Children's Rights in a Changing World
National Children's Commissioner
Australian Human Rights Commission
Association of Children's Welfare Agencies Conference 2014
20 August 2014
Check Against Delivery
Thank you, Stephen, and good afternoon everyone.
Can I start by acknowledging the traditional owners of the land on which we are meeting today, and paying my respects to their elders past and present.
I’d like to thank Andrew McCallum, and the team at the Association of Children’s Welfare Agencies, for the invitation to provide today’s closing address.
I’d also like to thank all of the wonderful national and international speakers, panellists and audience members who have come together throughout the past three days to make the conference such a success.
The title of this conference is children in a changing world. So, I’d like to take the opportunity to reflect on how life has changed for children over the years, how recognition of children as rights holders has developed, and on how the systems that interact with them and seek to help them have also changed.
It was the former Secretary-General of the United Nations, Kofi Annan who said: "There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace."
A History of Children’s Rights
While this is likely to be a widely shared sentiment today, the idea of children having ‘rights’, in the European context, is relatively new. And, if we examine the history of the treatment of children, we are reminded that the concept of ‘children’s rights’ is also ever evolving.
Back as far as the Middle Ages in Europe, children were arguably viewed as smaller versions of adults - even wearing the same clothes - but with less or no social significance. At this time, the idea of ‘childhood’ was hardly recognised or acknowledged. (1) Children accompanied adults in all activities, were essentially viewed as adults from the age of 7 onwards, and were under the complete control of their parents and carers. (2)
From 16th Century onwards, the creation of nuclear families led to closer contact and feelings between parents and their children. (3) Children were starting to be recognised as beings with their own thoughts and, in particular, as needing their own space where they could play. (4) Children were also beginning to be depicted as innocents, with philosophers such as John Locke declaring children born as ‘tabula rasa’.
In this context, it was the clear duty of parents to educate the child and develop the proper attitudes and behaviour in their children.
In this way, the early upbringing of children in England in the 17th Century, has been compared with ‘the baiting of hawks or the breaking in of young horses or hunting dogs’. (5)
During the 18th Century, in the time of the Enlightenment, happiness was considered to be as a “consequence” of culture and progress. Rousseau, one of the preeminent philosophers of the time, argued that ‘Man is naturally good, and society corrupts Man.’ It is this idea which sparked the beginning of the concept of contemporary human rights, and strengthened the view of children as innocents, not yet corrupted.
Industrialisation brought into sharp focus the disconnect between the romantic ideals of childhood that had begun to develop and the reality of child exploitation in the world of work. By the 19th Century – despite having more social recognition – children were still seen as part of the ‘valid workforce’ in lower classes. (6) Child workers had equal duties to adults, but were paid less. They also faced strong discipline, and had ‘little or no power to claim their own rights’. (7)
The cruel realities of child labour were highlighted in the literature of the time, including in the novels and campaigning of figures such as Charles Dickens, whose writing reflected his own experiences of child poverty and labour.
As stated in a line from one of Dickens’ famous works: “It always grieves me to contemplate the initiation of children into the ways of life, when they are scarcely more than infants. It checks their confidence and simplicity… and demands that they share our sorrows before they are capable of entering into our enjoyments.” (8)
Mortality and morbidity in children were at such high levels that laws were begun to be created to prohibit or limit work performed by children. (9) Dickens’ writings depicting London street life and workhouses played a major part in the introduction of the Factory Acts which mitigated the worst elements of child exploitation in the labour force. And one of the main aims of the International Labour Organisation, subsequently created in 1919, was to protect children from workplace abuse. (10)
The modern idea of childhood arose from this time on, characterised by Victorian notions of the role of the family and the purity of the child.
Children’s literature started to develop which encapsulated the world of children’s imaginations. Compulsory schooling was introduced in many western countries, gradually moving children out of the workforce and into the education system.
