The United Nations Convention on the Rights of the Child recognises that children have human rights. They have the right to have and express a view and to have those views taken seriously, and taken into account, they have the right not to be removed from their family without their consent, and not without Judicial proceedings, and a fair process. Children have the right to appropriate legal advice and representation, the presumption of innocence and the other 'due process' requirements available to adults if they are accused of criminal offences; and they have the right to special consideration, and the protection of adults and the State, because of their vulnerability and dependency arising from their status as children.

Children who commit offences, whose parents or guardians cannot or will not promote or protect their rights and freedoms, or whose rights have been infringed by others, are likely to be caught up in administrative and legal systems meant to protect them. They are particularly disadvantaged if they are caught up in judicial decisionmaking processes.

It is not so much that children cannot speak for themselves as that they cannot be 'heard'. The traditions of our legal system assume that they are not able to protect or promote their own interests.

The rules about the ability of children to give evidence in court are predicated on a belief that it would be unsafe to give the evidence of a child witnesses as much credibility as the evidence of adults (or in some cases, any credibility at all).

The rules about children's civil competence, which define children as 'persons under a disability', require an E adult to be appointed to represent their W interests in court. This applies to civil proceedings - if there is no 'next friend' or guardian for the purposes of the proceedings, no adult can sue a child, or obtain judgment or other civil a orders against them. But if children break the criminal law there is no equivalent protection preventing the State from taking criminal proceedings against them. Nor must children be represented by an adult in 'welfare' or family law proceedings, even though not only their property but also their most important rights (in human terms), generally called 'guardianship', are under consideration.

The criminal justice, welfare and family courts have an enormous impact on children. Young people are overrepresented in the criminal justice system and, with more than one marriage in three ending in divorce, are more likely than ever before to be affected by family breakdown. The failure of State 'welfare' systems to protect children not cared for by their families has been revealed in the many reviews of welfare and community services undertaken since the mid-1980s and, most recently, the findings of the Human Rights and Equal Opportunity Commission's Homeless Children Inquiry (1989). Systems designed by the State to meet the needs of children, such as children's courts for young offenders, and 'child welfare' administrative and legal systems, have rightly been criticised where they have failed, or where they do no better than reflect systemic social disadvantage. If we cannot rely on 'systems' to promote the rights of children, and if children cannot advocate them for themselves, what do we expect will occur?

Children's Participation in Decision Making

Children's particular disadvantage in participating in legal or administrative systems arises not only from their physical immaturity but the fact that socially they are not accorded the status of citizens. Children do not have the money, the 'know-how', or the means of acquiring economic independence: for example, they cannot purchase legal services at market prices (even if they knew what they were). Children do not know what the law is and they do not understand legal or Judicial processes. Their physical immaturity and lack of social experience mean that they have limited language and comprehension skills, lack the social skills necessary to deal with authority, and are probably suggestible and easily frightened.

This could be said of any minority group. The distinctive difference is that children are not required to be treated with respect. This means that although they have the same basic freedoms as adults to self- determination, autonomy and bodily integrity, both at Common Law and as a matter of international human rights principles, they cannot in fact enforce them.

The Common Law system Australia inherited from the British colonists does not recognise 'rights' unless there are remedies. Those remedies are traditionally declared and enforced through a 'Judicial process, through courts of law. Rights can be removed by legislation, but are affected far more through private acts (for example, decisions by parents about how to 'discipline' their children) which are never seen or challenged outside the home, and by administrative acts (for examplc, decisions by welfare authorities to remove children from their parents' care for their protection) which may never be brought to the courts' attention.

The Rights of Children

The 'rights of children' are often portrayed as antipathetic to the 'rights of parents'. Parents' 'rights' are more aptly categorised as fiduciary duties, to promote the rights of their children through parental use of relative power and authority. The recognition of children as having human rights was portrayed by propagandists in the lead-up to Australia's signing of the UN Convention on the Rights of the Child in 1990 as destructive of so-called 'family values'. That phrase is a sort of portmanteau one, incorporating concepts of order and harmony both within the family unit, through clear explication of lines of authority and responsibility, and in the community, based on an explicit shared community value of institutions and relationships intended to care for weaker members of society, particularly children.

