Evelyn Tadros spoke with Associate Professor John Tobin from the University of Melbourne Law School about children’s rights and why they matter. John is currently working on producing a comprehensive commentary on the UN Convention on the Rights of the Child.
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Interview with John Tobin transcript:
[RN] Thanks for coming into the studio John.
[John Tobin] Thanks for having me.
Before we ask whether children’s rights matter, can you perhaps tell us briefly about what children’s rights actually mean and how the Convention on the Rights of the Child differs from other human rights instruments such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights?
The first thing is the answer depends on who you ask, so if you spoke to a philosopher or a political scientist, they’d have a very different answer to this question, but I’m a lawyer so that comes with a grain of salt. For me, there’s three ways of thinking about rights; through a moral prism, through a political prism and through legal prism as well. In terms of the moral and political, people have different views about what children’s rights actually might mean. Given my legal background, I tend to see and prefer the idea of legal rights because they’re agreed upon, so then you say which jurisdiction are you talking about; international, domestic or regional. In terms of international law, of course, the focus there is the Convention on the Rights of the Child – or the CRC. Keep in mind also that we’ve got rights included in the Victorian Charter of Human Rights and Responsibilities Act as well, and then if you’re looking at regional bodies, you’ll see rights for children are the instruments too that are in the African Convention on the Rights and Welfare of the Child. There’s a whole range of different answers, and as I said, I like the legal response but I’m aware that other people might have a different view on that as well.
And what are some of the provisions in CROC that are actually classified as children’s rights?
The first point to draw out here is that if you go to the other rights instruments, like the ICCPR, those of course contain rights of children as well, they’re human beings and they get those rights also. But the Convention on the Rights of the Child I suppose is a special instrument drafted especially with children in mind and it’s important to get a sense of the history of that. I mean, if you go back in time, in fact, the first international human rights document was in fact the Declaration of the Rights of the Child in 1929, which people sort of forget about. Eglantine Jeb, who’s the founder of Save the Children, drafted that document outside Geneva on the hill looking down in the aftermath of World War I, looking at the way in which children had been abused and neglected, and trying to think about how we might, as a society, respond to their needs and their interests. Then we have the Declaration of Human Rights adopted in the ‘40s, and then post-that there was discussion then at the time about a convention on the rights of the child and in fact that let to a declaration in ’59 and finally, in 1989 we had the adoption of the Convention on the Rights of the Child. It’s interesting that that document itself was initiated by Poland, not a Western country at the time, and that led the challenge around children’s rights. The question is why the treaty for kids and at the time, people were questioning that as well within the United Nations itself. People were saying, look, the real thing about looking after children is delivering services on the ground, not making more international treaties. For better or worse, we committed ourselves to this process of drafting a treaty, which of course is the CRC. Now, in terms of its content, these things aren’t easy to read but it’s worth going through to get a sense of just what’s included. It covers the broadest range of rights of any of the international treaties, so you’ve got both civil and political rights on the one hand, but also economic, social and cultural rights as well, so things like freedom of speech for children but also things like access to education and health. There’s a whole other range of special rights in there too, around things like survival and development that weren’t included in other instruments. It’s a very, very diverse instrument and as I said, it’s worth reading – available on line of course – and you just get sense of the vision that was seen for children, how broad it is.
Well just talking about the vision and I suppose philosophy of children, it is a fairly novel concept that children are actually autonomous beings from their parents and carers who actually have legal rights. Now, as you probably know, the concept that children are under the control of their parents and carers dates back to Roman law, and I’m sure we’ve all heard the saying, children should be seen and not heard. What is the current philosophy of children that actually underpins CROC and how did that develop?
