7 Other international instruments include the Protocol to Prevent, Suppress and Punish Human Trafficking in Persons, especially Women and Children, supplementing the Convention against Transnational Organised Crime, the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. The relationship between the instruments should be understood as complementary (Tobin and Seow 2019, p. 1314).

8 The authors are grateful to an anonymous reviewer for emphasizing this point.

9 In 2015, the Committee on the Rights of the Child revised the guidelines for periodic reports to reflect the new cluster on violence against children and to update references to general comments (United Nations Committee on the Rights of the Child 2015).

10 Article 19 is regarded as "the core provision for discussions and strategies to address and eliminate all forms of violence in the context of the Convention more broadly" ((United Nations Committee on the Rights of the Child 2011, para. 7(a))).

11 In contrast to Article 19, Article 34 imposts a blanket obligation on states to protect children from sexual abuse and exploitation irrespective of whether they are in the care of their parents (Tobin and Seow 2019, p. 1312).

cluster (United Nations Committee on the Rights of the Child 2015, para. 40). The relevant articles in the ACRWC include Articles 14 (child labour), 16 (child abuse and torture), 21 (harmful social and cultural practices), 22 (armed conflicts) and 27 (sexual exploitation) in particular. In its General Comment No. 5 on State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection, the African Committee elaborates on the measures required to improve implementation of the ACRWC and in particular calls for States to States "to adopt a holistic approach" to realise children's right to survival, development and protection provided by Article 5 of the ACRWC. The African Committee explains that this is enabled by adopting a systems-strengthening approach to child protection (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 12). A systems-strengthening approach would include both formal and informal local contexts around the child (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 33).

#### *3.2. Domestic Implementation and the Role of the International Community*

The observations of the CRC Committee are useful to articulate the respective responsibilities of developing vis-à-vis donor countries. The CRC Committee is cognisant of the different starting points of State parties in implementing the CRC and obligations relating to protection of children from violence. The CRC Committee acknowledges that protecting children from all forms of violence is highly challenging in most countries and that States parties are designing and implementing measures from "very different starting points" with respect to existing legal, institutional and service infrastructures, cultural customs and professional competencies, and levels of resources (United Nations Committee on the Rights of the Child 2011, para. 70).

While recognising different starting points, the CRC Committee highlights that the right to protection from all forms of violence outlined in Article 19 is a civil right and freedom. As such, in applying Article 4 of the CRC (taking all appropriate legislative, administrative, and other measures for the implementation of the rights), implementation of Article 19 is "an immediate and unqualified obligation" of States parties (United Nations Committee on the Rights of the Child 2011, para. 65). This means that in spite of economic circumstances, States are required to undertake all possible measures towards the realisation of children's rights, paying special attention to the most disadvantaged and using available resources "to the maximum extent" (United Nations Committee on the Rights of the Child 2011, para. 65). The African Committee likewise emphasises that "whatever their economic circumstances, States Parties are required to undertake all possible positive measures towards the realisation of the rights of the child" and to pay "special attention to the most disadvantaged and marginalised groups" (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 6). On child protection specifically, the African Committee notes "State Party spending on child protection and systems strengthening is far too low, and lacks visibility in government budgets" (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 36).

The CRC Committee is explicit that "resource constraints cannot provide a justification for a State party's failure to take any, or enough, of the measures that are required for child protection" taking into consideration State parties' obligations under Articles 4 and 19 (United Nations Committee on the Rights of the Child 2011, para. 73). While acknowledging fiscal realities in Africa, the African Committee states that the ACRWC standards "were set intentionally" and "do not allow states parties to claim that they do not have any resources for the implementation of social and economic goods for the fulfilment of children's rights" (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 7). Furthermore, the African Committee explains it will "scrutinise diligently claims that non-fulfilment of rights is linked to non-availability of resources" and expects that States parties show "rapid forward progress in extending the reach and impact" of measures to realise children's rights (African Committee of Experts on the Rights and Welfare of the Child 2018, pp. 8–9).

The CRC Committee urges States "to adopt comprehensive, strategic and time-bound coordinating frameworks for child caregiving and protection" (United Nations Committee on the Rights of the Child 2011, para. 73). Similarly, the African Committee calls for "a national policy for children that provides a common, unifying, comprehensive and rights-based framework of action for all role-players", which is costed, has measurable targets and budget allocations (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 35). It is within such frameworks that responsibilities of NGOs in contact with children can be embedded.

In view of "different starting points", and on the understanding that budgets on national and decentralised levels should be the primary source of funds for child protection, the CRC Committee has drawn the attention of States parties to the avenues of international cooperation and assistance outlined in Articles 4 and 45 of the CRC (United Nations Committee on the Rights of the Child 2011, para. 74). The CRC Committee states that implementation of the CRC is "a cooperative exercise for the States of the world" and that the CRC "should form the framework for international development assistance related directly or indirectly to children and that programmes of donor States should be rights-based" (United Nations Committee on the Rights of the Child 2003, paras. 60, 61). The African Committee also encourages State Parties to ensure children's rights are "deliberately reflected and adequately catered for in all donor aid agreements, including with global finance institutions" (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 41). In General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence, the CRC Committee reiterates that child rights-based protection programmes should be one of the main components in assisting sustainable development in countries receiving international assistance (United Nations Committee on the Rights of the Child 2011, para. 74). This is reflected in part in the DAC Recommendation, in which signatories have expressly acknowledged the importance of strengthening child protection services. While forming part of recommendations by UNHCR and Save the Children (United Nations High Commissioner for Refugees & Save the Children UK 2002) and Csáky (Csáky 2008), this important element has not received significant attention in recent safeguarding discussions.

#### *3.3. Applicability to Non-State Actors*

At the very least, there are 'indirect' children's rights obligations for non-State actors to comply with children's treaty-based rights. In General Comment No. 5 (2003) on General Measures of Implementation, the CRC Committee emphasises that the legal obligation of State parties "to respect and ensure the rights of children as stipulated in the Convention" includes the "obligation to ensure that non-State service providers operate in accordance with its provisions, thus creating indirect obligations on such actors" (United Nations Committee on the Rights of the Child 2003, para. 6).

The CRC Committee further elaborates that child rights responsibilities extend in practice "beyond the State and State-controlled services and institutions to include children, parents and wider families, other adults, and non-State services and organisations" (United Nations Committee on the Rights of the Child 2003, para. 56). The CRC Committee has taken a broad view of NGOs constituting, for example, human rights NGOs, child- and youth-led organisations and youth groups, parent and family groups, faith groups, academic institutions and professional associations (United Nations Committee on the Rights of the Child 2003, para. 58). This broad view is particularly relevant in the African context where most services to children are delivered by civil society organisations (CSOs). These can include NGOs, faith-based organisations, volunteer networks, social enterprises, or philanthropic projects connected to for-profit companies (Parker 2018a, p. 2). Organisations that encounter children are not only those that provide social services such as education, health, nutrition, recreation, alternative care, and protection but also other services, including water and sanitation, infrastructure, as well as humanitarian relief.

The CRC Committee has also expressed its agreement with the Committee on Economic, Social and Cultural Rights in its General Comment No. 14 (2000) of the right to the highest attainable standard of health. Paragraph 42 of the General Comment reiterates that as parties to the Covenant, States are "ultimately accountable for compliance with it" but responsibilities for realisation of the right to health fall to all members of society, including health professionals, families, local communities, intergovernmental and NGOs, CSOs, and the private business sector. States parties are therefore called to "provide an environment which facilitates the discharge of these responsibilities" (United Nations Committee on the Rights of the Child 2003, para. 56).

#### *3.4. Best Interests of the Child*

The best interests' principle is fundamental and especially relevant for child safeguarding in the aid sector. Article 3(1) of the CRC provides that the best interests of the child shall be a primary consideration in "all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies." Importantly, the CRC Committee elaborates that "public or private social welfare institutions" should not be narrowly construed or limited to strictly social institutions but would apply to "all institutions whose work and decisions impact on children and the realisation of their rights" (United Nations Committee on the Rights of the Child 2013, para. 26).

The CRC Committee notes these would be bodies "not only those related to economic, social and cultural rights (e.g., care, health, environment, education, business, leisure and play, etc.), but also institutions dealing with civil rights and freedoms (e.g., birth registration, protection against violence in all settings, etc.)" (United Nations Committee on the Rights of the Child 2013, para. 26). Private bodies include "either for-profit or non-profit—which play a role in the provision of services that are critical to children's enjoyment of their rights, and which act on behalf of or alongside Government services as an alternative" (United Nations Committee on the Rights of the Child 2013, para. 26). This extension of this obligation to *private* social welfare organisations is quite unusual in an international treaty (Eekelaar and John 2019, p. 80).

The CRC Committee explains that Article 3 has implications for all implementation measures taken by governments, individual decisions made by judicial or administrative authorities or public entities through their agents, decisions made by civil society entities and the private sector, including profit and non-profit organisations, which provide services concerning or impacting on children, and guidelines for actions undertaken by persons working with and for children, including parents and caregivers (United Nations Committee on the Rights of the Child 2013, pt. II). The best interests' principle should therefore be the primary consideration in all actions concerning children undertaken by humanitarian and development organisations. Guidance from the African Committee reinforces the broad application of the best interests' principle. In its General Comment No. 5 on State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection, the African Committee states that Article 4(1) of the ACRWC provides that the best interests of the child shall be the primary consideration and this applies to both private and public institutions (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 11). The African Committee explains it is therefore "the responsibility of the State Party to ensure to the maximum extent possible that private actors, including ... various non-state actors engaged with children's rights and services, are aware of and apply the best interests of the child in all of their endeavours" (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 11).

Furthermore, Article 3(3) of the CRC provides: "State Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision." While some doubt was expressed as to the appropriateness of this provision, the legislative history suggests the rationale was to apply the best interests' principle to the very specific area of institutional care and service provision (Office of the United Nations & High Commissioner for Human Rights 2007, pp. 347–48). The application in alternative care settings is also explicit in the commentary of the African Committee (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 12).

There has been little exploration of this article, yet it is highly relevant to safeguarding discourse. In Africa, most institutional care is provided by NGOs and faith-based organisations, many of which

are funded by faith communities or individual donors from the Global North, and which often fail to register or comply with relevant government regulations (see for example Munthali 2019, p. 13). In its General Comment No. 5 (2003) on General Measures of Implementation, the CRC Committee emphasises that "enabling the private sector to provide services, run institutions and so on does not in any way lessen the State's obligation to ensure for all children within its jurisdiction the full recognition and realisation of all rights in the Convention." In relation to Article 3 (3), the CRC Committee explains that rigorous inspection is required to ensure compliance and proposes "a permanent monitoring mechanism or process aimed at ensuring that all State and non-State service providers respect the Convention" (United Nations Committee on the Rights of the Child 2003, para. 27).

#### *3.5. Intra-Organisational Processes and Codes of Conduct*

In General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence, the CRC Committee explains that administrative measures under Article 19 of the CRC "should reflect governmental obligations to establish policies, programmes, monitoring and oversight systems required to protect the child from all forms of violence" ((United Nations Committee on the Rights of the Child 2011, para. 42(b))). These include the development and implementation "through participatory processes which encourage ownership and sustainability" of intra- and inter-agency child protection policies and professional ethics codes, protocols, memoranda of understanding and standards of care for all childcare services and settings, for all levels of government and civil society institutions. Settings include daycare centres, schools, hospitals, sport clubs and residential institutions ((United Nations Committee on the Rights of the Child 2011, para. 42(b))). The implementation by government and civil society of rights-based child protection policies and procedures and professional ethics codes and standards of care are also mentioned by the CRC Committee in relation to 'prevention measures' (United Nations Committee on the Rights of the Child 2011, para. 47).

