Child Protection: Every Child’s Right

Megan Mitchell
National Children’s Commissioner

National Child Protection Week
Breakfast Launch
Tuesday 9 September
 

Introduction

Thank you, Charlie and Zac, and good morning everyone. I’m delighted to be here this morning to help launch National Child Protection Week and to present the NAPCAN Play Your Part Award. Can I start by acknowledging the traditional owners of the land on which we are meeting today, the Larrakia people, and pay my respects to elders past and present. Thanks to Darren Wilson for the welcome, and the story of your, and your peoples’, connection to the land. 

I would also like to thank Lesley Taylor, Manager of NAPCAN, for the invitation to speak today and to acknowledge fellow speakers including The Minister of Children and Families, John Elferink, CEO of the Department of Children and Families, Jodeen Carney, and Howard Bath, the Northern Tertiary Children’s Commissioner. Thanks also to the old and young people in the room, for getting up so early and to the create foundation.

National Child Protection Week

As has been highlighted, the message of this year’s Child Protection Week is “protecting children is everyone’s business”. The reality is that no statutory child protection system should or could intervene in the lives of the ever- increasing numbers of children and families being reported to them. So, in child protection week this is about getting the message out that all Australians need to play a role - as part of families, neighbourhoods and in our work - to ensure children's safety and well-being.

It is also important that all Australians understand that children have rights, as do adults, and that these rights must be upheld.  These rights are basic to us all - like being safe, having a family, understanding where we come from, having access to education and health care, to privacy, to play, and to be treated with respect. It also means recognising children as active members of communities with the right to have a say in decisions that affect their lives.

I believe that when we understand and enact children’s rights we create stronger and more inclusive communities.
Compared to many children in the world, Australia’s children are well placed to have equal life chances, and to fully enjoy their human rights. Australia is a relatively wealthy country, with universal systems of education, social security and health care, and access to legal protections.

Yet, sadly, too many children fall through the gaps in human rights protection. Vulnerable children in particular are much more likely to have their rights breached because they lack power and resources and sometimes visibility. These include Aboriginal and Torres Strait Islander children, children with disabilities, homeless children and young people, children in detention settings of all kinds, refugee and asylum seeking children and children from low socio-economic backgrounds and children from rural and remote areas.

While I believe we all want an Australia where every child has an equal chance at life, to have an opportunity to not just survive but to thrive, and to be free from violence, abuse and neglect, it is, perhaps, less understood or acknowledged that this is also the legal right of every Australian child. It is for this reason that I would like to talk a little today about topic of child protection in the context of the international human rights framework.

The Convention on the Rights of the Child

In my role as National Children’s Commissioner, the Convention on the Rights of the Child provides me with the framework and tools for realising the full spectrum of children’s economic, social, civil and political rights.  Promoting understanding and knowledge of the Convention and enlisting champions for children’s rights like you is a fundamental part of that role.

The Convention has four guiding principles:
• Non-discrimination (article 2);
• Best interests of the child (article 3);
• Right to life, survival and development (article 6); and
• Respect for the views of the child (article 12).

Apart from its ethical and moral force, the Convention is a legal document which sets out standards, and assigns responsibility for ensuring these standards are met. The Convention makes clear that children have the same human rights as adults, but that they also are entitled to special protection because of their unique vulnerabilities as children. When it came into effect in 1989, children were recognised as rights-bearers for the first time in the international human rights treaty system. (1)

Article 19 of the Convention

Article 19 of the Convention provides the Convention’s central and most comprehensive understanding of child protection.
This article states that ‘States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.’

Other Articles - CRC

Several other Articles of the Convention are also concerned with the issue of child protection, albeit more indirectly, and should be read and understood along with Article 19, in both their individual and collective meanings. (2)

Article 5 directs Governments to respect the rights and responsibilities of families to guide their children so that, as they grow up, they learn to use their rights properly.

Article 9 states that children should not be separated from their parents unless it is for their own good.

Article 18 says that both parents share responsibility for bringing up their children and should always consider what is best for each child. Governments should help parents by providing services to support them, especially if both parents work.

Article 27 asserts that children have the right to a standard of living that is good enough to meet their physical and mental needs, and that the government should help families who cannot afford to provide this.

Article 34 asserts the need for Governments to protect children from sexual abuse.