Really good question and I’m doing a bit of work on this right now myself. So you sort of see the evolution of children’s rights as having three stages, so going back in time, you’re absolutely right, children were very much property in the same way that women were property as well … The idea that we should own kids wasn’t a great way about doing things and the adoption of the welfare based approach, what we might say is a best interest principle, which emerged around the end of the 19th/beginning of the 20th century, largely in response to the abuses being carried out against children in a number of contexts within the home but also in terms of what was happening in some of the mines during the Industrial Revolution. We sort of then shifted towards this welfare based approach, which gave a really different way of doing things for children; they had an identity and they also invoked the idea that the state had a right to support children when things didn’t work within the home. That issue itself then, that model itself, became highly problematic I suppose around the ‘50s and ‘60s, and that was the result of a few developments which now inform the current understanding of the rights of the child and kids as rights bearers. I suppose I would break it down into three sources; one is a sort of medical development, one’s a political and one’s a legal development. Medically, we’re starting to realise a couple of things; one, that children when we actually start speaking to them have some pretty insightful ideas, they’re not to be not seen or not heard. In fact, when we start speaking to young people their insights are actually quite revealing, so that was the first thing. The second thing was a study by a guy called Kemp, a very famous study, about the incidence of emergency admissions of young people attending at hospitals with head injuries and what have you as well. There was the assumption that there’d been a fall, that kids had fallen over as they do, but in fact we looked a bit more closely and we found out of course that in fact many of those injuries were in fact inflicted by parents. So the idea that the home was this safe place for children was being challenged a bit by those sort of results, so you’ve got the medical developments saying, look, kids are actually groups of individuals who have things that are worth hearing and we can’t always assume that the family is the safest place to be. That’s the first development, the second development was political, so if you think about what’s happening throughout the ‘50s and ‘60s, you have in America but also in the UK, we have the civil rights movement and of course we have feminism as well emerging, responding to the oppression of both women and black Americans as well. With that, then we saw the development of, well hang on, what about kids? Aren’t they a group that’s also being marginalised and oppressed as well? So politically there’s a movement to start agitating and using the language of rights to empower young people as well. So that’s the second development, the third development is the idea of the law, the law did have a useful role to play here and there’s a couple of major cases that came out of both the American jurisdictions and also the English. The most famous I suppose is the case of Gillick, which many people will have heard of, which is the decision in the ‘80s in the UK House of Lords about access to information concerning contraception for a young girl in circumstances where her mother had disapproved of that. That idea started to then develop this idea of children as having the capacity for autonomy. What’s really important to understand though and is sometimes forgotten about when we talk about kids rights is that the model under the Convention doesn’t see children as being fully autonomous from birth. In fact, it focuses on the idea of evolving autonomy, which is quite unique, and I like this idea because you sort of see the child as being a process where we start clearly as being dependent on our parents, obviously a newborn baby isn’t able to do things for him or herself, but over time, as you know in your own experience and as the listeners will understand, is that as you get older, as you get into your teenage years, you start to develop your own ideas and insights. What the Convention says is that at that point in time, parents are supposed to always give guidance and assistance to children but as the autonomy of a child evolves, we must respect their developing autonomy. That’s, I think, a really interesting development. I think we’re still struggling with how we do it in practice, but the model of rights under the convention sees children as being not these passive recipients of welfare, not objects we act on but in fact active participants with expertise and insights that you have to respect as well. It’s kind of a nice model, it’s challenging but it’s nice.
It is fairly interesting, that view of the child, because I mean this is an international convention and it has been signed by many, many countries, but can you really say that it’s a view of children that’s universally shared in different cultures? How does that play out?
This is the great challenge, isn’t it? I mean, if you looked at the Convention on the Rights of the Child and as I said, it’s worth looking at because it is in fact adopted not by NGOs, not by leftie/greenie/pinko [groups] whatever it might be, it’s actually embraced by states. States have ratified this instrument and they agreed to these terms and this is a really progressive model about how we engage with young people and across the spectrum, it’s not just on issues around evolving autonomy, it’s about common responsibilities of parenting, its about right to play; really progressive ideas. The question becomes well is this really universal and let’s be honest here, if you’re trying to give the orthodox legal answer you’d say well look, it’s a binding instrument therefore all states are bound, they’ve agreed to it. But we know practice that of course many states sign up to these treaties in the knowledge that they’re not actually bound. So you make a really important point, there’s a big debate internationally about whether in fact the notion of the child under the Convention is in fact universal construction of childhood and whether in fact we’ve got a very Western understanding of childhood. I think that’s opened the discussion but what we should remember there as well is that it’s easy to use that argument but if you went to other parts of the world in developing countries, Africa being one example, there is a dedicated regional African Charter on the Rights and Welfare of the Child, they’ve embraced these values so even in Africa, they see these ideas as being really significant. If you went to South Africa, which is a jurisdiction which has had a history of abuse and neglect, they have a very, very strong commitment to rights, much stronger than we’ve ever seen in a country like Australia. I think you’re right, we’ve got to concede that there are debates around the universalism of rights and the construction of childhood, but we shouldn’t assume that we have the answers in the Western states. In fact, looking overseas we often find a much greater commitment to children, particularly in areas around their autonomy. One of my students went to Bangladesh recently and I was staggered by the level of respect of children’s voices that happens over there compared to what happens here. They’re really engaged, and keep in mind I suppose that those population groups are bigger and have a bigger proportion of children, but children’s voices are being heard in ways we hadn’t thought about twenty years ago.
Well let’s go to Australia, now as some of our listeners may be aware, Australia was actually one of the first countries to ratify the Convention in December 1990, but it hasn’t actually been implemented in domestic law as such, and from my research I understand that the approach is to ensure that more domestic legislation, policies and practice comply with the Convention, rather than actually implementing it per se. What type of influence does CROC have on Australia’s laws and the development of policy?
