External monitoring, charters and conventions come together to improve youth justice detention

Events at Darwin’s Don Dale Youth Detention Centre in 2016 alarmed the community and shone a spotlight on the unsuitable treatment and environment in youth detention centres across the country.

Riots, like those seen at Don Dale and other detention centres, demonstrated how complaints and concerns among residents could fester unaddressed and escalate without appropriate and timely intervention. It is essential that the wellbeing of residents and staff in institutions closed to public view is assessed and monitored to ensure young people in juvenile detention, who are some of our most vulnerable, are protected.

Improving and strengthening the way places of detention are monitored is one way to prevent mistreatment. In jurisdictions across Australia there are processes in place to investigate and review detention facilities.

In South Australia, the Training Centre Visitor Unit (TCVU) conducts visits to both campuses of the Adelaide Youth Training Centre (AYTC). Legislated in the Youth Justice Administration Act 2016, the Training Centre Visitor protects and promotes the rights and best interests of young people on remand or sentenced at the AYTC. This allows the visitor ‘to act as an advocate for the residents of a training centre to promote the proper resolution of issues relating to the care, treatment or control of the residents.’

The ability to make a complaint to an independent person, like an official visitor, is also one of the rights in the Charter of Rights for Youths Detained in Detention Centres.

In March, the TCVU released a report about its pilot visiting program and review of records. During the pilot, residents raised issue with the frequency of unclothed searches. By identifying these kinds of resident concerns and raising them with AYTC management and the Minister, external visitors can draw attention to degrading procedures as well as potentially preventing the issue from escalating. Readers may have seen a recent article in the Advertiser in which Penny Wright, the Training Centre Visitor, made it clear that she did not support the continuation of excessive and intrusive strip searching and methods such as ‘squat and cough’.

This preventative approach will be further refined following Australia’s ratification of the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT is an international agreement that’s main aim is to prevent the mistreatment of people in detention.

Australia has three years in which to fulfil its obligations and develop an independent National Preventative Mechanism (NPM) to comply with its obligation under OPCAT. The NPM conducts inspections of all closed spaces and places of detention. Australia joins 88 other countries as a party to OPCAT, 71 of which have designated their NPM.

The Australian Human Rights Commission has been conducting consultations on how Australia should implement OPCAT.  The Commonwealth Ombudsman is also coordinating an assessment about how a ‘diffuse’ NPM model might operate across State and Territory jurisdictions.  At the moment it is unclear what Australia’s NPM will look like and what the involvement of existing monitoring bodies will be.

The TCVU will conduct its first formal inspection of the AYTC in the final quarter of this year. It will be informed by the work and information gained during the program of visits and reviews of records that have been implemented since mid-2018. This inspection process is being developed so it will be compliant with OPCAT requirements.

Around the world, jurisdictions similar to Australia are having success with models of juvenile rehabilitation that are radically different to those here. Much stronger independent oversight and monitoring will increase transparency and identify problems before they intensify. Success can also be measured by the way these programs challenge and force reconsideration of the largely penal model that dominates Australia’s thinking.

Australia reports to the UN on child rights

The United Nations Convention on the Rights of the Child is one of the most important documents in preserving the rights of children around the world.

Every five years the Australian Government must report to the UN Committee on the Rights of the Child, a requirement of Australia as a signatory to the UN Convention on the Rights of the Child.

The Australian Government is currently preparing for its meeting with the Committee, following the release of its report in January 2018.

In this post, we look at two accompanying reports responding to Australia’s report to the UN Committee on the Rights of the Child.

The Australian Child Rights Taskforce is a peak body made up of more than 100 organisations advocating for the rights of Australian children. Convened by UNICEF Australia, the taskforce released its ‘alternative’ report, which includes the voices of 572 children and young people consulted in 30 locations around the country. It makes 191 recommendations to promote and protect the rights of children in Australia.

Similarly, the Australian Human Rights Commission (AHRC), an independent statutory organisation promoting and protecting human rights in Australia, released a report. It was written following consultations with approximately 450 children and a further 22,700 through an online national poll on child rights.

While the Government’s report is no longer available online, these two reports look exhaustively at matters relating to children in Australia. We are considering some of the areas relating specifically to children and young people in out-of-home care.

Since Australia last reported to the Committee, there have been 24 separate inquiries, which have each identified issues with the child protection sector. The AHRC report finds the number of children and young people in out-of-home care has increased by 18 per cent in the past five years. The alternative report identifies problems with inconsistency and a lack of emphasis on frameworks being child centred.

