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New Zealand Human Rights Commission Submissions |
Last Updated: 31 May 2015
Human Rights Commission
Submission on the
Green Paper for Vulnerable Children
28 February 2012
Jack Byrne
Senior Policy Analyst
Human Rights Commission
Direct dial 09 375 8647
Email: jackb@hrc.co.nz
1.1 Section 5 of the Human Rights Act 1993 (HRA) sets out the functions of the Human Rights Commission (the Commission). The Commission’s two primary functions in section 5(1) of the HRA are:
1.2 The Commission welcomes the Green Paper as an opportunity to input to an important national human rights discussion about child protection and wellbeing. The Commission’s submission addresses key areas covered in the Green Paper and some particular issues in detail. It begins with the voices and input of children and young people who we consulted about the Green Paper.
1.3 In its work the Commission applies the six elements of the human rights-based approach as a conceptual basis for assessing policy and legislation. This approach was developed internationally and adapted for New Zealand by the Commission. Its six components are:
1.4 This approach
directs policymakers to international human rights standards, how to balance
what may appear to be conflicting rights,
and the key underpinning concepts of
participation, non-discrimination, empowerment and accountability.
1.5 The Commission’s submission draws heavily on the United Nations
Convention on the Rights of the Child (UNCROC) including
the guidance provided
by the relevant United Nations Committee through its general comments and its
specific recommendations to New
Zealand. In doing so, the Commission strongly
advocates for a strength-based child rights approach that acknowledges the
rights and
dignities of all children, not just those defined at any given point
as vulnerable.
1.6 The Commission met with children and young people and youth workers and
their voices open the submission, before it focuses specifically
on three of the
four sections in the Green Paper, namely Share Responsibility, Show Leadership
and Make Child-Centred Policy.
Participation
2.1 Participation is a fundamental component of a human rights based approach, and is one of the key underlying principles of the United Nations Convention on the Rights of the Child (UNCROC). Article 12 of UNCROC states that:
2.2 The UN Committee on the Rights of the Child has stated that “child participation promotes child protection and child protection is key to participation”.[1] The Committee has emphasised that “children’s views must be invited and given due weight as a mandatory step at every point in a child protection process”.[2]
2.3 Further the Committee has noted that “the child’s right to be heard has particular relevance in situations of violence” and that “with regard to family and child-rearing, ...this right plays a preventive role against all forms of violence in the home and family”.[3]
2.4 To inform this submission, the Human Rights Commission used questions developed by the Office of the Children’s Commissioner and the Ministry of Social Development to ask children and young people for their views on issues raised in the Green Paper. The list of questions included “What makes a good childhood?” and “How should the Government support young people and their families?”
2.5 The Commission was aware of consultation being undertaken by the Office of the Children’s Commissioner and chose to complement that by focusing in particular on disabled, refugee and migrant children. In addition, the Commission translated a flyer into te reo Māori and circulated this through its networks.
2.6 Seven sessions were held involving 164 children and young people from the ages of 10 to 21. They included:
2.7 Many of the young people spoken to stressed their wish to be asked about
their views and to have these listened to by adults.
Ask us!
Do more surveying to see what's best for children
Getting choices, instead of others deciding for us
Themes /
responses
People who care about you
2.8 A clear theme to emerge from the feedback the Commission collected was
the importance of family support. Love, kindness, care
and respect from parents,
family, neighbours, teachers and carers were seen as key to a good childhood,
along with guidance, reasonable
boundaries, discipline and help when needed.
2.9 Some children and young people also wanted greater freedom to try things
for themselves – “let them make their own
mistakes” – to
do their own thing and be themselves. Space and respect for privacy were also
mentioned with responses
such as young people need “more freedom and
trust”.
A caring family to love and guide you through life
Parental love and attention
Freedom with boundaries
Bend the rules a little but not much
Boundaries, punishment if you need it – but not stupid
punishment
Time with parents
2.10 Spending quality time together and having focussed time and attention
from parents were raised by many of the children and young
people the Commission
spoke to. Having fun and being able to play and do fun things were frequently
seen as important aspects of
childhood. Being able to enjoy being young was also
noted – in contrast to the responsibilities that some young people have
for looking after younger siblings.
Quality and quantity of time is what is needed.
Take them to the play ground, take them to watch a sports game, take them for a bike ride, a walk. Spend time with them. Do stuff kids want to do, kick a ball around. It is the little things in life, little memories.
If parents are on low income there could be support so parents can spend time with children and not have to work all the time.
Parents work too much.
2.11 The importance of positive role models was mentioned a number of times, particularly the influence of parents as role models, as well as the detrimental effects of witnessing bad behaviour from adults.
When you are young you are a sponge – so whatever is around you take it in, you copy a lot of things, what hurts is the little things.
A good neighbourhood = a good childhood. A good family = a good childhood.
What your parents do will rub on to you.
Basic
needs
2.12 Feedback highlighted the importance of basic necessities such as food,
shelter, clothing, education and healthcare in order for
children to thrive.
Many responses identified money as an important issue, and concerns were raised
about employment, adequate income,
benefits and “not living in poverty, an
adequate standard of living.” Young people also wanted better quality,
secure
housing and suggested:
Stop mildew in homes, warm up the houses
Stop kicking parents out of Housing NZ homes
2.13 Some young people wished for “lower living costs”,
“lower food prices” and “lower school fees”
or talked
about the need to “remove financial pressures on parents.” There
were indications that some young people also
felt those pressures, having to
care for siblings while parents worked, or themselves having to work to support
the family.
2.14 Others highlighted the need to have the appropriate things required to
participate at school, including good food and enough
sleep. The essential role
of education was mentioned numerous times by participants.
Give a kid a decent education and the world's their oyster
[Make sure] there is not a push to go straight to work after high school
because the family is supported
financially
Inclusion
2.15 Inclusion was particularly highlighted by young people with intellectual
disabilities who the Commission met. A particularly
poignant comment from one
disabled young person with a significant impairment was: “[It’s]
good when people say hi and
I can say hi back.”
Sometimes mainstream kids make us feel left out. We have to change
ourselves so they would get to know you – it is
devastating.
Safety
2.16 Many disabled young people talked about bullying, and the need for
support for people who experienced it, particularly at school.
2.17 Other young people also raised the issue of safety at school or at home
and the detrimental impact of violence on their lives.
Witnessing violence or
arguments amongst parents or other family members was also mentioned.
Make sure we are safe at all times.
No domestics
Not getting hidings
2.18 Discussion about government agencies sharing information usually came up in relation to issues of safety. Young people typically felt that in those circumstances it was appropriate for information about them to be shared. However some felt older children should have the opportunity to talk about whether or not their information could be kept confidential.
[The government should help] if we are scared, for safety reasons.
If you need to talk [to others] you should ask us first, especially if we
are over a certain age.
Suggestions
Support parents’ income so young people don’t have
to
2.19 Young people were asked how the government could help them do well and
support them and their families. Their suggestions included
various forms of
financial assistance either directly to families, or by funding community
projects and activities including youth
networking and youth advocates.
2.20 Young people were able to identify people and groups outside their family who they could contact if they needed support. Some specifically said this community support should be better valued.
Support communities’ strengths so they can become strong.
Recognise volunteer work that the community does.
2.21 Investing in education was a top priority. Suggestions included ensuring
primary and secondary education is actually free, better
funding for schools
including those outside the mainstream education system and for technology such
as laptops. Young people also
suggested better access to tertiary student loans
and higher student allowances.
2.22 Children and young people identified counsellors and social workers as important sources of support. They asked for greater ethnic diversity of counsellors and suggested social workers should be available to check on children who may have trouble at home. Advice and support about how to find employment was another identified need.
2.23 Parenting education was raised by many of the young people, particularly
for young teen parents. This included providing information
about “what it
takes to raise a child to be healthy and responsible” and “on
understanding child welfare.”
