Rights of parents and children

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What are the rights of parents and children?

In addition to the rights enjoyed by all persons under human rights treaties, parents and children enjoy special rights, particular to their status. The rights cover:

  • best interests of the child
  • responsibilities, rights and duties of parents
  • separation of children
  • adoption of children
  • right of children to be heard
  • children in the criminal process
  • refugee children
  • families and disability.

Under the Convention on the Rights of the Child (CRC), children are persons under the age of eighteen.

Where do the rights of parents and children come from?

Australia is a party to seven core international human rights treaties. The rights of parents and children are contained in article 3 of the Convention of the Rights of the Child (CRC) and article 24(1) of the International Covenant on Civil and Political Rights (ICCPR).

See also articles 5, 9, 12, 18, 20, 21, 22 and 40 of the CRC, article 14(4) of the ICCPR, article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and articles 3(h), 7, 18(2) and 23 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the rights of parents and children?

You will need to consider the particular rights accorded to parents and children when you are working on legislation, a policy or a program that:

  • relates to any aspect of the care of children, including children with a disability, by parents or other guardians or informal carers
  • relates to any aspect of the welfare of children, such as child-care arrangements
  • relates to the care of children by people with disability
  • provides for the removal of children from parents or other persons responsible for their care
  • relates to any situation that would result in splitting up a family, or a parent and child, for example by forcing them to live apart or become separated
  • makes provision regarding the arrangements for children of parents who are imprisoned or detained
  • relates to the adoption, foster care, guardianship, permanent care and informal care of children within Australia
  • relates to inter-country adoption
  • relates to surrogacy
  • relates to any situation that would result in preventing the reunification of the child with their family and/or parent(s)
  • relates to any aspect of out-of-home care
  • relates to any aspect of the treatment of children in the criminal process, and/or
  • relates to the treatment of children who are refugees or who claim refugee status.

This list should not be regarded as exhaustive.

What is the scope of the rights of parents and children?

The particular rights accorded to parents and children need to be considered in a number of policy contexts.

Best interests of the child

Under the CRC, countries are required to apply the principle of best interests of the child. The principle applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and others who have day-to-day responsibility for ensuring recognition of children's rights. It requires all legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.

Responsibilities, rights and duties of parents

Under the CRC, countries are required to respect the responsibilities, rights and duties of parents or other persons who have responsibility for the child to provide direction and guidance in the child's exercise of the rights recognised in the CRC.

Countries are also required under the CRC to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child and to provide appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. Countries should ensure that parents and legal guardians are aware of their rights to access information on payments and services to which they are entitled to for the benefit of children.

Under the CRPD, countries are required to ensure the rights and responsibilities of people with disability with regard to guardianship and adoption of children and to render appropriate assistance to people with disability in the performance of their child-rearing responsibilities.

Under CEDAW, countries are required, as a measure to eliminate discrimination against women, to ensure on a basis of equality of men and women, the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children, and the same rights and responsibilities with regard to guardianship and adoption of children.

Separation of children

Under the CRC, countries are required to ensure that children shall not be separated from their parents against their will, except when competent authorities determine, subject to judicial review and in accordance with the law, that separation is necessary for the best interests of the child. In any proceedings regarding the separation of children, all interested parties must be given an opportunity to participate. Where separation results from any action by the country against a parent, such as imprisonment, countries are required, on request, to provide the parents and the child with information concerning the whereabouts of the absent family member unless this would be detrimental to the wellbeing of the child.

A child temporarily or permanently deprived of his or her family environment is entitled to special protection and assistance provided by the country, such as foster placement or placement in suitable institutions for the care of children.

Adoption of children

Under the CRC, countries have particular responsibilities in relation to the adoption of children. Adoption can only be authorised by competent authorities who determine that the adoption is permissible.

Inter-country adoption may be considered if the child cannot be suitably cared for in the child's country of origin. A child who is subject to inter-country adoption must enjoy safeguards and standards equivalent to those existing in the case of national adoption. Countries are required to engage in international cooperation to ensure that the placement of the child in another country is carried out by competent authorities.

Right of children to be heard

Under the CRC, children who are capable of forming their own views have the right to express those views freely, and those views are to be given due weight in accordance with the age and maturity of the child. This right includes the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body.