Concerns for care leavers

Both reports identify concerns with young people leaving out-of-home care, with the AHRC report finding nearly 35 per cent of young people who leave out-of-home care become homeless. Last year the South Australian Government committed to extending the age young people leave out-of-home care from 18 to 21 years of age.

However, this does not yet include the 11 per cent of children and young people in residential and emergency care. Both reports recommend the Australian Government increase, or consider increasing, the age children leave care and call on governments to implement policy to prepare young people transitioning to independence.

Over-representation of Aboriginal and Torres Strait Islander children and young people

The reports are both concerned with the over-representation of Aboriginal and Torres Strait Islander children and young people in child protection and out-of-home care. Indigenous children are almost ten times more likely to enter out-of-home care than non-Indigenous children.

The alternative report makes a number of recommendations in this area, including the implementation of nationally consistent standards to respect all five elements of the Aboriginal and Torres Strait Islander Placement Principle. It also calls on the Australian Government to commit to ‘Closing the Gap’ targets to reduce the rate of Aboriginal and Torres Strait Islander children in out-of-home care.

Transgender and gender diverse young people

Transgender and gender diverse children in Australia can now access Stage 2 medical treatment without requiring court authorisation, but this does not extend to include children and young people in the out-of-home care and juvenile justice systems. These children still require a court authorisation to begin treatment.

What’s next?

The UN Committee will consider the findings of these reports ahead of the formal meeting with Australia. At the end of this process, the UN Committee will provide the Australian Government with its Concluding Observations, which will include progress made by Australia and recommendations for improvement.

While the Committee cannot legally enforce its recommendations, it can provide guidance for the Australian Government to improve its practice and better protect the rights of children and young people. The process is also the opportunity to highlight specific issues, like those discussed above, and create interest for the public and other advocates to hold the Australian Government to account and to take action.

The UN Convention on the Rights of the Child in Australia

CRC in Australia graphic

The United Nations Convention on the Rights of the Child is more than an abstract aspiration.  In this article we look at the reporting process and how it reflects and responds to the situation of children in Australia.

The United Nations Committee on the Rights of the Child monitors the implementation of the UN Convention on the Rights of the Child (CRC) around the world and in Australia.

As a signatory to the CRC, Australia is required to report to the UN Committee on the Rights of the Child by way of a government report and an appearance before the Committee.

Australia is currently preparing for its forthcoming appearance after its most recent written report was submitted in January this year.

The written report

The CRC requires that every five years the Australian Government prepare a report which talks about:
• what it is doing to protect and promote the rights in the CRC
• the progress that has been made protecting and promoting those rights
• obstacles and problems in implementing the CRC.

The preparation of the report to the UN Committee is co-ordinated by the Attorney General’s Department (AGD) in consultation with state and territory governments and other relevant departments and agencies. The Government then takes feedback from the community on a draft version of its report. When the report is finalised it is published on the AGD’s website.

The children’s perspective

Viewing children’s rights more from the perspective of the children’s lived experience, the United Nations Children’s Fund (UNICEF) is preparing a ‘shadow’ report’ on behalf of the Australian Child Rights Taskforce of NGOs which will also go to the UN Committee. For more information about The Children’s report and its progress, visit the report webpage.

The UN Committee considers the report along with other information provided by the Australian Human Rights Commission and non-government organisations. The Committee can also request information on selected issues, updates on new laws and policies and specific data.

The Formal Session

Australia will respond to these issues in writing, a few months before appearing before a formal session with the Committee in Geneva. In this session, representatives of the Australian Government will have a conversation with the Committee which is public and viewable online.

On the last day of the face-to-face session the Committee reports on the progress achieved by Australia and presents its recommendations for improvement. These are available on the UN website.

Enforcement?

The Committee cannot legally force the Australian Government to implement its recommendations but its recommendations do provide guidance to the government about how to better protect children’s rights.  Perhaps even more important, the recommendations give the Australian public and children’s rights advocates the chance to assess how our government has performed against the standards set in the rest of the world and to lobby for change.

This article first appeared in the Guardian’s August 2018 Newsletter.

The United Nations Convention on the Rights of the Child

The United Nations Universal Declaration of Human Rights is 70 in 2018 and of it’s many grandchildren, the most widely ratified is the United Nations Convention on the Rights of the Child (CRC). To mark the anniversary, this is the second in the series of short articles about understanding, promoting and safeguarding rights, particularly those of children growing up in care or detained in youth justice facilities.

