The barriers in practice — inhibiting children’s participation

Introduction

4.11 Throughout this reference, the Inquiry has attempted to focus on the barriers of developmental ability, legal capacity and legal systems designed by and for adults. Evidence to the Inquiry documented numerous problems related to each of these barriers currently facing children involved in the legal process.

Stereotypes and discrimination

4.12 Children may be discriminated against simply because they are not adults.^[11] While age differentiation may be justifiable in some circumstances, age distinctions may be imposed in an arbitrary manner to streamline the adminstration of laws and policies relating to large numbers of people.^[12] The arbitrary nature of many of these age limits has been criticised.^[13]

4.13 Children may also be treated differently by legal processes and its other participants as a result of stereotypes about their characters and abilities. In addition to the traditional assumptions about children’s capacities to participate,^[14] children and young people often face outright discrimination based on the stereotype that young people are prone to unlawful behaviour. Laws that prohibit young people from gathering in certain places or that enforce curfews may be the result of an unjustified belief that young people commit crimes in these circumstances.^[15] Certainly, the media have contributed to this stereotype of young people. One survey of articles in The West Australian showed that from 1990 to 1992 63% of all articles about young people related to youth crime^[16] In the Inquiry’s survey of young people, 633 out of 786 (80.5%) believed that the media never or only sometimes portrays young people positively and 630 respondents out of 771 (81.7%) believed that the media never or only sometimes portrays young people truthfully.

4.14 Young people around Australia described to the Inquiry many instances of discriminatory treatment, including being harassed by police, shopkeepers and security guards.^[17] For example, 11.3% of the respondents to the Inquiry’s survey of young people indicated that, when buying goods, they found the retailers ‘suspicious’ of them, ‘assuming young people will shoplift’.^[18] One submission to the Inquiry even described this stereotype being held by the lawyers who were there to help young people in court.

Darryl…said [that] when he appeared in court, ‘I didn’t know what a duty lawyer was, and then some guy in a suit came into the court and sat next to me and the Magistrate read the charge and asked for a plea. I was about to stand up and say ‘not guilty’ when this guy in the suit stood up and said ‘guilty your Worship’, and then he turned to me and said ‘oh you are pleading guilty aren’t you?’^[19]

4.15 In addition, in the Inquiry’s survey of young people, 66% of respondents believed that police never or only sometimes treated young people fairly and 79% believed that police never or only sometimes treat young people equally.^[20] Further, out of 410 specific comments on how police treat young people, 40.2% were about police using violence against young people or treating them unfairly or disrespectfully.

Children do not complain or seek redress

4.16 The formal legal processes that most directly involve children are the family law, care and protection and criminal law systems. Yet in almost all of these systems, children are not there because they want to be. It is very rarely the child who initiates these proceedings. Rather, children are brought into these systems because parents, police officers, social workers, teachers, doctors, counsellors and others seek to resolve an issue through the legal process.

4.17 Over the course of the Inquiry, we were told of children’s lack of participation in legal processes because of their reluctance to complain or seek redress when they had problems.^[21] For example, it is typical of children’s involvement in legal processes that no children had approached the NSW Community Services Appeals Tribunal directly regarding the care and protection system or their out of home placements,^[22] that the ACT Legal Aid Commission had never been approached by a child directly requesting separate representation in family proceedings,^[23] and that only 2% of the complaints received by the NSW Community Services Commission were from children, even though more than 70% of complaints about care and protection are about children’s issues.^[24] One practitioner explained this lack of participation in complaints processes.

