Child Protection. Freda Briggs
to the Convention undertake to provide the necessary legislative and administrative measures for the care and protection of children (while taking account of the rights and duties of their parents etc.)
Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform to the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 4 is directed at politicians, legislators and administrators of child protection services who must take all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention. Article 6 confirms that parties to the Convention shall ensure to the maximum the sound development of the child. This should be especially relevant to Family Courts and those responsible for out-of-home care.
Articles 9 and 10 are again relevant to Family Courts and out-of-home care services which must ensure that children have a voice relating to where they live after separation from a parent. It should be noted that at the time of publication, Australian children are not allowed to give evidence in the Family Court.
Article 11 refers to child abduction and, indirectly, the Hague Convention on Child Abductions: States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
Article 20 covers children in out-of-home care.
Articles 22 and 25 cover the care and protection of child refugees.
Article 44 State signatories agreed to submit regular reports showing the steps they have taken to put the Convention requirements into effect. Reports are published on the internet. These websites show that some countries, including Australia, have failed to meet their obligations.
On January 18th, 2002, an optional Protocol was introduced to ban the sale of children for prostitution, adoption, child pornography etc. On February 12th 2002, another optional protocol was introduced to ban the involvement of children in armed conflict; 110 countries signed and 87 ratified this. Those that failed to sign were the countries that had the most serious problems.
The Convention contains four general principles which are formulated in Articles 2, 3, 6 and 12.
Non-discrimination (Article 2): Equal rights and opportunities for boys and girls, children with disabilities, refugees, migrants and children of indigenous or minority groups
Decisions shall involve “the best interests of the child” (Article 3): Child protection authorities, criminal and family courts must make decisions that give precedence to children’s “best interests”. The implementation of this message is a major challenge given that there is no definition of “best interests” and interpretation is highly subjective. Furthermore, decisions are made by professionals whose backgrounds are rarely grounded in child development theory
The right to life, survival and development (Article 6): This includes the right to develop “to the maximum extent possible”. “Develop” in this context includes physical, cognitive and social development and sound mental health
The views of the child shall be heard (Article 12): Signed by 197 countries, UNICEF (2002) claims that the Convention is the most universally accepted human rights instrument in history and the first legally binding international document to incorporate the full range of human rights for children
The Hague Convention on Child Abduction
In 2010, it was reported that increasing numbers of mothers were fleeing overseas to protect their children from abuse and violence by their fathers when Family Courts had failed to protect them. The number of cases appeared to have increased as a result of the priority given to shared parenting.
The aim of the Hague Convention is to return the child to the country of origin. If a child has been taken out of Australia without proper consent, or has not been returned after a contact visit, assistance from the Commonwealth Attorney-General’s Department, or a State Central Authority, can be requested. There are a number of requirements that must be satisfied before a person can make an application for the return of a child. These are:
The child must be in a country that has signed the Convention. These countries are listed on the internet
The applicant must have had “rights of custody” to the child (by law, court order or legal agreement) prior to the removal of that child. If you have parental responsibility for your child, you have “rights of custody” under the Convention
The applicant must have been exercising his or her “rights of custody” to the child (or would have been exercising those rights but for the removal or retention)
The child must have been habitually resident in Australia before the abduction or retention
The applicant must not have consented to the removal/retention of the child
If one of these requirements is not met, the child will not be returned.
The grounds on which an abducting parent may oppose the return of the child are set out in the Family Law (Child Abduction Convention) Regulations (available at www.law.gov.au/childabduction).
These are:
(a) The child has been in Australia for over 12 months and is settled in its new environment
(b) The applicant did not have “rights of custody” or was not exercising those rights at the time of the removal
(c) The applicant consented to or subsequently acquiesced to the removal
(d) The child would be exposed to a grave risk of physical or psychological harm if returned
(e) The child objects to being returned and is mature enough to express that view
(f) The child’s return would be a breach of its fundamental freedoms and human rights
Governments shall take all appropriate measures to discover the whereabouts of a child who has been wrongfully removed or retained and prevent further harm to the child. They shall also institute judicial or administrative proceedings with a view to obtaining the return of the child.
Few parents are aware of the Hague Convention and if they threaten to flee overseas they should be advised of the possible consequences. Not only will they have to abandon their homes, possessions and careers but they will have to change their identities and abandon their extended families given that phone caIls, correspondence and emails can be traced.
The Family Court may give the abandoned parent permission to publicise photographs and information that could lead to the identification of the departed parent and child. When located, abducting parents may find themselves jailed indefinitely in a foreign country while the children may be placed in the care of the state. Some young Australian children have been placed in overseas institutions for prolonged periods of time resulting in mental iIlness. When child abuse is aIleged, the children may be returned to the country of origin accompanied by strangers. In a West Australian case, they were in state care for three years before the judge accepted professional advice and returned them to their mother in Switzerland. It is rare for judges to refuse to return children; one explanation for this being that they do not wish to insult judges overseas by implying that their decision was wrong.
Child protection services in disarray
In the last decade, Australian state and territory governments have commissioned a number of inquiries relating to child protection. A major report released on August 22nd 2002117 showed that statutory child protection services were in disarray, failing to prevent up to one in four abused children from being re-abused. While more and more children are entering state care, there are fewer and fewer foster carers to care for them. No government adequately reimburses carers whose expenses for foster children were said to be on average 52% higher than