Podcast: World Congress on Family Law and Children’s Rights

Sally:

I’m Sally Nicholes, Managing Partner of Nicholes Family Lawyers and I am joined today by Rod Burr and Stuart Fowler, founders of the World Congress on Family Law and Children’s Rights.  Today we will be discussing the operation of the World Congress as it relates to Family Law and delving into the origins of this wonderful organisation that I have had the privilege of being involved with for many, many years.  The World Congress exists to enhance, protect and promote the rights of children and young people by bringing together individuals and organisations from around the world who have had influence on the legal and justice systems and an interest in promoting the rights of the vulnerable, especially children.

As such, the approach taken by the World Congress is informed by professionals, including judges, lawyers, politicians, health care workers, social workers, human rights activists, business persons and others who share a common concern about the rights of children and families.  Meeting every four years to assess, discuss and exchange ideas on these issues and develop best practice and policy, the Congress has addressed a myriad of issues, including family violence, child abuse and family conflict, international child abduction, child protection, children of same-sex couples, surrogacy, family law and religion, children of war, child labour, trafficking and child exploitation.  It is with great excitement and much nostalgia that I shall be discussing the origins and beginnings of this organisation with Rod and Stuart today.

So, Rod and Stuart, could you tell me about the original address to the Council of  LAWASIA in Hong Kong which essentially led to the establishment of the World Congress in 1993.

Stuart:

Well, Rod, I think it is necessary for us to give some short explanation of what LAWASIA is.  LAWASIA is a body which represents lawyers and lawyers’ organisations in 21 countries in the Asian and Pacific region. The members are represented by a Council of LAWASIA.  The Law Council of Australia, of which we are a part of the Family Law section, is a member of the Council of LAWASIA and its president was then the president of the LAWASIA Council.  Rod and I were asked by the president to go to Hong Kong and see if we could do for them what we had done for the family lawyers of Australia in response to their request, and that is how we started.

We invited Justice Alastair Nicholson to join us, because it was an important issue and one with international ramifications and we looked for his contribution. The meeting was held in Hong Kong; the members of the Council were a widely-varying group including people of significance in their own governments, the third-ranking Ministry in one country and the Solicitor-General from another country, the head of various academic pursuits in another, it was really quite a powerful group.  Rod can tell you a bit more about that.

Rod:

We started by believing that we were going to establish a similar section for the family lawyers of these 21 countries of the region, but it quickly changed to something a lot more intimidating.  They were, I think, readily accepting of the fact that we could do what we thought we were going up there to do and to establish such a section;  we did, after hearing what they also had to say, we re-badged it a little, and it became the Family Law and Family Rights section of LAWASIA because of the workload which we then had to take on, which I’ll talk about in a minute.  We hosted an initial conference in Malaysia and then we handed over the reins to others so that we could do what we needed to do for the World Congress – that was the intimidating part.  The meeting quickly switched to: what can you do to protect the children of our region. Specifically they were talking about sexual predators that were coming from Australia and other countries, and abusing their children.  Our initial reaction was: well, we would have thought that was something that you should be addressing, they are your children, why don’t you look after them.

We were quickly given the message: we might well be the supply here but you are the demand so we think it is incumbent on you to step in and do what you have always professed to be right under your law, under your moral codes, so do something about it.  So we did, we were a bit intimidated by the prospect, we left Hong Kong and did what Australians do on the plane, we cracked a couple of beers and wondered what we would do about this.

Stuart:

I think we were wondering what we had got ourselves into!   We had both obviously been significantly affected by the stories we had been told, which in reality would take a Hogarth to portray pictorially or a Dickens in writing, and even they might not do them justice for the horror that they displayed. So as we had been given the direction that we needed to do something amongst other things, about the predation of children and their exploitation by prostitution, we decided to try and attack the supply side of that particular equation, particularly where the supply came from overseas.

