DOMESTIC VIOLENCE AND ITS EFFECT ON CHILDREN Children are a precious commodity. They are our future and, therefore, need protection, so that they can make a better world when they become adults. However, something is certainly not right in the fabric of our so called ‘society’, as statistics in most countries around the world reveal that there is a continuous rise in domestic violence in homes and that the victims are mostly children. We read of children being brutally beaten to death. We see children burnt. We hear of children being constantly abducted and trafficked. There is a rise in the numbers of children being raped, sodomised and sexually abused. We witness children being forced to earn a living instead of being sent to school. Our children are often imprisoned due to lack of legal representation. We know of children being deliberately maimed and made to beg on the streets to support syndicates. We observe children being ostracised and humiliated because they display ‘unnatural’ tendencies, being too effeminate or too ‘male’. Children are still subjected to corporal punishment. Young girls are kidnapped and forced into prostitution. The list goes on and the question arises: How does one protect these innocent victims and reduce the statistics of violence against children? Malaysia acknowledges that children need protection from domestic violence. Our government realises that the incidence of domestic violence is on the rise and that children are the victims as statistics have shown. Malaysia is a unique multi-racial, multi-religious and multi-cultural society. Our government has the formidable task of taking into account all these differences in our society and of then drawing up national policies to protect our children. One such example is the National Child Protection Policy (NCPP), drawn up in 2009 to safeguard the welfare of children as Malaysia develops. Malaysia also ratified, with certain reservations, the Convention on the Rights of Children (CRC) in 2009. The government, through its Ministry of Women, Family and Community Development, is constantly attempting to introduce and improve realistic programmes to address the shortcomings in the system, with the ultimate object of protecting and giving children the right to be heard and the hope of a bright future. There are plans to develop a standardised training module on child protection and a screening system for persons who work directly with children. Despite these policies being put in place, children continue to be subjected to all sorts of abuse and the numbers are still rising. It is not difficult to understand why. Children depend on adults to protect them. They have no voice of their own. They are dependent on adults for a living and education. Therefore, as long as these children are not protected from the adult perpetrators of violence, the cycle of violence will continue and, when these children become adults, they too will become perpetrators of violence, as they do not know any better. There is a need for us to promote, communicate and deliver our commitment to listen to children. In Malaysia many cases of domestic violence, sexual abuse, rape, sodomy and child pregnancy go unreported. There is a reluctance to report these cases because these are taboo subjects in our conservative society. Children suffer in silence. Children are forced to run away from their homes, as they are usually blamed for any embarrassment caused to the family. They are left in the lurch and forced to fend for themselves. Neither continued counselling nor professional help are provided for these children after they become victims. Their lives and future are ruined through no fault of their own. Statistics from studies conducted in 20111 indicate that parents make up 44.3% of child abusers in Malaysia and that mothers are more likely to be the physical abusers than the fathers. In cases of child molestation and sexual abuse on children, statistics clearly indicate that the majority of the perpetrators of such offences are the immediate family members and not outsiders or strangers. Parents have to choose whether to support their spouse or their child. In most cases the child loses out. This is one of the many 1 Hashim, N.H.M, ( Deputy DG, JKM), Situational Analysis of Violence Against Children in Malaysia, 3 rd National Violence Against Children Conference, 9-10 June 2012 2 reasons why it has been reported that each day in Malaysia there are at least fifteen (15) reported cases of children missing from their homes.2 According to police public records3 from January to October 2012, 4,804 people were reported missing out of which the highest percentage were children aged between 13 to 17 and mostly young teenage girls and many from broken homes. There is an urgent need to raise awareness and educate the Malaysian public not to be apathetic, but to come forward and to report cases of suspected domestic abuse. In general, however, Malaysians do not wish to be involved in other people’s affairs, even if they know that children are being abused in their own neighbourhood, for fear of the repercussions, due to the lack of protection against the perpetrators of the crime provided thereafter by the authorities. In line with this, a 24-hour helpline called Talian Nur 15999 was launched in the year 2007, to enable the public to contact the authorities without being directly involved. It was also a line for children to call if there was a need to lodge complaints