A really good question again. I suppose the answer is that it depends on who you ask and what jurisdiction you work in. To start with the principle, the principle is yes, when we ratify these treaties the Executive of Australia signs up to them as a matter of national law but that’s sort of the legal/technical stuff. The practical reality is that those things aren’t binding in domestic law until we actually pass legislation to enact them. Then the question becomes, how have we been using the CRC over the last 20 – 22 years, and the answer is that we sort of have to look to different areas where we’ve seen the use of the CRC. We haven’t seen it integrated in a comprehensive way at all today, and that’s disappointing I suppose, but we have seen over the last five to ten years a number of subtle developments taking place in areas where you wouldn’t think we would see the influence of the CRC. So I can give you one, which you might think about, which is the curriculum development plans for early childhood both federally and locally in Victoria as well. That’s not an area where you would obviously think, oh, Convention on the Rights of the Child, you would think of your refugee children, you would think of Indigenous children, which are sort of big areas but if you go to both those documents, you see in fact that the CRC is seen as a fundamental principle and the idea of children as rights bearers, participatory rights in fact informs upon the way in which early childhood education is supposed to be drafted. Take another example, even Melbourne City Council; again, you wouldn’t think that was a place where kids’ rights would obviously have a role to play but in fact they do and they’ve been embraced quite strongly and I think are a really leading example of how to do kids’ rights. Over the last few years, the MCC has been developing a children’s plan and as part of it they’ve really engaged with young people and been guided by the Convention on the Rights of the Child participation and if you read their children’s plan and go online again you’ll see that part of that is to champion the idea of children’s rights and to base all policies concerning children on the Convention on the Rights of the Child. So significant things happening that you would expect, the obvious ones that we see in the area of family law, they’ve just recently amended the Family Law Act to make it objective of that jurisdiction to act compatibly with the CRC and you see it in Victoria very distinctly with the juvenile justice system. Our system is heavily influenced by the model of juvenile justice under the Convention, which is about rehabilitation not retribution and what’s startling there, keeping in mind the law and order push that you often see within government, is that if you adopt that rehabilitative model, you have a much, much lower rate of recidivism and a much, much lower rate of incarceration. My understanding is that in fact the rates of incarceration for juveniles in Victoria are the lowest in Australia and some of the lowest in the world. That’s largely because we’ve taken and adopted that rights based model and we’ve been informed by the principles under the CRC. The answer is it depends on where you’re looking, but there are some really interesting spaces where it’s having influence which you wouldn’t expect which is kind of exciting.
What efforts are actually being made to educate children about their rights? I mean, there’s no point us talking about it unless they actually know and feel empowered by them?
This is a really key issue, isn’t it? If you go to the observations of the Committee on the Rights of the Child, one of the things they said was and one of the big issues in Australia was lack of awareness of children’s rights and human rights more generally. That was something of course that the Human Rights Consultation also identified a couple of years ago, so what’s been happening? A few things, I think first of all you’ve got to see rights within the Australian context, we’re a bit rights sceptic, a bit rights resistant as a culture for a whole range of reasons that’s partly a misunderstanding. But we’ve seen in the last few years a commitment to try to increase awareness of children’s rights. I’ll just give one example; the Victorian Equal Opportunities and Rights Commission is really committed, and was really committed in the early stages of the Victorian Charter, to raising awareness of children’s rights and doing some stuff about actually educating young people and hearing their voices about what rights meant for them as well. The answer to your question is that there’s a long way to go, there are pockets of really good change and one thing that’s happening with the Australian Human Rights Commission is about how we’re going to integrate education about human rights generally, including about children’s rights, into the national curriculum. That, I think, would be a significant development. If we can start actually integrating rights into the way in which we do secondary school and primary school as well, then we start to expose young people to the idea of children’s rights and expose young people to the idea about their voices being heard. Certainly, when I speak to young people, the idea of their voices being heard and being listened to becomes really critical and is shaping a whole range of things which is often overlooked as well.
For the past 15 years, you’ve actually been really thinking about 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. Can you tell us a bit about that and what your findings are after this research?
