Law & More: The Boase Cohen & Collins Podcast

Episode 16 - Azan Marwah

July 04, 2022 Niall Episode 16
Law & More: The Boase Cohen & Collins Podcast
Episode 16 - Azan Marwah
Show Notes Transcript

In this episode, we focus on the law relating to children and young people. Our Partner Alice Cabrelli speaks with barrister Azan Marwah, Chair of the Hong Kong Committee on Children’s Rights, who explains how this city lacks the necessary legislation and robust support systems to properly protect its youngest and most vulnerable residents.

Host: Alice Cabrelli
Director: Niall Donnelly
Producer and VO: Thomas Latter  

[00:00:34] Alice Cabrelli: Hi Azan, welcome to Law & More how are you doing? 

[00:00:37] Azan Marwah: I'm good. 

[00:00:37] Alice Cabrelli: Before we go into discuss children's rights in Hong Kong perhaps you could just give us a brief background and your key practice areas 

[00:00:45] Azan Marwah: I'm born in Hong Kong, I won't tell you how many years ago and I studied mainly at university in London before I decided to come back to Hong Kong to practice law. There was a brief interlude where I had a very short career as a retailer here in Hong Kong. Which I decided really wasn't that nice, that pleasant, or interesting. And every day I would go to work hating my job, I would read the books of Rumpole of the Bailey. And I got the romantic notion in my head that that sounded like a much better career. So I went back to law school in London and then in Los Angeles, and came back the romantic idea that that's what a career at the Bar would look like. And my primary practice areas are, I guess what you would call broadly family practice and public law. But I do quite a bit of commercial and civil litigation. 

[00:01:41] Alice Cabrelli: Great, thank you. You also chair the Hong Kong Committee on Children's Rights. Can you tell us more about the committee and what it does? 

[00:01:49] Azan Marwah: The Hong Kong Committee on Children's Rights is a really long name. It evolved from a committee of another organisation. I believe it started as part of Against Child Abuse. Back in a time when there was a particular concern about children being left at home. The committee started off as this little committee dealing with those kinds of issues and trying to push the Government to adopt policies to prevent children being exposed to that kind of danger. Eventually, it morphed into an organisation whose principal objective was to get the Hong Kong and the then British Government to adopt the convention on the rights of the child. And they were, I think after five years, very successful in getting that done. Since then our primary objective is the full implementation of the convention. And promoting better child-related policies to give effect to children's rights in Hong Kong. 

We are kind of a meta-NGO. What we do is we don't really provide direct services. Instead what we do is we try to speak for the children's NGO sector. We try to promote children's voice in public policymaking and we try to be a bridge between the policy makers and the public on issues related to children. We are primarily a group of experts in different areas of child protection. So some of us are Teachers, Educators, Psychologists, Doctors, and the occasional Lawyer. All of us with a different perspective, but generally speaking we are all experts in our field. And really the idea is who better to convey a politically neutral but also well-considered view on how the government can improve child policy than people who are experts in the field. Now my role as chairperson is really the person who drew the short straw. 

[00:03:40] Alice Cabrelli: Someone's got to do it. 

[00:03:41] Azan Marwah: Someone's got to do it, so I'm the one who signs the checks and is responsible sometimes to be the spokesperson. But we do have quite a capable group in the committee and our Executive Secretary, she's fantastic. I, unfortunately, can't speak Chinese or read and write Chinese. So other members of the team do that, I'm also supported by our Vice-Chair who's Puja Kapai at Hong Kong University. 

[00:04:03] Alice Cabrelli: So talking about long titles, you made a submission back in 2018, I'm going to have to read this out, to the Legislative Council Panel on Welfare Services on Child Protection. Where you set out that child abuse in Hong Kong is endemic and that Hong Kong was failing under the UN convention on the rights the child the basic law and the Hong Kong Bill of Rights to protect children. Can you just briefly set out what led you to present that paper, can you explain your conclusions? 

[00:04:31] Azan Marwah: Sure, so I actually I wrote a number of papers for the panel at that time but I think you're referring to the one on the 19th of January. The background to that is although there've been fairly few studies about the extent and the forms of child abuse in Hong Kong we do know from the studies that have been performed that there are tens if not more than a hundred thousand incidents of abuse every year. Some of them are more obvious and some of them are hidden. Occasionally they come to light in the press and unfortunately still more occasionally they come to light in the courts. This is everything from physical abuse which most people would readily understand as child abuse, to sexual abuse which again those people understand But it can also include things like psychological abuse, which unfortunately is probably the most common form of child abuse in Hong Kong. And then it might also include things like neglect. These are generally the four biggest categories. Neglect is basically when you fail to provide a child with what's necessary for that child to be maintained. So, rather unfortunately incidents in Hong Kong of children not being fed, children being sent out in the middle of winter with very little clothing, sometimes unfortunately intentionally. Those are pretty clear examples of neglect.