About this time, too, philanthropic and charitable organisations began to emerge, as part of what was known as the child rescue movement. This movement was in part also sparked by high profile cases of child mistreatment, notably the case of Mary Ellen McCormack, a ten year old girl in New York who had been badly abused by her adoptive mother.
In 1874, as there were no laws relating to the protection of children, Mary Ellen's mother was prosecuted under laws relating to cruelty to animals.
In court Mary Ellen testified: "…Mamma has been in the habit of whipping and beating me almost every day. The whip always left a black and blue mark on my body. I now have the black and blue marks on my head which were made by Mamma, and also a cut on the left side of my forehead which was made by a pair of scissors…I have no recollection of ever having been kissed by any one…I have never been taken on my mother’s lap and caressed or petted. I never dared to speak to anyone, because if I did I would get whipped…" (11)
This case prompted the establishment of the New York Society for the Prevention of Cruelty to Children, reportedly the first of its kind, with child protection legislation introduced soon after. This case also had significant cross-national implications, with similar agencies subsequently established in Liverpool and London, and child protection legislation introduced in the UK in 1889.
Australia followed suit and, by the end of the Century, there were a number of state protection agencies responsible for investigating reports of abuse and neglect, as well as children's courts in most jurisdictions. Of course, each state system varied and many of these variations persist today. It is interesting to think that had the Federation been established prior to 1901, we may have constructed a quite different and more consistent system of child protection and welfare.
Historically, the view of children as innocents was not as generously bestowed on children from poorer backgrounds. In the mid-1800s, in response to concerns about the growing groups of ‘uncontrolled children who lingered in the streets and other public spaces,’ a system of industrial and reformatory schools were established. Life for the children living in these institutions was largely loveless, and staff focused their efforts on providing children with discipline, religion and practical training to help make them more employable.
Long into the 20th Century, these ‘children’s institutions continued to explain the value of their services in terms of the threats unrestrained youth might pose to society.’
Despite this legacy, concepts of ‘child development’ and ‘children’s rights’ gradually emerged as social priorities.
In 1924, after the end of the First World War, the League of Nations adopted the Geneva Declaration on the Rights of the Child, the first international treaty centred on children’s rights. (12) This Declaration stated that all children, regardless of age, race and religious beliefs, must have their rights upheld:
“The child must be given the means requisite for its normal development, both materially and spiritually;
The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succoured;
The child must be the first to receive relief in times of distress;
The child must be put in a position to earn a livelihood and must be protected against every form of exploitation; and
The child must be brought up in the consciousness that its talents must be devoted to the service of fellow men.” (13)
Through the UN Declaration of the Rights of the Child in 1959, five additional rights were added to the original five:
Freedom of speech;
Freedom of thought;
Freedom from fear;
Freedom of choice and the right to make decisions; and
Ownership over one’s body. (14)
However, the application of the rights contained within the declaration was not mandatory, leaving many recognised “difficulties of compliance or enforcement”. (15)
This was not assisted by a pervasive view in most western societies at the time that ‘Children should be seen and not heard’.
Piaget’s theory of staged development
In the period between the wars, Swiss philosopher Jean Piaget also developed his influential theory of the four stages of child development - sensorimotor, preoperational, concrete operational; and formal operational. (16)
It is the conceptualisation of these stages and the sub-stages within them that has largely shaped the way we have built contemporary systems of education, health, welfare and child protection for children and that remain in place today.
Convention on the Rights of the Child
All of these events and developments in the knowledge base about children culminated in the eventual adoption of the United Nations Convention on the Rights of the Child (CRC) in 1989. The CRC is the most comprehensive human rights treaty for children, and has the status of international law. This means that when it entered into force in 1990, children were recognised as rights-bearers for the first time in the international human rights treaty system.
Covering a wide spectrum of economic, social, civil and political rights to be enjoyed by children, 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).