The emphasis on ownership and sustainability is important, otherwise there is a risk that the endeavour becomes a 'tick-box' exercise. In other words, if the codes and policies are to impact positively on children's protection, the process will require more than preparing paperwork that is filed and forgotten. There is a need for meaningful consultation among stakeholders, including children and young people themselves, and consideration of how international and regional standards can be implemented in a local context, in the best interests of the child. The values and behaviours elaborated within codes and policies must be owned and championed by organisational leaders and staff, and safeguarding policies and practice continually monitored, assessed and adapted. Pressure to produce a checklist of policies and procedures driven by a compliance imperative is unlikely to lead to change that improves children's protection.

The African Committee has echoed the importance of policies and personnel of NGOs in its recent General Comment No. 5 on State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection. The African Committee requires civil society organisations and international organisations working with children to adopt child safeguarding policies. Furthermore, the Committee suggests persons who have abused children should not be able to work with children, even as volunteers. Importantly, especially for the African context where NGO–government relationships in some countries are "characterised by a large amount of distrust, cooptation, and outright repression"(Gugerty 2010, p. 1090), the African Committee urges "State Parties to review the legislation governing the registration and operation of CSOs to ensure that it does not provide any impediment to their optimal functioning"(African Committee of Experts on the Rights and Welfare of the Child 2018). While there are different legal frameworks and self-regulatory mechanisms for NGOs across the continent (Gugerty 2010), child protection and safeguarding measures are not yet incorporated. Both the CRC and African Committees could raise questions on such standards in its list of issues for State party reports as part of their external oversight role.

#### **4. Key Dilemmas and Challenges for Child Safeguarding**

This final section sets out key areas for further consideration and critical debate by practitioners and policymakers in the effort to safeguard children from harm in the context of humanitarian and development activity. Recent developments and commitments are significant and promising. However, to harness the current momentum and ensure initiatives in the Global North positively impact children's safety in the least developed countries, there is arguably scope for a more nuanced and contextualised approach, guided by children's treaty-based rights and the best interests' principle.

Current sectoral efforts appear to largely focus on international NGOs with headquarters in the Global North and the risk of a 'Western' offender harming children in the world's poorest countries. This does not reflect the variety of organisations inhabiting the aid space and in contact with children. The focus on 'Western' staff is arguably disproportionate given that local staff make up the majority of the workforce in the developing world and both local and 'foreign' staff (of all levels) have been implicated in cases of child abuse (Csáky 2008, p. 9). This reality suggests that high-profile initiatives such as the global criminal records register may have a limited impact on the protection of children in the developing world. Firstly, a global criminal records register assumes that the person has already come to the attention of police and justice systems. It is well evidenced that "much abusive behaviour has historically gone unreported" and the majority of "perpetrators detected do not have prior convictions for any form of child maltreatment" (Tilbury 2014, p. 92). Secondly, the register assumes that there are functioning information management systems in the countries in which personnel have resided in order to be able to feed into the global database. This is not the case in most developing countries in Africa.

By way of example, even in one of the most developed countries on the continent, South Africa, implementing a scheme to identify persons unsuitable to work with children has proved largely unsuccessful. South Africa's Children's Act (Act No. 38 of 2005) mandates the Department of Social Development to keep and maintain a Child Protection Register (section 111), which consists of two parts. Part A records all reports of abuse or deliberate neglect of a child and Part B lists persons declared unsuitable to work with children. The Act requires all organisations to assess and verify the suitability of employees and potential employees who will "work with or have access to children" (section 126). As of March 2019, the register has 509 names of persons declared unsuitable to work with children and the department has only received 140,029 suitability check enquiries from employers and individuals. With over 10 million people in South Africa employed in the formal non-agricultural sector (Department of Statistics, South Africa 2019), the small number of suitability checks makes it clear that the register is not functioning optimally. Among other challenges, the register is constrained in that it does not align with the National Register for Sexual Offenders, resulting in critical omissions in the list of crimes that warrant inclusion on the register, such as attempted rape (KPMG 2016, pp. 42–43).

Even high-income countries with functional and routine criminal records checks for determining suitability of working with children are increasingly cognisant of their limitations. In Australia, for example, some commentators suggest the scope of screening regimes risk being "too big and too expensive to be sensible" (Tilbury 2014, p. 92). At worst, an overreliance on such mechanisms can be detrimental to children's safety. The Royal Commission into Institutional Responses to Child Sexual Abuse in Australia—one of the most probing government inquiries to have taken place—found that Australia's Working with Children Checks can provide a "false sense of comfort to parents and communities and may cause organisations to become complacent" due to the mistaken belief that people who have undergone these checks do not pose any risks to children (Australia & Royal Commission into Institutional Responses to Child Sexual Abuse 2015, p. 3).

Screening is only one in a range of strategies needed to make organisations child safe. Rather than a sole focus on trying to identify individuals and prevent them entering organisations, lessons from other jurisdictions emphasise to the need "to modify environments, thereby reducing the likelihood that anyone could engage in abusive behaviour" (Higgins et al. 2016, pp. 54–55). There should also be attention on the structures and opportunities within the sector that enable abuse to occur. Lessons may be drawn from the large body of literature about the role of institutions (both government and non-government) with responsibility for children in preventing and responding to child sexual abuse. The UK Independent Inquiry into Child Sexual Abuse, for example, commissioned a Rapid Evidence Assessment and identified structural and organisational factors shown to facilitate child sexual abuse (Radford et al. 2016). These included privacy and the offender being alone with the child, persons in positions of trust having little supervision or monitoring, lack of safeguarding policies, failure to report or to sanction offenders, a culture where abuse is normalised, hierarchical organisations where it is difficult for junior staff to complain, lack of an adequate complaints system, and a lack of safe space for children who are victimised to tell anyone about the abuse, and to have complaints acted on appropriately (Radford et al. 2016, p. 17). This highlights the limitations of 'tick-box' exercises focused on paperwork and calls for a localised and thorough assessment of how NGOs in the developing world interact with children and what risks these interactions present.

On a larger scale, this also requires the sector to grapple with the inequitable power relations that characterise their interactions with communities and children. In the 2008 Humanitarian Accountability Partnership report of consultations with aid beneficiaries on their perceptions of efforts to prevent and respond to sexual exploitation and abuse, Lattu (Lattu 2008, p. 52) concluded that the single most important reason for the "humanitarian accountability deficit" is the uneven relationship between agencies delivering aid and users of humanitarian assistance which puts the users "at a structural disadvantage in their relationship with humanitarian aid providers." This inequitable relationship is echoed in the voices of children, captured in empirical evidence on the subject. For example, an adolescent girl in Liberia is quoted as saying: "These NGO workers they are clever they use the ration as bait to get you to have sex with them" (United Nations High Commissioner for Refugees & Save the Children UK 2002, p. 44). Similarly, the following quote from an adolescent girl in Cote d'Ivoire, "He's using the girl but without him she won't be able to eat", and an adolescent boy in South Sudan, "People don't report it because they are worried that the agency will stop working here, and we need them" (Csáky 2008, p. 7). This observation is not new, nor limited to children, but it is one that has arguably not yet been adequately addressed. It calls for transformative change in the sector. There are indications of some organisations starting to contend with these entrenched power dynamics.

In addition to inequitable power relations, safeguarding efforts need to pay greater attention to longstanding attitudes and beliefs on child abuse and appropriate responses to it. These social and cultural norms form part of the "very different starting points" in the implementation of children's rights as highlighted by the CRC Committee (United Nations Committee on the Rights of the Child 2011, para. 70). Social and cultural norms relating to children and child abuse may be either protective of children or enhance their vulnerability. These norms need to be considered in safeguarding efforts as they are both risk factors and barriers to help seeking.  Many of these norms intersect with norms that enable violence against women but there are also distinct norms relating to children including their low status and socialisation for obedience and acquiescence (Lalor 2004; Plummer and Njuguna 2009). By way of example, the following quote from a South Sudanese girl is illustrative of various attitudes and practices at play that contribute to individual and community responses to abuse: "The father would try to persuade the man to take the girl as a bride and to pay cattle for her. He would not ask the girl whether she wants this. So really the girl gets no advantage from telling anyone about the abuse" (Csáky 2008, p. 17). Norms on masculinity also contribute to low disclosure rates by boys that experience sexual abuse (Guedes et al. 2016, p. 6). Importantly, those beliefs and norms found on the community level also manifest amongst the local staff of aid organisations as well as the staff and volunteers of their implementing partners (Sloth-Nielsen 2014, p. 957). Additionally, they will be found amongst duty bearers or service providers that will be called upon to respond when allegations of child abuse emerge and are reported.

Closely linked to this point, in most of Africa's least developed countries, the institutional dimensions to address child abuse (such as infrastructure in law enforcement, judiciary, health and social welfare) are constrained. Victim and witness protections are weak and reporting to formal services may put children and communities at further risk. This raises potential ethical dilemmas for reporting abuse. Walker-Simpson argues that "the very act of reporting abuse may actually expose the child to additional risk" in contravention to the 'do no harm' principle (Walker-Simpson 2017, p. 258). Informal community practices are often the prevailing system employed for dealing with child abuse. While these may not always seem to provide adequate protection when "judged through a Western lens", they are "often considered the least stigmatising, most accessible, and most helpful of interventions by communities" (Krueger et al. 2015, p. 22). This highlights the criticality of meaningful consultation and addressing the attitudes and expectations of local people, otherwise "no matter how strong an NGO's internal safeguards, if children and their caregivers are unwilling or unable to report abuse, protection procedures will remain 'fatally flawed'" (Walker-Simpson 2017, p. 259).

The push to establish complaints mechanisms for specific projects or organisations can also be problematic, especially in the absence of a functioning system at local or national level. Parallel systems risk creating perverse situations, where there is a system in place to refer, investigate, report, and act upon cases of violence *only* if it is perpetrated by an aid worker. Violence against children in the context of aid cannot be detached from child protection generally, just as sexual exploitation and abuse by aid workers cannot be detached from gender-based violence generally (Stern 2018). There is a need to "move away from programming silos focussed on perpetrators and their acts", and instead focus "on victims and their harm" (Stern 2018). There is some parallel to efforts to disrupt child sexual abuse and exploitation in the context of tourism, especially in South East Asia, where international advocacy and programmes focused more on the foreign sex offender and less on the underlying and interlinked factors contributing to children's vulnerability (Kaviani Johnson 2014). Similarly, research shows that those children vulnerable to abuse by aid workers are "already vulnerable children" including orphans, children with disabilities, children separated from their parents, children from especially poor families, children who are discriminated and marginalised, children displaced from their home communities, migrant, refugee and asylum-seeking children, and children from families who depend on humanitarian assistance (Csáky 2008, p. 7). The African Committee calls for a systems-strengthening approach to child protection and explains that an issues-based approach has, in the past, "resulted in a fragmented child protection response, marked by numerous inefficiencies and pockets of unmet need" (African Committee of Experts on the Rights and Welfare of the Child 2018, p. 33). It follows that investment in child protection systems strengthening is strongly interlinked with the responsibility of delivering aid in a way that does no harm and would sustain efforts to ensure protection of children in the developing world.

