Tag Archives: Convention on the Rights of the Child

A voice for the children, by Gerard

2 Jul

Guest post today by the lovely Gerard Oosterman who wonders why children don’t have more say in their future when a family breaks up.

Children should be seen but not heard?

In Australian Family Court disputes it is often the children who miss out on being heard by a Federal Judge or Magistrate. In most cases, even though the judge or magistrate has the power to hear the children, it is rarely exercised. It is usually the Independent Children’s Lawyer who represents the child/children/ (ICL).

In Germany and many other countries, the Family Court Judges always hear the child. There is a growing understanding of the importance of listening to the children involved. It is the child, more than anyone else, who will have to live with what the Court decides.

While Federal Judges and Magistrates can hear the children in Court, a survey has shown most decline the opportunity and rely on the ICL and other ‘experts’ for advice during the procedures. The cases coming before the Family Courts deal with property and access to children. The fact of Court action is generally a sign that the parents haven’t been able to amicably deal with the separation. Access rights to children are often just as heatedly fought over as the division of property.

The Family Court in all cases decides what is ‘best for the children.’ It seems ironic that in Australia the children are not given the opportunity to bring their wishes before the Court, as they are in many European countries that are signatories to the Convention on the Rights of the Child (UNCRC).

While it is unsatisfactory to say that children should all have the same rights as autonomous adults, including the rights of freedom of expression and the freedom of association and all other rights that adults own, it is equally unsatisfactory and unjust to say that children have no rights of this kind and that their rights in Court matters are irrelevant to the task of adults determining and deciding what is best. This seems to ignore the claim of children to be treated with respect and dignity instead of, as is often the case, fought over as objects

As Australia has been a signatory to the Convention since 1990, how do we explain why children are not heard in front of a Court and allowed to express their wishes?

Often the reason given is the fear of parentification of the child. This term describes a situation in which a role reversal occurs and children assume the role of parent to protect the adult. Asking a child to decide which parent she or he prefers to spend their time with can cause emotional turmoil.

In Family Court cases it is not unusual that one or both parents are deemed to have put the child in this position to try to enhance the prospect of getting more time with the child than the other parent. The child is expected to act as the parent to their own parent and sometimes over other siblings as well. The issue is very complicated because in some cases one of the parents might indeed be totally unsuitable as parent or as the primary caretaker.

However, parentification together with alienation theories about children in relationships remains highly controversial amongst psychologists, psychiatrists and therapists, who claim they are often simplistic or erroneous.

In the Family Courts it is the job of the ICL to sort the wheat from the chaff and investigate to get to the bottom of the issue if ‘parentification’ of the child is occurring. The Court appointed lawyer acting for the child will then call in an ‘expert’ in those matters. Both parents are to meet up with the ‘expert’ who is often a qualified child psychologist or therapist. Anyone who ever had dealings with Courts knows that at every turn huge amounts of money is spent. The ICL with the help of the Expert’s report weigh heavily in the final decision-making by the Judge or Magistrate.

The report by the children’s expert is drawn up as a result of a few hours or a day spent by both the parents and the children with the expert. Sometimes first in each other’s company then separately and then the children on their own. After parents as applicant and respondent  have filed into Courts numerous times for ‘mentioning’ and ‘final hearings’ the case is put and then includes the affidavits, responses and reports by all the parties’ lawyers including the ICL.

But, when all the lengthy proceedings come to an end, there is this glaring omission. The fundamental rights of every person including children to be heard in Court are totally ignored.

The ICL and other child experts cannot help but put in their own submissions and even if based on the best of intentions and the best advice given, it is second-hand and not direct. How is it possible that the ‘best interest of the child’ excludes this fundamental right?

One reason given is the perceived intimidation of the Court system with its tradition of the dreaded three knocks on the door and ‘all rise in Court’, the bowing of all and then the entrance of the black gowned judge or magistrate on the raised podium. The procedures are often seen as unfriendly if not silly as well. Surely the system can change when children are involved and become child friendly. I could ask, why not change it even for adults?

We love adhering to convention, but what about the children?

Gerard is an artist, writer and farmer. He blogs at Oosterman Treats Blog

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Gillard’s world first: state sanctioned trade of children

14 Jun

The Gillard government’s deal with Malaysia on asylum seekers has taken yet another turn. Immigration Minister Chris Bowen has now conceded that he will decide whether or not to send unaccompanied children to that country’s refugee camps on a “case by case” basis. In coming to this decision he has dramatically shifted from his original position that all unaccompanied children who arrive here by boat will be sent on to Malaysia.

This backflip raises many questions, of which two are particularly pressing. The first is, what criteria will the Gillard government use to determine which unaccompanied children to export to Malaysia, and which to allow access to refugee processing in Australia?

In the Malaysian camps unaccompanied children are at risk of physical, sexual, psychological, and emotional abuse leading to long-term psychological and physical ill health. They are at risk of exploitation of all kinds, as well as inadequate nutrition, and inadequate education. In short, they are at risk of a complete loss of childhood, to which the UNHCR Convention on the Rights of the Child (yes, we signed that too) states all children are entitled.

We have failed to protect children in Australian detention centres from extensive and long-term harm. How then do we propose to exert any influence over their treatment in another sovereign state?

We need to know as a matter of urgency just what guidelines the Gillard government intends to use to enable it to judge which unaccompanied child is suitable for exposure to these risks in Malaysia, and which child is not.

Will there be a checklist test of a child’s resilience? How has this minor withstood the traumas he or she has thus far endured? Reasonably well? OK, off to Malaysia.

