Children and young people as complainants

Children and young people as complainants

Complaint Handlers’ Information Sharing and Liasion (CHISaL) Seminar
 

Introduction

Good afternoon everyone and thank you Sandra for the introduction.

I would like to acknowledge the traditional owners of the land on which we meet and I pay my respects to their elders both past and present.

It is a pleasure to be here to discuss the topic of children and young people as complainants.

In my role as the National Children’s Commissioner, I am a strong advocate of developing accessible and child friendly complaint mechanisms and building the capacity of complaint handlers to work with children. It is also important that we build the capacity of children to be heard and to make complaints where appropriate.

As you are probably aware, the Australian Human Rights Commission has functions to resolve discrimination and human rights complaints through conciliation. Broadly speaking, the Commission’s approach to complaints involving children is one of maximum appropriate involvement. This is assessed on a case-by-case basis.

In the 2014 calendar year the Investigation and Conciliation Service at the Commission received 314 complaints involving children. That is complaints by or on behalf of a child or raised an issue concerning a child. This represents around 13% of complaints received during this period. Given that children and young people (under 18) represent around 24% of the total population and that they are highly vulnerable to exploitation and abuses of their rights, this represents a low number.

Some examples of the types of complaints involving children that we receive focus on disability, race and age discrimination, and immigration detention.

The Commission is continually seeking to refine its complaints and information services to ensure that they are accessible and appropriate to different communities and stakeholders, including children. So it is very valuable to be part of this network and have the opportunity to exchange information on good practice and to improve the quality of our services to children. 

Today, I would like to focus on the right of children be heard, the barriers children face in making complaints, and how we might improve policies and practices.

My colleague, Jodie Ball, Deputy Director of Investigation and Conciliation, is also available to answer any specific questions about the steps we have undertaken in the Human Rights Commission to make our complaints processes more child-friendly and how we work with children who are complainants.

The child’s right to be heard - article 12

To begin, I would like to draw you attention to article 12 of the UN Convention on the Rights of the Child, which recognises that children have the right to be heard in all matters affecting them. 

The right of all children to be heard and taken seriously is one of the fundamental guiding principles of the Convention and seen by many as the gateway to all other rights. The UN Committee on the Rights of the Child has stated that “article 12 is connected to all other articles of the Convention, which cannot be fully implemented if the child is not respected as a subject with her or his own views.”(1) 

Article 12 specifically states that: 

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

According to the UN Committee the right to be heard applies to “proceedings which are initiated by the child, such as complaints against ill-treatment….as well as those initiated by others which affect the child.”(2)

In General Comment 12, the guiding document on the implementation of article12, the UN Committee notes that the capacity of children to form their views should be assessed on a case-by-case basis and start with the presumption that they do have capacity. Basically, it is not up to the child to first prove his or her capacity.(3)

The best interests of the child, as stated in article 3 of the Convention, should always be a primary consideration. This is especially important in instances where a child has been a victim of a criminal offence, sexual abuse or violence.(4)  However, they still retain the right to be heard and their capacity must still be assessed.  The right to be heard and the best interests of the child are not in conflict; they are interdependent of each other.

Of course, children, like adults, also have the right not to exercise their right to heard. Expressing views is a choice for children, not an obligation.(5)

As stated in article 12, a child can be heard “either directly, or through a representative body.” The UN committee recommends that, “wherever possible, the child must be given the opportunity to be directly heard in any proceedings.”(6)

To enable children to be heard, article 12 obliges Australia to implement complaint mechanisms that provide children with:

• access to appropriate information;
• adequate support from a representative or advocate, if necessary;
• feedback on how their views were considered and the weight given to their views; and    
• procedures for remedies or redress.(7)

Trends in child participation across different sectors

Over the past decade or so there have been some positive developments in relation to hearing the views of children in a variety of contexts. However, I would like to see the right to be heard have a much wider application across jurisdictions and institutions.

