Antrum, Michael --- "Rubik's Cube - Children and the Legal Process" [1998] ALRCRefJl 13; (1998) 72 Australian Law Reform Commission Reform Journal 59

• Reform Issue 72 Autumn 1998

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Reform Issue 72 Autumn 1998

This article appeared on pages 59– 62 of the original journal.

Rubik’s Cube: Children and the legal process

Michael Antrum* reviews the report ‘Seen and heard: priority for children in the legal process’.

Bitter and twisted. That’s probably how I arrived at the National Children’s and Youth Law Centre (NCYLC). A burning knot of rage and frustration, smouldering away since 1978. It was in that year, as a sixth grade pupil at a government public school in north-west Sydney, that I was politicised. Our new headmaster brought with him a policy of corporal punishment and I was caned for something I didn’t do, wasn’t even in the vicinity of, and wouldn’t have done even if I had had the opportunity.

As a middle class child with para-baby boomer parents who had never hit me, receiving the cane was a frightening experience. I never uttered a word in my defence, never stated my innocence, was never given the opportunity to reply, only told to stand and watch carefully as this so-called ‘educator’ strode maniacally to his wardrobe where he kept his cane. He knew exactly where it was. Rough justice indeed. (For those of you who remain committed to the idea that State-sanctioned violence is good for children - this report is not for you.)

My anger at the infliction of pain subsided, but I could never quite erase the bad taste of unfairness about it all. And so, I find myself at the National Children’s and Youth Law Centre reviewing the ALRC/ HREOC report Seen and heard: priority for children in the legal process. I can’t see my old headmaster named, pity, but I do hope he reads the report before he assaults another young person.

I should state that the NCYLC was a consultant to the report. With that out of the way, the report stands alone as a unique and comprehensive review of legal and administrative processes as they apply to children, and the bearer of 286 commonsense recommendations that, if implemented, would significantly improve the status of all children in Australia.

It is interesting to compare this report with the Wood Royal Commission report. The former relies in part on advocacy and the ability of children to speak up for themselves whereas the Royal Commission, perhaps understandably given its narrow focus, concentrates on screening, protection and a more paternal model of child care. No prizes for guessing which model is more efficient, more cost-effective and more sustainable.

There have been suggestions at upper levels of government that the Commissions went outside their brief with this report. Fiddlesticks. If you are to inquire into a process, you must be aware that every process has a beginning and an ending. What the Commissions did, with success, was to find those beginnings and those endings. Inevitably, very few Australian institutions escape this ambit and this is a report that should break out of the briefcases of politicians and academics and find its way into boardrooms, classrooms, trade union meetings and the home.

The whole hog vs political realism

Before looking at some of these recommendations, the NCYLC was disappointed that the Commissions did not ‘go the whole hog’ and call for a Federal Commissioner for Children, opting instead for an Office for Children (OFC). I sense a degree of political realism in this recommendation, but it could just as easily have been mooted as the preferred option with the Office for Children proposed as the next best thing.

One of the first things you do as a consultant when you receive a draft report is to go straight to those parts you made submissions on. Immortality in a community legal centre is never assured and one takes every opportunity. I am happy to report that the Commissions have recommended that any student facing a serious exclusion (one being 14 days or more) should be presented with the complaint in writing and be given a proper opportunity to respond (recommendation 48). By the way, it is recommended that corporal punishment be banned in all Australian schools (recommendation 50).

The report calls for a national summit on children (recommendation one), which shall precede the establishment of an OFC. Of critical importance will be the way in which that summit is convened. The spirit of the report will be betrayed if young people are not significantly represented by young people themselves, and let’s not just start with the typical articulate teenage school prefects from the right suburbs. Young children, properly supported, will also have plenty to say about the way in which they are treated in schools, in shops, at entertainment venues, and what they are presented with on television. I was interested to see, at the time of writing, that a besieged Hillary Clinton was visiting the Lucerne Children’s Parliament. Instead of asking her about her husband’s alleged infidelities, as every other interviewer had done incessantly for the preceding two weeks, the child parliamentarians concentrated on economic and quality of life issues. These kids had a very clear understanding of global priorities.

The recommendation for an OFC comes in at number three, and the work program for the first two years is boldly set out in the report. The summit will no doubt hone this program, although the emphasis on the United Nations Convention on the Rights of the Child (CROC) is well placed. This convention, moderate as it is, has nevertheless received bad press in Australia, and some misguided public perceptions have hampered its implementation. The OFC will need to spend time communicating CROC to the public. Greater awareness of the provisions of CROC can only lead to a more harmonious environment for children where their views are encouraged and considered, rather than the archaic approach of muzzling children as incompetent, incoherent, ‘not yet adults’ who should be patronised and managed carefully. Promoting the deceptively simple philosophy that children are human beings, and as such are invested with the normal catalogue of human rights, will be the OFC’s first and greatest challenge.

All of the recommendations which propose the OFC fall under the curious title ‘The new working federalism’. I don’t understand what this means, but if it is the Commissions’ tilt at the Constitutional Convention then clearly they have gone outside their brief!

Recommendations four to 11 concern themselves with advocacy and much is made of establishing structures and processes to promote advocacy for children in formal and informal environments. This is all good stuff that will actually work if children and young people are significantly involved in the ‘construction’ process. Success will be easier if concurrent education programs target decision makers across the community spectrum promoting children as equal stakeholders.

The big picture

As with any considered report in this day and age, specific target groups are nominated. These include Indigenous children, children with English language difficulties, and children with a disability. It is unarguable that these children require specific resources and advocacy models, however, the heretic in me cautions that all children are so systematically excluded, silenced and marginalised that in prioritising action we must start with the big picture first. The big picture can be found in schools, in care centres and institutions, in workplaces, in the media, and in the home.