And Article 39 states that children who have been neglected or abused should receive special help to restore their self-respect.

In signing on to the Convention on the Rights of the Child  24 years ago, Australia promised to protect and promote the rights of children as outlined in the Convention, and is obligated to realise those rights. In theory this should involve putting children’s rights into practice, policy and legislation. However, in the Australian context it is fair to say that apart from some specific state child protection frameworks and programs, and minor references in federal laws, limited progress has been made on this score.

Signing up to the Convention also involves recognising children as active members of families, communities and societies with their own concerns, interests and points of view. Again Australia’s efforts to genuinely engage children in decisions that affect them are spasmodic, and generally reliant on the good will of particular committed individuals and organisations.

Listening to children: The Big Banter 

We need to find better ways to listen to children and young people – to safeguard them, to empower them, and to make better decisions as adults. Last year I travelled around the country, as part of a project called the Big Banter, and had hundreds of discussions with children and young people.They consistently told me that two of the most important things to them were to be with family and to be safe. They were also particularly concerned about the level of violence, aggression and bullying in their communities. Despite this generalized fear, they are innately fair, care about other children, want to be treated with respect and have a say. 

Here are just a few examples of responses I received from children and young people, when asked what would make life better for children in Australia:

People who you trust make you safe;

There was a peace code so that everyone speaks kindly and is a peace maker;

Everyone should be treated equally;

There should be a limit of two alcoholic drinks per person per day, if you choose to drink alcohol at all;

There should be no violence, bullying and everyone should feel safe;

To be comfortable in your own home;

To live in a safe world and environment; and

To have a good future.

For nobody to get hurt and for children to feel safe all the time

We all felt safe in a house with a mum and dad

All children should have some love from their mum and family

Parents to put their children first in front of drugs or alcohol

They also recommended rainbows, rivers of chocolate, gooey caramel, pizza, personal robot butlers, rockets as the main mode of transport and lots of bouncing castles and super slides. Personally the combination has me feeling quite ill.

Australian Child Protection Statistics

There is a lot of great work being undertaken to protect children around Australia and this week, in child protection week, we have a chance to acknowledge that excellent work. However, there are still many issues of concern. The escalating numbers of children washing around the care and protection system is a case in point. The Australian Institute of Health and Welfare’s 2012-2013 report on Child Protection in Australia  found that:

• The number of children in care is now well over 40,000. This is not a sustainable paradigm, cost effective or smart.
• 30% of these are Aboriginal and Torres Strait Islander children
• The number of children who were the subject of substantiations of child abuse and neglect increased by 29% since the 2010-2011 report.
• Most children (42%) who were the subjects of substantiations were from the areas of lowest socioeconomic status.
• Aboriginal and Torres Strait Islander children continue to be over-represented, and were almost 8 times as likely to be the subject of substantiated child abuse and neglect as non-Indigenous children. (3)

Recurrent expenditure on child protection and out-of-home care services in 2012-13 was estimated to be around $3.2 billion. Surely these resources would be better directed at preventing abuse and neglecting and helping families to be great carers for their kids.

Concluding Observations of the UN Committee on the Rights of the Child

This issue, among others, was highlighted in the Concluding Observations of the UN Committee on the Rights of the Child, when it reported on Australia’s progress in implementing the Convention on the Rights of the Child in 2012.

The UN Committee said that while Australia has made some progress, there are still many children who fall through the gaps. The Committee pointed to areas where we can do much better to protect the rights of all children, especially those most at risk, and expressed its concern regarding, amongst other factors:

• the “high levels of violence against women and children prevailing in the country”;
• the “serious and widespread discrimination faced by Aboriginal and Torres Strait Islander children, including in terms of provision of and accessibility to basic services and significant overrepresentation in the criminal justice system and in out-of-home care”;
• the lack of “regular and systematic evaluations of the existing measures addressing violence against children in the school, the Internet and other contexts”;
• inadequate programs for the “reintegration of child victims of domestic violence…”;
• “inadequate understanding and application of the principle of the best interests of the child in asylum-seeking, refugee and/or immigration detention situations”; and
• “the significant increase, of approximately 51 per cent between 2005 and 2010, in the number of children placed in out-of-home care and the absence of national data documenting the criteria and decision leading to the placement of a child in care.”

