Nepal[1] [print]
Last edited: November 2005
Summary and Analysis
Nepal ratified the Convention on the Rights of the Child on September 14, 1990. According to Article 126 of the Constitution of the Kingdom of Nepal (promulgated in 1990), international agreements that are duly ratified are binding on the government.[2] In 1992 the Nepalese Parliament passed The Children’s Act codifying some sections of the Convention. The Constitution of Nepal and the 1992 Children’s Act were “the first time in the history of Nepal that the country has shown a deep interest in protecting the rights of the child.”[3] The political unrest in Nepal has prevented the country from making further efforts to implement the Convention since the reforms in the early nineties.
Child neglect is not a crime in Nepal but it is recognized in the Children’s Act which defines an abandoned child as one “who has been neglected by his father, mother or any other member of his family even though they exist.”[4] Child welfare officers and the police are required to hand neglected or abandoned children over to the nearest child welfare home.[5] The parents of a neglected or abandoned child may take the child back from the child welfare home “at any time.”[6]
Severe child abuse is outlawed in Nepal but is not considered a state crime. No child is to be subjected to torture or cruel treatment. Minor beatings of a child by teachers, parents or other members of the child’s family are not considered a violation of the law.[7] The crime of cruel treatment of a child is punishable with imprisonment up to one year or a fine of up to 5000 rupees or both imprisonment and a fine.[8] The child abuser is also required by law to pay a reasonable amount of compensation to the child.[9] A law passed by the Parliament in April 2002, The Domestic Violence Control Bill, would have addressed issues of child abuse more effectively. The law was never enacted because of the unsteady political situation in Nepal.
If a child is abused, any person has the right to file a petition on behalf of the child in the district court presiding where the child lives.[10] The courts are required to give priority to cases affecting children.[11] In such a proceeding, the court is not required to hear or take into account the wishes or views of the child.[12] The child is not necessarily represented in these proceedings. If the court deems it necessary, it will allow a representative from a social organization involved in protecting the rights and interests of children to take part in child abuse proceedings.[13] The child’s representative is not required to inform the court of the child’s wishes or views.
In practice, few cases of child abuse are prosecuted in Nepal as a result of major infrastructural problems in the legal system.[14] Note that although more extreme forms of child abuse are against the law, there is no provision to remove children from abusive situations.
Original Text
International Law
Statutes
Chapter I, Article 2
Chapter II, Article 7
Chapter II, Article 20
Chapter IV, Article 35
Chapter IV, Article 35
Chapter IV, Article 36
Chapter VI, Article 49
Chapter VI, Article 53
Chapter VI, Article 57
Translation
International Agreements
Convention on the Rights of the Child, ratified September 14, 1990[17]
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Statutes
Children’s Act 2048 (1992)[18]
Chapter I, Article 2
(5)(b):”Abandoned Child” means a Child- Who has been neglected by his father, mother or any other member of his family even though they exist.
Chapter II, Article 7
No Child shall be subjected to torture or cruel treatment. Provided that, the act of scolding and minor beating to the Child by his father, mother, member of the family, Guardian or teacher for the interests of the Child himself shall not be deemed to violate the provisions of this Section.
Chapter II, Article 20
(1)For the enforcement of the rights set out in this Chapter, every person shall have the right to file a petition on behalf of the Child to a District Court of the district where the Child is residing.
Chapter IV, Article 35
(1) The Children Welfare Officer and the police personnel shall handover the Abandoned Child, they have found or handed over to them by any person, to the nearest Children’s Welfare Home
Chapter IV, Article 35
(5)The Children Welfare officer, Police Officer or Chief of the concerned Children’s Welfare Home may, in order to find out father, mother, relatives or Guardian of the Abandoned Child cause to publish a notice including the description and photograph of such Child in any or cause to communicate through any other medium of communication
Chapter IV, Article 36
(3) If the father, mother or the Guardian of the Abandoned Child desires to take the Child with them, the Chief of the Children’s Welfare Home shall allow to take the Child at any time and prepare a document for such take over of the Child.
Chapter VI, Article 49
(1) The legal practitioner or the father, mother, relatives Guardian of the Child and if the officer hearing the case deems it appropriate and permits any person or the representative of the social organization involved in safeguarding the rights and interests of the Child may attend in the proceedings of any case related with the Child initiated under this Act or existing laws.