They thought parents needed to be
“made aware of what the rules are in this country (smacking
etc).”
3.1 The international human rights standards around the rights of children
are set out most comprehensively in the United Nations
Convention on the Rights
of the Child (UNCROC) which is summarised in Appendix 1. Specific obligations in
relation to disabled children
are in the Convention on the Rights of Persons
with Disabilities (CRPD). The rights of children and young people are a
fundamental
component of both of the core International Covenants on Civil and
Political Rights (ICCPR) and Economic, Social and Cultural Rights
(ICESCR). New
Zealand is bound by these provisions, having ratified these covenants and
conventions, and is required to regularly
report to the United Nations on steps
taken to realise these obligations.[4]
3.2 The United Nations Declaration on the Rights of Indigenous People (UNDRIP) provides valuable guidance about measures required to realise the human rights of Māori children. Whilst the declaration itself is not binding, many of the provisions reflect obligations set out in ratified conventions or covenants. Others are aspirational.
3.3 This submission draws on guidance from United Nations treaty bodies,
particularly guidance from the Committee on the Rights of
the Child (CRC). This
is expressed in the Committee’s general comments and its 2011 concluding
observations in response to
New Zealand’s periodic reports against its
UNCROC commitments. The Committee’s most recent recommendations to New
Zealand
in 2011 are attached as Appendix 2.
3.4 The key international and domestic human rights standards of relevance to the Green Paper include:
3.5 The 2011 Concluding Observations from the CRC and the priority areas in the Commission’s report Human Rights in NZ 2010 clearly identify significant challenges in realising both children’s rights generally, and the rights of those groups of children most likely to be disadvantaged by structural discrimination. This balance between universal rights and special measures is evident in the CRC’s recommendations that New Zealand ensure full protection against discrimination on any grounds, including by:
3.6 The
Commission suggests that the Green Paper’s focus on ‘vulnerable
children’ should be balanced with a strengths-based
child rights approach.
Otherwise it risks reinforcing deficit-models criticised by many, including
Māori. Such a strengths-based
approach has been taken in Australia’s
National Framework for Protecting Australian Children 2009-2020. This
reflects a public health approach which interprets child protection widely and
avoids reducing it to an issue of simply responding
to abuse and neglect.
3.7 This challenge is particularly relevant to considering the rights of
disabled children who are too often defined by their specific
health needs or
diagnosis rather than their inherent dignity, individual autonomy and abilities.
4.1 The Commission welcomes a review and discussion about the balance between parental and community responsibility for care and child protection. UNCROC specifically addresses the relationship between a child’s rights and those of parents and extended family. Article 5 states:
States parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of rights recognised in the present Convention.
4.2 In other words, a parent’s direction and guidance must still be
within the context of realising the child’s rights
as set out in UNCROC.
4.3 UNCROC prioritises the role of the family in children’s growth and wellbeing and consequently obligates the Government to prioritise family support in its economic and social policies and expenditure. In its General Comment No 13, the Committee on the Rights of the Child suggests a range of social policy measures to prevent abuse of children and support the care of children on a universalised basis, including:
4.4 A key finding of the Commission’s review of Human Rights in New Zealand 2010 was the need to develop and maintain initiatives that support families. In its examination of New Zealand in 2011, the CRC expressed concern that “families in some population subgroups lack adequate assistance in the performance of their child-rearing responsibilities, and notably those families in a crisis situation due to poverty, alcohol, drugs or isolation” (para 30). Likewise, children identified the pressures and hardship that “not having money” can have on their parents in their feedback to the Commission’s consultation about the Green Paper.
4.5 Poverty reduction and addressing systemic inequality are therefore critical components of any strategy to support parenting and ensure child wellbeing and safety. There is opportunity for this to be addressed in the reviews and reforms currently underway in relation to welfare, employment and tax reform.
4.6 The Commission supports a mix of preventive and proactive measures and secondary and tertiary interventions to support quality parenting and community involvement in child protection. These should be strengths-based and resilience focused.
4.7 Positive initiatives currently in place include the Early Childhood Education (ECE) subsidy for children over three and children under two who are in State care, and provision of disability assistance to parents and caregivers through the social security and health systems. However, in its concluding observations, the CRC recommended that the Government consider extending the ECE subsidy and that more provision be made for temporary and after-school care.
4.8 The Green Paper asks whether government has got the balance right in supporting parents, caregivers, family and whānau to meet their responsibilities while also protecting the needs of vulnerable children. The sections below look at some specific challenges and opportunities that arise in relation to Māori whānau, disabled children and their families, and children and young people in the care of the state.
Māori to determine support
4.9 Norms and values relating to child-rearing and caring are culturally constructed. For family and parental support to be relevant to Māori it is therefore important that it reflect and be targeted at what Māori consider as appropriate measures of wellbeing for their tamariki. Māori indicators to measure progress have been explored in Māori research including:
4.10 The current Inquiry into the Māori
determinants of child wellbeing provides an invaluable opportunity to progress
development
of Māori determined measures of child wellbeing, which should
then be used to inform the development and delivery of parenting
strategies. The
CRC has also identified the need for data collection in relation to indigenous
children and families, particularly
those involved in the statutory and tertiary
system, for the purpose of informing and continuously improving policy and
service development.
The Committee recommended that “governments in
cooperation with indigenous families and communities, . . . collect data on
the
family situation of indigenous children, including children in foster care and
adoption
processes.”[12]
Disabled
children and young people
4.11 Article 7 of the Convention on the Rights of Persons with Disabilities
(CRPD) recognises the rights of disabled children to special
protection, and
also emphasises the need to ensure disabled children’s full enjoyment of
their human rights on an equal basis
with other children.
4.12 Disabled people’s, including disabled children’s, resilience
depends significantly on how well they integrate the
experience of impairment,
as positively as possible, into their identity. Disability awareness training,
delivered from a strength-based
perspective, can be critical if those working
with disabled people are to foster rather than undermine this resilience.
4.13 Article 23 of the CRPD is particularly important when care issues arise
for disabled children. It emphasises the measures needed
to realise disabled
children’s right to family life. These include providing “early and
comprehensive information, services
and support to disabled children and their
families”.[13] Early
co-ordinated family support systems are vital in order to maintain disabled
children and young people’s connections to
immediate and extended family
and to their wider community. Without such support there is a real danger of
undermining not only a
disabled child’s right to family life but the
realisation of many other rights in the CRPD.
4.14 Flexible support options are needed to ensure that the whole family,
including the disabled child, remain connected. The breakdown
of family
relationships has a potentially huge long-term impact on disabled children and
young people. In those instances where the
immediate family is unable to care
for a disabled child, every effort should be made to “provide alternative
care within the
wider family, and failing that, within the community in a family
setting.”[14]
4.15 A 2006 independent review of the interface between disability and care
and protection services, Best of
Care[15] addressed these issues.
It identified the need for a consistent approach across the Children, Young
Persons and their Families (CYPF)
Act so that the child’s best interests
are considered and all options are explored, and therefore out of home placement
is
not a foregone conclusion for disabled children. The review also refers to
the need for improved access to disability support services
and “tackling
the bigger issues, like access to alternate caregivers, which in practice have
significant consequences for children
and young people with disabilities and
their families.”[16]
4.16 In its 2008 submission on the Children, Young Persons and their Families Amendment (No 6) Bill, the Commission supported the Bill’s additional requirements that:
4.17 This Bill has not progressed
through the House. The Green Paper provides an opportunity to assess whether and
to what extent
its requirements are implemented in practice and any outstanding
legislative change required to ensure that the rights of disabled
children under
the CRPD are better realised in the CYPF
Act.[17]
Children in
state care
4.18 Children in state care are widely acknowledged as a highly vulnerable group, reflected in a range of social outcome data spanning mental health, education, criminal justice and income levels. The CRC’s most recent 2011 General Comment 13, on the right of the child to freedom from all forms of violence, acknowledges the “widespread and intense violence applied against children in State institutions and by State actors including in schools, care centres, residential homes, police custody and justice institutions”.[18] At the same time, many children in care are highly resilient and subsequently achieve positive life outcomes.
