Special Rapporteur on Violence against Women Says within the Context of Child Custody Cases, there Exists Multi-layered Violence Perpetuated Primarily against Mothers
The Human Rights Council this afternoon held an interactive dialogue with the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The Council then began an interactive dialogue with the Special Rapporteur on violence against women and girls, its causes and consequences.
Tlaleng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, presenting her report on digital innovation, technologies and the right to health, said the growth of digital innovation had been rapidly redefining and reshaping the right to health, and it had strengthened the ability of some Governments to respect, protect and fulfil this human right by ensuring that all health facilities, goods and services were available, accessible, acceptable and of quality. If digital transformation tools were developed, used and regulated without consideration for their human rights impact, they could enable violations and undermine economic, social, cultural, civil and political rights, including the right to health. Digital tools could perpetuate racism, sexism, ableism or discrimination based on sexual orientation or gender identity, among others in code, design and application. The report presented insights and recommendations on these matters.
In the discussion on the right to health, many speakers said the right to the highest obtainable standard of physical and mental health was of utmost importance. They noted that the COVID-19 pandemic had expedited the use of technology in the health sector, including through the growing prevalence of telemedicine, which brought healthcare services to persons previously unable to access it. Technologies had helped the world to respond more quickly and effectively to the pandemic, reducing the harm caused by the disease. However, such technologies also posed threats to vulnerable groups. Digital technologies needed to be regulated to protect the rights of vulnerable groups, and remedies needed to be provided to all people whose rights had been violated by digital health technologies.
Speaking were the European Union, Luxembourg on behalf of a group of countries, Greece on behalf of a group of countries, Oman on behalf of the Gulf Cooperation Council, Côte d’Ivoire on behalf of a group of African States, Republic of Korea on behalf of a group of countries, Ukraine on behalf of a group of countries, Costa Rica on behalf of a group of countries, Bahamas on behalf of the Caribbean Community, Portugal, United Arab Emirates, Egypt, Peru, Armenia, United Nations Children’s Fund, Burkina Faso, Costa Rica, Viet Nam, Germany, Italy, Paraguay, Sovereign Order of Malta, France, Bahrain, Mauritius, Indonesia, United States, Iraq, Morocco, Maldives, Brazil, Malaysia, Venezuela, Cameroon, South Africa, United Nations Population Fund, Pakistan, Togo, Jamaica, Kazakhstan, India, Malawi, China, Gambia, Djibouti, Senegal, Afghanistan, Marshall Islands, Georgia, Mali, Benin, Russian Federation, Algeria, Yemen, Lao People’s Democratic Republic, Bolivia,
Thailand, Lesotho, Tunisia, Azerbaijan, Israel, Saudi Arabia, Panama, Uganda, Cambodia, Belarus, Ghana, Kenya, Bulgaria, Chile, Iran and Cuba.
Also speaking were Commission nationale indépendante des droit de l’homme (Burundi), Swedish Association for Sexuality Education, Commission of the Churches on International Affairs of the World Council of Churches, Stitching CHOICE for Youth and Sexuality, Privacy International, Action on Smoking and Health, Genève pour les droits de l’homme: formation internationale, Conectas Direitos Humanos, Asian-Pacific Resource and Research Centre for Women (ARROW), Action Canada for Population and Development, and Americans for Democracy and Human Rights in Bahrain.
The Council then began an interactive dialogue with the Special Rapporteur on violence against women and girls, its causes and consequences.
Reem Alsalem, Special Rapporteur on violence against women and girls, its causes and consequences, said she chose to dedicate her thematic report to the Council on the issue of child custody and its nexus with violence against women and children.
Within the context of child custody cases, there existed multi-layered violence that was perpetuated primarily against mothers. She had received many testimonies and reports from mothers, academics, and experts from all over the globe, regarding the problematic approach of invoking accusations of parental alienation in custody cases. The most troubling part of the testimonies highlighted a deliberate decision by courts to allow a child to be returned to an abusive parent, even if there was credible evidence of abuse, only because contact with that parent was considered more important than any other consideration. How could family courts be the scene of such egregious forms of violence against mothers and children with total impunity?