Of course, children are not particularly 'ordered'. Because they have not yet learned the rules of social conduct they are anarchic, demanding beings. They learn the conduct required in adult society and to accept responsibility by making mistakes, including mistakes which, in adults, might be condemned and punished.

In terms of the development of the criminal law, we stopped treating children as miniature adults and began to talk about their 'protection' from falling into a life of vice and crime during the 19th century. In the early 1970s we moved towards a recognition of their 'rights', usually in terms of entitlements to services and protection from cruelty and neglect. We had already begun to set up special administrative and judicial systems to deal with offending and abused and neglected children and with family breakdown, which were all intended to be fairly informal and discretionary. But in the absence of formal rules and boundaries, implicit ones developed. These, and the impact of discretionary administrative decision-making, caused failures in services and systems, and led to demand for open and fair processes of decisionmaking affecting children. In the 1980s there was a swing towards a 'justice model' for young offenders and a recognition that discretionary systems were themselves capable of abusing children by, for example, enabling indeterminate detention for minor offences, or allowing children to become 'lost in the system' as State wards.

In the 1990s there is a fresh move. There is a clear push for the recognition that. children are human beings with the same human rights as adults. These include self-determinative native and participatory rights, as well as rights to special treatment and consideration because of the vulnerability in that transient state called childhood. The UN Convention on the Rights of the Child, adopted by Australia in 1990, requires Australian law, policy and procedures to address the basic human right of being treated with respect to apply to all children.

Legal Representation for Children

Adults make special allowance for the mistakes and needs of some, but not all, children: for example, it is now recognised that teenage Aboriginal boys are grossly over- represented in the criminal justice system, and continue to be so as young men. Aboriginal people tend to be arrested more often and for more trivial offences, and to be imprisoned for longer periods than nonAboriginal people; they are not offered a similar range of diversionary procedures as non-Aboriginals. Much of the reason for this lies in racially discriminatory attitudes so clearly described in the Report of the Royal Commission on Aboriginal Deaths in Custody in 1991.

In the administration of criminal and child protection laws there is clearly considerable room for the exercise of discretion which might be of benefit to a child. The opportunity for discretion arises from the control over the child. Such control can be misused, particularly if the child has a continuing relationship with and depends on that person. Where an adult has some sort of biological and personal relationship with a child it is assumed that the discretion will be used for the exclusive benefit of the child. If there is no such relationship, the exercise of such a discretion (for example, by a police officer, social worker, shopkeeper or teacher) might be benevolent, but this depends on some perception that the child is not 1 mature', should not be required to accept full responsibility for his or her acts or omissions, and needs protection from their consequences.

Perception of 'maturity' is very personal, and differs from one person to another. This is especially so when dealing with older children, adolescents and teenagers, who are not as obviously dependent as toddlers and other young children. Teenagers are perhaps the most disadvantaged group of children: the law does not clearly recognise their rights and freedoms and their special 1 in between' status, and teenagers occasionally give the appearance of competence while their maturity actually fluctuates from hour to hour, decision to decision, relationship to relationship.

Allowing Children to Participate

When I first began acting for children and young people more than 20 years ago, I usually acted on the instructions of their parents. This did not seem strange until the first instance I had of a conflict of interests and of competing rights claims.

In one instance, the child's instructions in a criminal case differed from the parents'. Which plea was I to make' In another, I was threatened with contempt by a magistrate because I had argued that a 15- year-old girl who had run away from home because she had been sexually abused by her father and beaten by her mother be~ cause of it should not be detained in an institution. I said that she should be permitted to reside with family friends, as she wanted, and that she be permitted to give instructions to her lawyer (myself), notwithstanding her parents' wishes to the contrary. I said she should be legally represented in the 'care and protection' proceedings taken by the welfare authority even if the parents did not wish this. I had been denied access to my client by a social worker who thought that it would be disruptive for the girl to see the lawyer she had telephoned from the institution in which she had been placed.

Things have changed. For lawyers working with children there is quite clearly a new emphasis in legislative reform and in developing Common Law that recognises children's rights to participate in decisions which affect them. Though breached in the observance, children's rights to information, choice, advice and advocacy are much more recognised.

Can a Lawyer be a Child Advocate?

