit seeking, commercialised basis and shall be supervised and administered by the guardian of safety. The operation of such places under paragraph one shall comply with the regulations prescribed by the Permanent Secretary.

Article 55 The Permanent Secretary and the Provincial Governor shall have the power to appoint or remove the guardian of safety of a remand home, welfare centre, safety protection centre and development and rehabilitation centre in accordance with criteria, guidelines and conditions set forth in the ministerial regulations.

Article 56 A guardian of safety of a remand home has the authority and duties as follows:
1) To take into custody a child in need of welfare assistance or safety protection for the purpose of tracing and observing the child and the child’s family, and making judgements in determining appropriate measures for providing welfare assistance or safety protection to each individual child; if necessary, the guardian may take the child under temporary guardianship for a period not exceeding 3 months;
2) To trace and observe in connection with the age, background, behaviour, intelligence, education and control, health, state of mind, habits, occupation and status of the child in need of welfare assistance and safety protection, as well as those of the child’s guardian or the person with which the child lives, including all of the circumstances and environment surrounding the child and the situation and conditions which caused the child to be in the circumstances warranting welfare assistance or safety protection, in order to report to the agencies concerned;
3) To arrange for physical and mental health examination, as well as proceeding with the treatment of the child under care and guardianship;
4) To arrange for appropriate and hygienic accommodation, sleeping place and clothing, as well as nutritious and sufficient meals for the child under care and guardianship;
5) To arrange for education, sports and recreational activities to be provided to the child under care and guardianship with due consideration to the age and condition of each individual child;
6) To send the child, who has followed the procedures under clauses 1) and 2), to a welfare centre, development and rehabilitation centre, school or any other place which has welfare assistance or protection of the child’s safety as its objective, paying due regard to the age and condition of each individual child;
7) To hand over the child to the child’s guardian, or a person consenting to, and suitable to be, the child’s guardian, and if deemed appropriate, to submit a request to the Permanent Secretary or Provincial Governor, as the case may be, for the appointment of a safety protector under Article 48;
8) To give advice, make recommendations and provide assistance to the child’s guardian, in those cases where the child is deemed in need welfare assistance or safety protection. A guardian of safety of a remand home must first undertake to facilitate the return of the child to his or her guardian; whereas the arrangement for the transfer of the child to a welfare centre, safety protection centre or development and rehabilitation centre shall be adopted only as the last resort.

Article 57 A licence holder and guardian of safety of a welfare centre and safety protection centre established in accordance with this Act or other laws shall ensure that every child in need of welfare assistance or safety protection is admitted to the centre.

Article 58 A guardian of safety of a welfare centre has the authority and duties according to Article 56 (1), (2), (3) and (4) and shall have additional authority and duties as follows :
1) To arrange for appropriate education, instruction and occupational training for the children under care and guardianship in a manner suited to each individual child;
2) To provide guidance, counselling and assistance to the child’s guardian;
3) To monitor and follow up on a child who has been discharged from the welfare centre, offering the child advice, guidance and assistance, to ensure that the child will not return to the previous circumstances. The tracing and observation under Article 56 (2) may be waived if the child has been sent from a remand home with a report indicating that such tracing and observation
has already been conducted.

Article 59 A guardian of safety of a safety protection centre has the authority and duties as follows:
1) To take charge of, supervise and care for a child staying at the safety protection centre;
2) To arrange for the education, instruction and occupational training of a child staying at the safety protection centre;
3) To rectify behaviour, and treat and rehabilitate the physical and mental conditions of a child staying at the safety protection centre;
4) To monitor and follow up on a child who has been discharged from the safety protection centre, offering the child advice, guidance and assistance.

Article 60 A guardian of safety of a development and rehabilitation centre has the authority and duties as follows:
1) To take into custody a child who is deemed in need of physical or mental rehabilitation;
2) To trace and observe in connection with the child and the child’s family for the purpose of determining guidelines for the development and rehabilitation of each individual child;
3) To arrange for appropriate education, control, treatment, guidance and physical and mental rehabilitation in a manner suitable to each individual child under custody.

Article 61 An owner, guardian of safety, and staff of a nursery, remand home, welfare centre, safety protection centre and development and rehabilitation centre shall be forbidden to assault, physically or mentally, detain, abandon or impose any other harsh measures of punishment on any child under care and guardianship, except where such acts are reasonably applied for disciplinary purposes in accordance with the regulations specified by the Minister.

Article 62 In performing the duties under this Act or as assigned by the Permanent Secretary or the Provincial Governor, a guardian of safety shall be an official under the Penal Code.

History of Children’s Rights

Eglantyne Jebb (1876 – 1928) know as the White Flame, was a young English woman who started the Save the Children Fund in 1919 to feed starving children in Germany and Austria.

By 1924 she had not only written the Declaration of the Rights of the Child but also had the declaration adopted by the league of nations in Geneva.

