Children and the law

CHILDREN AND THE LAW

Part 3 - Law in PracticeMr Shipp

Monday, 22 August 2011

DEFINING CHILDREN AND YOUNG PEOPLE

• Children – persons under 15years and younger (varies from legal context)

• Young people – persons aged 16-18 (NSW)

• Legal age of Adulthood 18 years

• Covered under : The Children and young Persons (care and Protection) Act 1998 (NSW)

• Certain laws treat children and young people differently.

• Excellent website: www.lawstuff.org.au Monday, 22 August 2011

HISTORY OF CHILD STATUS

• Historically children have no legal rights until adulthood

• Changes to children’s working rights improved their lives

• Children’s health problems existed throughout history

• Public education did not exist until the end of the 19th century

• The concept of “children should be seen but not heard

DISCUSSION POINT

• Why do laws have to treat children and young people differently?

• Which areas of law are children treated differently?

IMPORTANT DEFINITION: DOLI INCAPAX

• Latin term: ‘incapable of wrong’ a child under 10 cannot be held legally responsible of a criminal or civil offence

• In Australia this term is carried to 14 but recent research suggest the age should be amended to 12

RECOGNITION OF CHILDREN RIGHTS

• 1. Convention on the Rights of the Child (1989) – United Nations

• Covered under the Family Law Act 1975 (Cth) and its amendments

• Most widely ratified human rights treaty, only USA and Somalia have not ratified

INTRODUCTION TO CROCMonday, 22 August 2011

• Challenges for CROC in Australia

• Indigenous children

• Asylum seekers and children

• Youth suicide

• Children exposed to domestic violence

CONVENTION RIGHTS OF THE CHILD 20 YEARS ON

DISCUSSION POINT

• In your opinion, what should be the age of criminal responsibility? older? younger? kept the age it is?

• 2. The Gillick Case

• Gillick vs West Norfolk and Wisbech Health Authority (1985)

• A 16yr old was capable of consent in medical matters as long as they understand the implications of their decisions

REVISION: WHAT IS CIVIL LAW?

• Judge plays a leading role – Inquisitorial System

• Judge’s investigation is not limited to the evidence presented in court.

• Standard of proof is used through through the plaintiff proving that ‘on the balance of probabilities’ the defendant is guilty

THE FAMILY LAW ACT 1975 (CTH)

• Main piece of legislation for disputes between married and de facto couples, including children.

• The paramount consideration for orders made under this act must be in the child’s best interest.

HOW A CHILD BECOMES AN AUSTRALIAN CITIZEN

• The Australian Citizenship Acts (Cth) 1948 and 2007

• Any child born in Australia is a citizen if at least one of the parents is an Australian citizen.

• Children born overseas with one Australian citizen parent may apply (registration of descent)

• A permanent resident child who is adopted acquires Australian citizenship

AUSTRALIAN CITIZENSHIP TEST UPDATE 2008

VIDEO TEST

STATE CIVIL LAW AND CHILDREN (NSW)

• 1.Registration and citizenship

• Births, Deaths and Marriages Registration Act 1995 (NSW)

• 7 days after birth to give notice and 60 days to complete registration – giving the child a legal name

• 2.Education

• Compulsory age of 6-17 to attend school Education Act 1990 (NSW)

• Children have the right to be educated

• 3. Work

• There is no legal age limit for young workers

• If under 15 they must receive authorisation

• High levels of age discrimination occurs for children

• 4. Medical treatment

• Marion’s case – sufficient maturity to understand medical procedures, medical decisions can be made

• Parents are responsible for proper medical care even with religious objections

• Court can override refusal to medical treatment if its in the child’s best interest

• 5.Discrimination

• Anti-discrimination Act 1977 (NSW) on the basis of sex, race, sexuality and age.

• There are some exceptions to this act such as insurance

• 6.Contracts

• People under 18 are generally not bound by contracts.

• Parent/guardian acts as a guarantor to the contracts when signed

• 7. Torts

• no age restriction on taking legal action for a civil wrong

• A child is also personally responsible for his or her own wrongful acts

REVISION: WHAT IS CRIMINAL LAW?

