National Inquiry into Children in Immigration Detention - Background Paper 3: Mental Health and Developmen

National Inquiry into Children in Immigration Detention

Background Paper 3: Mental

Health and Development

Fear

of being alone.

Fear

for personal safety.

Fear

for safety of the family.

Talks

repeatedly of the traumatic event(s).

Expresses

anger or revenge against people who caused the family to flee.

Finds

it difficult to trust or have confidence in people.

Nervous

or uneasy in new situations.

Approaches

a new situation or task as though he/ she will not succeed.

Is

sad for no apparent reason.

Worries

too much.

from Behaviours Associated with Victimisation in The Impact of Current

and Traumatic Stressors on the Psychological Well-Being of Refugee Communities. [1]

In this Background

Paper

National
Inquiry into Children in Immigration Detention
Mental
health and development of child asylum seekers
Development
of the child
Developmental
harm
Strengthening
the capacities of families
Children's
responses to stress and trauma
Mental
health studies in Australia
The
right to health, education, rest and play
Periodic
review of a child's well being
Questions
for submissions

1. National

Inquiry into Children in Immigration Detention

In November 2001,

the Human Rights Commissioner announced an Inquiry into the adequacy and

appropriateness of Australia's treatment of child asylum seekers and other

children who are, or have been, held in immigration detention. The terms

of reference for the Inquiry include consideration of the mental health

and development of child asylum seekers and the impact of detention on

their well-being and development. [2]

This Background Paper

provides an overview of international human rights standards on mental

health and child development that are relevant to the Inquiry. It is intended

as a reference and guide to individuals or organisations wishing to make

a submission to the Inquiry. It should be consulted where relevant, but

it is not necessary to refer to a Background Paper when making a submission.

For further information

about the Inquiry, general information on relevant international treaties

and standards and the material used in the Background Papers, see Background

Paper 1: Introduction. This and other Background Papers are available

on the Australian Human Rights Commission

web site at http://www.humanrights.gov.au/human_rights/children_detention/background.html.

The term "child

asylum seeker" is used throughout the Background Papers. While the

focus in these papers is on children who have been detained when seeking

asylum in Australia, it is not intended to exclude other children who

have been detained. The Inquiry relates to any child who is, or who has

been, in immigration detention. "Child" refers to any person

under the age of 18.

Treaties,

Rules and Guidelines

Treaties that have been ratified by Australia, such as the Convention

on the Rights of the Child, are binding on Australia in international

law. The implementation of treaty rights of people in Australia

are monitored by United Nations treaty bodies, such as the Committee

on the Rights of the Child or the Human Rights Committee.

The fact that Australia has ratified a treaty does not automatically

incorporate it into Australian domestic law. Only when treaty provisions

are incorporated into Australian law do they create enforceable

rights in Australia. However, courts should interpret a law to be

consistent with the provisions of a treaty that Australia has ratified.

Other

international documents and instruments such as United Nations Rules,

General Comments by treaty bodies, United Nations High Commissioner

for Refugees guidelines, United Nations General Assembly Declarations

and publications by United Nations agencies are not binding on Australia

as a matter of international law. They are, however, persuasive

in interpreting treaties and contain goals and aspirations reflecting

a consensus of world opinion.

2. Mental

health and development of child asylum seekers

The experiences of

child asylum seekers raise specific mental health and development issues.

The social conditions that give rise to a child's flight from her or his

home country may include experiences of war, persecution, death, sexual

assault, violence, fear, flight and displacement. Many child asylum seekers

will have witnessed harm to family members or directly suffered abuse

or violence prior to or during flight. A child may also experience the

fears and insecurities which attach to migrant flight, an uncertain future

and exposure to different cultures, languages and religions. In Australia,

a child arriving without a valid visa will be incarcerated in a detention

facility. [3] Such experiences may have a significant

impact on the child's mental health and prospects for healthy development.

The mental health needs of child asylum seekers will often be far greater

than those of children raised in Australia, due to the damaging physical

conditions, emotional trauma and nutritional deficiencies that they have

commonly experienced. [4]

Mental health and

child development issues have significant overlap and are discussed together

throughout this Background Paper. The Inquiry welcomes submissions on

either subject, or on related health and disability issues. See also Background

Paper 4: Health and Nutrition and Background

Paper 5: Prevention, Treatment and Accommodation of Disabilities.

