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Family Matters No. 33 - December 1992

Children's welfare, rights and the legal system

Margaret Harrison

Abstract

The author identifies various categories of legislative intervention in the parent-child relationship, and addresses concerns about the purpose, nature and process of such intervention, its perceived or anticipated outcomes for children and the 'rights' of parents where orders are made. Discussion includes legislative diversity in Australia; the role of international law; indirect impacts of legal systems; the role of the media; child sexual abuse and the law; the issue of children's evidence.

 

There are various categories of legislative intervention in the parent-child relationship - protection of the neglected or abused child, determinations relating to custody, access or financial support following parental separation, consent to the sterilisation of intellectually disabled teenagers, or the 'dissolution' of the parental relationship on the application of a parent or child. Recurring concerns are the purpose, nature and process of such intervention, its perceived or anticipated outcomes for children and the 'rights' of parents where orders are made.

Where the criminal law (a notoriously blunt instrument) is relied on, as it is when child abuse allegations are litigated, there is always a danger that the exposure to its procedures will amount to an additional abuse of the child. In this particularly sensitive area there is a widespread view that any belief in the ability of the legal system to cope with child abuse is founded on ignorance of the deep social and psychological roots of such abuse (Myers 1986-87).

Nevertheless, as it is naive, unproductive and often dangerous to even consider eliminating legal processes from the area of child protection, ways must be found to make the legal system as 'child friendly' as possible, while maintaining its integrity and the protection of legitimate competing rights.

Whereas family law and child protection statutes almost universally have as a central premise the paramountcy of the child's welfare, this, as Rayner explains elsewhere in this issue, is a vague, fluctuating and subjective notion. There are obviously also grey areas, associated mainly with proof and substantiation, where the balancing of adults' and children's rights becomes critical. Issues relating to the scope and very existence of mandatory reporting requirements are constantly being debated, concerns are expressed at the delay in having matters listed and heard by courts, and at the shortage or even complete lack of lawyers, magistrates and judges who have a specialised understanding of and sensitivity to children's needs. It is important to consider the roles laws may play and how they might interact with other disciplines working to protect children.

LEGISLATIVE DIVERSITY

References to the legal system are unfortunately misleading in themselves. Australia, in contrast to the United Kingdom but consistently with the United States, has no single unified system when it comes to the treatment of children. Instead, we have a plethora of different laws at Commonwealth and State levels, sometimes consistent with each other, often not.

In a speech to the National Press Club in mid-August this year the Federal Human Rights Commissioner Brian Burdekin called for uniformity of standards and legislation in child protection, a move which would involve a considerable amount of interstate cooperation. Certainly in reading a small portion of the prolific literature emanating from the United Kingdom on its Children Act, the benefits of a single comprehensive statute which encompasses almost everything relevant to children's welfare becomes very attractive. The possible downside is that in such a circumstance if the politicians or draftspeople err in the procedures and legislative safeguards they enact, the consequences can be extremely serious for a large population of children.

ROLE OF INTERNATIONAL LAW

In addition to domestic legal systems, Australia also has broadly expressed international obligations following our relatively recent ratification of the United Nations Convention on the Rights of the Child (Harrison 1990.)

The Convention undoubtedly seems remote from the realities of child law and practice, despite the fact that several of its articles are specifically, and others are indirectly, of relevance. For example, Article 3 provides that 'in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'.

This coincides with domestic provisions which have been part of most of our State laws for decades but which have not necessarily translated into practice. The same Convention article also requires parties to the Convention 'to ensure the child such protection and care as is necessary for his or her wellbeing', taking into account parental rights and duties and those of others with responsibilities for the child, and to ensure that institutions, services and facilities responsible for the care and protection of children comply with the standards established by competent authorities, particularly in the areas of safety, health, the number and suitability of staff and competent supervision.

Article 9 is also relevant. It relates to circumstances in which children may be separated from their parents against their will, and restricts such decision-making to competent authorities who are subject to judicial review, operating in accordance with applicable law and procedures and being satisfied that such separation is necessary for the best interests of the child. It recognises that such determinations may be necessary in a particular case, such as one involving parental abuse or neglect or separation. This article also refers to all interested parties having an opportunity to participate in the proceedings and making their views known.

Article 19 requires the taking of all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation or sexual abuse while in the care of parents, guardians or others.