Anyway, in my work as a Barrister but also in my activist hat on, I have seen unfortunately a number of very serious cases and a cycle of repeated abuse. And very little that the law can do or is doing about that. And the problems are manifold. On the one hand, you definitely have a resource allocation problem. I think in the paper one of the things which I've always found to be the greatest concern is the sheer number of cases. Each social welfare officer who works on these sorts of cases, our estimate is that each of them is dealing with more than a hundred cases each. Now the practical reality of that is one, you cannot possibly devote the necessary time to resolving those cases. And the other practical reality is that real cases get ignored simply because there's too much on the plate.

And that's driven home to me every time I give a talk to social workers about the law of child abuse and child protection. When I talked to them, particularly about psychological abuse, oftentimes I find the audience laughing. One because they are shocked to learn that this is a kind of abuse. For example, a very common incident in Hong Kong is you'll see parents or carers belittling children - you're not worth anything, you should never have been born. Because people fail exams or they're late with their homework, this sort of petty thing. Now that kind of psychological abuse, if done to an adult is jarring and upsetting, but adults have choices, they can leave the room, they can go and seek help. Children If they experienced that from their carers, it's devastating. And it can have long-term impacts. 

But of course, we also see incidents of sexual and physical abuse which again don't get reported, either because we do tend to have a 'head in the sand' attitude in Hong Kong where they just think it's in the neighbour's house, I shouldn't see it, I shouldn't report it. We have very few laws protecting those who do report these incidents. Long story short, we do see that the resource problem causes those who are responsible for child protection to ignore cases. But then we also see that because it is so endemic that people become inure to it. And they begin to ignore it. 

In the paper, we suggest a number of things that are necessary to happen. One key change is the need to appoint social workers. Another one is the need to improve access to residential placement and institutional placement. In Hong Kong, there are on average somewhere between 3,500 and 4,000 children in institutional care at any one time. 

That's probably not representative of a number of children who should be in care. But that simply represents the amount of space There Is. The consequence is that even in serious cases, the social workers will not send the child into care for a few reasons. One, there are no spaces. So for example in the case of Yeung Chi-wai, they held what was called an MDCC - Multi-Disciplinary Case Conference. They identified that this child was at risk of serious neglect and being exposed to drugs. This was a very young child, I think two or three years old. They agreed that the child should be taken into care. And then they did nothing. They did nothing because they said there are no spaces. So we'll just wait until there is a space. And I believe it was one or two weeks later the child ingested I think it was methamphetamine and died. Now that's a case where someone saw the child, someone referred the case, and they try to do something and there were no resources. But there are other cases where people choose to look the other way and we are really reliant on someone to step in when perhaps they'd been trained not to. So we encourage more training, that's something that needs to happen. 

Another case which I would refer you to is the case of KKK. Tragically It was a case that I worked on right at the beginning of my career. I was one of the counsel for Mr kKK. I have no particular loyalty to him except I did my job and that was a sentencing appeal. But it's an example of what can go right and what can go wrong. This was a case where a father had been serially abusing his young infant daughters, I believe they were seven, eight, and ten, in that age range. And he had been raping them repeatedly. The mother knew, did not report. The children went to the grandmother, and the grandmother said just try to avoid him. Again did not report. It was only when one of the children was at school and a teacher noticed the bruises on the child that she put up her hand and said no we've got to investigate this. I believe she refused to let the children go home which is the right thing to do. And there's a good suggestion that the law is they're requiring the teacher to do that. But very few people know that is their responsibility and most would have just let the child go home. The case was investigated, the man was charged. 

Now the mother and the grandmother, they committed no crime, arguably. They were not charged with any crimes. This is part of the reason why the Law Reform Commission were discussing introducing a law on exposing children or allowing children to be exposed who are in your care. At the moment we rely on section 27 of the offences against the person's ordinance. Which is really outdated and is not purpose-built. So, this was another area where we said, really, both the criminal law but also the law protecting children needs to be reformed. 

Another area which we've repeatedly said needs to be reformed is there needs to be clear guidance in the law to help social workers and other professionals to identify what their obligations are and what the best interest of the child are. 