Children are understandably reluctant to speak out against these people [lawyers, magistrates, social workers, foster carers] because of the obvious power imbalance, especially when they know they may have to deal with the lawyer [or other professional] again or appear before the magistrate again later.^[25]

4.18 Many participants in our consultations and public hearings described the problem as a lack of access. According to one young person, ‘[k]ids are not aware of where they can go to get a lawyer.’^[26] A Family Court Registrar said the Registry of the Family Court

…does not get much child-related work from community legal centres or solicitors. Children do not appear to access these services. There have only been a few cases where children have applied to the court as parties.^[27]

The Inquiry was also told that young people are often not aware of procedures for seeking redress.^[28]

4.19 Young people themselves often spoke about why children and young people do not make complaints. For example, at one meeting with Indigenous young people in Sydney, not one of the young people in attendance considered that making complaints was worth it, particularly when the complaint was about alleged abuse by police.^[29] When the young people did complain, their experiences with the process confirmed this assessment. One young person in Queensland who complained about police misconduct, with the assistance of the Youth Advocacy Centre, said

[t]he police interviewed me and then three months later sent me a letter explaining what they said ‘really’ happened. I won’t complain again.^[30]

Another young person who went to the Ombudsman with a complaint about the police said that it came to nothing. She found it a waste of time ‘because the Ombudsman and the other public officials don’t care about kids…they’re on the side of police’.^[31] Other young people described their complaints being ‘lost’ or ignored.^[32]

Children may not understand the legal process

4.20 The Inquiry received considerable evidence that children’s participation in the legal process is often hindered because they do not understand it. For example, one young person who was the main witness in a criminal trial described how he did not really understand the role of the crown prosecutor, and would have preferred to have his own solicitor acting as ‘his’ solicitor in the criminal case. He felt that the crown prosecutor had abandoned him and had not properly protected him, and this made giving evidence much more difficult. His youth worker explained that

…young people simply don’t understand what’s going on…First, they don’t understand the impact of the words used. Its too complex…Secondly, young people often withdraw from the situation because it is just too overwhelming.^[33]

4.21 These problems arise in all kinds of legal processes, but they seem to be particularly evident in processes that involve courts. As one practitioner pointed out ‘[m]any children come out of court saying they don’t understand a word of it’.^[34] Another adult participant in the juvenile justice system talked about ‘the incredible lack of understanding by young people [in the Northern Territory’s Don Dale Detention Centre] about the juvenile justice system’ and said

[b]asically, they don’t know what guilty means, who the prosecutor is, or sometimes even who the judge is. A major contributing factor [in the Northern Territory] is the lack of interpreters.^[35]

4.22 Young people emphasised to the Inquiry that they found the legal system practically incomprehensible.

It’s like they all speak another language. You need an interpreter.^[36]

All young people in the court system should have a support person to assist them and make sure they understand what’s happening in court.^[37]

The court rarely gives an explanation of the meaning of the sentence or bond and what it entails…When you go to court, you don’t always understand what’s happening. There is no-one there to explain things to you.^[38]

Benefit application forms contain a lot of jargon…they’re difficult to fill out without help.^[39]

In the Inquiry’s survey of young people, out of the 138 respondents who were in detention facilities and who answered the relevant question, more than half (52%) indicated that they never or only sometimes understood what was happening when they were in court.^[40]

Children are marginalised by the legal system and its other participants

4.23 Young people across Australia told the Inquiry of their perception that they are not listened to and that neither judicial officers nor other adult participants in legal processes take account of or care about their views. No aspect of the legal system escaped these consistent and persistent allegations of marginalisation.

4.24 For example, the Inquiry’s survey of young people revealed that of the 134 respondents who were in detention and who answered the relevant question, 38% did not think that their lawyer had told the court what they had asked him or her to say. In addition, 70% stated that the judge or magistrate did not let them have a say in their case.^[41] Many young people we spoke to commented about their marginalisation by court processes and legal representatives.

