China's Family Violence Law takes a historical step for child protection

China's Family Violence Law takes a historical step for child protection

Su Wenying
29 January 2016

When a comic strip featuring 'Beatings by Mom' went viral on Weibo, we at UNICEF China winced in fear that the problem of violence against children, including in the home, was accepted as part of the culture. We worried that, even if the comic was intended mockery, it detracted from the seriousness of the problem and the need for better child protection.

But in December we took back that fear when the Standing Committee of the National People's Congress, in a hugely historic step for children in China, enacted legislation on family issues with the Family Violence Law. 

This legislation will override the jokes and mockery because it tells the public that parents hitting their children is as illegal as physical violence between adult family members or cohabitants. It reinforces that both are acts of family violence and are now against the law.

The Family Violence Law defines family violence as physical, mental and other behaviours in the form of beating, binding, mutilation and restriction of personal freedom as well as constant insulting and intimidation between family members. This definition includes violence by parents inflicted on their children. According to an All-China Women's Federation survey, children are frequent victims of family violence in our country. 

Family violence mainly reflects a relationship of controlling and being controlled, enabled by inequality in family status and the power structure between the perpetrator and the victim. Children are dependent on parents or other legal guardians physically, psychologically and economically and are not able to seek help independently as easily as adults can. Children's injuries due to family violence, especially psychological trauma, are often concealed and the impacts are long lasting. 

By including mental abuse, the law broadens the definition of violence beyond physical harm, such as killing and injuring another person. This definition thus greatly broadens the scope for protection for victims of family violence.

In particular, article 5 of the new law requires special protection for child victims of family violence. Article 12 specifies that the guardians of children must conduct family discipline in a civilized way and according to the law, which prohibits the use of violence. 'Beating you is for your own good' can no longer be used to rationalize a parent's abuse of their child. 

Another breakthrough of the Family Violence Law is the adoption of the recommendation from the United Nations Committee on the Rights of the Child for "mandatory reporting of all cases and the follow-up measures necessary to address all forms of violence against children". What this means, as stipulated in article 14, is that staff, officials or members of schools, kindergartens, medical institutions, residents' committees, village committees, social work service agencies, assistance and management institutions and welfare institutions must promptly report to the public security authorities any case they find of someone with limited or no civil capacity suffering or seemingly suffering from family violence. Anyone who fails to report a case that results in serious consequences will bear responsibility, as stipulated in article 34. 

The mandatory reporting is required due to the secrecy of family violence. Although the law provides that a victim and their legal representative or relative can complain, report and prosecute acts of family violence, in reality, people without capacity for civil conduct or with limited capacity, especially children, find it difficult to protect themselves through such a system. 

Through the establishment of a mandatory reporting system, the new legislation further clarifies the tenet that ‘family violence is not a family matter'—or a private matter, which is conducive to finding and stopping family violence against children.

Shocking cases of child abuse in recent years heightened the issue of intervention in terms of guardians' dereliction of duty. Although the General Principles of the Civil Law and the Law on the Protection of Minors both have provisions for the revocation of guardianship, rarely have they been used. As specified in the Family Violence Law, the People's Court can now revoke guardianship based on the application of a relative (of an abused child), a residents' committee, a village committee, civil affairs departments of the county government or other personnel. This provision also clarifies the State's responsibility in guardianship intervention, which opens the door to establishing the administrative and judicial protection of children. 

The Family Violence Law also provides regulations on written warnings by police and personal safety protection orders issued by the court.

While recognizing the breadth of improvements still needed to fully ensure children the protection they are entitled to, we at UNICEF heartily welcome the changes this law can initiate. Just as we offered technical advice in the drafting of the law, we also extend our global expertise in helping all relevant government departments and society in general to understand what the new law means for them and how to apply its various provisions so that their impact in serving the best interests of all children in China will be maximized.