Human rights and child protection

This advice outlines requirements in relation to the Charter of Human Rights and Responsibilities Act 2006 (the Charter), which the Victorian Government has enacted, and considers how the Charter will impact on practice in child protection.

Introduction

The Charter places obligations on public authorities to act compatibly with the rights set out in the Charter and to properly consider relevant rights when making a decision. It is unlawful for a public authority to:

(a) act in a way that is incompatible with a human right;

(b) in making a decision, to fail to give proper consideration to a relevant human right.

As a public servant, you are a public authority and these obligations apply to you.

Limits on rights must be:

  • reasonable;
  • justified;
  • proportionate;
  • logical; and
  • balanced.

The obligation to act compatibly with the Charter does not apply if another law means that the public authority could not reasonably have acted differently or made a different decision.

The Charter is most likely to be relevant to you in areas where you exercise discretion in your work. In deciding upon the appropriate action or in making a decision, consideration must be given to the human rights set out in the Charter where they are relevant.

You are required to operate in accordance with the CYFA which has many consistent principles and supportive of the rights in the Charter.

Factors to consider

Some of the rights more commonly engaged by child protection are discussed in the following table.

Charter right and description

Factors for child protection to consider

Recognition and equality before the law (s. 8 of the Charter)

(1) Every person has the right to recognition before the law. This means that the law must recognise that all people have legal rights.

(2) Every person has the right to enjoy their human rights without discrimination. This means that the government ought not to discriminate against any person and the content of any legislation ought not to be discriminatory. It also means that public authorities must not discriminate against people when enforcing the law and they must not apply legislation in an arbitrary or discriminatory manner.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. This means that all people have the right to be protected from discrimination and are all equal before the law.

Section 7(1) of the Charter provides that 'a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including:

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve'.

Section 7(3) of the Charter further provides that 'Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person'. This means that public authorities must apply the law and provide services without discrimination.

Discrimination may be obvious, even intentional, where someone proposes to treat someone else differently because of an attribute such as race (direct discrimination). Discrimination may also occur as an unintended effect of a law, policy or action (indirect discrimination).

Not all treatment that differs on one of these grounds is discriminatory. Measures taken for the purpose of assisting or advancing persons or groups of persons who are disadvantaged because of prior discrimination are unlikely to amount to discrimination. Also, measures may permissibly discriminate if they are reasonable and demonstrably justified under section 7 of the Charter.

Discrimination has the same meaning under the Charter as under the Equal Opportunity Act, and means discrimination on the basis of an attribute set out in section 6 of Equal Opportunity Act: age, breastfeeding, employment activity, gender identity, disability, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation, an expunged homosexual conviction, and personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes. This is relevant for actions and decisions of child protection when for example, you seek to remove a baby from their mother's care who is breastfeeding.

(1) All children within the State of Victoria have rights pursuant to the CYFA and the Charter. For instance, if a child resides in QLD and is in Victoria for a short period of time, they are still recognised by the CYFA and the Charter still applies whilst they are in Victoria. Child protection must act in the best interests of a vulnerable child regardless of whether or not they are a Victorian resident.

(2) In child protection this right is relevant to all your actions and decisions in relation to families. Your decisions must be made in accordance with the best interest principles, consistent with both your legislative authority and child protection policy. This will ensure that your decisions are transparent and without discrimination.

(3) This right does not confer a right to bring proceedings in a court.

Placing restraints on the behaviour of parents is not a breach of the Charter if it is reasonable and in the best interests of a vulnerable child.

Child protection should particularly consider this Charter where actions and decisions involve:

  • proceedings being brought before a court;
  • a bail justice hearing;
  • internal reviews of case plan and other decisions;
  • specific individuals or groups that may be disadvantaged or at risk of discrimination on the basis of one of the attributes in section 6 of the Equal Opportunity Act, which is unlawful; and 
  • complaints against decisions or actions of DHHS are made.

Right to life (s. 9 of the Charter)

Every person has the right to life and the right not to be arbitrarily deprived of life.

