Podcast: Children’s Rights International – In conversation with Alastair Nicholson QC

Sally:

Good afternoon, my name is Sally Nicholes and I am Managing Partner at Nicholes Family Lawyers and today I have the great honour of being joined by the Honourable Alastair Nicholson QC, former Chief Justice of the Family Court of Australia and Chairman of the Board of Children’s Rights International. Welcome, Alastair!

Alastair:

Very good, Sally!

Sally:

Now Children’s Rights (CRI) is just an incredible organisation whose mission aligns so closely with that of Nicholes Family Lawyers in that it aims to protect and advance the human rights of children throughout the world. I am privileged enough to be a board member of the organisation and I know that various members of  Nicholes Family Lawyers staff have had such a wonderful association, some even having the opportunity to travel with Alastair to assist CRI in the past.

Now the organisation, for those who are listening who don’t know, works for the approval of host country governance, and in partnership with those host country organisations and community groups dedicated to protecting the rights of children. Their work involves education, training, mentoring, monitoring and representation.  They also bring together esteemed judges, medical practitioners, lawyers, mental health workers, child carers and allied professionals alike, to contribute to their knowledge in a practical manner, to enhance the interests of children on an international scale. I’m very flattered to be discussing the history and current work of this remarkable organisation with Alastair today.  Alastair, could you tell me a little about your own background, aside from CRI?

Alastair:

Yes, well basically, I had a conventional legal background, professionally.  I went to the Bar in 1963 and practised at the Bar until 1979.  I took silk and in 1982 I was appointed to the Supreme Court.  I’d had quite extensive experience involving all sorts of cases during that time and I had, from the early days, developed a sympathy with the way the children were mistreated in my view by the law, in many cases.  So children and their treatment in the law was a matter that interested me…..one of the reasons I accepted the appointment of Chief Justice of the Family Court in 1988.  And from there, we almost segued into the World Congress movement, of which I was associated with its birth in 1989 when Stuart Fowler, Rod Burr and myself went to Hong Kong to a meeting of LawAsia and that was really what really led to the formation of the World Congress, and out of the World Congress, eventually, following a meeting of it in Bath in 2001, there came a decision to start an organisation  which would be an  advocacy organisation which would conduct itself on a permanent basis rather than just at the World Congress every four years or so.  So that was really the background from my point of view.

From there, I was earlier asked if I could suggest a suitable person to act as a CEO for the World Congress and I suggested a very interesting chap who worked with me at the Court – he was a media expert and he had also worked with Community Aid Abroad, so he had a strong background in issues relating to children and he also made some quite successful videos. So he took over as CEO of CRI.  It was controlled by a Board, of which I was not a member but I maintained close relationships with it, and he started work in Cambodia, round about 2005/6.  From there, the activities of CRI in Cambodia started and have continued ever since.  Together with quite a substantial program in Vietnam for some years, which ended in about 2014, with a fairly successful outcome. Also a friend called Bill made a film – we worked with an NGO in Afghanistan; Bill went to Afghanistan and he made a film for Women who Want to be Women, (maybe Women for Afghan Women)  an organisation in Afghanistan, I think I may have the name wrong, but anyhow it was an organisation which protected women and children run by an outstanding woman called Surah Paksat.  So we have given it support as well.  So perhaps you might like to pick up from there, Sally.

Sally:

Absolutely, and we have had a wonderful exchange with the co-founders of the World Congress, Stuart Fowler and Rod Burr and both of them have really credited you with being at the forefront of the establishment of the World Congress and the fact that CRI sprang out of the Advocacy Board….would you like to talk to us and tell us a little about that, about the association between the World Congress and CRI and some of that history?

Alastair:

Yes, well of course, I should mention that although I was not officially a member of the World Congress Board, as Chief Justice of the Court,  I gave strong support to it and I was able to arrange for experts from the Court to come to various events at the World Congress.  There were many who came to the first World Congress in Sydney in 1993 and I was there, of course, and have been to every World Congress since.  I had the pleasure of co-chairing the next World Congress in San Francisco in 1997 – Stuart Fowler had an unfortunate illness just before the Congress and Rod asked me to chair and we co-ran that Congress with an American organisation called the Association of Family and Conciliation Courts, of which I later became the Chair as well, so there was a close association there.

