• Podsoc #72
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From orphanhood to trafficked:

In conversation with Kate van Doore

[Transcript for this podcast is found in the Reference tab below]

This podcast is a presentation given by Kate Van Doore at the Interdisciplinary Conference on Human Trafficking held on October 9-11 2014 at the University of Nebraska http://humantrafficking.unl.edu/. Kate van Doore talks about the convergence of trafficking, orphanages and ‘orphans’ and how orphanhood and tourism are essential to a new business model.

Kate Van Doore is a Lecturer at Griffith Law School. She holds a Bachelor of Arts (Asian and International Studies)/Bachelor of Laws; Grad Dip Legal Practice; and a Master of Laws. She is pursuing her PhD on the intersections of child trafficking, child profiteering and the law. Kate has previously been a Podsocs guest on Podsocs 48 http://www.podsocs.com/podcast/forget-me-not/ talking about Forget-me-not, a children's home in Nepal.

For links to more information and a video check out the references section below.

Recommended citation – APA6th

Fronek, P. (Host). (2014, November 5). From orphanhood to trafficked: In conversation with Kate van Doore [Episode 72]. Podsocs. Podcast retrieved Month Day, Year, from http://www.podsocs.com/podcast/from-orphanhood-to-trafficked/.

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Links

Kate’s Prezi presentation http://prezi.com/chylbah-9gcm/from-orphanhood-to-trafficked/?utm_campaign=share&utm_medium=copy

Going home – video - http://www.youtube.com/watch?v=NERcqAOays4&app=desktop

Interdisciplinary Conference on Human Trafficking University of Nebraska, October 9-11 2014 http://humantrafficking.unl.edu/

Reference for the conference presentation:

Van Doore, K. (2014). From orphanhood to trafficked: Exploring trafficking for the purpose of institutionalization. Paper presented at the Interdisciplinary Conference on Human Trafficking Lincoln, Nebraska. University of Nebraska http://humantrafficking.unl.edu/

Transcription Podsocs 72: From orphanhood to trafficked: In Conversation with Kate van Doore

Thank you to James Attard for this transcription

[musical intro to 00.10]

Hello, and welcome to Podsocs, the podcast for social workers on the run. Brought to you by a bunch of social workers from Griffith University in Australia.
I’m Tricia Fronek, one of that bunch, and we’re just basically really glad you found us. So, happy listening.
Tricia: Hello Podsocsers, today’s podcast is a little different and very worth listening to. It is a recording of Kate van Doore’s presentation to the Interdisciplinary Conference on Human Trafficking that was held at the University of Nebraska in November.

Kate is talking about her research on the thriving business of orphanhood and children who are trafficked and then are constructed as orphans. We previously heard from Kate on Podsocs 48 on ‘Forget Me Not’ a Nepalese orphanage. Following on from her presentation Kate responds to questions. This podcast is a must listen.

[clapping from crowd]

Kate: Thanks for that very kind introduction Ron and as he said I’m Kate van Doore and I’m from Griffith Law School Australia. I’m still suffering from a bit of jetlag so don’t ask too many hard questions.

[laughter from crowd]

Kate: So I thought this morning I’m presenting on from orphanhood to trafficked, exploring the trafficking for the purposes of institutionalisation of orphanages and I’d thought I would start this morning by contextualising why I’m doing this research and how I came to be in this position of knowing the sort of a little bit of what’s going on in this context.

So I also sit on the board of an international NGO called ‘Forget Me Not’ we’re based in Australia and we fund children’s projects in Nepal, India and Uganda and in 2006 we started with by opening an orphanage in Nepal with 20 children in it, in 2010 we took over the funding of an orphanage in Uganda. In 2011 we undertook an investigative audit, as we do annually for all of our projects, on our Ugandan project and found some financial discrepancies. Essentially what was happening was that the people who were running the orphanage, the local NGO, were skimming money off the top, overstating receipts. Just basic stuff it wasn’t a huge amount of money but we took it very seriously and decided that if they were going to be profiteering from running an orphanage they probably shouldn’t be running an orphanage in the first place, and this sort of unwound the whole operation. So after we got the findings of the audit I flew to Uganda and coordinated a team of government officials and child probation officers, which are like child protection officers in Uganda, and local NGOs and we ended up doing what was called a child rescue. Which was removing 39 children from that orphanage, because they didn’t want to let them go obviously with the bit of money making venture they had going on.