Finally, there are new challenges for children's rights, which arise from development and humanitarian activity in the digital era. The Committee on the Rights of the Child is currently drafting a General Comment on children's rights in relation to the digital environment. One group of rights to be realised in a digital world is the protection of privacy, identity and data processing. This is highly relevant for aid organisations in the developing world. The aid sector uses mobile telecommunications, messaging apps and social media to coordinate their work, communicate with staff and volunteers, and engage with the people they serve ((International Committee of the Red Cross ICRC, p. 11)). Many African countries are also seen as a "testing ground" for technologies produced elsewhere and,

as a consequence, the personal data of people on the continent, including children, are increasingly stored in hundreds of databases (Privacy International 2020). This is especially relevant with current digital health surveillance in the response to COVID-19. The way in which data, including children's data, is collected and is used is changing quickly and the ongoing accumulation of data about children throughout their lifetime can create a variety of unforeseen risks and challenges (Viola de Azevedo Cunha 2017). Some children, for example, refugee children, may be particularly vulnerable to invasions of privacy in the form of data surveillance as well as dangers resulting from data-leaks or misuses (Peace Research Institute Oslo 2018). This is an area for further examination and focus for the sector.

#### **5. Conclusions**

The increased attention and strong consensus and commitment to address sexual exploitation and abuse in the aid sector is commendable. The suite of standards may coordinate and socialise NGOs in advancing child safeguarding and reducing organisational risk, especially for those NGOs with headquarters—or funded by donors—in the Global North. This is an important endeavor given the fact that, in many of the world's least developed countries, non-State actors deliver the majority of services to children and thus have an important role to play in contributing towards their protection. Furthermore, as discussed, non-State actors have—at the very least—'indirect' obligations to comply with children's treaty-based rights. Going forward, it is suggested that the safeguarding discourse applies a child rights-based approach and considers the various intersections between humanitarian and development activity and children's treaty-based rights. This should encompass all risks and harms, including those emerging in the digital age. Furthermore, given the strong links and dependency between intra-organisational efforts and national systems, there is a need to go beyond intra-organisational policies and self-regulation. NGOs and governments must be jointly and severally responsible for child safeguarding. In the case of national governments, progressive improvement of child protection standards and oversight of non-State actors working with children is required. To do this, national and international investment is needed for strengthening child protection systems on national and local levels in the developing world. To be sustainable and contribute to meaningful change for children, efforts cannot be driven by the latest scandal, but must be motivated by a genuine commitment to children's treaty-based rights. With less than ten years to achieve Agenda 2030 and at a time where the world is battling COVID-19, which rapidly risks becoming a child rights crisis (UNICEF 2020; United Nations Committee on the Rights of the Child 2020), this is more important than ever before.

**Author Contributions:** A.K.J. drafted the article with conceptual inputs and supervision from J.S.-N. Editing was shared. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Acknowledgments:** The authors thank two anonymous reviewers for critically reading the manuscript and providing helpful comments.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **References**

© 2020 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/).

## *Article* **Kenya's Over-Reliance on Institutionalization as a Child Care and Child Protection Model: A Root-Cause Approach**

#### **Njeri Chege 1,\* and Stephen Ucembe 2**

#### Received: 1 March 2020; Accepted: 17 April 2020; Published: 22 April 2020

**Abstract:** Institutionalization of children who are deprived of parental care is a thriving phenomenon in the global South, and has generated considerable concern both nationally and internationally, in the last two decades. In Kenya, the number of children growing up in live-in care institutions has been growing ever since the country's early post-independence years. Although legislative and regulatory measures aimed at child protection have been in place for a number of years now, and the national government appears to be standing by the commitment it expressed in recent times to implement care reform which encompasses de-institutionalization, the national child protection system remains very dependent on institutional care. Against the backdrop of a global and national movement towards de-institutionalization of child care and child protection, in this paper we tease out the range of factors reinforcing Kenya's over-reliance on live-in institutions as a child care and child protection model. Numerous factors—structural, political, economic, socio-cultural, and legal—contribute to the complexity of the issue. We highlight this complexity, bringing together different angles, while pointing out the interests of the different stakeholders in reinforcing institutional care. We argue that the sustainability, efficiency and effectiveness of the intended change from institutional care to alternative family-based care requires that a root-cause approach be adopted in addressing the underlying child care and child protection issues.

**Keywords:** institutionalization of children deprived of parental care; de-institutionalization of child care and child protection; root cause approach; Kenya

#### **1. Introduction**

In Kenya, despite an increase in national legislative and regulatory measures aimed at child protection over the last three decades, there have been rapid increases in the numbers of institutionalized children, and residential child care facilities1. As a result of the observations made, concerns raised and pressure exerted by civil society organizations and international organizations with regard to these rising numbers, and their implications in relation to the welfare, and rights of the concerned children, in November 2017, the Kenyan government announced a moratorium on the registration of new live-in child care facilities. More recently, an active government-led and INGO and civil society-motivated care reform pilot project which encompasses de-institutionalization was launched in mid 2018, in Western Kenya, and is expected to be expanded to other counties countrywide over the next years (Miseki 2018). Yet, the national child care protection system remains very dependent on institutional care.

1 Throughout this paper, we use the terms residential child care facilities, residential care institutions, live-in care institutions, care institutions and institutions interchangeably.

On the African continent, country specific dynamics and processes related to institutionalization are yet to undergo rigorous examination in existing literature. Hence, as Kenya embarks on a path of care reform, we propose to make a contribution towards this, by focusing on different aspects related to the child care and protection model in Kenya. More specifically we unveil the intertwined range of factors—structural, political, economic, socio-cultural, and legal—that have been reinforcing Kenya's over reliance on institutionalization as a child care and child protection model. We posit that focusing on addressing the root-causes underlying child care and child protection issues in the country is preferable to the current standard approach to child protection—which consists of addressing the visible factors of vulnerability.

While the focus of this paper is on Kenya, child and youth care reform is a crucial issue that is of global relevance, and is one that poses, and encounters particular challenges in global South contexts. Across global South countries, there are particularities, certainly, but also similarities, where issues and challenges related to child protection and care reforms are concerned. Hence, the discussions and insights in this paper are also relevant for readers whose interests may be on other global South countries.

From a methodological perspective, this paper is based on a comprehensive desk research, which included reviews and analyses of published and unpublished peer reviewed works (articles, books, book chapters, theses); grey literature; and press articles, on the thematic fields of child protection, child care, children's rights, institutionalization, de-institutionalization and care reform in Kenya. It is also informed by our professional and personal experiences, personal knowledge, questions and reflections on a range of issues related to the care and protection of children lacking adequate parental care.

We start from the observation that while a lot of knowledge has been generated on family and community-based care in Africa (see for example Isiugo-Abanihe 1985; Foster 2005; Mathambo and Richter 2007; Mushunje 2006, 2014; Hampshire et al. 2015), little is known about residential care institutions as a child protection and care model in African countries (Hermenau et al. 2011). Yet, for over two decades now, the rhetoric of 'Africa's AIDS orphan crisis'2 has indirectly contributed to perpetuating the idea that on the African continent, institutions are the ideal solution for children deprived of parental care (Richter and Norman 2010; Cheney and Ucembe 2019). This idea has been anchored by, and is evident through the large financial and logistical support, and volunteer or voluntourist labour that 'orphanages' in numerous African countries have continued to receive from individuals, associations, corporates, secular and religious charity organizations locally and more significantly from the global North. This has contributed to the proliferation of residential child care institutions on the continent (Tolfree 1995; Cheney and Ucembe 2019).

#### **2. Background**

Evidence from medical and social science research has shown the negative impact institutional up-bringing has on children's physical, cognitive, emotional and social development (Browne et al. 2006; Engle et al. 2011; Beckett et al. 2002; Rutter et al. 1999; O'Connor and Rutter 2000; MacLean 2003; Tolfree 2003). Yet, the upbringing of children in live-in care facilities is still actively practiced in numerous countries around the world.

Over the years, this has become a global preoccupation: concerns have been raised and experiences and practices related to children's institutionalization shared, debated and discussed within, and beyond national borders by child care experts, practitioners and children's rights activists. This, coupled with the human rights revolution, triggered a shift in thinking. Numerous national governments both in the global North and South—but more so in the former—embarked on de-institutionalization, understood as a long haul process through which the national child protection systems are comprehensively

2 It was driven by UNICEF (2003a) and was taken up and propagated by a range of political and social actors (Governments, INGOs, NGOs and do-it-yourself humanitarians).

reformed, and institutions are replaced by a range of suitable alternative care services that prioritize prevention and are focused on family-based up-bringing of children (Better Care Network 2017, p. 8; Opening Doors 2012).

In the Global North, notably North America and in numerous countries in Western and Northern Europe, public policies and child protection policies, in particular those related to education, health, employment/unemployment have gradually been transformed, principally targeting the family unit (UNICEF 2003b, p. viii). Overall, reforms undertaken especially in Northern and Western Europe have resulted in a reduction in the number of institutions and the number of children being channeled into institutions, through the establishment of robust gate-keeping mechanisms and the enhancement of alternative family and community-based care services (National Academies of Sciences et al. 2016, p. 14; Tolfree 1995, p. 16).

Conversely, in several countries in Eastern and Central Europe, and in numerous countries on the Asian and African continents and in the global South more generally, the reverse has been happening: the number of residential child care institutions and the number of children said to be deprived of parental care—indiscriminately and strategically identified as 'orphans'—have increased tremendously (Opening Doors 2012; Cheney and Rotabi 2014).

In what follows, we begin by presenting a brief historical account of institutionalization of children in Kenya. Given the paucity of historical data on the subject, ours is but an attempt to identify the building blocks of Kenya's contemporary institutional model—we therefore do not claim to be exhaustive. This is followed by a discussion of the country's current child protection and care model, and an unravelling of its problems. We then move on to identify the root-causes underlying child care and child protection issues in the country, before concluding. Across the different sections we tease out the range of factors—structural, political, economic, socio-cultural, and legal—reinforcing Kenya's over-reliance on live-in institutions as a child care and child protection model, highlighting the complexity of the issue, bringing together different angles, while pointing out the interests of the different stakeholders in reinforcing institutional care. Overall, we argue that the standard approach to child protection—which consists of addressing the visible factors of vulnerability—is inadequate, and the sustainability, efficiency and effectiveness of the intended change from institutional care to alternative family-based care requires that a root-cause approach be adopted in addressing the underlying child care and child protection issues.

#### **3. The Beginnings and Progression of Kenya's Institutionalization Model**

In Kenya, the philosophy of institutional care for children deprived of parental care is prevalent. However, as a concept it is relatively recent. As Tolfree notes, there are not that many countries in the global South that have a long history of institutional care for children and this is because the institutional model was for the most introduced by missionaries or by colonial government departments, 'which modelled themselves on their counterparts in the colonial power, often emulating the pattern of residential care which was widespread in Western Europe' in the earlier decades of the twentieth century (Tolfree 1995, p. 15). Pinheiro also shares that most 'orphanages' that have existed in most Africa countries were until not so long ago started by missionaries (Pinheiro 2006, p. 184). Missionaries majorly provided health care and education (Hearn 2002, p. 384; Tolfree 1995, p. 38) and many of the aforementioned institutions were used to provide these services.

While the beginnings and historical progression of institutionalization of children in Kenya remains unclear, and is poorly documented (Ucembe 2016), one can nonetheless trace a historical outline of this phenomenon by referring to some historical events that significantly impacted the lives of families and communities. We see the need to briefly situate public and civil society concern for children deprived of parental care and Kenya's contemporary institutionalization model in relation to on the one hand, *occurrences before, and during the country's colonial period*, and on the other hand, *political, economic and socio-cultural transformations, and events which took place after the country's political independence from the British*. The former include the East African slave trade, the second world war, and the war for independence from British colonial rule. The latter include, rural urban migration, rapid urbanization, HIV/AIDS pandemic, economic structural adjustments and political and armed conflict that led to displacements, separation, loss of lives and accentuated poverty conditions.