Optional Protocols to the Convention
Three Optional Protocols have also been developed on the back of the CRC, specifically:
- Optional Protocol 1: Protection against the targeting of children in situations of armed conflict
- Optional Protocol 2: Protection of the child from trafficking, child prostitution and child pornography
- Optional Protocol 3: To allow individual children to submit complaints regarding violations of their rights under the CRC and its first two Protocols.
The first two Optional Protocols were adopted in 2000, while the Third Optional Protocol on a Communications Procedure only very recently entered into force in April 2014.
Having signed on to the CRC 24 years ago, Australia promised to protect and promote the rights of its children. Australia also became a signatory to the first two Optional Protocols in 2006 and 2007 respectively, although we have yet to sign up to the Third Optional Protocol, which I’ll say a little bit more about later.
Children’s Rights in Australia
Looking back it is undeniable that we have come a huge way in terms of children’s rights. And, as countries become wealthier over time, childhood is increasingly recognised as a time for ‘education, recreation, growth and discovery’ - not simply a ‘transition state between infancy and adulthood’. (17)
Australia is a relatively wealthy country, with systems of social security and health care, legal protections, and universal access to education.
However, childhood sadly remains a period of hardship for many groups of children in Australia today.
Concluding Observations of the UN Committee on the Rights of the Child
This was highlighted in the Concluding Observations of the United Nations Committee on the Rights of the Child, when it reported on Australia’s progress in 2012.
In its concluding observations the Committee said that while Australia has made some important progress, there are many areas where we can do much better to protect the rights of all children, especially those most at risk. The Committee expressed particular concern about: (18)
• the “high levels of violence against women and children”;
• 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 measures addressing violence against children in school, Internet and other contexts”;
• inadequate programs for the “reintegration of child victims of domestic violence…”;
• “inadequate application of the principle of the best interests of the child in asylum-seeking, refugee and/or immigration detention situations”; and
• “the significant increase in the number of children in out-of-home care.”
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 lacks a coordinated or child-specific approach to data, budget and activities. This remains the case today and will be an unceasing theme of advocacy and action for me throughout my term.
I want to briefly allude to two groups of children who are particularly vulnerable to breaches of their fundamental rights, asylum seeking children and children involved in care and protection systems.
Asylum and refugee seeking children
Yesterday you heard stories about the impact of trauma and prolonged detention on the health and wellbeing of children and families seeking asylum in this country. As you will be aware the Australian Human Rights Commission is currently conducting an inquiry into the conditions of children in closed immigration detention. As part of that process, along with the President, Professor Gillian Triggs, I have visited a number of detention centres and interviewed children and families there.
As you heard yesterday, the impact of detention is profound and deeply distressing. Children are anxious and withdrawn, not meeting developmental milestones, are engaging in significant levels of self-harming and have a range of physical and mental health issues. They struggle in particular to bear witness to the negative impact of detention and the fading hopes for the future on their parents. On this note, while it is pleasing to see that the government has made a public commitment to release at least some children and families into the community, the breaches of the basic human rights of these children has been palpable. I understand Minister Morrison is due to appear at the Commission’s fourth hearing for the inquiry this Friday in Canberra.
Children in Out-of-Home Care in Australia
The most current statistics on child protection and out-of-home care reaffirm the divided outcomes for children in Australia.
As you have heard many times throughout the conference numbers of children in care are at unprecedented levels.
Nationally, 40,549 children were in out-of-home care at 30 June 2013. (19) Overall, 6,480 more children were in out-of-home care at 30 June 2013 compared with 30 June 2009. (20) Of those 40,549 children, approximately one third were from Aboriginal and Torres Strait Islander backgrounds. (21)
Similarly, in the year 2012-13, 135,139 children received child protection services, with Aboriginal children being 8 times as likely to be receiving child protection services as non-Indigenous children. (22)
Too many of these children we know are tossed around the system through multiple placements, prevented from experiencing the sense of stability and belonging so important for healthy child development. The potential of open adoption, explored here at the conference, is just one of the range of ways we might be able to change that paradigm for some children.
