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Topic : Child Abuse

Statistics (According to Australian Institute of Health and Welfare and the Australian bureau of statistics)

  • In 2013-14, 143,023 children received child protection services. This is 1 in 37 Australian children aged 0-17 who had an investigation, care and protection order and/or were placed in out-of-home care.
  • Almost three-quarters (73%) of these children were repeat clients in 2013-14; that is, they had been the subject of an investigation, care and protection order and or out-of-home care placement in a previous financial year.
  • In 2012 children aged under 1 year were most likely to be victims of abuse; those aged 15-17 were least likely.
  • In 2013-14, Aboriginal and Torres Strait Islander children were 7 times as likely as non-Indigenous children to be receiving child protection services
  • In 2011-2012 emotional abuse was the most common, followed by neglect and physical abuse.

Assess the role of state sovereignty in promoting and enforcing human rights 

  • Australia using their power of state sovereignty has chosen to enact international responses regarding children, hence they are able to promote and enforce the rights of children and protect them from offences such as abuse, without the interference from outside influences/powers.

 

Evaluate the effectiveness of international responses in promoting and enforcing human rights  ● Convention on the Rights of a Child (CROC); 

Article 6 (1) states that every child has the inherent right to life whilst 6 (2) states that state parties shall ensure to the maximum extent possible the survival and development of the child

Article 3(2) states that parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measure.

  • UDHR;

Whilst the UDHR is not solely applicable to children, as it states the inalienable rights which all human beings are entitled to, the udhr is still effective in promoting and enforcing the rights of children. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article     6 . Everyone has the right to recognition everywhere as a person before the law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 14.

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. Article 15.

(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

  • ILO (International Labour Organisation) – specialised agency of the United Nations. A majority of countries have adopted legislation to prohibit or place severe restrictions on the employment and work of children, much of it stimulated and guided by standards adopted by the International Labour Organization (ILO). In spite of these efforts, child labour continues to exist on a massive scale, sometimes in appalling conditions, particularly in the developing world. If progress has been slow or apparently nonexistent, this is because child labour is an immensely complex issue.

It cannot be made to disappear simply by the stroke of a pen. Nevertheless, the basis of determined and concerted action must be legislation, which sets the total elimination of child labour as the ultimate goal of policy, and puts measures into place for this purpose, and which explicitly identifies and prohibits the worst forms of child labour to be eliminated as a matter of priority.

➔ Recommendations R190 – Worst forms of Child Labour Recommendations 1999; In determining the types of work referred to under Article 3(d) of the

Convention, and in identifying where they exist, consideration should be given, inter alia, to:

(a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and      tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer.

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Outline how human rights are incorporated into Australian domestic law 

Australia has actively incorporated children’s rights and entitlements into domestic legislation considering that Australia ratified CROC in 1990, meaning that Australia has a duty to ensure that all children in Australia enjoy the rights set out in the treaty. Australia also has a great amount of legislation which protects the rights of children and protects them from abuse.

  • Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) , such legislation provides allocated that the Human Rights Commission has an official role to protect and promote children’s rights.
    • After Australia ratified the CRC, the government made the CRC part of the Commission’s role. This does not make the CRC part of Australian domestic law, but it does give the Commission the power to refer to the CRC when considering complaints from children who complain their rights have been breached.
    • Importantly, the Commission also has the legal power to examine laws that may breach the CRC, conduct public inquiries into breaches of the CRC, provide policy advice, and promote public understanding of children’s rights in Australia.
  • The Children and Young Person (care and protection) Act 1998 (NSW), protects the health and wellbeing of the child, with stipulates their protection against abuse and neglect.
  • Family Law Amendment (shared parental responsibility) Act 2006 (Cth) , aims to ensure that children create meaningful and conventional relationship with both parents. This required the courts to consider the child’s best interests rather than parental interests.
    • however this amendment has been criticised on the basis that there is greater potential for children to be exposed to family violence
  • Young Offenders Act, ensures that children are appropriately and fairly treated by the law with consideration made towards their well being, education, innocence and maturity
    • 33A Destruction of fingerprints, palm prints and photographs ensures that if a child is given a caution the Commissioner of Police is to ensure that any fingerprints, palm prints or photographs of the child in connection with the offence for which the caution is given (and any copies of them) is to be destroyed.
  • A model charter of rights for children and young people detained in youth justice facilities; (was released in August 2014) informing people of what the youth are entitled to whilst in juvenile facilities, such rights were directly drawn from UN Rules for the Protection of Juveniles Deprived of their Liberty or (JDLs) (1990), UN Minimum Rules for the Administration of Juvenile Justice (1985) and Convention on the Rights of the Child (1989)
  • Royal Commissions Act 1923 (NSW) outlines the powers of the Commissioner in obtaining witnesses, evidence, documents regarding cases and investigations to do with the abuse of children.
  • The following child specific treaties have entered into force in Australia:
    • Convention on the Civil Aspects of International Child Abduction [1987] ATS 2. Entry into force for Australia: 1 January 1987
    • Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (The Hague, 29 May 1993). [1998] ATS 21. Entry into force for Australia: 1 December 1998.
    • Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. [2002] ATS 2. Entry into force for Australia: 1 February 2002.
    • Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect to Parental Responsibility and Measures for the Protection of Children (under the auspices of the Hague Convention) [2003] ATS 19. Entry into force for Australia: 1 August 2003.
    • Optional Protocol to the Convention on the Rights of the Child on the