4.19 The Commission considers that the CYPF Act 1989 establishes the right balance between family and state involvement where care and protection issues arise. However, stronger protections and obligations should be inserted into the Act to guide the level of care provided by the State when children enter its care. These should reflect UNCROC obligations in particular, Article 20 which sets out particular requirements to realise the rights of children in care and protection:
4.20 Article 9 of UNCROC sets out a child’s right to not be separated from his or her parents against their will, except where competent authorities, subject to a judicial review, determine such a separation is in the best interests of the child. Areas requiring specific redress through legislative amendment, policy and practice change include the following:
4.21 Given the high proportion of indigenous
children, including tamariki Māori, in state care, the Committee on the
Rights of
the child has highlighted the need for governments, “in
cooperation with indigenous families and communities, to collect data
on the
family situation of indigenous children, including children in foster care and
adoption processes.”[20] The
Commission suggests that this could be achieved as part of the Children’s
Action Plan. This information should be used
to design policies relating to the
family environment and alternative care of indigenous children in a culturally
sensitive way.
4.22 Proposed changes through the Children, Young Persons and their Families
Amendment Bill (No 6) (2007) would have improved legal protections for
children in state care. In addition the bill would have extended the protection
measures
under the CYPF Act to include 17-year-olds, thereby bringing the
legislation into line with UNCROC and implementing specific recommendations
of
the CRC[21] and the Committee
Against Torture.[22] The Commission
urges that consideration be given to progressing outstanding proposals set out
in the Bill.
Child protection as a Community Issue
4.23 The Commission welcomes the focus in this section of the Green Paper on making and promoting child protection a community issue. However, the concept of ‘community’ is fluid and context specific. It includes, for example, neighbourhoods, school and employment relationships and sports teams.
4.24 To date, there has been a tendency to focus parenting support around the delivery of health, education and social services. Yet there is further potential to engage with and use workplace and sport ‘communities’ as part of a proactive parenting support strategy. There are many community-grown examples of this including through sporting codes such as waka ama that have grown out of Māori communities and traditions. Sports clubs could use the opportunities and techniques of sport to strengthen parent-child attachments and resilience.
4.25 Worksites also provide an invaluable opportunity to support men in their
fathering of children through positive messaging. At
a broader level, parenting
can be supported at work with flexible work arrangements and by enabling and
normalising access to parenting
information and support services in the
workplace. Incentives could be provided for work-based childcare facilities.
5.1 In this section, the Commission expresses its support for the development
of a Children’s Action Plan as part of a broader
coordinated national
strategy to address child protection and wellbeing.
The need for a
coordinated approach
5.2 The Commission supports the need for a committed and coordinated approach
to child protection. As the Green Paper describes, there is currently
“no national common goal or framework to unite child-focussed work”
in New Zealand.
The need for this type of mechanism to ensure that
children’s rights and views are systemically incorporated in legislation
and policy development was highlighted in Human Rights in NZ
2010.
5.3 The Commission’s position is that an action plan is necessary but
on its own is not sufficient. This is based both on lessons
learnt from past
New Zealand attempts to implement national plans of action, and international
experience.
5.4 In 2002 the then New Zealand Government committed to the Agenda for
Children / Mahere rautaki mā te Hunga Tamariki – Making life better
for children.[23] In its
June 2010 Alternative Periodic Report to the CRC, Action for Children and
Youth Aotearoa (ACYA) pinpointed why the strategy, which ACYA had strongly
welcomed, had not succeeded.
These were predominantly because it had not
detailed any specific actions to attain the goals set out in each of the Action
Areas
and nor had it set timelines or allocated responsibilities. ACYA concluded
“the Agenda was merely a statement of general principles
and its lack of
implementation by government agencies reflects
this.”[24]
5.5 Similarly the Public Health Advisory Committee, which provides the Minister of Health with independent advice on public health issues, has stressed that more coordinated intervention is necessary. In its May 2010 report The Best Start in Life: Achieving effective action on child health and wellbeing, the Committee proposed to the Minister of Health that the Government consider four major improvements for children:[25]
5.6 The CRC
in its General Comment 13 has also raised concerns about the potential
limitations of national plans of action if they
are not part of a broader
coordinating framework:[26]
Such plans of action, while contributing to more enjoyment by children of
their rights, have nevertheless faced many challenges in
their implementation,
monitoring, evaluation and follow-up. For example, they have often lacked links
with the overall development
policy, programmes, budget and coordinating
mechanisms.
5.7 Therefore it is not surprising that the Committee’s 2011 concluding observations and recommendations to the New Zealand government specifically addressed this issue by:
Core components of an action plan
5.8 The Commission agrees that it is crucial that a Children’s Action
Plan exists within a broader coordinating framework that
specifies required
outcomes, measures and milestones to ensure progress on the key issues
identified by the Committee - poverty,
inequality and underachievement. Any
single measure alone, including levels of expenditure, is insufficient to assess
the impact
of services on outcomes for children. Hence there is a need for a
range of evidence-based indicators and measures.
5.9 The Commission recommends that accountability should rest with Chief
Executives of relevant government agencies, who should be
required to report
annually against these targets. In order to strengthen these obligations, the
Commission further recommends that
these requirements are set out in binding
legislation, such as a Children’s Act.
5.10 The Plan should reflect New Zealand’s commitment to UNCROC –
focusing on children’s universal, indivisible
and inalienable rights and
provision for special measures to achieve equality and non-discrimination for
children who face disadvantage.
It could require child impact assessments of
Cabinet papers and Bills or use another mechanism to ensure all policy and
legislation
has considered the potential impact on children.
5.11 In this regard, the Action Plan should incorporate specific targets to remove the structural barriers that disadvantage specific groups of children and young people. This includes setting out child poverty reduction targets. Much can be learnt from the Ontario Government’s 2008 poverty reduction strategy,[27] reinforced by the Poverty Reduction Act passed in May 2009 with unanimous consent from all parties. It requires successive governments to:
5.12 The strategy’s 2011 annual report provides the first data on its
effectiveness and shows the number of children in poverty
decreased by over four
per cent (or 20,000) children between 2008 and 2009. This improvement occurred
despite the global recession
and in contrast to rising child poverty rates in
other parts of Canada.[28]
5.13 In addition, the Commission strongly supports specific indicators,
measures and targets for specific groups of children vulnerable
to structural
discrimination or disadvantage. These should focus on measures that foster
greater understanding of resilience, wellbeing
and the full realisation of a
child’s right to self-determination.
Need for
positive focus
5.14 The Commission considers it crucial that a co-ordinating framework and
Child Action Plan be strengths-based and focused on resilience.
This will
require ensuring that children and young people, public, private, non-government
and iwi sectors are involved in developing
and owning such an Action
Plan.
5.15 In its General Comment 13 the CRC defines such a child rights approach including that:
Outcome indicators should focus on the child’s positive development and
well-being as a rights-bearing person, beyond a purely
narrow focus on
incidence, prevalence and types or extent of violence . . . This child rights
approach is holistic and places emphasis
on supporting the strengths and
resources of the child him/herself and all social systems of which the child is
a part: family, school,
community, institutions, religious and cultural
systems.”[29]
5.16 A range of researchers, practitioners, and the Commissioner for Children have proposed that a public health approach to child protection will deliver better outcomes for children, young people and their families (Holzer 2007; O’Donnell, Scott, & Stanley 2008; and Scott 2006).[30] The components of this approach are set out below:
Under a public health model, priority is placed on having universal supports available for all families (for example, health and education). More intensive (secondary) prevention interventions are provided to those families that need additional assistance with a focus on early intervention. Tertiary child protection services are a last resort, and the least desirable option for families and governments.