The Universal Declaration of Human Rights is the foundation of international human rights law and has inspired more than 80 international human rights treaties and declarations.  As time passed, and with reflection and experience, international human rights instruments have become more focused and specialised, to address the circumstances of specific social groups and their issues.

Before the Convention on the Rights of the Child

The CRC was not the first international attempt to protect the rights of children.  It was preceded in 1924 by the Declaration on the Rights of the Child made by the League of Nations.  The League was a forerunner to the United Nations which folded when it was unable to prevent the onset of World War Two. The Declaration was re-adopted in an extended version by the UN in 1959 as the Declaration on the Rights of the Child.

The date of its adoption, 20 November, has been adopted as Universal Children’s Day.

These earlier Declarations, and the Universal Declaration of Human Rights, are acknowledged in the preamble to the CRC.

Like the Universal Declaration of Human Rights, the CRC is a global document that has been translated into over 500 languages and several child-friendly versions.  Nearly 200 countries are now party to the treaty, including every UN member except the United States.  The US contributed significantly to the drafting of the CRC and signed it in 1995 but successive administrations, including those of Presidents Clinton and Obama, have failed to pass the necessary legislation to ratify it.

The CRC took 10 years to draft.  It sets out the civil, political, economic, social, health and cultural rights of children.  It defines a child as any human being under the age of eighteen, unless the age of majority is otherwise defined locally.  It was adopted by the United Nations in 1989.  It entered into force in 1990 when it had been ratified by a required number of UN member states which had passed enabling legislation.

The Optional Protocols

In the succeeding years, three Optional Protocols (OP) have been added to the CRC to address particular issues affecting children. These are treaties in their own rights that provide for procedures with regard to the treaty or address a substantive area related to the treaty

The OP on the involvement of children in armed conflict, sometimes known as the ‘child soldier’ treaty came into force 2002 at the same time as the OP on the sale of children, child prostitution and child pornography.

The OP on a communication procedure, which came into force in 2014, sets out an international complaints procedure for child rights violations, which enables children and their representatives to bring complaints about violations of their rights to the UN Committee on the Rights of the Child if they have not been fully addressed in national courts.

Supporting documents

The UN has also produced other documents to enhance the implementation of the CRC by member states.  Two examples that are especially relevant to child protection and juvenile detention are the 1985 Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules) and the Guidelines for the Alternative Care of Children.

Most UN documents tend to be discouragingly dry and text-heavy but we have a liking for the colourful material produced by the Scottish Children’s Commissioner, especially this poster of the UN Convention on the Rights of the Child.

The UN Universal Declaration of Human Rights – 70 years on

The Universal Declaration of Human Rights is the foundation of international human rights law and just as relevant now as it was when it was created 70 years ago.

It represents the recognition that basic rights and fundamental freedoms are inherent to all human beings, whatever their nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status. It is the great grandparent of our own Charter of Rights for Children and Young People in Care.

Since its origins in the aftermath of World War Two, the Declaration has inspired more than 80 international human rights treaties and declarations, a great number of regional human rights conventions, domestic human rights bills and constitutional provisions. Together , they constitute a comprehensive, legally binding, system for the promotion and protection of human rights.

To mark its anniversary, this is the first of a short series of articles on the importance of understanding, promoting and safeguarding rights, particularly those of children and young people growing up in care.

Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, is widely recognised as the driving force for the Declaration’s adoption

Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, is widely recognised as the driving force for the Declaration’s adoption

Spurred by the global tragedy of the Second World War, the United Nations was formally created in October 1945 after representatives of the original 51 member countries signed or ratified the United Nations Charter. Early in its existence, the UN decided a roadmap was required to complement the Charter and to guarantee the fundamental rights of every individual. This ultimately led to the development and proclamation of the Universal Declaration of Human Rights.

The Declaration was drafted by representatives with different legal and cultural backgrounds, drawn from all regions of the world. Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, chaired the drafting committee. Australia was represented on that committee by William Hodgson.

When the Declaration was proclaimed by the United Nations General Assembly in Paris in December 1948, the UN consisted of 58 member states. Since then, membership has grown to 193 and the Declaration has become a global document. In 1999, the Guinness Book of Records declared it the most translated document in the world and it has been translated into more than 500 languages. One of the most remote languages is Pipil – an almost extinct language spoken in El Salvador by less than 50, mainly elderly, people. In this way, translating the Declaration has also served to preserve culture.

