By John Tobin. This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
For many of you reading this article the answer to this question may well be obvious – of course children’s rights matter. But is this view universally held within Australia or indeed globally? You may have heard of the “pub test” – a test used to assess the popularity of an idea. Perhaps a more contemporary version of the pub test is the Facebook test. So ask yourself this question – and perhaps put it to the test when you next visit a pub or are on Facebook – do children’s rights matter and, if so, why?
I have a confession to make. When I first studied human rights in the early 90s I didn’t have much time for international human rights law and the treaties like the Convention on the Rights of the Child (“CRC”). I was more interested in what I thought was real law – the kind of law that could be enforced in courts. But when I started practising as a lawyer with the Youth Legal Service at Victoria Legal Aid I saw the weaknesses in our legal system and the way in which justice often seemed to be elusive for so many groups in our community, especially children and young people. So I began looking for a discourse that might inform the way we think about how to create justice in our communities. This search led me to Masters degree in which I studied human rights with a focus on the idea of rights for children.
Over the 15 years since I finished my Masters I have spent most of my time trying to understand what it means for children to have rights and whether a rights-based approach is the best way to create justice for children and young people, to address their health and educational needs and to ensure their physical, mental, social and emotional development. I’m not sure I have the answer to this question but I’d like to share some of my thoughts and reflections in the hope that this might stimulate a broader discussion about the question “do children’s rights matter?”
Four possible justifications
1. The moral case
Most discussions about children’s rights tend to end up with a reference to the CRC. But what is often forgotten and overlooked is that this international legal instrument reflects a set of moral values about how children should be treated by the State. It offers a particular vision of justice for children and the role of states in securing that vision. The moral case for children’s rights is often strengthened by appeals to the idea that rights are inherent and inalienable. This claim is understandable and finds support in the preamble to the CRC.
Personally I am a little bit skeptical about the idea of inherent or inalienable rights. As a political strategy it makes sense – if rights are inherent then their relevance cannot be denied. But who decides which rights are inherent? So I tend to see the rights in an instrument like the CRC as being the product of negotiation and compromise. Importantly this process still produces a set of rights that reflects a particular moral vision of children and the way in which they should be treated. Of course, there are competing moral visions about how to treat children, but this is the vision that states accepted when they ratified the CRC. We could also talk about how states will disagree and differ on what the rights under the CRC mean. But as a minimum they have accepted the idea that children should have rights and that rights for children therefore matter.
2. The legal case
Most advocates of children’s rights use international law, and specifically the CRC, to justify the idea of children’s rights. This makes sense given those states that are a party to the CRC became so voluntarily with the knowledge that this would impose an international legal obligation on them to take measures to perform their obligations under the CRC in good faith. So the legal case for children’s rights is a compelling one until we get to the reality of how the CRC is enforced. The fact is that there is no coercive mechanism under international law to compel a state to comply with its obligations under a treaty like the CRC. Moreover in a country like Australia, the ratification of a treaty has no direct effect in domestic law unless the federal government takes measures to implement the treaty, and to date only elements of the CRC have been enacted into domestic law.
There are however some interesting developments that strengthen the legal case for children’s rights in Australia. The first is that Victoria and the ACT have legislative human rights schemes that recognise rights for children. They do not include all the rights under the CRC but they do give children rights. All public authorities, including teachers, nurses, police and child care workers, must consider and act compatibly with these rights. Second, the federal government has recently created a Parliamentary Joint Committee on Human Rights which will scrutinise all new Bills and Acts against the standards in the seven international human rights treaties, including the CRC, to which Australia is a party. This is a major development and although it falls a long way short of a National Charter of Rights, it does mean that children’s rights must now be considered and taken seriously in the process of federal law-making.
Children’s rights can no longer be dismissed as a marginal consideration reflecting the utopian aspirations of international law.