5.17 The Commission would therefore support a ‘tiered’ Action
Plan with universalised access to health, education and
support services
provided to all children and families. This would be coupled with a cross-
agency commitment to monitor and engage
with children and families in the early
years for the purpose of supporting every aspect of a child’s development
(see the
section on Child Centred Policy below for more details).
Working with whānau, hapū, iwi and Māori
leaders
5.18 In a February 2011 report, the UN Special Rapporteur on Indigenous
People noted the “extreme disadvantage in the social
and economic
conditions of Māori people in comparison to the rest of New Zealand
society” and the need for action to ensure
that Māori and
non-Māori New Zealanders could “move forward as true partners in the
future, as contemplated by the
Treaty of
Waitangi”.[31]
5.19 Working in partnership with iwi, hapū and whānau in order to
protect the rights of tamariki Māori is an obligation
on the Crown under
the Treaty of Waitangi and UNCROC.
5.20 UNCROC was the first core human rights treaty to include specific references to indigenous children in a number of its provision (articles 17, 29 and 30). In 2009 the Committee on the Rights of the Child produced its General Comment 11: Indigenous children and their rights under the Convention. It emphasised that the Convention’s specific references to indigenous children recognise that “they require special measures in order to fully enjoy their rights.”[32] The Committee stated that:
When State authorities including legislative bodies seek to assess the best
interests of an indigenous child, they should consider
the cultural rights of
the indigenous child and his or her need to exercise such rights collectively
with members of their group.
As regards legislation, policies and programmes
that affect indigenous children in general, the indigenous community should be
consulted
and given an opportunity to participate in the process on how the best
interests of indigenous children in general can be decided
in a culturally
sensitive way. Such consultations should, to the extent possible, include
meaningful participation of indigenous
children.[33]
5.21 The Committee’s general comment emphasises the need for States to
work with indigenous peoples, to ensure their meaningful
participation in
decisions that affect their
lives.[34] It clarifies that article
5, which focuses on respecting the rights, responsibilities and duties of
parents, requires ensuring “effective
measures are implemented to
safeguard the integrity of indigenous families and communities by assisting them
in their child-rearing
responsibilities.”[35] This
accords with articles 3, 5, 18, 25 and 27(3) of UNCROC.
5.22 Given the disproportionate representation of Māori in the care and
protection and youth justice systems, the Commission
suggests that partnership
and improving the lives and wellbeing of Māori children and whānau
must be top priorities for
a Children’s Action Plan. In addition it is
likely that Māori children are over-represented within the 20,000 children
who have parent/s currently in jail.
5.23 The Commission recognises that there are many instances of Crown and
tangata whenua working constructively together. In the child
protection area,
Puao te ata tu has demonstrated the value of Māori-led initiatives, whilst
there is growing interest in the
potential of Whānau Ora.
5.24 New Zealand research has identified factors that, if addressed, would facilitate the success of Māori and Pacific providers. In 2002, the University of Auckland’s International Research Institute for Māori and Indigenous Peoples[36] affirmed and built upon the recommendations of the Community and Voluntary Sector Working Party’s 2001 report,[37] including:
5.25 The Convention on the Rights of the Child and General Comments from the Committee on the Rights of the Child also recommended:
6.1 This part of the Commission’s submission addresses issues raised in
the Green Paper concerning Child-Centred Policy Changes.
Part 1 focuses on
policy around the funding of services including targeting. Part 2 addresses
information sharing and mandatory
reporting and puts forward some specific
proposals.
6.2 The principle of the “first call for children” was promoted
at the World Summit for Children in 1990, a year after
UNCROC was adopted. Both
the first-call principle and article 4 of the Convention emphasise that limited
financial resources cannot
be used as a justification for neglecting to put in
place appropriate measures to implement children’s rights. Whatever their
economic circumstances, countries are required to undertake all possible
measures towards the realisation of the rights of the child,
making the maximum
use of their available resources and paying special attention to the most
disadvantaged groups.[40]
6.3 The concept of progressive universalism has emerged internationally
within both United Nations’ agencies and policymakers.
Its first tier is
universal provision of services, supplemented by additional services targeted to
those with higher levels of need.
Progressive universalism has explicitly been
identified as an essential step to reduce
inequalities.[41] In other instances
it has developed in response to the global financial
crisis[42] where it is advocated
that higher levels of social security should be introduced as economies develop
and the fiscal space for redistributive
policies widens.
6.4 The Human Rights Commission supports the position of the Office of the
Children’s Commissioner (OCC) that there are many
instances where
universal provision remains the most effective approach. Examples cited by OCC
include where poor outcomes are widely
spread, there are economies of scale and
where targeted approaches alone may stigmatise children and their families.
Universal services
also provide an effective way of screening and identifying
children at risk who require additional support.
Service provision
– prevention, early intervention and treatment
6.5 Funding should be directed across the spectrum of primary, secondary and
tertiary services so that every child has access to necessary
support and no
child is left behind. The CRC in its General Comment No. 13 (2011) has stated:
The Committee emphasizes in the strongest terms that child protection must
begin with proactive prevention of all forms of violence
as well as explicitly
prohibit all forms of violence....Emphasis on general (primary) and targeted
(secondary) prevention must remain
paramount at all times in the development and
implementation of child protection systems. (para 18)
6.6 Primary prevention strategies promote community awareness and
responsibility for child safety and wellbeing. They have been shown
to be more
effective in addressing the issue of neglect than strategies which rest on risk
screening.[43]
6.7 There is a correlation between neighbourhood deprivation and child abuse
notification rates.[44] The best
strategies for preventing neglect are therefore those aimed at enhancing social
and economic wellbeing, promoting non-violent
cultural and social norms and
providing quality healthcare and childcare. Evidence shows these are more
successful than strategies
aimed solely at preventing re-occurrence of neglect.
Early intervention and targeting
6.8 The Commission supports government spending on early intervention particularly in terms of children’s early developmental years. Every child has a right to be supported and enabled throughout development to adulthood. Evidence indicates the early years as particularly crucial to positive life outcomes and the Commission supports this reflected in service provision investment.
6.9 There are potential lessons for New Zealand in the early intervention
initiative ‘Chile Grows with
You.’[45] The model was rolled
out in Chile three years before its major earthquake in 2010 and has been
pivotal to addressing children’s
needs in the earthquake
aftermath.
6.10 ‘Chile Grows with You’ is a coordinated programme involving
key government social service agencies such as the Ministries
of Health,
Justice, Labour and Education. The programme provides universal access to
maternal care, education, health and social
services. It involves monitoring all
aspects of a child’s development and any parenting risks, for example,
depression, addiction,
isolation and attachment issues for the purpose of
intervening early to address risk. Potential interventions include one to one
education, regular home-visiting, supporting engagement in parenting programmes
and programme delivery. The expectation is that every
child and family is
provided with a service in the early years. Additional services are provided to
those assessed as most vulnerable
by reference to a range of dynamic and static
risk factors including age, family income, drug and alcohol use, living
conditions
and disability of family members.
6.11 In New Zealand, the current ante-natal and post-natal system of lead maternity care followed up by Well Child / Tamariki Ora health checks is a foundation for such an approach here. As with the lead maternity care system, families could exercise choice about a lead service that they wish to engage with for ongoing monitoring and support purposes. The benefits of the system would include that it:
Watching out for children / monitoring
6.12 The Commission supports agencies working together to protect children
from harm and abuse and proposes that agencies be required
by legislation to
work collaboratively together. This should involve mandated change to allow
agencies to share and collect information
about clients. Safeguards and guiding
principles must be established. To optimise opportunities to provide the highest
quality, integrated
services to children and families, information technology
change would also be required.
