Seen, Heard and Respected –
Listening to the voices of
children and young people in
child welfare
Seen, Heard and Respected - Overview
Presentation Summary
• Acknowledgements – Wurundjeri people, children and young people in care,
CREATE Foundation, Forgotten Australian’s, members of the Stolen
Generations and mothers and families affected by forced adoptions
• Child Savers and Rescuers, Baby Farmers and Cruelty Men
• Children’s Rights – Development of International Conventions
• Children and Young People’s Voices – lost amongst the shouting
• Where to from here – Act 17 Scene One
Seen, Heard and Respected
Child Savers and Rescuers, Baby Farmers and Cruelty Men
Photo source: Brotherhood of St Laurence collection, as published in Family Matters
Seen, Heard and Respected
Child Savers and Rescuers, Baby Farmers and Cruelty Men
Development of Victoria’s Child Welfare System
• Pre-legislation 1850 to 1864 – Child Savers and Rescuers
• Concerned with the escalating numbers of delinquent,
destitute and uncontrolled children on the streets and the
implications for a ‘decent and moral society’
• Unregulated institutions operating with access to government
funds – NGO’s seen as the solution to child welfare problems
•1864 – Neglected and Criminal Children’s Act
• Licenses child savers, including Selina Sutherland
• Focus broadens to protecting children from harm as well as
protecting society from children who are not raised properly
Seen, Heard and Respected
Child Savers and Rescuers, Baby Farmers and Cruelty Men
• 1874 – Amended Neglected and Criminal Children’s Act
• Industrial schools & Reformatory schools
• 7 Anglicans for every Catholic
• Residential school system immediately overwhelmed and in crisis
• Children – regardless of social status – require protection
• Boarding out children to private homes increases
• 1874 – NSW Royal Commission
• Describes children’s institutions as “ a legalised gateway to hell”
• 1887 – Legislation is split
• Neglected Children’s Act and the Juvenile Offenders Act
• Caps industrial and reformatory schools
• Fostering or boarding out become dominant care model
• Baby Farming emerges as a major concern
• 1890 Infant Life Protection Act
• Regulates fostering and adoption of infants
• Protects against Baby Farming
Seen, Heard and Respected
Child Savers and Rescuers, Baby Farmers and Cruelty Men
• 1920’s – Legislation
• Department renamed Children’s Welfare Department
• State authority extended over private institutions
• Foster care system nearing collapse – In Tasmania the Dept notes
that “ it was difficult to obtain good foster mothers – newspaper
advertisements attracted little response – applicants were
deterred on two levels – one was the parameters including
inspections and low pay – the other was the nature of the work
and in particular the children’s behaviour ” (Caroline Evans, Excellent
Women and Troublesome Children)
• 1950s - Legislation
• Government establishes its own institutions
• Major increase in institutional care
• Children in need of care and protection
• Current Royal Commission is exploring as far back as this period
Seen, Heard and Respected
Child Savers and Rescuers, Baby Farmers and Cruelty Men
• 1960’s – Social Welfare Act
• Department renamed Chief Secretary’s Department
• Juvenile Justice and Child Protection under the one Act
• 1970 and 80’s – Community Welfare Services Act and 1989 Children
and Young Person’s Act
• De-institutionalisation and closure of children’s homes
• Aboriginal Child Placement Principle
• Dual Track System ends
• Mandatory Reporting (Daniel Valerio case)
• 1985 Dept of Human Services established
• Wardship files become child protection files
• 2005 Children, Youth and Families Act
• Focus on family support and early intervention
• Best Interests Principles – children’s participation
• Aboriginal Self Determination
• Stability Planning and Permanent Care
Seen, Heard and Respected
Children’s Rights
Photo Source: UN Photo Library
http://www.un.org/en/events/humanrightsday/udhr60/photos.shtml