In the discussion on violence against women and girls, many speakers thanked the Special Rapporteur for her report, which highlighted the concern about the pattern of ignoring intimate partner violence against women in determining child custody cases. Preventing, combatting and eliminating all forms and manifestations of sexual and gender-based violence, including domestic violence, needed to be a priority. It was particularly worrisome that there were cases where protection systems failed, and children were compelled to return to abusive and life-threatening situations. To address these challenges, it needed to be ensured that judges and other experts had adequate training.
Speaking in the discussion were Malta, Norway on behalf of a group of countries, and European Union.
At the end of the meeting, China, Azerbaijan, Japan and Armenia exercised their right of reply.
The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s fifty-third regular session can be found here.
The Council will next meet on Friday, 23 June at 10 a.m. to continue the interactive dialogue with the Special Rapporteur on violence against women and girls, its causes and consequences, followed by an interactive dialogue with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Interactive Dialogue with the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
Reports
The Council has before it the report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (A/HRC/53/65) on digital innovation, technologies and the right to health.
Presentation of Report
TLALENG MOFOKENG, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, said she had made an official visit to Luxembourg in April this year, and would make an official visit to Costa Rica in July. She would report on both visits in June 2024. Further, she had sent requests to visit Chile, Liberia and Tanzania, among others, which she hoped would be favourably received.
Presenting her report on digital innovation, technologies and the right to health, she said the growth of digital innovation had been rapidly redefining and reshaping the right to health, and it had strengthened the ability of some Governments to respect, protect and fulfil this human right by ensuring that all health facilities, goods and services were available, accessible, acceptable and of quality. If digital transformation tools were developed, used and regulated without consideration for their human rights impact, they could enable violations and undermine economic, social, cultural, civil and political rights, including the right to health. The report presented insights and recommendations on these matters.
Ms. Mofokeng said digital technologies had been used extensively to manage the health needs presented by the COVID-19 pandemic. Telemedicine, telehealth and other digital forms of health care solutions offered great potential for scaling up in terms of physical accessibility to healthcare. Remote health care could be less expensive than in-person health care and could lower the direct and indirect costs of clinic visits, travel or unpaid sick leave. Digital tools could facilitate improved trend analysis, study of emerging health issues, resource allocation, forecasting, therapeutics development, and coordination and accountability for progressive realisation of the right to health. The adoption of technologies should not, however, lead to divestment in underlying determinants of health, medical facilities and services, particularly those serving people in vulnerable situations.
Digital tools could perpetuate racism, sexism, ableism or discrimination based on sexual orientation or gender identity, among others in code, design and application. Ms. Mofokeng called for “design justice”, in which technology was designed through diverse and inclusive processes to meet diverse local needs. The rise of digital health innovation and technologies also posed unprecedented risks to the right to be free from arbitrary or unlawful interference with one’s privacy. Further, concerns remained that the digital delivery of mental health services could be an inferior form of health care in comparison to in-person treatment.
There were several global and national efforts underway to strengthen the governance of digital health. United Nations Member States were expected to agree to a digital compact at the Summit of the Future in 2024, which aimed to unite stakeholders in outlining shared principles for an open, free and secure digital future for all. Regional bodies were increasingly active in promoting the safeguarding of human rights in relation to digital technologies, health and development. Some countries had appointed independent health data privacy oversight bodies.
Where regulatory frameworks for digital technologies were in place, good practices and enforcement needed to be adequately resourced. There needed to be meaningful participation of civil society and communities in sub-national, national and global governance of digital health, and investment in improving literacy regarding the entire digital pipeline. It was also important to adopt a policy approach to the right to health, which allowed for transparency, accountability and recourse. Digital innovation and technologies were assets to the operationalisation of the right to health and they presented multi-faceted experiences. Ms. Mofokeng said in closing that she would continue cooperating with States to ensure that billions of people throughout the world realised the full enjoyment of the right to the highest attainable standard of physical and mental health.
Discussion
In the ensuing discussion, many speakers, among other things, said the right to the highest obtainable standard of physical and mental health was of utmost importance. The COVID-19 pandemic had expedited the use of technology in the health sector, including through the growing prevalence of telemedicine, which brought healthcare services to persons previously unable to access it. Technologies had helped the world to respond more quickly and effectively to the pandemic, reducing the harm caused by the disease. Technologies had also contributed to vaccine development. Modern technologies had been a key driver of development in the health sector. Improvement in the quality of data collection assisted in improving public responses to health emergencies. Technologies could also be used to combat disinformation regarding vaccines.
