Children and young people (every human being under the age of 18) have the same
basic general human rights as adults. Children also have specific human rights
that recognise their special need for protection.
Children’s rights are commonly viewed by children’s advocates
as falling into three categories: provision rights, protection rights and participation
rights (Lansdown, 1994).
Each of these rights applies to the different spheres
of everyday life – at home, at school, at work, or at leisure.
Provision rights include the right to an adequate standard of living, the right
to free education, the right to adequate health resources and the right to legal
and social services. Protection rights include protection from abuse and neglect,
protection from bullying, protection from discrimination, and safety within the
justice system. Participation rights include the right to freedom of expression
and the right to participate in public life.
Dependence, interdependence and independence
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Children are a vulnerable group, and therefore warrant particular attention in
respect of protecting and promoting their human rights. Even though they are
autonomous rights holders, children are dependent on others to give effect to
their rights (for example, they rely on parents or teachers to act on their behalf).
This reliance is partly due to their developmental needs, with children of younger
ages being especially dependent on others to meet their basic and evolving needs.
As children grow, they are able to exercise their rights in an increasingly independent
manner – but this relies upon their stage of development, support for any
disability and the nature of the right they are exercising.
Infants and young children are completely dependent on others, primarily adults,
for all their needs. This stage of high dependency requires other people to ensure
that the full and indivisible rights of the young child are met. These rights
include provision of the basic necessities of life – food, shelter, love
and protection. While there is recognition of the duties of parents, guardians
and caregivers, there is also a State obligation to ensure institutions conform
to prescribed standards in their care and protection of children. The concept
of children as dependents can, however, have a negative outcome if they are viewed
as ‘not being whole or complete’. This is especially true for disabled
children, for whom societal support to meet their needs, irrespective of their
disability, may be difficult, as it is subject to many judgements about their
disability and indeed, their inherent value as disabled children.
Children live, learn and grow, not in isolation, but as part of families, whanau
and communities.
A life-cycle approach is useful for understanding this when children move from
dependence to interdependence to independence. At each stage this allows children
to exert greater power to act on their own behalf. Positive relationships between
young people and adults are critical to this transition and to the shaping of
attitudes towards others. Partnerships, and the relationships that evolve from
them, recognise the importance of change and the need to view differing world
perspectives in order to meet the best interests of the child.
As a young person reaches a level of independence, there is a degree of autonomy
involved in the transition. The right to participate in decision-making becomes
an important measure at this stage, but it is not at the cost of other rights.
While young people may have a sense of independence through reliance on self
and a movement away from the family unit, they are still in a position of vulnerability
as they often have to ‘negotiate’ to obtain basic rights. This often
occurs in the workplace and when accessing information about entitlements.
The extent to which children and young people in New Zealand are able to fully
enjoy their basic rights is dependent on the extent to which all people in New
Zealand enjoy human rights. Equally, a society that meets the basic rights of
its children (to education, health, an adequate standard of living and safety
from violence) is building a future in which all its members are more likely
to enjoy their human rights. Other chapters of this report also address the rights
of children and young people in the context of particular rights.
2. The evidence – Nga take tautoko
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A number of strategies were used to gather information on children’s rights
in New Zealand from the perspective of children and young people as well as adults.
The Children’s Issues Centre (CIC) was contracted to provide a comprehensive
literature review of research on children and young people, and to gather primary
data through an online survey and focus groups. This brought together a large
body of work on research in this area that led to the CIC Stocktake Report (Biddulph,
2004). This report was then used as a basis for a consultation by the Office
of the Children’s Commissioner, with 150 young people and 150 national
decision makers. This consultation took place in February 2004 at a symposium
organised by the Children’s Commissioner.
In preparation for the Stocktake Report, the Children’s Issues Centre collected
information from focus groups of children and young people. The focus groups
sought views and opinions from children and young people who often have difficulty
being heard. These included Maori, Pacific peoples and Asian (mainly Chinese
and Indian) children and young people, disabled children and young people, those
living in rural locations, and those in care or in the youth justice system.
The CIC Stocktake Report was informed by the Children’s Rights Sector Advisory
Group, which was established by the Human Rights Commission and the Office of
the Children’s Commissioner. Half of the members of the Children’s
Rights Sector Advisory Group were young people.
The methods of research, information collection and consultation are explained
more fully in Appendix 1: Consultation and research methods.
