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.

New resources help children and young people in residential care have a say

graphic from one of the having a say posters

New resources, available today, will give children and young people in residential care information about their right to make a complaint and be heard.

Developed by CREATE Foundation, in conjunction with Office of the Guardian, the resources provide information and tools to assist them raise issues that concern them.

Central to the new feedback process is the the Post Incident Reflection Form, developed with input from young people in residential care.

Also available is a set of posters, brochures and two videos which tell children and young people in residential care about their rights and ways to address issues.

The resources have been developed in response to a recommendation from Commissioner Margaret Nyland’s 2016 report The Life They Deserve.  Recommendation 136 from that report proposed that the Guardian’s Office develop an educational program for children and young people in residential care to explain and promote their rights and give them encouragement and the means necessary to have their voices heard.

The live action video shares the stories of young people who relate some of the incidents they faced while living in residential care. It also advises young people in care why it’s important to understand their rights.

For younger people, an animated video describes the Post Incident Reflection Form and how a child in care has the ability to make a complaint at any time.

If resolving an issue with residential care staff does not work, children and young people are encouraged to fill in a complaints form or phone the Complaints Unit directly on 1800 003 305.

Printable files of the posters can be downloaded now from the Resources page of the Guardian’s website and printed copies of the posters and booklets will be available to be ordered from that page in February.

The Training Centre Visitor’s Annual Report 2017-18

graphic of annual report

The first Training Centre Visitor was appointed in December 2016 to visit, advocate, inspect, inquire and investigate matters relating to the residents of youth detention facilities in SA and provide advice to the relevant minister.  This first report covers the establishment phase of the scheme and some individual advocacy with visits proper commencing after the period covered by this report.

You can download the Training Centre Visitor’s Annual Report 2017-18 now.

Security and stability of placement dominates requests for advocacy

picture of suitcase

The Guardian’s Office received a record 96 in-mandate[1] requests for advocacy in the first quarter of the new year, representing 127 children and young people.

This was an increase of 35 per cent in inquiries and a 24 percent increase in the number of children represented compared to the preceding quarter.

Last year the Office averaged 64 in-mandate requests per quarter.  This follows the trend of an increase in the number of requests for advocacy and in the complexity of the issues raised.

The top five people who initiated in-mandate requests in July-September 2018 were:

Adults in the child’s life                                  42

Children and young people themselves      33

Department for Child Protection staff          10

Health, education and youth justice              5

Non-government organisations                     3

The top five presenting issues (by inquiry)[2] were:

Stability and security of placement              29

Safety                                                                21

Participation in decision making                   18

Contact with significant others                      15

Appropriate care                                               24

These are also the top five issues identified in the Guardian’s 2017-18 Annual Report and substantially the same as those reported in previous years.

The 33 children and young people who requested advocacy directly were in the following care arrangements:

Residential care                                             16

Adelaide Youth Training Centre                     5

Relative care                                                    4

Foster care                                                       2

Commercial (emergency) care                       2

Unknown                                                          4

 

[1] The Guardian is mandated by legislation to promote the interests of children and young people below the age of 18 years who are living in out-of-home care.  Another 17 inquiries were determined to be not within the Guardian’s mandate and those callers were assisted to make contact with a more appropriate organisation.

[2] Young people often present with multiple, interrelated issues.  Presenting issues are counted as primary and secondary and these are added to achieve the numbers reported.

New way to challenge DCP decisions starts this October

SACAT signpost

Children and young people in care will soon be able to seek an external review of decisions made by the Department for Child Protection (DCP) as to their placement, care, education and health.

On 22 October, the final sections of the Children and Young People (Safety) Act 2017 will come into operation.

This means the South Australian Civil and Administrative Tribunal (SACAT) will have the power to review certain decisions made by the DCP.

SACAT is designed to be an easy to access, low cost and user-friendly method of resolving civil claims or disputes and seeking review of government decisions.

Most decisions (those made under Chapter 7 of the Act and excluding decisions regarding contact arrangements) will be review-able.  We discuss appeals about contact decisions below.

A child or young person must first request that DCP review the decision, and if they are not happy with DCP’s review, they can then apply for an review of that decision at SACAT. This application must be made within 28 days of receiving DCP’s review.  SACAT may grant an extension if they are satisfied that special circumstances exist.

The legislation also provides that in these proceedings,

…a child or young person to whom the proceedings relate must be given a reasonable opportunity to personally present to the South Australian Civil and Administrative Tribunal their views related to their ongoing care and protection.

SACAT plans to be flexible in order to to support a young person’s participation and comfort.  This might include taking their views off-site or separately and preventing contact and cross-examination by other parties.

SACAT will also be able to obtain information from DCP.  This will include information such as the young person’s current situation, any history of abuse or trauma and the availability of an advocate for the young person.

In the end, the SACAT has the power to affirm the DCP’s decision, vary the decision, make its own decision or send the matter back to the DCP for reconsideration.

This is new territory for SACAT and DCP so there will be considerable work taking place to ensure that this process is as child-friendly as possible, and to ensure that the voice of the child or young person is at the centre of the decision-making.

How this will play out for children and young people in practice depends how we address these and other issues.

Delays in resolving issues. Under the arrangements as they seem today, it is possible that several months could elapse between an unsuitable decision being made by DCP and that decision being reversed by SACAT.  Three months is a long time in the reality of a child in care.  Unsuitable decisions on placement, education and health could cause irreversible damage and disruption to a young person during that time.

Who is to be the child’s advocate? The review process is complex so it is likely that few reviews will be mounted by a young person without the support of an adult advocate.  Who will this be? The young person’s DCP social worker may lack the knowledge to advocate (as we have seen in some NDIS matters) or the will to oppose the views of colleagues and superiors. A child’s social worker could face a conflict of interest.

Other adults closely involved in the matter may not be able to separate their own emotional and material interests from those of the young person.  Advocacy support may come from a body such as the Office of the Guardian or by the appointment of a duty solicitor to act for the young person.

What about Aboriginal children and families? How well will the process be able to manage the language, location and cultural barriers that might discourage Aboriginal children and their advocates seeking a review and being able to represent their position effectively if they do?

What is a review-able decision? What if a young person or their advocate believes a decision falls within scope, but the DCP doesn’t? There is some guidance.  Decisions made under Chapter 7 of the Act (excluding decisions regarding contact arrangements) will be review-able. Section 84 of the Act sets out review-able decisions relating to the placement, care, education, and health of children and young people in care but deciding what is review-able may not be simple in practice.

Additionally, can a refusal to review be itself reviewed? Would this be referred to the DCP complaints unit, by appeal to the Ombudsman or by some other mechanism still to be devised?

Disputes over contact arrangements

Legislation recently passed through Parliament  which means that, from 22 October, children and young people will be able to apply to the Contact Arrangements Review Panel which can affirm, change, or set aside contact decisions.   The child or young person will have 14 days after the DCP’s decision to apply for review although there is provision for ‘special circumstances’ to extend that time. Right now, it is unclear if a decision made by the Contact Arrangements Review Panel can be appealed or reviewed.

For more information, check out the Internal reviews page on the DCP website and the SACAT website.  SACAT have told us that they expect to be developing more materials explaining the review process in the next few month.

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.

Secure Therapeutic Care – Framing Principles

In October 2017, the Guardian provided advice to the Minister for Education and Child Development with reference to bills before State Parliament.  In it she discussed tensions between the child’s right to freedom and self-determination and the need to take appropriate steps to protect a child from danger and to aid their psychological recovery.

This advice is now available for download.

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.