Telemedicine had helped to remove barriers to healthcare services for people living in remote areas. They had provided vulnerable groups such as women, indigenous peoples and children with increased avenues for accessing health services and improving their health and well-being. However, such technologies also posed threats to vulnerable groups. Digital technologies needed to be regulated to protect the rights of vulnerable groups, and remedies needed to be provided to all people whose rights had been violated by digital health technologies. States needed to ensure that the public, particularly vulnerable groups, had received necessary training to benefit from digital health technologies. Digital literacy needed to be promoted.
Many speakers also noted that the use of digital technologies without sufficient safeguards could lead to the infringement of human rights. Technologies, if not properly developed, used and regulated, could perpetuate racism, sexism and ablism. Data protection and privacy were key concerns. The principle of the right to privacy needed to protected, and regulations and other measures were needed to prevent the misuse of medical data. Some speakers raised concerns about the impact of artificial intelligence on medical technologies, calling for such technologies to be developed based on principles of accountability, transparency and respect for privacy. Speakers also raised concerns that technologies were being used to violate sexual and reproductive health rights. Online sexual and reproductive health services should complement, not replace, in-person services. One speaker said that the threats posed to human rights by neurotechnology were concerning, and called for measures to address these threats.
A number of speakers noted that the digital divide between the Global North and South led to inequality in access to digital health technologies. States needed to promote the rights of all to access new medical technologies, cooperate to promote digital literacy in the field of health, and share digital technologies and best practices in regulation. Access to health technologies needed to be promoted from a human rights perspective.
States presented initiatives that they were implementing in the digital health field, such as telemedicine and online therapy services, the establishment of research centres on digital technologies, policies promoting access to new health technologies, conferences for sharing best practices in health technologies, and regulations for protecting the privacy of users of digital health technologies.
Questions were asked on how States could protect the rights of children from being violated by emerging digital technologies; on how the European Union’s General Data Protection Regulation was faring in protecting digital privacy in the context of health; on how States could prevent emerging neurotechnology from infringing on human rights; on the implications of the use of artificial intelligence on the medical sector, and on positive examples of its responsible use; on measures to promote equality related to health technologies; on ways of striking a balance between protecting privacy and promoting the continued development of health technologies; on best practices for including digital technologies in health care systems and for investing in health technologies; on means of improving partnerships on digital health schemes; on how small island developing States could advance health technologies and data governance; on how the Human Rights Council could better support States to address gaps to ensure digital technologies could advance the right to health of all; and on measures for strengthening primary health care using digital technologies.
Intermediary Remarks
TLALENG MOFOKENG, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, said it was important to meet children and youth where they were, whether that be in school or out of school. Special attention needed to be paid to migrant children. Language remained a barrier for children and youth. The establishment of the independent board was a good step which could be emulated in other regions of the world. Continuous monitoring of digital tools, with a view of reaching digital justice was important. This should form part of a non-negotiable national strategy. Issues of crisis and war and humanitarian centres were important, and often meant access to connectivity was impacted, particularly in access to reproductive health services. There was ongoing concern about the ability of rights holders to opt out of particular services, or that their data was being used for situations they had not consented to. States needed to invest the time and resources to provide rights holders with information and communication in this regard.
States also needed to continually undertake impact assessments to uncover blind spots and new and emerging challenges. Impact assessments needed to be developed in all elements of design, coding and artificial intelligence. Human rights could not lead to a slowdown in digital technologies. There was a need to remember the COVID-19 experience, and that telehealth was not accepted before the pandemic. The human rights community needed to take the time to consult with rights holders in order to ensure frameworks and regulations were a lifelong commitment. It was also important to consider how digital tools could enable access to information for people who used sign language or braille. This was another area of collaboration with civil society which could highlight the importance of human rights. Digital tools were supplementary to a stable public health system; they did not replace what was required.
Discussion
Continuing the discussion, some speakers, among other things, noted that the rapid development of digital technologies had led to increased access to health care services and improved health quality. Technologies had revolutionised the heath sector, contributing to improving health systems, including primary health care systems. Access to technologies was crucial for obtaining the highest possible standard of mental and physical health.