At that time you might recall that no crime was punishable in Australia where it had been committed abroad, with one or two exceptions, so you couldn’t prosecute an Australian resident for offences against children in another country.  What happened then was that Rod and I got together and we had been discussing with the Bar Association of Canada a joint meeting on family law, so we got in touch with them and persuaded them that instead of just a joint meeting with Canada, America and Australia, we should invite others and should look at some of the tasks which we had been set by the LAWASIA Council.  They also included, I might say, and this is important in terms of what we have subsequently achieved, that they appreciated that all their countries had different approaches to the law – some were administering a law which was ancient and customary, with some it was religiously-based, some was a copy of the colonial power which had established the modern-day expression of law in that country, and some of that had gone out of use anyway.

So they had asked that we try and inform them about the developments in the law so that they could have a speedy reaction in terms of their own society, not necessarily following what was done elsewhere but keeping up-to-date with that and using it as part of their resource material for changing the law.

Rod:

And I think, Stuart, that we were buoyed in the knowledge that with that backing, we should probably attack it in our own backyard first when we felt comfortable.  It was an uncomfortable prospect to try and pursue, but we knew that we operated in a comfortable environment with a fully-supportive family law section behind us and as it turned out, a fully-supportive government.  But I think it was at that time that we identified and found a Hong Kong academic who had expressed the view that Australia could use its extra-territorial powers under the Constitution to pass a law that would make these offences against children criminal by Australians even if committed overseas.  We seized that opportunity, and developed the theme, and approached the Australian government.  I think at the time the Prime Minister was Paul Keating, and the important individual for us was the Minister for Justice, Duncan Kerr, who was fully supportive of what we were trying to do and the draft was created, it was promoted and pushed through.  Of course, you are not going to get any opposition to any action which is designed to save children from such horrific abuse; it was a totally bi-partisan approach.

So then we were able to engage, to reach out to these other nations, to assist in putting together this very first event we did in Sydney in 1993.

Stuart:

And we were happy to see the ripples of that stone-throwing go world-wide, and legislation like it became the law in probably close to 20 countries initially and it has expanded since. The UN Convention on the Rights of the Child was declared to be a human rights instrument by a Congress in Vienna and it was also declared that those rights as expressed in that particular document are inherent rights of a child which are innate, they are not given, they are always there, they belong to the child.  Our task was to try and protect them in all their forms.

Rod:

And we were always comfortable, by then, in organising mass conferences, so it seemed to us to be the most visible and comfortable space to generate some change in the world, and we decided to do it in our backyard, or Stuart’s backyard in Sydney and so with the full support of the government we got under way, and I think in the end we had representatives from about 83 countries in the world, we attracted delegates in the order of about 700, who were delegates of significance, right across the globe.  Stuart mentioned the Canadians who have always been great allies of ours in that, in fact the Mounties rode into the World Congress.  We didn’t know that they had a significant child trafficking section, so we actually had a Mountie there who was answering questions in his full display of red coats and red jodhpurs and the works.  But the most spectacular moment, I think, Stuart, came when we knew we were on the right track for two significant reasons: firstly, the Justice Minister appeared at our conference to announce that the government had indeed passed the law to make sexual  assault of children overseas by Australians to be a punishable offence, back in Australia but secondly, really without our knowledge, the United Nations had flown a representative in and he just asked if he could come up on stage at the end of the Congress and awarded to both  Stuart and I a United Nations award.  We were completely unaware that this was coming.  We had known that we were preceding by only a matter of months the International Year of the Family in 1994, and Stuart will be able to tell you that the fact of that award opened so many doors it was extraordinary.  People who previously were a bit disinclined to talk to us suddenly learned that if the mass of United Nations, with its 194 member nations behind it, maybe these two little blokes from Australia might be worth having a chat to.

Stuart:

Yes, and I think what the Congress demonstrated was that not only can a small country punch above its weight and achieve a great deal, but individuals can achieve things – we can make a difference.  It had always been a problem, Rod and I, there were just the two of us, supported by an increasing crowd, I might say, of supporters, but it was one that we could do anything to make a difference and we did. That gave me significant pleasure to be able to say that I have been able to make a contribution which may help one child.