Not much literature has been published about children in the East African slave trade. However, historical accounts show that in the late 19th century, the Kenyan coast, more specifically Frere Town and Rabai served as places of refuge and settlement for freed African slaves (Mbotela 1934; Morton 2009; Khamisi 2016). Although the trend in the literature has been to conduct analyses without distinguishing children among the adult slaves, the work of descendants of East African slaves like Mbotela (1934) and Khamisi (2016) as well as that of historians like Morton (2009), which focused on the experience of child slaves in East Africa, enable us to consider that perhaps one of the earliest forms of institutionalization of children in what is today Kenya took place in the late 19th century, when African child slaves who had been apprehended by British patrols were placed in the care of the Christian Mission Society (CMS).

According to Morton, these children, known as 'Mateka' became the teachers and evangelists (alongside 'Bombay Africans') whom the CMS used to establish mission stations on the Kenyan interior (Morton 2009, p. 66). A similar spirit of evangelization is to be found in some of today's children's institutions in the country, which are run by/or supported by religious institutions and donors from North America and Europe3.

The second world war, and the war for independence from British colonial rule (Mau Mau) are two other historical events that undoubtedly impacted the lives of African households and communities. As the works of historians like Parsons (1999) show, the involvement of men—sons, husbands and fathers—as soldiers in the colonial King's African Rifles army, resulted in deaths, in particular during the aforementioned war periods. Attention also needs to be drawn to the separation and deaths among civilian African populations that took place between 1952–1960, when British colonial soldiers arbitrarily arrested and detained families. This resulted in many permanent separations of children from their parents and extended families4.

In the post-second world war period (early nineteen fifties), formal concern for children's welfare in Kenya begun through the activities of the East African Women's League (whose members were predominantly European women), who lobbied for the Colonial Government's appointment of a special committee that would look into children's issues and would provide specific recommendations for improving child-related legislation, as well as develop the spirit of voluntary work with regard to children in need of care and protection5. The Child Welfare Society of Kenya, which was created in 1955, is itself a product of this spirit of volunteerism. It runs one of the oldest post-independence residential care institutions for children deprived of parental care—the Mama Ngina Children's Home which was founded in 1969.

Several interrelated factors can account for the growth of the institutional model during the post-colonial period. First, the accelerated unsustainable urbanization which resulted from the unrelenting migration of rural populations into urban centers, and which gradually accentuated poverty in the capital city Nairobi, but also in other towns such as Mombasa, and Kisumu (Cottrell-Boyce 2010). While the initial migration and urbanization were economically motivated, over the years, both continued unabated as both rural and urban populations also migrated into urban areas, in times of political unrest (discussed further ahead).

Second, the social and economic effects of the Structural Adjustment Programmes (SAPs) experienced in Kenya in the 1990s, also played a part in the growth of the institutional model.

3 For example, across the country, there are a myriad of educational as well as care facilities run by various denominations: the Presbyterians, Evangelicals, Catholics, Mormons, among others (see for example Hearn 2002).

4 See for example: https://www.aljazeera.com/indepth/features/2016/04/mau-mau-kenyans-share-stories-torture-160428131800531. html (accessed on 13 February 2019). See also White (1990) who mentions stories of parentless children in the East African Standard newspaper, which resulted from the colonial government's repressive acts on member's of Kenya's Central communities.

5 See https://www.cwsk.go.ke/about-us/who-we-are/historical-background/ (accessed on 15 February 2019); https://www. eawl.org/1950s (accessed on 15 February 2019).

The drastic reductions in public spending imposed by the Bretton Woods institutions resulted in the loss of employment for thousands of civil servants, and cuts in public spending on social services. For struggling and poor families, the move from subsidized social services to cost-sharing represented considerable financial burden, and globally aggravated poverty. Alongside parents' struggles with trying to provide their children's most basic needs (food, shelter, clothing), many could no longer access essential services such as health care and education. Parallel to these socio-economic changes, the HIV/AIDS pandemic was raging through the country, resulting among others in deaths, impairment of parents and caregivers' abilities to care for children, shifts in family structure, poverty, and overall family instability (Skovdal and Campbell 2010).

Based on Tolfree's analysis of colonial and post-colonial child protection frameworks and services in former English colonies we can include Kenya in the number of African countries whose post-independence response to the plight of unprotected children was very similar to that of the colonial powers. Kenya's immediate post-colonial and present day legal framework was derived considerably from the 1930s and 1940s English laws governing the protection and care of children. Similar to the latter, the services availed through the post-independence child protection framework reflect a rescue, control (of "deviant" behavior which includes delinquency, vagrancy and prostitution) and train approach. The services, which were characteristically remedial, were comprised of approved schools and other kinds of residential care (Tolfree 1995, p. 39).

The dawn of SAP and consequent privatization policies created a significant space for Non-Governmental Organizations (NGOs) to intervene in providing public goods (Hearn 2002, p. 376). The reduction of public spending resulted in a reduction of the financial burden on the government but also increased humanitarianism through voluntourism and NGOs. This saw the dominance of privately funded child care institutions within a short period. Oversight of these institutions has been significantly wanting (Njoka and Williams 2008, p. 1) resulting in proliferation and all manner of malpractices. This poor oversight could be traced back to the earlier mentioned cuts in public spending through which the government's capacity to provide oversight over NGOs' activities was negatively affected (Hearn 2002, p. 387).

The manufacturing of an 'orphan crisis' by international organizations and individuals is another factor that has contributed to the proliferation of child care institutions. During the 1990s at the height of HIV/AIDS pandemic, the exclusive focus on 'orphans' by international development organizations such as UNICEF (2003a), led to 'misidentification' of children, triggering significant 'save' and 'rescue' interventions among social actors (Cheney and Rotabi 2014; Chege 2018), especially Christian evangelicals from the global North. Apart from the Christian interventions, non-religious groups and individuals ranging from gap year students to do-it yourself humanitarians—through voluntourism—also travelled to the country to offer support (Cheney and Ucembe 2019). The exclusive focus on 'orphans' resulted in an explosive supply of children by both local well-intentioned and unscrupulous organizations, to meet the demand coming from the global North.

Political unrest and armed conflict notably in the early 1990s and in 2007–2008, during former presidents Moi and Kibaki's time in office, respectively, also created conditions that favored the institutionalization of children. Both resulted in loss of lives, displacement and separation of families, more so parent-child separations. The aforementioned socio-economic conditions of the 1990s followed by the political unrest and violence, resulted in the entry and intervention of several NGOs which gradually took over government functions in the social sector, notably in the domain of child protection, care and education.

Alongside, and as a result of these political, economic, and socio-cultural changes, came the disintegration of the kinship care support system, which previously served as a support network that catered for children in need within families and communities (Suda 1997; Mugo 2004). Children who, in the event of their biological parents' deaths or incapacity to care for them, would normally have been cared for by close relatives, ended up on the streets and in charitable children's institutions.

#### **4. Kenya's Current Child Protection and Care Model and Its Problems**

For several decades now, the care of children at risk or without parental care is increasingly being assured by secular or faith-based private residential care institutions, which are for the most run by national and international Non Governmental Organizations (NGOs) and/or by individuals. These institutions, officially termed 'Charitable Children's Institutions' (CCI), are recognized by the State, and their roles and legal obligations are outlined in Kenya's Children Act.

#### *4.1. Gaps in Child-Related Statistics*

The exact number of children growing up without parental care in Kenya and around the East Africa region today is hard to pin down (Save the Children International 2015). While a common database termed the 'Child Protection Information Management System' exists in Kenya since May 2017 (Mutavi 2017), it has not reached all of the country's counties. By the end of 2017 only 15 counties had been reached, with a plan to roll out the system in the remaining 32 by the end of 2018 (UNICEF 2017, p. 33). To date, this has not been successful.

Such gaps in child-related statistics have resulted in the same or differing figures being recycled in both grey and scholarly literature over a period of years. For instance, in a 2015 study that was part of a UNICEF global initiative, the number of orphans and vulnerable children in Kenya was estimated at 3.6 million, among whom 646,887 were double orphans6. It was specified in a footnote that the exact number of orphans and vulnerable children was 3,612,679 (Government of Kenya et al. 2015, p. 6). This figure was sourced from the Kenya Social Protection Sector Report published by the Ministry for Planning, National Development and Vision 2030, in June 2012, where it also appears to have been sourced from an earlier publication.

Comparatively, a study conducted in 2014 using data from the 2012 Kenya AIDS Indicator Survey (KAIS)7, estimated the number of orphans and vulnerable children in the country at 2.6 million, with orphans estimated at 1.8 million (among whom 15 percent or 270,000 were double orphans) and vulnerable children at 750,000 (Lee et al. 2014).

The aforementioned collaborative Government of Kenya, UNICEF and Global Affairs Canada study estimated charitable children's institutions in Kenya in 2015 at over 830 (Government of Kenya et al. 2015, p. 8). According to the study, an estimated 40,000 to 42,000 children lacking parental care were living in CCIs (Government of Kenya et al. 2015, p. 8)8. It is also estimated that over 80% of children in institutional care have one or both living parents. As with the national statistics on children living without parental care, these figures have been quoted and re-quoted over a period of several years, and it is often difficult to find the source of the estimates, which at best, are guesstimates.

#### *4.2. National Laws Skewed to Care in CCIs*

The Kenyan government is considered to be among the 'most child-friendly' on the African continent (African Child Policy Forum ACPF, p. 6). Kenyan legislation related to children has often been referred to as progressive to the extent that the country was ranked first by the African Child Policy Forum (ACPF), in relation to its efforts to put in place an appropriate legal and policy framework for the protection of children (African Child Policy Forum ACPF, pp. 49–51). The country is a signatory to the UN Convention on the Rights of the Child, the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, the African Charter on the Rights and Welfare of the Child, and the UN Convention on the Rights of Persons with Disabilities. However, Kenya's adherence

6 According to UNICEF's broadened definition of orphan, a 'double orphan' is a child whose both parents have died, while a 'single orphan' has one living parent (UNICEF 2003a).

7 For the 2012 Kenya AIDS Indicator Survey (KAIS) see National AIDS and STI Control Programme .

8 The uncertainty surrounding these figures and the caution with which one needs to consider them is clearly reflected in the large bracket.

to these international legal conventions has not resulted in the successful protection of vulnerable children in the country. As Cooper rightly puts it, 'the existence of laws and protocols cannot be trusted as indicators of success in protecting vulnerable children' (Cooper 2012, p. 495). Although the country led in policy and legal frameworks with regard to child protection, the African Child Policy Forum in the aforementioned report shows that Kenya was ranked 20 (out of 52) in terms of the government's budgetary commitment to provide for children's basic needs and ensure their well-being (African Child Policy Forum ACPF, p. 64). The restrictive allocation of financial resources to child protection and care by the national government has been possible because it both passively and actively outsources child protection and care to the third sector (Ucembe 2015b; Chege 2018). Subsequently, a 'not our money, not our problem' mentality has characterized the last three post-independence governments' work related to child protection and care.

