[Daniel Fiedler] Child abuse and the failure of South Korean courts

 In November 1991 South Korea ratified the U.N. Convention on the Rights of the Child (CRC). Since that ratification, the South Korean government has enacted a variety of laws to protect children from abuse and exploitation, the centerpiece law being the Child Welfare Act. More recently Korea banned corporal punishment in schools. A sea change is also occurring in the attitude of Korean parents and the cultural acceptance of abusive forms of discipline.

Despite this progress, difficulties remain in applying the concepts in the CRC because the term “abuse” in the Korean language carries a much stronger meaning than in the English language. In Korea abuse is more closely associated with acts of brutality. Thus behaviors which western culture labels as abusive are less likely to be termed as abusive in Korea. Despite these language and culture barriers, South Korea as a nation has made tremendous progress in the protection of its children.

However the South Korean family court system is still holding back progress. The failure of these courts to effectively protect abused children has its roots in an interesting twist of the Civil Act which provides a family court may consult with the minor’s relatives when abuse takes place within the family. The result is that the minor’s relatives, who are often more interested in saving face than protecting the child, exert undue influence over the court’s determination of the minor’s “best interests.”

This procedural oddity must be abolished and family courts must be required to fulfill their duty under the Child Welfare Act to diligently protect abused children, even when the result is a loss of face for the family. Unfortunately anecdotal tales of seriously abused children being placed back into the abusive situation abound.

Perhaps the most shocking of these was the return of a teenage girl to her grandfather and uncles who had been found guilty of repeatedly raping her for seven years. In that case the Cheongju District Court reached its decision by considering that the accused had fostered the girl in the place of her parents and that her disability meant she would need the help and care of her rapists in the future. Both of these reasons being logical absurdities to rational individuals.

In addition to the failure of these courts, the current system of mandatory reporting by doctors and teachers is misunderstood and unknown to many of the responsible parties and serious investigation of child abuse allegations is lacking. In western societies the mere allegation of child abuse results in extensive investigation of the situation in an attempt to determine whether abuse exists. If video evidence exists the result is rapid and swift action on the part of authorities. In 2006, video of Brittany Spears driving with her child in her lap resulted in immediate action on the part of authorities to remove her children from her custody and place them with the father.

However, everyday many parents in Korea drive with children on their lap with no discernable consequences. Of more serious concern is when legitimate reports of child abuse, backed by video evidence and undisputed testimony, are ignored by the family court system.

In these days Korean news frequently reports on the Hallyu wave sweeping through Asia and the world as an example of the spread of South Korea’s soft power of culture. Newspaper and magazine articles in South Korea report with exuberance the spread of Korean culture and the impact of these singers on other countries.

Simultaneously the same Korean news outlets ignore the heightened potential for international embarrassment such exposure brings. If Korea wants to retain its new international image unsullied, the country will need to address failures by its courts to adequately protect the children of Korea before these failures are exposed in western media. Therefore, prevention of child abuse must be accomplished through strong enforcement of mandatory reporting requirements for doctors and teachers, including education for these authorities on the signs of child abuse.

Finally the Korean government must require the family courts to consider seriously all allegations of child abuse and to fully investigate such cases with trained, unbiased and neutral case workers, especially if video evidence of such abuse exists.

By Daniel Fiedler

Daniel Fiedler is a professor of law at Wonkwang University since 2007 and is the lawyer representative for international marriages in Namwon City since 2009. ― Ed.