Information sharing
6.13 The Commission sets out its position below supporting the introduction
of a regulatory code to enable information sharing and
collecting by agencies
working with children and families. The regulation could be by means of
legislation, development of a Code
of Practice under the Privacy Act or as
“sharing programme” if the Law Commission’s proposed changes
to privacy
legislation are progressed. The Commission’s position has been
informed by a consideration of relevant rights and ethical
concerns, an
acceptance that the current regulatory framework does not enable a sufficiently
child-focused approach to information-sharing
and through research into
information-sharing regimes established in other jurisdictions.
Relevant rights
6.14 The issue of information-sharing and collection is an important one. It
has arisen in a number of child death inquiries including
the most recent
Ministerial Inquiry into a case of serious child
abuse.[46] Barriers to information
sharing are frequently a frustration for families seeking services for their
children, particularly for parents
of children with disabilities who want
relevant information to be collected and shared freely amongst agencies so they
can access
services in a timely and relevant way.
6.15 Information-sharing raises a range of human rights and ethical concerns including:
6.16 As provided in Article 3 of UNCROC, the overriding factor must be the
best interests of the child.
6.17 Whether information sharing will impact positively on children depends
largely on the quality of the information that is collected
and the extent to
which it can be readily accessed by other agencies. Children can end up being
denied the best and most relevant
service response because agencies
haven’t collected the right information, for example, information about
disability or a child’s
cultural affiliation or can’t access the
information that has been collected by other agencies.
6.18 Having weighed up these factors, the Commission supports the
introduction of regulatory code enabling Government and relevant
non-government
agencies to collect and share information for the purpose of children’s
protection and wellbeing. This would
need to be supported by widespread
training of agency staff and by information technology changes that facilitate
information access
and exchange between agencies.
Current
framework
6.19 The current framework for information sharing in relation to child
protection and welfare involves a range of legislative and
policy provisions and
protocols. For example, the Privacy Act 1993 allows the sharing of personal
information without consent in
limited circumstances. Most relevantly,
Principle 11 allows information to be shared to avoid prejudice to the
maintenance of the
law by any public sector agency including for the purpose of
preventing, detecting, investigating, prosecuting and punishing offences
and to
prevent or lessen a serious and imminent threat to the life or health of an
individual.
6.20 The Children, Young Persons and their Families (CYPF) Act 1989 is also
relevant. It has a number of provisions prohibiting disclosure
of personal
information. In relation to the Ministry’s care and protection functions,
section 66 of the Act enables CYF to
require any government department, Crown
agency or statutory body to provide information relating to a child for certain
purposes
and prohibits disclosure of the provided information.
6.21 Provisions in other legislation (for example section 22C of the Health Act 1956) professional ethical codes and Memorandums of Understanding also apply. The Commission is aware that a range of interagency forums operate within this framework in areas of youth justice, child protection and education including Rock-On forums, Police child offender case management meetings and Education Intersector forums. These aim to provide joined-up responses to children and families in need and should be supported by a clear regulatory mandate that includes privacy safeguards.
Need for child-focus to information sharing
6.22 The Commission supports the introduction of a comprehensive regulatory
scheme that is clearly founded on and will facilitate
the interests and rights
of a child.
6.23 More will be required than the proposed amendments in the Privacy Information Amendment Bill which removes the current requirement for a threat to be imminent for personal information to be disclosed and will allow disclosure when there is a serious threat to public health or safety or to the health of a person. The Commission favours the introduction of a two-tiered approach to information sharing similar to that taken in New South Wales.
6.24 The first tier would allow, without requiring, relevant agencies to share information on the basis it is reasonably believed to assist and promote a child’s safety and wellbeing. The information could include assessments, information about services currently and previously engaged, and risk and protective factors. Sharing could be facilitated through data sharing. Relevant agencies would include those who deal with children, young people and their families and in particular, members of the police, education, health and justice sectors as well as those delivering child and family services in the non-government sector.
6.25 The second tier would relate specifically to the exchange of information
by and to Child Youth and Family (CYF). This recognises
the legitimacy of CYF
having greater access to information, and the additional safeguards that this
requires. Given the highly sensitive
nature of the information CYF holds, the
consequent harm that release of the information can cause and the agency’s
tertiary
role in serious child abuse cases, CYF should be authorised to release
information in carefully circumscribed circumstances to assist
other agencies to
address children’s wellbeing. For example, relevant information should be
provided to schools to assist them
to develop Individual Education Plans and to
non-government agencies to enable them to work effectively with CYF clients. CYF
should
continue to be able to request and receive information from relevant
agencies for the purpose of undertaking its assessment, investigation,
intervention and care responsibilities and there should continue to be a
consequent obligation on requested agencies to supply the
information.
6.26 The Commission acknowledges the public concern about over-intrusion by
the State which information-sharing and information collection
can invoke. The
legislation or other chosen regulatory regime should therefore state clearly
that the intent of enabling information-sharing
between agencies is to achieve
the most relevant and quality responses to children and families. It should
also include safeguards.
Risks
6.27 There are risks associated with enabling more information sharing by
agencies. Information sharing impacts on the right to access
confidential
services, which is an important therapeutic and ethical principle in service
delivery. Confidentiality supports a person’s
right to be
self-determining and is a core component of trust-building between professional
and client. Research indicates that people,
including young people, value
confidentiality and will withhold information and curtail their involvement with
services when confidentiality
cannot be
assured.[48] If families and young
people are deterred from seeking help, this could exacerbate existing risk or
deter families from taking action
to pre-empt risk.
6.28 Information-sharing between agencies also carries the risk of
stigmatising and stereotyping children and families with the associated
risk
that possibilities are shut off to children. This is a particularly acute risk
for children with disabilities. Medical approaches
towards disability tend to
be deficit focused. In an information-sharing regime medical approaches are
likely to be given weight
and could stymie the voices and possibilities that
would otherwise be open to disabled children and their families through a
positive
and inclusive approach to disability.
6.29 Lastly, there is the risk that more information sharing between agencies
will contribute to a professional and agency-driven
culture in the child
protection area. This will be at the cost of supporting and empowering children
and families which, in the
long term, is essential for families to adequately
care for and protect their children.
Safeguards
6.30 To mitigate these and other risks, the Commission suggests that the new information-sharing regulatory regime incorporate safeguards such as the following:
Mandating reporting by professionals
6.31 The issue of whether professionals working with children and families
should be required to report suspicions of harm has long
been contentious. To
date, NEW ZEALAND like Denmark, the United Kingdom and Ireland has preferred a
voluntary reporting regime that
allows but does not require professionals to
report suspicions of harm. By contrast, the USA and most Australian
jurisdictions have
enacted an obligation to report. This difference in approach
has created an opportunity to learn and gain from overseas experience.
6.32 The Commission considers that the issue of mandatory reporting should be determined within the overarching goal of achieving a child protection system that has access to information necessary for both its harm prevention and intervention roles. It also considers that different approaches should be taken to reporting in cases of adult/child abuse compared to cases of violence, abuse and bullying at schools. Below, the Commission considers and makes proposals first in relation to adult/child abuse. It then addresses reporting and response to violence and abuse of children by peers.
Mandatory Reporting in context of adult/child abuse
Overseas learning
6.33 The Commission has considered the benefits of imposing mandatory
reporting through legislation alongside the potential harms.
The benefits most
often cited are that a legislated obligation to report will mean that all
professionals are clearer about their
duty when they suspect a risk of harm to a
child; and notifications will be able to be followed up more quickly, enabling
more effective
early intervention and prevention.
6.34 Both these benefits however ultimately rest on an assumption that
reports of harm are met by an appropriate and timely response.
