April 01, 2015

Role of Family Court Increases in Child Protection Cases in South Korea

Ann Park

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Former Center public interest fellow and consultant, Ann Park, received a Fulbright Scholarship to study child welfare law in South Korea. In this column, she shares highlights of what’s she’s learning with a focus on aspects of interest to practitioners. See last month’s column, New Law Protects Child Victims in South Korea for background on South Korea’s new child protection law.

Limited Court Involvement before New Law

Before South Korea passed the Act on Special Cases Concerning the Punishment, etc., of Crimes of Child Abuse in 2014, government intervention in the early stages of child abuse cases was rare. While the child protection agency (CPA), a civil organization without authority to challenge parental rights of perpetrators, was almost solely responsible for the initial investigation, no government authority was actively working with the CPA to protect children from further abuse. The court usually intervened in only a few heightened cases to order final measures, such as termination of parental rights.  As a result, many children were returned home under danger of abuse       

In comparison, in the United States the juvenile court is the principal legal authority, making decisions at all stages of a case, from a petition to removal of a child to permanency plans. Experts began to express the need for a specialized court in South Korea to handle child abuse cases, like juvenile courts in the United States.  

Increased Family Court Power and Involvement 

The new law expanded the role of the family court in all stages of child abuse cases. It granted family courts authority to order and enforce measures to rehabilitate the parent while protecting the child from further abuse.  Eleven specialized child abuse departments within the five family courts in South Korea were newly established. The main elements of the new courts’ involvement in child protection matters are:  

Greater Protective Measures for the Child and Perpetrator

Family court judges now impose diverse measures on perpetrators, whose parental rights were rarely restricted in many cases under the old law.  Family court judges may suspend or limit perpetrators’ parental rights, limit access to their children, mandate counseling or treatment classes, and place them on probation. They may also protect children through the protection order system, limit perpetrators’ access to children, place children in medical or foster care, limit or suspend parental rights of perpetrators, and select guardians.    

Early Collaboration with the Child Protection Agency 

The court was largely disconnected from the child protection agency (CPA) in the initial stages of child abuse cases. The CPA did not have a way to petition the court for measures to restrict parental rights of perpetrators even when it determined removal of a child or limiting parental rights was necessary. However, the CPA can now directly request a protection order for an abused child from the family court based on its firsthand investigation of the reported abuse. This allows the court to intervene in the early stage of the case by promptly issuing protection orders. 

Increased Partnering with Organizations 

In addition to the CPA, family courts have entered and are pursuing memorandums of understanding (MOUs) with diverse organizations, including medical and foster care institutions, counseling offices, art/culture related organizations, among others. These partnerships focus on meeting different needs of children in the child protection system. 

Impact of the Court’s Greater Involvement 

Since the new law, data on the new court’s performance for the last seven months is not yet available, so it is premature to assess concrete accomplishments of the expanded court. However, so far family courts have granted approximately 90-100 protection orders for an abused child. 

Considering the total number of 6,796 actual child abuse cases in 2013, this number is insignificant, yet it still proves increased court’s involvement and collaboration with the CPA compared to the previous years. Family court judges have been eagerly participating in the changes within the court and collaborating with child-related experts to make decisions that prioritize family preservation and promote children’s well-being. Experts agree that it is just the beginning of the long journey for further development and improvement of the family court involvement.  

Stay tuned. Next month’s column will highlight child representation.