Thursday, April 6, 2023

Child Welfare with Chinese Characteristics, Part II: An All-of-Society Effort

Image credit: The Dui Hua Foundation 

Read Part I:  Rights & Responsibilities of Family & Schools

The revised Law of the People’s Republic of China on Protection of Minors (hereafter Protection of Minors Law) came into effect in June 2021, introducing 60 new articles into law. During Dui Hua’s Joint Program on Child Welfare Laws (JPCW) webinar in April 2022, experts from the United States and the Supreme People’s Court of China (SPC) discussed best practices for child protection legislation and the revisions to the Protection of Minors Law across six protection areas. Part I explored the roles of family and schools in child protection. This installment looks at the roles assigned to broader society, online content providers, government, and the judiciary. 

Child Protection Online

China’s regulation of youth gaming online drew international attention, partly because these measures were among the first of their kind. Even countries that balk at online censorship and lack of user privacy have expressed positive attitudes towards China’s efforts to set limits on youth online consumption. 

Much of this has been necessitated by the nation’s high internet penetration. According to the white paper Youth of China in a New Era, at the end of 2020 the number of netizens in China aged 6 to 18 reached 180 million, with the internet available to 94.9 percent of minors nationwide.  

Number of Chinese minors and internet accessibility rate from 2018 to 2020. Source: China Daily, Full Text: Youth of China in the New Era 

Online content regulations focus on reducing internet addiction and cyberbullying and combating sexual exploitation of minors. Article 74 states that internet product and service providers “shall not offer minors products and services that induce addiction,” and Article 75 specifically limits the time minors spend playing online games by minors and also restricts in-game purchases. 

During the JPCW, Li Chen, Deputy Director of the Division of Supervision of Minors’ Protection at the Child Welfare Department of the Ministry of Civil Affairs, stated that the Office of the Central Cyberspace Affairs Commission and the Ministry of Industry and Information Technology have created reporting channels for minor-related issues in order to help standardize reporting mechanisms and response times. The amendments require service providers to take measures to stop cyberbullying, stipulating that the parent or guardian of a minor who is cyberbullied has the right to inform service providers to delete, block, or disconnect links. If service providers are unresponsive to these complaints, the reporting channels should be leveraged to stop the illegal behavior. If found complicit or guilty, the website, individual, or platform may have their operating licenses revoked and face fines of up to one million yuan (roughly $150,000 USD). 

In May 2022, China Daily reported that prosecutors had obtained evidence of 2,584 cyberbullying cases through the compulsory reporting system since 2020 and found 1,604 cases in which staff (those working at schools, hospitals, hotels and in other industries related to minors) failed to report violations despite having compulsory reporting obligations, with 299 individuals being held accountable.  

The United States’ approach is less centralized. According to the Cyberbullying Research Center, 48 states or territories (including Washington, DC) include cyberbullying or electronic harassment in their anti-bullying legislation. While most states have criminal and school sanctions for cyberbullying, these laws vary by state in terms of scope. 

Former Facebook product manager Frances Heughen testifying to Congress on the effects of social media on youth mental health. Image credit: C-Span YouTube account 

In terms of online regulation, the clearest equivalent in the United States would be the Children's Online Privacy Protection Act (COPPA), which was enacted in 1998, entered into force in 2000, and was revised in 2013. COPPA places requirements on websites that are directed to children under 13, with a focus on the collection, use, and disclosure of personal information of their data. Efforts to further revise COPPA have been underway – among the most recent being the “Protecting the Information of our Vulnerable Children and Youth Act” or the “Kids PRIVCY Act” introduced in 2021 by Representative Kathy Castor (R-Fla.) – but it is unclear if these will address issues beyond data collection or those affecting adolescents older than 13. The current law has also come under fire, both for being ineffective and outdated (for example, by the CEO of NGO Common Sense Media) and for being too restrictive (Facebook founder and Meta CEO Mark Zuckerberg famously argued that these restrictions impede early child education). 

In 2019, China instituted restrictions on the amount of time minors could play online games to 90 minutes a day on weekdays, and minors were banned from online gaming from 10 PM to 8 AM. In 2021, online gaming for minors was restricted further to Fridays, weekends, and public holidays for one hour per day. Restrictions like these and limitations on in-game purchases for minors were meant to combat gaming addictions that state officials sometimes refer to as “spiritual opium.”  

