Who is raising children’s rights? References to children’s human rights in Australian case law

The UN Convention on the Rights of the Child is the most ratified human rights treaty worldwide but it has not been systematically incorporated into Australian law. Several children’s rights are protected in the Queensland, Victoria and Australian Capital Territory (ACT) Human Rights Acts, including the right of children to protection, the right to education, and rights of children in criminal proceedings. However, if children’s rights are to be enforced, they must be raised in legal argument and taken into account in judicial decision-making. In this paper, the author analyses published case law from Queensland, Victoria and the ACT to determine the extent to which children’s rights are being considered by courts and tribunals. The findings suggest that children’s rights are more often raised in matters where an adult is the subject of proceedings (such as employment and adult criminal matters), rather than matters where the child is the subject (such as child protection, education and youth justice matters). It seems that children’s rights are being used by adults to serve their own ends, whilst children do not always benefit from their protection.