The personal safety protection order is an important system established by the Anti-Domestic Violence Law.
On August 1, the Provisions on Several Issues Concerning the Application of Law in the Trial of Personal Safety Protection Order Cases officially came into force.
Lawyer Ou Meixin from Guangdong Wumei Law Firm has long paid close attention to anti-domestic violence issues and was interviewed by Southern Metropolis Daily regarding the implementation of personal safety protection orders. The interview content is as follows:
Effective August 1, 2022, the judicial interpretation issued by the Supreme People’s Court, namely the Provisions on Several Issues Concerning the Application of Law in the Trial of Personal Safety Protection Order Cases, was formally implemented, further consolidating the "firewall" against domestic violence.
Southern Metropolis Daily learned that this judicial interpretation also gives special consideration to the protection of minors’ rights and interests. However, the Anti-Domestic Violence Law has not yet explicitly included children who witness domestic violence within the scope of protection, leaving a legal gap in judicial practice. How should the rights and interests of such children be protected?
Children Witnessing Domestic Violence Should Not Be Overlooked; Legal Gaps Still Remain in Practice
In a press briefing, relevant officials of the Supreme People’s Court stated that in light of the private nature of domestic violence, the new judicial interpretation includes testimony given by minor children that matches their age and intellectual capacity as valid evidence of domestic violence in terms of evidentiary forms. This helps accurately determine domestic violence acts in accordance with the law, stop such acts in a timely manner, and create a safe and stable family environment for the healthy growth of minors.
It is understood that minors fall victim to domestic violence mainly in two forms: suffering domestic violence personally and witnessing domestic violence. Both situations leave minors living in an atmosphere of tension and fear, causing severe harm to their physical and mental health. They may even develop the wrong mindset that "violence solves everything", which could lead them down the path of breaking the law and committing crimes.
To this end, in March this year, seven authorities including the Supreme People’s Court, the All-China Women’s Federation and the Ministry of Public Security jointly issued the Opinions on Strengthening the Implementation of the Personal Safety Protection Order System. It emphasizes adherence to the principle of the best interests of minors, including refining the mandatory reporting obligations of relevant entities, clarifying that minors may testify without appearing in court, arranging suitable venues for minor interviews, adopting questioning methods understandable and acceptable to minors, and attaching importance to protecting their privacy and personal safety.
Also in March this year, Guangdong Wumei Law Firm released the Big Data Report on the Implementation Status of Personal Safety Protection Orders (hereinafter referred to as the Report), putting forward reflections and suggestions on the implementation and further improvement of the personal safety protection order system in China.
Regarding children witnessing domestic violence, the Report noted that among relevant cases, there were a total of 149 cases involving children who had witnessed domestic violence.
- 61 cases involved children who had also personally suffered domestic violence, accounting for 40.94%;
- 31 cases involved children who had never personally suffered domestic violence, accounting for 20.81%;
- 57 cases where it could not be confirmed whether the children had personally suffered domestic violence, accounting for 38.26%.
Among all cases involving children witnessing domestic violence, only in 16 cases did such children apply to the court for a personal safety protection order as applicants themselves.
"There is currently no unified and clear legislative standard across the country on whether children who witness domestic violence should be recognized as victims of domestic violence," said Lawyer Ou Meixin, Director of the Marriage and Family Law Research Association of Guangdong Law Society and practicing lawyer at Guangdong Wumei Law Firm, in an interview with Southern Metropolis Daily.
"In real life, children witnessing domestic violence suffer direct adverse impacts on their mental health. There was once a case where a 7-year-old child witnessed domestic violence, endured immense mental stress, and was even scared to bedwet at night, and later had to receive psychological counseling."
Lawyer Ou Meixin held that the rights and interests of children witnessing domestic violence are in urgent need of protection and should never be ignored. Nevertheless, obvious gaps still exist in judicial practice.
"The prevailing view currently is that only those who directly suffer domestic violence are regarded as victims — for instance, being assaulted, intimidated or harassed. Children who merely witness domestic violence are often treated as bystanders, and their plight is easily overlooked."
Some Regions Have Enshrined in Legislation That Children Witnessing Domestic Violence Are Also Victims
Combating domestic violence is the shared responsibility of the state, society and every family, and all forms of domestic violence are prohibited.
Southern Metropolis Daily has learned that to protect minors from domestic violence, the Measures of Guangdong Province for Implementing the Anti-Domestic Violence Law of the People’s Republic of China, which took effect on October 1, 2020, explicitly classifies minors who witness domestic violence as victims of domestic violence. Guangdong is the first province in China to clarify through legislation that children witnessing domestic violence shall be recognized as victims of domestic violence.
The Measures defines the connotation and extension of domestic violence, and includes acts such as withholding food and clothing, wrongful confinement, harassment, defamation and privacy infringement into the scope of domestic violence. It also clarifies that violent acts committed via the internet shall also be deemed domestic violence.
Chapter VI Supplementary Provisions of the Measures stipulates that violent acts committed between non-family members who live together and share relationships such as guardianship, maintenance, foster care or cohabitation shall be governed by reference to the provisions of these Measures. Minors who witness domestic violence shall be regarded as victims of domestic violence.
In addition to Guangdong, Shaanxi and Hainan Provinces have also introduced similar provisions.
The Measures of Shaanxi Province for Implementing the Anti-Domestic Violence Law of the People’s Republic of China came into force on December 1, 2020. Article 36 thereof stipulates that minors who witness domestic violence are victims of domestic violence and shall be provided with assistance and protection in accordance with the law. Violence perpetrated between non-family members living together under relationships of guardianship, support, foster care or cohabitation shall be handled with reference to these Measures.
The Measures of Hainan Province for Implementing the Anti-Domestic Violence Law of the People’s Republic of China stipulates that the relevant provisions applicable to victims of domestic violence shall apply mutatis mutandis to minors who witness domestic violence.
Lawyer Ou Meixin pointed out that the harm suffered by children witnessing domestic violence in related cases is more concealed and long-lasting than people perceive. Therefore, the protection of minors in domestic violence cases requires continuous efforts from all sectors of society to promote and consolidate the consensus that children witnessing domestic violence are also victims.