The Convention

on the Rights of the Child

1.

States Parties recognize that every child has the inherent right to

life.

2.

States Parties shall ensure to the maximum extent possible the survival

and development of the child.

Article

6, Convention on the Rights of the Child.

States

Parties undertake to ensure the child such protection and care as is

necessary for his or her well-being

Article

3(2), Convention on the Rights of the Child.

1.

States Parties recognize the right of the child to the enjoyment of

the highest attainable standard of health and to facilities for the

treatment of illness and rehabilitation of health. States Parties shall

strive to ensure that no child is deprived of his or her right of access

to such health care services.

2.

States Parties shall pursue full implementation of this right and, in

particular, shall take appropriate measures (f) [t]o develop preventive

health care, guidance for parents and family planning education and

services.

Article

24, Convention on the Rights of the Child.

1.

The States Parties to the present Covenant recognize the right of everyone

to the enjoyment of the highest attainable standard of physical and

mental health.

2.

The steps to be taken by the States Parties to the present Covenant

to achieve the full realization of this right shall include those necessary

for:

(a)

The provision for the reduction of the stillbirth-rate and of infant

mortality and for the healthy development of the child

Article

12, International Covenant on Economic, Social and Cultural Rights. [5]

Under the Convention

on the Rights of the Child (the Convention), Australia must ensure that

every child in Australia, regardless of nationality or immigration status

and regardless of how the child arrived in Australia, survives and develops

to the maximum extent possible, [6] enjoys the highest

attainable standard of health and rehabilitation [7] and is allowed to recover from abuse or violence. [8]

In ensuring the mental

health of the child, States Parties to the Convention and to related international

instruments are required to "develop preventive health care"

in addition to providing education and guidance to parents. Preventive

health care means detecting and treating physical and mental illness in

the child. [9] This involves examination of the child

"by a physician immediately upon admission to a detention facility"

to record and identify "any physical or mental condition requiring

medical attention".[10] Medical care, where possible,

should be provided to detained children "through the appropriate

health facilities and services of the community in which the detention

facility is located". [11] Mental health services

in detention facilities should be adequate, including through the "appropriate

training of doctors and other medical personnel". [12] Children who are assessed as "suffering from mental illness should

be treated in a specialized institution under independent medical management". [13]

Australia's obligation

to ensure the healthy development of child asylum seekers includes preventing

harm to them during their time in Australia and promoting their physical

and psychological recovery if they are survivors of abuse or violence.

States Parties to the Convention have an ongoing obligation to ensure

the child's right to healthy development, even where the child's parents

are present.

How further harm

can be prevented and recovery maximised is a focus of the current Inquiry.

Submissions are welcomed on how the mental health and healthy development

of child asylum seekers can be ensured, including through early identification

and appropriate program and intervention planning.

Other relevant rights

The child's survival

and development must be considered in the context of her or his relationships,

especially the relationship with family and community. All actions concerning

child asylum seekers must respect the responsibilities, rights and duties

of parents and families to provide direction to a child in the exercise

of her or his rights (articles 5, 9 and 18 of the Convention). The Convention

recognises the family as "the fundamental group of society"

and recognises children's rights in the context of parental rights and

duties and children's rights to participate with their community. [14]

Australia is obliged

to help maintain the child asylum seeker's culture, language and religion

by virtue of article 30 of the Convention. Restoring a sense of cultural

normalcy to child asylum seekers can be vital to ensuring normal development

and is clearly in the best interests of the child. [15]

The United Nations

High Commissioner for Refugees (UNHCR) stresses the importance of ensuring

that children who suffer "emotional distress or mental disorders

benefit from culturally appropriate mental health services and treatment". [16] In addition to her or his cultural needs, the past

experiences of the child and the child's family need to be understood

when considering the child's present mental health and developmental well

being.

All actions concerning

child asylum seekers must also be non-discriminatory (article 2), ensure

the best interests of the child (article 3) and enable the child to participate

in decision-making affecting her or him (article 12). [17]

3. Development

of the child

Children change and

develop constantly as they make the transition from total dependency at

birth to the interdependency of adulthood.[18] Even

for children growing up in a loving family situation with full protection

of the State, development is a delicate process. For child asylum seekers,

whose State may have failed to protect them from violence and abuse, healthy

development can be very precarious, depending on a number of variables

including the effects of any past abuse or violence and the extent to

which past trauma may be compounded by present or future uncertainty.

