Helen Bayes
Vice-President for Australasia and North America National-Coordinator, Australian
Section
The slogan “Children First” has been popular among children’s rights advocates in Australia and other countries. The phrase resonates with the cry “The ship is sinking -
women and children first!” - a social rule designed to promote survival, but not human rights! It is not a slogan that I favour. It conveys an image of competition, of being relegated
to second and third place if you are not a child. For many it would connect with the inner fear of coming last.
Human rights are about being equal among equals. Children must simply be recognised as holders of human rights along with all others, and be accorded the individual respect and attention that
goes with these rights. It is not a competition and there is no first, second or last. It is about basic standards of decency - between people and between the government and the people -
including, of course, children.
The Convention on the Rights of the Child defines the balance that must be achieved between the freedoms and responsibilities of parenting (and similar forms of personal caring for children) and the
duties and powers of the State, in ensuring that all children enjoy their human rights.
The Preamble makes it clear that the Convention sees the family as “the natural environment for the growth and well-being of all its members and particularly children.” It also
acknowledges that all family members are entitled to growth and development and that the family has responsibilities much wider than child-rearing. However, it sets the scene for children:
respect for the child’s family is fundamental to respecting the child’s rights.
The articles themselves centre their attention on the role of parents and legal guardians. Other relationships - siblings, grandparents, aunties and uncles - are not named. The Convention
has been criticised for not recognising more fully the value of extended family members in a child’s life. For instance, it does not offer guidance on the way in which competing claims to
care for a child (eg. between a parent and a grandparent) should be handled to protect the best interests of the child. One is simply left to work it out using the guidance of all the articles
to assess the pros and cons of each available option.
Neither does the Convention offer a definition of how far the ‘family’ extends. Does it include cousins and step-relations? What about biological relatives whose legal
responsibility for a child has been removed by the courts? Such knotty issues are left to each government, or each court, to work out who can claim to be ‘family’ and who
cannot. In doing so, it should refer to those local customs and social values which are in keeping with the principles in the Convention.
Despite this vagueness, members of the ‘extended family’ are recognised as a rightful source of direction and guidance (article 5), an essential part of identity (article 8), and to have
rightful claims to information about or contact with a child who has been removed (article 9), detained (article 37) or become separated (article 9, 22). Clearly the closer the relationship the
more important it is and the more weight it carries. This would be true of blood relatives of an adopted child, if the adoptive parents and family were not available or not providing effective
care.
At this point the whole discussion has become so provisonal and so abstract as to be hard to follow. The scenarios are becoming dark and alarming! However two torchbearing principles can
show us the way: respecting the child’s point of view and opinions, and striving to meet the child’s best interests.
This is as far as we can go with the extended family. But what does the convention say about the rights and freedoms of parents? It says a lot! Over half of the substantive articles, ie
21 out of 40, identify the central place of parents and specify the protection and support that this relationship must have.
Parents are the primary carers of children (article 7, 18). They have a right to rear their child and provide the conditions of living necessary for the child’s
development (article 26). Parents have rights and duties to provide direction and guidance to their children in the exercise of his or her rights (article 5) and in the child’s
thinking about matters of conscience and religion (article 14). They are expected to take account of the child’s evolving capacities, age and maturity in providing direction and guidance
(article 5).
They are entitled to express their views about the child’s best interests to courts and other authorities, when decisions are being made that affect the child (Article 9, 40). They are to
be reunited with their child and remain in contact with him/her in any circumstances of separation, unless it is against the child’s best interests (Article 9, 22, 37).
On the other hand, the State must assist parents in promoting their child’s rights and best interests and must not interfere with parents’ performance of their
responsibilities unless it is to protect the child’s rights because the parents have failed to do so (Article 3). It must also ensure that there is no discrimination against a child
on basis of his/her parents’ characteristics (Article 2).
It must provide material assistance to enable parents to meet their children’s basic needs, particularly in regard to nutrition, clothing and housing (article 27) and give them guidance on
preventive health care (article 24). It must give particular support to children with disabilities (article 23). The state also has a duty to obtain financial maintenance from parents who
are living separately from their child(ren) (article 27).
In education systems, children must be educated in a manner that respects parents, family origins and culture (article 29).
Indeed, there is only one situation in which the State has an unequivocal duty to intervene in families, and that is where the child is not being effectively protected from violence, injury, abuse,
neglect, maltreatment or exploitation (article 19). No-one argues against that.
Controversies focussing on the participation rights of children have raged in parts of Australia, the USA, and some other countries of the Western World. Critics of the Convention usually
recognise the value of the protection rights in CROC but ignore the other parental rights described above, because they do not challenge parental roles. It suits their argument to pick out two
or three rights which do empower children and then dishonestly sum up the Convention as anti-parent.
This has been recognised by the Joint Parliamentary Committee on Treaties1 which said “...a number of submissions ... were concerned that the Convention may be implemented in a manner which does not support the family. Of particular concern were the implications for Australian families which may arise from various interpretations of a number of articles, particularly Articles 12-16.” The arguments are well-summarised in Chapter 1 of the Report of the Treaties Committee but it is important to note that the Treaties Committee concluded “We believe that more should be done to alleviate parents’ concerns that the Convention could be intepreted in a manner to impact significantly on the day to day activities within the family unit.”2
This article is a response to that need. I have demonstrated that CROC is not only about promoting children’s rights, but also about the rights of families and the rights of parents, which
flow from the best interests of children. Most importantly CROC empowers parents to advocate for their children, to demand appropriate standards of care in schools, care centres, recreation
centres, clubs and any other setting you care to name. Parents are the best advocates for children, and the powerful message of CROC is: they too must be heard.
Government policy for the family will be more clear, more powerful and better structured if it uses the Convention on the Rights of the Child as one of its foundations. This is why a National
Commissioner for Children is so important - to monitor the status of children and promote their rights - in the setting of their family and in the wider community. The rights and needs of
parents and families will be better served when the Government effectively directs adequate resources to meeting the full raft of children’s rights. And the whole community will benefit
immensely from that.
HB
1 Executive Summary of the 17th Report of the Joint Standing Committee on Treaties on the Convention on the Rights of the Child, Parliament of Australia, Canberra, August 1998, page 5.
2 op cit page 9
|