Rod:

You will note then, and Sally in her introduction referred quite rightly to it being the  World Congress, and it is both, a Congress and a conference.  It was a deliberate decision taken by Stuart and myself that this would not be another talk-fest.  We had become very skilled by then at running national conferences attracting large numbers.  And a conference, of course, has a particularly important function, but this needed more and what made this different was that we established a Resolutions Committee and we imposed upon the Chairs of each of the sessions to try and come away with a resolution that they would like to be considered by the Resolutions Committee, to be embraced and adopted by the Congress and then promoted as resolutions of the Congress itself, the idea being that the delegates, many of who were extremely influential in their own countries, would pick those up and take them with them and effect real change.

We didn’t want people to get on a plane at the end of the Congress and say: well we had a great time, what about those great Australian wines and how about the Sydney Harbour bridge and then forget about it until the next four years came around.

Sally:

It would be very good to know that the last Congress in Dublin in 2017, the Ministry of Justice from Cambodia was present, and they were really keen to have a resolution for that very reason, to go back to their country and actually take that resolution; it was quite simplistic but incredibly important in terms of the status of children and it was very powerful that it was made.  They sought that resolution at the Congress.  I agree, it is such an important differentiation still, where we do find that there are lots of legal conferences.  Was there anything else where the World Congress was intended to be different from other conferences?

Stuart:

Well, the scope of the subject matter was significant, we borrowed from the UN Convention on the Rights of the Child but LAWASIA wanted help with judicial independence, it wanted help with putting its position before international bodies on the creation of international law and conventions, so that they could have their voice heard, and perhaps make that way those things more relevant to their societies.  Society is a funny thing: it is easy to pass laws and have them implemented in a strict sense.  What you have got to do though, is to make the philosophy underlining  the law part of the hearts and minds of the population that it is meant to serve.  That was something that was expressed in simple terms by a judge of the Supreme Court of South Africa.

I think that in terms of the other things that we have achieved, they have been significant.  We have had support, though.  In America we had the support of the First Lady, Hillary Clinton as she then was, we had in Ireland, the support of the President of Ireland.

Rod:

Well, in South Africa we had the support of Graca Machel Mandela, Nelson Mandela’s wife. That’s right and by then, Carol Bellamy from UNICEF.  I think the most signal event, after the United Nations award – that award led directly to the next event which was that Stuart, Chief Justice Alastair Nicholson and I went at the invitation of the United Nations to New York and we spoke to various people in the United Nations and to multiple agencies including UNICEF which was probably the most relevant, so we thought we had done good after a full day of roaming through the corridors of the United Nations, then we went back to our hotel room to have a couple of beers and pat each other on the back.  And then the phone rang in my hotel room for some reason where Alastair Nicholson and Stuart had invited themselves, accessing my bar fridge, not their own!

So my phone rings and I say this is Rod Burr and the caller says, this is James Smith and I am one of the principal secretaries for the First Lady of the USA, Mrs Hillary Rodham Clinton. My reaction was typically Aussie, I said “yeah right mate!” so who is this really, who is pulling my leg.  It took the poor bloke quite a while to convince us that this was actually the White House calling.  Now I have got to day, it was fair that we didn’t actually accept this as the truth…..I mean how often do you get a call from the White House, in fact this is the only one we have ever had.  He said: “do you think you could come down to Washington the day after next and meet with the First Lady?”  I think we said we had better check our diary, not sure what we have got on, and of course then in a complete fluster, we were flying out the next day.