When I travelled across Australia for a listening tour at the start of my term, children and their advocates noted that, in the main, feedback, complaints and dispute resolution systems did not adequately facilitate the participation of children:

• The Family Court and child protection systems in particular were seen as needing to be more child-friendly, with many pointing to the lack of child voice in the court and mediation processes.
• Several comments were made about the need for greater education and guidance for adult decision makers on how to listen and engage children, especially in relation to decisions that impact on them.
• Advocates in a number of forums raised the need to develop a central hub of children’s participation resources and best practice examples.

Overwhelmingly, children said that they wanted to have a greater voice, to be listened to and their views respected, in just about every aspect of their lives, and that when they didn’t get a say it was disempowering and diminishing for them.

Barriers to children making complaints 

Feedback and complaints systems are a fundamental part of organisational infrastructure to ensure that services and goods are meeting the needs of clients and customers. They also serve as mechanisms to fix mistakes and protect people from abuse and mistreatment.

Government and non-government institutions play a significant role in the lives of children. Children are the primary consumers of education services, they access health services from the time they are born, they use public and private transport, they join sporting and recreation clubs, they purchase a range of retail goods and services, they occupy public spaces, and sometimes they get in trouble with the law.

Children, like adults, have had experiences where they may want to question or complain about a product or service. But as we know, children do not often make complaints - most likely because they don’t know that they can, they don’t think anyone will take them seriously, it all seems too hard, there isn’t any help to do so, or they are told not to ‘complain’. In this latter context in particular perhaps we need to be rethinking the term ‘complain’ if we are to encourage more children to raise issues of unfair treatment and to facilitate the solving of problems children experience.

A child safe child and friendly organisation is one that has, among other things, effective and sensitive feedback and complaints processes in place that are known and accessible to children. I make the point that, if all those years ago schools, churches and the like had been genuinely child-centred and encouraged the children in their charge to voice their concerns, the legacy of abuse that the Royal Commission is currently uncovering,  would not, I believe, be of the magnitude it is turning out to be. 

Consultations with children and young people have shown that even today they are very concerned about not being taken seriously by adults when they lodge a complaint, that they will not be respected in the process or that lodging a complaint will make the problem worse. They also express concern about not understanding the boundaries of consent and confidentiality.

Despite these barriers, some children or their representatives do make complaints and it is through these experiences that we can add to the body of knowledge about how best to engage and provide redress for children.
The following are three examples of recent conciliation processes within the Commission for children in the area of sexual harassment, the provision of services and discrimination in education.

1. Complaint of sexual harassment in the provision of goods and services

The complainant trained in martial arts at the respondent sporting club during her teenage years. She alleged that her former coach, the club’s owner, sexually harassed her including by looking at her breasts, asking about her personal and sex life, leaving sexually explicit material around the club, propositioning her for sex and talking about sex. The coach and the club denied the allegations but indicated a willingness to try to resolve the matter by conciliation. The complaint was resolved with an agreement that the coach would undertake training on discrimination and harassment and the club would develop and implement a discrimination and sexual harassment policy. The club also agreed to provide the complainant with a written reference. The parties agreed not to discredit or criticise each other in relation to future dealings or in the sporting community. 

2. Complaint of disability discrimination in education

The complainant’s grandson is seven years of age and has Asperger’s syndrome, anxiety disorder and associated behavioural issues. The complainant claimed that the respondent private primary school did not provide her grandson with reasonable adjustments to accommodate the effects of his disability such as implementing appropriate strategies to manage his behaviour. The complainant also claimed that the school suspended her grandson and did not allow him to attend a school camp because of behaviour associated with his disability. On being advised of the complaint the school indicated a willingness to try to resolve the matter by conciliation. The complaint was resolved with an agreement that the complainant's grandson return to school subject to a support plan. The parties agreed the support plan would be developed in accordance with specialist information on how to best accommodate the child's disability.