This right is concerned with the protection and preservation of life.

The right to life not only imposes a negative duty on the government to refrain from arbitrary deprivation of life but can give rise to a positive obligation on the State.

Child protection has a duty to protect the life of vulnerable children.

Your duty to protect children is a positive duty and may include:

  • the duty to bring court proceedings in relation to children whose lives are at risk;
  • protecting the lives of people in care or custody, which includes children in out-of-home care and in secure welfare facilities, and children on a family reunification order, care by Secretary order or a long-term care order;
  • facilitating access to medical treatment, including medication, for a child, this may relate to a situation where parents fail to give adequate medical treatment to a child and their life is put at risk.

The right does not directly relate to reports in relation to an unborn child as under Victorian law a human being is not a legal person until after birth. In this regard, child protection has no role to play if a report is received regarding termination of a pregnancy.

Protection from torture and cruel, inhuman or degrading treatment (s. 10 of the Charter)

A person must not be –

(a) subjected to torture; or

(b) treated or punished in a cruel, inhuman or degrading way; or

(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

The assessment of whether an action amounts to cruel, inhuman or degrading treatment is relative. It will depend on factors including the duration of the treatment, its physical or mental effects, and in some cases the gender, age, vulnerability and state of health of the victim.

A punishment involving a high level of humiliation and debasement may breach s. 10 of the Charter. For example, the United Nations Human Rights Committee has ruled that corporal punishment is unacceptable and that solitary confinement may also violate the International Covenant on Civil and Political Rights, particularly if it is prolonged or the person is held incommunicado.

Consent to medical and scientific treatment or experimentation must be 'full, free and informed'. This means that consent must be voluntary and the person must have been given sufficient information for an informed decision to be made.

Child protection should particularly consider this Charter right in relation to actions and decisions regarding the protection of children from treatment by family members which may becruel, inhuman or degrading, but also in relation to the treatment of children in the child protection system and particularly those placed in out-of-home care.

Section 3(1) of the Charter also notes that an 'act' not only includes a positive act, but also a failure to act and a proposal to act.

This right should also be considered in circumstances when the Secretary has the power to consent to medical assessment or treatment for a child, in place of a parent or parents under section 597 of the CYFA.

Medical, psychological or psychiatric treatment of a child can occur without the consent of a child where a therapeutic treatment order is made by the Children's Court. The Court can only make this decision based on best interests principles.

In some circumstances it may be possible to get consent for treatment (for example, if the patient is unconscious) and involuntary treatment may be provided by law. Section 597 of the CYFA specifically provides for circumstances where the Secretary may consent to a medical assessment or treatment of a child.

Freedom of movement (s. 12 of the Charter)

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live.

A person cannot therefore be forced to move to or from a particular location.

Child protection should particularly consider this Charter right in relation actions and decisions when:

  • a child is removed from their parents’ care and placed in out-of-home care;
  • a child is returned to their placement via a warrant;
  • a child is removed by emergency care as a result of a breach of a court order;
  • a decision is made to place a child in a secure welfare facility;
  • in relation to the transfer of a protection order or child protection proceedings interstate, where they govern a person moving from Victoria.

However, like all of the rights in the Charter, the rights in s.12 are subject to reasonable limitations under s.7 of the Charter. For children who are subject to court orders, restricting their movement is a reasonable limitation if the risk to the child warrants this response.

Privacy and reputation (s. 13 of the Charter)

A person has the right –

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked.

The requirements of living in a society mean that privacy will often be balanced with other considerations.

The right to privacy imposes limitations on interferences with a person's body (for example, through a search), their correspondence, their family, and intrusions into a person's home. There are also obligations to control personal information that may be collected for official purposes, such as information recorded on government data bases.

An 'unlawful interference' is one that does not take place in accordance with law. When authorising any interference with privacy, the law should specify in detail the precise circumstances in which interference is permitted.

An 'arbitrary interference' is one that is not in accordance with the provisions, aims and objectives of the Charter and is not reasonable.

