Protected and safe: a child’s right, our responsibility

Megan Mitchell
National Children’s Commissioner

National Child Protection Week
Gala Dinner – Alice Springs
Thursday 11 September
 

Introduction

Thank you, Jade and Jacob and good evening everyone. I’m delighted to be here tonight as part of National Child Protection Week. Can I start by acknowledging the traditional owners of the land on which we are meeting today, the Arrentre – Arrunda - people, and pay my respects to the elders past and present as well as other Aboriginal people present . Thanks you Carol Turner for that moving welcome to country

I would also like to thank Nina Levin, Initiatives Manager at Communities for Children Anglicare Northern Territory and David Pugh CE Anglicare NT for the invitation to speak tonight. Thanks also to Trista Cocker and others involved in organising this event. A special acknowledgement to my colleague Howard Bath, nt children’s commissioner who commented to me on the butchers paper on the wall that this must have been the work of social workers.  Bess Price NT Minister for community services, who I was fortunate to meet last week at the launch of Our Watch, as part of the national strategy for reducing violence against women and children.

I must apologise in advance to the young people joining us tonight. I was lucky enough to meet with a bunch of young people supported by the CREATE foundation in Darwin after I spoke at the NAPCAN breakfast event earlier this week. I received some pretty direct feedback from one young person that well frankly my speech was a bit boring. Im afraid I don’t think Ive corrected for that between then and now. So, sorry in advance.

Climbing the mountain

I would like to begin tonight by sharing a little story about my recent experience climbing the Inca trail. These pictures were taken on the fourth day on the trail, at an amazing campsite called Phuyupatamarca which translates literally as ‘above the clouds’.  This is the day before we trekked the last bit of the trail up to and down into Machu Picchu, taken after a rousing chorus of on top of the world.

Over the five days of trekking, it was pretty hard going at times, in patches you had to stop every ten paces of so to get your breath at altitude, and when I started I didn’t know if I had the stamina to do it. I certainly don’t have age on my side – what was I thinking I asked my self, who thought this would be a good idea. But we stuck at it, and we all made it – youngest 50 and oldest 70. And it was a very emotional, spiritual and rewarding experience.

I am relating this to you because I know that many of you, for many years - have done the hard yards for the benefit of children. You have faced many hurdles in this, constantly being asked to muster just a little more energy for the cause. And time and time again you have come up against all too familiar barriers, like program reviews and contractual changes, defunding and refunding, things that you might have thought you had already overcome. But you keep going, because you have a driving passion to make things better for kids. You see a way to get there and you will not be deterred from keeping on down that path - because you believe you will individually and collectively make positive change in the lives of vulnerable children.

National Child Protection Week poster

We all know that the message of this year’s National Child Protection Week, is that “protecting children is everyone’s business”. The confronting reality is that no statutory child protection system could or should intervene in the lives of the ever- increasing numbers of children and families being reported to them. In fact, the best thing we can do for many families and children is keep statutory child protection out of their lives, because once you’re in the system it’s very difficult to normalise your lives again, and tends to replicate negative patterns throughout the generations.

So, in child protection week the message is that all Australians have a role to play - as part of families, neighbourhoods and in our work places - 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 we have a duty to uphold these rights.  These rights are basic to us all - like being safe, having a family, to culture and understanding where we come from, having access to education and health care, to privacy, to play and recreation, 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.

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 near universal systems of social security and health care and education, as well as enjoying a range of legal protections. Yet, sadly, as we all know there are many children whose wellbeing is threatened in fundamental ways and whose rights are not being upheld. Think of the circumstances of many Aboriginal and Torres Strait Islander children, children with disabilities, children who are homeless, suspended or excluded children, children in youth justice detention, children in immigration detention.
While I believe we all want an Australia where every child has an equal chance at life, 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 opportunity is also the legal right of every Australian child. 

The Convention on the Rights of the Child

For those who don’t know I’d like to tell you a little bit about my role as National Children’s Commissioner, which are set out in the Australian Human Rights Cmmission Act: I was appointed about 18 months and several prime minsters ago as Australia’s first national children’s commissioner, 23 years after Australia ratified the Convention on the Rights of the Child.

As you all may know I commenced my appointment as the first National Children’s Commissioner, over one year ago, on the 25th of March 2013. The role, set out in the Human Rights Act, includes:
• being a national advocate for the rights and interests of children.
• embedding mechanisms that focus on children’s interests and enable their participation.
• providing national leadership and coordination on child rights issues.
• Promoting awareness of the rights of children in Australia
• Undertaking research and educational programs to promote respect for and the enjoyment of children’s rights
• Examining laws, policies and programs to determine whether they protect the rights of children.