about abuse, neglect, domestic violence and abandoned babies. The down side to this helpline was that the persons appointed to handle these calls were not sufficiently trained and could only refer the callers to other organisations such as the welfare departments and various NGOs. Therefore, many people would give up calling, as no immediate assistance or solution was provided. To support the helpline, the Malaysian government then launched the Nur Alert system in 2009. However, the Nur Alert System is only applicable to children below the age of 12 who go missing. From 2010, there have been 1,800 children between the ages of 12 to 18 reported missing in Malaysia. In 2010, another non-profit organisation set up Childline Malaysia where children in need of protection, advice and help could call in. They used the same 15999 number as Talian Nur. The operators of Childline Malaysia would only attend to calls from 2 3 15 People go Missing a Day, The Star, 1 February 2013. Retrieved from http://thestar.com.my 15 People go Missing a Day, The Star, 1 February 2013. Retrieved from http://thestar.com.my 3 children, whereas Talian Nur would accept calls from adults who wished to report on cases of abuse of children. Unfortunately again, the shortcoming is that the operators of Childline are not equipped to counsel or assist children who call, and, once again, the calls are being diverted to other organisations and NGOs which provide counselling and protection to children. The break in communication or link between the callers and the source of help is another reason why the system is not workable with the public. However, this has been a positive step forward and more trained personnel are being recruited to handle these calls. The public are prepared to call and lodge complaints as long as their identity is kept anonymous and they are not required to attend court as witnesses or go to the police station to lodge their reports. In fact, since its inception, an average of 100 calls a month have been made to Talian Nur by adults4. There has also been a surge of newborn babies being abandoned. The government has set up a shelter where these babies can be cared for and eventually given up for adoption. However, our legal system is such that these young mothers, if caught, are charged and sentenced to jail. There is no legal protection provided for these young mothers, as they are usually runaways, drug addicts or, in some cases, even students who cannot reveal to anyone that they are pregnant. These young mothers resort to abandoning their new born babies, as they have no other recourse and no organisation to help counsel them. Again, a young pregnant child will generally not seek help from the authorities due to ignorance, fear of the repercussions and/or stigma for their families. In Malaysia, for children who are victims of domestic violence, inter-agency cooperation has been set up between hospitals, police and the social welfare departments, but is available only in the major cities. When children are admitted to government hospitals due to physical abuse, rape, sodomy and/or molestation, onestop centres for the children have been set up in the hospital. While the children are 4 Far-Reaching S.O.S. Line, The Malay Mail, June 2011. Retrieved from: http://www.mmail.com.my/content/74475-farreaching-sos-line 4 admitted to the hospital, the police and the welfare officers undertake their investigation and complete their paper work. The children are assisted by counsellors and child psychiatrists with whom they undergo counselling to help them overcome their trauma. However, there is an urgent need to set up these one-stop centres in all hospitals in every state in Malaysia and for trained personnel to help these child victims of abuse. Before these children are brought to court, it would be ideal if all investigations, including the medical reports and witness statements, were recorded before the child was discharged from the hospital. The police and the courts would ensure that, during the period of hospitalisation and the trial, the child was placed in a safe place. In reality however, investigation takes time. Police need irrefutable evidence before they can arrest and charge the perpetrator in court. In the interim, if the perpetrator is a family member, it is difficult for the authorities such as the doctors, the police and the social welfare officers to separate the child from the perpetrator. The evidence of the child must be strong and corroborated by other witnesses. Taking statements and collecting evidence from children is not a simple matter especially when the victims are young. In Malaysia, the Child Act 2001 was introduced to protect children from all forms of abuse. The Act defines all forms of abuse that children can be subjected to and provides children with legal protection and remedies. However, what has to be urgently addressed is the proper implementation of the Act, because the parties who are to enforce the provisions of the Act are generally ignorant and/or not familiar with the Act. For example, there are provisions in the Act for separate child courts to be set up, including juvenile courts, and there are provisions to show how children are to be protected when they are brought to court. For example, children should not be brought into direct contact with offenders. However, in reality this is not practised diligently, because neither the officers of the court nor the police personnel are