Why do children need advocacy?

Introduction

5.24 Children do not have political power.[41] They have limited say in decisions affecting their lives and generally are unable to obtain redress when decisions are taken contrary to their best interests.

Children and young people are a relatively powerless group in society. Adults very often make significant decisions about children without consulting them or seeking to involve their participation in the decision making process. They are rarely informed or consulted about new laws and policies which will impact upon them. They are frequently denied rights and opportunities which other members of the community take for granted. Many laws treat children and young people not as people but as the property of their parents or as objects of concern. Many protectionist laws and policies are based on outdated paternalistic notions. There is a considerable imbalance between children and young people and government agencies such as the police and schools.[42]

Decisions are often made by professionals with children's views not being sought or, if ascertained being ignored or discounted. Children are the passive recipients of decisions made on their behalf by powerful adults. This has been described by Michael Freeman as "entrenched processes of domination" and by Penelope Leach as "benevolent authoritarianism" but, more simply, it is a modern day manifestation of the old adage "Children should be seen and not heard".[43]

The need for advocacy

5.25 Children rely to a large extent on adults to speak on their behalf and protect their rights. The vulnerability of children tends to be reinforced by societal attitudes and legal processes.

Children need advocates, because they cannot look after their own interests. Parents are supposed to do this for them: some don't, or can't. Children aren't heard by many of the adults who make the decisions that affect them most — teachers and school administrators; governments who decide what resources will and won't be available to their families, or to the children themselves; by welfare workers, magistrates and by the police.[44]

...children are grossly disadvantaged in protecting their interests, rights and freedoms. Our legal system denies them a voice — bullied into silence as witnesses, lost in care, expelled without recourse from schools, exploited and abused on the streets and in the systems designed to protect them. In principle children, as people, have the legal right and interest in having a say in decisions that are likely to affect them; children, as citizens, should have better access to the processes of government that directly affect them; children, as human beings with social rights, ought to have equal access to the law, and that the community has a duty to take their rights, and children seriously.[45]

5.26 The serious consequences of children's inability to protect themselves against abuses has been illustrated most recently in the report of the Royal Commission into the New South Wales Police Service[46] and the Queensland Children's Commissioner's report on Paedophilia in Queensland.[47] The Report of the NSW Parliamentary Standing Committee on Social Issues, commenting on the Royal Commission's inquiry into paedophilia, noted

[e]vidence to the Royal Commission revealed that many children who were in the care of the Department of Community Services were subject to abuse. A number of these instances occurred many years ago and that they are only now public confirms the evidence to this Committee regarding the vulnerability and silence of so many "damaged" children. Moreover, further evidence to the Royal Commission from senior members of other government departments has revealed a general ignorance by senior bureaucrats to issues relating to abused children.[48]

5.27 The abuses uncovered by the Royal Commission illustrate perhaps more than anything the lack of adequate advocacy mechanisms for children.

Children who claimed that they were abused, assaulted, raped and imprisoned, were disbelieved: the systems did not permit them to speak and be heard. Institutions refused to accept that their staff could act so disgracefully. Police gave priority to "operational requirements", were unduly deferent to religious bodies and respectable men, and education and child protection systems were "slack". Children did not know and could not claim their rights, even their right to bodily integrity. They lacked institutional or any advocacy. That is the problem. Our social and legal systems do not legitimate child advocacy.[49]

5.28 The unacceptably high levels of unemployment, suicide and homelessness among young Australians also illustrate the need for advocacy of the interests of all children across agencies and systems.[50]

5.29 Many young people say that they do not have a sufficient voice in the legal processes affecting them. For example, in the Inquiry's survey of young people, 70% with experience of the juvenile justice system indicated that the magistrate or judge did not let them have a say in the case.[51] Among those who had been involved in welfare proceedings, 62% did not know what was happening and 78% did not have enough say in the decisions made.[52]

5.30 Even where there is a reasonable standard of services for children, advocacy plays an important role. One submission to this Inquiry spoke of the role of advocacy in 'humanising the bureaucracies' and assisting children and their families to navigate their way through the complex maze of bureaucratic processes to gain access to services.[53]

5.31 Children require both systemic advocacy and advocacy as individuals. Children as a group are helped to take an active role in matters affecting all children through broad-based, systemic advocacy. Advocacy of individual children remains necessary and important. However, scrutiny and monitoring of government services and programs, lobbying of government on behalf of all children and dealing with complaints to ensure accountability have all become important advocacy functions.

[41] This point was also made by A Nicholson 'Advancing children's rights and interests: The need for better inter-governmental collaboration' (1996) 26 University of WA Law Review 250.

[42] National Children's and Youth Law Centre submission to NSW Legislative Council Standing Committee on Social Issues Inquiry into Children's Advocacy 1995, 7.

[43] id 8.

[44] M Rayner 'Advocacy for children' (1997) Reform ALRC forthcoming.

[45] ibid.

[46] Wood Royal Commission Final Report Volume IV: The Paedophile Inquiry NSW Government Sydney 1997.

[47] Children's Commissioner of Queensland Paedophilia in Queensland Children's Commission of Queensland Brisbane 1997.

[48] NSW Legislative Council Standing Committee on Social Issues Report 10 Inquiry into Children's Advocacy NSW Government Sydney 1996, 54.

[49] M Rayner 'Advocacy for Children' (1997) Reform ALRC forthcoming.

[50] See para 2.50 for unemployment statistics. The failure of the system to solve youth unemployment was discussed in M Hedges 'Policy issues in responding to young offenders' Paper Juvenile Crime and Juvenile Justice: Towards 2000 and Beyond Conference AIC Adelaide 26-27 June 1997, 3.

[51] Survey Question 64. There were 208 respondents who were asked this question. 113 of those young people responded to this question.

[52] Survey Question 69(a), (b). There were 208 respondents who were asked this question. 68 of those young people responded to these questions.

[53] Action for Children DRP Submission 55.