But we had a fascinating event in San Francisco – we thought we were likely to go broke and I wasn’t sure I shouldn’t get on a fast plane home if things went as badly as at one stage, we were anticipating, but as it turned out, 1,500 enthusiastic participants turned up in San Francisco, the whole thing was a striking success, which kicked the Congress off on a very good basis following the Sydney success.  To run one in the US and get that sort of response was excellent.  As part of that exercise, Stuart and Rod and I visited New York a few times, and we also visited Washington where we had a meeting with Hillary Clinton who was then the First Lady.  She supported the Congress; she was going to open it but her daughter Chelsea’s graduation intervened so she simply encouraged us via video-screen, but still it was a great success.

One of the things we were really concerned about and wanted to do something with was to get some advocacy activity together so that the World Congress was not simply a conference organisation and really that was what led to the birth of Children’s Rights International.  That was discussed just after 9/11 at the World Congress in Bath but it really took form at the following World Congress in Cape Town which I think was in 2004.

Sally:

It certainly was, and I remember that very well.

Alastair:

Yes and that was a great event as well, highly successful again, I remember that was really the first time we really had a professional association, Sally, was round  about then, or a conference association anyway and I’ve been very pleased about that relationship ever since because we have done some very good work together.

Sally:

What I thought was wonderful at that time was the way CRI could be used as a platform with the Federal Police who were very keen to organise at that time a meeting of relevant NGOs and police in Australasia.  CRI was able to actually facilitate and help by its advocacy to have some best-practices discussions and for World Congress at that time to have CRI as its advocacy arm which was so important, and under that banner we had a number of different meetings and exchanges and I believe that relationships, particularly looking at that extra-territorial prosecution of offenders against children overseas really took off in a meaningful way.  I know that the police are always looking for those sorts of opportunities to work with partners who have got the gravitas which you brought to it.

I was also thinking, Alastair, about Dr. Peter Nygh and his involvement in CRI; he was extremely enthusiastic about the resolutions made at World Congress and having the Advocacy Board and I think he was going to assist you in CRI but unfortunately he passed away.  He was such an amazing jurist – was he partly responsible for CRI or part behind that?

Alastair:

He was certainly a great supporter of it and he always took a great interest in its activities, but as you say, he became ill and died very quickly as a result of becoming ill and he was a great loss, as he had the great value of being an experienced  Australian judge, but unusually one who was brought up in the continental system so he knew, he was a Professor of Law in Europe, he knew as much about the civil law system there as he knew about Australian law, and that is pretty much a rarity in Australia.

Sally:

I remember getting the papers for Bath and I remember being very excited in getting a letter from him accepting a speech on inter-country adoption and it was really very intimidating knowing his background, but he was really down-to-earth and such a generous man.  I do remember you both talking about CRI at the Bath World Congress and it is just amazing to see what it has actually achieved in the spirit of altruism.  I think everyone is a volunteer and spent so much time on it, particularly yourself.   You have had a couple of recent trips to Cambodia.  What is the current work with Cambodia that you are progressing?

Alastair:

Stepping back a couple of years, in 2017 or rather the year before, the Cambodian Government passed a Juvenile Justice law and we had a lot of input into what went into the Juvenile Justice Law.  We organised a study tour for some of their senior people, including the Minister, to come to Australia to see how the system worked here in relation to juvenile justice, so that was a very good start and then the United Nations Children’s Fund (UNICEF) asked us, engaged us actually, to produce an overall strategic plan for the implementation of that Juvenile Justice law.  I should mention that it involved concepts which were completely unknown in Cambodia, where children were treated just in the ordinary criminal courts and they were barely distinguished from adults in terms of sentencing and criminality and so on, and were treated actually very badly. I think that the introduction of this legislation which provides for imprisonment as a last resort and all sorts of modern juvenile justice provisions.  That meant that an enormous amount of work had to be done in Cambodia to try and explain how the system worked.

