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Sidoti, Chris --- "Noble Rhetoric or Concrete Action? Children, Legal Processes and Human Rights" [1998] ALRCRefJl 11; (1998) 72 Australian Law Reform Commission Reform Journal 48


Reform Issue 72 Autumn 1998

This article appeared on pages 48 – 51 of the original journal.

Noble rhetoric or concrete action? Children, legal processes and human rights

By Chris Sidoti*

The United Nations Convention on the Rights of the Child (CROC) was an important reference point for the examination of children in the legal process by the Human Rights and Equal Opportunity Commission and Australian Law Reform Commission.

Indeed, the terms of reference required the Commissions to “have regard to the Commonwealth’s special responsibilities for children arising under the Constitution and Australia’s human rights obligations, particularly under the Convention on the Rights of the Child”.

Many provisions in the convention relate directly to the legal processes affecting children. In ratifying the convention in December 1990, Australia accepted an obligation to apply its principles in all areas of law and policy affecting children. The Commissions’ report Seen and heard: priority for children in the legal process represents the most comprehensive examination of children and the legal system ever undertaken in Australia.

Evidence received by the inquiry illustrates the many ways in which legal processes for children fall short of the standards in the convention. These include a failure to adhere to some of the fundamental guiding principles in CROC, such as the requirement that the best interests of the child be a primary consideration in all decisions affecting children (Article three) and the prohibition on discrimination against children because of their race, sex or other status (Article two).

Certain groups of children, such as Indigenous children and children living in rural or remote areas, are seriously disadvantaged in the exercise of many of their rights under the convention. Another central theme of CROC is the importance of recognising the evolving maturity of children when determining the extent to which they should be able to exercise their rights (Article five). The inquiry found many institutions fail to accommodate children’s evolving maturity, responsibilities and abilities.

Some of the key problem areas in the legal processes for children, and ways in which the inquiry responded to them, can be examined by reference to particular articles in CROC.

Child abuse

Article 19 of the convention provides that the State shall protect the child from all forms of mistreatment by parents or others responsible for the care of the child and establish appropriate social programs for the prevention of abuse and the treatment of victims.

Consultations in the inquiry highlighted many ways in which the responses of government programs and legal processes fall markedly short of this goal. Many of the processes for dealing with allegations of child abuse are slow, depersonalising and often traumatic for children. Of particular concern are procedures where the child has to attend multiple stressful interviews.

Other concerns include:

• a lack of adequate training for police and others who work with abused children;

• lengthy delays in court proceedings, which leave children in potentially abusive situations or detained in care without a proper care decision having been made;

• aggressive and highly inappropriate cross-examination by lawyers, with magistrates often reluctant to intervene and stop such behaviour;

• victims of abuse giving evidence in the presence of and within close proximity to the alleged perpetrator;

• inadequate resourcing to ensure proper prevention, investigation and treatment services;

• inadequate staffing arrangements for case workers;

• communication breakdowns between different agencies involved in child abuse cases; and

• a lack of a national approach to child abuse.

Within the court system, the adversarial nature and the formality of procedures involving children as witnesses do not provide effective support. Inadequacies include facilities which do not provide privacy for the child, harassing or intimidating questioning, inappropriate, confusing and misleading language and grammar, and lack of support and preparation for the experience of giving evidence.

A number of recommendations are aimed at strengthening the State’s ability to protect children from mistreatment, including proposals to use multidisciplinary teams of interviewers to investigate abuse allegations and interview children, thus avoiding the trauma associated with repeat interviews.

Age appropriate literature should be provided to child witnesses to explain legal proceedings and the role of different people in the process. As well, child witnesses should have qualified support people to help them through the court process.

Guidelines should be developed to assist judges to prevent harassment of child witnesses, and to allow for the representation of children in all family law and care and protection proceedings, including requirements for appropriate participation by children.

The Commissions have recommended measures to enhance the role of Family Court counsellors; measures to encourage children to participate in primary dispute resolution processes such as counselling or mediation; and funding to ensure better resourcing for legal representation of children in all court proceedings.

Specialised training of judges, magistrates, legal representatives and other professionals working with children in the legal processes must also be improved.

Children in care

Article 20 of CROC requires the State to provide special protection for a child deprived of a family environment and to ensure that appropriate family care or institutional placement is available. Such placements are to be reviewed and evaluated on a regular basis.