[00:11:18] Alice Cabrelli: So jumping forward to last year, now the Law Reform Commission has recommended that the offences against the person ordinance be amended to introduce a new offence of failure to protect. So it's failure to protect a child where child's death or serious harm results from an unlawful act or neglect. Now that is a positive step forward but are you hopeful it's going to be introduced cause we know we've seen in the past amendments which are proposed the Law Reform Commission relating to children tend to stagnate, and nothing actually happens after the recommendation is made. 

[00:11:53] Azan Marwah: I'm optimistic. 

[00:11:54] Alice Cabrelli: Okay. 

[00:11:54] Azan Marwah: There's no obvious reason to oppose it. I'll be Frank with you, with the exception of the family proceedings ordinance, a bill which was proposed. Generally speaking, the members of Legco historically have been positive towards law reform for child protection. There are very few constituencies in Hong Kong who want there to be more child abuse. The unfortunate thing is that we don't really have anyone investigating it. One of the things which I mentioned in that letter to the panel, is the absence of any effective data collection. You just don't have enough data in the public sphere to make the case the way that you'd expect to force the government to take action. But I'm optimistic that the Law Reform Commission proposal which is very narrow, and it's very very clear and obviously very needed. There wasn't much in the way of opposition to the proposals. So I expect it to go through. 

[00:12:50] Alice Cabrelli: That's encouraging, and it also encouraging that Ambrose Lam, who is a Legco member, he seems to now for something to happen with the parental responsibility bill. Which was recommended close to 20 years ago now, it was 2005. 

[00:13:03] Azan Marwah: That's right. 

[00:13:04] Alice Cabrelli: And still, nothing's happening, so hopefully assigned forward as well. 

[00:13:08] Azan Marwah: Yes, now my hope is that it will be introduced. The real concern is that we need to have effort in public education to explain the proposals. The notion of parental responsibility, which in substance, the courts understand already. In a sense, it is there in the jurisprudence. Members of the public don't understand what it would mean in practice. And unfortunately, there was a lot of pushback from some groups who feared that this was a radical change in the law that would have exposed them or their children to more abuse, and in fact, it's the opposite. 

[00:13:41] Alice Cabrelli: Talking about statistics, I can't quite remember how I came across it but last week the crime statistics were announced and it was quite depressing in terms of child abuse in that there's been a 29% increase. 

[00:13:53] Azan Marwah: to be fair there's been a 29% increase in reported cases. If you look at the recent data from Against Child Abuse, I think the suggestion is that that is the tip of the iceberg and it's less than 10% of the actual cases. But it is indicative when the reported number goes up, it's not because people are more inclined to report, it's because there are more cases. 

[00:14:17] Alice Cabrelli: The total numbers increasing. That was the first quarter of 2022. And if we then look at what has happened in Hong Kong with regards to the COVID pandemic. Children not going to school, not having access to teachers, do you think that's had a role to play? 

[00:14:33] Azan Marwah: Absolutely, and when children begin going back to school that's when you're going to see more cases being reported. And the KKK case which we talked about a few minutes ago, that illustrates that when you have children being exposed to responsible professionals who are trained. Then you're going to have more reported cases. The reality is that unfortunately, COVID has increased social isolation, especially for children. And it's meant that they are more vulnerable to abuse. 

[00:15:00] Alice Cabrelli: And do you particular that has had a disproportionate effect on disadvantaged children? 

[00:15:06] Azan Marwah: Yes certainly, they have been the most isolated at the moment. Listeners will know playgrounds are shut down, children are not meeting other children, they're not meeting other parents. They are stuck in isolated positions. That doesn't mean that children aren't leaving their home and aren't going outside to play, they're just playing in back alleys, they're playing behind the stairwells. They're not playing in places where there are systems in place to protect them. And that's been the reality of COVID, that those who have fewer options, those who are more vulnerable, those who belong to disadvantaged groups, those who live in places where there are just fewer protections in place, they are the most exposed to the increased risk. 

[00:15:46] Alice Cabrelli: And we've also seen them in Hong Kong, during the fifth wave, I think it was 10,000 children Under the age of 10 had been separated from their parents after testing positive for COVID. Hopefully, that seems to have ended now, or they've said if you want to go with your child, you can. What were your thoughts on that policy? 

[00:16:05] Azan Marwah: The big concern was already the policy of the Hong Kong Hospitals Authority, and all of the hospitals not to allow child separation, that was already the policy. The problem was in implementing the fifth wave changes, or for that matter, I think it really it has been from beginning of COVID. They've been implementing measures and no one has been there to say, how does this conform to best practice? How does this conform with our existing policy about no child separation? And it has been a bureaucratic failing, to be frank. The doctors know that it is wrong, it has been because policy has been made and no one has checked it and said how will this affect children. And this underscores the other main consistent recommendation to Legco and of Civil Society, we need a children's commission. There needs to be an independent commission based on statute, willing and resourced to check policies against the interests children. 

