Human rights abuse in aspects of child protection practice?
Abstract: This article examines some aspects of child protection practice in various Australian states. It does so from a parent's perspective through the framework of the Universal Declaration of Human Rights (1948) and the Convention on the Rights of the Child (1990). Australia was a signatory to both the Declaration and Convention at their point of inception. Of particular interest are articles 5 and 12 of the Universal Declaration and articles 5 and 9(3) of the Convention. The tentative conclusion is that the states cited in this article are from time to time in breach of these articles. The potential Australian Charter of Rights offers a way forward as a guide to development of legislation and service systems that will ensure the rights of children and parents while maintaining child wellbeing as a top priority.

Keywords: child protection, human rights, parents' perspective
Article Type: Report
Subject: Children's rights (Laws, regulations and rules)
Best interests of the child doctrine (Interpretation and construction)
Authors: Hansen, Patricia
Ainsworth, Frank
Pub Date: 12/22/2009
Publication: Name: Australian Journal of Social Issues Publisher: Australian Council of Social Service Audience: Academic Format: Magazine/Journal Subject: Sociology and social work Copyright: COPYRIGHT 2009 Australian Council of Social Service ISSN: 0157-6321
Issue: Date: Winter, 2009 Source Volume: 44 Source Issue: 2
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime; 970 Government domestic functions Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Product: Product Code: 9101228 Children's Rights NAICS Code: 92219 Other Justice, Public Order, and Safety Activities
Geographic: Geographic Scope: Australia Geographic Name: Australia Geographic Code: 8AUST Australia
Legal: Statute: Convention on the Rights of the Child; United Nations Universal Declaration of Human Rights
Accession Number: 212759607
Full Text: A parents' perspective

The authors of this article are unequivocally against all forms of child abuse or neglect. We are equally committed to listening to the voices of parents who have had children removed from their care. The best interest of the child doctrine (Goldstein, Solnit, Goldstein and Freud 1998) all too readily contributes to the silencing of the voices of these parents. Compounding the issue is the well documented disrespect shown to parents by some child protection caseworkers (Klease 2006; Klease 2008; Harries 2007; Clary et al. 2007; Holmes 2009). For this reason this article is unashamedly written from a parents' perspective. We know that this is an unpopular position but in our view social justice principles apply to parents who may have abused or neglected their children just as much as to those who have not. Parents' stories need to heard and understood if child protection practice is to be both effective and humane. These matters are addressed through a human rights framework since both children and parents, even abusive and neglectful parents, have human rights.

The framework of human rights

The Universal Declaration of Human Rights (UDHR) was adopted and proclaimed by the United Nations General Assembly on 10 December 1948 (accessible at http://un.org/Overview/rights.html). The Declaration consists of 30 articles. The articles that are of interest in regard to child protection practice are articles 5 and 12.

These articles are as follows:

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attack.

The Convention on the Rights of the Child (CRC) was adopted by the General Assembly on 20 November 1989 (accessible at http://www.un.org/library/ethics/ un-convention/). The Convention consists of 54 articles. Article 5 and 9(3) are the articles of interest. They read as follows:

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the member of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.

Article 9(3)

States Parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interest.

It is against these standards that it is important to measure child protection practice as it affects parents, families and children.

Article 5, Universal Declaration of Human Rights

Recent research reports (Harries 2007; Klease 2006; Klease 2008; Holmes 2009) that contain direct quotations from parents of children who have been removed from parental care make heavy reading when judged against this measure. It can be argued that the quotations below are unrepresentative of the experience of parents who are involved with child protection services and do not represent typical child protection practice. It would be nice to think that this is the case but as the quotations are from different Australian states it is likely that the type of treatment parents described may not be as uncommon as we might like to think.

It was totally insulting. It was punitive and it was like, it just added to that first experience. You know it added another layer of shame and guilt and that feeling, that sense of mmmmm. A sense of that you (long pause) well of what I grew up with. A sense of nothing. That you're nothing. That nothing's yours. That you don't belong. That people just control you from that side. That there's no place that you like.... Powerless? ... And nobody would believe you. And I cannot understand them why they didn't help. They just treated you like shit, like you are not even worth being honest with. (WA) (Harries 2007, p. 20)

Or a statement made at a Care Plan meeting by a child protection caseworker.