So we cancelled our flights and flew up to Washington, went through the most rigorous security checks that you can imagine, and I think one of Stuart’s, Alastair’s, and mine favourite memories of all time would be walking through those gates into the White House grounds, walking along the East Wing which is the First Lady’s wing, through this portico looking out at these exquisite gardens and going past portraits of every First Lady of the  USA, ushered into a downstairs office and greeted by some of the secretarial staff and they said come with me, we thought we would be going into an ante-room but no, straight into the First Lady’s office. There was Mrs Clinton and we had the most wonderful chat, we were given 10 minutes of her schedule and left about 45 minutes later, she was truly a supporter of what we did and what we were doing.  She promised that she would come to the next World Congress which we had arranged for San Francisco for 1997, but her daughter messed that up because we had the opening ceremony on the day of her graduation. Stewart will tell you about some of the other things she did for us, she sent a video, she opened the conference by video-link, but also wrote a letter to all of the first ladies of Central and South America to garner their support as well.  From there it kicked on.

Stuart:

We were pleased because the following day we were going to see a fellow called Willie Brown who was the mayor of San Francisco where we were going to have the next Congress.

Rod:

Can I correct you briefly, Stuart.  Willie Brown the Third!

Stuart:

Oh sorry, apologies.  I had a picture in my mind about what the mayor would be like.  We were shown into his office and there he was.  He was a smile surrounded by a small brown body, he was a happy soul, he asked what he could do for us, and we said that we had seen the First Lady who said to give you her kind regards and that you would help us.  Here is a list (because she had told us he didn’t like long speeches) of the things we would like you to do.  He just looked at the list and said: “Consider them done, would you like a coffee?” “No, we will let you get on with your work”.  And off we went.

Rod:

One of the really encouraging things from that meeting was, I think as you know, America was one of the last couple of countries in the world to embrace the UN Convention on the Rights of the Child and in fact I think they had the great honour of sharing that with Somalia, and we said that it seemed that we would not be able to get the nation of the United States to embrace the UN Convention. Mayor Willie Brown said: “Don’t worry about it, boys, we will embrace it as a city, so San Francisco decided to go down its own path, it couldn’t as we understand it, legally do all the things that the Convention would require them to do but he made a serious effort to embrace those needs and implement them into domestic law in California.

Stuart:

I think people in the USA as in other countries are unaware of the problem and the extent of the problem.  Rod and I were seeking to get some financial support from a particular businessman in San Francisco, and he said:  “That sort of thing does not happen here”  Well, here is a book written by a chap called Goldstein who shows that it does happen.  He read through the first 5 pages and looked at the first 6 photographs and said: “Oh my God, can $10,000 help?”  He wrote out a cheque on the spot.  The generosity was there, it was a question of giving them the information for which they could exercise their generosity.

Rod:

The second congress which was in San Francisco, because by then we had linked up with the Association of Conciliation and Family Courts which was quite a large organisation across Canada and the US and we had 1,700 delegates to our second congress which just blew our minds and I have to say, it would not have happened without Chief Justice Alastair Nicholson, who deserves enormous credit particularly the fact that it had every potential of dying at that time and just before we were due to launch the Congress.  And that was because it became so big, it was intimidating to the Board of Governors of the Association of Family and Conciliations Courts.  They were of a mind to drop it. They were frankly scared of it and by it, and what it would mean if it didn’t work.  It was Alastair’s advocacy in that room of governors that we meant that we survived to put it on.

And then, of course, having put it on, it put the AFCC on the map as well, in a far bigger way, and it was a spectacular success, financially for them but also in the academic and practical space as well.  It was the big, big shift.  So sequentially the Hong Kong invitation, the intimidation of the prospects, securing the Australian government support to get the first piece of signal legislation up, the presence of the world at the first World Congress, the unexpected arrival on the stage of a representative of the United Nations, to give us that unexpected reward, leading to a meeting with the First Lady of the USA.  I think you can count on the fingers of one hand how many people you might know who have managed to achieve that. Then 1,700 people at the World Congress, opened by the First Lady by video-link, it was kind of away we went.  Stuart had the idea, to his credit, that the next project should be the treatment of child labour, so we engaged in conversations with Levi Strauss, and The Gap whilst we were in San Francisco.  Stuart can tell you a little bit about that.  It was his baby and very inspiring.

