In society, those who complain the loudest are heard. That is why vocal minority groups so often get their way, because their influence is gained not by numbers but by the volume of complaint.
Conversely the silent are often forgotten.
One group in our society has no voice at all. Children. That is why rights of the child are so important, as they can easily be overlooked or ignored.
That has largely been the case during the COVID pandemic, particularly during the latest phase of agreeing to ‘open up’ locked down communities and relax current strictures. Blessed as we have been in South Australia, we face the same set of decisions as those in NSW and Victoria, and the rights of the child play an important part in our governments’ consideration of what society we shall return to.
A child is anyone who is under that age of 18 years. Since 1989 their rights have been enshrined internationally in the Convention on the Rights of the Child. Australia is a signatory to the Convention. Domestic laws and charters in Australia also contain rights for children, and our legislature has deliberately placed the rights of the child at the heart of The Family Law Act. The best interests of the child are put first by the Court in any family law dispute.
To say COVID has driven a bus through the lives of many children worldwide is an understatement. In developing countries it has sometimes been catastrophic for children. With strain Delta, younger people are now at greater risk of infection and have as much a stake in the game as the rest of us. But are they being heard and are their rights being respected?
To begin with, it ought to be every Australian’s right to have an opportunity to be vaccinated before the governments relax rules around movement. Until that has occurred, we owe an obligation to our children to keep them safe. As eligibility for the vaccine has changed, our thinking has not always done the same. There is a sense that children have often been forgotten in all this.
There is a difficult balance to be struck between the wish to defend against a virus and the commitment to children’s mental wellbeing. It should not be seen as a binary choice as it is a much more complex equation than that. When matters concerning children come before the courts, individual circumstances will always play a central role in decision making, and no two children have the same characteristics or are in exactly the same position.
It ought to be every Australian’s right to have an opportunity to be vaccinated before the governments relax rules around movement.
The point remains however that whilst discussion about ‘opening up’ communities is critical, to keep our economy ticking and to keep us all sane, we must take into account that fact that children 12 to 16 years have only just been given access to the vaccine, and children under 12 have no access at all. To ride roughshod over their interests and their right to stay safe is not in accordance with broad principles of international law and cannot accord with the spirit of the Convention on the Rights of the Child. The rights of children in this debate ought to very high up the list indeed.
Similarly, to have unbending bureaucratic health-driven decisions (or lack of) prevent children from seeing parents and relatives cannot be in the best interests of the child – pandemic or no. To think 12-year-old Loreto student Lillian Anderson cannot go home to her parents’ isolated New South Wales farm just across the border for her impending school holidays, as was recently reported, looks on the face of it to be a breach of our international obligations.
In 2019 to mark the 30th anniversary of the Convention of the Rights of the Child, U.N. member nations signed a pledge that said amongst other things:
Children have equally been recognised as having the right to special protections and safeguards from those that constitute the duty-bearers in their lives and communities.
In other words, children should enjoy special rights from those bearing the decision making duties in our societies. How can the bureaucratic closure of a border in the Commonwealth of Australia and the accompanying failure by bureaucratic decision making officers in relevant government agencies in South Australia amount to treatment of Lillian’s plight that is special? To prevent a girl returning to her farm, the place she loves, to be with her parents whom she loves and who love her, because it is deemed they cannot drive safely to pick her up, seems on the face of it to be anything but special. In fact it looks like a breach of human rights obligations.
At the heart of the Convention of the Rights of the Child is that ‘the best interests of the child shall be a primary consideration.’ On that basis alone, governments and institutions across Australia are in regular breach of their obligations to children. But children are in no position to defend their rights because they have no voice.
Article 9 of the Convention provides, ‘a child shall not be separated from his or her parents against their will’. This child may be separated from her parents against her will and theirs.
There is always recourse to the courts but court processes take time and often children suffer whilst adults argue. Our system of sorting out adults arguing about children, euphemistically categorised as ‘children’s issues matters’, is to litigate in the Federal Circuit and Family Court of Australia. With lists bulging with current matters and processes often taking an age to resolve or be heard, the rights of the child might best be categorised at times as theoretical than actual in that place.
However this is the judicial forum charged with protecting our children, as well as other state courts and tribunals, and no doubt COVID will add to its workload. It is not difficult to imagine warring parents disagreeing over the efficacy of administering a COVID vaccine to a child. If there is that type of disagreement this is where the dispute will be heard. A judge will hear evidence about the child and the vaccine and its benefits and occasional side effects and make a decision in the best interests of the child.
Back to the broader picture, and children seem to be a rather forgotten group as our politicians debate and decide our fate. Yet in many instances they have the most to lose. Some have lost their most critical schooling years. Some have lost access to loved ones. Some are the last to have been offered vaccination, and some cannot be vaccinated at all. Some have lost their mental health and some have lost their lives.
They are the ones who are required to wear masks all of the time at school. Alternatively they are the ones who have endured an education taught online and at home, away from friends and teachers. They are also the ones without power and without a voice in our decision making.
It is often said that the true measure of any society can be found in how it treats its most vulnerable members. It is worth bearing that in mind, together with our international obligations to put the interests of our children first in this pandemic, as we contemplate how our post COVID society should be run. Given the thoughtless conduct of some, and the failings of others, it is not always apparent that we have had the best interests of our children in mind. There are no easy answers, but there are some easy principles to follow, first and foremost the protection of our most vulnerable.
So as we debate the great unlock, who gets the protection of vaccination and when, let’s consider the plight of our children who will without a choice in the matter, have to live (or die) by our decisions, and remember the words of Hubert; ‘the moral test of government is how that government treats those who are in the dawn of life, the children…’.
Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia
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