...now that you are no longer the child's mother' (NSW) (Ainsworth 2008, p.1)

Just her ... constant reminder to me 'you will not see these children again and stop thinking of them as your children' ... We do not wanna hear from this whinging mother. The whinging mother should just be put in a psych ward (QLD). (Klease 2008, p. 24)

Finally a comment from a support worker.

Children say to me that, they are being protected but they don't feel safe--picked-up out of everything they have known, they think they are being arrested, police with guns, removal .... It seems that families are guilty until proven innocent.' (Focus group, QLD). (Clary et al. 2007)

Do the above behaviours by child protection caseworkers constitute an abuse of human rights? The behaviour of the caseworkers in these cases might be described from a parent's perspective as both 'arbitrary' as well as 'cruel, inhuman and degrading'. We would be hard pressed not to agree with this view.

Article 12, Universal Declaration of Human Rights

Does every Australian parent have the right to protection of the law against interference or attack? It would seem not.

We didn't know any better and we didn't understand that 28 days order so we just thought it was fixed, that was it. We couldn't do anything (QLD). (Klease 2008, p. 24)

there's all these policeman out there and two welfare workers and they just came in... no explanation 'we here to get...' and I just burst into tears and I'm trying to explain what she was saying and they're just totally ignoring me, totally ignoring me and anyway they told me to pack her bag. (WA) (Harries 2007, p. 16)

You be in my shoes--I got these kids taken off me for 15 months--I still don't know what the hell they were taken off me for--they were dragged from school--I went to pick them up and they'd gone. I rang up the police and they were there and the police said "why don't you get your arse down the the bloody cop shop'. I didn't hit the children ... The house was clean, they had clean clothes. Plenty of food. OK. I admit I was using drugs, but I was not nasty on drugs--I'm more calm when I'm on drugs than when I'm not on drugs. (VIC) (O'Neill 2005, p. 11)

And most worrying is the fact that in a 2008 NSW Supreme Court decision Palmer J found in favour of parents. Part of the judgement that sets the context for later matters is as follows.

In my opinion, while it is regrettable that the mother spoke rudely, the parents, and the mother in particular, were entitled to be angry, bearing in mind their attempts to arrange a meeting with DoCS, in a letter to which they had no response. The attendance en masse of the DoCS officers was an unwarranted and offensive intrusion into their home. (Re Georgia and Luke (No.2) 2008, para. 46)

A further part of the judgement is as follows.

The officer refers to a 'history of mental health issues'. There is not the slightest evidence before the Court of a 'history of mental health issues', whatever that vague phrase is intended to mean. Where the liberty of the subject is concerned, precise evidence justifying deprivation of liberty is required by the Court. The Court will not countenance the removal of a child from his or her parents on evidence of this type. If DoCS has information in its files which can properly be described as a 'history of mental health issues' that information must be presented to the Court with particularity. The Court will not condone the removal of a child from his or her parents on nothing more than DoCS assurance that it has good reason for doing so.

(Re Georgia and Luke (No. 2) 2008, para. 51)

Do the above behaviours by child protection caseworkers constitute an abuse of human rights? It is hard to see how the human rights of these parents were not breached. It is worrying that in the NSW Care and Protection jurisdiction the rules of evidence do not apply in the Children's Court (Children and Young Persons (Care and Protection) Act 1998, s93). This in itself means that child protection caseworkers can and do submit evidence to the Children's Court that is often only partially correct and may include rumour, gossip and innuendo about parents. In our experience this evidence is rarely tested through rigorous cross examination. In the NSW Supreme Court case cited there was scrutiny of the evidence. Very few child protection cases are dealt with at the Supreme Court level.