The progress made in legal frameworks cannot avoid being faulted for the many defects of the care reform. The current Children Act has paid more attention to elaborating institutional care than other family and community-based care options (Ucembe 2015a). For instance, while the Act in Part 5 has 15 sections and 55 mentions, kinship care is not mentioned, foster care has 8 sections and is not clearly defined to enable proper practice. The Act's third schedule is particularly problematic in that it stipulates that in order to receive registration approval, an institution, 'must accommodate or have capacity to accommodate at least twenty children'. This has led to many CCIs going out in search of children in families and communities so as to fill the required 20 children bed capacity. The government also came up with the National Standards for Best Practices in Charitable Children's Institutions (Government of Kenya 2013), and although well intended, in doing so, it furthered the narrative that serves to promote these institutions. The aforementioned third schedule clearly shows that certain legal provisions, if not critically examined, can hinder progress or change.

#### *4.3. Fragmented National Framework and Absence of Coordination in Child Protection Policy*

In 2011 Kenya defined a national framework for child protection system. However, the framework in question is quite fragmented. As was defined by the National Council for Children's Services (2011) it is weighed down by governmental ministries (nine) and state services, and not much place, if any, is accorded to communities and parents as stakeholders. A key consequence of such fragmentation has been the absence of coordination in policy development, implementation, and enforcement which has in turn been contributing to reinforcing the institutionalization of children. This can be seen, first, in the absence of coordination related to cash transfer programmes put in place by the national government. While traditionally in Kenya the care of children who were deprived of parental care was assured by kin, over the years, this changed following the socio-economic upheavals (discussed in the previous section), which resulted in deepening poverty and social inequality across the country9. This contributed to the disintegration of families and weakening of the extended family networks, which motivated the initiation of Cash Transfer Programmes in 2004, which included the Orphans and Vulnerable Children Cash Transfer (OVC-CT); Cash Transfer for Persons with Severe Disabilities; Cash Transfer for the Elderly, and the Hunger Safety Net Programme.

Since the introduction of these programmes, the country experienced a three-fold increase in public funding between 2010 and 2014 (Wanyama and McCord 2017, p. 11). However, these cash transfer programmes were, and are still not interweaved with alternative care, which would prioritize prevention and reinforce family-based care. This is despite the availability of evidence indicating the benefits of such an approach. A report that was officially launched and released in Nairobi by Family for Every Child (Roelen 2016), and which was based on a study conducted in three African countries (Ghana, Rwanda and South Africa), showed that cash transfers can among others 'prevent family

9 It is important to note that little effort was made to monitor these dynamics, and to institute social protection measures to protect against family disintegration.

separation and increase reintegration of children' and can 'enable families to care for children who are not their own' (Roelen 2016, p. 9).

The absence of coordination in policy development, implementation and enforcement can also be seen in the enormous time lapses between the periods when evidence of impediments to child protection is provided by official bodies within the country, and the national government's lagged response to the problems. From as early as November 2008, the Department of Children's Services under the Ministry of Gender, Children and Social Development on assessing the legal provisions and practices of guardianship, foster care and adoption of children in Kenya, observed that the proliferation and mal-practices of CCIs stood as an impediment to the development of alternative family care solutions. Therefore, the Ministry recommended that a moratorium on the establishment and registration of CCIs be pronounced and enforced. However, it was not until November 2017 that the government pronounced a ban on the registration of new CCIs10. This ban, and a related earlier one pronounced against intercountry adoption in November 2014 (discussed further on) revealed that Charitable Children's Institutions had become pathways of child trafficking11.

It is important to note the connection between the institutionalization model and the growth of inter-country adoption. Since the late 1990s, there has been a decrease in the availability of adoptable children in the former source countries, namely Russia, China and Korea (Selman 2009). Consequently, over the last three decades, the African continent as a source for adoptable children, has increasingly attracted the attention of prospective adoptive parents and adoption agencies in the global North (Mezmur 2010; African Child Policy Forum ACPF; Cheney 2014). In Kenya, CCIs are a gateway to adoption, since officially, children have to go through an institution in order to be adopted, as provided in the Children Act (Laws of Kenya 2001). The combination of demand for adoptable children through inter-county adoption12 and inter-country adoption being a money spinner, has resulted in a process whereby more adoptable children, in this case young children, have to be produced and admitted to institutions for inter-country adoption purposes, thus resulting in commodification.

In Kenya, pervasive inter-country adoption malpractices by institutions led to a countrywide ban pronounced by the national government in 201413. A government commissioned study showed unusually high rates of inter-country adoption relative to domestic adoptions: between 2003 and 2008, the latter amounted to approximately 62 percent of total adoptions, against 38 percent in inter-country adoption (Njoka and Williams 2008, pp. vi, 16, 17). These statistics were considered unnecessarily high as the number of children being placed for inter-country adoptions is expected to have been significantly lower. This is so since the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption—of which Kenya is a signatory—underscores the principle of subsidiarity (Dambach 2019, pp. 6, 7), which means that priority is unquestionably accorded to local adoptions.

Another consequence of fragmentation of the framework can be seen in the absence of preventive action that the national ministries would be expected to undertake. It has now been several years since social scientists, INGOs and Intragovernmental organizations begun drawing attention to the practice of orphanage tourism and orphanage voluntourism in the global South and their detrimental effects on children and their families (cf Guiney 2012, Save the Children14, UNICEF15). Voluntourism

10 See: https://www.bettercarenetwork.nl/nw-17382-7-3673126/nieuws/kenia\_schort\_de\_registratie\_van\_nieuwe\_kinderhuizen\_ op.html (accessed on 15 December 2018).

11 See Mathenge and Otieno (2014), https://www.standardmedia.co.ke/article/2000142876/kenyan-government-bans-adoptionof-children-by-foreigners (accessed on 15 July 2018).

12 See Ochieng (2018b), https://www.nation.co.ke/news/How-children-are-sold-to-highest-bidder-in-name-of-adoption/1056- 4640320-x1fce6/index.html (accessed on 15 July 2018).

13 See Ochieng (2018a), https://www.nation.co.ke/news/Experts-want-tough-laws-on-adoption/1056-4772800-or9q5jz/index. html (accessed on 1 October 2018).

14 https://blogs.savethechildren.org.uk/2016/05/why-we-dont-support-orphanage-volunteering/ (accessed on 31 May 2019).

15 https://www.unicef.org.au/blog/news-and-insights/august-2016/travel-tips-avoid-orphanage-tourism (accessed on 30 May 2019); https://blogs.unicef.org/east-asia-pacific/children-not-tourist-attractions-keeping-families-together-inmyanmar/ (accessed on 30 May 2019).

and orphanage tourism are widespread in Kenya, more so in its touristic coastal region. Yet, to date, no efforts in the form of national or transnational sensitization campaigns have been made towards sensitizing international tourists, students and schools to the need to stop establishing or supporting the establishment of children's homes (and rather support efforts geared towards de-institutionalization notably by supporting initiatives that focus on strengthening families and communities).

Similarly, there have been no official campaigns geared towards deconstructing local attitudes through which institutions have come to be considered good solutions for children from poor families, in particular within communities situated in regions where the presence of numerous foreign sponsored residential child-care facilities are functioning as pull factors for parents who are struggling to provide for their children's most basic needs.

#### **5. Addressing the Root Causes**

The problem with institutional care in Kenya and elsewhere is not just the earlier mentioned socio-emotional, physical and cognitive challenges it engenders for the children, and the adults that they later become. It is also the fact that institutionalization of children by itself never addresses the underlying issues and is often a reactive model in many instances.

Currently, with on-going care reform efforts, the Kenya government has accepted that the model is harmful, unsustainable and significantly misused. However, there are complexities and challenges in how the issue of children without adequate parental care is addressed in the country. Some of the institutional care actors have argued that they are responding to poverty; their intervention thus involves addressing issues related to the provision of education, food, health, shelter, protection from abuse and neglect, which are mostly visible factors or symptoms of vulnerability. While treating these symptoms is essential, addressing the underlying issues is fundamental. We argue that the standard approach to child protection—which consists of addressing the symptoms—is inadequate at best and counter-productive at worst.

For example, *the issue of street connected children* has reinforced the relevance and maintenance of institutions with many of their administrators arguing that they are a lesser evil, compared to having children growing up on the streets. This is a very narrow, yet widely held view. Section 5 of the World Report on Violence against Children, decries the use of institutional care for these children and urges governments to look into alternatives because of their harmful nature (Pinheiro 2006). Despite the country having over 200 institutions focusing on street connected children, the number of children on the streets keeps growing (Onyiko and Pechacova 2015, p. 161). This is evidence indicating that institutions are not a panacea. It also underscores the fact that expecting different results while continuing to use the same approach is at best illogical.

In the case of street connected children, institutional care is not only harmful but fundamentally ignores the root causes of their presence on the streets. Research has shown that most children who are to be found living on the streets are predominantly there as a result of poverty (Onyiko and Pechacova 2015), and poverty-related issues that would include violence, abuse, neglect, and abandonment by their families or displacement during armed conflict (Suda 1997; Cottrell-Boyce 2010). Subsequently many of them end up in institutions. It is worth noting that the 2015 case study conducted under UNICEF, in collaboration with the Government of Kenya and Global Affairs Canada showed that over 76 percent of children in Kenya had experienced a form of violence—sexual, physical, and emotional (Government of Kenya et al. 2015). It is these plights—violence, negligence, exploitation, and which are intricately connected to poverty in families—that often drive many to seek salvation on the streets (Suda 1997; Cottrell-Boyce 2010). While a sizeable number of these children find their way to the streets, and subsequently end up in institutions, some are 'rescued' from their malfunctioning families; they are withdrawn from their homes and taken to residential child care institutions. Indeed, it seems that it would make more sense if organizations galvanized themselves in prevention, since the current approach is often cyclical, and organizations only end up addressing the symptoms.

Although *discrimination against children living with HIV*/*AIDS and those with disabilities* has reduced over the years, children in these situations still continue to face stigma and discrimination in families and communities. They have often been condemned to upbringing in institutions, which claim to respond to their needs. However, relegating these children to institutional life often reinforces *othering*, which subsequently widens the gap between them and their healthier and non-disabled peers, and society at large, hence reinforcing stigma and discrimination. Intensive efforts to create awareness and to bring resources closer to communities would be sensible in reducing such inequalities as well as the stigma and discrimination. For such children to develop and attain their full potential like all other children, their upbringing in loving and accepting families and communities is essential.

*Retrogressive cultural practices such as genital cutting and early marriages* for girls have also been a major concern in several parts of the country (UNICEF 2018a). Official reports show that although there has been a general national decrease in prevalence of female genital cutting16, it is still highly prevalent in certain communities17 (National Council for Population and Development 2013; Kenya National Bureau of Statistics et al. 2015, p. 333; UNICEF 2018a, p. 94). Similarly, early/child marriages are also rampant in Kenya, due to social economic factors, which include poverty, low education and the view that girls are economic assets (UNICEF 2018a, p. 96), with one in six teenagers aged 15–19 years being reported to be pregnant or a mother18. Girls who want to avoid undergoing genital cutting and early marriages often seek shelter in 'rescue centers'. These children tend to spend long periods of time in such institutions, and are generally entirely separated from their families and communities because of fear of discrimination or punishment.

Research has shown that millions of households are living in *extreme poverty*19.  Furthermore, there is evidence showing that some institutions see children as commodities, and as bait for funding at best (Njoka and Williams 2008, p. 20). Additionally, many consider that having high numbers of children in their institutions is viewed more favourably by donors who consider institutionalization as assisting children (Cheney and Ucembe 2019, p. 41). This preoccupation with numbers and orphans has significantly resulted in children being separated from their families and communities and labelled as 'orphans'. Many refer to their facilities as 'orphanages'" having realized that individuals and charitable organizations in North America and Europe are willing to financially and materially support 'orphans' in 'orphanages' in African countries.