[00:17:07] Alice Cabrelli: We do have the commission on children. 

[00:17:09] Azan Marwah: No, we don't. 

[00:17:10] Alice Cabrelli: But it's not independent. 

[00:17:11] Azan Marwah: It is not a commission. You can call it a commission if you like, and I'm not criticising those who are on the commission. Whether the independent members or the government members. It is not a commission. It is a working group within the government chaired by a senior member of government. Staffed by one bureau. Their average meeting time has been once every four months. It has not performed the function even its terms of reference saying it should do. And again, I think it was a hugely positive step to set up what I'm going to call the working group. But it really does not perform the function that the government wish it to perform. And I think to be fair to Carrie Lam, she did foreshadow that. She said this is a step on the way to where we need to go. And what needs to happen now is that we need to take the learning of the last two years and set up an independent commission. We have lots of good examples in other countries and that have produced fantastic results for children. And we can very quickly take up that kind of reform and set up an independent commission. It can happen as soon as the government wants it to happen. 

[00:18:19] Alice Cabrelli: We've spoken briefly about the UN convention on the rights of the child, which is not directly Hong Kong Law. Is having a commission on children mandated under the UN Convention? 

[00:18:30] Azan Marwah: So there's an optional protocol that deals with the commissions. There's nothing per se in the main body of the convention requiring the setup of commission. But it would be fair to say that is essential to giving effect to the requirements in the convention. Because there are a number of articles that deal with giving children voice and making sure that policies are given effect to. But at the moment we have no one checking that those policies are given effect and we've already talked to a number of examples, a number of problems that simply don't get considered. 

Another area is the requirement that states collect information. They're supposed to be data collection, there's supposed to be statistical analysis, they're supposed to be checking, but there is no body in the Hong Kong Government responsible to do that. That is why an independent commission is so valuable. They would be able to perform those functions. They're just simply the best solution for the duties that are set out in the convention. 

[00:19:25] Alice Cabrelli: So, as it's not directly incorporated in Hong Kong. How can we ensure compliance convention? Or we simply can't? 

[00:19:33] Azan Marwah: Well, there needs to be a comprehensive review of our laws and policies. This has been suggested by the Law Reform Commission, it has been suggested by the United Nations Committee on the rights of the child, it's been suggested by Legco. Legco have repeatedly said, we should do this. There's not been any decision made by Government to refer it for law reform. I think it was three years ago, a member of Legco did put forward a bill which proposed some law reform for child protection The government shot down, really for a reasons of budget, which when you read them, one struggles to understand why that is the case. But when you read that, you can see that each one of the proposals was addressed to a particular concern raised by the committee on the rights of the child in the UN. And that's just the issues that they've highlighted, but actually, there are many more. And we do think that a commission for children is really the best place to start. Because you want a holistic review where children have a voice in the commission. You want that to be the starting point. 

[00:20:31] Alice Cabrelli: I think thankfully, not thankfully, but thanks in part to the COVID pandemic and the issues that have arisen in relation to children. I think there is a spotlight on the issue at the moment Hong Kong. And hopefully, that can be used to sort of push forward. Are you hopeful that there'll be change? 

[00:20:49] Azan Marwah: I think it may be a good moment in Hong Kong now that we have a change of administration at this particular point. And I do hope that John Lee's administration will use this as an opportunity to reflect. I have met before with John Lee to talk about child protection policy and I was refreshed by his apparent interest in the matter. We talked particularly about forced marriage of young girls. And he did seem to really care about that issue and want to do something about it when he was the chief secretary. Whether or not COVID is a good opportunity, I would say I don't view COVID as a positive. If anything we can't simply go back to where we were before. We will have to do more to make up for what children have lost in the last two and a half years. Because they have lost a lot. They have lost development opportunities, and it will require more than just going back where we were. It will require an investment in children that will frankly require a commitment, both of money, but also willingness to look at how our systems have worked before. And that will require, and I'm going to use the dangerous word in Hong Kong Government, accountability. There has to be some accountability, and that is frankly why an independent commission is necessary rather than simply an inter-governmental one. Otherwise, you have the usual thing of, pass-the-parcel before any decision is made. 

[00:22:11] Alice Cabrelli: Azan thank you so much for joining us and sharing your insights on this very important topic. 

[00:22:16] Azan Marwah: Thank you for your interest, I'm pleased to see people wanting to talk about children's rights. Thank you. 

[00:22:21] Alice Cabrelli: Thank you