Yet this is not
borne out in overseas experience or in New Zealand itself. Overseas data from
mandatory reporting regimes show that
there continues to be a significant
discrepancy between reporting rates and subsequent
follow-up.[49] The discrepancy also
exists in voluntary reporting regimes. For example, in New Zealand less than
half of neglect notifications
were upheld by CYF in
2009.[50]
6.35 There is no evidence to indicate that mandatory reporting regimes have
resulted in greater safety for children than voluntary
systems. Evidence
indicates that in both types of reporting regimes, child abuse that warrants
statutory intervention continues
to be under-reported. In mandatory systems,
this is despite penalties having been imposed for failure to report.
6.36 The potential harms of mandatory reporting are that statutory agencies
become over-burdened and ultimately compromised in their
ability to respond to
children and families in need. More particularly, the harm in New Zealand is
that CYF will become focused
on ‘processing’ reports of harm to the
extent that it will be unable to respond to them in a timely and thorough way
and resourcing will be diverted away from its work with vulnerable children,
namely children in, or at risk of, entering State care.
6.37 Other risks are that mandatory reporting, like information-sharing,
undermines trust between professionals and their clients
and reduces the level
of ongoing help a client seeks. Mandatory reporting could contribute to a
net-widening of state involvement
compounding the over-representation of
Māori and Pacific Island children in the child protection system. Lastly,
there is the
risk that an obligation to report to CYF or Police promotes a
narrow view of child protection as a ‘statutory issue’
rather than
promoting wider community ownership and recognition of the dynamic and rich
wealth of expertise in the community to deal
with child abuse.
Commission proposal – duty of care approach
6.38 The Commission affirms and reinforces the Green Paper position that
child protection is a community-wide issue and the need to
ensure delivery of a
child-centred response when risk of harm exists. On this basis, the Commission
favours a duty of care approach
to reporting risk of harm.
6.39 Legislation should spell out that child protection is a community-wide
issue and that all professionals have a duty to respond
appropriately. In cases
where serious or imminent harm is suspected the legislation should specify that
this duty includes notifying
CYF or Police. In all other cases, the legislation
should direct that the duty entails, at minimum, a referral to an appropriate
service provider. This may or may not be CYF and could be an iwi social service,
or collaborative case management forum such as Rock-On.
6.40 The benefits of this proposal are that it:
6.41 This proposal is also
consistent with the move in New Zealand and overseas jurisdictions to promote
wider community involvement
in child protection. It complements CYF’s
Differential Response model that enables reports of harm to be dealt with by the
NGO sector at different points of the decision-making processes.
Mandatory reporting and response to violence, abuse
and bullying in schools
6.42 This final section of the Commission’s submission covers peer to
peer violence, abuse and bullying in schools. The Commission
proposes that a
different approach be taken to reporting and responding to violence, abuse or
bullying when the perpetrator is another
child or young person, rather than an
adult. For ease of reading, this section sometimes uses the word bullying as a
generic umbrella
term to also encompass peer to peer violence and abuse.
6.43 Bullying is pervasive in New Zealand schools and has serious and often life-long effects. Yet, it tends to be under-reported and tolerated. The current legislative scheme has failed to stem bullying. The Commission therefore proposes that legislation be enacted to require schools to:
6.44 This approach is consistent with and builds on the recent suggestions
made by the Office of the Ombudsmen, including that a national
requirement that
schools implement anti-bullying
programmes.[52]
Effects
of Bullying and violence
6.45 Bullying can involve threat to life and serious physical injury. The
effect on victims can include living with anxiety and fear,
lowered self-esteem,
engagement in risk -taking behaviours such as substance abuse, self-harming,
truanting and dropping- out from
school, all with associated long term adverse
impacts. Victims may suffer mental health issues including suicidal ideation,
relationship
difficulties and impeded emotional, behavioural and cognitive
development.[53]
6.46 Bullying impacts adversely on perpetrators. It may to lead to suspension
from schools, increased absenteeism and dropping out
from schooling. If bullying
and harassment are not dealt with by schools, the use of aggression by
perpetrators is reinforced and
perpetrators are more likely to be involved in
offending and delinquent behaviour as they age.
6.47 Bullying also impacts adversely on students who are bystanders. These
students can feel helpless and out-of-control, fearful
and guilty. Their
academic performance too may suffer. If bullying is not addressed, these
students learn that aggression is acceptable
with concomitant adverse effects on
their social and emotional skill development as they age.
6.48 Despite the damaging effects, bullying and abuse remain prevalent in New Zealand schools. Bullying tends to be under-reported. This is partly because of the disempowering and silencing effects of bullying on victims. Research also shows that if adults do not respond effectively to complaints, the level of reporting by children and young people falls.
6.49 Under-reporting is also attributable to the way in which bullying is
‘normalised’ in many New Zealand schools. In
its recent
investigation of complaints at Hutt Valley High School, the Office of the
Ombudsmen found that not only had the school
minimised serious incidents of
abuse, but the Education Review Office had assessed the school as safe even in
the face of staff having
witnessed and received reports of violent incidents and
bullying. The reality seems to be that there is a level of bullying, harassment
and abuse which is ‘tolerated’ or accepted as an
‘inevitable’ part of schooling in New Zealand.
Current
legislative situation
6.50 The current policy and legislative scheme imposes obligations on schools to prevent bullying including:
6.51 Given the prevalence of bullying and abuse in schools, this legislative
and regulatory framework does not provide enough protection
for children and
young people.
International framework
6.52 The international human rights standards which New Zealand has ratified
are unequivocal about a state’s obligation to protect
children from
violence including all forms of physical or mental violence. They provide a
clear mandate to the Government to enact
legislation specifically to address
violence, abuse and bullying in New Zealand schools. Under Article 19 of UNCROC
the government
is required to take “all appropriate legislative,
administrative, social and educational measures to protect the child from
all
forms of physical or mental violence, injury or abuse”.
6.53 Article 3 of the Universal Declaration of Human Rights sets out
everyone’s right to life, liberty and security of the person
whilst
Article 5 states that no one shall be subjected to cruel, inhuman and degrading
treatment. Article 9(1) of the ICCPR also
guarantees the right to security of
the person.
6.54 The right to education is spelt out in ICESCR (Article 13) and UNCROC
(Article 18). This is not confined to the right to access
education but also
incorporates the nature and process of a child’s education. In particular,
education must develop respect
for human rights, identity, human dignity and
democracy and be delivered in a spirit of peace (Articles 28-29 UNCROC). This
lays
a clear foundation for schools’ responses to violence, abuse or
bullying.
Human Rights Commission Proposal – legislation on
school responses to violence, abuse and bullying
6.55 The Commission proposes that legislation be enacted to require all schools (public, private and integrated) to:
6.56 The Commission proposes the following criteria for schools’ responses to violence, abuse and bullying. Firstly that complaints are followed up within 24 hours with at least the following steps:
- criminal offending is reported to police
- support is offered to victim(s)
- parents of victim(s) and perpetrator(s) are notified and engaged in any complaint resolution process and
- perpetrator(s) are separated from victim(s) until the complaint is resolved.[55]
6.57 Secondly, where a police report is not appropriate, the safety officer in consultation with the victim(s) and perpetrator(s) will organise and facilitate a restorative process to address the complaint and decide on an appropriate sanction. This process must occur within five days of the complaint and engage the parents/caregivers of the victim(s) and perpetrator(s).
6.58 The proposal for a strong national response to bullying is consistent with the recent suggestion of the Office of the Ombudsmen. That report proposed that these changes could be implemented through a different path, by amending the NAG 5. The Commission considers it would be more powerful for such provisions to be explicitly spelt out in the Education Act.
6.59 It would be crucial for legislation to be supported by adequate resourcing for safety officers and for training and practice development in schools. As already noted, extensive research has been undertaken in New Zealand and overseas around good practice responses to bullying in schools and the importance of a whole-of-school, human rights approach. This is symbolised in some schools through a charter of rights and responsibilities built on UNCROC.[56]
6.60 In New Zealand, the introduction of Positive Behaviour for Learning initiatives in some schools provides a positive start towards creating schools that value and honour human rights - including the right to be safe and free from violence and abuse. Legislation setting out clearer obligations for schools, coupled with training and practice development, is necessary to build on these foundations.