Is the assessment to be left to officials in the Department of Immigration? Or does the government intent to employ experts in child psychology and psychiatry who will present informed opinion on which child has a better chance of survival in Malaysia, and which child does not? I use “survival” in a broad sense, not necessarily referring to their death, though that possibility cannot be discounted.

Protocols such as the Gillard government needs now, will create a groundbreaking global benchmark for the establishment of innovatory assessment processes for child asylum seekers who arrive unaccompanied in Western countries. The processes will necessarily be designed to determine the type of personality unaccompanied minors must have, in order to be judged capable of surviving the dangers of camps in countries that are not signatories to any human rights conventions. As far as I am aware, no such assessment process of lone children seeking asylum exists anywhere else in the world.

The second pressing matter we need to consider is that Chris Bowen is the legal guardian of all unaccompanied minors who arrive here seeking asylum. The welfare of children in his care must be his first priority if he is to fulfill the legal, ethical and moral requirements of guardianship.

How would we deal with any other legal guardian who subjected his or her charges to risks of this magnitude? We would find it entirely unacceptable that a guardian would consider putting any child in his or her care on a continuum of risk that includes rape, exploitation, hunger and death. We would likely incarcerate such a guardian. We certainly would not allow them to continue to be responsible for children who have no one else to take care of their wellbeing.

Does Bowen therefore have a conflict of interest in these circumstances?  If his duty is first towards the vulnerable children in his care, might this not conflict with Gillard’s demands that he send any of these children to Malaysia?

Bowen has been quick to point out that the numbers involved are few. We aren’t looking at sending very many unaccompanied children to fend for themselves in Malaysia. This situation may change with the government’s recent decision. Denied income from adult cargo, smugglers may well resort to moving boatloads of minors, with the selling point that they do have a chance to stay in this country and it’s well worth the risk.

When Scott Morrison complained about the burial of drowned asylum seekers and their babies it looked as if we had reached an ethical and moral nadir in Australian politics. Now the Gillard government has again shifted the goalposts in the game to see who can stop the boats. Nauru is looking like the lesser of two evils.

What does it say about the character, competence and complete moral turpitude of our politicians, that the best choice they can come up in this situation has to be between two evils?


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The vulnerability of children

7 Jun

Come forward to childhood, and do not despise it because it is small and it is little

As American philosopher and academic Judith Butler puts it in her book, Precarious Life: the Powers of Mourning and Violence, the condition of childhood is “a condition of being laid bare from the start.” In childhood, she continues, we inhabit “the condition of primary vulnerability…a primary helplessness and need, one to which any society must attend.”

The face of the child makes a powerful moral claim on us, none more so than the face of the suffering child. Children have no capacity to represent themselves. If we are unable to represent ourselves, as children or in adulthood, we “run a greater risk of being treated as less than human” Butler observes.

Vulnerability is an inescapable fact of existence, particularly in childhood, and a child alone, without country, home, family and protectors, is in a state of extreme vulnerability. That vulnerability can be respected, exploited, or denied by adults. In situations where it is exploited and/or denied the child is radically objectified, and constructed as less than human.

 The child seeking asylum is a child who is stateless and without rights. As Hannah Arendt observed, rightlessness follows from statelessness. Our human rights are dependent upon being part of a community that enacts these rights on our behalf, and offers a framework in which these rights can be realised. Refugee children have lost their place in the world: they do not belong to a political community from which they are able to claim the right to human rights. UN Conventions such as The Rights of the Child supposedly offer avenues for the protection of such children. But for these to have any meaning, signatory countries must be trustworthy enough to abide by our undertakings.

When signatory countries like Australia do not honour the rights the Conventions bestow on a stateless child, when we disregard our serious obligations, refugee children remain stateless, rightless, lost and utterly vulnerable.

As long as we do not grant the child’s dignity and sovereignty by honouring our commitment to the Convention, we continue to perceive and treat refugee children as objects.

We are defined by where we belong, who cares about us, and our fundamental rights as human beings. The profound sense of violation reported by survivors of childhood abuse is often described as soul damage. Perhaps it’s also realistic to think of that profound damage as the destruction and or denial of the rights that help to construct us as human, in the eyes of others, and of ourselves.

As survivors will agree, the journey back from that rightless position to the point where one can come to believe that one has even the right to have rights, is a journey of hardship, and struggle. Many do not make it through. In sending unaccompanied refugee children to a country that does not honour the UN Convention on the Rights of the Child we are condemning them to a rightless life, and denying them an opportunity that could be provided in this country for healing, and a productive adulthood.

Yesterday I heard a talking head comment that if the government allows any children to stay here, rather than send all of them to Malaysia, people smugglers will seize this opportunity to load their boats with children. Yes, that’s probably true. But, he went on, if there should be another Christmas Island tragedy, and a boatload of children are drowned, this will be a political catastrophe. Can’t argue with that.

But what struck me about his observations was that it’s perfectly acceptable in Australian public discourse for anything to do with unaccompanied child asylum seekers, or adults, to be framed in purely political terms. Not in human terms, involving compassion, understanding, desire to assist, responsibility or even concern for the welfare of kids. The only thing that counts is how events affect politicians and their party’s future.

We need no more proof that Australian politicians, echoing the sentiments of many in their electorates, do not see refugee children as human beings. They are objects, to be palmed off to another country as quickly as possible in an effort to minimize political fall out.

The moral dilemma any politicians with integrity face is that to demand that these children be treated as human as the rest of us means going against the tide, and possibly losing their jobs. There’s no room for respecting refugee children’s humanity, human rights, and human vulnerability, in Australia today. Our society is not one that, as Butler puts it, will attend to the child’s primary helplessness and need.

Better to be a cow.

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