But just what sort of advocacy can a lawyer reasonably provide? Over the last five years it has been recognised that children are poorly advised and represented (if lucky enough to be represented at all) by lawyers. There is anecdotal and sociological evidence that children often do nor understand the systems they are caught up in, and certainly do not understand the events in a court-room, or what their lawyers can do or are doing to promote their interests.

Children's lack of understanding is balanced by the lack of knowledge of players in the legal advocacy field - solicitors, barristers, some magistrates and judges - many of whom have little understanding of the position or needs of marginalised older children and young people or the services reason~ ably available to them (Youth justice Coalition NSW 1990; Alder, O'Connor, Warner and White 1992).

Child advocacy is a strange kind of representation for lawyers to provide. It requires much more than 'black letter law' skills. There are very few specialised legal services for children, and there is very little training for advocates for children. Where specialised services are provided, they are either not formally recognised as a specialised service (such as the extensive legal service provided by the Victorian Legal Aid Cornmission), or are inadequately resourced and provided by community-based services. Where specialised services are .recommended to government, such as the 'Children's Legal Service' proposed by the Family Law Council, those recommendations are not taken up.

Perhaps this is partly because there is at least some acknowledgment that pure legal advocacy is less important than the wide range of 'advocacy' that can take place before, outside, and beyond the 'tribunal' stage. Informal advocacy is likely to be far more important than the quality of advocacy before an adversarial tribunal, by which stage the damage has probably already been done. The child might have been apprehended, kept from a loved parent or separated from siblings, or required to have 'access' to a feared relative or perceived stranger. The child might have been medically examined or treated; placed in the custody of parents or strangers until the full dignity of a legal process could take place. The child might have been questioned, counselled, persuaded or paraded. At the end of that, what child could seek assurance in a legal advocate in the alien environment of a court-room?

There are also few legal advocates for children. One reason is the general low status that legal work for children attracts. Another is the lack of awareness within the legal profession generally that very special skills are required for child advocacy, far more than legal competence. This lack of sensitivity affects the quality of children's legal representation given by some lawyers, the perceived worth of 'child representation' in general in the eyes of the profession and the courts, and, through their professional bodies, the advice given to government about the resources of child advocacy training and services. This in turn ensures that there are few resources for training for child advocates, thus perpetuating the cycle. Without effective training, or even an understanding about what good, cross-disciplinary training or even cooperation can do to improve the quality of advocacy and thus of decision-making for children, there are (and will continue to be) very few specialist child advocates in Australia at all. As long as there is no national children's legal service or policy advocacy body, many legal practitioners might never be aware of their lack of knowledge, and if they do occasionally represent children in the Family, Children's or other courts, they simply will not realise the extent to which child advocacy requires special knowledge and skills (that they do not possess), and the extent of their failure.

When lawyers do act regularly for children they become aware of the conflict of interest-claims. Do children have rights? If they do, can they be overridden in their 'best interests'? To what extent do the wishes of parents, as the adults intimately acquainted with their child, impact on children's instructions? Should a lawyer, working with a child, try to assess what their welfare needs, as opposed to their expressed wishes, are' How does the lawyer assess 'best interests' or welfare? The latter question is a crucial one: can an experienced child advocate acquire the expertise of other professions by osmosis, so to speak, and thus become not only a professional legal advocate but an expert in child welfare as well?

It would appear that the legal profession at least feels that the latter suggestion is possible: in 1990 the Family Law Council suggested that the Commonwealth Attorney-General should re-assess the role of the separate representative of children in the Family Court to resolve some of these dilemmas (FLC 1989). Relying on advice from his department and the profession, the Attorney did not take up the suggestion. The Council proposed that Australia adopt a combined model of the British 'Official Solicitor' and 'Guardian ad Litem' advocacy models, clearly separating the responsibility to provide the court with the necessary expert evidence to determine what a child's welfare might require, and the separate advocacy of the child's instructions by a trained child advocacy expert. The traditional (and clearly illogical) view, that lawyers can assess and promote a child's best interests without professional training, reflected in the Commonwealth's response to the Report, was promoted by many legal professional bodies.

