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| Human Rights Commission Submission OR: the Rights of the CHILD
By Lewisblayse.net
Lewisblayse.net
December 4, 2013
http://lewisblayse.net/2013/12/04/human-rights-commission-submission-or-the-rights-of-the-child/
The submission of the Australian Human Rights Commission to the Royal Commission into Institutional Responses to Child Sexual Abuse indicates it has limited experience of both child sexual abuse complaints, and of the Catholic Church’s “Towards Healing” process which is to be the subject of hearings beginning on 9th December.
It points out that there are certain articles in the U.N. Convention on the Rights of the Child (CRC) which are particularly pertinent to the handling of child sexual abuse complaints. These are articles 19,34,39,12 and 3.
Articles 19, 34 and 39 of the CRC oblige Australia to take all appropriate measures to protect children from sexual abuse and sexual exploitation by:
1. Implementing mechanisms to report abuse against children
2. Providing clear guidance and training on when and how to refer the issue of abuse to the responsible agency
3. Investigating instances of abuse
4. Providing treatment that promotes the physical and psychological recovery and social reintegration of children who have experienced abuse
5. Judicial involvement through criminal law proceedings against people suspected of child abuse.
Article 12 of the CRC obliges Australia to implement mechanisms, including complaint mechanisms, to hear the views of children. Further, article 12 requires that these mechanisms should be firmly anchored in laws and institutional codes, and should provide children with:
1. Access to appropriate information, including information about policies and complaints procedures in formats appropriate to their age and capacities
2. Adequate support, if necessary
3. Feedback on weight given to their views
4. Procedures for remedies or redress.
Article 3 of the CRC obliges Australia to protect the best interests of children in individual situations as well as the best interests of children as a group. Article 3 also requires that the best interests of individual children who survive sexual abuse, as well as the best interests of other children who may be at risk of a perpetrator reoffending, must form the primary purpose of decision making about whether to commence judicial involvement through criminal law proceedings against a perpetrator.
The submission notes that “it would seem appropriate for complaint processes … to be documented separately and include much more detailed information about mandatory reporting, how Towards Healing may intersect with criminal justice and child protection systems and the associated responsibilities of Church personnel to ensure the best interests of children.”
The Commission notes a number of principles relevant to best practice complaint processes involving sensitive subject matter and vulnerable clients. Many of these are lacking in the “Towards Healing” process. The submission mentions specifically the following ideals:
A sensitive, compassionate and nonjudgmental initial response to complaints.
The involvement of guardians of children
An independent support person to assist complainants articulate the complaint, understand the complaint process and make informed decisions, with this person having no role in judgment or determination of the issues raised in the complaint
Reducing the potential for any trauma or harm arising from the complaint process itself
Ensuring that those administering the complaint process have the specific knowledge and skills required to do so.
It notes that “some practices, which would enhance procedural fairness for respondents, are not included in Towards Healing. Specifically: providing for a respondent to be informed upfront of the possible sanctions if the allegations are found to be true as this ensures the respondent, when making a reply, is fully aware of potential providing the respondent with an option to comment on any proposed finding and sanction before the final decision.”
“The selection criteria, if any, which should be used to employ or engage personnel including assessors and facilitators involved in Towards Healing, and their selection, appointment and engagement and manner in which conflicts of interest are dealt with.”
“A central component of a best practice complaint process is that it is both fair and seen to be fair. Crucial to this is that those facilitating the process and associated decision makers do not have, and are not seen to have, any personal or professional interest in the complaint or its outcome. Where there are significant concerns about potential bias or conflicts of interest in relation to an organization’s internal complaint process, it may be beneficial to have the process facilitated by an external body or alternatively to provide for review options by an external body.” The “Towards Healing” process clearly fails in this regard.
The relationship between participation in the Towards Healing process and the rights of victims to access the civil and criminal justice systems in Australia is stated as being “of concern.”
“Towards Healing does not appear to provide for complainants to have access to independent legal or expert advice at an early stage in the process. When a complaint is brought forward, it would be appropriate for the complainant to be referred for independent legal or expert advice about options available to address the alleged act through criminal or civil procedures and/or the Towards Healing process. This would ensure that complainants make informed decisions with reference to the potential benefits and disadvantages of each form of process as well as ensure the preservation of their rights.“
“It is understood that the Towards Healing process of facilitation is available to complainants where there has been a finding of a court, for example in relation to a criminal offence. It is therefore important that complainants are aware that this process can be accessed at the conclusion of any criminal action, not only as an alternative to criminal action.” Again, there are problems with this ideal.
The Commission’s submission “notes that while there are numerous references to ‘confidentiality’ in the Towards Healing procedures, there is insufficient information about what is specifically required and relevant to different roles in the process and any associated limits on confidentiality.” This is a very valid criticism, made by many others.
The submission refers to the insufficiency of the guidelines in relation to referral of matters to the police, as indeed do several other submissions. It notes that “The ‘Towards Healing’ document provides only limited reference to mandatory reporting and how ‘Towards Healing’ may intersect with responsibilities of Church personnel under criminal law and child protection systems.”
“It would no doubt be of value if reporting requirements of Church personnel were clear both in law and in policy. The development of protocols with Police referenced at 37.7 of the policy would appear to be crucial in ensuring that the Towards Healing process does not compromise police action relevant to public safety.”
The submission, overall, is careful to point out its own limitations with respect to its prior experience of the subject of the submission. Nevertheless, it will add considerable weight to the arguments against “Towards Healing” in the areas of mandatory reporting and fairness of the process for victims.
[Postscript: Vatican officials will explain their position at a meeting in Geneva on January 16 with the United Nations Committee on the Rights of the Child, which is checking whether the Catholic Church is honouring the Convention on the Rights of the Child.]
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