Transcript 'UN Conventional Thinking'

Reframing Protection from a
Child Rights Perspective
James McDougall
National Children's & Youth Law Centre
Protecting All Children Today
Conference
Brisbane, Australia
Wed 25 March 2009
Established in 1993 as a community legal centre to assist
children and young people in dealing with the legal system
and to promote their rights. Its policy corner stone is the
United Nations Convention on the Rights of the Child.
www.lawstuff.org.au
Children and Young People
• Do not use adult-controlled mechanisms
• Have legal issues and problems
• Seek information in order to develop their
own responses to problems
• Lawstuff – over 4 million hits a year
• Lawmail – between 1000 and 1500
requests for assistance a year
What do children want?
• I want to be heard – on my own terms.
• I want my view to be heard on decisions
that affect me.
• If a different decision is made, I want to
know why?
• I want to be safe
• I want to be treated with respect.
Barriers to Access for Children
• Whilst older children generally use the
internet more comfortably, more often (and
more skilfully) than adults, barriers remain.
• Culture
• Remoteness
• Language and literacy
• Disability
• Poverty
Children’s Voices
• “i seriously want to move out….whenever
something happens my dad would always
blame my mother, and i was hit by him
ever since little, i had lots of bruises before
and my friends would always ask my what
happened but when i was little i didnt want
anyone to think about me differently.”
• A 14 year old from NSW
Children’s Voices
• I am fifteen and have been having trouble at
home my whole life. My dad has hit me.
Threatened to kill me attempted to strangle me,
thrown tables at me. And glass objecs witch
have actually hit me and broke…. I would like to
leave home. My mum sides with my dad. And i
hate it. Please help me with information about
living on my own i am getting very depressed
living here at home.” 15 year old (SA)
Children’s Voices
• Hi.
• About a month ago I called the department of community
services. I talked to them about my problem. They talked
to my parents about it on the phone and it has caused so
much trouble. Is there any way I can ask them to remove
the report from their records? … What can I do about
this? I have asked them before if they could remove the
report but they said they couldn\'t.
• --------------------------------------------------------------------------• Hi.
• I am wondering if someone is bullying me or physically
hurting me (like hitting me or bashing me up) what can I
do about it?
Our Existing Systems
– State / Federal
• In 1997 the Australian Law Reform Commission
and the Human Rights & Equal Opportunity
Commission produced the landmark report
“Seen and Heard: Priority for Children in the
Legal Process”. At the time the Report noted ‘the
consistent and persistent criticism of all care and
protection systems in Australia’.
• The Report called for the development and
implementation of national standards for the
care and protection system. Today nearly twelve
years later we still have no national standards.
Making Progress?
Report of the Commission of Inquiry into Abuse of Children in
Queensland Institutions, 1999 (the ‘Forde Inquiry’);
Putting the Picture Together: Inquiry into Response by Government
Agencies to Complaints of Family Violence and Child Abuse in
Aboriginal Communities, Western Australia 2002 (the ‘Gordon
Inquiry’);
Our Best Investment: A State Plan to Protect and Advance the Interests
of Children, South Australia, 2003 (the ‘Layton Review’);
Children of Anangu Pitjantjatjara Yankunytjatjara (APY) Lands
Commission of Inquiry, A Report into Sexual Abuse, South Australia
2008 (the ‘Mulligan Inquiry’);
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, 2007 (the ‘Wild Inquiry’)
The Special Commission of Inquiry into Child Protection Services in
New South Wales 2008 (‘the Wood Inquiry’).
Scope and Principles of the
Convention
• Civil and political rights,
• Humanitarian rights
• Economic, social and cultural rights
• Rights to family
• Rights to culture
Survival and Development
Non-discrimination / Equality of Opportunity
Protection – the best interests principle
Developing Participation
A child’s life experience
• In school (articles 28 and 29)
• In the home / with family (articles 3, 5, 18,
20, 21)
• For health + welfare (articles 6, 24 and 27)
• For development (articles 7, 18 and 31)
• For protection (articles 19, 30-34, 39)
• For participation (articles 13, 14 and 17)
Duty Bearers for the Child
• The right of families to support from the
state (articles 5, 18)
• The rights of children requiring the care of
the state (articles 3, 9)
• The right to family and culture (articles 7,
8, 10 and 30)
A Child Rights Based Approach
1. Evaluation and identification of children’s needs.
2. Evaluation and identification of causes.
3. Raise awareness of needs and causes.
4. Evaluate capacity of rights bearers (children and
parents) to claim and duty bearers (parents, the
community and the State) to provide.
5. Develop comprehensive strategy to build capacities.
6. Implement strategy - includes research, delivery of
services, education – for empowerment, awareness and
legislative change.
7. Evaluate strategy against content of normative standards
(and the work of human rights treaty monitoring bodies)
8. Implementation - interdisciplinary and multi-sectoral.
9. Implementation - culturally sensitive and aware.
10.Implementation - to require re-allocation of power and
resources.
A child rights based approach
• Seeing the world through the eyes of a
child;
• Confronting marginalisation, paternalism
and benevolence;
• Recognising entitlements, capacity and
autonomy;
• Accepting social responsibility and burden
sharing;
• Creating participatory, sustainable and
effective outcomes.
A National and Coordinated
Approach to Child Protection
What are the cumulative effects on a country if the
child protection system fails?