So that is basically what we have been doing ever since. One of the sort of guiding principles of juvenile justice should be diverting children away from the criminal justice system, so if you could get them very early when they committed an offence, the answer is that you don’t lock them up, you normally would give them a warning, some kind of a fright, having to come to the police station and be interviewed and so on.  But the concept is not one of punishment, it is very much trying to persuade the child that this is not the right way to go. In fact, although police get a lot of abuse at various times, my experience in Victoria and also in New Zealand where I know the same system operates, the police play a very active part in diverting children away from the juvenile justice system and those are the concepts which we are trying to imbue into Cambodia, using the Juvenile Justice law which they passed and we have been explaining to them the principles of diversion.

Even at senior level, they had some difficulty in understanding what that meant.  They at first seemed to think that you diverted children away from gaol by locking them up in a juvenile correction institution and that is very much not the idea, because once you actually incarcerate a child, that is probably the worst thing you could do and should only be an extreme last resort, whether it is called a gaol or a juvenile correction institution.

So we eventually had a couple of seminars and we had one in particular where this became a real stumbling block. We were also trying to deal with two government departments or really three because the Ministry of the Interior looked after prisons, the Ministry of Justice looked after judges and courts and the Ministry of Social Welfare looked after problems with kids in danger.  They didn’t talk to each other and it was very hard to get them to work together. So the next step we took when this became something of an impasse was to arrange for a visit to New Zealand, which, I think, has an even better juvenile justice system than ours and at the beginning of February last year, we took Sue Marshall who is a Professor of Law at La Trobe, who has worked with us also for many years with CRI; we took a team from Cambodia through to Auckland and we spent a week there, looking at the system there.

When we went back to Cambodia for the next seminar in July of last year, they were much more receptive to what was happening.  We actually prepared a set of guidelines for diversion; there were three of us each time we went to these seminars.  The first time we had another young lawyer from Nicholes Family Lawyers who came – on two occasions we had two young women who have been very helpful in these seminars, and we were able, I think, to really get it going.  The last visit I paid was this year, I got back on the 6^th February, just about the right time to get home because of the COVID situation.  At that seminar, we actually concluded the preparation of the diversion guidelines, so we are hoping now that we will be able to proceed with the training of judges, prosecutors and police with all the legislation in place, and we hope to do this in the coming year.  It is probably difficult to see whether we will get there before the end of 2020 again, but hopefully in early 2021 we will be able to do that.

I should add, too, that we have recruited well to our Board.  One of our recent acquisitions is former Justice Jennifer Coate who was the first president of the Children’s Court in Victoria, but she also later became the Coroner in Victoria as a County Court judge and then she was appointed to the Family Court and seconded to the Royal Commission into Child Abuse, where she served as a Commissioner for five years.  So we now have on our Board probably one of the most experienced experts in child abuse and also given her background in child justice, that one could have.  And we have recently added yet another former president of the Children’s Court to our Board  so we are now really very powerfully-endowed with experts in these areas and we are able to offer the sort of expertise – all entirely voluntary, we don’t charge for any of the services that we give.  We have had quite good support from UNICEF, we have had good support from some  private contributors, and wonderful support from the La Sallian Foundation, (which is no longer in existence), of which I was a member of the Board as was Sally. Brother Paul Smith was one of the strong figures in that Association, who also took a great interest in what we were doing in Cambodia.  So we had financial help from there, and also from another Foundation, I think I can mention their name, the Avant Foundation, who also made an extraordinarily-generous contribution to us, which enabled us to carry on a lot of this work.

So like many organisations, we have been very weakened this year by not being able to carry on our work this year and also we have the problem of regaining financial liquidity so we can continue on into the future.  But I am very hopeful that we can, and with the strong Board which I have just described – there are other members of the Board who are equally significant, but I mentioned those two to show that we are not just running on the spot, but are trying to advance the expertise of our organisation.  So does that help at this point, Sally, or is there anything more you would like me to say?