These may sound like a series of 'motherhood' statements, particularly as the Convention has no automatic effect on domestic law and its general language reflects the need to make targets, however broadly defined, achievable by countries with a variety of resource bases. On the other hand, the articles are not merely a series of platitudes. Ratification is accompanied by the obligation to report progress to the United Nations at regular intervals. The objective is to amend domestic law or, perhaps more importantly, policies and practices, so that they comply with the relevant articles of the Convention. In most areas, Australia's laws have little difficulty complying, but in others (in relation, for example, to the treatment of Aboriginal children) there are serious deficiencies which are being highlighted by a number of interested groups.

One of the important aspects of the Convention is that it puts children and their welfare clearly on the national interest agenda. Consequently it has real usefulness as a lobbying tool and has already been used as such in Western Australia to argue against the controversial young offenders legislation.

INDIRECT IMPACTS OF LEGAL SYSTEMS

The law and its procedures have an influence on the wellbeing of children over and above the obvious instances where they are the subject of court proceedings.

Many parties to family disputes actually bargain 'in the shadow of the law' (Mnookin and Kornhauser 1979). This phrase was initially used in relation to divorce proceedings, to show how separating couples are influenced in their negotiations over children, property and money by the particular law 'on the books', even where litigation does not eventuate. Views are influenced by advice received from lawyers, friends, workmates, relatives and neighbours, often in ignorance of the provisions of the 'real' law, or in circumstances where it is misunderstood. Once opinions about possible outcomes are framed negotiations will inevitably be shaped by the parties accordingly. This 'flow- on effect' (Moloney 1987) operates in Australia, although the litigation rate in custody and access matters appears to be less than 10 per cent. The effect undoubtedly operates, in a different form, in broader areas involving children. Child protection statutes as well as the Family Law Act espouse the importance of children via their ethos that the welfare of the child is of paramount importance. Children's welfare may also be subject to the different procedures, standards of proof and outcomes of the civil and criminal law.

Not surprisingly, the child protection area has been greatly influenced by the children's rights movement which has intermittently influenced jurisprudence, politics and social work since the turn of the century. The children's rights movement incorporates the beliefs that every individual is entitled to enjoy the full range of human rights, and that children are people in their own right rather than attachments of adults or the property of adults (Alston 1991).

The movement has had an eventful and often rocky progress, and its principles are more frequently conceptualised than implemented. The implications of these principles are evident in relation both to children abused or in need of care and those who have offended, and they affect what the Americans call 'due process'. They are apparent in debates about children's rights to legal representation, which frequently involve an acceptance that the interests of children and their parents may diverge.

ROLE OF THE MEDIA

One measure of the sensitivity of an issue and its controversial nature is the extent of its coverage in the electronic and print media. The widespread publicity given recently to the Florida boy who successfully 'divorced' himself from his parents was reminiscent of the coverage given to a similar dispute involving an irreconcilable differences application by a teenage boy in Victoria several years ago.

The press also described this case as 'boy divorces parents', although the relevant Victorian legislation did not allow a permanent placement of a child with new parents. There was considerable criticism of the provision which was alleged to infringe parents' right to discipline their children. The fact that 90 per cent of such cases had in the past been brought by parents against their children who were allegedly 'out of control' was unfortunately not highlighted by the press, which preferred to focus on allegations that the legal system was unbalanced as it gave young people too many rights over their parents.

The Victorian case had an interesting sequel, as the boy involved subsequently withdrew his application and claimed he had abused the system and had been pressured by social workers. The legislation was subsequently amended with the introduction of the Children and Young Person's Act, and more emphasis was placed on conciliation between parents and children.

Other, disparate, areas of public concern involving parent- child relationships, as measured by media interest, include the responsibilities of parents for the damage caused by 'delinquent' children, the role of human relationships education in schools, and issues relating to the care of children whose parents are both in the labour force. Of course, as Moira Rayner points out elsewhere in this issue, it is patently obvious and widely accepted that children and young people are not the same as adults. They are manifestly more vulnerable and, at different ages, have undeveloped/developing physical and mental capabilities. They are most at risk of death at the hand of adults in the first year of their lives, at which time adults have the greatest responsibilities to protect them, and young people are considered to have increasing rights (and obligations) as they grow older.

The attempt to balance rights and obligations provides a constant theme throughout western legal systems.

CHILD SEXUAL ABUSE AND LAW

The application of domestic law to children's welfare has been most dramatically involved with child sexual abuse issues and their management. A report of the Family Law Council (1988) has examined ways in which such matters had been handled in the context of the Family Court, and how they might be more satisfactorily dealt with in the future. The complexities of the area meant that the report had a long gestation period, and the definition of child sexual abuse was almost as contentious as the other terms of reference. Although these terms restricted the investigation to sexual abuse, many of the conclusions and recommendations flowing from them could as easily be applied to all situations where children require protection.