While federal implementation of such a law is unlikely, the state of Utah recently approved the Utah Social Media Regulation Act restricting minors’ use of social media in ways that bear some similarities to China’s gaming restrictions. The bill, signed by Governor Cox in March 2023, requires minors to obtain the consent of a guardian before joining social media platforms, marking the most aggressive step yet by state or federal lawmakers to regulate minors’ online behavior. It requires social media platforms to conduct age verification for all Utah residents and provide parents’ access to their teens’ accounts. The law also bans all ads for minors and bans minors from using such sites from 10:30 PM to 6:30 AM. 

Judiciary, Government & the “China Dream” 

Included in the Protection of Minors Law is the establishment of a special juvenile court office. According to the Global Times, citing Vice President of the SPC and juvenile court office director Yang Wanming, the new office is responsible for coordinating, guiding, and managing all juvenile trials and cases.  

In an effort to implement the new office’s mandate, the Protection of Minors Law amendments impose new requirements on public security organs, procuratorates, courts, and judicial administrative departments. These include Article 101 (designating dedicated institutions and appointing dedicated personnel to handle cases involving minors), Article 103 (keeping information about minors confidential), and Articles 110 to 112 (stipulating that adult representatives be present when minors – suspects, victims, or witnesses – are interviewed by judicial organs). Article 112 in particular requires female staff be present when the minor involved is female. 

(Clockwise top left) Judge Wang, Deputy Director Li, Judge Song, and Committee Member Chen during the JPCW. Image credit: The Dui Hua Foundation 

In 2021, Beijing News reported that 24,035 criminal cases involving the infringement upon the rights and interests of minors (including trafficking, child molestation, and forced begging) were tried nationwide between 2016 and 2020. Of those cases, 24,386 offenders received punishment. From 2016 to 2020, more than 1.2 million civil cases involving the upbringing and guardianship of minors were brought to trial. 

The amendments to the Protection of Minors Law speak to an increased awareness by the Supreme People’s Court and the Chinese government that China’s youth face new challenges to their welfare that require novel approaches. These amendments also call on government social service agencies to improve the quality of support received by minors without guardianship. Li Chen, speaking during the JPCW shared that in 2021 13 authorities including the Ministry of Civil Affairs – which houses the Department of Children’s Welfare Affairs – jointly issued Opinions on Further Promoting Improvement, Upgrade and Innovation-Driven Transformation of Child Welfare Institutions to Pursue High-Quality Development. The opinions aimed to improve child welfare institutions at the provincial and municipal levels, and to foster increased integration between the upbringing of children and wraparound services like community-based medical treatment, rehabilitation, education, and social work.  

The Protection of Minors Law differs from the United States' approach to juvenile justice and child welfare, which is defined both by its child-focused, rights-based approach and its federalist orientation that creates variations between states with some federal regulation. By contrast, Beijing’s top-down approach stresses uniformity, setting responsibilities for various stakeholders to ensure compliance at the local level. A lingering question is how far the law will go in holding parents, schools, and other community stakeholders responsible for violations and derogations of child welfare.  

The Youth of China in the New Era white paper paints a rosy picture of the future of child welfare in China:  

In the future, with successive efforts from one generation of young people to the next, China will scale new heights in every dimension, achieving economic, political, cultural, ethical, social, and eco-environmental progress. The Chinese people will enjoy a happier and healthier life and the Chinese nation will become a proud and active member of the community of nations. The great Chinese Dream will eventually become a reality. 

The continued emphasis on rule of law and legal responsibility is evident in the changes to the Protection of Minors Law. What is less clear is if these changes will yield a system that is fair, enforceable, and subject to rule of law in line with that Chinese Dream. 

An All-of-Society Effort

The revised Protection of Minors Law also recognizes broader societal obligations to protect minors. Article 11 grants any organization or individual "the right to discourage, prevent, or report or make an accusation against an act...which is not conducive to the physical or mental health of minors or infringes upon the lawful rights and interests of minors.” These regulations share many of the same principles as those placed on schools and educational institutions. Using sexual or physical abuse as an example, Article 9 of the Opinion on Punishing Sexual Violations of Minors in Accordance of Law (2013) states that anyone with a special responsibility to minors – including supervising, educating, training, or providing medical treatment – has a right and obligation to report to the public security organ or the people's procuratorate if they discover that a minor under their supervision has been abused.  