Not surprisingly parents experience the Children's Court process as a fairly arbitrary and one sided process. Even less surprisingly parents fiercely feel that their honour and reputation is under attack and that the law offers them no protection. Added to this in NSW the Legal Aid Commission has recently introduced a 'Merit Test' over and above the existing financial test when considering applications for funding in relation to care proceedings. The merit test is cast in terms of 'will legal representation for the parents be in the best interest of the child'. It will be applied by Legal Aid administrative staff and this will almost certainly mean that some parents in child protection cases will no longer be eligible for a Legal Aid grant and will not be legally represented in the Children's Court. In some other state and territory jurisdictions Legal Aid Commissions adopt a similar merit test stance. The following quotation also raises issues about the quality of legal representation available to parents prior to any merit test.

We went to a solicitor to get some sort of advice and no one seemed to be willing to...even went to Legal Aid but they couldn't help. They said they'd be representing him (the child). Everyone seemed to be on his side.., they believed everything he (the child) said.., she (his wife, the birth mother) was told to sign a voluntary form or else be taken before a bloody magistrate. So, some voluntary! She was treated like a real criminal, sign up or else. (VIC). (O'Neill 2005, p. 14)

The NSW Department of Community Services always has a lawyer to represent their interests in the Children's Court.

Article 5, Convention on the Rights of the Child

The United Nations General Assembly ratified the Convention on the Rights of the Child on 20 November 1989 (accessible at http://www.un.org/library/ ethics/un-convention/). The Convention consists of 54 articles. The article that is of interest in regard to child protection practice is article 5. The article is as follows:

But the following quotations raise questions about whether the responsibility, right and duties of parents are always the subject of respect.

The Department just knocked on my friend's door and asked if I was there and just charged in and they said 'right we're taking your son off you, we've decided to take your son off you and we're going to put you in Graylands', because they thought I would not cope (WA). (Harries 2007, p. 17)

... to have them come in and say 'you are not a fit parent, we're apprehending your children' was just...and not understanding either why because of course that day it wasn't discussed it wasn't and they have given me a stack of papers but I can't read them. All I'm doing is crying and begging them not to take my baby and I'm just trying to hold on to her and the whole day was spent with them saying I can say goodbye' (WA). (Harries 2007, p. 15)

It is also interesting to note that the Children Legislation Amendment (Wood Inquiry Recommendations) Bill 2009 currently before the NSW parliament will remove from section 8 that is titled 'What are the object of the Act', all reference to the 'rights, powers and duties of parents' which was previously contained in subsection 8(a) of the Children and Young Persons (Care and Protection) Act 1998. Exactly why this deletion is necessary is unclear. Comment in regard to article 9(3) is to be found in the next section of this article.

Contact between parents and children

Contact between parents and a child or children who have been removed from parental care and who are in State care is a contentious issue in all Australian care jurisdictions. In March 2009 the Minister responsible for the NSW Department of Community Services introduced into the NSW Parliament the Children Legislation Amendment (Wood Inquiry Recommendations) Bill 2009. Section 86 of this Bill sought to remove from the Children's Court the power to make contact orders once there has been a final hearing and a child has been placed in the care of the Minister. This proposed change is in line with a recommendation of the Wood Inquiry (2008).

Once this section of the Bill was passed into law, as it was on 3 April, the decision about the length and frequency of parent- child contact after a final order has been made is at the discretion of the Department. At present the formula that is used by the Department to determine contact is either 4 by 2 hour contacts per year which is for identity purposes only or the more generous 12 by 2 hours contacts per year if there remains a question about restoration of a child to parental care. There are concerns that contact will be further reduced especially as a recent Department of Community Services internal "Guidance Note on Contact' (Law Society NSW briefing note 2009) recommends contact between a child in long term foster care and his or her birth family should occur only 2 to 6 times per year. Furthermore, it notes that this contact 'could include face to face visits, phone calls, exchange of photographs, videos or webcam conversation'.