Sally:

That is absolutely fantastic, Alastair, and I know that what we cannot underestimate is the amazing painstaking pace in some ways of trying to get that legislation through in Cambodia and then to work with all the different stakeholders to be able to actually achieve that legislation and to now start to implement the Juvenile Justice legislation.  It is just marvellous; but I also know that CRI has been called on to partner with UNICEF to look at some of the surrogacy and adoption laws and to assist in that way with judicial education and again in educating the police particularly given some of the concerns about child trafficking. I think it is marvellous with such an array of people, and as you point out, with Jennifer Coate and Paul Grant, with their background, heading up the Children’s Court and Jennifer having been one of the five Commissioners, I think, in heading up the Royal Commission into Institutionalised Child Abuse.  I think it is a wonderful organisation and quite inspiring to see people who are meant to have retired who seem to be even more busy than ever and using their level of expertise to promote the rights of children.  I know that there will be many similar collaborations to go on to, and one of the ones that struck me which arose out of the 2009 World Congress was the association which CRI developed via the Royal Children’s Hospital and who have, for example, some significant works in Hanoi and being able to combine expertise and also shared concerns about children in that country and how well that worked with one of the trips that we made to look at children and the lack of social workers, for example, in Vietnam.   I think there has been significant progress made in that regard now, and you started that with a series of visits to the Ministry in Vietnam, looking at the lack of social workers and talking about that as a new concept.  As I understand it, Vietnam is beginning to explore that realistically, now.

Alastair:

Yes, it is.  In fact one of the things it did – we achieved success there with legislation as well.  I think the last significant conference I went to in Hanoi was a conference which had been called by the National Assembly and that was a huge conference at which we made presentations.  It was directed at the development of a Family Court and a Children’s Court in Vietnam.  I spoke again in 2014 with Peter Couzens who was then a person in the Children’s Court in Victoria – we spoke at a conference of judges there in which we described the systems that operated in Victoria.  By the end of 2014, early 2015, legislation had passed to set up a Family Court and a Children’s Court, so that was a pretty significant achievement of its own, so we are very proud of that as well.  But the getting of the legislation through the Cambodian legislature was a struggle. The Act was first drafted in 2002.  It almost passed in 2010 but for some reason there were great misgivings and it faded into oblivion again, so we were able to revive it and get it going, it really kicked off at the end of 2015 and the movement really rolled after that. They passed the legislation in June, 2016.  There were a series of events – we brought international judges in to talk about Children’s Courts in Singapore, in New Zealand and in Australia and we ran seminars with other experts.   We even brought a Victorian policeman across to speak at conferences to give a police point of view.

We had one amusing episode: we were sitting down with him, he was in full uniform at breakfast in a hotel in Battambang and some Australians came in and they walked over in amazement to see this uniformed policeman – they were Victorians – and what was he doing in uniform in Cambodia and we explained all that, but it was quite entertaining at the time!  So we have covered a lot of ground.

Sally:

We have, and obviously the work in Africa really did have some significant and ongoing positive effect in groundwork that I know the Australian Federal Police still have a lot of respect for, and it really has led to the World Congress being a stakeholder in the newly-established Australian Centre to Counter Child Exploitation, ACCCE as it is known, which is the Australian version of ECPAT, but a lot of that advocacy work of course has been done under the umbrella of Children’s Rights International, which has been a wonderful concept.  I can’t believe how time has flown, Alastair, and the tireless work which you have actually done, and if anyone listening to this podcast and is interested in contributing, there is a membership and also an ability to  contribute to support the project financially as well as in kind.

Alastair, I know we will be talking with you again, hopefully with Rod and Stuart, to talk about some of the stories because I think they are really well worth capturing in a combined conference shortly.  We have the World Congress which has been deferred this year, due to COVID, deferred until next year but in the meantime we are hoping to perhaps run some webinars through Children’s Rights International with the Royal Children’s Hospital and possibly with the Australian Federal Police and I’m sure that the World Congress may be planning to have a webinar as well and involving CRI of course, given the history and the incredible work which has been done so we will all stay tuned for that.  We will have the details of the website underneath the podcast but many, many thanks for your incredible work and contribution, Alastair.  You have not gone into your work for the indigenous through the Red Cross and anti-bullying as well but we might make sure we include your remarkable CV with the podcast as well, so thank you for your time, and I hope you have a well-deserved rest during COVID, which I know will fetter your travelling a bit, but will not fetter your advocacy for children, so many, many thanks for everything you do.

Alastair:

It’s a great pleasure. Thanks Sally!

Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.