Involvement of Children in Armed Conflict [2006] ATS 12: Entry into force for Australia: 26 October 2006.

  • International Convention for the Suppression of the Traffic in Women and Children, 1921. (ATS 1922 no. 10). Entry into force for Australia: 28 June 1922.
  • Protocol to amend the Convention for the Suppression of the Traffic in Women and Children of 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, 1933, (ATS 1947 No. 17). Entry into force for Australia: 24 April 1950.
  • Convention on the Rights of the Child [1991] ATS 4. Entry into force for Australia: 16 January 1991
  • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography [2007] ATS 6. Entry into force for Australia: 8 February 2007
  • Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially

Women And Children, Supplementing The United Nations Convention Against Transnational Organised Crime 2000 [2005] ATS 27. Entry into force for Australia: 14 October 2005.

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Evaluate the effectiveness of Australian responses in promoting and enforcing human rights 

  • Royal Commission into Institutional Responses to Child sexual abuse;
  • investigating how institutions like schools, churches, sports clubs and government organisations have responded to allegations and instances of child sexual abuse.
  • It is the job of the Royal Commission to uncover where systems have failed to protect children so it can make recommendations on how to improve laws, policies and practices.
  • The Royal Commission is about creating a safer future for children. It can look at any private, public or non-government organisation that is, or was in the past, involved with children. This includes where an organisation caring for a child is responsible for the abuse or for not responding appropriately, regardless of where or when the abuse took place.
  • Royal Commissions Act 1923 (NSW) outlines the powers of the Commissioner in obtaining witnesses, evidence, documents regarding cases and investigations to do with the abuse of children.
  • National Framework for protecting Australia’s children 2009-2020; endorsed by the Council of Australian Governments in April 2009, ambitious, long-term approach to ensuring the safety and wellbeing of Australia’s children and aims to deliver a substantial and sustained reduction in levels of child abuse and neglect over time. This framework represents the highest level of

collaboration between commonwealth, state and territory governments and non-government organisations, through the Coalition of Organisations Committed to the Safety and Wellbeing of Australia’s Children, to ensure Australia’s children and young people are safe and well. The publication looks in detail at the need for Commonwealth, State and Territory governments and non-government organisations to work together to protect Australia’s children. The national framework outlines six  supporting outcomes including (children live in safe and supportive families and communities, children and families access adequate support to promote safety and intervene early, risk factors for child abuse and neglect are addressed children who have been abused or neglected receive the support and care they need for their safety and wellbeing, indigenous children are supported and safe in their families and communities and, child sexual abuse and exploitation is prevented and survivors receive adequate support.

  • Australian Human rights commission;

After Australia ratified the CRC, the government made the CRC part of the Commission’s role. This does not make the CRC part of Australian domestic law, but it does give the Commission the power to refer to the CRC when considering complaints from children who complain their rights have been breached. Importantly, the Commission also has the legal power to examine laws that may breach the CRC, conduct public inquiries into breaches of the CRC, provide policy advice, and promote public understanding of children’s rights in Australia.

  • NSW Government – Keep them safe;

five year action plan to reshape the way family and community services are delivered in NSW to improve the safety, welfare and wellbeing of children and young people.

–     The NSW State Government Keep them Safe            initiative was a direct response to the             recommendations that came out of the Wood Special Inquiry. It is a five-year plan to fundamentally change the way children and families are supported and protected. Its aim is to improve the safety, welfare and well-being of all children and young people in New South Wales. The legislation for the Keep Them Safe reforms passed through Parliament and was assented to on 7 April 2009. A staged approach to commencement of the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 has been taken to ensure that training and support tools are in place before the legislation takes effect.

Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW).; grounds for making a report expanded to non-attendance at school.

  • The Youth Drug and Alcohol Court (YDAC) is, after 11 years, still a pilot program that was established on 31 July 2000, following a recommendation made by the 1999 NSW Drug Summit. A young person who satisfies the eligibility criteria for YDAC may be referred to this sentencing option by the specialist Children’s Courts (Bidura, Campbelltown and Parramatta). The YDAC is a collaborative project between the Children’s Court of NSW, the NSW Police Force, Legal Aid NSW and four government agencies – Juvenile Justice, Justice Health, Community Services, and the Department of Education. These last four agencies each have representatives on the Joint Assessment and Review Team (JART), and, in collaboration with the YDAC Magistrate and the young person, make the treatment decisions that constitute the order of the court. Young people who are accepted on the YDAC program generally do not spend time in custody, but remain in the community and are given 6-12 months to complete the program. Program plans are tailored towards

the individual and often include a residential rehabilitation component. Any young person who meets the eligibility criteria set out the YDAC Practice

  • be ineligible to be dealt with under the Y oung Offenders Act Upon successful completion of the program, the young person is given a non-custodial sentence and no conviction is recorded against their name. If they fail to complete the program, the young person is sentenced in the usual way.
  • Child-friendly version of the Children’s Rights Report 2014; (released in december 2014) short and easy-to-read summary of the contents of the National Children’s Commissioners report to Parliament. Beneficial as children were able to easily access and understand the report and children were also consulted with children and young people during the development of the report. Child Health and Social Welfare; Family Law;
    • In determining family law matters the Family Court will consider the wishes of a child when determining what is “in the best interests of the child.” The “best interests of the child” will be the court’s paramount consideration when making parenting, location and recovery orders.
    • In some jurisdictions children’s rights and the child’s right to participate in decision making have been specifically incorporated into legislation. For example: in Queensland, a ‘Charter of Rights for Child in Care’ is included as a schedule to the Child Protection Act 1999 (Ql8] NSW has non-binding principles for children to participate in decision making regarding their care and protection
  • Financial Support to People with children; The Federal government provides financial support to people with children (called family assistance). This financial support includes:
    • Family Tax Benefit Part A – financial assistance;
    • Family Tax Benefit Part B – additional financial assistance to families with one income;
    • Child Care Benefit – financial assistance for child care;
    • Child Care Tax Rebate – tax rebate for working persons incurring child care costs;
    • Baby Bonus – one-off payment to off-set the costs of a new child (including adopted and still born children);
    • Maternity Immunisation Allowance – payment for children aged eighteen to twenty-four months and who are fully immunized or have an approved exemption from immunization;
    • Large Family Supplement – where the applicant has three or more children and receives the Family Tax Benefit for three or more children;
    • Multiple Birth Allowance – applicable for births of three or more children;
    • Double Orphan Pension – additional financial aid to provide assistance to raise children who are orphans;
    • Jobs, Education and Training (JET) Child Care fee assistance – extra help with the cost of approved child care for eligible parents undertaking activities such as work, job search, training, study or rehabilitation as part of an activity agreement, to help them enter or re-enter the workforce.
  • Salvation Army provides support and educational services to children in need, including:

➔ counselling services, emergency housing and youth support programs

  • NAPCAN (National Association for Prevention of Child Abuse and Neglect); Founded in 1987 and since has made significant contributions to the safety and wellbeing of Australia’s children and young people by raising public awareness of child abuse and neglects and its impacts, and developing and promoting effective prevention strategies and programs.
    • Coordinate National Child Protection Week and promote the ‘Play Your Part’ strategy, as they identify that “protecting children is everyone’s business”
    • They have many programs/workshops which work to educate and support parents/carers/school and educational communities as well as children; including, ‘All children being safe’, ‘Play your part’ and ‘Respectful Relationships’.
    • Also provide approved NAPCAN training services, to train individuals who would like to be apart of their work and assist in promoting the safety and wellbeing of children by running programs etc.
  • Child Wise ; Established in 1991, working to build awareness, deliver education, and provide the tools to empower individuals and communities around Australia so they can actively prevent child sexual abuse and exploitation.
    • Programs, workshops and education for parents and carers, referred to as ‘Wise Parent’. Aims to improve knowledge about child abuse, by promoting understanding of how to prevent and protect children from abuse, with special emphasis on childhood development, indicators of abuse, how to communicate with their children and how to respond to concerns. Also provides ongoing support and resources at meetings and programs.
    • Child Wise’s toll free helpline on 1800 99 10 99 for advice, counselling and referral.
    • 7 core programs that deal with educating carers, protective behaviours, preventing child abuse in indigenous communities and training individuals to become trainers in child protection
    • Programs are flexible and can be tailored to requirements, Child Wise currently works with schools, in and out of home care, sporting clubs, government funded agencies etc.