So we removed those 39 children from the orphanage and we took them to another organisation. In the ensuing days as we started talking to these kids about where they were from, so we could know where to best place them in tribal locations etcetera, it was revealed children had two sets of identities. They had the fake identity provided to them by the orphanage and their real identities. As the children started to get a bit more comfortable they started to say no my name is not Joseph I’m actually Daniel, I’m not from Gulu I’m from Ntedi. As we started to realise what had happened in that all these children had fake profiles and fake identification they also revealed they had living family, said I don’t want to go to another orphanage I want to go home to mum and dad or to my aunt or wherever that was. So within 4 days 13 of those 39 children had gone home to family for good no further support required. 26 of the children remained within our families’ project but of them there were only 3 legitimate orphaned children and a further 3 who we found the family for but we couldn’t place them with the family because they were unable or unwilling to care for those children. So 6 from 39 children actually needed to be in long term care and yet we were funding 39.

Of course this caused us to have a good strong look at our Nepal operation and see what was going on there. When we did so we did that by employing a country director who was an American girl who had very good Nepali and this orphanage in Nepal that we started had been held up by the government and had been awarded several certificates of commendation by the government as a model orphanage well run, children were receiving excellent education, happy, etcetera. When she started to form relationships with the children, the children revealed the same stories, name changed, families alive and looking for them, there were stories of families coming to the orphanage gate below the children watching as they were turned away not allowed to see them. The children then revealed that they had been threatened with physical and verbal abuse, they had been told that if they revealed they had families and were not orphans to the Australian funders or to anybody else that their families would be persecuted and they wouldn’t be allowed to go to the good school they go to anymore. So they were being held under threat with these again false IDs. Once we found this out we again of course started looking for the families and of those 20 children we located families for all but 1, and just last week we think we found her father and are doing DNA testing now. So in April of this year 19 children out of 20 went home to families with varying levels of family support provided still, some needed no support at all, other families needed some support to have their child at home with them. So those children, 20 children, institutionalised for 8 years and probably none of them actually required it.

So this caused me to have a really good look at what was going on with orphanages and I found that there’s this thing called paper orphans. I’m not sure you’re familiar with it, is where children are constructed as orphans on paper with false documentation in order to really reside in orphanages or to be made available for intercountry adoption. You may have heard about some of the intercountry adoption sort of rackets that have gone on in the past few years with the subsequent closure of some programs because of that. So when I had a look and stepped back from our situation to globally I found a Save the Children report from 2009 that says 4 out of 5 children in orphanages were not actually orphans, which was shocking to me and also stated that poor families were coerced off into relinquishing their children in exchange for money from unscrupulous institutions and adoption agencies hoping to profit from either the residence of the children or the further trafficking of the children. It is not an uncommon story, in 2003 Save the Children had also recorded that 85% of children in institutions in Uganda had family that were identifiable and traceable and in Ghana the number of child care homes had grown from 5 in the 1990s to over 110 in 2010 and media reports say that running an orphanage in Ghana had become a business enterprise, a highly lucrative and profitable venture and that the children’s welfare at these orphanages had become secondary to the profit motive. Again, across the globe in Cambodia a 2011 report by UNICEF was conducted into the number of increasing orphanages there and the key findings included that overseas donors were the main funders of residential care, and that many residential care centres had turned to orphanage tourism as a way to attract funders, and they were taking volunteer placements who weren’t properly screened and thus were putting the children at risk. In Cambodia, it’s a particularly good report, they actually said that the number of orphans has decreased in the last decade and that there’s estimations 3 out of every 4 children in an orphanage in Cambodia has parents or family that they could live with and are not orphans, and yet the number of orphanages had doubled in the last 5 years.

So this seemed to be a really common theme that the number of orphans, or the number of children requiring care, was decreasing but the number of orphanages was on the increase. In Nepal, which is a context I’m very familiar with, there’s 15,000 children currently in residential care and it’s estimated that 85% of them could be looked after by a living parent. You may have read the book ‘Little Princes’ by Connor Grennan, or not read it but heard of it, I know it’s a college read for a lot of colleges here in the States. He details how he volunteered in an orphanage in 2004 and subsequently discovered that the orphans in the care of that orphanage had living families and had been manufactured as orphans for the purpose of securing ongoing funding from international donors, child sponsors, and volunteers. Those children had been lured from their families with the promise of education, false documentation had been made and they were registered officially through the government as orphans.