• Presumption of Innocence – the accused is innocent until proven guilty

• Burden of proof – prove guilt beyond reasonable doubt

• Based on the adversary system

NSW CHILDREN CRIME LEGISLATION

• Children (criminal Proceedings) Act 1987 (NSW)

• section 5: principle of doli incapax

• Detention is a last resort for a juvenile offender in all states and territories

• different range of criminal sanctions will be used compared to adults

• Young Offenders Acts 1997 (NSW)

• diversionary measures for young offenders as alternatives to court appearances

• Children should be informed to seek legal advice

• the least restrictive sanction should be used

• 3 Tiered system - Warnings, Cautions and Youth Justice Conferences

YOUTH CRIME

YOUTH CRIME STATISTICS

IMPORTANT DEFINITIONS• Sanctions

• penalties imposed on those who break the law, usually in the form of a fine or punishment

• Youth Justice Conference

• a measure to divert young offenders from the court system through a conference that addresses the offender’s behaviour in a more holistic manner

LEGAL RESPONSES FOR PROTECTING THE RIGHTS OF

CHILDREN• Role of United Nations

• Convention on the Rights of the Child (CROC) 1989

• Main piece of legislation that shapes international rights for children

• Australia has ratified this legislation into our domestic law

EFFECTIVENESS OF CROC

• UN committee reports on countries as to whether they are complying

• UN Committee has no coercive power to force countries to comply

GEOFFREY RUSH CROCMonday, 22 August 2011

ROLE OF PARLIAMENT AND COURTS

• Ratified International law in domestic system

• Enacted many laws to protect children

• Placed responsibility on adults to ensure children welfare

• statutory body set up in 1998

•monitors ‘working with children check’ as outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW)

1. NSW Commission for Children and Young People

BILL HENSON CASE

DAVID MARR ON BILL HENSON

•7 specialists courts in NSW

•Two roles - dealing with Young Offenders and children reffered to them by the Department of Community Services (DOCS)

2. Children’s Courts

•care and protection of children

• facilitates accommodation, child care and adoption services

3. DOCS

TRUANCY IN NORTHERN TERRITORY

•Represents children from welfare proceedings in the Children’s Court to family law matters in the Family Court.

•Also aids young offenders in criminal matters

4. Legal Aid

•Tackles children’s matter with an impartial view

• Investigates ‘reviewable child deaths’

•2007, 601 children died in NSW, and 156 of those deaths (25.9%) were reviewable.

5. NSW Ombudsmen

• As children do not vote, their voices sometimes cannot be heard

• Non-Legal mechanism for children can be quite effective in resolving disputes and improving individual rights

NON-LEGAL RESPONSES

• Australian Council of Trade Unions (ACTU) negotiates:

• Employment contracts

• Apprenticeships and training

• Pay conditions

• Health and safety issues

1. Trade Unions

• Children that are in crisis can seek help

• 24-hour free telephone and online counselling

• Caters for children from disadvantaged groups

2. Kids Helpline

• provided by the Australian Childhood Foundation

• directory of services to provide support for people who have experienced child abuse

3. Stop Child Abuse

EFFECTIVENESS OF THE LAW

• As children get older they are more likely to take risks, at the same time adults may abuse and exploit them

• In order to achieve justice, the law must take both into consideration

• Attitudes towards police remains a constant issue

• Seen and heard inquiry 1997 shows:

• 78% of 843 CYP said that police rarely treat them with sufficient respect

• improvements for policing to be more connected with CROC

1. Criminal Justice System

• High rates of ‘arrest to investigate’ among young indigenous males

• Article 37 of CROC states that arrest should be a ‘last resort’

• Further improvement of individual rights accessing legal representation for CYP

• Police informing accused rights from a NESB

Arrest and Police Interview

• Seen and heard report 1997

• Best chance for CYP to rehabilitate and reintegrate back into society

• Detention and other harsh sentencing is ineffective to young people (recidivism rates)

• Children(Criminal Proceedings) Act 1987 (NSW) should take into account special issues regarding children e.g homelessness, family circumstances

Sentencing of Young Offenders

• 300000 children and young people involved in armed conflict

• Children seeking refuge from areas of war and conflict

2. International Issues

• Australia has been a strong supporter of CROC from the very outset

• there are still areas where Australia can do better

• adequacy of programs and services for children’s health, education and welfare

• the adequacy of legislation in addressing the needs of children

Australia’s Obligation of Convention Rights of the Child

• Some issues that remain today:

• parents who use corporal punishment on their children, except in NSW

• Denying young people use of public space

• Workers rights and pay doing the same jobs as adults

Children and the law

Education

Transcript of Children and the law

Children & Family Law Center - Washburn University School of Law

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