In addition to being deeply concerned about particular groups of vulnerable children in Australia, the Committee also pointed to the lack of overarching legislative and policy measures to specifically address implementation of the Convention. That is, Australia has no comprehensive plan or strategy for realising the Convention as a whole, and lacked a coordinated or child-specific approach to data, budget and activities.

Lack of Knowledge and Understanding of Violence Against Children

So it remains the case that a clear, evidence-based approach to realising children’s rights and to keeping children safe is lacking in the Australian context, while the high prevalence of violence against and exposure of children to violence is a matter of increasing urgency.  We know for example that 23% of children have been exposed to domestic violence, and for Aboriginal children that rises to 42%. (4)

And this lack of knowledge, data and understanding of violence against children, continues to make targeting the root causes of violence and abuse against children problematic.

To allow us to effectively monitor and report on violence and abuse, and making good on our promises, improvements must be made to existing child maltreatment data, (5) like consistent definitions and collections across the country, like child abuse prevalence data rather than simply administrative data, like data on why children are removed and put into care, and standardised data, covering all forms and combinations of violence against children. (6)

Using the Convention as a Framework for Planning and Measuring Child Wellbeing

While the UN Committee’s Concluding Observations are concerning, there are also a number of positives we can hold on to. For one, the UN human rights treaty system gives us a strong framework for monitoring the promises we have made to children through the Convention – a comprehensive framework for planning and measuring child wellbeing now and into the future. I like to think of the Convention as the blueprint for action on all of the areas of child well-being which we should guarantee to each child in Australia.

The recommendations of treaty bodies such as the UN Committee on the Rights of the Child have a persuasive force because they are based on internationally agreed standards of treatment. We should constantly remind the government that they have obligations to children, and use the Convention and the Committee’s recommendations to leverage for child-centred approaches to resourcing, legislation and policy priorities. And as the non-government sector is increasingly called on to expand its child protection role, it is ideally placed to advocate for the kind of changes that would strengthen Australia’s accountability systems for upholding children rights. I invite all of you in this room to join with me in advocating for the collection and analysis of data that would allow us to monitor our progress in honouring our commitments to children against the domains of the Child Rights Convention.

The Convention as a Tool for Empowerment

We should also never underestimate the empowering nature of the Convention and Concluding Observations in enabling children and their advocates, including parents and carers, to argue for improvements in individual, and in all children’s, lives.
I have seen first-hand the impact knowledge of their rights has on vulnerable children. It is wonderful to see how this news helps to make children feel safe and valued. It is like a suit of armour they can put on to make them feel safe and strong. This is not about growing precocious children, but growing capable, free, responsible and informed children.
For this to happen more widely, we need to work better at making the Convention and its principles more accessible to children and young people, as well as adults, by, for example, developing and using materials which are child-friendly translations of the Convention.

Earlier this year I launched a child-friendly version of my 2013 Children’s Rights Report to Parliament, which is available online and in hard-copy. This is a short, and hopefully easy-to-read, version of my Report for children and young people, and I have distributed this directly to children and young people, as well as to teachers and children’s advocates.
The Commission has also recently partnered with UNICEF and Plan International Australia, to develop a child-friendly version of the 2012 Concluding Observations of the UN Committee on the Rights of the Child.

Optional Protocols

There are also other international tools we can use to advance children’s rights. International Conventions and Treaties frequently have optional protocols attached to them that advance human rights further than the source treaty. I would like to briefly discuss two of these, which Australia has not yet ratified, but which will, I believe, significantly empower and afford greater protections for vulnerable children.

The first is a Communications Procedure to allow children to submit complaints, appeals and petitions to the Committee on the Rights of the Child about violations of children’s rights. Children from countries that ratify the Protocol can use the treaty to seek justice if the national legal system has not been able to provide a remedy for the violation. Adults already have this right, children do not.

The Committee is able to hear complaints from children, groups of children or their representatives against any State that has ratified the Protocol. The Committee is also able to launch investigations into grave or systematic violations of children’s rights and States are able to bring complaints against each other, if they accepted this procedure. Australia has not signed up to or ratified this Protocol, but to do so would show great leadership in our region, and put pressure on the states and territories to ensure that they not only have grievance mechanisms in place for children but they are also accessible and known to children.