trained or aware how to deal with child witnesses. They rely on the magistrates to give directions to them. If the magistrate is inexperienced and not sufficiently trained 5 or sensitised to the needs of these children, the nightmare the child undergoes in court can be worse than that which the child has already undergone. It is, therefore, crucial for those who are appointed to serve in the juvenile and child courts to be aware of the provisions of the Act and to ensure the protection of children. The courts, especially the role of the magistrates, are, in such cases, crucial. Any magistrate in a child court should be proactive and sensitised to the needs of children. They should, in fact, direct the police to obtain all evidence from the child and witnesses, including the medical reports, expeditiously. The magistrate should, pending the trial, give directions for the protection of the child and witnesses from the persons charged with violence. The magistrate should make arrangements for the child to be sent for counselling and, if necessary, given an intermediate and safe place to stay pending the trial. The magistrate can direct that the evidence of the child be taken in camera and can also arrange for video link evidence to be taken during the trial, to prevent the child from coming into physical contact with the perpetrator of violence. The magistrate must ensure that, apart from the social welfare officer or the child’s advocate, only sensitised police personnel and court staff deal directly with the child witness. The magistrate should take steps to make the court an amicable and friendly place, whenever children are brought into court to testify as witnesses. The magistrate is empowered to direct child protection officers and social welfare workers to investigate and provide pertinent information and reports before the trial, to assist the court in making its decision in matters pertaining to children. Despite the introduction of the Child Act 2001 and due to the poor enforcement of the Act, the percentage of offenders being convicted by the courts is dismal. Among the several reasons for this, the main one is the lack of cooperation between the various departments including the social welfare department, the police and the Attorney General’s department. Below are some true cases (names have been altered to protect the identity of the victims) to elaborate why the percentage of convictions of perpetrators of domestic 6 violence, specifically against children in Malaysia, is very low, and why, more often than not, the offenders escape conviction. Case Study of Lydia. Lydia (aged 14) was sent to a government hospital by her teacher when she fainted with severe stomach pains. The medical officer, upon examining Lydia, discovered that she was pregnant and immediately reported it to the police. The teacher contacted Lydia’s mother. It came to light that Lydia had been raped by her stepfather while her mother worked shifts in a factory. The police arrested and charged Lydia’s stepfather. When Lydia was discharged and sent home, she became the target of abuse from her mother, who accused Lydia not only of enticing her husband (who was on remand pending the hearing), but also of depriving the family of an income from the stepfather, as there were younger children to feed. Lydia had, in the meantime, stopped going to school. She did not have the benefit of counselling from the welfare officers after she was discharged from hospital and she had no one to turn to. During her whole nightmare, the police expected Lydia to testify against her stepfather, which was against her mother’s wishes. Her mother refused to cooperate with the police and neither did she allow Lydia to do so. The authorities could not and did not remove Lydia from the custody of her mother, as they were unaware of the plight Lydia was being subjected to daily. Within three months of the incident Lydia ran away from home. Her stepfather was eventually discharged as there was no complainant in his case. Until today the fate of Lydia and her child is unknown. Case Study of Sheena and Veena These girls were aged 5 and 3. Their mother had to leave both her children in the care of her husband, as she had to take care of her mother, who had undergone an operation. The father and his friend, in a drunken stupor and in the absence of the 7 children’s mother, molested and sodomised both the children. It was only when Sheena’s principal contacted the mother and alerted her that something was wrong with Sheena’s conduct in school, as she was seen removing her panties and trying to place small toy objects into her vagina, that the mother suspected something was amiss. Initially, Sheena implicated only the father’s friend. Sheena was immediately taken to hospital and, upon examination, it was found that her hymen was torn. The necessary reports were made and the friend was arrested and charged with molestation, but was released on bail. During this period the mother observed that her husband’s reaction to his daughter’s trauma was strange, as he displayed no emotion at his friend’s conduct. He even implied that Sheena was making things up. The mother then took Sheena away from her home and questioned the child in the presence of a family friend. Sheena then described in detail how her father had molested not only her but also Veena, and how he had made them promise not to implicate him, or else the police would take him away from them. The mother immediately