As with the obligations for schools, the Protection of Minors Law’s view to societal obligations has similarities to CAPTA in the United States; however, by making reporting a legal responsibility through national legislation, China’s law potentially elevates the issue and could help create a uniform process for reporting, response, and resolution. Currently in the United States, each state may or does have different definitions, processes and responses to any reported abuse, of any kind. According to a 2019 report by the Child Welfare Information Gateway, approximately 47 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands designate professions whose members are mandated by law to report child maltreatment. Individuals designated as mandatory reporters are those who typically have frequent contact with children. The circumstances under which a mandatory reporter must make a report, and the process for doing so, vary by state.  

President Obama signs S. 3817, the “CAPTA Reauthorization Act of 2010.” Image credit: Pete Souza / Official White House Photo 

According to China Daily, Chinese procuratorates nationwide prosecuted 60,553 people for crimes against minors in 2021, up 5.7 percent year-on-year, of which 27,851 were for crimes involving sexual assault against minors. The Opinions on Establishing the Compulsory Reporting System for Cases regarding Infringement on Minors (Provisional) is meant to combat this trend by standardizing the compulsory reporting procedure system and specifying the parties considered mandated reporters. The reporting procedures enabled procuratorates, public security organs, and women's federations to set up more than 1,600 "one-stop" interview and rescue areas to shield minor victims from "secondary injuries" or re-traumatization that can occur during the reporting process.  

The revisions to the Protection of Minors Law reflect renewed appreciation for the role of society in protecting minors. The European Union’s Civil Society Roadmap for China notes that the revised Protection of Minors Law makes 13 mentions of “social organizations.” Furthermore, a State Council working group was established to assist civil society organizations focused on child protection in an effort to “achieve full coverage” of child protection by civil society organizations by 2025. 

Achieving such comprehensive child welfare mechanisms remains a challenge for any government. China’s recent developments reflect a top-down, all-of-government mentality that outlines obligations for all stakeholders, from the parent who might have to leave their child with relatives to centralized government bodies. China’s approach speaks to the adage that it “takes a village to raise a child,” and both the JPCW presenters and the legislation suggest that there is room for civil society organizations and grassroots participation. Whether or not these entities have the space and agency to fill these roles remains to be seen. 

The information in both parts of this article was gathered over the past year since the JPCW concluded. Dui Hua continues its dialogue with the SPC in an effort to stay abreast of developments and best practices for juvenile justice reform and the improvement of child welfare systems. These are areas in which countries the world over struggle to identify policies that will meaningfully address the issues facing youth, and dialogue on these issues is a reminder that sound child welfare policies help pave the way for a bright future. 

Tuesday, April 4, 2023

Child Welfare with Chinese Characteristics, Part I: Rights & Responsibilities of Family & Schools

Image credit: The Dui Hua Foundation

On June 1, 2021, the second revision of the Law of the People’s Republic of China on Protection of Minors (hereafter Protection of Minors Law) came into effect. The revision introduced 60 new articles into law. During the Joint Program on Child Welfare Laws (JPCW) webinar hosted by Dui Hua in April 2022, panelists from the Supreme People’s Court of China (SPC) spoke in depth about the revisions to the Protection of Minors Law across six key protection areas: family, school, society, internet, government, and the judiciary.  

The current Protection of Minors Law is the result of decades of revision and reform. First adopted at the 21st Meeting of the Standing Committee of the Seventh National People’s Congress on September 4, 1991, the law was revised in 2006; in 2012, it was amended in accordance with the Decision on Revising the Law of the People's Republic of China on Protection of Minors made by the Standing Committee of the 11th National People’s Congress at the 29th Meeting. In 2020, it was revised at 13th National People’s Congress and came into effect in its current iteration in June 2021.  

The amendments are meant to fill in the gaps of the previous law and safeguard children’s rights to the greatest extent possible. During the JPCW, Li Chen, Deputy Director of the Department of Children’s Welfare Affairs from the Ministry of Civil Affairs (MCA) stated that the revisions to the Protection of Minors Law “explicitly provide that the people’s governments at or above the county level shall establish a coordination mechanism for the protection of as to further consolidate the legal groundwork for the protection of minors (in China).” On April 21, 2022, the State Council Information Office of China issued a white paper titled Youth of China in a New Era. The paper stated that China’s aim is to “create a future of prosperity, health, safety, mutual respect, mutual learning, and shared benefits” for young people all over the world.   