Lawyers are not experts in child welfare: if one could become an expert by frequent exposure to its practice, I would be an expert oral surgeon and tram driver. Even the most experienced child advocates do not know, better than a child, what he or she wants. They can at best learn how to find out what his or her wishes are, adduce expert and other evidence which might persuade a court as to the best decision to be made, and challenge stereotypes and assumptions about their client and their instructions. But these are the skills of an advocate, not of a child care professional. In determining what will best promote a child's welfare or best interests, neither is a court an expert in child welfare or good parenting practices. A court making such decisions is applying discretionary judgement, well or badly, according to the information presented to it, as to what a child's welfare or best interests require.

What constitutes the child's best interests is not a fact but a valuejudgement. We can only assess what is good for other people by some kind of comparison using our own experience and value-systems, informed or not informed. We learn our personal rules for judging relationships with others, almost unconsciously, by observation and experience. Our perception of worth and values is deeply personal, arising from shared community values or cultural expectations as well as from what we learned unconsciously in our earliest, dependent years about how we I ought' to relate to other people.

Dignity of Children: The High Court and Parents' Rights

A dominant cultural view about children has been reflected in the practices of courts and the legal profession for many years. Respect for children is not a feature of Australian society generally, nor in courts particularly. The dominant cultural view is also reflected in the rules which govern how, and to what effect, they can give evidence, referred to earlier.

These evidentiary rules are based on beliefs that a child is less able to observe and remember than adults, more liable to fantasise and less able to distinguish fact from fantasy, less able to recall relevant detail, much more susceptible to the temptation to lie, and to influence or be influenced by others to lie, to he influenced by adults and subject to. suggestion during interrogation, to be unable to understand the duty to tell the truth, and to fabricate stories. These views are not borne out by research evidence, but are remarkably persistent (Spencer and Flin 1990:236).

The rights of children, and the regulation of dependent relationships, were discussed by the High Court in looking at whether the parents of an intellectually disabled girl could authorise her sterilisation, without leave of the Family Court, in the 'Marion' case (Secretary, Department of Health and Community Services v. JWB and Another, 106 ALR 385). This case concerned not only the parents' rights to authorise the sterilisation of an intellectually disabled young woman who happened to be a minor, but also the human rights of all children and the responsibilities of parents. (The case was discussed by Margaret Harrison in the last issue of Family Matters, No. 32, pp. 10-12.)

The majority of the High Court expressly adopted the House of Lords' decision in Gillick v. West Norfolk Area Health Authority (1986, AC 112) that children - any children - are legally competent to make particular decisions when they have a sufficient understanding and intelligence to understand fully what is proposed. Even an intellectually disabled child should not be assumed to lack the legal capacity to consent to her own medical treatment.

This firm statement of the Common Law obviously has implications for any decision-making with the potential to affect seriously the person, or even the personal happiness, of a child. Children clearly have a right, if they are 'competent', to participate in medical decisionmaking, and to withhold consent to medical treatment, which is not limited to treatment which involves surgery (Gillick involved contraceptive advice). Parental powers are duties to be exercised for their children's benefit, and parental 'rights' are rights to perform these duties without unnecessary State supervision. They are not absolute: even parental rights to control a child, based on traditional custody 'rights', wane and finally are no more than 'the right to give advice' as a child acquires that ability.

It follows that at Common Law children have the right to participate in all decisions that affect them intimately. This is especially apposite to decisions which will affect where, and with whom, a child lives (such as guardianship/custody/access decisions) and decisions about a child's responsibility for criminal acts. In the case of Judicial decision-making, children need help, and are entitled to have their views made known through their instructions to counsel.

This logical outcome explicitly imposes unfamiliar responsibilities on lawyers for children - to act on children's instructions. We know that children's cognitive ability is not strictly predictable according to factors such as chronological age. We also know that a child's capacity to comprehend I what is proposed' will depend on the language, concepts and circumstances surrounding the decision, as well as the expectations and wishes and suggestions, explicit or implicit, of the adults concerned. There would appear to be an onus on adults involved in decisionmaking processes to seek to involve children in these decisions, and to use every available means to explain what is proposed in a way a child is capable of understanding, no matter what their chronological age.

The onus is heaviest when the impact of the decision to be made is likely to be greatest - surgery is one instance because of the damage to the child's body it involves, but a change in guardianship might be as intrusive as it can involve changes in school, place of living, and contact with significant others including siblings and relatives and influential strangers. These seem equally if not more significant than a scalpel. These adult responsibilities would seem to require a detailed understanding of children, particularly their behaviour and comprehension under stress (every lawyer knows of the child who wants to return to an abusive parent who might sexually or otherwise brutalise or abuse the child). 'This is not a part of legal training.