We also know that the majority of children and families who become involved in the child protection system share similar social and demographic traits. Families with a “history of domestic violence, alcohol and substance abuse, psychiatric disability, and families with low incomes or that are reliant on pensions and benefits are over-represented in the families that come into contact with the child protection system.” (23) And most children who were the subjects of substantiations in 2012-13 were from low socioeconomic areas. (24) Knowing this, we can never regale from the ongoing task of addressing the underlying disadvantage and inequality that many Australian families face.
Developments in Child Protection
Despite these stubbornly high and worrying care numbers, there have been positive changes in our approaches to care and protection over time.
Thankfully, there has been a shift away from the use of facility-based care, towards more home-based care, as well as some increases in the provision of family support services to assist in preventing the separation of children from their primary caregivers or to foster reunification.
State and Territory based child protection systems and laws have also shifted their focus over time. For instance, Kempe’s work on the battered child syndrome in 1962 had a profound effect on child protection systems around the world and led to substantial growth in government run systems.
High profile cases demonstrating the wicked choices child protection workers are often faced with, have prompted a number of inquiries and changes to legislation and practice. This includes the introduction of mandatory reporting, first introduced in South Australia in 1969, the widening of categories of abuse such as sexual and emotional abuse and exposure to family violence, and the rediscovery of cumulative neglect.
There has also been a belated shift towards recognising children’s right to participation in decisions and policies which directly affect them, and in framing children’s welfare concerns through a ‘rights’ perspective. (25)
This recognition is variously contained in child protection legislation and policies, but in reality is not systematically adhered to. This is because we have not fully embraced children’s rights as a whole. By focusing primarily on their immediate safety through child protection regimes, we have failed to develop a suite of measures that deliver children all their rights, perhaps most importantly the right to participate.A
As shown in the recent research conducted by AIFS into the activities and attitudes of independent children’s lawyers, even when systems are set up expressly to support children’s participation, the actual outcomes are plagued by preconceived perspectives about children’s rights and capabilities and the role of court officers. In these contexts it appears, children’s views, agency and capacities are given little consideration, even where major decisions are being made about their lives, to the extent that most children in the study reported very limited or no contact with the advocate supposedly representing their interests. (26)
The Big Banter
Children and young people are very aware of the inequities in relation to the well-being and protection of children in Australia.
As you may know, last year I conducted a three month listening tour, which I called the Big Banter, where I engaged with over 2,300 children either face to face, through surveys or through the mail. Through this process, children and young people consistently told me that the most important things to them were to be with family and friends and to be safe. Issues that most concerned them were violence, bullying, drugs, alcohol and smoking. Many children and young people were worried that some children lived in families where they could not afford to have the things they would like to have. They want more things to be available for free and services for children to be easier to access.
Postcards from Children and Young People
Here are a few observations they made about how life could be better for children in Australia:
- “If we all felt safe in a house with a mum and a dad.” (5 year old boy)
- “There wasn’t such a big division between the rich and the poor. For example, an activity that should be available to all families is the Royal Show. There should be no entry fee at all.” (10 year old girl)
- “The government made sure that every child has all the rights. I think every child should have food and water.” (10 year old girl)
Technology and the modern child
Not only do we need to more carefully listen to children and honour the commitments we have made to them through the CRC, we must also be cognisant of the changing world around us.
Arguably, one of the most significant developments affecting contemporary children is the role technology plays in their lives.
Recent studies show that: (27)
- Over 95 per cent of young Australians are regular internet users;
- Almost daily internet use is common for children as young as eight or nine;
- 50 per cent of Australians aged between 8 and 11 use social media sites, and this is around 90 per cent for 12 to 17 years olds;
- 53 per cent of children own or access their first internet connected device before 10 years old; and
- Approximately half of 14-17 year olds access the internet through mobile phones, and 43 per cent have their own smartphone.