So the way this happens is mostly, and this was the same situation that we found in Uganda and in Nepal, a recruiter will often visit a remote village and persuade parents of children that they can provide a great education for them, in say the Nepal context in the city of Kathmandu. They say I’ll take your child to Kathmandu and put them in a boarding school. The parents see this as a way of lifting them out of village life. There was also a civil war in Nepal a number of years ago and parents saw this as a way of protecting their children from that civil war. So that’s how the recruiters get the children and often the parents were paying the recruiters to take the children. They’re paying them about 10,000 rupees which is about 75 to 80 US dollars, so the parents were paying them at one end. The recruiters would take the children to Kathmandu and they would sell them to the sex trade in India, into circuses, into bonded labour, or into orphanages as it turns out. So the recruiters were benefitting at both ends from the parents and then from on selling that child.

So for me it seemed quite clear that orphans in orphanages had been become a business in developing nations from all of these statistics and NGO reports that have been done. Like any business the demand for the product, in this case the orphans, has driven the market. To satisfy that demand children were being taken from families, with the promise of education or their return in the future, and manufactured as orphans to reside in orphanages and set the funding. So I spoke to a few of the NGOs in Nepal to establish how this is being treated, how is it being monitored, what’s happening, and I was quite surprised to discover that this was not called child trafficking. It seemed to me this should be a very easy case of child trafficking because it has the act and what I would think is the exploitation. Certainly at national law level it can be regarded as child trafficking, but it has never been prosecuted for example in Nepal. For international reporting purposes like the TIP report, the trafficking in persons report, which rely on the definition provided by the TVPA which is then based on the Palermo Protocol it’s not child trafficking. So the NGOs, like UNICEF and Save the Children, are very careful about how they describe this process and there is no mention of child trafficking.

When I spoke to UNICEF they said it’s because there is no legal work to say this is child trafficking. So being a lawyer I thought I’ll just do that legal work, so you guys are the first test of this legal work let’s see how we go. So the first thing I decided to do was situate paper orphans in international law and the first thing I suppose you should do when you’re looking at the rights of the child is to go straight to the ‘Convention on the Rights of the Child’. In regards to trafficking we go straight to article 35 which basically puts an onus on states to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form. Now this seems like a big tick, seems like it encapsulates paper orphans very well. The problem is that sale or traffic of children is not defined in the convention nor is it for any purpose or any form and the net here is cast a little bit too wide because it doesn’t put an onus on anyone to actually say these paper orphans are actually being trafficked because we’re not providing these definitions. That expansive definition we sort of need to go further if the court action is a little bit too broad. So from there I moved on to the optional protocol to the ‘Convention on the Rights of the Child’ on the sale of children, child prostitution, and child pornography. It doesn’t deal with trafficking specifically but it does deal with quite extensively with child selling, and article 1 prohibits the sale of children and article 2a defines the sale of children as any act or transaction where child is transferred by any person or group of persons to another for remuneration or any consideration. On initial assessment the article 2 provides a very broad definition of child selling which should easily encompass paper orphans but the scope is immediately limited in article 3a 1, which isn’t on your screen, which obliges states to specifically criminalise at a minimum the sale of child for the purpose of sexual exploitation, transfer of organs, or engagement in forced labour which is essentially a mirror of the exploitation of requirements in the Palermo Protocol. Article 3a 2 however presents an interesting departure because it explicitly outlines that the sale of children includes improperly induced consent as an intermediary for the adoption of a child in violation of applicable international instruments on adoption. There is an intentional parallel drawn between the sale of children here and intercountry adoption which is really highly significant in relation to paper orphans because this is indicating that where in improper consent is induced for the purpose of intercountry adoption which is only one step beyond that of paper orphans, because paper orphans are still in the orphanage, that child selling is actually taking place. So this really allows us to define the situation of paper orphans as at least child selling.