Children who miss out on educational
opportunities, have poorer health outcomes,
have greater contact with the criminal justice
system and as a consequence of suffering
abuse have less of a chance to fulfil their
potential. This disadvantage, if left
unattended, can take its toll on a nation’s
social and economic development.
UNICEF Child Protection Programme Strategy and
Programming Process Report 2007
What is the Federal
Government’s current stance?
“Child Protection, including for children in
alternative care, is the statutory responsibility
of State and Territory Governments”
“The Australian, State and Territory Governments
are also working together to examine a
national approach to protecting all vulnerable
children. This includes developing a common
descriptive framework, definitions and
terminologies for child protection and early
intervention.” from the draft Government
Report to the United Nations Committee on the
Rights of the Child – June 2008
‘Seen and Heard: Priority for Children in the
Legal Process’, 1997 ALRC + HREOC
• ‘Australia’s commitments to children as a party to [the Convention
on the Rights of the Child] and the consistent and persistent criticism
of all care and protection systems in Australia lead the Inquiry to
recommend that the Commonwealth undertake to coordinate the
various care and protection systems
• The Report proposed national standards for legislation and practice
(Recommendation 161) to be reviewed and evaluated in light of
national and international initiatives (Recommendation 162);
national research and data collection (Recommendations 163 and
166) including on the effectiveness of mandatory reporting
(Recommendation 168) and conferencing models
(Recommendation 169); and a National Charter for Children in Care
(Recommendations 164 and 165.
• Apart from some renewed interest in the area of research, there has
been no particular response to these recommendations at a national
level in the years since.
Towards Best Practice
A Justice System Model is not sustainable.
A Public Health Model?
With comprehensive prevention and
participation strategies;
With cost-benefit analysis by the Productivity
Commission;
With evaluation and monitoring using a Child
Rights framework;
With State / Federal cooperation or a
Federal regulatory model?
The Participation of Children
Don’t look to lawyers for best practice in
supporting the participation of children.
But hold them to account if they don’t.
The inclusion of participation as a principle
in legislation is not enough.
Supporting participation is the responsibility
of adults.
Support the work of those with a track
record – the CREATE Foundation; the
Offices of Children’s Commissioners.
Indigenous Children
The significance of history in building trust.
Self determination – involving communities
in building sustainable solutions.
The importance of relationships with family,
community, culture and land.
The United Nations Committee on the
Rights of the Child – General Comment
No. 11 on Indigenous Children
http://www.crin.org/docs/GC.11_indigenous_New.pdf
Using a Child Rights Framework
• The relevance of basic survival and
development rights
• Early intervention
• The provision of substitute care – a right to
special protection
• Stability
• Periodic review
• Leaving Care
• Homelessness
The Need for
National Policy and Coordination
• The Committee … remains concerned that there is no
comprehensive policy at national level for children specifically
addressing human rights issues that may impact on them.
(Paragraph 11)
• The Committee … recommends that the State party develop and
implement effectively a National Plan of Action for children, taking
into account the Declaration and the Plan of Action “A World Fit for
Children” adopted by the General Assembly special session in May
2002. This Plan should have specific goals, strategies and
guaranteed resources, which would allow for an appropriate
implementation of the Convention across all States and Territories.
(Paragraph 12)
UN Committee on the Rights of the Child (October 2005)
Concluding Observations on Australia's implementation of the
Convention - http://www2.ohchr.org/english/bodies/crc/crcs40.htm
Children as Active Participants
• Children want to be healthy – what will encourage them
to develop healthy practices?
• Children want to be safe from violence and abuse - how
can we provide them with safe places?
• Children will seek help from those they trust – How can
we make sure that they trust the right people?
• Children want to learn – what is a child-friendly learning
environment?
• A child rights based approach will look beyond the laws
and regulations.
• We recall the fourth point from Tobin’s plan.
• Evaluate capacity of rights bearers (children and
parents) to claim and duty bearers (parents, the
community and the State) to provide.
Our Role in the Participation of Children
An adult can promote and facilitate effective participation by:
keeping the child informed about:
• what is going on;
• how the process works;
• what different roles people play;
• what the issues and options are;
• how decisions will be made;
• what happens after the decision is made; and
• the reasons for the decision, including, if necessary, why the child’s
views were not followed in the ultimate decision;[1]
allowing the child a choice in how and whether to participate;
helping the child to express their views; and
enabling the type and extent of participation chosen by the child
• [1] J. Cashmore, Child Abuse & Neglect 26 (2002) 837-847, p842
A National Child Protection Framework
• A national and coordinated approach to child protection which draws
on best practice, nationally and internationally;
• Built on the United Nations Convention on the Rights of the Child;
• Provides for the voices of children to be heard and for the effective
participation of children;
• Provides for the voices of Indigenous children to be heard and for the
effective participation of Indigenous children;
• Provides both care providers as well as young people leaving out-ofhome care with sufficient support systems to afford these children and
young people the opportunity to develop and participate;
• Evaluation and review of the effectiveness of mandatory reporting;
• Considers the separation of the functions of intervention and support
(which should be grounded in a public health model) from the function of
prosecution (which sits with a justice model).
Thanks
…to the staff and volunteers of the Centre
particularly Julianne Elliott, Rebecca
Dollisson, Sarah Penman, Benita Rupan,
Subhaga Amarasekara, Oishee Alam and
Karen Fok.…
…to the children who share their thoughts
with us….
…to the Conference Hosts and
Organisers….
…to you for your attention.
www.lawstuff.org.au