China’s reforms in child welfare and juvenile justice have made strides towards a more comprehensive national policy, and certain aspects of its system stand in contrast to the US child reform and juvenile justice systems which are largely decided at the state level. Yet, the vagueness surrounding the Protection of Minors Law’s scope may open the door to practices that are harsh on parents and guardians, place undue stress on families, or present issues for enforcement.  

Screenshots from the April 7 expert exchange. (Clockwise top left) Host John Kamm, moderator Dr. Jiang Jihai, moderator Judge Len Edwards, Dr. Jiang with members of his panel. Image credit: The Dui Hua Foundation 

This article explores China’s child welfare legislation by drawing on the relevant legislation, white papers issued by Chinese Communist Party organs, and remarks made during Dui Hua’s 2022 JPCW webinar. Part I focuses on the obligations of the family unit and educational institutions in child welfare. Part II looks at the designated roles of online entities, government bodies, the judiciary, and society at large in ensuring the welfare of the child. 

“A Good, Harmonious & Civilized Family Environment” 

Like many legal systems, China’s child welfare laws center the family as the foundation for child protection. During the JPCW, Judge Wang Wei, Deputy Chief Judge of the First Criminal Division of Jiangsu Province High People’s Court, spoke on guardianship revocation cases in China, stating that “raising children is both an ethical and affectionate need and a statutory responsibility.” The Protection of Minors Law contains ten articles that specify the guardian’s responsibility to the child, with emphasis on when and how guardianship can be revoked and possibly restored.  

Issues of guardianship and child neglect have particular relevance in China due to the number of children who are left in the care of grandparents or other relatives in rural villages while their parents work in cities. A combination of factors – among them the household registration system known as hukou, the high cost of living in cities, and limited economic opportunities in rural areas – has resulted in millions of “left behind” children (留守儿童), so-called because they live apart from their parents for much of their childhood.

The cover of an individual household's register, or hukou, booklet. Image credit: Wikimedia Commons / Public Domain 

Article 21, a more recent addition to the Protection of Minors Law, stipulates that children under the age of eight cannot be left unattended or in the care of unsuitable guardianship. Minors under the age of 16 should not be forced out of the home or forced to live without a guardian. Article 15 states that “parents or other guardians of minors shall learn family education, accept guidance on family education, and create a good, harmonious and civilized family environment.” Article 15 also requires any adult family members living in the same house to bear some guardianship responsibilities, which are detailed in Article 16
  1. To provide minors with life, health, safety, and other aspects of protection; 
  2. To care for the physical, psychological and emotional needs of minors; 
  3. To educate and guide minors to abide by the law, to be diligent and thrifty, and to develop a good moral character and behavior habits; 
  4. To conduct safety education for minors to improve their self-protection awareness and ability; 
  5. To respect minors' right to receive education and ensure that school-age minors receive and complete compulsory education in accordance with the law; 
  6. To ensure the time of rest, entertainment, and physical exercise for minors, and guide them to carry out activities beneficial to their physical and mental health; 
  7. To properly manage and protect the property of minors; 
  8. To act for minors to carry out civil legal acts in accordance with law; 
  9. To prevent and stop the bad behaviors and illegal and criminal behaviors of minors and conduct reasonable discipline; and 
  10. Other duties under guardianship that should be performed. 
This list raises the issue of whether parents or guardians can be liable for violating the above responsibilities and whether courts can mandate revocation of guardianship. The broad sweep of section 10 could lead to highly discretionary implementation. 

Articles 22 and 23 address instances when a minor’s parent or guardian is temporarily unable to perform their duties. Article 22 states that the parents or guardians “shall entrust a person with full capacity for performing civil juristic acts to attend minors,” and Article 23 requires the parent or guardian to promptly inform the child’s school and local authorities of the guardianship arrangement. The articles instruct guardians to follow specific reporting mechanisms but provide little guidance about how to determine if a guardian is “temporarily unable to perform duties.” Judge Wang of the Jiangsu Province High People’s Court clarified in his remarks that revocation of guardianship “is only applicable to serious circumstances; judicial power shall only intervene in family relations in a way of minimal damage as the 'last resort.' It should strictly distinguish between guardianship infringement and improper education/slight physical punishment.” 