Seen, Heard and Respected
Children’s Rights
• Societies for the Prevention of Cruelty to Children
• Case of Mary Ellen Wilson – 10 year old child in New York - a court
case for animal cruelty successfully pursued against her carers –
cruelty to animals was an offence – cruelty to children was not
• 1874 New York Society for the Prevention of Cruelty to Children
• 1883 Society for the Prevention of Cruelty to Children (Liverpool)
• UK Prevention of Cruelty to and Protection of Children Act 1889
•Included a charter of 8 key aspects of cruelty such as failing to
provide reasonable food, clothing and shelter
•Licensed Society Inspectors to enter peoples homes and
investigate
• 1889 Irish Society for the Prevention of Cruelty to Children
• The Cruelty Men
• 1894 Victorian Society for the Prevention of Cruelty to Children
• Dual Track Child Protection System – Police and CPS
Inspectors share responsibility for investigating
Seen, Heard and Respected
– Children’s Rights
•International Save the Children Fund
• Save the Children in partnership with the International Red Cross present
Children’s Rights petition to League of Nations in Geneva in 1924
•1924 Geneva Convention on Children’s Rights agreed by League of Nations
•1959 UN Declaration on the Rights of the Child
•1989 UN Convention on the Rights of the Child
• Ratified by Australia in 1990 and in force from 1991
Seen, Heard and Respected
– Children’s Rights
• 1989 UN Convention on the Rights of the Child (CROC)
• children need particular care and protection that adults do not
• first legally binding human rights instrument to include all areas of human
rights - civil, cultural, economic, political and social rights
• spells out that children have a right to survival; to be provided with
support develop to their fullest potential; to protection from harmful
influences, abuse and exploitation; and to participate fully in family,
cultural and social life
• intention is that UN member states will include the provisions of CROC
within domestic laws
• Australia has only done so on a very limited basis
Seen, Heard and Respected
– Children’s Rights
• Convention on the Rights of the Child – Implementation
• Article 4 of the convention – Implementation
• States Parties shall undertake all appropriate legislative, administrative,
and other measures for the implementation of the rights recognized in the
present Convention
• Seen and Heard: 1997 report on children, young people and the legal
process by ALRC and HREOC.
• Over 200 recommendations including on child protection and OOHC
• National Stds for Legislation and Practice
• National Charter of Rights for OOHC
• Alternative models for decision making
• Rights of Children and YP to express their views in decision making
• National Children’s Summit
• National Children’s Commissioner
Seen, Heard and Respected
– Children’s Rights
• Convention on the Rights of the Child and Child Protection
• Victorian Children, Youth and Families ACT makes no specific reference to
CROC but was informed by CROC and covers matters such as:
• Best Interests of Child – Article 3
• Right to Identity – Article 8
• Participate and express views – Article 12
• Right to Protection – Article 19
• Periodic Review of Placement – Article 25
• Access to Indigenous family and culture – Article 30
• Freedom from sexual abuse or exploitation – Article 34
• Promote physical and psychological recovery from abuse, neglect and
trauma – Article 39
Seen, Heard and Respected
– Children’s Rights
• Convention on the Rights of the Child – Implementation
The 2011 Listen to Children Report finds that despite ratifying the
Convention in 1991, Australia has not effectively incorporated
human rights into policy and legislative frameworks to nurture
and support Australian children. Instead, successive governments
have perpetuated a traditional welfare approach to children’s
wellbeing and have not learned to listen to and work with
children—to create child-sensitive bodies, systems and initiatives.