packed her bags and left her home with both the children. In the meantime the friend broke bail and ran away and the police could not proceed with the case. It took the police more than two years to complete their investigation and charge Sheena’s father. However, since then, Sheena and her sister have gone for counselling and rehabilitation in order to eradicate all the bad memories of their trauma. During the two years, the mother filed for a divorce, but the High Court granted the father supervised access to both the children despite the charge of molestation, as he had not been found guilty of the charge. The children are very fearful of their father, but have to suffer his presence for four hours every alternate Sunday in a public place and in the presence of their mother. The criminal case has been postponed for various reasons by the police and by the prosecution and the father, to date, is still seeing his children. The children are afraid to testify against their father and the children are not seeing any counsellors. The mother has had no assistance from the police or from the welfare officers to date. The only information she receives are in letters from the court asking her to attend 8 court or informing her that the case has been postponed, though no one ever advises her of the reasons for the postponement. She is dependent on the prosecution officers to advise her. However, they never communicate with her and, to date, more than three different prosecution officers have appeared in court and sought adjournments for various reasons. Case Study of Shireen & Colin Shireen and her younger brother Colin grew up always witnessing their mother being physically and verbally abused by their father. They were terrified of their father and always obeyed him for fear that they too would be beaten. Their mother was a housewife and financially dependent on their father. One day their mother ran away from home and their father was furious. They were told by their father that their mother had filed for a divorce, which was against God’s will. They were told by their father that when they went to court and were interviewed by the Judge, they were to inform the Judge that they wanted to continue to live with him and that they hated their mother for running away from home. When they saw their mother in court, their instinct was to run and be hugged by her, but they were terrified to do so due to their father’s presence. They were also made aware that their mother would never be able to care for them financially, as she was only a housewife and would not be able to support them. Both Shireen and Colin told the Judge exactly what their father had told them to say, but, in truth, they were both terrified of their father. Although their mother was given access to them on alternate weekends, their father made sure they had to go to church and/or arranged for extra-curricular activities during the week-ends to deprive them of contact with their mother. Shireen developed bone cancer and her leg was amputated. Despite her illness, her father did not relent nor allow her to see her mother, although she yearned to be with her mother. Colin realised how heartless his father was as he grew older. When Shireen eventually succumbed to her illness, his father even tried to stop his mother from attending Shireen’s funeral. 9 After Shireen’s death, his father became a recluse and did not want anything to do with Colin. Not being able to stand the loneliness anymore, Colin ran away from home and went to live with his mother. Colin until today believes that, if there had been some other adult who had spoken to them and helped them, maybe his sister would still be alive. He believes Shireen preferred dying to being separated from her mother and believes that she has finally found some joy after death. Case study of Eileen aged (12) and Eric aged (14) Both children were victims of abuse by their father. Their mother was also a victim and both children grew up hearing the muffled screams and sounds of their mother’s head being hit against the wall. Eric became wiser, as he grew older, and did everything to appease his father, to prevent being abused. One day Eileen’s maternal grandmother saw the bruises on Eileen’s arms and body by accident. The grandmother was appalled and immediately took Eileen to the police station and lodged a police report but pending the charge and hearing of the said matter, Eileen was taken away and placed in a welfare home, instead of being given into temporary custody of the grandmother. The ordeal Eileen went through in the welfare home with the other children was a nightmare but she survived it. Eileen was eventually placed in the custody of her maternal grandmother by the Child Court. However, her father filed an application for custody of his daughter in the High Court and the welfare officers insisted that Eileen went for further counselling with her parents so that she could be reconciled with her family, which she was dead against. Nobody was interested in listening to her wishes, although she repeatedly said that she could finally sleep nights peacefully without hearing her mother’s muffled screams. The grandmother then had the formidable task of defending the civil action filed by Eileen’s father for custody. The High Court Judge finally interviewed Eileen and allowed her to continue to live with her grandmother despite the social welfare officer’s report that Eileen should return home since