The Council's inquiry also involved a small study of files from several Family Courts, using cases identified by the court counsellors as being relevant because of the presence of an allegation of sexual abuse. The size of this study does not allow its findings to be generalised to a larger population, but several problems were identified which might have had an impact on the safety of the children involved. It was supplemented by information received from State welfare departments and a survey conducted by the Family Court counselling service in a number of registries.

Allegations of abuse have particular characteristics when raised in the family law rather then the welfare context. Family law disputes are essentially private (that is, they are initiated by individuals not the state). They are therefore client driven, usually arising from an allegation made by one or other parent after separation. It is not essential that the Family Court resolve definitively whether the allegation is correct or not, or even who the perpetrator is, as would be necessary in a criminal trial (Harrison 1989). Its main obligation is to determine what is in the child's best interests and make orders accordingly.

Although the Family Law Act emphasises alternative dispute resolution procedures for the resolution of disputes, there is a strong body of evidence which shows that conciliation processes are inappropriate where domestic violence or child abuse issues are in issue, due to the power imbalance between the relevant parties (FLC Mediation Report). Court procedures therefore become particularly important in such matters.

Litigation results in some assessment of the magnitude of the risk to the child, although the extent of discretion permitted to judges is such that precise findings or explanations are not required. Unlike State welfare authorities, the Family Court, including its counselling staff, have no continuing responsibility to support or help the family whose disputes are before it.

In criminal proceedings, in contrast, the identity of the perpetrator is vital, and any conviction can only be obtained if the court is satisfied beyond reasonable doubt that the offence has been committed.

In most Family Court cases involving abuse allegations the issue before the court is whether the alleged perpetrator should have access to the child. This occurs because a finding that he or she is at risk of abuse is obviously contrary to the child's interests. The allegations of abuse may be raised in affidavits, in counselling sessions or may be made to a judge or a lawyer. They may be made directly by the child or by an adult on his or her behalf.

The Family Court file study suggested that some outcomes were influenced by the intra-familial nature of the proceedings. In several cases involving apparently major allegations the final outcomes included consent agreements made by the parents, which allowed the alleged abuser to have access to or even custody of the alleged victim. It could not be determined whether (as is routinely claimed) the allegations were originally made as a tactical manoeuvre - to get the case on more quickly or to prove the unfitness of a parent - or whether the child had, in a sense, been sacrificed by a parent in exchange for a favourable property or other settlement.

Other concerns were identified. For example, there was anecdotal and some documented evidence showing that two proceedings involving the same child were underway simultaneously, either in the Family Court and a State Court or even in a State Supreme Court and a children's court in the same State.

It is not surprising that welfare authorities were sometimes confused as to whether they should persist with protective proceedings under State law once separate proceedings have begun in the Family Court, and whether they should seek to intervene in any such proceedings. The question which came to dominate the Family Law Council's attempts to grapple with the problems was how far the law or practice should be clarified or changed to ensure that the most appropriate court determined the issue, and eliminate or reduce the obvious confusion and duplication, which could result in the risks to children being increased.

There was also evidence that allegations of child sexual abuse resulted in a number of separate court appearances, sometimes preceded by assessments of the children being made by a number of different specialists. Some courts were obviously staffed by counsellors who were able and willing to liaise with outside non- government or government agencies, but the lack of systematic procedures meant that the success, even mere existence, of such liaison was dependent on factors such as personality and luck. The varying nature of legislation and services at the State level was also relevant. In Victoria for example the lack of a reporting provision in the child welfare legislation obviously affected the role of Family Court staff.

Another area where practices were far from uniform was in the granting of separate legal representatives for the children involved once a sexual abuse allegation was raised. Probably because of differing legal aid budgets, criteria and attitudes, there was no consensus that such representation was a foregone conclusion, regardless of the nature of the allegation. Judicial responses were equally varied, with supervised access to the alleged victim being a fairly common order while the outcome was being determined, and a great reluctance being shown to suspend or prohibit access. The nature of the supervision was a cause of concern, with the alleged perpetrator's mother or other close relative tending to be relied on. Undoubtedly the most controversial recommendation made in the report involved the suspension of access for 28 days while allegations of abuse were investigated.

The Family Law Council also recommended that selected child welfare courts be given some Family Court jurisdiction, enabling them to make custody, guardianship and access orders and with the intention of preventing gaps and duplication between the different systems. The report also urged the establishment of a separately identifiable national Children's Legal Service, and a form of mandatory reporting of allegations of abuse where they occur during any Family Court proceedings, including counselling sessions.