The report deals specifically with children in education and children as consumers. The recommendations are practical, achievable, and convincing in their simplicity. Why can’t we do it now? Late last year I asked the Commonwealth Attorney-General Daryl Williams when the government intended to respond to the report. He replied that the government was treating it seriously, and was distributing it amongst key people and organisations for comment first. Fair enough. But I recall he also said he hoped the government would respond early this year. With the Constitutional Convention and other weighty matters in full flight, I fear this excellent report will be swamped, buried and forgotten. Make a diary note now – “follow up on Seen and heard report”. I was heartened however, to hear Human Rights Commissioner Chris Sidoti commit himself to children’s issues for 1998. His diary probably already has this entry.

Close to my heart, and locked in my memory, are the recommendations dealing with legal representation and the litigation status of children. Finally, someone other than the NCYLC has taken up the chant “death to best interests, long live instructions”. Following on from some very good work in the US¹ the Commissions recommend:

“In all cases where a representative is appointed and the child is able and willing to express views or provide instructions, the representative should allow the child to direct the litigation as an adult client would.” ²

Hear! Hear! You may be forgiven for thinking that the report’s authors were being overly pedantic when they also recommended that lawyers should actually see and talk to their clients. Regrettably, this inclusion was necessary as some lawyers persist in the fiction that their own omni-science will suffice on the day.

For those of you who are lawyers representing children, please read recommendations 67-90. There are some startling reminders, even for the vastly experienced and intellectually gifted. I depart company with many of my colleagues and the spirit of recommendation 84 in my views. This recommendation urges multi-disciplinary training for lawyers and social scientists. I accept that legal practitioners should have a well-rounded education, and if they are working with children, should have some insights into psychology, sociology and maybe one or two other ‘ology’s’. My own back-ground in sociology has certainly assisted me on many occasions, but on others a better knowledge of the combustion engine would have been of more use to my client.

Let us not expect a lawyer to be priest/poet/social worker/ psychologist/child protection officer/moral guardian. Let us merely demand competent and courageous representation with sound legal expertise and a good sense of when to call in other professional help. I want children to be represented in court by lawyers, not social scientists. I trust my heart surgeon, should I ever need him or her, will be 100 per cent focused and trained in heart surgery, and I will trust him or her to call in the liver specialist when they discover the damage occasioned by the last Christmas break.

Children’s evidence

Section 14 of the report moves into the contentious area of children’s evidence, and the report does well to ride through this rapidly developing area with authority and common-sense. With a balanced mix of simple statement and detailed analysis, which is a hallmark of this report, the recommendations traverse technology, procedure and psychology. Go and shout to your local prosecutor (with apologies to those prosecutors who agree with the following statement) that “all children should be presumed prima facie competent to give sworn evidence” (recommendation 98) and that “corroboration of the evidence of a child witness should not be required” (recommendation 100).

The report then sweeps through jurisdictional arrangements in family law and care and protection (all children’s courts should be invested with the federal family law jurisdiction), children’s involvement in family law proceedings (counsellors should involve children in the formulation of parenting plans), children’s involvement in the care and protection system (detailed case plans specifying ultimate goals for all children entering care should be developed within six weeks of the child entering care).

The report concludes with sections;

18. Children’s involvement in criminal justice processes

19. Sentencing

20. Detention

The trinity of the damned, or in the Northern Territory, Western Australia and Queensland, and to a lesser extent the other States and Territories, three ways to remind young people that as a community we value property and business interests far more highly than their entry into adulthood as valued and respected human beings.

In November last year, I, along with other concerned legal practitioners, travelled to Alice Springs to witness the tragic debacle that is mandatory sentencing. For a second trivial property offence at the age of 15 or 16 you will be transported to a detention centre for a period of one month. This is Chief Minister Shane Stone’s answer to juvenile crime. This is his response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody, this is the best the Northern Territory can do for its young people. The report pleads with the NT government to repeal the legislation, failing which the Commonwealth is requested to use its constitutional powers to achieve the same happy ending. There is little likelihood of either happening, and the legislation is a history-making blot on our human rights report card.

This is why children must be seen and heard. If adult Territorians won’t vote to repeal this legislation, then maybe the children who watch their friends being carted off by the police on a daily basis might raise the flag of reason.

These three sections are priority areas. The children who enter the criminal justice system are the end product of our ignorance, neglect and failure. The human cost of economic fundamentalism lines up at the court door, and we foolishly and naively think we are getting it right in this country. Recent reports have demonstrated the concrete link between poverty, neglect and criminal behaviour. Seen and heard provides a partial blueprint for recovery, managing to squeeze systemic and individual relief measures into these three concise sections.

The report misses one crucial recommendation (maybe I’m going outside the brief now) – lower the voting age. When more children are given the vote, politicians and bureaucrats will listen.

Overall though, the Commissions have done their job, and have done it admirably. I hope the government will respect the toil and dedication to task and respond as leaders, and not as policy massagers. But it’s not just for government, this is truly a report with universal relevance. In fact, much more might be achieved if the Packer and Murdoch empires were to embrace the recommendations and promote them to the wider community. In the absence of such holy conversion, I will wait (impatiently) for our Prime Minister and Attorney-General to tell Australian children which recommendations are to be implemented first.

And to my old headmaster – I hope you’re listening now.

* Michael Antrum is the Director & Principal Solicitor of the National Children’s and Youth Law Centre. He is also the President of NSW Young Lawyers.

End-notes

1. For example, see the American Bar Association’s Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, Washington, 1996

2. Recommendation 70