Stuart:

Garment manufacturers are particularly sensitive to the issue and no doubt they do the best they can in seeking to supervise their contractors into not using child labour and certainly not exploitative child labour. But we did think about what were the protections that were available – there was a convention on child labour which had been put up, and I think it had been signed by about two countries.  Why did they object to stopping the exploitation of child labour? The answer was that in many of those countries, children were engaged particularly in familial agrarian work, so it was part of their society, so to speak.   They declined to sign the particular convention.  So in any event, we had some discussions with the international union organisation.

Shortly thereafter, there emerged a convention on the worst forms of child exploitation.  This particular convention, unlike the first, had limited the scope of the operation of the convention to perhaps the worst end of the problem.  I don’t think that is ideal, but it was a start and for Rod and myself, everything that is a start is a good thing. In England, for example, when we went to Bristol, we had a significant push for the abolition of the imposition of capital punishment on children.  It was well spoken to by a number of delegates at that Congress.  In fact, so well that between that congress and the next, after the Bath one in 2001, there was the Congress in South Africa and at that Congress, just before it, it was announced that the Supreme Court of the United States had amended the law and declared that the imposition of capital punishment on children was cruel and unusual, and it was illegal therefore under the constitution.  That made us very happy.  You have to remember that this congress in Bath came at a time when 2001 had just occurred and the opening service of that congress was held in the Bath cathedral.  Children had a big part in that opening and were expressions of hope, and I think that drove some delegates on.  I think in that climate of disaster there were people who were still prepared to be advocates for children.

Rod:

Great credit we found was due to Levi Strauss and the Gap, with whom we met; they like so many companies in order to survive, were manufacturing offshore in Central and South America.  They had voluntarily introduced their own codes for the employment of children, which included healthy, well-lit working conditions, days that were not too long, several hours of education included in their program; they knew that these families needed their children to work but they provided some exceptional circumstances in which they should do that.  They assisted in motivating us to move on with that as well, we knew that in some parts, corporate America was certainly trying to do the right thing and that provided a bit of a model for us.

Sally:

I think you were both such trailblazers for me, and you were using techniques that are now accepted, I recall you gave an award to Levi Strauss in Africa to acknowledge what they had actually done, which is actually really important.  I know in the area, for example, of reporting domestic violence, Domestic Violence Victoria recently developed the strategy of actually providing awards to journalists who report domestic violence in an appropriate way so the perpetrators feel that they are not glorified and victims don’t feel too threatened in coming forward.  Stuart, I remember learning from you that you really wanted the media to come forward and to become involved.  We had our ceremony in 2017, we actually had a representative from Domestic Violence Victoria, Fiona McCormack who is now our Victims of Crime Commissioner open with that best practice, with that idea of providing that recognition to journalists which has now taken off in different countries, a lot of the NGO’s who were there listening in Dublin wanted to know more about it, and that’s what I think you and Rod really started with aplomb.  There is no other congress that gets together best practices in that practical sense which evolves by having the right people listening as well.

Stuart:

I think that is right – people who are ignorant can’t do anything about a problem that they know nothing of. There are people who are not ignorant, who can’t do anything about it either.  There is an Asian country which is absolutely incredible for its capacity to organise social structure – I was there with the Australian Aid Agency. They were seeking to overcome some of the dreadful problems in that country of child sexual abuse and abuse by prostitution and also by labour.  What they had done was to establish a plan, and the plan involved training; it involved organisations to give the training, it involved lawyers who would go out and prosecute cases before magistrates who were in remote parts of that particular country and yet, at the end of the day, when this beautiful plan was unrolled, they didn’t have enough money to photocopy the law, and take it to the magistrate and say: this is what the law is.