These and other unscrupulous people have tapped into this model, as it *lacks adequate oversight by the national and county governments*. This absence of proper oversight comes with drastic repercussions for the concerned children and young people. Indeed, the accounts of some young Kenyans with care experiences have shown that it is not unusual for children to be moved back to their families by the owners of institutions, when the latter decide to pursue business opportunities with the available infrastructure, material and financial resources (Ucembe 2015c, p. 33). Such malpractices are often possible when the care institutions are unregistered and unregulated. In addition, the absence of regulations obliging the administrative actors of all CCIs to declare their funding sources and to formally account for the use of their funding and resources, also contributes to such gross misconduct. Evidently, such a lucrative model—one that allows people to acquire property and infrastructure and that brings in easy money—becomes increasingly difficult to abandon and to dismantle.

16 According to the 2014 Kenya Demographic and Health Survey, 21 percent of women aged 15–49 had undergone genital cutting, which is a drop from 27 percent in 2008–2009 and 32 percent in 2003 (Kenya National Bureau of Statistics et al. 2015, p. 333).

17 It is worth noting that genital cutting for girls/women is not a generalized practice among all Kenyan ethnic communities; it is present in some and absent in others.

18 See Otieno (2018), https://www.nation.co.ke/newsplex/earlymarriage/2718262-4876266-41d2rb/index.html# (accessed on 10 December 2019).

19 See Government of Kenya (2012); https://www.unicef.org/kenya/social-inclusion (accessed on 10 December 2019).

#### **6. Concluding Discussion**

Research based evidence about and around institutional care stretches back almost eighty years. Yet, in Kenya, the child protection system has failed to take an evidence-based approach. Some stakeholders, notably those running residential care facilities, have argued that since the research on children and institutional care is predominantly eurocentric, the findings do not apply to the Kenyan context. Although there is a dearth of research on institutional care in Kenya, this argument is undoubtedly narrow because the residential child care model in Kenya has characteristics that are similar to those previously found in western institutional care models, and from which it has 'inherited', imported or replicated.

The denial or ignorance of evidence has opened up grounds for charity. However, acts of 'doing good' which are not based on evidence have proved to be detrimental to child protection efforts and to children's well-being. Well-intentioned religious groups or individuals and other philanthropists from the global North often fall prey to sensationalized poverty and are generally made to believe that institutions can offer the concerned children a haven. This, coupled with an unregulated child protection system leads to the proliferation of residential care institutions, contributing to the country's reliance on institutionalization as a child protection model.

A major limitation of the national government's decision to leave care and protection in the hands of the third sector, has been that charity has replaced the idea of rights and social justice, and oversight of the child protection system has also been weakened (Ucembe 2015b, p. 3). There is a need to resist child protection that is grounded on a mentality and approach that commodifies children and child protection, as it encourages situations whereby desperate care givers feel obligated and constrained to give up their child or children in exchange for support that would be provided to the child within a certain space that is neither the caregivers' nor the child's home. Such approaches are not beneficial to the children, but rather are detrimental to their well-being.

Indeed, the concerned children are rarely the main beneficiaries of Kenya's institution-weighted child protection and care system; quite the contrary. Evidence shows that those who benefit the most are not the children, but rather owners of residential care facilities, their employees, tourists and volunteers, and the state. In numerous cases, it is not the local actors who determine how to support children, but owners of the facilities, who also double as fundraisers or donors.  Their decision is often based on their perception of what constitutes a family and a good family environment. Often, the village life that is the lived reality of many children and their families does not match these perceptions, and some facility owners argue that taking a child (back) to a village amounts to taking her/him to poverty, and that the child is better off within their facilities.

Such approaches also put children at risk of *institutional abuse* (Tolfree 1995, p. 107; 2003, p. 5) defined as 'any system, programme, policy, procedure or individual interaction with a child in placement that abuses, neglects, or is detrimental to the child's health, safety, or emotional and physical well-being, or in any way exploits or violates the child's basic rights' (Cashmore et al. 1994, p. 10). In the country, there have been several cases of sexual abuse in residential care facilities, perpetrated by both local and foreign persons.  Other sexual offenders gain access to the children through the funds, material donations or the volunteer services they offer, often using an overt 'missionary' identity or prestigious occupations to gain the trust of children and their adult care-givers (see Wright and Allen 2013; Ferrigno 2017 for sexual abuses and psychological abuses perpetrated by a young 'missionary' and an airline pilot).

It is worth noting that during interventions, solutions which focus on removing children from their families are also rooted on an exclusive focus on children, that is, children are viewed in isolation, with little or no consideration given to the role of their environments and their primary care givers in assuring their consistent care, protection and overall well-being. In a way, the emphasis and focus on 'orphans' legitimizes this approach. From the preceding, it is evident that the sustainability of the intended change from institutional care to alternative family care requires that a root-cause approach be adopted in addressing the underlying child care and child protection issues. For instance, research clearly indicates that child protection efforts need to be combined with income-generating and poverty-reduction projects, as this would help curb child abuse and neglect (Lachman et al. 2002) and would thus reduce the pressure to relinquish children experienced by financially and subsequently emotionally struggling parents. Therefore, it is necessary that policy and legal frameworks that strengthen and develop alternatives to institutional care be established and enhanced. In parting, let us consider some evidence from the African continent that indicates government-led root cause approaches to child protection are more effective and sustainable compared to institutionalization. In 2013 the government of Rwanda in collaboration with UNICEF launched *Tubarerere Mu Muryango* (TMM—Let's Raise Children in Families)—a care reform programme that seeks to accomplish change from an institutional model of care to a family and community-based model. In 2017 the project's first phase was evaluated and showed a dramatic decrease in the number of children and young adults living in institutions: out of a total of 3323 children and youth, 2388 had been reintegrated into families and communities, which resulted in improvements in different aspects of their and their families' well-being (National Commission for Children et al. 2019, pp. 14–15).

Although the government of Rwanda still needs to do more, it has sustainably increased funding for social protection which is key in addressing poverty and its related issues. A national survey of children in institutions in Rwanda showed that one of the major reasons of institutionalization was poverty (Government of Rwanda and Hope and Homes for Children 2012, p. 9). A 2018/2019 social protection budget report prepared by UNICEF shows that over a period of 5 years, government spending in the social protection sector rose from FRW 73.1 billion in 2014/15 to FRW 138.3 billion in 2018/19, representing an increase of 89.3 percent (UNICEF 2018b, p. 9). The country's social protection sector has a number of core and complementary social protection programmes (involving services and cash transfers) which support families and different categories of vulnerable and marginalized citizens (children, orphans, elderly and disabled, low-income earners); they cover livelihood, shelter assistance, finance, health and education. The same report also shows a rise from FRW 6.4 billion to FRW 22.9 between 2017 and 2018 and 2018 and 2019 in the budget allocated to child-centered social protection (nutrition and child protection).

Alongside budgetary measures, the government has also invested in strengthening the performance of its larger child protection system through the training and recruitment of a social work force (social workers and psychologists) and governmental oversight and monitoring. It has established and strengthened responsive community structures with 29,764 community volunteers (local), whose roles include identifying needy families and linking them to support, responding to issues of violence, and monitoring the well-being of children (National Commission for Children et al. 2019). Through a sensitization and training programme, it has established foster care on a large scale, and has also undertaken awareness raising in communities to curb discrimination against children with disabilities. Additionally, it has embarked on constructing and supporting sustainable community centers to respond to the needs of the poor with regard to livelihoods, respite care, schooling and early childhood development.

Today, no new institutions can be established in the country and children can no longer be placed in institutions. The country is currently reported to be on track to be the first country in Africa to be orphanage-free by 202220.

20 See Graham (2018), https://apolitical.co/en/solution\_article/rwanda-wants-to-become-africas-first-orphanage-free-countryheres-how (accessed on 4 April 2020).

Transforming Kenya's child protection and care approach is a long-haul process within a complex social system. As the experiences of other countries show, it will take considerable time, effort, financial and human resources, and will necessitate sacrifices and trade-offs in the short-term. It requires political and public will, inclusive and collective action at all levels, coordinated commitment as well as governmental ownership of the process.

**Author Contributions:** Both authors contributed equally to this paper and have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **References**

Tolfree, David. 2003. *Community Based Care for Separated Children*. Stockholm: Save the Children.

Ucembe, Stephen. 2015a. Charitable Children Institutions in Kenya: Factors Influencing Institutionalization of Children. Available online: https://www.academia.edu/15586601/Factors\_Influencing\_Institutionalization\_ of\_Children\_in\_Kenya (accessed on 4 April 2018).

© 2020 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/).

## *Article* **Algorithmic Justice in Child Protection: Statistical Fairness, Social Justice and the Implications for Practice**

#### **Emily Keddell**

Social and Community Work Programme, School of Social Science, University of Otago, Dunedin 9054, Aotearoa, New Zealand<EMAIL_ADDRESS>
Received: 5 August 2019; Accepted: 26 September 2019; Published: 8 October 2019

**Abstract:** Algorithmic tools are increasingly used in child protection decision-making. Fairness considerations of algorithmic tools usually focus on statistical fairness, but there are broader justice implications relating to the data used to construct source databases, and how algorithms are incorporated into complex sociotechnical decision-making contexts. This article explores how data that inform child protection algorithms are produced and relates this production to both traditional notions of statistical fairness and broader justice concepts. Predictive tools have a number of challenging problems in the child protection context, as the data that predictive tools draw on do not represent child abuse incidence across the population and child abuse itself is difficult to define, making key decisions that become data variable and subjective. Algorithms using these data have distorted feedback loops and can contain inequalities and biases. The challenge to justice concepts is that individual and group rights to non-discrimination become threatened as the algorithm itself becomes skewed, leading to inaccurate risk predictions drawing on spurious correlations. The right to be treated as an individual is threatened when statistical risk is based on a group categorisation, and the rights of families to understand and participate in the decisions made about them is difficult when they have not consented to data linkage, and the function of the algorithm is obscured by its complexity. The use of uninterpretable algorithmic tools may create 'moral crumple zones', where practitioners are held responsible for decisions even when they are partially determined by an algorithm. Many of these criticisms can also be levelled at human decision makers in the child protection system, but the reification of these processes within algorithms render their articulation even more difficult, and can diminish other important relational and ethical aims of social work practice.

**Keywords:** child protection; predictive analytics; rights; social justice; algorithms; decision making

#### **1. Introduction**

This article takes a critical perspective on the debates occurring in many nations in relation to the use of algorithms to assist with risk judgements in child protection contexts. Fundamental to discussions about the use of large, linked datasets to construct algorithms in this domain are the key ethical issues of fairness, transparency and accountability. Given recent developments, some scholars suggest this framework does not go far enough: that justice and rights are more effective concepts to analyse predictive tools, as they go beyond technical solutions, to consider broader social justice consequences (Gurses et al. 2019; Naranayan 2018). These debates should be of much interest to social work, given the professional commitment to social justice ideals in social work as a discipline, and the sharp uptake of predictive tools in child protection contexts where many social workers practice. This article discusses how the data used to create algorithmic tools affect their usefulness and create important justice issues for both the families child protection systems work with and the social workers

charged with their use. Justice issues are discussed with reference to statistical data fairness aspects such as the sample frame, the malleability of data points, and the feedback loop. Justice concepts are examined by connecting the potential for bias in algorithms with wider debates around rights for families in contact with child protection systems. Implications for transparency and implementation within the special context of the child protection system are discussed.

