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| 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 minors...so 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.
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| 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.
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| The cover of an individual household's register, or hukou, booklet. Image credit: Wikimedia Commons / Public Domain |
- To provide minors with life, health, safety, and other aspects of protection;
- To care for the physical, psychological and emotional needs of minors;
- 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;
- To conduct safety education for minors to improve their self-protection awareness and ability;
- To respect minors' right to receive education and ensure that school-age minors receive and complete compulsory education in accordance with the law;
- 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;
- To properly manage and protect the property of minors;
- To act for minors to carry out civil legal acts in accordance with law;
- To prevent and stop the bad behaviors and illegal and criminal behaviors of minors and conduct reasonable discipline; and
- Other duties under guardianship that should be performed.
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.
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| 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.
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| 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.
