Child safeguarding and the law of obligations

CHILDREN are claimants of provision, protection and participation rights. Those people to whom rights are claimed by children for their fulfilment are duty-bearers.

Duty bearers are under obligation to ensure that children’s rights are respected, promoted, protected and fulfilled.

The duty bearers are bound by the law of obligations to act in a manner that is consistent with treating children as human beings, not as human becomings.

It is the intent of this opinion article to major on child safeguarding and the law of obligations.

Article 1 of the United Nations Convention on the Rights of the Child (1989) defines a child as every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier.

This understanding of a child was stipulated in the progressive Constitution of Zimbabwe without any ambivalence under section 81(1) which defines a child as every boy and girl under the age of 18.

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Children by their nature have limited experiences and resources. Children’s circumstances make them vulnerable, hence the need for adults to create safe spaces for them.

The creation of safe sites for children is associated with safeguarding. In its generic scope, safeguarding entails anticipatory thinking.

Anticipatory thinking or reasoning implies proactive behaviours and attitudes that endeavour to prevent situations that may lead to child violence, neglect and abuse.

A tooth-pick analysis of safeguarding reveals that it is much cheaper than rehabilitation.

For example, a person who decides to use a condom when having sex is safeguarding himself or herself as compared to one who decides to have unprotected sex.

Unprotected sex may come with sexually transmitted illness that require constant travelling to a health facility for medication and counselling. Safeguarding, therefore, is spending to save.

In the context of the law of obligations, natural and juristic persons have an obligation to safeguard and protect children.

The law of obligations belongs to the domain of private law that regulates the rights and duties arising between persons.

Essentially, it deals with the creation, performance and termination of legal obligations — binding duties that one party (the obligor) is expected to act or refrain from acting, while giving another party (the obligee) the right to demand that performance.

Obligations arise from contracts, statutes, judicial decisions or promises. Children are vulnerable, hence Zimbabwe’s National Orphan Care Policy of 1999 that seeks to ensure that children without parental care grow up in safe, protective and stable family or community-based environments.

The above policy is a tool for safeguarding of vulnerable children like orphans because it makes it mandatory for both natural and juristic persons to ensure that children are protected from neglect, violence and abuse.

Additionally, there is the Children’s Amendment Act Number 8 of 2023 which is also a safeguarding instrument for children with respect to their provision, participation and protection rights.

State and non-State actors must realise that child safeguarding is a collective responsibility.

As a collective responsibility between and among duty- bearers, child safeguarding is anchored on six principles namely empowerment, partnership, accountability, proportionality, prevention and protection.

Empowerment is a principle that is associated with the dissemination and distribution of epistemic values on child safeguarding and involves brain exchange sessions with adults and children so that they appreciate the need to create safe sites for the growth and development of children.

An empowerment exercise may also embrace popularising the law of obligations like the United Nations Convention on the Rights of the Child (1989), the African Charter on the Rights and Welfare of the Child (1990), the Constitution of Zimbabwe (2013), the Children’s Amendment Act Number 8, 2023, the Education Act Chapter 25:04 and policies like the National Disability Policy 2021, the National Orphan Care Policy (1999) and programmes like the Basic Assistance Education Module and the Assistance Medical Treatment Order.

Child safeguarding cannot be successful without partnership between and among duty- bearers like parents, government agencies, private sector and ambassadors of goodwill.

For example, school feeding programmes are a good show of collective efforts between State and non-State actors to promote food and nutrition security.

When duty bearers work in intimate cahoots to provide school feeding programmes, they are already safeguarding children from child labour, child marriage and absenteeism from school.

When parents face grinding poverty, they usually resort to negative coping strategies like the ones cited above to survive.

Accountability is a principal principle of safeguarding that is enhanced by the law of obligations.

Accountability is also a primary human rights principle that is exercised by governments, non-governmental organisations and intergovernmental organisations.

For example, when the World Food Programme distributes cash and social transfers to governments it is helping them to be accountable for their own people and when those governments then give cash and social transfers to their citizens, they are in turn helping them to take responsibility for their children.

Accountability becomes critical in ensuring that parents exercise their parental duties of safeguarding children.

Proportionality as another pillar of safeguarding involves actions by duty-bearers that consider the capacities of children.

For example, a parent who has a child with muscular dystrophy cannot assign back-breaking tasks to the child. Proportionality may also involve the evolving capacities of children.

Prevention as another principle of safeguarding borders on securing safe spaces for children by ensuring that children’s spaces do not pose any threats or risks for them.

For example, a school planning to go out for a sporting activity should ensure that the bus is well-serviced and similarly an organisation intending to recruit new personnel should ensure that police clearance is done first.

Protection is yet another important principle of safeguarding that is reactive in nature to curtail further harm. When a child is raped, what happens thereafter entails protection —engagement with a referral system, removing the child from the unsafe space, medication, prosecution and counselling.

In summation, child safeguarding is dependent upon the law of obligations because children are vulnerable.

•  Nicholas Aribino is a law student at the University of Zimbabwe, writing in own capacity.