There are also references throughout this chapter to the literature review and
other sources of research, in addition to the CIC Stocktake Report.
3. International context – Ki ngā kaupapa o te ao
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General provisions for the rights of the child are contained in the two key international
treaties, the International Covenant on Civil and Political Rights (ICCPR, Articles
23 and 24) and the International Covenant on Economic, Social and Cultural Rights
(ICESR, Article 10).
The adoption of the United Nations Convention on the Rights of the Child (UNCROC)
in 1989 was a major milestone for human rights. The United Nations Children’s
Fund (UNICEF) has commented that:
a century that began with children having virtually no rights is ending with
children having the most powerful legal instrument that not only recognizes but
protects their human rights (UNICEF,
2003).
UNICEF describes the Convention as the most universally accepted human rights
instrument in history – it has been ratified by every country in the world
except two, and therefore uniquely places children centre-stage in the quest
for the universal application of human rights. It is, however, an instrument
that carries with it a number of reservations that inhibit full compliance on
matters of protection, participation and provision of children and young people’s
rights.
UNCROC spells out the basic human rights that children everywhere, without exception,
have. These rights are:
- to survival
- to develop to the fullest
- to be protected from harmful influences, abuse and exploitation
- to participate fully in family, cultural and social life.
The Convention acknowledges that certain groups of children and young people
are in need of special protection. For example, in Article 23 there are obligations
on the State to ensure provision of services, protection from harm and active
participation in communities for children and young people with mental and physical
disabilities.
Every right spelled out in the Convention is inherent to the human dignity and
harmonious development of every child. The Convention protects children’s
rights by setting standards in health care, education and legal, civil and social
services. These standards are benchmarks against which progress can be assessed.
States that are party to the Convention are obliged to develop and undertake
all actions and policies in the light of the best interests of the child.
UNCROC is the first legally binding international instrument to incorporate the
full range of children’s human rights – civil and political as well
as economic, social and cultural. Two Optional Protocols – one on the involvement
of children in armed conflict and one on the sale of children, child prostitution
and child pornography – were adopted to strengthen the provisions of the
Convention in these areas. They entered into force on 12 February 2002 and 18
January 2002 respectively.
New Zealand ratified UNCROC in 1993 with three formal reservations. These related
to children unlawfully in New Zealand, the protection of children in employment
and the mixing of juvenile and adult prisoners.
Two of the eight Fundamental 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). New Zealand
has ratified Convention 182 but not Convention 138.
4. New Zealand context – Ki ngā kaupapa o Aotearoa
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There are two key pieces of legislation that are responsible for the welfare
and interests of children and for the care and protection of children and young
people.
These are the Children’s Commissioner Act 2003 (CCA) and the Children,
Young Persons, and Their Families Act 1989 (CYP&F Act). There are also a
number of other significant pieces of legislation that affect children, such
as the Guardianship Act 1968, Education Act 1989, New Zealand Bill of Rights
Act 1990 (BoRA), Crimes Act 1961, Human Rights Act 1993, Privacy Act 1993 and
the Official Information Act 1982. The High Court has a residual jurisdiction
of the ultimate right of supervision over children.
The CCA promotes the rights, interests and welfare of children and young people
aged up to 18 years in New Zealand. The Children’s Commissioner is mandated
to carry out two key functions relating to the rights, interests and welfare
of children: to inquire into any matter affecting children and to advocate for
children. The Children’s Commissioner has responsibility for ensuring access
to effective complaints mechanisms for children, consulting with children and
feeding their perspectives into government processes, and working with Government
to implement UNCROC.
The CYP&F Act contains provisions of care and protection for children and
young people. It acknowledges the need to provide assistance for families, whanau,
hapu and iwi for the care and protection of children and young people. It also
provides for family, whanau, hapu and iwi to be involved in seeking to resolve
matters relating to children and young people who have offended against the law.
The CYP&F Act assists as a guiding principle the primacy of the welfare and
interests of the child or young person.
The Children’s Commissioner has investigative, monitoring and assessment
functions with regard to the CYP&F Act. The Guardianship Act has defining
and regulatory provisions on the authority of parents as guardians of their children,
and also invests powers in the courts with regard to custody and guardianship
of children.
New Zealand is currently considering new legislation (the Care of Children Bill)
that will amend the Guardianship Act and elements of other legislation.