#### **2. Setting the Scene: Algorithms in Context**

The use of algorithms in child protection systems is expanding rapidly in the US and UK as well as other jurisdictions (Dencik et al. 2018; Whittaker et al. 2018). Alongside these technical expansions are important ethical and political discussions regarding their use in this context (Keddell 2015b; Dare and Gambrill 2016; Eubanks 2017). The child protection context is one already highly contested in terms of its aims, ideological underpinnings and institutional mechanisms. Whether a child protection system is based on a child protection-, child welfare- or child-focussed policy orientation, for example, will shape its philosophical basis, broad institutional structures, preferred priorities and methods of social work practice (Gilbert et al. 2011). In turn, these broad policy patterns intersect with political and economic structures, with a 'child protection' orientation finding an easy alliance with a neoliberal individualised approach to social problems and a residual state role (Keddell 2015a). Notions of rights are also contested in child protection, as the rights of children and parents have areas of convergence, as well as divergence. Consensus about the point at which they should diverge is often not clear in practice, as many studies of child protection decision making show (Benbenishty et al. 2016). Injecting algorithmic forms of decision making into this context adds a further dimension of complexity when considering justice and rights within a child protection system. As Veale and Brass (2019) note, the use of algorithms in public sector domains can brush over important political debates and the contested nature of policy aims. They note that "the literature on the governance of sociotechnical problems has similarly emphasised the intractability of 'unstructured' or 'semi-structured' problems where there is a lack of consensus around appropriate means and/or ends, and how participatory processes that open up rather than close down are required to socially reach more navigable issues" (p. 5). It would be difficult to find a social policy area with less consensus than child protection, where competing ideologies relating to the proper role of the state in family life, cultural considerations, and children's rights, needs and 'best interests' concepts are diverse and contested (Keddell 2017; Gilbert et al. 2011).

Implications for justice are made even more complex by the socio-technical context of use of algorithmic tools (Green and Chen 2019). There is not a single type of use, a single type of algorithm, uniform types of data, nor a single end user impacted by the use of algorithmic risk prediction tools in child protection. In terms of type of use, algorithmic tools can be used either to distribute preventive family support services, in child protection screening decision making, or in risk terrain profiling to predict spatially where child abuse reports might occur (Cuccaro-Alamin et al. 2017; Daley et al. 2016; van der Put et al. 2017). The type of algorithm selected categorises data in algorithm-specific ways to generate graded recommendations or binary flags and can include decision trees or regression methods amongst others, with varying levels of transparency or opacity. Data provenance or sources are from varied places depending on the national and local context, and have differing levels of representativeness, consent for use, ability for accurate linkage, biases, and 'explainability'. Children and parents involved in the child protection system have a set of complex and at times divergent rights and needs, complicating just who is considered the 'end user' and therefore who the algorithmic tool should be fair to. Finally, how an algorithm intersects with the multi-faceted social negotiations already underway in the child protection decision-making environment is important. How an algorithm is used determines its impact within the socio-technical institutional context that is a child protection organisation, yet discussions often focus on accuracy comparisons at the expense of considering the interacting nature of humans, social and institutional contexts, and algorithmic tools (Green and Chen 2019). Tools are seldom used to automate decisions, but more usually are as

an aid to human decisions, and can be made available to all or only some decision makers along the child protection decision making continuum (Allegheny County Department of Human Services 2017; Baumann et al. 2013).

Views on the use of algorithms in child protection can be polarised. As with any new technology or practice, there are important roles for both promoters and sceptics in the development of the debates. On the one hand, some argue predictive tools can contribute to the prevention of child abuse and neglect by efficient prediction of future service contact, substantiation or placement, through the triage of large linked datasets, drawing on more data than a human could rapidly and accurately appraise, and can select predictor variables based on predictive power in real-time (Cuccaro-Alamin et al. 2017). Particularly at system intake, when human decision-makers have limited information and time (particularly poor conditions for optimum decision-making), algorithms can quickly compute risks of future system contact (Cuccaro-Alamin et al. 2017). On the other hand, issues relating to class and ethnic biases in the data used, other sources of variability in the decisions used as data, data privacy implications, the issue of false positives, limited service user consultation and the lack of transparency of algorithmic processes are cited as serious challenges to the use of algorithmic tools in child protection, particularly where the recipients of services experience high levels of social inequalities, marginalisation, and lack of power in the state–family relationship (Keddell 2014, 2015a, 2016; Munro 2019; Eubanks 2017; Dencik et al. 2018).

While some tool developers have made inroads into responding to some of these criticisms, several issues remain unresolved (Chouldechova et al. 2018; Gurses et al. 2019). As Gurses et al. (2019) note, "addressing societal problems embedded in such computing systems may require more holistic approaches ... and they appeal to diverse theories, frameworks, and histories that challenge and expand the scope of FAT\* studies" (Fairness, accountability and transparency). In what follows, I will discuss several aspects of these unresolved debates, specifically, the nature of the data used to construct such algorithms, the feedback loops algorithms rely on, and the contextual justice issues these create for both social workers and service users.

#### **3. Predictive Tool Development**

The use of number-based assessment tools in child protection contexts is not new. For some 30 years, various actuarial tools (that are in fact simple algorithms) have been used in child protection practice. The key aims were to establish consistency and the correct inclusion and weighting of specific risk factors, derived either from research or professional consensus (Gambrill 2005; Shlonsky and Wagner 2005). Actuarial tools have been the subject of debate. Key criticisms are that child abuse and neglect is inherently uncertain and is not directly amenable to prediction either by humans or statistically, as identified risk factors are neither necessary nor sufficient to predict abuse (Munro et al. 2014). Further critiques note that actuarial tools tend to reduce the professional discretion of social workers and do not include either the perspectives or cultural context of parents or children, nor the interpretive, social and relational elements of decision making (Gillingham 2011; Goddard et al. 1999; Munro et al. 2014). However, their accuracy in some studies are better than clinical prediction, while meta-studies show the majority are more accurate, though not all (Bartelink et al. 2015; van der Put et al. 2017).

Algorithmic predictive tools build on the actuarial tradition, arguing that they can improve on actuarial tools in several ways. They are able to draw on more variables derived from large administrative datasets, and weight them directly in relation to the outcome of interest. They can be updated with data in real-time or near real-time; they do not rely on a human to input data; and derive the predictive variables from the data itself, rather than relying on research or professional consensus to identify them (Cuccaro-Alamin et al. 2017). They can then be used to both direct limited resources to the most needy/risky families, or triage notifications to child protection services, serving utilitarian ideals of both demand management in a context of limited resources, and distribute fairly based on need rather than more arbitrary methods of referral or child protection worker decision

maker. Based on these logics, tools have been developed and are in use in numerous child protection contexts. One strand of development used linked administrative data to attempt to predict children at risk of future substantiation in the child protection system, originally for the purposes of selection for preventive, in-home visiting services in New Zealand (Vaithianathan 2012; Vaithianathan et al. 2013; Wilson et al. 2015). A later study in the same country trialled a similar tool at the intake centre of the national child protection service and compared the tool's accuracy to human decision makers—social workers—in that context (Rea and Erasmus 2017). Further research used a predictive tool to determine whether the predictions based on the child protection system data could also predict increased risk for hospital admissions and death by maltreatment (Vaithianathan et al. 2018). In the US, Allegheny county in Pennsylvania introduced a predictive tool in child protection screening—the Allegheny Family Safety tool (AFST)—to triage referrals at the point of notification to the child protection system (Vaithianathan et al. 2017). In Florida, tools were introduced by Eckerd Connect and its for-profit partner, Mindshare Technology, to predict child abuse harm, which was then adopted in Connecticut, Louisiana, Maine, Oklahoma and Tennessee and Chicago. Eckerd's tool, the 'rapid feedback safety program' tool was axed after a short time due to its inaccurate predictions. This latter tool rated children's risk of being killed or severely injured in the following two years, but the system was swamped with high-risk scores, including 4000 children deemed at 90% or higher of serious injury or death, while children who did experience serious harm were missed (Jackson and Marx 2017). In the UK, companies such as Xantura and others have been working with at least five local authorities to develop predictive tools to identify families likely to access services with preventive services before they present as high need (McIntyre and Pegg 2018).

In each instance, there have been concerns raised regarding issues such as data accuracy, the accuracy of the tool's predictions, profiling, stigma and data privacy, with varying levels of transparency regarding the tools from their progenitors. For example, a Freedom of Information Act request regarding the predictor variables of Xantura's tool was largely declined due to commercial sensitivity concerns (Sheridan 2018). The Allegheny tool has had much more transparency than others and considerable community involvement, a public technical report, and ethical and impact evaluations, but when asked to report the weighting of the actual variables used, Allegheny Department of Human Services declined to make this or the positive predictive accuracy of the tool—what percentage of those it accurately identifies at different risk levels—public (Eubanks 2018). In Aotearoa New Zealand, political concerns regarding the development of predictive tools in child welfare stopped further research on the tool's use and implementation due to concern about the experimental design (Kirk 2016). Concerns about the ethical issues associated with these tools have also been examined (Keddell 2015a, 2016; Dare and Gambrill 2016), yet there have been few examinations of algorithm use in child protection from the perspective of the growing movement on fairness, transparency and accountability, nor a consideration of the limits of technical solutions to the important justice issues they evoke (Chouldechova 2017).

What are the outstanding challenges to fairness, and the justice and rights issues they raise, when considering predictive algorithms in child protection? Key statistical biases in the data used to create child protection predictive models are as follows. Firstly, the lack of representativeness of the data sample frame, challenging the right to non-discrimination. The social malleability of the outcome an algorithmic tool is trained on, and the fundamental problems with how the algorithm 'learns' via its feedback loop both challenge the right to non-discrimination and equality of treatment, as they can result in people not being treated in a 'like for like' manner. They may also, through inequalities in the training data, reinforce classed and racialized inequity that is not reflective of actual differences in incidence. These claims are now examined.

#### **4. Statistical Fairness and Social Justice**

The concept of fairness has multiple definitions when used to analyse algorithms (Naranayan 2018). Definitions relate broadly to statistical fairness and social fairness or justice—but they are interrelated

as discussed below. Statistical fairness issues include the sample frame (the boundaries defining the data sample), how feedback loops are constructed, and differences in predictive parity (how accurate the algorithm is for different groups). Social definitions of fairness are much broader, relating directly to social justice and rights. Moral conceptualisations of rights are relatively broad, while legal rights are more restricted and clearly defined. Rights-based definitions of fairness generally describe the right to equality of access, treatment and outcomes and the right to non-discrimination—that is, to not be unfairly targeted for restriction of rights. If rights are restricted, this should be proportionate to a person's harm or risk of harm, and non-arbitrary. Social definitions of fairness also encompass the right to due process—that is, the individual right to equality of treatment under the law and law-like systems, which is what the child protection system is. These are key aspects to consider when an algorithmic tool is used to define risk, as the potential for false positives within an algorithmic construction of risk (and other accuracy issues discussed below) can unfairly discriminate, and result in either an arbitrary or dis-proportionate response to the perceived level of risk. It can also challenge one's right to due process by resting on a risk of future harm potential and similarity to a group, rather than current individual behaviour (Hughes 2017). These processes therefore can create what McQuillan (2015) calls 'states of exception' when it comes to rights, with those calculated as high risk essentially losing rights claims due to their perceived 'high-risk' status (Keddell 2015b). Eubanks (2017) argues that in the child protection system due to the profound inequalities in the populations in system contact (often highly classed and raced), that algorithmic tools are more likely to be used because it is a 'low rights' environment to begin with, where few end 'users' have the power or resources to challenge tool use.