So once I could say that yes that’s child selling I needed to find where it is that child selling becomes child trafficking. I don’t know if you’re familiar with David Smolin’s work but he writes a lot on intercountry adoption and child trafficking, and whether it can be classed as child trafficking. David Smolin says that child selling becomes child trafficking where exploitation is involved. Of course exploitation brings us once again back to that Palermo Protocol requirements, so it’s sort of starting to fill the little cracks here to come back to seeing whether this can be child trafficking. So as you would know for child trafficking you don’t need the means you only need the act and the purpose of exploitation. In this instance the act is quite easy to establish, the act is the recruitment and transportation, transferring, harbouring, or receipt of persons. The movement of the child from the family or the guardian to the orphanage by the recruiter establishes this act component quite easily, that’s not really what is in contention here. What’s in contention is the exploitation and what’s confusing about this is one child can be considered exploited because they’re sold to a brothel for sexual exploitation, while another child is not considered exploited because they’re sold to an orphanage even though they’re being exploited by continually being used to entertain volunteers or beg for funding, etcetera. It creates a confusing dichotomy of interpretation about what is exploitation in this realm.

So exploitation is defined as including at a minimum the exploitation of the prostitution of the others or other forms of sexual exploitation, forced labour or services, slavery, practices similar to slavery, servitude, or the removal of organs. Because my whole point here is to try and get this classed as exploitation for the purposes of international reporting so we can have some international pressure applied to these nations I really need this to fit this definition. Right, so I know a few NGOs have made arguments to the trafficking in persons report specifically on intercountry adoption which have failed in 2005 and more lately in 2013 that this paper orphan process should be child trafficking but they never went into any actual depth of argument. They stayed quite superficial and said it was a form of bonded labour. Now I’m not going to argue bonded labour per se but it seems obvious to me that the only two categories this could fall into is forced labour on one hand or a practice similar to slavery on the other hand.

So looking at forced labour first, of course forced labour is not defined in the Palermo Protocol so I’ve got to get to another convention and because we’re dealing with children it’s the ‘Worst Forms of Child Labour Convention’. Article 3a says all forms of slavery, or practices similar to slavery, such as the sale of and trafficking of children. Now this is the first real alignment that we see between slavery or practices similar to slavery and the sale and traffic of children because it’s saying explicitly that a practice similar to slavery could be the sale and trafficking of children. Because we’ve already been able to establish under the optional protocol that paper orphans could easily fit child selling we’re now being able to posit our self into it possibly being a practice similar to slavery. So that was a really encouraging direct correlation that I found. Of course then because we’re talking about slavery or practices similar to slavery we then need to look at the definitions of slavery and practices similar to slavery. So we got yet to another convention, the Slavery Convention of 1926, and that says that slavery is the status or condition of a person over whom any or all of the powers attaching to ownership are exercised. I want to be clear that I’m not arguing that paper orphans are slaves here, my argument is it’s a practice similar to slavery. If I were to make an argument about this and ownership and powers attaching to ownership and the case law that has come from the RTC on that I think that you could make a direct correlation between the guardianship of these children which is being enacted as ownership, because the guardianship is held with the NGO, the organisation, the orphanage director and because the children are under threat, they’re not allowed to leave, they’re identities have been changed, they’re often suffering physical or sexual abuse. I think you could make an argument there that they are under a form of ownership, but I don’t think it is a particularly strong argument, so I want to stick with the practices similar to slavery sort of argument. To do that I need to look at the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and the Institutions and Practices Similar to Slavery from 1956. Article 1d outlines practices similar to slavery as any institution or practice whereby a child or young person under the age of 18 is delivered either, or both of, his natural parents or by his guardian to another person whether for reward or not with a view to the exploitation of the child or young person or of his labour. So I thought I would just apply that straight up. So the first part of the article any institution or practice is identifiable in this instance as the paper orphaning process and the second part of the article that states whereby a child or young person under the age of 18 is delivered by either, or both of, his natural parents. Both of this circumstances occur in paper orphaning. In some cases parents voluntarily take their children to orphanages not realising they’re relinquishing their parental rights. In other cases recruiters travel through remote villages collecting children from families on the promise of education being provided but in both situations the child is delivered to the orphanage. I’m not sure if you’re familiar with Jean Allain’s work but he wrote the book the laws on international human slavery. He asserts that the supplementary convention becomes operational where a recruiter acting as a guardian during the transfer of the child from the parents knows that the child will be exploited. So it’s not necessary that the parents themselves may be aware that the exploitation may take place, it is essential that the recruiter knows which is a really important part of the argument. The third part of the article whether they’re for reward or not is also applicable, it’s clearly documented in some cases that parents are paying the recruiter to take the children but because it says for reward or not it is not a necessary condition, so it’s not mandatory to proving exploitation. The final part of the article is very important because it reads with a view to the exploitation of the child or young person or of his labour. The framing of that phrase provides an interesting nexus of interpretation because it indicates the division between the exploitation of the child on one hand and the exploitation of their labour on the other hand which is kind of unusual if you think about the normal trafficking paradigm. So because exploitation of their labour is not mandatory requirement for fulfilling that definition of exploitation the exploitation of the child per se is enough to fulfil the article.