Over time, international human rights treaties have become more focused and specialised, addressing a variety of defined social groups and issues, many relevant to our own community.  They include, for example, the Convention on the Rights of Persons with Disabilities; the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Particularly relevant to the work of the Guardian’s Office is the United Nations Convention on the Rights of the Child. Signed by 196 countries, and ratified by every member state of the UN, except the United States, the Convention came into force in 1990 and is the most widely ratified human rights treaty.

Under South Australia’s legislation, the Guardian’s Office is responsible for developing and implementing the Charter of Rights for Children and Young People in Care – which is just one of the ways the Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child influence our work.

In our next newsletter, we’ll look at the Convention of the Rights of the Child.

More information about the 70th Anniversary of the Universal Declaration of Human Rights can be found on this web page.

This story first appeared in the Guardian’s Newsletter for February 2018, downloadable here.

Young people speak about protecting their rights in residential care

Following up from Commissioner Nyland’s recommendation #136 in her August 2016 report on child protection systems in South Australia, the Guardian asked CREATE to ask some young people in residential care what they knew about their rights and how they thought that they could be best protected.

Here are some of the things they said.


You can download the above in text form from this link.

The Charter of Rights in action

picture of students hearing about the Charter of Rights

Nicole Plikington and Sarah Meakin talking with third and fourth year social work students on placement with the Department for Child Protection about the Charter of Rights. With thanks to Jessica Pellegrino from DCP Learning and Development.

28 November 2017

Mission Australia, as a rights-based organisation, found a natural fit with the Charter of Rights says Flexible Learning Option (FLO) Case Manager for Mission Australia, Danielle Stewart.

‘We see a number of young people in care in FLO, but the Charter also appeals to us because the rights are so widely applicable to all of the young people we work with.

‘We find the materials useful, particularly the posters.  It isn’t always easy to start a conversation about rights with some of our young people but having material in the background all of the time helps.

‘In my role of Charter Co-ordinator for Mission Australia it is a challenge to keep up enthusiasm and momentum.

‘Regular training and Charter updates for staff would be a real benefit. I am sure that government child protection staff discuss the Charter during staff induction but it can be hard to take everything in at one time. Later on, there are staff changes and, when there is so much going on day-to-day, thinking about the Charter and rights can drift into the background.

‘We have been very successful in FLO making use of games to aid learning in an entertaining and non-threatening way.  It would be good to have Charter tools like that to use.

‘Advocating for a young person with someone from another organisation when you notice something wrong can be difficult. We have had situations where our staff have been unsure of their power to intervene.

‘Transitioning from care is one of the major challenges for the young people we work with.  We like to form partnerships with people in other organisations around the young person but people are busy and sometimes do not get back.

To this time, 85 organisations have endorsed the Charter of Rights.

This item first appeared in the November 2017 Guardian’s Newsletter which is available for download now.

Setting the record straight

6 June 2017

Record keeping can be seen as just another chore, the domain of archivists concerned with keywords and disposal schedules or a tedious administrative task for overworked caseworkers.

But for people who have spent a significant portion of their life in the care of institutions, official records can assume a huge significance as they try to craft a personal history and an identity from fragmented memories.

Children who grew up with their families might ask a family member ‘how did you wrap me as a baby’,  ‘why did you pick that school for us’, ‘how old was I when I got my first tooth’ or ‘can we look at my kindy book?’  They might trawl shoeboxes of old photos or swipe through an iPhone to look at pictures.  They might see certificates of their achievements displayed on the walls of their home alongside pictures of special holidays or treasured relatives.  They might uncover birth certificates in bottom drawers or in the backs of filing cabinets alongside old x-rays and school reports.

For children who have been in care with little access to these kinds of resources, formal records can hold large parts of the story of their lives, sometimes the only way to fill in key pieces of the puzzle.

But organisations are not always good at keeping records.

Record keeping has been historically biased towards text, such as case plans, file notes and reports. We often ignored the rich life-information that waited to be interrogated in the photographs, documents and memorabilia that also surrounded a child.

Record keeping is not always sensitively done, either, allowing that records may later be read by the very people who were once their subject. Children and young people are seldom asked to contribute to their own records.

Record keeping historically has been mostly concerned with the needs of the organisation, to record what was needed to conduct the business, rather than considering the future needs of the child.