If this were to occur it would be devastating to both children and parents and it is hard to see how such a development would be in 'the best interests of the child' (Goldstein, Solnit, Goldstein and Freud 1998). It is also hard to see how depriving children of parental contact to this extent can be in line with children's human rights in regard to their right to family identity, language, culture and kin. Even if parents are inadequate children can benefit from regular contact with birth parents and family (Tregeagle and Voigt 2009). Only in a few situations where parents are actively dangerous is cessation of contact justified. There is also the question as to whether this approach and frequency of child-parent contact is compatible with article 9(3) of the UN Convention on the Rights of the Child. We think not.

An Australian charter of rights?

To test the need for national Human Rights legislation the Australian government is currently conducting a wide ranging consultation in regard to this issue (Attorney-General 2009). Both the ACT and Victoria have already passed this type of legislation. In the ACT the legislation is the Human Rights Act 2004 and in Victoria the Charter of Human Rights and Responsibility Act 2006. The parts of the Victorian Act that are of interest are in part 2, section 10 'Protection from torture and cruel, inhuman or degrading treatment' and part 2, section 24 in regard to 'A fair hearing'.

Part 2, section 10 is as follow.

10. Protection torture and cruel and, inhuman and degrading treatment

A person must not be--

(a) subjected to torture; or

(b) treated or punished in a cruel, inhumane or degrading way; or

(c) subjected to medical or scientific experimentation of treatment without his or her full, free and informed consent

Part 2, section 24 is as follows.

24. Fair hearing

(1) A person charged with a criminal offence to a party in a civil proceeding has the right to have the charge or proceeding described by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) Despite sub-section (1) a court or tribunal may exclude members of the media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than the Charter.

(3) All judgements or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interest of a child otherwise requires or a law other than the Charter otherwise permits (Victorian Charter of Human Rights and Responsibilities Act 2006)

Similarly the ACT Human Rights Act 2004 contains in section 3 items relating to 'Protection from torture and cruel and inhuman or degrading treatment' and 'Fair trial'.

They are as follows.

10. Protection from torture and cruel, inhuman or degrading treatment etc

(1) no-one may be(a) tortured; or

(b) treated or punished in a cruel, inhumane or degrading way.

(2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.

21. Fair trial

(1) Everyone has the right to have criminal charges and rights and obligations recognised by law, decided by competent, independent and impartial court or tribunal after a fair and public hearing.

(2) However, the press and public may be excluded from all or part of a trial-

(a) to protect morals, public order or national security in a democratic society; or

(b) if the interest of the private lives of the parties require the exclusion; or

(c) if, and to the extent that, the exclusion is strictly necessary to, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

The ACT Act also contains section 11 Protection of the family and children and is as follows.

11. Protection of the family and children

(1) The family is the natural and basic group unit of society and is entitled to be protected by the society.

(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

In all likelihood an Australian Charter or Bill of Rights, if enacted, will have similar provisions to the Victorian and ACT Acts. There are of course those who argue that an Australian charter or bill of rights is unnecessary (Craven 2004, Irving 2009) on the ground that the Australian constitution provides sufficient human rights safeguards. Robertson's (2009) recent draft statute of liberty that is more extensive than both the Victorian and ACT Acts includes a section on the rights of the children. Under section 22 'Rights of Children' every child has the right;

to family care, parental care or adequate and appropriate care if removed in accordance with law from a dangerous family environment. (Robertson 2009)

But this is about family and parent obligations towards the child. Most noticeably in the Robertson (2009) draft charter there is no direct reference to family and parents right to services that some families and parents may need to enable them to meet these child rearing and safety obligations. It might however be argued that section 17 that refers to the 'Right to Wellbeing' covers this issue in so far as it states that:

i) everyone has the right to a standard of living adequate for their health and wellbeing, including food, clothing, housing and medical care, and necessary social services and the right to security in the event of unemployment, sickness, disability, old age or other lack of livelihood in circumstances beyond their control. (Robertson 2009)

We would argue that any Australian bill or charter of rights needs to include a section that specifically identifies the right of parents and families rather than cling to the hope that section 17 will suffice to protect their rights. Or is it that family and parents do not have any rights that might be breached by an indifferent child protection caseworker?