As digital natives, for children technology is a fundamental part of their natural way of communicating, learning and socialising. As a result, they come into contact with unparalleled amounts of both filtered and unfiltered information and imagery, which they need to navigate and manage. Often this is without guidance or support from adults.
In the technological space, children are highly vulnerable to exploitation, commodification, and invasions of privacy.
Article 16 of the CRC states that “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation… The child has the right to the protection of the law against such interference or attacks.” (28)
And in this technological space a child’s right to privacy, in particular, can sit rather uncomfortably alongside the right to information and freedom of expression. And while the right to privacy has taken on new and complex meanings and challenges, it is nevertheless a right that, when claimed by children, can act as a strong protective factor.
To support the Australian Law Reform Commission’s current review of privacy laws in Australia, I have been working with a small number of schools to elicit children’s views and understandings about privacy.
When asked what privacy meant to them, some children’s responses have included:
• “Children don’t know enough about privacy because they are little.”
• “I believe there should be a lot of ways to stop people from breaking your privacy.”
• “Children don’t know much because they might just think that everywhere they go they are safe.”
• “I think privacy is important at school, home and online.”
• “Privacy should be everywhere because sometimes people don’t feel safe.”
The advent of social media has also changed the nature and potential sources of violence, injury and abuse against children and young people, breaches of Article 19 of the CRC, which promises to keep children safe.
Recent studies by The Australian Communications and Media Authority show that four per cent of eight to nine year olds; 21 per cent of 14-15 year olds; and 16 per cent of 16-17 year olds reported being cyber-bullied. (29) Other studies have shown that 53 per cent of teens have been exposed to cyber-bullying, but with only a fraction of those children choosing to tell their parents.” (30)
As noted by the young people on this slide, there are multiple reasons why online bullying happens, and it is often very hard for children and young people to know what to do about it.
Cyber bullying can have devastating consequences and can be linked to self-harm and suicide among young people. It is increasingly anonymous and often represents serious invasions of privacy. Equipping children with the knowledge that they have a right to be safe and to privacy can be a powerful potential safeguard in digital contexts.
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. (31) 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.
As many of you would know, because of these disturbing trends, I am currently undertaking an investigation into intentional self-harm among children and young people, with the aim of gaining 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 – Making Good on our Promises to Children – from child rescue to child empowerment
So, in light of the changing world around us, what can we do to ensure that we are making good on our promises to children?
Importantly, apart from their ethical and moral force, the CRC and its Optional Protocols are legal documents which set out standards, and assign responsibility for ensuring those standards are met.
In my 2013 report to Parliament, I made a recommendation that the Government sign on to the Third Optional Protocol. The UN Committee on the Rights of the Child encouraged Australia to sign on to the Protocol in its Concluding Observations in 2012, and I call on all of you to continue to advocate with me for the Australian Government to do this.
Signing the Third Optional Protocol would provide the means for our children to make complaints about breaches of their rights across the whole spectrum of rights under the CRC. This is especially important for vulnerable children, like those discriminated against because of their disabilities, children involved in the care and protection and juvenile justice systems, children in detention and those caught up family court proceedings. While I do not expect this will result in large numbers of complaints from Australian children to the UN, what it will do is put pressure on domestic systems to ensure complaints and redress processes are in place, and are visible, accessible and used by children. This is fundamentally about recognising the agency of children and their right to participate in decision making and have their views heard and respected.
For me, this is perhaps the next great frontier, to get to a point where children are recognised as active citizens with a contribution to make to their own lives and to the lives of other children– and where children can trust that adults will take action to ensure that this occurs. This means moving on from the rescue movement to an empowerment movement, to a place where children are seen AND heard.