Article 36 of the Civil Code of China lists three circumstances when guardianship may be revoked either permanently or temporarily. During the JPCW, Judge Wang of Jiangsu Province High People’s Court described them thusly: 

  • the guardian engaged in any act which damages the physical and mental health of the ward, such as sexual assault, sale, abandonment, abuse, and violence against the ward; 
  • the guardian fails to perform the duties of guardianship or is unable to perform such duties but refuses to delegate all or part of the duties to others, i.e., drug use, gambling, or being alcoholic, in jail serving sentences, unable to perform their obligations (as a clause designed to cover all other circumstances); 
  • the guardian is engaged in any other act which infringes upon the lawful rights and interests of the ward, such as instigating or using minors to commit crimes of a severe nature; coercing, deceiving, using minors to beg on the street, and refusing to rectify after censure and education being conducted three times by the public security authority. 

Dr. Jiang Jihai, then-Director of the Juvenile Justice Guidance Division of the Supreme People’s Court of China, stated that the Family Education Promotion Law, which was also revised in 2021, escalated family education from traditional “family affairs” to “state affairs.” The law stipulates that parents bear principal responsibility such that “if they fail to fulfill this responsibility, or do not implement family education correctly, they should bear the corresponding legal responsibility.” 

Safe Schools, Peaceful Campuses 

Beyond the family, the Protection of Minors Law similarly introduced and amended regulations on the responsibility of schools in child protection. The law and its amendments provide a blueprint for child protection in educational institutions by assigning new responsibilities to institutions as well as specifying special-purpose schemes, administrative requirements, work mechanisms, and measures for support and supervision.  

Chinese elementary school students on their way to school in Nanyou. Image credit: Wabbit Wanderer Flickr Account / CC BY-SA 2.0 

Education environments – including kindergartens, special education institutions, primary, secondary, and vocational schools – have mandatory measures to fight campus bullying and sexual misconduct, and they also mandate the inclusion of sex education curriculum. Kiosks and businesses that sell alcohol, cigarettes, or lottery tickets are barred from operating near schools to prevent minors from developing unhealthy habits. To prevent sex trafficking, hotels and short-term accommodation facilities must ask underage guests for their guardians’ contact information and the nature of their relationship with fellow guests. Hotel staff are obligated to call police if they observe suspicious activity involving child sex trafficking. The Ministry of Education (MOE) and other authorities launched pilot programs at schools, organized training workshops, and provided guidance to students, including: 

  • Initiating the “safe school and peaceful campus” campaign;  
  • Launching a national safety education day for primary and secondary school students;  
  • Holding special activities around water safety to prevent drowning accidents;   
  • Launching an anti-bullying initiative for primary and secondary school students;  
  • Implementing measures such as regulating extracurricular sports training and strengthening the physical health management of primary and secondary school students. 

In 2016, China Daily reported on new measures to combat school bullying, including that authorities will hold regions and schools responsible if they are found to have serious bullying problems. Issues of bullying and sexual assault continue to draw widespread public attention. A 2016 survey of seven Chinese cities found that 26 percent of urban children had been bullied during the previous year. As such, the law includes implementation rules and procedures to help schools and other authorities identify and intervene in bullying, abuse, and harassment at schools. For example, Article 130 provides a legal definition of bullying, and Article 39 provides a mandate for schools to establish a formal system of control and prevention of bullying.

A CAPTA post. Image credit: School House Connection 

The national reach of the Protection of Minors Law is distinct from federal efforts in the United States to curtail bullying. The law is unique in its far-reaching nature and its placement of legal responsibility on multiple different actors, including schools, parents, public security organs, and law enforcement. The closest US analog to the Protection of Minors Law is the Federal Child Abuse Prevention and Treatment Act (CAPTA). CAPTA is primarily concerned with physical and sexual abuse against minors, but its impact is limited as it depends on individual states to pass legislation on mandated reporting of child abuse neglect.  

The roles of family and schools in child welfare present an emerging picture of how legislation differs between China and the United States. While both legislate obligations for different parties and manifest this largely through mandatory reporting requirements, China’s top-down legislation stands in contrast to the United States’ approach. The US system offers guidance but leaves actual definition and implementation to states to induce localized systems. How these obligations – and the differences in systems – manifest across cyberspace, government, judicial bodies, and society at large will be discussed in Part II. 

Read Part II: An All-of-Society Effort