As part of the webinar Using the Convention on the Rights of the Child in practice – A view from the Bench, his honour Judge Tony FitzGerald reflected on the benefits of continually applying the international treaty in practice to achieve better outcomes for children and young people.

His honour was the first recorded judicial officer in New Zealand to apply the CRPD in his decisions and judgments after attending a symposium in August 2019 to mark the 30th anniversary of the CRC. He said attending the event opened his mind to “the significance of the conventions and their potential”.

The symposium followed new legislation in New Zealand – in 2019, it became a requirement that any court or other person exercising powers under the 1989 Oranga Tamariki Act must uphold and respect children’s and young people’s rights, including those set out in the CRC and the CRPD. 

“Ratifying the CRC amounted to a guarantee, a promise, that every single child in the country was entitled to every single right and protection in all 54 articles of the convention every day, without qualification or compromise,” his honour said.

“Same goes with the CRPD. These are no simple add-ons or optional extras. And I had seriously underestimated the scope and the scale of these talks.”

“In relation to children’s rights, all too often in practice, we settle for near enough being good enough. And as a result, we are selling short the very people who most need these rights respected and upheld, for whom that is not currently happening,” Judge FitzGerald added.

Ninety per cent of children have these rights upheld – but his honour said that when it comes to children’s rights, this statistic is not high enough. Ten per cent of children in New Zealand is more than 100,000 – which he said is a high number of children’s rights not upheld.

VIEW ALL

“We should never accept that anything less than 100 per cent is good enough in relation to the wellbeing of our children. Not ever,” he said.

Judge FitzGerald added that “deeply embedded” bad practice continues on, despite the 2019 law changes – and that it “needs to be called out”.

“If we lose sight of exactly what has been guaranteed, we are not respecting and upholding those rights. We are settling for a compromise,” he continued.

“As soon as we drop our sights from the ideal towards which we must aim, we compromise the rights of the child.”

Shortly after the symposium, in September 2019, the UN issued its statement on child justice, which his honour said was “perfect timing”.

“Since September 2019, I have been making decisions every day where that document and other convention-related material has been a significant factor in deciding what to do,” he said.

“[The conventions] enable decisions to be made on a transparent and principal basis that go beyond what was previously possible.”

When asked about the age of criminal responsibility in New Zealand – which is the lowest in the world at nine – his honour said it was important to recognise “the desirability of responding to the behaviour of children at that age as a care and protection issue, not as a criminal justice issue”.

“It’s important to say that about 50 per cent of all children and young people who come to the youth court in New Zealand, who admit charges or charges are proven, will have those charges discharged in the end, with an order that leaves no record that they ever came to court in the first place,” he added.

In Australia, dozens of organisations have previously called on Attorney-General Michaelia Cash to raise the age of criminal responsibility – according to 2019 figures from the Australian Institute of Health and Welfare, approximately 600 children under the age of 14 across the country are in Australian prisons every year.

Judge FitzGerald went on to say that although children in New Zealand are entitled to special protections, they often fall short in actually protecting them. Children currently have a right to legal representation and special protections during investigations because of their vulnerability – but the protections, in reality, are not special at all, with most children not being better off than adults.

“From diagnosis to disposition, and most things in between, to the provision of support and services based on need, we do not have a system that comes close to respecting and upholding the rights under the CRPD adequately,” his honour said.

“We all work in a system that only evolves with the pushing of boundaries. That’s how the law develops and improves over time. In this area, there are boundaries that must be pushed.”