I think there would be very little contest to the fact that you know throughout the 20th century we’ve seen a lot of research into indicating the harm that institutions do to children or have done, we don’t even have orphanages in most western countries anymore as a result of that research which is an interesting dichotomy and a discussion for another day. I think you could quite easily class children who are being held and used for orphanage tourism in a manner that’s profiteering from them as being exploited. If I could say that the children here are being exploited according to 1d I can say it’s a practice similar to slavery, if I can say it’s a practice similar to slavery I can they’re being exploited for the purposes of the Palermo Protocol. If I can say that then I can say they’re being trafficked, and if you don’t agree with me I’ve got some other arguments so see me after.

Thankyou.

[clapping from crowd]

Kate: So this paper is just about ready for submission and then the next step is looking at the construction of orphanhood and the reasons the children are being constructed as orphans. So there’s a few different elements to that and then further on from that I’m looking at orphanage tourism as the demand driver for the trafficking, so I’m sort of following a loop around.

Audience
Member: Could you define orphanage tourism? I think I know what you mean.

Kate: Yeah, for sure. So you will often see ads saying volunteer, volunteer with orphans, it’s a very common gap year kind of thing to do. Orphanage tourism in the general sense is going volunteering with children in developing nations. Also, you’ll note that if you go to Cambodia on some organised trips part of that will be a visit to an orphanage and the children will dance for you and you’ll make a donation. There’s other elements of people going to Thailand and visiting orphans. It’s quite a common thing to do I think and because it’s so common and people like to do it and it has a feel good factor as people feel like they’re offering something. That has sort of driven the market, I think, people have realised how lucrative it is as business model. It’s a fraught area to research because people feel quite compassionate about what they’re contributing as well. I certainly don’t want to undermine or make people feel not good about what they’re offering to the world but I think it’s a real problem we need to look at as children are being exploited in this manner. The UNICEF mandate has been deinstitutionalisation for a long time now and yet orphanages are cropping up and most of them are funded by the western world and most of them are not state orphanages. So in Nepal, there’s 600 children homes and there’s only one that is government run. Mostly volunteers are not screened, you can just walk into any café in Kathmandu and find an advertisement saying volunteer here with our kids they need your love. There’s been many cases of paedophiles, child abuse, people kidnapping children, children disappearing from orphanages. So I think it’s really important that we start to really have a look at what it is that we are doing and how we are contributing to this issue as Westerners too.

It’s been very confronting for me also obviously being in the position of being a person who was involved in an orphanage that’s very confronting. I was speaking to someone last night who was an adoptive parent who has from China has discovered all of the, you know, things that have happened there and has been very distressed by it. So I agree with you it’s not about demonization of people it’s about looking and acknowledging as an issue, I think, and if we can get it into the international realm of reporting we can start getting it included in the TIP report and then start having some pressure applied on countries to do something about it. As at the moment they’re just taking the tourism dollar and taking the orphanage dollar. You know they’re very happy to do that and the village guys are stamping the death certificates merrily and so all you’ve got is a legitimate death certificate of a parent, I’ve seen all of them for our children, we’ve done our due diligence and yet still.

My strategy is to illustrate through legal analysis that it is child trafficking and to make a submission to the TIP report to have it included as child trafficking because then it will go into the tier reports for the countries. Only then do I feel we will start to see some action from the countries that are the worst affected by this, like Nepal and Cambodia particularly. That’s my strategy at the moment.

Yeah, so I’m working, I’ve been speaking with UNICEF Nepal for example and they’re very interested in the outcome of this research because they’re doing a further project on orphanage volunteerism as well that I’m hoping to intersect with. But they’re relying on this being published so that they can use it as well. So yeah that’s who I’m working with at the moment.

[clapping from crowd]

[Musical outro 31.55 to END]
Interview ENDS: 32.21