You become really concerned when there is such a waste, but the children of our world are in the same sort of situation where their spirit is wasted.  I was in that country as well, I was looking at children who were on what’s called Smokey Mountain, a refuse heap. Those kids were bright-eyed, happy, intelligent, responsive, all those things.  One of them said he wanted to be a doctor, and his mother who was nearby said:  you can’t possibly be a doctor.  Now we have to provide opportunities for those children so that they can reach their highest potential and believe me, for many of them, there is no limit.

Sally:

By having the AFCC or that partnership, what we learnt from that is to try and partner with other like-minded organisations.  The AFCC has really been incredibly supportive over the last couple of years, or always supportive, but also now to approach IAFL, to approach LAWASIA again, and we brought them back to grassroots for Singapore. This is the only way we can make a difference for kids is to try and actually have all the organisations put aside any politics and actually be one voice and World Congress can be such a great forum for all of these different organisations to get together and actually contribute.

Stuart:

I just want to say though, in relation to that, that I think World Congress could look at becoming a repository of annual reports on these issues.  You do get an initial reaction which can be very good and very heartening, but it does not take much to drop back.  I think if you had an annual reporting system from each of the countries on particular issues and it was going to be made world-wide public, you might find some continuity in terms of the amelioration of the problems of the children.  Rod, I want to acknowledge that here are two women without whom this thing would not have been possible, they are Sue Burr and Gail Fowell, their contribution has been enormous.

Sally:

It’s such a beautiful story and what I like is the complete altruism – you have both volunteered and made this your life work. You know that I am so passionate about that and what I miss desperately is the interaction with both Gail and Sue, they were your partners in crime who really supported you 110% and they should be very proud that it is continuing.  When this world gets out of this awful COVID phase, we are really hoping that we can see all your faces at the next World Congress.  It might have to be partially a virtual World Congress but there are certainly people who have the same ethos and also still contributing, whether they be partners of board members or just people we have picked up along the way.  I think that Neil Crusic might be a true believer from the beginning, he is on our international committee, and very active, and a lovely English lawyer called David Hodson who is just fantastic.  There are a lot of old friends that are involved  and a lot of new friends as well, which is really wonderful to see.  It is incredible to think of the small executive who actually runs it and engages all these different courts and governments and I think your, to be able to quote still that we had Hillary Clinton as a patron makes a huge difference.

Rod:

I don’t think we should wrap it up, Stuart, without saying that because we gave birth to this baby, which was so incredibly precious to us, and we have seen it grow and develop that we needed to entrust its care to people in whom we trusted and Sally has been a significant driver through a long period of time in that and there are others, they know who they are, but today Sally was someone in whom we knew we could put our faith and would continue what we wanted it to be and not just a talk-fest where people turn up and have a good time.  Thank you Sally for what you have done since you have been on this journey with us.

Stuart:

I endorse that whole-heartedly.

Sally:

Well I always think: what would Stuart and Rod do…all the time!  I miss you both dearly. I also think of how happy you would be if you could have heard Lisa Gale, who is now an Assistant Commissioner of the Australian Federal Police who is in charge of a $70 million unit established now in response to the Royal Commission called ACE in Brisbane.  To hear her speak on the global stage about where Australia looking after as well as they can, children being exploited who are the most vulnerable in Australasia and being so thrilled – the Australian Federal Police has a whole history now of their involvement now with the World Congress, but I know that she is continuing that legacy including implementing that legislation that you were so instrumental in starting.  It is really inspiring and we always go back to the basic grassroots of what you wanted to create – and it really does show that people who can give back can be courageous, as you said.   I think Alastair was obviously extremely courageous when he was in San Francisco, but you were both always so  courageous when you took it on.  It is such a pleasure to talk to you both and I think that if we can actually have more of these discussions and make sure the legacy is not forgotten how you do this, I think it will be truly inspiring for people who listen.  It has always inspired me and got me through the rugged times of an altruistic organisation so thank you very much.

Stuart:

Thank you for inviting us, Sally. It has been great reminiscing but also knowing that it is in such safe hands.

Rod:

Yes, hear, hear!  Thank you Sally.

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