3. The political case
A few years ago the idea of children’s rights had a relatively marginal role to play in political discourse within Australia. But in the last 12 to 18 months there has been a shift with children’s rights occupying a more prominent place in discussions about social and political discussions concerning children. It is not yet shaping these discussions and I think the welfare principle remains the dominant idea when it comes to thinking about children. But children’s rights certainly matter now more than they have done so in the past. This shift is the result of a number of factors including the role of the National Human Rights Consultation in raising awareness of human rights generally, the recent observations of the Committee on the Rights of the Child for Australia, the advocacy efforts of groups like the National Children’s Rights Taskforce and the recommendations regarding children’s rights that arose under the Universal Periodic Review for Australia in 2011.
Significantly, their recommendations included the creation of a National Children’s Commissioner and to its credit the federal government is in the process of establishing such a position. The role of the Commissioner will be to increase awareness of children’s rights, undertake research in this area, consult with children and scrutinise legislation against the standards under the CRC. This is a major development, which legitimises the place of children’s rights within social debates about matters concerning children. As such, children’s rights can no longer be dismissed as a marginal consideration reflecting the utopian aspirations of international law. They clearly do matter and may well become the dominant standard upon which to assess and critique all matters involving children at the federal level.
4. The instrumental case
Beyond the moral, legal and political case for children’s rights, there is also an instrumental justification for this idea. By instrumental I mean that the adoption of a rights-based approach has the capacity to lead to more effective and sustainable policies in matters concerning children. This understanding of children’s rights contrasts sharply with the view that is it utopian and aspirational. But what I have come to realise after many years is that human rights and children’s rights are far more pragmatic than is often assumed. Subject to a few exceptions, rights are not absolute and there is an acceptance within human rights law that rights can be subject to limitation. The important thing to remember is that when a state seeks to limit the right of the child it has to justify the limitation as being reasonable. When undertaking this assessment of reasonableness a key consideration is evidence to support and justify the actions of a state. As a consequence, a rights-based approach to policy-making demands an evidence-based approach.
The other thing to keep in mind is that the requirement under article 12 of the CRC – that the views of children be taken into account in all matters that affect them – has the capacity to deliver more effective policies concerning children. We tend to take it for granted that adults should participate in decisions that affect their lives but the maxim “children should be seen and not heard” has silenced and excluded children from the decision-making process in matters that affect them. As a consequence, decision makers have for too long denied themselves access to the insights and wisdom that children often have in relation to matters affecting them. A rights-based approach draws on these insights and recognises the value that children’s voices can play in contributing to effective and sustainable policies in matters that affect children.
The maxim “children should be seen and not heard” has silenced and excluded children from the decision-making process in matters that affect them.
I want to end with a story that begins with a riddle – how long does it take to cross the road? The answer is it depends. One of my colleagues who works in early childhood recounts the story of a consultation with some children in a child-care facility. The children said they wanted traffic lights installed on a major road so they could go to the park. The lights were installed and the adults responsible returned to the child-care facility ready to bask in the glow of satisfying the children’s request. But the children remained disappointed. “Why?” the adults asked. And the children explained “When we press the button, the man begins to flash after a few seconds and we get really scared because we have been told we can’t cross the road when the man is flashing”. The problem was, as is often the case in matters involving children, that the adults responsible for installing the lights had viewed the solution through the experience of adults. They had forgotten that little legs can’t walk as fast as big legs.
This is the challenge before us. Increasingly within Australia, children’s rights do matter – morally, legally, politically and instrumentally. But as adults we need to think deeply and carefully about how we enact this idea. We have to be prepared to disenthrall ourselves from the way we see the world as adults and be prepared to accept that children and young people might have an alternative view that may well be more appropriate. We have to ensure that rights don’t just matter to us as we agitate for change and our vision of justice for children. Ultimately rights have to matter to children themselves. We as adults have to ensure that we create ways to let children express their views so they are not only seen but heard.
John Tobin is an Associate Professor at the University of Melbourne Law School. He researches and teaches international law, human rights, children’s rights and public interest lawyering. He has published extensively in the area of human rights, including the recent work The Right to Health in International Law (2011, Oxford) and is also working on a comprehensive commentary to the Convention on the Rights of the Child with Professor Philip Alston. He is a member of several Advisory Committees and working groups for government agencies and NGOs and has provided human rights training and advice to organisations including UNICEF.