Some speakers said there was a need for non-discriminatory care. Technologies served as a tool to provide women and girls with information on sexual and reproductive health. Digital services needed to be made more available to vulnerable groups, such as women, children and indigenous peoples. States needed to work to ensure that the digital divide did not lead to further inequality in health. An approach based on equity was needed regarding digital health technologies.
A number of speakers said they valued the Special Rapporteur’s call for the protection of human rights in the digital health sphere. They continued to raise concerns about issues of privacy created by health technologies. Technologies used incorrectly could expose persons to discrimination, racism, sexism, ablism and violence. Technologies also exposed young people in particular to disinformation regarding health. Health technologies needed to provide high quality services and information without infringing on privacy or other human rights. Speakers also raised concerns about the potential of artificial intelligence to infringe on people’s rights in the health sector, calling for the regulation of such technologies.
Some speakers noted disparities between access to healthcare and digital health services between high and low-income States. High-income countries needed to support low-income countries to access health technologies to prevent health inequality. One speaker said unilateral coercive measures impacted the right to health for people in the global South. Such measures needed to be rescinded. Further, transnational companies continued to monopolise treatments and medicines, harming access to medical care for the global South. Measures needed to be implemented to prevent such barricades on medical resources.
Some speakers presented measures taken in the field of digital health, including digital health strategies, legislation protecting medical data and privacy, digital health platforms and databases, digital training for health personnel and the public, development of person-centred telemedicine services, laws regulating artificial intelligence in the health sector, digital tools for disseminating information on health including in the context of the COVID-19 pandemic, management of health schemes using digital technologies, development of digital health infrastructure, and digital literacy programmes.
Questions were asked on successful initiatives for developing digital health policies and programmes; on methods of safeguarding the rights of indigenous peoples and ensuring that they had sufficient knowledge regarding digital health technologies; on means of ensuring accountability for public and private actors regarding the use of digital health technology; on key considerations for the use of artificial intelligence in health care settings to protect privacy and the right to health; on how digital technology could improve access to rehabilitation services for drug users; on whether the Special Rapporteur planned to examine the impact of unilateral coercive measures on the right to health; on how to ensure the safety of users of digital technologies regarding sexual and reproductive health and rights; and on how digital health technologies could be regulated from a human rights-based approach.
Concluding Remarks
TLALENG MOFOKENG, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, said States needed to allocate sufficient funding for digital programmes. However, without a human rights approach, digital health care would not yield desired equitable outcomes. Data companies needed to be held accountable for the systems they sold. States, businesses, civil society and rights holders had an equal role to play and needed to be equally involved. The surveillance of vulnerable groups was not in line with the right to health approach. HIV testing could decline if privacy was not guaranteed. Indigenous peoples would continue to be left behind as their knowledge was not seen as sophisticated enough. Scientific development was a public good. Businesses must not interfere with the right to health and the right to life. States needed to ensure that medical training included human rights training, including on the right to care. Digital tools needed to be adopted and regulated, using a human rights approach. Ms. Mofokeng said she was available to all States to provide technical support in these areas.
Interactive Dialogue with the Special Rapporteur on Violence against Women and Girls, its Causes and Consequences
Report
The Council has before it the Report of the Special Rapporteur on violence against women and girls, its causes and consequences (A/HRC/53/36) on custody, violence against women and violence against children.
Presentation of Report
REEM ALSALEM, Special Rapporteur on violence against women and girls, its causes and consequences, said since assuming her mandate two years ago, she had made every effort to carry out the duties entrusted by the Council in accordance with several basic principles of work. This included emphasising the intersectional nature of violence against women and girls, and by addressing the multiple facets and forms of violence experienced by women and girls, including emerging global issues. She also assisted States to consider the bigger picture between seemingly unrelated manifestations of violence against women.
She said it had been very important for her to complete the country visit to Libya, despite the series of obstacles she encountered whilst there, in order to shed light on the alarming situation faced by women and girls in the country, including Libyan nationals and non-nationals alike. She also thanked the Government of Türkiye for accepting her visit request and for the excellent support provided by the Government and other stakeholders throughout the visit.