Children do not develop

in isolation, but in reaction to their environment and through nurturing

by their family and community.[19] For child asylum

seekers, their development does not pause while their family's refugee

status application is processed or while they remain in detention. Given

the various levels of uprooting, disruption and insecurity involved in

the refugee experience, the development of children can be severely arrested.

Healthy development

means providing the optimal conditions for the child to flourish in her

or his current situation and not merely preparing the child for adulthood.

Ensuring a positive environment for child development is in the child's

best interests, as required by the Convention.

4. Developmental

harm

Developmental harm

arises where the risk factors which threaten a child accumulate and overwhelm

the child's capacity to cope.[20] Factors impacting

on the healthy development of child asylum seekers are many, but can be

grouped as:

their past conditions
and experiences, such as experiences of trauma;
current stressors
(daily life);
additional factors
which can act as a buffer to or accelerator of harm. [21]

Past traumatic

experiences

States Parties shall take all appropriate measures to promote physical

and psychological recovery and social reintegration of a child victim

of: any form of neglect, exploitation, or abuse; torture or any other

form of cruel, inhuman or degrading treatment or punishment; or armed

conflicts. Such recovery and reintegration shall take place in an environment

which fosters the health, self respect and dignity of the child.

Article

39, Convention on the Rights of the Child.

States

Parties shall take all appropriate legislative, administrative, social

and educational measures to protect the child from all forms of physical

or mental violence, injury or abuse, neglect or negligent treatment,

maltreatment or exploitation, including sexual abuse, while in the care

of parent(s), legal guardian(s) or any other person who has the care

of the child.

Article

19(2), Convention on the Rights of the Child.

Under the Convention

Australia must protect children from violence, abuse and neglect. [22] Where a child has suffered such mistreatment, Australia is obliged to

promote the child's recovery. [23] States Parties to

the Convention are required to report to the UN Committee on the Rights

of the Child [24] on the measures they have adopted

to ensure the physical and psychological recovery and social reintegration

of the child victim of neglect, exploitation or abuse, in an environment

which fosters the health, self-respect and dignity of the child. [25]

While not all child

asylum seekers will have experienced abuse or violence, many of them will.

Even where the child may not have experienced abuse or violence directly,

if the child's primary carer (usually the mother) is depressed, stressed

or anxious, the child may exhibit similar symptoms of stress or trauma. [26]

Experiences of abuse

or violence can create developmental harm in children. Symptoms in children

who experienced abuse or violence can include poor sleep and nightmares,

bedwetting, behavioural problems, either introversion or aggression, depression,

problems with familial and other relationships, emotional numbness, learning

difficulties, eating disorders and psychosomatic health problems. [27] The Inquiry welcomes submissions on the incidence and significance of

these symptoms in child asylum seekers and what strategies are required

to promote a child's recovery from abuse and violence.

Current stressors

Child asylum seekers

who arrive in Australia without a visa are held in immigration detention

facilities. They will spend anything from a few weeks to a few years in

detention, depending on the length of time it takes to determine their

asylum claim. Detention ends when the child is either recognised as a

refugee and released on a temporary protection visa or is deported. After

release on a temporary protection visa, the child asylum seeker may require

access to a range of social support systems. [28]

Australia's responsibility

to child asylum seekers does not end once they enter a detention facility.

While detained, child asylum seekers are entitled to enjoy all the rights

outlined in the Convention. [29] On release or deportation,

Australia's obligations continue. This is because child asylum seekers

require medium and long-term solutions to their situation and their time

in Australia should be used positively to help, not hinder their development. [30] Those recognised as refugees and released into

the community require ongoing assistance. Those to be removed to other

countries will require ongoing protection, assistance and monitoring,

particularly unaccompanied children. [31]

The impact of detention on

children

Detention is an additional

stressor on child asylum seekers who are adjusting to life in a strange

country. As the length of detention increases, a child's development may

be affected. The UNHCR advises against the detention of children, stating

that "detention can be harmful". [32] Children

may become "either passive and submissive or aggressive and violent"

as a result. [33] The Inquiry welcomes submissions on

this point.