This idea of a rights based approach is something that’s filtering right through the entire international sector and has now transited right into the domestic sector as well. What we’re saying is when you undertake any policy in any area, it’s informed by human rights. Not so much the normative content, the law, but the process that you use to actually generate policies and outcomes. For me, again, a lawyer by training, having practiced in juvenile justice, having worked with young people both in Africa and America and Australia at a whole range of levels, you’re always looking for ways and models of thought that might actually help to create systems and structures to empower those groups. I suppose I’ve got a leaning towards rights and human rights, I’m critical of some things that we can achieve with that model, but a rights based approach is basically saying, we take an issue and we say, how can we conceive that problem, do we see it as being a welfare response, a wellbeing response, an issue around economics? Or do we say it’s about the way in which children’s rights are engaged, how are rights affected by things, whether its advertising, whether it’s abuse, whether its violence, all those things. You’re starting to say rights are engaged and once they’re engaged, what are the obligations of states to start responding to address those potential infringements of children’s rights? Once you create that, you’re saying, once we’ve got the problem, how do we create a solution? So again we’re saying, how we can start to use human rights to inform that response, what sort of rights will allow us to develop a response, a program and a policy and that takes you to participation. So you’re saying, by Article 12 we have to not just let but actually take measures to facilitate children’s involvement in the process of developing processes for them. They don’t have to determine the outcomes, but they certainly have an influence over what takes place. So that then becomes a process of developing policies and systems and structures that actually respond to children’s voices and needs, also informed by evidence and adults, and then the final stage is once you’ve sort of got those systems in place, you start to evaluate and monitor it again by going back to young people; how’s it affecting you, how’s it working? For me, this rights based approach gives you a model and gives you some standards which are agreed upon. We went into areas like public health; issues of equity and wellbeing are quite big themes there as well. I’m always asking, how do you define equity, how do you define wellbeing? Rights, we’ve got instruments that are agreed upon nationally and internationally, and they can inform the way we do things as well.
Can you perhaps provide the audience with the practical example of where a rights based approach to children’s issues would actually make a big difference?
There’s so many and some of these are controversial, but I’ll go back to that children’s plan again. You see Melbourne City Council is trying to identify how we as a council can better meet the needs of young people. That involves speaking with younger people, as I said, and then identifying what their priorities were. So you find out what actually affects children and it’s things around being safe in the streets, it’s about then, how do you do that? The children said we want more street lighting; it’s about them having safer access to parks, so how do you do that? You speak to the children about having appropriate crossings and support systems. It’s about them having access to play with their friends, how you create parks and facilities, and you start to develop a whole system and structure of things that actually aren’t just good for children but also really good for community. What struck me about that when I was recently in New York was how we integrated children’s spaces into adult spaces and how that develops community around the way people do things. There’s the argument that we make when it comes to children and planning with local councils and that is that children’s rights are actually good for everyone’s rights because by addressing their rights we also bring in their parents’ rights and community rights as well. That’s one example, there’s thousands of course but time doesn’t permit us to go down those tracks.
Let’s look at the UN report, the United Nations has just released its fifth report on Australia’s compliance with CROC and it’s fairly comprehensive. What was your view of the report when it came out a month ago?
A lot of the issues that the Committee identifies are things that we would expect the Committee to identify and were in fact highlighted by a lot of the advocacy domestically. I suppose the thing to take away from this is that we know within Australia most of the issues concerning children, but what this does is it gives us now an international mechanism to support claims and advocacy within government and towards government to try and prioritise areas to respond for children. So just to sort of flag some of the bigger areas; lack of awareness of children’s rights, racial discrimination as you’d expect, Indigenous children, refugee children. Things that might make people think twice, like participation, especially in schools around curriculum design, now that’s a really challenging area about getting kids involved in the way we actually run our schools. Rates of STDs and teenage pregnancy, that again is really challenging around how we educate young people around their sexuality, their sexual orientation and then making sure when they engage in sexual relations that they’re minimising their chances of STDs. They’re controversial issues but we know in terms of evidence that if we don’t do that, the consequences are quite serious. School bullying, Indigenous children of course and then one of the things we need to be working on of course is mental health and the other area that struck me was the divide between rural and urban areas, access to services as well. It’s unbelievably comprehensive, but as I said, it gives us a template now to sort of advocate and lobby with government to try to respond to issues we’re already aware of as well.
So what actually happens now? They’ve released a report, they’ve made a lot of recommendations. Is there any kind of mandatory system for the government to actually take this into account and do something?
Look, that’s a really good question. If you’re in one of my classes, we have a long talk about how effective these things actually are. Let’s be honest about this; the answer is nothing could happen. The government, if it wants to, could ignore this and if you went globally and looked at what states do, a lot of states ignore these processes. Historically, Australia’s had a mixed response to these reports. So the answer really depends and it depends on a few key things. Number one for me is how seriously the government takes its responsibility towards responding to this and I think there are good signs that they’re already thinking about kids rights, the establishment of a National Commissioner means we might have an avenue there. The second is the way in which civil society engages with this as well. As I said before, for me the advantage of this is that gives us now a document to say, look, these things are taken seriously, not just by us domestically but also internationally as well. So civil society can be using this to lobby and advocate. I suppose the other thing as well is about the National Commissioner for Children, whether that role and that person can actually start using this document as a tool to prioritise responses. The answer is that it depends, there’s no formal system; we can ignore it if we want to as a country but I think that a mature, well resourced country committed to human rights we should take the appropriate steps.
Well we hope that they do. Thank you so much John for speaking to us today on Right Now Radio. That was John Tobin, Associate Professor from the Melbourne Uni Law School talking to us about children’s rights and why they matter.