There are an estimated eight million children residing in orphanages, or residential care facilities, globally and it is estimated that four out of five of these children are not orphans. It is well documented that many of these children are taken from their families by recruiters and sold into orphanages for the purpose of profit. These children are known as “paper orphans”. There is no formal legal academic research available on how international law regards the displacement from family and subsequent construction as an orphan.
This article provides a legal account of the movement of the child from the family to the orphanage, and considers whether this movement can be categorised as child trafficking under international law. The major point of contention as to whether paper orphans are considered trafficked is whether they experience a form of exploitation that is included in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. This article examines the forms of exploitation that have been documented as being experienced by paper orphans and argues that the process of paper orphaning meets the current interpretation of the definition of trafficking.
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Opened for signature 15 November20002237unts 319 (entered into force 25 December 2003) (hereinafter “Trafficking Protocol”).
Opened for signature 20 November19891588unts 530 (entered into force 16 January 1991) (hereinafter “crc”).
Opened for signature 25 May20002171unts 227 (entered into force 18 January 2002) (hereinafter “op-crc”).
In2012Luitel was convicted of torturing 16 children under section 7 of the Children’s Act 1992 Nepal. She was sentenced to one month’s incarceration a fine of npr 5000 (approximately aud$70) and compensation of npr10000 (aud$120) restitution to be paid directly to the victims. However Luitel never paid the fines restitution or served her sentence.