Appendix 1: One page summary of UNCROC
UNCROC affirms that everyone under 18 years has the right to:
Source: Human
Rights in Education, UNCROC in a Page, accessible online at http://www.rightsined.org.nz/index.php/resources/human
rights/6-treaties-and-other-international-instruments/10-uncroc-in-a-page.html
Appendix 2: Committee on the Rights of the Child’s
2011 Recommendations
|
Issues
|
Para
|
Recommendation
|
|
Reservations
|
9(a)
|
Withdraw reservations
|
|
Legislation
|
11(a)
|
Ensure that all existing domestic legislation relating to children is
consistent and is brought in compliance with the Convention
|
|
11(c)
|
Consider all child-related legislation as a priority in the Parliament
|
|
|
Coordination
|
13
|
Establish a permanent mechanism to ensure high-level and effective
coordination of the implementation of the Convention
|
|
National Plan of Action
|
15
|
Adopt a comprehensive policy and corresponding national plan of action for
the implementation of the Convention, in cooperation with
the public and private
sectors involved in the promotion and protection of children’s rights and
based on a child rights approach
|
|
Allocation of Resources
|
17
|
Initiate a child budgeting exercise that will allow it to specify strategic
allocations to implement children’s rights, track
this implementation,
monitor results and evaluate impact
|
|
Dissemination and awareness-raising
|
19
|
Strengthen and expand its dissemination and awareness-raising activities in
order to ensure that the provisions of the Convention
are widely known by the
general public, including parents, caregivers, teachers, youth workers and other
professionals working with
children, as well as children themselves
|
|
Training
|
21
|
Develop and further strengthen systematic training on their
responsibilities under the Convention for all professional groups working
for
and with children. In this regard, human rights education should be included in
the official curriculum at all levels of education
and in professional training
|
|
Corporate social responsibility
|
23
|
Ensure that the business sector complies with international and domestic
standards on corporate social responsibility, particularly
with regard to
respecting child rights
|
|
Non-discrimination
|
25(a)
25(b) 25(c) |
Take urgent measures to address disparities in access to services of Maori
children and their families (para 25(a))
Strengthen its awareness-raising and other preventive activities against discrimination and, if necessary, take affirmative action for the benefit of children in vulnerable situations, such as Maori and Pacific children, refugee children, migrant children, children with disabilities and lesbian, bisexual, gay and transgender children and children living with persons from these groups Take all necessary measures to effectively address discrimination |
|
Respect for views of the child
|
27(a)
27(b) |
Promote, facilitate and implement, in legislation as well as in practice,
within the family, schools, and the community as well as
in institutions and in
administrative and judicial proceedings, the principle of respect for the views
of the child
Systematically consider the views of the child in formulating laws and policies |
|
Corporal punishment
|
28
|
Heighten public awareness about the law concerning corporal punishment
(section 59, Crimes Act) and continue to promote positive and
non-violent forms
of discipline in childrearing
|
|
Follow up to UN study on violence against children
|
29(a)
29(b) 29(c) |
Prioritise elimination of all forms of violence against children including
by ensuring implementation of the recommendations of the
UN Study on violence
against children
Provide information on implementation of the recommendations of the UN Study on violence against children, including: development of a national strategy to prevent and address all forms of violence against children, an explicit ban on all forms of violence against children, and a consolidation of data and a research agenda on violence against children. Cooperate with the Special Representative of the Secretary General on violence against children and seek technical assistance |
|
Family environment
|
31
|
Intensify efforts to render appropriate assistance to parents and legal
guardians in the performance of their child-rearing responsibilities
with timely
responses at the local level, including services to parents who need counselling
in child-rearing, services for the treatment
of alcohol- or drug-related
problems, and, in the case of Maori and Pacific Islander populations, culturally
appropriate services
to enable them to fulfill their parental role
|
|
Adoption
|
33
|
Resume the review and revision of adoption legislation
|
|
Abuse and neglect
|
35(a)
35(b) 35(c) 35(d) |
Establish mechanisms for monitoring the number of cases and the extent of
violence, sexual abuse, neglect, maltreatment or exploitation,
including within
the family, in schools and in institutional or other care
Ensure that professionals working with children (including teachers, social workers, medical professionals, members of the police and the judiciary) receive training on their obligation to report and take appropriate action in suspected cases of domestic violence affecting children Strengthen support for victims of violence, abuse, neglect and maltreatment in order to ensure that they are not victimized once again during legal proceedings Provide access to adequate services for recovery, counselling and other forms of reintegration in all parts of the country |
|
Health and health services
|
37
|
Address inequalities in access to health services through a coordinated
approach across all government departments and greater coordination
between
health policies and those aimed at reducing income inequality and poverty
|
|
Breastfeeding
|
39
|
Increase the number of infants up to six months of age that are exclusively
breastfed, particularly Maori; promote baby-friendly hospitals
and encourage
breastfeeding to be included in nursery training.
|
|
Adolescent health
|
41
|
Strengthen its efforts to provide adolescents with appropriate reproductive
health services, and continue to address suicidal behaviour
including through
targeted preventive measures
|
|
Standard of living
|
43
|
Take all necessary measures to provide appropriate support to allow
disadvantaged families and their children to move out of poverty
in a sustained
way while, at the same time, continuing to provide assistance to those who
remain under the poverty line
|
|
Education
|
45(a)
45(b) 45(c) 45(d) 45(e) 45(f) |
Ensure that all children have access to high quality early childhood
education and care that, at a minimum, is free for socially disadvantaged
families and children
Continue and strengthen its efforts to reduce negative effects of the ethnic (cultural, regional) and social background of children on their enrolment and attendance in school Invest considerable additional resources in order to ensure the right of all children, including children from all disadvantaged, marginalized and school-distant groups, to a truly inclusive education Use the disciplinary measure of permanent or temporary exclusion as a means of last resort only, reduce the number of exclusions and ensure the presence of social workers and educational psychologists in school in order to help children at risk with their schooling Take steps to ensure that parents are not pressured into making donations to schools and that children are not stigmatized if their parents do not, or are unable to, make such donations Further intensify its efforts to eliminate bullying and violence in schools, including through teaching human rights, peace and tolerance |
|
Out of school care
|
47
|
Develop and allocate sufficient funding for services and programmes for
school-age children after school and during holiday periods
|
|
Economic exploitation and child labour
|
49
|
Take appropriate measures, legislative and otherwise, to ensure that no
person under the age of 18 is allowed to work in a dangerous
workplace. The
Committee also reiterates its previous recommendation that the State party
ratify the ILO Convention No. 138 on the
minimum age of employment.
|
|
Child prostitution and child pornography
|
51
|
Eliminate any obstacles to the ratification of the Optional Protocol to the
Convention on the sale of children, child prostitution
and child
pornography;[57] take adequate
measures to combat the exploitation of migrant girls in prostitution and
intensify its efforts to collect data on the
extent of sexual exploitation and
abuse of children
|
|
Child helplines
|
53
|
Allocate sufficient funding to enable toll-free, 24-hour access to the
child helplines
|
|
Administration of juvenile justice
|
55
55(a) 55(b) 55(c) 55(d) |
Fully implement international standards of juvenile justice (para 55)
including by:
Raise the minimum age of criminal responsibility Consider setting the age for criminal majority at 18 years Develop a broad range of alternative measures to detention for children in conflict with the law; and establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle While awaiting the expeditious withdrawal of its reservation to article 37(c) of the Convention, ensure that, unless in his or her best interests, any child, male or female, deprived of liberty is separated from adults in all places of detention |
|
Protection of witnesses and victims of crime
|
56
|
Ensure, through adequate legal provisions and regulations, that all
children victims and or witnesses of crimes are provided with
the protection
required by the Convention
|
|
Minority groups
|
57
|
In its efforts to improve the situation of children belonging to indigenous
groups, to take into account the observations and recommendations
made by the UN
Special Rapporteur on Indigenous People following his visit to New Zealand in
July 2010, including with regard to
the principles enshrined in the Treaty of
Waitangi
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[1] Committee on the Rights of the Child (2011) General comment No. 13 The right of the child to freedom from all forms of violence. CRC/C/GC/13, para 2(e)
[2] Ibid
[3] Ibid., para
63
[4] Whilst employment issues are
largely outside the scope of the Green paper, two of the eight fundamental
International Labour Organisation
(ILO) Conventions also relate to
children’s rights. They are Convention 138, on the Minimum Age for
Admission to Employment
(1973), and Convention 182, on the Worst Forms of Child
Labour (1999).
