NZ must do better on children’s rights
When it comes to children's rights, New Zealand doesn't get to cherry-pick
Leading international experts at a Victoria University of Wellington co-hosted symposium to mark the 30th anniversary of the United Nations Convention on the Rights of the Child challenged New Zealand to increase its awareness and implementation of the Convention.
New Zealand ratified the Convention in 1993, but although it is more explicitly referenced than before as a result of the July 1 amendments to the Oranga Tamariki Act 1989, it still falls well short of full incorporation into law, as Scotland has committed to before the end of its current Parliamentary session in 2021.
Scottish Children and Young People’s Commissioner Bruce Adamson, a New Zealander and Victoria University of Wellington alumnus, was one of the speakers at the two-day symposium, which was co-hosted with the Office of the Children’s Commissioner and Massey University and supported by the New Zealand Law Foundation and the Michael and Suzanne Borrin Foundation.
In a public panel discussion at the end of the symposium, Adamson and fellow speaker Professor Ursula Kilkelly from the School of Law at University College Cork in Ireland both emphasised the need for incorporation.
“I think it’s probably the most important thing we can do for children and young people – to put their rights into law, to make those rights justiciable,” said Adamson. “And we know from countries that have already done this it’s not just about the ability to litigate, it changes culture.”
Kilkelly said: “It gives the Convention teeth when it has the status of national law.”
Global research by her and colleagues shows that “while it’s not possible to prove cause and effect, and we can’t say definitively states that have incorporated the Convention have better rights compliance, it is true to say it generates a level of culture and awareness and understanding that makes it much more likely children’s rights will be better protected”.
Advantages of incorporation include giving a sense of ownership, she said.
“We heard, for example, in Norway that until they incorporated the Convention it was out there in an international space and not really tangible for those in social work who work every day with the national law. When you incorporate the Convention, it becomes part of your manual to do work with children.
“Equally, it leads to greater levels of enforcement in countries where you can walk into court with the Convention in your hand and claim legal rights for children, [as well as] in a range of other ways in which the Convention can be enforced in relation to non-judicial administrative and other remedies and complaints mechanisms.”
The mere “process of incorporation, the dialogue politically and in the public domain that surrounds incorporation” generates wider understanding of the Convention, said Kilkelly.
Countries have approached incorporation in different ways: “In Ireland, for example, and also more recently in Iceland and Sweden, they are looking to give full constitutional effect to the Convention, really putting it up there in the highest form of legal order. Other countries have taken the Convention and given it the status of a domestic statute. There are other, non-full, indirect incorporative measures which have also been part of our experience and they are important ways to generate a consensus around incorporation.”
For New Zealand, said Kilkelly, a dialogue about incorporation could provide an opportunity “to reflect on how greater harmony might be achieved between the rights of indigenous Māori and Pasifika communities in particular and children’s rights under the Convention”.
Judge Andrew Becroft, New Zealand’s Children’s Commissioner, said he had just been at a hui for the Māori-led inquiry into the operation of Oranga Tamariki–Ministry for Children.
“Nobody there once mentioned the Convention and when I talked about it from an indigenous Māori point of view it was seen primarily as a Western document that individualised and atomised children. We have some work to do with tangata whenua to explain and work through how the Convention is relevant – because it is, properly understood – and utterly consistent with protecting rights to practise indigenous culture and maintain those links.”
Judge Becroft said that on becoming Children’s Commissioner he quickly realised much of the rest of the world, especially Europe, takes the Convention more seriously than New Zealand.
“Too many New Zealand leaders and Parliamentarians in particular simply have no effective acknowledgement or understanding of the Convention,” he said, later adding that “much law gets made in flat contradiction of the Convention and we stand somewhat condemned by our passivity and inactivity when that happens”.
Children are just about a quarter of New Zealand’s population, he said.
“Frankly we can and must to better.”
Professor Laura Lundy, Co-Director of the Centre for Children’s Rights at Queen’s University in Belfast, Northern Ireland, warned about “cherry-picking” rights.
“The important thing about a universal human rights and child rights framework is we don’t get to cherry-pick which rights, we definitely don’t get to cherry-pick which recipients – some children are more worthy and entitled to be seen as rights holders, that’s wrong – and we don’t get to cherry-pick the raison d’etre, why they are there – they are there for state accountability. That’s what human rights law is about.”
Lundy also cautioned about proxies becoming substitutes for proper implementation of the Convention –wellbeing, for example.
“Now I’m really into wellbeing. You can’t not be. I like the idea you have a wellbeing strategy. I think wellbeing in many ways is aiming for something much higher and more ambitious than what the children’s rights framework has delivered. But it cannot be a substitute. It is a different thing. If you want to have a wellbeing strategy, have a wellbeing strategy, but you still need to have a way of securing children’s rights, because they are different – they are about entitlement, they are about accountability and they are about redress. Which is very different from wellbeing; they are linked but they are not the same.”
Similarly, the United Nations’ Sustainable Development Goals: “The clue is in the language –Sustainable Development Goals, not immediate rights and entitlements. They can be a route to the delivery of rights – a helpful route – but they are not a substitute.”
Commenting on the symposium, lead convenor Associate Professor Nessa Lynch from Victoria University of Wellington’s Faculty of Law says: “The presence of these international experts in New Zealand to interact with academics, public sector professionals, legal practitioners, civil society groups, the judiciary and the public has raised the profile of the Convention and the importance of a child rights lens on our laws, policy and practice, not least in advancing the rights and interests of tamariki and rangatahi Māori.”
A publication resulting from the symposium will be available later in the year.