A key part of the role involves submitting a yearly report to Parliament through the Attorney General Minister.

In doing this I work alongside other commissioners such as Social Justice Commissioner Mick Gooda who I am here in Alice with this week too to conduct an expert roundtable on intentional self harm.

In my role the Convention on the Rights of the Child provides me with a vision and direction, as well as tools, for realising the full spectrum of children’s economic, social, civil and political rights.  And promoting understanding and knowledge of the Convention and enlisting champions for children’s rights like all of you is a fundamental to the role.

As you may know, the Convention has four guiding principles which apply throughout:
• 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, 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.’

Article 19 goes on to stipulate that this right to be free from violence includes self inflicted harm. As I mentioned Mick Gooda has joined me here in the Northern Territory to advance my investigation on intentional self-harm and suicide among children and young people. This work arose in part from what young people and their advocates are telling me about what is happening, but also in response to some alarming recent statistics about intentional self harm that indicate this is a stubborn and serious issue for our young people which we are struggling to effectively respond to.

In short, latest available data from 2012 shows that intentional self-harm is now 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. The aim of my work in this area 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 13 expert roundtables across the country, the last of which took place in Alice this morning. 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. The result of this work will form the substantive content of my 2014 report to Parliament.

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. It is important to highlight this article, as the Convention is just as much about empowering families as it is for children. It sees children as part of a family and community context, and acknowledges the role of families in providing structure, guidance and discipline for their kids. What it does do however, is set out that disciplinary measures should respect the dignity of the child. Kids I have spoken to also get and appreciate that parents have this role. I recall talking to a 12 year old boy in a juvenile facility who parents had vacated the scene in NSW late last year, who said to me and I quote. “I’m out of control, I need discipline and adults to guide me”. I hope he got that guidance and support.

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

Last year I travelled around the country, as part of a project called the Big Banter, spoke to over a thousand children face to face in all kids of settings and from all kinds of backgrounds and had hundreds of discussions with child advocates and service providers. I also heard from another 1300 or so children through. the post and on line . The aim of the banter was to keep faith with article 12 of the Convention that seeks to respect the views of the child and give them a voice appropriate to their age and maturity.

They consistently told me that two of the most important things to them were to be with family, friends and to be safe. They were particularly concerned about the level of violence and bullying in their communities, and wanted to live in world without drugs, alcohol and smoking. They love to play and have fun, they worry about children who can not afford to do or have things and want more stuff to be available for free. They appreciate fair rules and discipline but have mixed views on homework and school uniforms. Good teachers are ones that don’t yell, listen to them and act on what they say they are going to do. They want to be respected and they want adults to show respect for one another and they definitely want to have a say. They are worried about what they see on line and on tv, and generally feel let down by Miley Cyrus.

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

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 there children first in front of drugs or alcohol

Other recommendations were rainbows, pizza, rivers of gooey caramel, rockets and slides for transport, adventure parks, flying foxes, eco friendly energy generators, and things that children can bounce on. Personal Robot butlers were are great suggestion as was wearing pyjamas to school, and a recent addition, a vending machine that gave you free fresh fruit if you hugged it.

Acknowledging the good work being done

There’s a lot of very valuable work being undertaken to protect children around Australia and make there lives better in the way children outlined. and this week we have a chance to acknowledge some of that work.

In fact, on Tuesday in Darwin, I had the honour of announcing one of the winners of the National Play Your Part Award for inspiring prevention initiatives.  The recipient of that award was a Northern Territory program called the Families and Schools Together Program, also known as the FAST Program, which is focused on strengthening the relationships between schools and daily family life in order to ensure better outcomes for children. I understand that this is a highly collaborative program that brings together agencies, school staff, and community members to work together to support families in their own communities – and that the program is active in over 18 locations across the NT in both urban and remote communities.

This is a great example of a multidisciplinary approach. I know that many of you here tonight are very interested in further collaboration across the sector and I look forward to hearing more about the work that you are all doing. 

While it is important that we recognise the good work being done, we also need to be aware of the challenges that lie ahead. The Australian Institute of Health and Welfare’s 2012-2013 report on Child Protection in Australia  found that:

• There are now well over 40,000 children in care, and 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, now at around 39,000 per year
• 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)

At the same time national recurrent expenditure on child protection and out-of-home care services is at record level in 2013 @ $ 3.2 billion. I would love to see a large chunk of that investment redirected from the costly and largely ineffective tertiary end into early intervention and prevention.

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

All these issues, and more, were 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 many 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 monitoring their wellbeing is lacking in the Australian context. 