It may of course be that an Australian Charter of Rights might be the over arching legislation that will ensure that all current and future legislation, including child protection legislation, is screened so as to ensure conformity by government departments and others to human rights legal requirements.

References

Ainsworth, F. (2008). Letter to the Special Commission of Inquiry into Child Protection Services in NSW. October. p.1-2.

Clary, M., Klease C., Thompson J., Thorpe R. & Walsh K. (2007). 'Family inclusion in child protection practice'. Family Inclusion Network of Queensland. October.

Convention on the Rights of the Child (1989). Available at Available at http://www.un.org/library/ethics/un-convention/ Accessed 2 March 2009.

Craven G. (2004). 'Conversations with the constitution'. Sydney: University of New South Wales Press.

Goldstein J., Solnit A. J., Goldstein S. & Freud A. (1998). 'The best interests of the child. The least detrimental alternative'. New York: The Free Press.

Harries M. (2008). 'The experience of parents and families of children and young people in care'. Family Inclusion Network of Western Australia. August.

Holmes, K. (2009). 'Giving a voice to parents and families of children in out-of-home care'. Australian Catholic University, Strathfield, NSW. Unpublished honours thesis.

Irving H. (2009). 'Off the charter'. Australian Literary Review, 4, 3, 10-11.

Klease C. (2006). 'Help not upheaval. Mothers with children in foster care evaluate the foster care system and foster carers'. James Cook University, Townsville. Unpublished honours thesis.

Klease C. (2008). 'Silenced stakeholders. Responding to mother's experience of the child protection system'. Children Australia, 33, 3, 21-28.

National Human Rights Consultation (2009). 'Background paper'. Australian Government, Attorney-General's Department.

O'Neill C. (2005). 'Christmas without the kids. Losing children through the child protection system'. Children Australia, 30, 4, 11-18.

Robertson G. (2009). 'A charter we can believe in'. Australian Literary Review, 4, 2, 9 and 18.

Thomson J. & Thorpe R. (2003). 'The importance of parents in the lives of children in the care system'. Children Australia, 28, 2, 25-31.

Tregeagle S. & Voigt L. (2009). 'Out-of-home care: Addressing the support needs of vulnerable children'. In P. Swain and S. Rice (Eds) (3rd Edn.). In the shadow of the law. The legal context of social work practice. (pp. 177-191). Sydney: Federation Press.

Universal Declaration of Human Rights (1948). Available at http://un.org/Overview/rights.html Accessed 2 March 2009.

The Wood report (2008). 'Report of the Special Commission of Inquiry into Child Protection Services in NSW'. Department of Premier and Cabinet, Sydney. November.

Legislation

* ACT Human Rights Act 2004

* Victorian Charter of Human Rights and Responsibility Act 2006.

* NSW Children and Young Persons (Care and Protection) Act 1998.

* NSW Children Legislation Amendment (Wood Inquiry Recommendations) Bill 2009.

Cases

* Re Georgia and Luke (No. 2) (2008). Equity Division, Supreme Court decision, 19 December. Judgement- Ex tempore, Palmer J.

Note

Patricia Hansen is Head of the Social of Social Work at the Australian Catholic University. She is also a lawyer practicing part-time in the New South Wales Children's Court.

Frank Ainsworth is a Guardian Ad Litem in the New South Wales Children's Court.
No one shall be subjected to torture or to cruel, inhuman or
   degrading treatment or punishment.


No one shall be subjected to arbitrary interference with his
   privacy, family, home or correspondence, nor to attacks upon his
   honour and reputation. Everyone has the right to protection of the
   law against such interference or attack.


States Parties shall respect the responsibilities, rights and
   duties of parents or, where applicable, the member of the extended
   family or community as provided for by local custom, legal
   guardians or other persons legally responsible for the child, to
   provide, in a manner consistent with the evolving capacities of the
   child, appropriate direction and guidance in the exercise by the
   child of the rights recognised in the present Convention.
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