'Correspondence' refers to both written and verbal communications.

The Charter protects a person from an unlawful attack on his or her reputation.

You should particularly consider this right in all dealings with client information in relation to actions and decisions regarding families and children. The Charter does not change the law governing information privacy as regulated by the Privacy and Data Protection Act 2014 and Health Records Act 2001. It is essential that you comply with all legislative and policy requirements regarding privacy, including the confidentiality provisions of the CYFA.

This right is also relevant when your actions invade a family's privacy. For instance, entering their home without their consent. However, this action would be a reasonable limitation of the right, if it was warranted to promote the best interests of the child.

Freedom of thought, conscience, religion and belief (s. 14 of the Charter)

(1) Every person has the right to freedom of thought, conscience, religion and belief, including—

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

This right will be engaged where child protection intervention is required because a parent/s or child’s religious beliefs may place the child at risk, for example if a requires a blood transfusion but the child’s parents are refusing the treatment due to their religious beliefs. If this right is engaged as in this example (and the child is incapable of consenting to the treatment), it must be balanced against the child's right to life (s. 9 of the Charter), to be protected from degrading treatment (s. 10 of the Charter), and the protection of families and children (s. 17 of the Charter). Section 24 of the Human Tissue Act 1982 authorises a registered medical practitioner to administer a blood transfusion to a child without parental consent if it is a reasonable and proper treatment for the condition from which the child was suffering and that without a blood transfusion the child was likely to die, and either a second registered medical practitioner concurs, or where the child is in a hospital, the chief medical administrator or medical superintendent of the hospital consented to the transfusion. The limitation of the parent's right is reasonable in these circumstances.

In this instance, it is also relevant to consider all matters within the best interests principles, including the child's development.

A parent may rely on this right as justification for inappropriate disciplining, genital mutilation or other acts that are harmful to a child. Again, your actions in limiting the right are reasonable if they are warranted to protect the child from harm.

Freedom of expression (s. 15 of the Charter)

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

More generally:

The Charter establishes a right for all persons in Victoria to hold an opinion without interference and to express themselves by seeking, receiving, and imparting both information and 'ideas of all kinds'.

Freedom of expression may be reasonably limited either by way of the operation of s. 7 of the Charter or by virtue of the limitations contained within this section (s. 15) which safeguard the rights and reputation of others and protect national security, public order, public health and public morality.

An example of where this right may be subject to lawful restrictions is where child protection seek to intervene in relation to an assessment of risk to the child that involves a child’s exposure to pornographic or sexually graphic material, or verbal abuse.

Processes in child protection which support this right are family decision making meetings and family group conferences. Further, the decision making principles contained in s. 11 of the CYFA support this right.

Protection of families and children (s. 17 of the Charter)

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

While children are entitled to special protection because of their vulnerability as minors, they are entitled to enjoy all other human rights in the Charter as well.

This right is relevant to all of your actions and decisions regarding children and their families. It is consistent with the best interests principles in the CYFA and involves balancing a child and family's rights on the one hand and the assessment of risk to a child on the other.

The need to balance this right with others is particularly noticeable where a child is removed from a family. Removal should only occur in the best interests of a child if there is an unacceptable risk of harm to a child.

It will also be relevant for:

  • case planning decisions that consider the appropriate supports and services that a child and family require. Child protection is responsible for ensuring that the necessary supports and services are provided for the family;
  • case planning decisions regarding removal of a child from a parents care and plans for reunification; and
  • permanency planning.

Cultural rights (s. 19 of the Charter)

(1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language.

(2) Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community –

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

More generally:

  • This section applies to all persons with a particular cultural, religious, racial or linguistic background in Victoria. It is particularly relevant to minorities.
  • The term 'culture' has a broad and flexible interpretation in international human rights law. It may manifest itself in many forms, including a particular way of life associated with land resources, especially in the case of indigenous people.
  • Any religion practiced in Victoria is likely to be covered by this section.
  • The term 'race' has a broad meaning which may include colour, descent or ancestry, nationality or national origin and ethnicity or ethnic origin.

