From Orphanhood to Trafficked: Examining Child Trafficking for the Purpose of Orphanages

Abstract

There are an estimated eight million children residing in orphanages, or residential care institutions, globally, however it is estimated that at least four out of five of these children are not orphans. It is well documented that many children in developing States are recruited from their families into orphanages for the purpose of exploitation and profit, a process known as ‘paper orphaning’ or ‘orphanage trafficking’. Paper orphaning involves the recruitment of a child from their family by a child finder or orphanage operator; the manipulation of gatekeeping procedures to admit the child to an orphanage; the construction of fraudulent documentation to attest to the child’s orphaned status; and the maintenance of the child in ongoing institutionalisation for the purpose of profit through donor funding and orphanage tourism. Since 2005, paper orphaning has been anecdotally referred to as ‘trafficking’ but without a legal basis given for the assertion. More recently, the trafficking of children into orphanages was included in the United States Department of State Trafficking in Persons Reports of 2017 and 2018, and considered by the Australian Government as part of its Inquiry into whether Australia should have a Modern Slavery Act in 2017. This thesis provides the legal argument that underpins this recognition, establishing that the recruitment of children into orphanages for the purpose of exploitation and profit is a form of child trafficking under international law. A comprehensive analysis of paper orphaning as a form of child trafficking is presented in this thesis. It details the process of paper orphaning, and demonstrates the prevalence of paper orphaning in developing States by analysing eight representative States across four regions in the developing world where there is evidence that the rising number of children in institutional care is in part due to the presence of donor funding and orphanage tourism. The prevalence of paper orphaning globally establishes the need for a consistent international response and provides a rationale for the application of international law. Paper orphaning is facilitated by an enabling environment where the utility of the orphan child in aid and development is manipulated by governments and non-government organisations in part to profit from donor funding and orphanage tourism. Orphanage tourism, where people pay to visit or volunteer with orphans, has become an increasingly popular tourist activity over the past decade. The increasing demand for orphanage tourism has created a demand for the maintenance of an orphan population to visit and volunteer with. Paper orphaning meets this demand by recruiting children under the guise of providing an education, and forcing them to pretend to be orphans. Paper orphaning is a form of child trafficking under the definition found in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000 (‘Trafficking Protocol’). To meet the requirements of the definition of child trafficking in the Trafficking Protocol, both the act and purpose elements of that definition must be satisfied. Previously, the major point of contention for paper orphaning being regarded as child trafficking is that it did not meet the purpose element. This thesis argues that there are two ways the purpose element is satisfied in paper orphaning. The first is that paper orphans are subjected to forms of exploitation that are listed in the Trafficking Protocol. The second is that where paper orphans experience forms of exploitation that are not listed in the Trafficking Protocol, the ‘purpose element’ can be satisfied in situations where the conduct exhibits that an unfair advantage is present and a threshold of seriousness is met. Paper orphans commonly experience two forms of exploitation that meet the purpose element: ongoing institutionalisation for profit and orphanage tourism. Thus, in many, and perhaps most, cases, paper orphaning can be interpreted as a form of child trafficking under international law. To combat paper orphaning as a form of child trafficking, a comprehensive multi-sector framework focusing on both anti-trafficking and child protection mechanisms should be implemented. This framework entails the criminalisation and prosecution of paper orphaning as child trafficking; the prevention of paper orphaning through addressing vulnerability, demand, corruption and complicity; and the provision of protection and assistance for child victims of paper orphaning focusing on identification, reintegration, and access to remedies.