The Declaration of the Rights of the Child

  1. The child must be given the means requisite for its normal development, both materially and spiritually.
  2. The child must be the first to receive relief in times of distress.
  3. The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation.
  4. The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men.

Eglantyne Jebb, adopted by the League of Nations in 1924.

The Second World War ended in 1945 and the League of Nations was replaced by the United Nations, tasked with building a lasting peace between all nations.

Thailand joined the United Nations on 16th December 1946. Of the countries now recognized as the ASEAN community, only the Philippines has a longer history with the UN having joined in 1945.

Recognizing the additional care and protection that children need, in 1959 the United Nations further developed the 1924 Declaration of the Rights of the Child.

 

The 10 core principles of the 1959 Declaration of the Rights of the Child

  1. The right to equality, without distinction on account of race, religion or national origin.
  2. The right to special protection for the child’s physical, mental and social development.
  3. The right to a name and a nationality.
  4. The right to adequate nutrition, housing and medical services.
  5. The right to special education and treatment when a child is physically or mentally handicapped.
  6. The right to understanding and love by parents and society.
  7. The right to recreational activities and free education.
  8. The right to be among the first to receive relief in all circumstances.
  9. The right to protection against all forms of neglect, cruelty and exploitation.
  10. The right to be brought up in a spirit of understanding, tolerance, friendship among peoples, and universal brotherhood.
Read More History

The declaration was signed by all 78 members of the United Nations in 1959. Although the declaration still lacked a clear definition of a “child”, it was a big step forward in terms of recognising the importance of children’s individual rights. Within the ASEAN countries, Brunei, Singapore and Vietnam had not yet joined the United Nations when the 1959 declaration was signed.

On 20th November 1989 the Convention on the Rights of the Child was born, it was the 30th anniversary of the 1959 Declaration of the Rights of the Child.

Today all 196 member states of the United Nations are committed to the vision of the CRC, except the USA. Although signing the CRC in 1989 the USA has not yet been able to ratify it (agree a plan of action to achieve the vision in the convention). Reasons for this include the strong autonomy that individual states hold in the USA meaning that in effect every state would need to agree separately to follow the CRC. Some of the deeply conservative Christian groups in the USA also find fault with the concept of individual children having rights beyond the realm of their parents.

However it must be remembered that all countries are progressing towards full implementation of the CRC at different rates. Although the USA has not ratified the CRC, child care standards are generally very high when compared to the full spectrum of care services through all 196 countries within the UN.

In 1991 the Committee on the Rights of the Child was formed. Its 18 members were voted for by the countries party to the CRC and they serve for four years. The 195 member states that have ratified the CRC provide regular reports to the committee on their progress towards its implementation.

The committee is in a position to offer advice and encouragement to nations and also to suggest amendments or additional protocols to the CRC where gaps are revealed.

Thailand was represented on the committee for the term of 2008-2012 by Khun Sanphasit Koompraphant.

From the outset of the Committee on the Rights of the Child, the situation of children deprived of parental care has been the subject of “constant and serious concern”. Specifically the committee talked about:

  1. The large number of children coming into alternative care in many countries, too often essentially due to their family’s material poverty.
  2. The conditions under which that care is provided
  3. The low priority that may be afforded to these children who, lacking the primary protection normally provided by parents, are particularly vulnerable.

It became clear that a large gap exists between the vision of the CRC and the reality on the ground in many countries especially for children in, or at risk of entering, alternative care. In 2004 the committee gave full backing to the development of the Guidelines for the Alternative Care of Children.

The guidelines were accepted by all governments in 2009. Although not legally binding, the guidelines are now used in the monitoring of progress reports made to the committee by all of the 195 nations that have ratified the CRC.

The committee added a comprehensive handbook in 2012. “Moving Forward, Implementing the Guidelines for the Alternative Care of Children” is a practical tool enabling all involved to understand the core principles of the guidelines and sharing examples of how those core principles have been successfully implemented in some countries.

“There is a growing recognition among Member States of the need to act. Several countries have taken steps to strengthen national laws, and have adopted care reform strategies focused on prevention, taking children out of institutions, and reunifying separated families. But we must do more. The Report [of the Secretary General on the Rights of the Child] calls for the end of institutionalizing children, investing more in child protection and welfare, social services, and family-based care in the community, and improving data collection and reporting systems to know exactly where to target our efforts.”