Finally, a social justice definition of fairness expects an algorithm not to reproduce or exacerbate social inequalities relating to group rights, such as those related to race, class or gender, a key claim of critics of algorithmic use in public services (Lepri Letouze et al. 2017; Barocas et al. 2017; Eubanks 2017; Keddell 2015b). In child protection systems, the rights of parents and children are both affected by algorithm use. Parents rights in particular are affected, and the emotive aim of protecting children from harm is often used to justify both data use without consent and the inevitable false positives (Dare 2013). Whether the child protection system is considered benign or punitive also affects views of rights considerations in child protection (Dare and Gambrill 2016). To be offered a voluntary, in-home support service or better housing has different ramifications than being investigated for child abuse. There are national differences in how child protection systems are constructed that shape the service offered in response. However, critical perspectives of child protection systems point out that in most Anglophone countries they operate as a key site of the reproduction of social inequalities, have both care and control functions and, while offering protection, can also promote normative parenting ideals mired in cultural and class specificities (Edwards and Gillies 2015). Furthermore, the mixed outcomes of child protection intervention for both children and their families point to the less positive implications of protection-oriented systems that rely on legal intervention within a broader residualist or neoliberal political and economic system (Gilbert et al. 2011; Featherstone et al. 2014).

#### **5. Statistical Fairness and the Sample Frame**

The first element of statistical fairness that relates to justice considered here centres on the sample frame, as this should capture the whole population it is attempting to predict an event within, or be a randomly selected, large subsample of that population. Without this, the algorithm "diverges from the population it attempts to represent" (Lepri Letouze et al. 2017, p. 7; Sloane 2018). This basic statistical principle ensures that predictions reflect accurate incidence base rates across an entire population and subpopulation groups. Without representational data of a phenomenon, an algorithm's predictions will become skewed, as it does not have an accurate picture of incidence, so it cannot find the predictor variables related directly to the phenomenon of interest (the outcome variable) (Barocas et al. 2017). As it chooses predictor variables from the data it is provided with, skewed datasets may pick up confounding variables that predict the outcome it is trained on, but neither the outcome, nor the relationships between the predictors and the outcome of actual interest may be reliable.

This is especially pertinent in the child protection context, where proxies for child abuse in the child protection data algorithms are trained on may be only weakly related to abuse incidence across the population (Keddell 2016). This is because the sample frame is not representative of child abuse incidence, but instead reflects reported abuse. Much child abuse and neglect are never reported, and many families that are reported may be subject to both surveillance and personal biases. Via these processes, the sample frame available in data generated by child protection systems is not representative of the prevalence of child abuse across a population (Keddell 2015b, 2016; Daro 2009; McDonell et al. 2015; Swahn et al. 2006). For example, a study of a cohort of New Zealand children born in 1998 found that 10% were substantiated for child abuse within the child protection system, but a more representative longitudinal study in the same country found that while 10% of children had 'definitely' been abused, a further 27% 'probably had'. Even if only half of the 'probably had' group had been, that would be 23%, showing the higher rates of self-reported abuse compared to child protection system data (Danese et al. 2009; Rouland and Vaithianathan 2018).

In another example, a study examining the assumed intergenerational transmission of child abuse found that the greatest influence on the reported levels of intergenerational transmission was the role of detection bias as expressed in Child Protection Service reports (Widom et al. 2015). The extent of the intergenerational transmission of abuse and neglect as recorded in the system contact data "depended in large part on the source of the information used. Individuals with histories of childhood abuse and neglect have higher rates of being reported to child protection services (CPS)for child maltreatment but do not self-report more physical and sexual abuse than matched comparisons" (Widom et al. 2015, p. 1480). The way earlier reports to child protection systems affect later reports is another way in which child protection system data can become skewed. While an algorithm is likely to find earlier reports highly predictive of later reports, (see Wilson et al. 2015), the contribution of greater surveillance of families who have been reported before is not accounted for, and is unlikely to be acknowledged in an unthinking algorithmic process unable to understand these confounds (Keddell 2016). An algorithm views re-reports as unconnected by surveillance mechanisms.

If under-reported abuse was evenly spread across the population, there would be less concern about using child protection system data in predictive tools, as while some people would be missed, those identified would be an evenly spread subset of incidence. But there are substantial inequalities built into child protection system data that may not evenly reflect under-reporting (Bywaters 2015). For example, Swahn et al. (2006) compared self-reported abuse amongst detained youths with their child protection records. They found that official data generally "seriously underestimated the prevalence of maltreatment" (p. 415). Importantly, they also found that abused African Americans and girls were both more likely to have court records of abuse compared to Whites/Hispanics, and boys respectively. For example, 86% of White youths self-reported abuse, but only 12% had court records of abuse, 79% of Hispanics self-reported abuse, while just 7% had a court record. For African Americans, 83% self-reported abuse, while 19% had a court record. When converted to a ratio of self-report to court records, this ratio differed between groups, with 1:7 for whites, 1:11 for Hispanics, and 1:4 for African Americans, suggesting that African Americans are more likely to be reported for abuse than other groups, despite very similar self-reported rates of abuse. Inconsistencies between self-reported child abuse or incidence studies, and child protection system contact profoundly affect the ability of predictive tools to accurately identify those at risk of abuse, and lends weight to claims of racial and class-based discrimination built into such tools, as it may lead to some groups (for example, African-Americans) to be considered high risk by a predictive tool, and other ethnic groups to be calculated as low risk, when true incidence across these groups may be more similar than CPS reports suggest.

#### **6. Issues in Predictive Parity between Racialized Groups—How Should Fairness Be Evaluated with a View to Justice?**

Algorithmic prediction tools are used to generate risk scores, and at each risk level, the accuracy rates change—that is, the rates of positive predictive accuracy: what % of those identified have the outcome, as well as other indicators such as false positives, and true and false negatives (Chouldechova et al. 2018). One definition of statistical fairness in the use of predictive analytics is ensuring that the rates of true positives are equal between population groups, although this 'predictive parity' may change the risk level at which intervention of some kind occurs for each group, or change the rates of false negatives between groups (For example, the COMPAS debate over racial bias embedded in criminal justice tools was essentially over predictive parity (Whittaker et al. 2018)). Reducing one type of statistical bias may increase another. This means trade-offs are inevitable but, as discussed below, this is even more complex in child protection, as what is considered a true or false positive is mired in the social contexts they are interpreted in, producing many further confounding variables (Chouldechova et al. 2018; Whittaker et al. 2018). Further, the use of algorithmic tools takes place in a complex institutional and human environment where many factors contribute to decision outcomes, not the tool alone.

One important factor to know in order to judge the trade-offs between competing fairness criteria is the basic positive predictive accuracy of the model (the proportion of those identified as high risk that have the outcome of interest), together with what cut-off point recommendations will be generated at, and comparing them to what currently happens in a given context. It is only by knowing both predictive accuracy and comparing that to current practice that the inevitable 'weighing up' of harms and benefits can be done. The accuracy of algorithms in child protection is often reported as an 'area under the curve', instead of the more everyday understanding of positive predictive values. The few times positive predictive values are given in reports, they tend to be low. For example, one study shows 25% of those categorised in the top 10% of risk were true positives when measured over time (Wilson et al. 2015). A study of human decision-makers at the intake service of a child protection agency found that they were 60% accurate in their estimations of future harm, although the algorithmic tool used was 66% accurate (Rea and Erasmus 2017). Bartelink et al. (2015) in a meta-analysis of studies of decision-making tools in child protection found that the relative improvement of actuarial tools is around 10% improvement in accuracy (Bartelink et al. 2015). Their study also shows that the context of decision-making is important: in some studies, actuarial or predictive models are more accurate, in others clinical and predictive tools are about equal, and in a few, humans are more accurate, especially in complex decision contexts (Bartelink et al. 2015). These varied findings show the importance of actual comparisons with humans in context, rather than vague claims based on non-comparable research that 'algorithms are better'.

As mentioned, comparative accuracy studies or evaluations are rare. This because they are difficult to conduct, can be controlled by commercial interests, and are sensitive to public critique. One of the few to conduct a substantial independent evaluation of a child protection prediction tool and make it public, compared accuracy rates before and after implementation of the Allegheny Family Safety tool (AFST) (Goldhaber-Fiebert and Prince 2019). The tool does not mandate decisions but is used in conjunction with human decision makers as a decision support tool at the point of notification. The tool scores notifications from 0–20, and those scoring highly must be discussed with a supervisor. The case is then screened in or out. The evaluation was premised on a subsequent 'case open' decision by a case worker to judge whether the screen-in decision had been correct, and on a time limited re-referral rate to see if screen outs had improved. A caseworker is likely to have collected much more depth and quality of information and can weigh up the complex ethical issues at stake, so their judgement for these reasons are a good way to evaluate whether the algorithm-assisted decision was correct (Bartelink et al. 2015). On the other hand, the potential for bias still remains in the human decision and, as discussed below, particularly when considering racial equity, relying on a potentially biased human decision to test the accuracy of a potentially biased algorithmic one appears tautological. A recent

study, for example, found that humans using an algorithm to inform their decision still showed bias when combining it with their own judgement process (Green and Chen 2019).

Nevertheless, overall, the evaluation found an improvement of those children 'screened in' who then had a case opened, of 2.9%, from 43.7% to 46.6%. Of interest is that the improvement is small, (as were all changes) and that even with the tool, 53% of screen-ins are still considered false positives. The evaluation also showed the tool led to a small decrease in the accuracy of screen outs, down to 72.3% from 73.9% (based on those re-referred within a 6 month period), showing that those who were 'screened out' using the tool had a higher chance of re-referral, than before its introduction. On the one hand, it could be argued that the conclusion the tool reduced screen out accuracy is somewhat simplistic, as many community factors can affect rates of re-referral: policy changes, changes to the provision of preventive services, changes in poverty levels, and changes in social cohesion (Klein and Merritt 2014). On the other hand, a key claim of algorithmic tools is that they are able to reflect these rapidly changing social and organisational conditions in order to make predictions. This issue points to the difficulties of evaluating predictive tools in context, when so many confounding factors affect both algorithmic and human decision-making, as well as highlighting the limits of the data to begin with: without all relevant data, the tool cannot account for it in its computations.

The evaluation also measured the effect of the AFST on racial disparities. The evaluation shows that for those children screened out, the tool had no effect on the chances of re-referral for either Black or White children (p. 21). For those screened in, the percentage of Black children who were first screened in and then had a 'case opened' on them remained the same before and after the tool's introduction, at 47%, while the percentage of White children with a case opened increased from 39% to 46%. So while disparities between the groups of what could be considered 'true positives' reduced, this was because of a moderate increase of 7% in the perceived accuracy of White child screen-ins, not an improvement in the accuracy of Black child screen-ins, (who are in this case the protected class), nor of a decrease in the disproportionality of Black children (that is, the comparison to their population rate). As mentioned, this method of measuring accuracy relies on a human decision that could be subject to bias—that is, to 'open the case'. This is circuitous reasoning, as the tool's introduction is premised on its unbiased accuracy, yet a human, potentially biased, decision to open the case is used to judge it. While the case worker is not supplied with the score as a way to reduce the confirmation bias aspect of this process, nevertheless, the case worker knows that the case was screened in, in order for them to now be investigating it. This is an issue for the use of subsequent 'case opens' for all findings of the evaluation, but particularly so for evaluating changes in racial disparities.