FAMILY LAW ACT AMENDMENTS

This last recommendation resulted in amendments to the Family Law Act in 1991. The Act now provides that a party who alleges that a child to whom proceedings relate has been abused or is at risk of being abused must file a notice to that effect and serve it on the alleged perpetrator, and the Court Registrar must then notify a prescribed State welfare authority of the allegation.

Any member of the court staff who has reasonable grounds for suspecting that a child has been abused or is at risk of abuse, must notify the welfare authority of his or her suspicion and its basis. 'Abuse' is defined widely to include an assault, including a sexual assault of the child which is an offence under a written or unwritten law, or a person involving the child in a sexual activity with that person or another in which the child is used, directly or indirectly as a sex object and there is unequal power in the relationship.

Where there is a suspicion of ill treatment or psychological harm, or children are perceived to be at risk of such treatment or harm, court staff have a right but no obligation to notify the relevant authorities. The extent to which these provisions are operating is unknown. Protocols are being established to determine the mechanisms that will apply once a report is made. In Victoria, it is assumed that any allegations arising in a Family Court context would be the subject of proceedings in the Family Division of the Childrens Court (Keough 1992). In the case of counsellors, the reporting requirements override any confidentiality that might otherwise exist between client and counsellor and which prior to the amendments was a source of considerable confusion.

The amendments also include restrictions on the number of medical, psychiatric or psychological examinations of children, by requiring the court to give leave before evidence resulting from such examinations is admissible in abuse or risk of abuse cases.

CHILDREN'S EVIDENCE

Another 1991 Family Law Act amendment allows the evidence of a representation (defined as being oral or written or inferred from conduct) made by a child and which is relevant to that child or another, to be admitted into evidence, although it would otherwise be excluded because it was hearsay.

The giving and acceptance of children's evidence in court proceedings is one area where a number of 'child friendly' procedures are possible, and several are, in different jurisdictions, in operation. Although beyond the scope of this discussion, both Australian and overseas jurisdictions have or are attempting to modify laws and procedures. For example, videotaping and closed circuit television may be used to protect children from possibly intimidating circumstances and from confronting an alleged perpetrator. Courts in the ACT and Western Australia have probably done more in this area than any others in this country.

The laws of evidence are strict and normally inflexible. With some exceptions, they prevent a witness from testifying as to what she or he heard another say (the hearsay rule). However, children's statements made out of the courtroom to a third person may be the only indication of an assault having occurred, particularly in sexual abuse cases where the clinical findings can be equivocal, there are no physical signs and the alleged perpetrator denies any wrongdoing.

The extent to which the laws of evidence may be relaxed depends in turn on the extent to which the accounts children give are reliable and accurate. As the Australian Law Reform Commission (1989) has pointed out, the possible trauma to the child caused by testifying is as relevant a consideration as the quality of the evidence itself. Related issues include whether children tell the truth, whether their memories are reliable, whether they are more suggestible than adults, and whether juries are likely to believe them. While research has shown that children as young as five can answer objective questions about straightforward concrete events as well as adults, it is apparent that when the event is unfamiliar developmental differences are likely to appear.

A number of assumptions about children's evidence and suggestibility remain untested and the apparent resurgence of research interest into their memory and ability to give accurate eyewitness testimony is therefore welcomed.

CONCLUSION

It is apparent that traditional laws and procedures and children's welfare are strange bedfellows. The complex balancing of procedures and interests which is inevitably involved in both disputes and allegations involving children and the operation of any legal system creates a number of tensions and it is trite to say that ineffective laws and/or those which are insensitively administered will harm children. Yet the intervention of laws and procedures will also on occasions lead to a reduction in the suffering of children and criminal prosecution will be warranted. Alternative approaches such as pre-trial diversion and compulsory treatment programs can be part of the legal response, and in such areas the blunt edges have been knocked off the traditional adversarial approach.

REFERENCES

  • Alston P (1991), Foreword to 'The UN Children's Convention and Australia', ed Alston and Brennan, HREOC, ANU Centre for International Law and ACOSS.
  • Australian Law Reform Commission (1989), 'Children's evidence by Video Link', Discussion Paper No.40.
  • Baker, E (1992) 'Parenting issues: a changing approach', Fifth National Family Law Conference, Perth, Business Law Education Centre.
  • Family Law Council (1988), Child Sexual Abuse, AGPS, Canberra.
  • Family Law Council (1992), Mediation, AGPS, Canberra.
  • Harrison, M. (1989), 'Major new report on child sexual abuse', Family Matters, No.23, pp.18-21.
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