the father had shown remorse and promised not to be violent with his children. Both Eric and his mother were still fearful of Eileen’s father to testify 10 against him in the civil court and they still live with him. Eric has indicated that once he finishes his studies he will leave home but worries about his mother. It has been reported that as many as 275 million children worldwide are victims of domestic violence5. The devastating effects of domestic violence on Malaysian children are no different from those on other children who suffer the same fate all over the world. Children who are exposed to physical, sexual and psychological violence generally display poor social and interactive skills, possess violent tendencies, are generally aggressive, lean toward delinquent behaviour, and suffer depression or anxiety attacks. Studies also show that children who are victims of domestic violence face many challenges and risks that last throughout their lifetime, and there is a strong likelihood that the cycle will continue with the next generation.6 The impact of domestic violence on children can affect them even when they are in their mother’s womb. If their mother is a victim, studies have shown that it affects the foetal and brain development of the child and it has been linked to hyperactive childhood syndrome (ADHD)7. Even babies lying in cots are extremely sensitive to sounds and their surroundings and are affected by the moods of their caregivers. They thus display irritability, sleep disturbances, startled responses and suffer from minor illnesses like bronchitis. In early childhood, their security comes from their close attachment to their caregivers. If this bond is broken, it leads to disorganised attachments and, if their caregiver, generally the mother, is in constant fear and anxiety, babies grow up in the same confusing circumstances. Their attachment to their caregiver becomes less and it generally results in the child being deprived of quality parenting and being associated with high levels of stress. 5 Behind Closed Doors: The Impact of Domestic Violence on Children, UNICEF, 2006 6 Domestic Violence and its impact on Children’s Development, Department of Community Services’ Fourth Domestic Violence Forum, 24 September 2002 7 Quinlivan, J, 2000, ‘Study of adolescent pregnancy in Western Australia’, The Way Forward, pp.53-58 11 The young child grows up with a sense neither of security nor of attachment and is exposed to anxiety, violence, anger and distress. Generally, studies have also shown that boys are prone to aggression and violence and girls display distress and anxiety attacks. As they grow older they display psychosomatic disorders accompanied by difficulties in their studies, poor academic performance, school phobia, and a lack of social and interactive skills8. As adolescents, they generally try to reason and rationalise the meaning of all the violence they have been exposed to. They tend to try to view things - the meaning and purpose of life, their expectations and future – from their own perspective. Without professional and proper guidance their views may become distorted and may result in them undertaking risks and escape behaviour patterns which, in turn, revert to violent behaviour, which is all they have witnessed and can comprehend9. Therefore, without an understanding of what a child goes through right from the outset in the womb of a mother who is a victim of domestic violence, it would seem to be impossible to eradicate the cycle of violence. Malaysia has to undertake urgent reforms to protect children from the effects of domestic violence. An immediate action plan has to be adopted by the government. The existing Women and Family Ministry must have a separate department to hear the voices of children. An open and systematic approach must be adopted to involve children and young people. The department should be open to ideas and children should be routinely involved. There is also an urgent need to build awareness throughout Malaysian society to protect children from domestic violence. There must be a body set up in every state in Malaysia to record complaints of child abuse. An effective enforcement system, to protect, investigate and rehabilitate children, must be set up immediately. Children 8 Cummings, E M and Davies, P D, 1994, Children and Marital Conflict: The Impact of family dispute and resolution, Guildford Press, New York 9 Domestic Violence and its impact on Children’s Development, Department of Community Services’ Fourth Domestic Violence Forum, 24 September 2002 12 and witnesses must be given shelter and protection from the perpetrators of violence. The victims must be counselled and prepared for trial, once the perpetrator is charged. The cases must be given a priority hearing so that the children do not forget details when they give evidence. Every state in Malaysia must set up a Family and Juvenile court and the staff from the clerical level to the Judges must be trained and sensitised to the needs of children. The police and the prosecution officers must work closely and efficiently on each case, especially with the child and their family members, to ensure that the family and witnesses are protected from the perpetrators. The Advisors in the juvenile courts must be professional and experienced enough to advise the Magistrates. The social welfare workers and the police must work together closely to ensure that children are protected pending trial. There