3. Complaint of age discrimination in access to premises and the provision of goods, services and facilities

The complainant is 14 years of age and claimed that a staff member of her local supermarket told her schoolchildren were not permitted to enter the store with their schoolbags. On being advised of the complaint the supermarket indicated a willingness to try to resolve the matter by conciliation. The supermarket expressed its regret for the alleged comment and emphasised that it was not consistent with its policy. It also undertook that the manager of the complainant's local store would remind staff not to ask shoppers to leave their bags outside the store.

Developing accessible and child-friendly complaint systems

Based on consultations undertaken in 2009, the Western Australian Commissioner for Children and Young People developed a valuable resource for complaint bodies called, Are you listening: Guidelines for making complaint systems accessible and responsive to children and young people.(8)

These guidelines recommend six key elements of a child friendly complaint system. In summary, they are:

1. Focus on children and young people

• Ensure  children and young people are acknowledged as service users in agency policy and procedures

2. Visibility

• Publicise through a range of communication methods suitable for children and young people, for example SMS, online, by email, postcards, apps.

3. Accessibility

• Ensure that children know who to make a complaint to and how, and that a variety of methods exist to make complaints including the opportunity talk to someone face-to-face (and to use an advocate).
• Make a set of child-friendly complaints publications that clearly explain the process in ‘plain English’. These materials should also be made available for children from culturally and linguistically diverse backgrounds.

4. Responsiveness

• Respond as soon as possible, even just to acknowledge receipt of the complaint. It is a big thing for a child to make the effort to lodge a complaint, so it is really important to validate this action
• Ensure policies are in place to make sure that any concerns about safety are dealt with as a matter of urgency.
• Make sure that the person dealing with the complaint has experience in working with children and young people, as far as possible understands child development, and is helpful, understanding and responsive.
• Check with the child or young person that they understand the information provided and invite them to ask questions.
• Give children the option to choose how they will be kept informed about the investigation.

5. Confidentiality and consent

• Ensure that suitable policies and procedures are in place for dealing with confidentiality and consent issues
• Ensure that the boundaries of confidentiality are clearly explained to children and young people regularly and at appropriate times through the process

6. Accountability and continuous improvement

• Ensure the child is understands the outcome of the process and how their perspectives have informed the outcome
• Keep appropriate data to enable reporting and monitoring of complaints involving children (for accountable and to enable further improvement). This might include conducting exit interviews on the child’s experience of the process.

This list is not exhaustive, however, it does provide a starting framework through which to assess how child friendly a complaints system might be and what kind of adjustments and adaptations could be made.(9)

Achieving systemic change - ratification of the Third Optional Protocol

Finally, I want end on a point of advocacy to enhance the capacity to enable children to have their voices heard.

One of the main recommendations in my 2013 Child Rights Report to parliament was for the Australian Government to ratify the Optional Protocol to the Convention on the Rights of the Child to a Communications Procedure.

This mechanism would allow for children and their representatives to bring serious breaches of their rights to the attention of the UN Committee on the Rights of the Child. Importantly, complaints can only be considered if all domestic channels have been exhausted. In my view this is the main value of Australia’s ratification of this Protocol, as it would necessarily prompt improvements in domestic feedback and complaints systems across the whole gamut of children’s experiences. In this way, domestic pressure would be built so that complaints systems both exist and are accessible, known to and used by children and young people in areas that are important to them. I urge you all to join with me in as I continue to advocate for Australia’s support for this additional avenue for children’s voice.

Thank you.

References

1. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, p15. At  http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11 (Viewed 18 February 2015)
2. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, p9. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11 (Viewed 18 February 2015)
3. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, p9. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11 (Viewed 18 February 2015)
4. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, p7. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11  (Viewed 18 February 2015)
5. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, p6. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11  (Viewed 18 February 2015)
6. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, p9. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11  (Viewed 18 February 2015)
7. UN Committee on the Rights of the Child (CRC), General Comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11  (Viewed 18 February 2015)
8. Western Australian Commissioner for Children and Young People, Are you listening?: Guidelines for making complaint systems accessible and responsive to children and young people, June 2013.
9Western Australian Commissioner for Children and Young People, Are you listening?: Guidelines for making complaint systems accessible and responsive to children and young people, June 2013.