Children in the criminal process

Under the ICCPR, criminal proceedings involving children must take account of their age and the desirability of promoting their rehabilitation. The arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Under the CRC, countries are required to recognise the right of a child accused of a criminal offence to be treated in a manner consistent with the promotion of the child's sense of dignity and which takes into account the child's age and the desirability of promoting the child's reintegration into society.

The same protections regarding fair trial rights that apply to all persons under article 14 of the ICCPR apply to children. In addition, countries must establish a minimum age for criminal capacity, which must not be unreasonably low. Countries must also seek to promote measures for dealing with children without resorting to judicial proceedings, such as care, guidance and supervision orders, counselling, probation, foster care and education and vocational training programs.

Refugee children

Under the CRC, countries must take appropriate measures to ensure that a child who is seeking refugee status or who is considered to be a refugee, whether unaccompanied or accompanied by his or her parents or by any other person, receives the protection provided for in the CRC and human rights or humanitarian treaties, such as the Convention relating to the Status of Refugees. Countries are required to cooperate with the UN and other international bodies to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.

Families and disability

The CRPD enshrines the right to family in various ways for people with disability. It requires countries to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children, and that in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. The CRPD protects the right to marry, rights of reproduction, a right to retain fertility, a right to rear children, and have a united family unit on an equal basis with the rest of the community. Countries are required to respect the family by supporting people with disability to realise their rights. The Convention also provides that, where the immediate family is unable to care for a child with disabilities, efforts be made to provide alternative care within the wider family, and failing that, within the community in a family setting.

Declaration on the Rights of Indigenous People

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the rights of parents and children. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous people.

Can the rights of parents and children be limited?

Human rights treaties recognise that countries may establish their own rules regarding matters, such as adoption, provided those rules respect the fundamental principles provided for in the treaties.

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the protection of children under article 24(1),'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

Limitation

There may be circumstances in which the best interests of the child under the CRC can be outweighed by other primary considerations. Examples of other primary considerations may include public security considerations, and whether the costs of an action taken in the best interests of the child would be so disproportionately expensive so as to outweigh the potential benefits for the child.

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Which domestic laws relate to the rights of parents and children?

Commonwealth legislation regarding child care is contained in the Child Care Act 1972.

The current framework for family assistance comprises a range of payments and is primarily governed by two statutes: A New Tax System (Family Assistance) Act 1999 and A New Tax System (Family Assistance) (Administration) Act 1999. Such payments comprise a range of types, including the child care benefit and child care rebate.

Division 3 of Part XIIIAA of the Family Law Act 1975 and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 govern inter-country adoption.

The Family Law Act also covers children born as a result of artificial conception procedures and surrogacy arrangements (see sections 60H and 60HB).

Sections 7.1 and 7.2 of the Criminal Code Act 1995 and sections 4M and 4N of the Crimes Act 1914 provide that a child under 10 years of age is not criminally responsible and that a child between 10 and 14 years of age can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

Other laws make particular provisions regarding children in the criminal process. For instance, Part 1AD of the Crimes Act provides for the protection of children in proceedings for sexual offences.

The Immigration (Guardianship of Children) Act 1946 makes provision for the guardianship of unaccompanied non-citizen children who arrive in Australia.

State and Territory laws provide for care provided by non-parent carers (unrelated foster carers, and relative or kinship carers who are mainly grandparents) of children who cannot live with their parents. This may be as a result of a child protection intervention, or where parents are incapable of providing adequate care, or where alternative accommodation is needed during times of family conflict.

What other rights and freedoms relate to the rights of parents and children?

The rights of parents and children may be relevant to:

  • the right to freedom from arbitrary or unlawful interference with the privacy of the family under article 17 of the ICCPR
  • the right to protection of the family under article 23 of the ICCPR
  • fair trial and fair hearing rights under article 14 of the ICCPR
  • the obligation to separate children accused of criminal offences from adults in article 10(2) of the ICCPR
  • minimum guarantees in criminal proceedings in article 14 of the ICCPR, and/or
  • the right to protection against exploitation, violence and abuse.

Articles from relevant Conventions

Convention on the Rights of the Child

Article 3

  • In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
  • States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
  • States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

International Covenant on Civil and Political Rights

Article 24(1)

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

See also: CRC articles 5, 9, 18, 20, 21, 22, 40; ICCPR article 14(4); CRPD articles 3(h), 7, 18(2), 23; CEDAW article 16.

Where can I read more about the rights of parents and children?