[5] Article 5, the 1993 Vienna
Declaration and Programme of
Action
[6] Articles 14, 17(2) and
(3), 21(2) and 22 of the United Nations Declaration on the Rights of Indigenous
peoples, and articles 5, 27
and 30 of
UNCROC.
[7] CRC (2011) General
comment 13, The
right of the child to freedom from all forms of violence
para. 65
[8] Article 19 of UNCROC and
general comment 11
[9] Committee on
the Rights of the Child (2004) General Comment No. 5: General measures on
implementation of the Convention, para. 8.
[10] CRC (2011) Op. Cit.
[11] Committee on the Rights of the Child, 56th Session, Consideration of Reports
Submitted by States Parties under Article 44 of the Convention, Concluding
Observations New Zealand, para 25
[12] CRC, General Comment 11, para 47
[13] Article 23(3) CRPD
[14] Article 23(5)
CRPD
[15] Carpinter and
Harrington, (April 2006), The Best of Care? An Independent Review of Issues
at the Interface of Disability Support and Care and Protection, A report for
the Department of Child, Youth and Family and the Disability Services
Directorate of the Ministry of Health. http://www.cyf.govt.nz/documents/about-us/news/the-best-of-care.pdf
[16] Ibid, at page
xiv
[17] This is consistent with
previous submissions from the Commission recommending that the Education Act
1989 be amended to clarify that
the right to education for disabled children
means the right to inclusive education in their local school, and to set out
minimum
standards in relation to this right.
[18] CRC, General Comment 11,
para 3(h)
[19] http://www.cyf.govt.nz/documents/about-us/publications/charter-for-children-and-young-people-under-12.pdf
[20] CRC, General Comment 11, para 47
[21] United Nations Committee on the Rights of the Child (2003), Concluding Observations:
New Zealand, CRC/C/15/Add.216, 27 October 2003, para 21
[22] UN Committee Against Torture, (2009) Concluding observations of the Committee
against Torture: New Zealand, CAT/C/NZL/CO/5, 14 May
2009
[23] http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/planning-strategy/agenda-children/
[24] Para
1.18
[25] http://www.nhc.health.govt.nz/sites/www.nhc.health.govt.nz/files/documents/publications/the-best-start-in-life-21may.pdf
[26] CRC (2011) general comment 13, para 68
[27] http://www.ontario.ca/breakingthecycle
[28] http://www.children.gov.on.ca/htdocs/English/documents/breakingthecycle/2011AnnualReport.pdf
[29] Committee on the Rights of
the Child, General Comment 13 (2011), paras
58-59.
[30] Holzer, P. J. (2007).
Defining the public health model for the child welfare services context
(Resource Sheet No. 11); O’Donnell M., Scott D A., & Stanley, F.,
(2008) "Child
Abuse and Neglect – is it time for a public health approach?"
Australian and NZ Journal of Public Health, Vol 32, No. 4, pp 325-330; Scott,
D.A. (2006) "Towards
a Public Health Model of Child Protection in Australia" (pdf 1.7Mb)
Communities, Families and Children Australia, 1(1) 9-16.
[31] http://unsr.jamesanaya.org/docs/countries/2011-report-newzealand-a-hrc-18-35-add4_en.pdf
[32] Committee on the Rights of
the Child (2009) General Comment No. 11: Indigenous children and their rights
under the Convention, CRC/C/GC/11, para 5
[33] Ibid, para
31
[34] Ibid, para 39.
This is reiterated in UNDRIP’s requirement that good faith consultation is
premised on obtaining indigenous people’s
“free, prior and informed
consent” (Article 19).
[35] Ibid, para
46
[36] International Research
Institute for Māori and Indigenous Peoples (2002), Iwi and Māori
Provider Success, (UOA:
Auckland).
[37] Community and
Voluntary Sector Working Party (2001), Communities and Government –
Potential for Partnership: Community and Voluntary Sector Working Party
report
[38] CRC (2009)
General Comment 11, para
80
[39] Ibid, para
20
[40] Committee on the Rights
of the Child (2004) General Comment No. 5: General measures on implementation
of the Convention, para.
8.
[41] Department of Health,
Social Services and Public Safety (2010) Healthy Child, Healthy Future: A
Framework for the Universal Child Health Promotion Programme in Northern
Ireland. Belfast: Department of Health, Social Services
and Public Safety. http://www.dhsspsni.gov.uk/healthychildhealthyfuture.pdf
[42] ILO (2010) ILO World
Social Security Report 2010/11. Geneva:
ILO
[43] Mikton & Butchart
(2009) Child Maltreatment Prevention: a systematic review of reviews.
Bulletin of the World Health Organisation, 87, 353-261
[44] Mardani J (2010) Preventing child neglect in New Zealand. A public health
assessment of the evidence, current approach and best practice guidance, OCC, NZ.pxi.
[45] http://www.unicef.org/infobycountry/chile_36227.html
[46] http://beehive.govt.nz/release/independent-inquiry-serious-abuse
[47] Article 16
UNCROC
[48] Munro, E (2007)
Confidentiality in a preventive child welfare system. Ethics and social
welfare, 1 (1 p p41-55
[49] Wallace, L & Bunting L (2007) An examination of local, national and international
arrangements for the mandatory reporting of child abuse: the implications for Northern
Ireland. NI Policy & Research Unit.
[50]http://www.occ.org.nz/__data/assets/pdf_file/0007/7882/CC_Preventing_child_neglect%20122010.pdf
[51] The Office of the
Children’s Commission has developed useful flowcharts identifying how to
assess the most appropriate responses
in cases of school bullying, school
violence and child abuse respectively. Office of the Children’s
Commissioner (2009) School Safety: An Inquiry into the safety of students at
school, pp 73, 75 and 76. http://www.occ.org.nz/__data/assets/pdf_file/0016/6028/OCC_SchoolSafetyReport_160309.pdf
.
[52] Office of the Ombudsmen
(2011) Report of David McGee Ombudsman on Complaints Arising Out of Bullying
at Hutt Valley High School. December
2007
[53] Office of the
Children’s Commissioner op. cit. p 4.
[54] For example, the United
Kingdom’s Department for Children, Schools and Families has produced a
suite of guidance for schools
and local authorities about preventing and
responding to bullying. This includes specific guidance about homophobic
bullying; bullying
that is linked to racism, religion or culture; and bullying
of disabled children. http://www.anti-bullyingalliance.org.uk/tackling_bullying_behaviour/in_schools/law,_policy_and_guidance/safe_to_learn.aspx
[55] This does not mean the
perpetrator should be stood-down. All options should be considered with the
overall aims of ensuring students’
right to safety alongside their right
to education.
[56] A summary of
relevant rights from UNCROC is set out on page 9 of the Commission’s 2009
report School violence, bullying and abuse: a human rights analysis - http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/01-Sep-2009_14-08-40_Human_Rights_School_Violence_FINAL.pdf
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