This said, it should be obvious that the child's right to participate means that lawyers clearly do not have the right, often asserted by well-meaning adult workers with children, to advocate their own views rather than the express instructions of the child. A lawyer's duty to a court (not to mislead or deceive the court, and to promote the interests of Justice) might well impose additional ethical and professional duties on a legal advocate, but to act without or contrary to a child's instructions is not to be undertaken lightly, and certainly these duties to justice are no carte blanche for advocates to promote their own views.

In the Marion case the majority of the High Court found that guardians of an intellectually disabled girl did not have the power to authorise sterilisation without an order of the Family Court, which ought to be given when the 'best interests' of the child required it, given that child's right to bodily integrity. 'Best interests' is still the test most courts use to determine disputes involving children.

'Best interests' is thought to be an objective test, and a way of fettering parents' considerable power over their children. It is not. It is a vague and sometimes subjective test, and not a guarantee of objectivity (Alberta Institute 1989:61). The meaning of 'best interests' fluctuates according to the state of professional research and publishing. Once, a child's 'best interests' was assumed to mean remaining in the .custody of a male rather than the female parent, which reflected the social and economic limitations placed on women. 'Although ideas of what is good or bad for children's healthy mental and social development may be legitimated by the language and trappings of science and medicine, they are neither scientific nor medical in the acceptable sense. They are rather moralistic and value-laden, emerging from the cauldron of prevailing beliefs and social conditions.' (King 1981:112)

Justice Brennan, in the High Court, rejected a completely discretionary approach to authorising sterilisation, in each set of circumstances, based on 'best interests', as merely leaving the decision to 'an unexaminable discretion'. Instead, he adopted an explicit principle based on human rights: the measure by which the 'Impairment of human dignity' is effected by the decision proposed. Respect for children's human dignity is the test which should be explicitly applied to every decision affecting children, particularly those taken either without their participation or against their wishes.

Justice McHugh discussed parental duties to make decisions for their children, and pointed to their fiduciary nature (Dingwall and Eekelaar 1983.) Parents' powers over children must be used to the child's benefit, and cannot be used where the parents' and the child's interests conflict. This characterisation is another, fundamental rule for parents seeking to justify, say, the use of physical force against a child as a means of 'discipline' when they are themselves in a state of anger or frustration or even where they wish to resolve a dispute with another adult about a child in the Family Court. Wherever parental powers can no longer be reliably presumed to be exercised for the benefit of the child alone because of a conflict of interests, they cannot be exercised safely at all.

Child Advocacy: A Human Right

The High Court's express recognition of the need for a constraint on discretionary powers over children is based not only on fundamental common law principles of respect for human dignity and personal integrity, but also on international human rights obligations to protect and promote the rights of children.

For many years Australia has accepted human rights obligations which, until recently, have appeared relatively insignificant on a local level.

These rights include the guarantee of equality before the law, courts and tribunals contained in the International Covenant on Civil and Political Rights, and the recognition of human rights that children share under the UN Convention on the Rights of the Child - rights to freedom of thought, association and expression, to be brought up in an atmosphere of love and acceptance, to take part in the life of the community as an individual, usually in a family, not to be removed from the parents without consent, and the right to participate in decisions that affect them.

From time to time Australia has enacted domestic laws which express some, but not all, of these rights. It has put the child's 'best interests' and right to be protected in Section 43 of the Family Law Act 1975, and required the Family Court to take a child's wishes into account, but it has neither legislated for nor provided the resources to mandate legal representation in welfare or guardianship proceedings, or even in criminal trials, though these are specifically addressed in the UN Convention on the Rights of the Child.

No laws can compensate for lack of a voice, or lack of recognition of the right to be heard. That is why the basis of decision-making for children needs to be founded on respect for them, and why ways of allowing children to be heard are so tremendously important.

A child whose views are not valued, whose perception of reality is discounted as unreliable, who has no social or economic clout, and who, when in trouble and involved in adult Justice or welfare systems, can neither approach a lawyer nor use any outside support systems, is not involved in a 'justice' system. Any system, including a family system, which does not give children an effective opportunity to be heard is not a just one.