Judges don’t care what happens to the kids in their courtrooms and they don’t understand them…they should have to really look into why things are going wrong for a kid and try to fix it.^[42]

Kids don’t get enough opportunity to express their views when they’re in court. There should be more opportunities for them to say what they think…Kids are not given the chance to say anything in court, even when they ask to.^[43]

Lawyers acting for young people rarely ask their opinions on anything…There’s no point in seeing lawyers. Lawyers and judges don’t really care about kids.^[44]

[Solicitors] only do what they’re told if the kid insists…Kids are just a number to duty solicitors.^[45]

4.25 These perceptions reflect children’s real experiences of legal processes. They were confirmed by other participants in these legal processes. In the public hearings and in private meetings, the Inquiry heard many examples of representatives in family law proceedings refusing to speak with their child clients or of children who were distraught after hearings because their legal representative had not done what the child had instructed.^[46] One young girl, aged 12, even telephoned the Inquiry to seek our intervention in Family Court proceedings on her behalf. She was caught up in a long running Family Court case, and although she had been interviewed by various social workers, counsellors, psychologists and police officers she had never been interviewed by the legal representative appointed to her case. She believed that no-one had told the judge what her wishes were.^[47] Some children may also feel marginalised by the court system because it is

[an] adversarial system…dominated by legal strategising by competing parties to maximise their chances of winning the case…The interests of the child often get lost between the warring parties.^[48]

4.26 Court processes were not the only legal processes to receive scathing criticism from young people. Service delivery agencies and schools were also seen by young people as uncaring bureaucracies in which the child’s voice was often ignored. For example, one young person described a situation in which he had applied for Abstudy’s living away from home allowance after he moved out of his house. He felt that there was no-one to talk to at the relevant department about the problems he was experiencing in this application process.

I was passed from person to person when I telephoned. No-one took responsibility for my case.^[49]

4.27 Another young man who had experienced the care and protection system said that he was not allowed any involvement in decisions regarding his placement with various foster parents. Sometimes he did not even know the reasons why his placement was being changed.^[50] Another young person described a social worker’s refusal of his request to meet prospective foster parents before being moved.^[51] Other young people confirmed that lack of consultation by child welfare workers was a consistent problem in all care and protection systems.

Kids don’t have any rights when dealing with the Department of Family, Youth and Children’s Services. Kids are told what to do rather than consulted. Social workers don’t listen to kids’ wishes.^[52]

The Inquiry’s survey of young people found that of the young people in detention facilities who had also had some involvement with care and protection systems, 72% felt that they did not have enough say in the decisions made.^[53]

4.28 Schools too seemed to ignore children when making decisions about them. Many young people deplored their lack of participation in disciplinary proceedings in schools, commenting that young people are given no voice in suspension, exclusion and transfer decisions.^[54]

When you get expelled or suspended from school you don’t get an opportunity to defend yourself and explain your side of the story…Schools don’t investigate matters properly before making a decision to expel a student.^[55]

Another young person described being ‘expelled from all Queensland state schools forever’. He said that he did not even see a school counsellor until after he was excluded from school.^[56]

Agency complexities inhibit children’s participation

4.29 Young people and professionals alike commented that the complexities of legal processes inhibit participation.

Young people can lodge an appeal against cessation or suspension of benefits but it is a lengthy and complex process. Many children don’t appeal because it is too difficult.^[57]

Young people often have to work out their entitlements for themselves as there is very little information available…you have to know a benefit exists before you can apply for it.^[58]

Young people need someone to go with them and help them deal with government agencies. Without this kind of support, it’s very easy to be discouraged and give up after the first time.^[59]

It’s ironic that young people need to rely on advocates to get things that should be theirs by right.^[60]

4.30 Some complexities result from the jurisdictional divisions discussed in Chapter 3. The current jurisdictional arrangements affect children’s participation in legal processes in two different ways. First, responsibilities for children’s matters are fragmented between a number of different agencies and levels of government.^[61] As one professional explained, ‘[d]ealing with government agencies can be very confusing for young people. They may have contact with 20–30 agencies.’^[62] Second, this division of responsibility between governments and between agencies means that some children are left without the assistance of any agency, even when there are supposed to be mechanisms to co-ordinate agency involvement. Children in this situation may have no legal process in which to participate. These two barriers to children’s participation in legal processes are discussed in detail in Chapter 5.

4.31 According to one practitioner, as a result of these problems many young people are more damaged by the legal system designed to help them than by the activities that led them there in the first place.^[63]