In a way, the CRC and its Optional Protocols can be seen as blueprints for action on all of the areas of child well-being which we should guarantee to each child. They provide a comprehensive framework for planning and measuring child well-being in Australia. As children’s rights advocates, we should continue to use these tools to continue to remind the Government of their obligations to children, and to leverage for more child-centred approaches to legislation and policy.
The development of more comprehensive monitoring of the well-being and human rights children and young people covering all of the key domains of the children’s rights in the CRC must be a major plank of this narrative. What we don’t measure, we don’t know about, and what we don’t know about, we don’t care about.
You have come to this conference to learn and exchange wisdom, knowledge and experience about what is possible and what can be achieved so that all children have every chance in life. In this way you are already champions for children’s rights, and I hope being here has reenergised and excited you about the possibilities ahead.
In Australia we have only just begun the journey to make embed the realisation of children’s rights – all children’s rights - into everything we do - as governments, as agencies, as communities and as individuals. I look forward to continuing to partner with all of you here to make children’s rights a reality- for everyone, everywhere, every day.
(1) Anita Catlin, ‘The Ethical Rights of Children: Yesterday and Today’ (2011) 37 Pediatric Ethics, Issues, and Commentary 141.
(2) Catlin, above n 1, 141; Allan Levy, ‘Do Children Have Rights?’ (2003) 3 16 Australian Family Lawyer 3.
(3) Catlin, above n 1, 142.
(5) Levy, above n 2, 3.
(6) Catlin, above n 1, 142.
(7) Encyclopedia Britannica Inc., 1990 and Vale, 2009, cited in Catlin, above n 1, 142.
(8) Charles Dickens, The Old Curiosity Shop (London: Chapman and Hall, 1840).
(9) Catlin, above n 1, 142.
(11) Mary Ellen, April 10, 1874 (S A Watkins, 'The Mary Ellen myth: correcting child welfare history' (1990) 35 6 Social Work 500-503.
(14) Ibid, 143.
(15) Levy, above n 2, 4.
(16) J Piaget and B Inhelder, Memory and Intelligence (London: Routledge and Kegan Paul, 1973).
(17) Australian Human Rights Commission, Information for Students: Children’s Rights (2014). At http://www.humanrights.gov.au/commission-website-information-students-childrens-rights.
(18) UN Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Australia, 29 May-15 June 2012, CRC/C/AUS/CO/4. Available at: http://www.ohchr.org/en/countries/asiaregion/pages/auindex.aspx.
(19) Australian Institute of Health and Welfare, Child protection Australia 2012-13, Child welfare series 58, Cat. no. CWS 49 (2014) 11.
(20) Ibid, 55.
(21) Ibid, 51.
(22) Ibid, 12, 14.
(23) Productivity Commission, Report on Government Services 2014 (2014), Ch 15, 3. At http://www.pc.gov.au/__data/assets/pdf_file/0004/132358/rogs-2014-volumef-chapter15.pdf
(24) Australian Institute of Health and Welfare, above n 19, VIII.
(25) Sharon Bessell, ‘Participation in Decision-Making in Out-of-Home Care in Australia: What Do Young People Say?’ (2010) 33 Children and Youth Services Review 497.
(26) Australian Institute of Family Studies, The Independent Children’s Lawyers Study Final Report (2013).
(27) Department of Communications, Enhancing Online Safety for Children, (2014), 2. At http://www.communications.gov.au/__data/assets/pdf_file/0016/204064/Discussion_Paper_-_Enhancing_Online_Safety_for_Children.pdf
(28) UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, 3. Available at: http://www.refworld.org/docid/3ae6b38f0.html.
(29) Australian Communications and Media Authority, Like, post, share: Young Australians’ experience of social media - Quantitative research report (2013), 10.
(30) Department of Communications, above n 27, 3.
(31) Australian Bureau of Statistics, Causes of Death, Australia, 2012, Catalogue Number 3303.0 (2014), table 1.3, line 40. At http://www.abs.gov.au/ausstats/abs@.nsf/detailspage/3303.02012?opendocument.