Evidence about the ‘systems abuse’ of children involved in legal processes immediately calls into question Australia’s compliance with these articles of CROC. This includes evidence of the appalling state of care and protection systems which are supposed to look after children who have experienced abuse or neglect. Many children’s experiences of the care and protection system are almost as damaging as the primary abuse which led them into that system. Examples of child trauma associated with systems abuse include stresses due to delays in investigating or deciding placements for children, lack of information, inadequate or inaccessible services and lack of consistency or coordination of services.

The Commissions’ recommendations dealing with national standards for legislation and practice in care and protection systems have the potential to address many of these problems and encourage greater compliance with the abovementioned Articles.

Juvenile justice

Article 40 of the convention provides that a child in conflict with the law has the right to treatment which promotes the child’s sense of dignity and worth, takes the child’s age into account and aims at his or her reintegration into society. It provides for basic legal guarantees including assistance with his or her defence. It states that judicial proceedings and institutional placements shall be avoided wherever possible. Article 40 also emphasises rehabilitative rather than punitive measures as the most appropriate responses to juvenile offending.

Clearly at odds with article 40 is the disturbing trend in a number of States and Territories towards more punitive juvenile justice systems, a trend which was highlighted repeatedly during the inquiry. This is due in no small part to the enormous amount of misinformation and lack of understanding in the community about juvenile offending, which has encouraged inappropriate policy responses by State and Territory governments to the treatment of young offenders.

Of particular concern was the enactment of legislation in the Northern Territory and Western Australia providing for the mandatory detention of young people found guilty of certain offences. Inflexible sentencing laws which make no distinction between trivial and serious culpability clearly violate the principles in Article 40 regarding rehabilitation, avoidance (as far as possible) of institutional placement and treating children in a manner appropriate to their age and development.

The inquiry highlighted many other ways in which the juvenile justice system has disregarded the basic rights of young people as set out in CROC. Police harassment and brutality towards young people is commonplace in some areas. Legal advocacy for young people who come into conflict with the law is often inadequate. The language used by lawyers and magistrates in the court system is beyond the understanding of many young people (for Indigenous and other children for whom English is a second language, this problem is exacerbated by a lack of interpreter facilities). Some remand and detention facilities are totally inappropriate for young people, with many young people being held on remand in adult facilities.

There is also a massive over-representation of Indigenous children at all stages of the juvenile justice system, from arrest through to sentencing and detention.

Education

Australian children have a right to an education, under the terms of the UN convention, and further, have a right to be treated with dignity when disciplined at school (Article 28).

The inquiry revealed a lack of natural justice and procedural fairness in school exclusion processes to a degree that was inconsistent with Article 28. To encourage greater impartiality, transparency and accountability in reviews of exclusion decisions, the inquiry recommended that they be conducted by a panel of school and community representatives - at least one of whom is also from outside the particular school. It was also considered that students subject to exclusion should be entitled to an advocate during any interviews related to the disciplinary process and review proceedings.

The inquiry considered the practice of corporal punishment in schools is out of step with the requirement in the convention that school discipline be administered in a manner consistent with the child’s dignity. This view was supported by a large number of submissions to the inquiry. Accordingly, it was re-commended that corporal punishment be banned in all Australian schools, including independent schools.

Participation

Participation by children is an important theme in the UN Convention on the Rights of the Child (Article 12), which enshrines the child’s right to express his or her views and have those views taken into account. Articles 13 and 17 deal with freedom of expression and access to information respectively.

Lack of participation by children in legal processes was one of the strongest messages to emerge from the inquiry. There is a consistent failure by institutions in the legal process to consult with and listen to children in matters affecting them. Young people across Australia told the inquiry that their views were basically ignored by adult participants in the legal processes.

More work to be done

Many of the findings and recommendations of the inquiry into children and the legal process were reinforced in October 1997 in the concluding observations of the Committee on the Rights of the Child on Australia’s first report on CROC. The Committee expressed concern about lack of a comprehensive national policy on children and lack of national monitoring mechanisms; the particular disadvantage experienced by Indigenous and certain other groups of children in access to services; school disciplinary procedures and the juvenile justice issues mentioned above.

The Commissions’ inquiry confirmed that a great deal more work needs to be done before legal processes truly reflect the commitment Australia made when it ratified CROC in 1990. Implementation of the recommendations would be a major step forward in translating that commitment from noble rhetoric to concrete action to enhance the rights and well-being of all Australian children.

* Chris Sidoti is the Human Rights Commissioner.


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