The essence of relationship breakdown, child abuse and indeed all forms of discrimination and human rights breaches is a lack of respect for the other person.

The UN Convention on the Rights of the Child clearly spells out that children have rights of their own, including the right to participate in decision-making, to express their views, to be informed, and to legal advice and representation in criminal proceedings. These principles are now capable of being a part of Australian domestic law - not by themselves, because international human rights documents do not apply as laws within a country, but wherever courts are required to interpret local laws, under the Bangalore Principles (see footnote), and by Commonwealth legislation.

'Rights' mean little if adults can override them in circumstances that merely seem special to them. Those who work with children must have a very clear view of their role and children's rights, which will give them the moral courage to stand up to cynicism, or professional or peer pressure.

This is particularly important for legal advocates for children. It is easy to give the appearance of advocacy, while further reinforcing powerlessness. Inadequate advocacy is more damaging perhaps, than none at all: poor legal representation might disarm a benevolent court's sensitivity to the need to protect a child's right and to ensure their understanding of the proceedings.

Nor is it enough merely to provide legal professional advocacy from within a generalist professional approach. Children need advocates, particularly within a legal or justice framework, which takes into account the huge range of advocacy styles and skills and knowledge needed. The solicitor who occasionally takes on a children's court case will probably not know how to obtain the client's instructions, or appreciate the need for advocacy outside the courtroom well before any formal legal system involvement. Such a solicitor will probably not understand the need for' follow-up, for example, after a child's 'custody' has been determined, and will not necessarily be sensitised to the implicit pressure to conform to the practices adopted by adult systems. He or she probably will not appreciate the need to acquire professional advice and support on children's wishes, instructions and needs when they are thought to have been the victims of parental abuse. He or she will not do the job properly, and may never know.

Children need advocates, and advocates need training, and child advocacy must become a specialisation which is adequately recognised and resourced. The continued lack of child advocacy i's a serious breach of children's civil and human rights.

The UN Convention on the Rights of the Child requires that a child be 'fully prepared to live an individual life in society and brought up in the spirit of peace, dignity, tolerance, freedom and solidarity'. That can only be done if children are respected as human beings, as having hopes and fears that are precisely the same, and as important, as the hopes and fears of adults. We cannot achieve this aim merely by resolving to protect children. We must remove the legal and administrative barriers which keep them silent, and equip them with the means of protecting their own rights to dignity, respect and personal integrity.

References

• Alberta Institute (1989), Competence and Human Reproduction, Report No.52, Alberta Institute of Law Research and Reform, Alberta.
• Alder, C., O'Connor, ., Warner, K. and White, R. (1992), Perceptions of the `Treatment of juveniles in the Legal System, National Clearing House for Youth Studies, Department of Education, University of Tasmania, Hobart.
• Dingwall, R. and Eekelaar, J. (1983), The Protection of Children: State Intervention and Family Life, Blackwell, Oxford.
• FLC (1989), The Representation of Children in Family Law Proceedings, Family Law Council, Canberra.
• Human Rights and Equal Opportunity Commission (1989), Our Homeless Children, Report to the National Inquiry into Homeless Children, Human Rights and Equal Opportunity Commission, AGPS, Canberra.
• King, M. (ed.) (1981), Children, Welfare and justice: A Critical Examination of Children in the Legal and Child Care Systems, Billing & Son, Oxford.
• Youth Justice Coalition NSW (1990), Kids in justice, Allens, Surry Hills, Sydney.
• Spencer, J. and Flin, R. 1990), The Evidence of Children. Blackstone Press, London.

Note

See, for example, Kirby, M. The Role of the judge in Advancing Human Rights by Reference to International Human Rights Norms (1980) 62 ALJ 514, 522. Kirby argues that the Bangalore Principles permit Australian Courts to incorporate human rights standards into the interpretation of domestic law. The High Court increasingly refers to fundamental human and civil rights in this way, nor only in the interpretation of the Australian Constitution (in the range of decisions following on from the 1983 Dams case) but also antidiscrimination law (the Victorian Equal Opportunity Act, in Waters v. Public Transport Corporation, 3 December 1991) and in its interpretation of the historical origins of Australian Common Law (the Mabo case, May 1992, and most recently in reviewing the Commonwealth's attempt to constrain political advertising, September 1992).