This right is particularly relevant to your actions and decision making for Aboriginal children and families, and children and families of a culturally and linguistically diverse (CALD) background. However, the right applies equally to all children and people in Victoria.

This right is supported by the Aboriginal Child Placement Principle in s. 13 of the CYFA, together with the additional decision-making principles for Aboriginal children in s. 12, and the further principles for placement of Aboriginal children in s. 14. It is also supported by the best interests principles.

Right to liberty and security (s. 21 of the Charter)

(1) Every person has the right to liberty and security.

(2) A person must not be subjected to arbitrary arrest and detention.

(3) A person must not be deprived of his or her liberty, except on grounds, and in accordance with procedures, established by law.

(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

(5) A person who is arrested or detained on a criminal charge –

(a) must be promptly brought before a court; and

(b) has the right to be brought to trial without unreasonable delay; and

(c) must be released if paragraph (a) or (b) is not complied with.

(6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend– 

(a) for trial; and

(b) at any other stage of the judicial proceeding; and

(c) if appropriate, for execution of judgment.

(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must –

(a) make a decision without delay; and

(b) order the release of the person if it finds that the detention is unlawful.

(8) A person must not be imprisoned only because of his or her inability to perform a contractual obligation.

Any arrest or detention must be authorised by law and it must not be arbitrary – that is, it must not be unreasonable.

To avoid arbitrary arrest or detention, enforcement officers should only arrest and detain someone in accordance with established procedures.

Any person who is arrested or detained must be told – (a) the reason for the arrest or detention; and (b) about any proceedings to be brought against him or her.

Any person who has been arrested or detained has the right to challenge the lawfulness of his or her detention in court, without delay.

You should consider this right in relation actions and decision-making that involve the following:

  • when a Protection Application is sought for the emergency care of a child;  
  • any warrant that is sought in relation to a child in the Family Division of the Children's Court (including a return to placement warrant);
  • where an out-of-home placement of a child is sought;
  • where a child is placed in a secure welfare facility;  
  • where a child under the sole parental responsibility of the Secretary is detained without warrant under s. 172(3) of the CYFA.

In these instances, consideration is required as to whether the limitation on the right is reasonable and warranted to promote the best interests of the child.

Humane treatment when deprived of liberty (s. 22 of the Charter)

(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

You should consider this right in relation to actions and decision-making that involve the following:

  • where a child is placed in a secure welfare facility;
  • where a child under the sole parental responsibility of the Secretary is detained without warrant under s. 172(3) of the CYFA.

Fair hearing (s. 24 of the Charter)

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

All judgements or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless determined not to be in the best interests of a child or is permitted by a law other than the Charter.

You should consider this right in relation actions and decisions that involve the following:

  • all proceedings in any court or tribunal;
  • the internal review of a decision;
  • decisions to place a child in secure welfare;
  • a bail justice hearing; and
  • where complaints against decisions or actions of child protection are made.

To comply with this right, it is necessary for you to comply with child protection policies and practices regarding all legal proceedings.

Considerations for good practice

How do I incorporate human rights into my day to day work?

The aim is for you to think about human rights and to consider them in your work practices and decision-making. Experience will improve your skills in identifying present and potential human rights issues. Presently, you automatically consider a range of factors prior to making a decision. In order to integrate human rights into your work, you need to actively ‘think Charter’. This is the major change you need to make to the way you work. Even though you can highlight specific rights of greater importance for your work, it is important to remember the following:

  • You need to assess ALL relevant rights when you are making a decision.
  • You must act in accordance with the CYFA. When exercising discretion under the CYFA, you must do so in a way that is compatible with human rights.
  • In determining whether a right can be reasonably limited the rights of all of the parties must be balanced and considered.

When you are making a decision or taking action consider the following points:

  • What rights will be affected?
  • Are anyone’s rights limited?
  • What interests need to be balanced?
  • Are limitations reasonable/justified? What, why, how, to what extent?
  • Practical solutions?
  • What do others think?
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