The high prevalence of violence against and exposure of children to violence is a matter of increasing and particular urgency.(4) Latest available but now quite old research shows that 23% of children have witnessed domestic violence against their mother, and for Aboriginal children this is more like 42%. In 2011, 39% of hospitalised cases for assault against children aged 0 – 14 years involved a parent, carer or other family member.

But a lack of deeper knowledge, data and understanding of violence against children continues to make targeting the root causes of violence and abuse against children problematic. To assist in the effective monitoring and reporting on violence, and making good on our promises, improvements must be made to existing child maltreatment data.(5)  Quality, nationally consistent, systematic and standardised data, covering all forms and combinations of violence against children, is also urgently needed.(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 that we can take out of this. 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. A major focus of my continuing work over the five years of my term will be to work with government and others to build data sets that covers all the key domains of the 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.

For this, 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, easy-to-read version of my Report for children and young people, and I am distributing 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. This is due to be launched later this year.
  
I am also currently developing a Statement of Intent on Children’s Rights in Early Childhood Education and Care in collaboration with Early Childhood Australia to support children’s rights in early childhood education and care. The Statement will outline concrete steps which early childhood educators can take to reinforce children’s rights in their daily practice. The final Statement will also be released in late 2014

Being able to be heard, raise concerns, and be taken seriously also acts as a strong safeguarding measure for children. I do not believe we would be having a Royal Commission into institutional responses to sexual abuse against children in institutions today, if those institutions had had the best interests of children at heart, including ways to hear from and respect the views of children way back in the day.

And people in very high places are starting to get this. In fact Justice McClelland, chair of the Royal Commission said in a recent speech, “it is only very infrequently that children have the opportunity to provide input into the systems and means for their protection” and added that “the views of children about what makes them feel both safe and unsafe in institutions may prove to be one of the most important pieces of research undertaken by the Commission”.

But hearing from children is not only empowering and safeguarding for them, it helps adults to get things right. Every day, policies, programs and laws are being designed and delivered that impact directly or indirectly on children. As the experts in their own lives, ignoring their experiences and perspectives will invariably lead to interventions that just don’t work for them. On the Banter I was constantly blown away about the wisdom and knowledge that children hold. Children are a rich resource who we need to harness to its fullest.

Privileging the voice of children, really listening to what they have to say and taking it on board, is a powerful message to children about their value. I have found that coming to know they have rights and understanding that what they have to say will be respected, and that adults formally recognised their rights and agreed to help them realise them is incredibly empowering for children.  It’s like a coat of armour or a cloak they can put on to help them feel safe and strong.

Voice and participation

The genuine involvement of children in issues that affect them was a major theme of my first report to parliament.

While some might scratch their heads and wonder why children should be involved in decision making and how this could happen, it’s not as unreasonable or hard as they may think. For example, when decisions are being made about an individual child, in certain contexts a legislative requirement to hear the views of children may be an option, as is the case in the family court system and many child protection systems.

At the policy and planning level, there are a number of ways that children can be engaged in the process, including through schools, formal youth advisory boards, web and face-to-face consultations on specific issues, targeted focus groups as part of research projects, youth parliaments and forums, as well as working in partnership with community organisations with significant child and youth representation.

Last week at the Governor General’s pad down in Sydney he also announced a NAPCAN award to Illawarra Council who has being consulting with local kids about the design and upgrade to their community for a number of years. This is now normal practice for them and has resulted in a neighbourhood which are safe, more crime free, and used by the whole community. The kids are even at the point where they know what $200,000 will buy in terms of play equipment and landscaping.

Children are particularly vulnerable to having their rights and freedoms abused or restricted. In this context, processes for receiving information about breaches of rights and freedoms should be accessible to children. We also need to make sure existing mechanisms for resolving complaints and concerns are accessible and available to children.

Additionally, children should know the laws and their rights in respect of areas like privacy, cyber safety and bullying, how they can be protected from exploitation and abuse, and where they can go to for help.

Optional Protocols

There are also other international tools that we could 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 allows 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.

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.
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 unannounced and unrestricted 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 appreciated.
Conclusion

To conclude, the vast majority of the children I have spoken to, let alone adults, are not aware that children have rights. Understanding, listening to, and valuing the views of our children and young people, is crucial to ensuring they can realise their basic rights.

It is my vision that every community, neighbourhood, organisation and every institution across the country takes on the challenge to be child safe and child centred. Finding ways to hear from children and genuinely engaging with them is the most fundamental of all building blocks for this to happen.
I’d like to end 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: “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.”

Thank you.

 

(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) 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.