must be cooperation and partnerships set up between the courts, lawyers, voluntary organisations and social welfare officers to protect and provide shelter for children. This is necessary so that the courts can arrange for these children to be protected before the trial. Children and families should also be given the benefit of legal advice and counsellors to see them through the ordeal of a court trial. Legal aid should be provided for those families who cannot afford to appoint lawyers. Lawyers should be permitted to hold a watching brief for the victims and their families. A child witness should be allowed to have the presence of a friend with them at all times, when evidence is given by the child in court. After the case is dealt with, a child should be provided with continued counselling and proper rehabilitation. Proper shelter homes must be set up to enable child victims to be given shelter, protection and counselling pending a trial. Magistrates should ensure that the safety of child victims and witnesses is not in any way compromised. That is the reason why good partnerships between the Judiciary, the Attorney General’s chambers, NGOs and Shelter homes are required to assist these child victims. This cooperation between the various agencies is lacking in Malaysia and there is a lack of proper shelter homes available for children. Children and families are usually lost and uncertain as to what is in store for them when a matter is referred to court. No legal 13 advice is available for the victim and the families, and they are totally dependent on the police personnel, who themselves are not trained to help these victims. In the setting up of all the various bodies, shelter homes and counselling centres, the focus should be on the protection of children. There is an urgent need for the government and the various bodies to ensure that these homes cater to the various needs of children in need of protection. For example, young pregnant teenagers who are runaways from their homes may be housed together and given legal help, medical assistance and provided counselling. Children who are victims of physical, psychological and sexual abuse may be given shelter and housed temporarily with professional and trained personnel to guide them through until they overcome all trauma. One-stop centres can be established to allow these children to meet their families, reconcile and even be rehabilitated if managed well by trained counsellors and social welfare workers. However, it is pertinent to ensure that children who suffer from various forms of abuse are housed separately in different shelter homes as it can have an adverse effect on children if they are exposed to other children who suffer different types of abuse as it could lead to their further deterioration. With Malaysia having ratified the United Nations Convention on the Rights of the Child (1989) with certain reservations in 1995 and having passed the Child Act in 2001, Malaysia is certainly on the right track to protect children from domestic violence. However as highlighted above, it is the actual implementation of the provisions provided under the law that needs to be urgently looked at. There is generally a lackadaisical attitude shown toward the rising statistics of abused children. Until and unless a central Body is set up by the government to heed and hear the voices of these innocent and vulnerable children, nothing will change despite the laws being in place. References. 14 1. Status Report on Children’s Rights in Malaysia by Child Rights Coalition Malaysia, December 2012 2. ‘Some of the biggest victims of domestic violence are the smallest’, Gaye Philips UNICEF Representative to Malaysia, August 2006 3. Child Abuse: The New Law, S. Augustine Paul, [1991] 3 CLJ ixxiii 4. Domestic Violence Act 1994: An End To A Nightmare ?, Nor Aini bte Abdullah, [1995] 1 MLJ xli 5. Effects of Domestic Violence on Children, Jaclyn Kee, Women’s Aid Organisation 6. Domestic Violence and Its Impact on Children’s Development, Department of Community Services New South Wales, 2002 7. Understanding and effectively dealing with Hostile Aggressive parenting (HAP), Family Conflict Resolution Services, Ontario, Canada, 10 May 2004 8. Issues and Factors of Problematic Families in Malaysia, Mohd Taib Dora, Ph.D and Noor Baiduri Abd Halim, International Journal of Humanities and Social Sciences, Vol.1 No.4; April 2011 9. Correlates of Family Strength in Malaysia, Zarinah Arshat and Rozumah Baharudin, European Journal of social Sciences, Volume 10, No.1 ( 2009) 10. Protection of Children, Kamala Bhaie a/p M. G Pillai, 2011 15 The Author :- Vicky Alahakone. (LlB Hons) University of Singapore. Vicky Alahakone is a law graduate from the National University of Singapore. She is currently the sole proprietor of Alahakone & Associates in Kuala Lumpur, Malaysia and specialises in family law. She was formerly the President of “Association of Women Lawyers”, Vice-President of “PS the Children” and “Women’s Aid Organisation” and Honorary Advisor to “Pemalik”, all NGOs set up for the protection of victims of domestic violence. She has written several articles and given talks to lawyers and the public on family law. She has appeared on television and radio talk shows. Currently she is in the family law division with the Malaysian Bar Council. Her ambition is to make the public aware of the urgency for reforms in the field of family law and to protect victims of domestic violence. 16