(Listen to
Children Report, 2011 Child Rights NGO Report Australia, National Children’s and Youth Law
Centre)
Seen, Heard and Respected
– Children’s Voices
Elian Gonzalez being apprehended in the United States (photo source: Wikipedia)
Seen, Heard and Respected
– Children’s Rights
• Respecting the Rights of Children and Young People to say what they want
• Elian Gonzalez – 6 year old Cuban boy found off the coast of Florida
• Mother and 10 other people fleeing Cuba to seek asylum drowned on way to Florida
• Major legal and political battle regarding custody and asylum application
• Dispute involves the extent to which Elian can express what he wants – US based
maternal family relatives seek custody and claim he wants to stay
• Elian’s father wants him returned to Cuba
• District Court Judge (eventually) meets directly with Elian to ascertain his views
Seen, Heard and Respected
– Children’s Rights
• 2007 Children’s Court Case DHS Vs Mr & Mrs B
• DHS are seeking Guardianship to Secretary Orders to replace a Custody to
Secretary Orders for three children: AB aged 7, MB aged 5 and CB aged 4
• Mother contests the application but fails to attend or participate in the
hearing
• Father does not seek to have care of the children, wishes Custody to
Secretary Orders to continue but opposes a proposed variation in his
contact arrangements
• Magistrate’s judgement draws heavily upon the expressed wishes of AB
and MB and issues orders for contact arrangements
Seen, Heard and Respected
– Children’s Rights
• 2013 Justice Legislation Amendment (Cancellation of Parole & other matters)
• Amends Children, Youth and Families Act 2005 so that only a child aged
10 years or more will be separately represented in matters affecting them
• Prior to this amendment children of any age could potentially give
instructions to legal counsel and have their views presented to the
Children’s Court, as in the DHS Vs Mr & Mrs B case
• Under the amended CYF Act children such as AB will no longer have the
right to separate legal representation and to express their views in the
Children’s Court
Seen, Heard and Respected
– Summary and Conclusion • In Victoria’s child welfare system children and young people have been the
villains , the victims and the vilified – rarely have they had a voice
• Debates about what constitutes a Good Childhood
•Children’s status has improved from being a form of property controlled by
their parents to the acknowledgement that they have human rights
• Child welfare system has thus far failed to embed children’s rights, as outlined
in the UN CROC in legislation, policy and practice
• Child welfare legislation having progressed for 149 years has in 2013 taken a
step backwards by diminishing the rights of children to represented in the
Children’s Court
Seen, Heard and Respected
– Summary and Conclusion • Challenges facing the sector in 2013 are the same challenges facing it in 1864:
• lack of foster carers, poor quality and over crowded residential care, a
lack of transparency and openness, unresolved tension about the
respective roles of NGO’s and DHS, appropriateness of for profit providers,
children and young moving from care to juvenile justice, family mistrust of
the system, over representation of Aboriginal children, institutional
racism, community concerns and doubt regarding the quality of care
provided and an inability to hear the voice of children and young people
• Historical evidence suggests that change is most likely to come from the
outside – often in response to scandal, individual cases of child maltreatment,
media, political and legal scrutiny
• Child welfare departments are always and forever in crisis
Seen, Heard and Respected
– Summary and Conclusion • Unless children and young people have power within the system – the right,
the authority and opportunity to say no – the system will exploit their
vulnerability and compromise their best interests
•Reforms need to focus on
• Empowerment - supporting children and young people in care to protect
themselves
• specific and detailed application of the UN CROC
• Transparency - building into the care system mechanisms for children and
young people to be whistleblowers, make complaints and raise concerns
• Child Centred decision making - Children’s Court and all otherdecision
making processes (care teams)
• giving children and young people the right to say no to proposals that
fundamentally impact upon them, eg changing placements/residential care
units, contact arrangements or placement with siblings, changes to school
Seen, Heard and Respected
– Children’s Voices
• Update the Victorian Children, Youth and Families Act to include the UN CROC
• Best Interests Principle apply to all decision makers in the system,
Children’s Court, DHS and CSOs and include that the child’s views and
wishes, if they can be reasonably ascertained, should be given such weight
as is appropriate in the circumstances (CYF Act Section 10 (3d))
• Section 10 (3d) is limited, poorly worded and does not ensure that as a
right children’s views will be taken account of
• Family Law Act 2012 – inclusion of CROC in the Objectives of the Act
• In proceedings under this section; a child has a right to express his or
her views in all matters affecting them
• A child will be provided with reasonable opportunities to be heard in
proceedings (Michelle Fernando, UNSW Law Journal Vol 36.)
Seen, Heard and Respected
More Information:
Julian Pocock
Director Public Policy and Practice Development
Email: [email protected]
Phone: 0407 041 059