Cases:

  • Ebony – R v BW & SW – Starvation of a Child

The offenders, SW and BW were the parents of a seven year old girl known as Ebony. She had been diagnosed with autism, and died in November 2007 as a result of starvation and neglect over a twenty month period. Several doctors who gave evidence at the trial of her parents testified that Ebony suffered from the most severe case of malnutrition they had ever seen. After a five week trial, the girl’s mother SW was found guilty of her murder and sentenced to life imprisonment and the girl’s father BW was found guilty of manslaughter and sentenced to 16 years with a non-parole period of 12 years.

  • Much was written in the media in response to this tragic event – how a little girl could literally starve to death and not be noticed by the school, the Department of Community Services, the Department of Housing, the Department of Education and Training and the medical profession. However, it was clear from the evidence in the trial that Ebony disappeared from view completely in July 2006 – she did not even appear in family photographs. Her last visit to a medical doctor was on 27 March 2006. Justice Hulme in his judgment was scathing of the parent’s in their complete lack of care, love and attention towards their daughter and that their neglect was directly responsible for her slow and agonising death. The NSW Ombudsman presented a report to NSW Parliament in early October investigating the involvement of each government department with Ebony’s family and the events surrounding her death.
  • The NSW State Government Keep them Safe initiative was a direct response to the recommendations that came out of the Wood Special Inquiry. It is a five-year plan to fundamentally change the way children and families are supported and protected. Its aim is to improve the safety, welfare and well-being of all children and young people in New South Wales. The legislation for the Keep Them Safe reforms passed through Parliament and was assented to on 7 April 2009. A staged approach to commencement of the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 has been taken to ensure that training and support tools are in place before the legislation takes effect.

Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW).; grounds for making a report expanded to non-attendance at school.

  • Gloria Thomas – R v Sam – Manslaughter by criminal negligence

Nine month old Gloria Thomas died in May 2002, from severe sepsis and bacterial infections which had caused bleeding in her lungs and airways. She suffered from severe eczema which her father, Thomas Sam a homeopathic practitioner had been treating using homeopathic remedies. Both parents, Thomas and Manju Sam, had been warned by nursing staff, a doctor and paediatrician that they should be treating the eczema using prescribed medication – but these warnings were ignored. They also failed to take her to two appointments that had been made with a specialist dermatologist.

  • A coronial inquiry into the circumstances surrounding her death was held in November 2007. The State Coroner terminated the inquest on 18 November 2007 after finding that there was reasonable prospect the evidence presented to the inquiry could convince a jury to convict “a known person or persons of a serious crime.”
  • In June 2009 a jury found Sam and his wife Manju guilty of the manslaughter of their daughter by failing to get her proper medical care before her death in May 2002.
  • Kiesha Abrahams – murder of child in 2010 by her mother Kristi Abrahams

Kiesha Abrahams and her mother were known to the DoCS.  On 1 August 2010, Kristi Abraams, Keisha’s mother contacted police to say that her daughter had gone missing.  A large scale search took place and Kristi and her de facto partner Mr Smith consistently told police they had no knowledge of, or involvement in her disappearance. On 21 April 2011 the remains of Keisha were found at a gravesite not far from where the family lived.  Her remains had been partially burnt prior to her burial.

–       Abrahams was sentenced to 22 years and 6 months with a non-parole period of 16 years.

The first day upon which she will become eligible for release on parole is 22 April 2027.

Charter of Rights:

Whilst child rights have been enacted and are included in statutory law in Australia, if for instance there is a change in government they could create an ammendment act and therefore alter the degree of protection legislation offers for Australian children. However if the legislation has been included in the Constitution and is protected by a Charter of Rights, legislation impacting the protection and welfare of children will be more effectively protected considering that only by holding a referendum, will there be a chance that child’s right will be abolished.

 

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