– Charlotte Petri Gornitzka, UNICEF Deputy Executive Director The Third Committee of the 74th Session of the General Assembly

On the 18th of December 2019, the United Nations General Assembly (UNGA) adopted by consensus its first ever Resolution on the Rights of the Child focused on the theme of children without parental care . For the first time in its history, the UNGA called on its 193 Member States to take concrete action to implement the international commitments they have made to protect the human rights of children without parental care, including children in alternative care, under the Convention on the Rights of the Child , the Convention on the Rights of Persons with Disabilities and international guidelines, such as the Guidelines for the Alternative Care of Children . Particularly groundbreaking in this resolution, the UNGA:

Resolution on the Rights of the Child focused on the theme of children without parental care summary.
  • Expresses deep concern on the potential harm of institutionalization and institutional care to children’s growth and development, urging States to take action to progressively replace it with quality alternative care, including by redirecting resources to family and community-based care services;
  • Urges States to adopt and enforce laws, policies, services and programmes, and budget allocations to address the root causes of unnecessary separation and ensure children are cared for effectively by their own families and communities, including through child and gender sensitive social protection systems, targeted cash transfers, access to basic services, high quality education and affordable and accessible child care and health services;
  • Calls on States to develop and strengthen inclusive and responsive family-oriented policies and programmes for poverty reduction, also designed to promote and strengthen parents’ ability to care for their children, and to confront family poverty and social exclusion;
  • Reaffirms that every effort should be directed to enabling children to remain or swiftly return to the care of their parents or when appropriate close family members, and that where alternative care is necessary, family and community-based care should be promoted over placement in institutions;
  • Urges States to strengthen child welfare and child protection systems and improve care reforms efforts, including increased multisectoral collaboration with health, education and justice sectors, and active coordination among all relevant authorities, improved cross-border systems and improved capacity building;
  • Calls on States to strengthen the regulatory system and put in place rigorous ‘gatekeeping” procedures to ensure alternative care is only used when clearly necessary and in an appropriate manner, and that registration, licensing and other oversight mechanisms are in place to guarantee the quality of alternative care and that children’s placements are regularly reviewed;
  • Urges States to ensure the availability of a comprehensive range of quality accessible and disability-inclusive alternative care options in line with the CRC, CRPD, and taking into account the Guidelines; prioritising quality alternative care options over institutionalization, including by adopting policies, strategies and comprehensive plans of action, and implementing relevant reforms;
  • Underlines the importance of improving data collection, information management and reporting systems related to children without parental care in all settings and situations in order to close existing data gaps and develop global and national baselines;
  • Reaffirms States’ responsibility to protect the human rights of children in alternative care, including by protecting them against all forms of violence and abuse in all care settings;
  • Calls on States to take appropriate measures to prevent and combat the trafficking and exploitation of children in care facilities, and to take appropriate measures to prevent and address the harms related to orphanage volunteering, including in the context of tourism.
  • The resolution also contains important language reinforcing international commitments made on specific aspects of children’s care, in particular, the UNGA:
  • Reaffirms that States must ensure children with disabilities have equal rights with respect to family life, including by providing early and comprehensive information, services and support to them and their families to prevent concealment, abandonment, neglect, discrimination and segregation, and by undertaking every effort, where the immediate family is unable to care for a child with disabilities, to provide quality alternative care within the wider family, and failing that, within the community in a family setting;
  • Calls on States to ensure adolescents and young people leaving alternative care receive appropriate support in preparing for the transition to independent living, including through access to employment, education, training, housing and psychological support;
  • Reaffirms the importance of adequate and systematic training for all professional groups and staffs working with and for children, including children without parental care;
  • Underlines the particular need for multi-disciplinary collaboration and coordination between a range of actors and sectors, including across health, education and justice to ensure all decisions, initiatives and approaches related to children without parental care are made on a case by case basis through a judicial, administrative or other adequate and recognized procedure and by suitably qualified professionals, taking into account the best interests of the child;
  • Calls on States to take specific measures to prevent and respond to the separation of children from their families in humanitarian contexts, including by giving priority to family tracing and family reunification and reintegration;
  • Reaffirms that unaccompanied and separated children should be protected at all stages of migration through the establishment of specialized procedures for their identification, referral, care and family reunification, and to ensure their access to health-care services, education, and legal assistance.
  • An unprecedented coalition of over 255 organizations, networks, and agencies working at local, national, regional and global levels across all regions came together over the last 12 months to develop and advocate for a comprehensive set of Key Recommendations . This global movement reflects the reality that reforms of child care and protection systems are taking place  in all regions of the world , supported by an ever growing partnership between governments, international organizations, donors, and civil society actors, including faith based organisations, and disability rights organisations. Many of the recommendations made by the coalition are reflected in the text of the resolution adopted today but some are sorely missing. This includes the critical importance of participation by children and their families , not only in the day-to-day decisions that affect them individually, but also in informing and evaluating the system reforms and interventions that are being made to support them more effectively and appropriately.
  • As we celebrate the adoption of this groundbreaking resolution, we also recognize that the work has only just begun, and our focus is turning to the implementation of these important commitments. It is through these collaborations, through the growing partnerships and commitments at all levels to engage, learn, share, innovate together that better systems of care and protection for children will emerge over the next decade.

Learn more about Alternative Care in Thailand

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