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The Anti-Trafficking in Person Act of 2008 (the Act) draws aspiration to combat human
trafficking from the Palermo Protocol. Owing to this aspiration, the Act overwhelmingly
incorporates the spirit of the Protocol. However, as regards child trafficking, the Act falls below
the strict standard of the Palermo Protocol. While the Protocol requires only two elements – Act
and Purpose – to establish child trafficking, the Act impliedly requires three elements – Act,
Means and Purpose – to establish child trafficking. This is mainly caused by the omission by the
Act to specifically define child trafficking making the general definition to trafficking in person
to apply across all types of trafficking.
Appraising this status quo of the Act in light of the best interest rule, this research seeks
to find the effect of the relatively lenient position of the Act for trafficked children and those
under threat to be trafficked. In that regard, the research analyses the consequence of the Act‘s
lenient approach for judicial, prosecutorial and administrative measures to combat child
trafficking. In so doing, the research considers the duty placed upon public or private social
welfare institutions, courts and administrative bodies to prioritize the best interest of the child in
all actions concerning a child.
The research finds that the best interest of the child is not strictly protected in the Act as
the lenient approach complicates the prosecutorial work to establish the offence. This, in turn,
limits the obligation of the courts, social welfare officers and immigration officers to protect the
best interest of the child. The statutory approach makes the detection, investigation and
conviction of the child traffickers difficult or impossible. |
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