The second is the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) which was adopted by the UN General Assembly in 2002 and came into force in 2006. The OPCAT establishes a system of visits to all places where persons are deprived of their liberty by independent international and national monitoring bodies. While Australia has signed up to this protocol, it is yet to ratify it. The basic premise is that the more open and transparent places of detention are, the lesser the risk for abuse. This includes places where children are held and where they are particularly vulnerable such as juvenile justice centres, immigration detention places, secure residential and respite care units, and psychiatric facilities.

I will continue to advocate strongly for the Australian Government to get behind these protocols, and any additional advocacy you could lend when you are in communication with decision makers, both state and federal, would be much appreciated.
Another reason that I am here in the Northern Territory this week is to undertake roundtables in Darwin and Alice Springs as part of the Australian Human Rights Commission's investigation into intentional self-harm and suicide among children and young people.

In part this work arose from my conversations with children and adults during the banter, but also because of the alarming emerging trends for children and young people.

Intentional self-harm and suicidal behaviour in children and young people is a serious issue in Australia today. The latest available data from 2012 shows that intentional self-harm was the leading cause of death among Australian children and young people aged 15 to 24.  And alarmingly, for that same year and cohort, there were over 10,000 hospitalisations due to self-harming behaviour. And this is just the tip of the iceberg.

Article 19 of the Convention not only cover a child’s right to be protected from violence perpetrated by others, but also from self-inflicted violence. The aim of my work is to gain a much better understanding about what is happening for young people, and what can be done to improve supportive interventions and increase help seeking behaviour.

We have had a very positive response to this investigation so far, and have received 140 submissions, conducted 12 expert roundtables across the country, plus numerous other consultations. Through partnering with organisations who work directly with children and young people who are engaging in intentional self-harm and suicidal behaviours, I have also heard directly from children and their families. This will form the substantive content of my 2014 report to Parliament.

Conclusion

The changes needed to keep children safe and allowing them to thrive is not just about making sure they hear from us and shining a light on their lives, it is changing the way we think and do things. And it is only by putting children at the centre of our thought and practice, and by genuinely and authentically engaging with and listening to children that this will occur. I do not believe that if this had been the case in institutions which had the care of children but where abuse of children flourished, we would need to be having a national royal commission about sexual abuse against children in institutions, today.

I’d like to end my presentation today with a quote from the Joint Secretary of the Ministry for Women and Child Development in India, which I believe really encapsulates the power of using a rights-based framework when speaking about child protection, she said: “I really believe there is nothing more important than child protection because it is linked with every other child right, be it development, survival or participation. For all countries the recognition of this right as paramount and the decision to set up both programmes and institutions to ensure child protection is a giant step in the right direction.”

National Play Your Part Award

On that note, I would now like to announce the recipient of the National Play Your Part Award. This award aims to highlight inspiring prevention initiatives that help to create safer communities for children and young people.

I am very pleased to announce that the recipient of the award is The Families and Schools Together NT also known as the FAST program. This was also announced by the Governor-General at Admiralty House last Friday.

The FAST program has been engaging and supporting families since 2003, and is active in over 18 locations across the Northern Territory in both urban and remote communities.In the past 12 months FAST has trained approximately 145 team members in Baby, Kids and Youth FAST teams. These teams have delivered FAST activities to around 200 families. FAST is collaborative in design bringing together agencies, school staff and community members to work together to support families in their own community. I’d now like to welcome Mal Galbraith, Manager of NT FAST and Phillip Dhamarrandji from Milingimbi, who has been with FAST for three years, to accept the National Play Your Part Award. Congratulations on this fantastic achievement!

(1) Stuart Hart, Yanghee Lee and Marie Wernham, ‘A New Age for Child Protection – General Comment 13: Why it is Important, How it was Constructed, and What it Intends?’ Child Abuse & Neglect, Volume 36, Issue 3, March 2012, p973
(2) See Note 1, p974
(3) Australian Child Protection in Australia 2013, Child protection Australia: 2012-13, Child Welfare series no. 58. Cat. no. CWS 49. Canberra
(4) Kimberly Svevo-Cianci et al, ‘The New UN CRC General Comment 13: The Right of the Child to Freedom from All Forms of Violence – Changing How the World Conceptualises Child Protection’ (2011) 35 Child Abuse and Neglect p. 979.
(5) Note 4 p. 980
(6) Note 4 p. 981