And records are not always complete. Important conversations are not noted and the reasons for life-changing decisions are sometimes scantily recorded or not recorded at all.

Even when records have been made, the documents have not always been treated with a level of care consistent with their future value to children.  Many older records have been misplaced or damaged in fire or floods.  A presenter at the recent Setting the Record Straight for the Rights of the Child national summit observed cynically that one particular organisation seemed especially prone to flooding.

Where records are made and survive, we are not always good at providing access to them to people who have been in care.  Although the right to access their records is now guaranteed in jurisdictions across Australia, people who have tried to access them have not always found it easy. There can be considerable work involved in preparing and presenting records, and some organisations have tried to avoid that work by refusing or delaying requests for access.

Where records are provided, they are frequently redacted, that is, sections are blacked out with the intention of protecting the privacy of third parties. While protecting third parties is laudable, redaction has been inconsistent, sometimes being light and at other times removing so much of a record that it conveys very little of use.

But simply handing over records to a former client does not end an organisation’s responsibility. Presentation of records should be done in a way that assists the recipient to deal with their contents practically and emotionally.  Records frequently need to be interpreted.  Helping a person to understand the context for a record can be all-important to them constructing a cohesive story around the events that are recorded. Records will frequently trigger emotions or reawaken trauma and having skilled staff on hand to help is also the responsibility of the record keeper.

‘…knowing who you are and your history’ is one of the rights enshrined in the Charter of Rights for Children and Young People in Care.  It is based on the understanding that a respectful, comprehensive and vibrant archive of a child’s history can be central to developing a strong identity with lifelong benefits to happiness and wellbeing.

Much more than a dull chore.

The Guardian’s publication ‘Child sensitive record keeping’ is a useful download if you or your organisation is considering how well you manage records.

This article first appeared in the Guardian’s Newsletter in May 2017.

Charter of Rights breaks signup records

77 endorsing organisations!
410 Charter Champions!

The release of the revised Charter of Rights for Children in Care and the re-endorsement by organisations throughout 2016 and into 2017 has been a great success.  The Department for Community and Social Inclusion (DCSI) is the latest to add its name to a the growing list.

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‘It’s not about the numbers of course but it’s been really exciting and satisfying to see how agencies working with children in care have responded to the revised Charter of Rights for Children and Young People,’ said Charter Coordinator Nicole Pilkington.

‘Every organisation that has endorsed the Charter has now been through the full endorsement process and aligned their values and practices with the 37 rights in the new Charter.

‘I had some fascinating conversations and found out about the work of some great organisations as we worked through the endorsement process since May last year.

‘It is encouraging to know that we have more than 400 champions of the rights of young people seeded throughout the child protection and out of home care system.  Being so close to the action, Charter Champions are great sources of ideas and feedback at a time when child protection is gearing up for such profound changes.

‘We are also fully stocked with the new posters, booklets, contact cards and other materials that reflect the revised Charter, ’ she said.

Organisations that have endorsed the Charter can order the materials free of charge for distribution to children in state care through the requesting materials page of the Guardian’s website.

An earlier version of this article also appeared in the February 2017 edition of the Guardian’s Newsletter.

IPS has bags of goodies for children entering emergency care

The IPS team’s Bruno Rocca and Robert Griffin take delivery of the first batch of bags for children entering emergency care from Nicole Pilkington and Lisa Pham from the Guardian’s Office.

6 March, 2017

‘When Bruno Rocca approached the Guardian’s Office a few months ago the Intensive Placement Services team were already providing Oogs and some other of the Guardian’s materials to the children coming into emergency care,’ said Charter of Rights Coordinator Nicole Pilkington.

‘He was looking for a way to streamline the process to make sure that all children received materials that were suitable to their age and Aboriginality while keeping it simple and practical for the members of the busy IPS team.

‘We devised three seprate packs for teenagers, pre-teens and Aboriginal children and arranged with Bruno to have them assembled and delivered to the IPS team offices.

‘We hope this is only the start.  There are already ideas to replace the bags with something more durable and useful like backpacks and to supplement the contents with other useful items like writing and drawing materials and colouring-in books.

‘It has been great to work with the IPS.  Perhaps in the future, other groups may want to make up their own customised packs that add value and usefulness to the Guardian’s materials for the children in their care,’ she said.

Full details of the materials available to organisations that have endorsed the Charter of Rights for distribution to children in state care are available on the Requesting materials page of the Guardian’s website.