Chapter VI, Article 53
(3) In case any person commits any offence in contravention to Section 7 [cruel treatment of a child] or 15, he shall be punished with a fine up to five thousand rupees or with imprisonment for a term which may extend to one year or with both. In case of torture and cruel treatment he shall be made liable to pay a reasonable amount of compensation to the Child.
Chapter VI, Article 57
The case under this Act in which a Child is a plaintiff or defendant shall have to be given priority for hearing and deciding.
Cases
Case of Hari Poudyal from Biratnagar, Sub Metropolitan City Ward 16 (August 2001):[19] Ten-year-old Hari Poudyal filed a case in the chief district office against his mother for protection from life threatening abuse. This is probably the first time in Nepal where a child filed a court case against a parent for protection against abuse. The case was viewed with suspicion because there was no mention of the child’s father in the complaint. We were unable to determine the outcome of this case.
Additional Resources and Links
Child Workers in Nepal: http://www.cwin.org.np
Maiti Nepal: maiti@ccsl.com.np
Constitution of the Kingdom of Nepal: http://www.oefre.unibe.ch/law/icl/np00000_.html
Concluding Observations of the Committee on the Rights of the Child, Nepal, U.N. Doc.
CRC/C/15/Add.260 (2005): http://www1.umn.edu/humanrts/crc/nepal2005.html
Concluding Observations of the Committee on the Rights of the Child, Nepal, U.N. Doc. CRC/C/15/Add.57 (1996): http://www1.umn.edu/humanrts/crc/crc-Nepal96.htm
Kathmandu School of Law: http://www.ksl.edu.np/
State of the Rights of the Child in Nepal – 2002: http://www.cwin.org.np/resources/reports/ROC_2002/index.htm
State of the Rights of the Child in Nepal – 2003: here, and also as .pdf Document, and also as Word Document.
Endnotes
[1] This page is also available as a .pdf Document, and Word Document.
[2] Const. of Nepal (1990), available at http://www.nepalmonarchy.gov.np/constitution/constitution_list_TextOnly.php.
[3] Initial Report of Nepal to the U.N. Committee on the Rights of the Child, U.N. Doc. CRC/C/3/Add.34, at Chapter I (May 10, 1995) available here, and also as .pdf Document, and also as Word Document.
[4] Children’s Act, No. 2048 (1992), I(2)(5)(b) originally published in the Nepal Gazette, Part II, Vol. 42, Extra-ordinary Number 8 (May 20, 1992), available in English here, and also as .pdf Document, and also as Word Document.and in Nepali as .pdf Document, and also as Word Document.
[5] Children’s Act 2048, Chapter IV, Article 35(1).
[6] Children’s Act 2048, Chapter IV, Article 36(3).
[7] Children’s Act 2048, Chapter IV, Article 7.
[8] Children’s Act 2048, Chapter VI, Article 53(3).
[9] Id.
[10] Children’s Act 2048, Chapter II, Article 20.
[11] Children’s Act 2048, Chapter VI, Article 57.
[12] See Nepal Law Society, Child and Law in Nepal: An Analytical Study 22; Child Workers in Nepal Concerned Centre, The State of the Rights of the Child in Nepal 47 (2002) available at http://www.cwin.org.np/resources/reports/ROC_2002/index.htm.
[13] Children’s Act 2048, Chapter VI, Article 49(1).
[14] Concluding Observations of the Committee on the Rights of the Child, Nepal, U.N. Doc. CRC/C/15/Add.260 (2005), available at http://www1.umn.edu/humanrts/crc/nepal2005.html.
[15] United Nations Convention on the Rights of the Child art. 12, Dec. 12, 1989, UN General Assembly Document A/RES/44/25.
[16] Children’s Act, supra note 3.
[17] United Nations Convention on the Rights of the Child art. 12, Dec. 12, 1989, UN General Assembly Document A/RES/44/25, available at http://www.ohchr.org/english/law/crc.htm.
[18] Children’s Act, supra note 3.
[19] See Child Workers in Nepal Concerned Centre, The State of the Rights of the Child in Nepal 26 supra note 12.