Ms. Alsalem said she chose to dedicate her thematic report to the Council on the issue of child custody and its nexus with violence against women and children. Within the context of child custody cases, there existed multi-layered violence that was perpetuated primarily against mothers. Women belonging to specific minority groups, including indigenous women, migrant women and women with disabilities, were at particular risk of such violence. Ms. Alsalem had received many testimonies and reports from mothers, academics, and experts from all over the globe regarding the problematic approach of invoking accusations of parental alienation in custody cases. The most troubling part of the testimonies highlighted a deliberate decision by courts to allow a child to be returned to an abusive parent, even if there was credible evidence of abuse, only because contact with that parent was considered more important than any other consideration. How could family courts be the scene of such egregious forms of violence against mothers and children with total impunity?
The short answer was that structural and deeply embedded gender bias was rampant in family courts and in the majority of cases, worked against mothers, leading them to lose partial or full custody of their children no matter what they did. The other factor clearly at play was the continued failure of the judiciary, as well as family and child experts to identify already existing realities of domestic violence against women and children, including coercive control. The other main failure was that child custody processes continued to lack child sensitive approaches that centred the best interest of children. Finally, decisions made by family court judges and experts did not lend themselves easily for collation and analysis.
Despite these challenges, Ms. Alsalem argued in the report that there were many actions that States could take now to reverse the long-lasting harm done to individuals, families and societies. This included improving the access of women and children to justice, leaving aside concepts that were misogynistic at their core, improving the collection of relevant data, to putting aside revising the Hague Convention on International Child Abduction to be able to deal with cases of women and children fleeing abusive situations in the context of child custody disputes. She urged States to act now to protect individuals and families from lasting harm, even if these families did not fall within the romanticised notion of an ideal family structure where a child was in contact with both parents, irrespective of the best interest of the child.
Statements by Countries Concerned
Libya, speaking as a country concerned, said Libya was committed to promoting women’s rights and rejecting any forms of violence and discrimination against women. Great gains had been made in women’s rights and participation in public life since Libya gained independence. Libya completely rejected the Special Rapporteur’s report and its findings, which were not based on reality. Respect for women and the preservation of their dignity and rights was at the heart of religious values and social norms in Libya. Criminal laws had increased the punishment for crimes of violence against women. The Rapporteur’s claim that non-Libyan women and girls suffered severe systematic discrimination was baseless. The reference to Law No. 10 of 1980 as the only legal framework for dealing with violence against women was incorrect. This law related to personal status, while the Penal Code and its complementary laws criminalised any acts of violence or physical or psychological harm against any individual, male or female.
Türkiye, speaking as a concerned country, thanked the Special Rapporteur for her visit to Türkiye. During her visit, she had witnessed sound efforts by the authorities to combat violence against women and girls. Türkiye reaffirmed its zero-tolerance policy to such violence. The report acknowledged significant steps taken by the Government to protect women and girls from violence, including through laws protecting women from domestic violence and stalking. The report, however, contained non-factual data based on sources that could not be verified. Women and accompanying children could benefit from support services with no restrictions. Türkiye’s fight with terrorist organizations did not constitute an armed conflict. Türkiye had launched a strategy to promote the rights of women and girls in 2023. It would continue to promote a strategy of zero tolerance for violence against women and girls.
Discussion
In the discussion, many speakers thanked the Special Rapporteur for her report, which highlighted the concern about the pattern of ignoring intimate partner violence against women in determining child custody cases. Violence against women and girls, including domestic and intimate partner violence, was a harsh reality worldwide. Preventing, combatting and eliminating all forms and manifestations of sexual and gender-based violence, including domestic violence, needed to be a priority
Some speakers agreed that without a clear, legal definition of domestic violence, gender inequality and discrimination could pose additional barriers to delivering justice for disadvantaged women. It was particularly worrisome that there were cases where protection systems failed, and children were compelled to return to abusive and life-threatening situations. All violations of the rights of the child and the principle of the best interest of the child were to be fully respected. To address these challenges, it needed to be ensured that judges and other experts had adequate training. Allegations of domestic violence needed to be properly investigated and women experiencing such violence should be ensured with all necessary protection and services.
Speakers asked the Special Rapporteur what additional measures could be taken to further strengthen monitoring systems that collected disaggregated data on the prevalence of all forms of violence against women and girls? What advice would the Special Rapporteur give to national authorities to ensure proper processes in child custody cases?