Conditions in detention

facilities may also contribute to a child's stress or trauma. For example,

children may be affected by security measures designed to control and

manage detainees. Where adult detainees engage in protests or attempts

at self-harm, the child may be affected. Where security measures, such

as tear gas, physical force and separation of adults from children or

security checks at night are employed, children may be adversely affected.

The Inquiry welcomes submissions on the impact on children of conditions

in detention facilities and specifically the impact of security measures.

The child may also

face threats from other detainees. This may range from verbal taunting

to sexual abuse. The Convention obliges Australia to protect children

from sexual exploitation and abuse. [34] Preventive

strategies should be taken in relation to girl asylum seekers who may

face sexual violence or assault in their home country, during flight or

in a country of asylum. Single women and girls should be housed separately

from unrelated adult men. [35] If detained, children

should be "separated from adults unless it is considered in the child's

best interest not to do so" (article 37(c), Convention). [36]

The Inquiry welcomes

submissions on the appropriateness of detention for the healthy development

and mental health of children, particularly where the child requires rehabilitation

and treatment.

The impact of detention on

parents

The impact of lengthy

detention on the mental health of the child's parents or carers, such

as depression, stress or anxiety, may also impact negatively on the child.

UNHCR points out that "the more trauma or stress the parents or care-taker

has been subjected to, the greater the danger that children risk neglect

or abuse". [37] Parental stress can arise for a

number of reasons, including past trauma, the slow processing or rejection

of asylum claims or future uncertainties. Children's faith in their parents

may be affected by their parents' seeming powerlessness in detention.

UNHCR cautions that care needs to be taken to ensure that parents are

able to nurture their child and that if the parent is too physically weak

or emotionally stressed, "then the child's greater developmental

need is for the parent to receive help". [38]

The Inquiry welcomes

submissions on how parents cope in detention in relation to the effect

parents' mental health has on their children.

Keeping the family together

Only where children

are in a situation such as abuse or neglect by their parents should separation

be contemplated and then only after due process and where it is in the

best interests of the child.[39] In addition, UNHCR

has stated that unless it is "necessary to prevent abuse or neglect,

a child should not be separated from her/his family and community for

treatment." [40] This principle reflects the provisions

of the Convention. [41] See also the discussion on detention

and the best interests of the child, and the right to family life in Background Paper 1: Introduction, and the discussion of detention

in Background Paper 8: Deprivation of Liberty

and Humane Detention.

Additional factors which can

promote or hinder the well being of children

Positive or negative

factors may intervene between the developmental threat to a child and

the child's reaction to the threat. For example, the attention and nurturing

of a child's carer would be a factor that would assist a child to deal

with daily stress, while a depressed primary carer unable to care for

her or his child would be a negative factor.

Ensuring the well

being of the child will involve enhancing the factors which promote the

well being of children and reducing the negative factors which will harm

the child. It also involves providing special assistance to children who

have already suffered serious developmental harm.

Promoting the child's well

being

According to the

UNHCR, the principles which underpin the promotion of positive factors

for children include restoring a sense of "normalcy" by helping

the family function as normally as possible, ensuring that good things

happen on a predictable basis for the child (such as eating, going to

school, playing) and by helping families secure a medium and long-term

solution to their situation. [42] The return of normal

living conditions and including children in information sharing and decisions

are also positive factors. [43]

These needs correspond

to the various rights of the child outlined in the Convention such as

the rights to health, development, education, leisure and play and family

life and to be involved in the decision making process concerning her

or him.

Child asylum seekers

must also be informed of the reasons for their current situation, such

as their detention. They must be told what decisions are being taken,

who is making them and be enabled to participate in decision making on

matters affecting them. [44]

Intervening to assist children

who have suffered harm

The Convention requires

States Parties to protect and rehabilitate children who have experienced

previous abuse and violence, and states that their recovery and reintegration

must "take place in an environment which fosters the health, self

respect and dignity of the child". [45] Any intervention

needs to be culturally appropriate to the child and support any positive

coping mechanisms of the child and her or his family. [46]

The Convention obliges

States Parties in the case of violence, injury or abuse, neglect or other

mistreatment of a child, to take "protective measures includ[ing]

effective procedures for the establishment of social programmes to provide

necessary support for the child and for those who have the care of the

child, as well as for other forms of prevention and for identification,

reporting, referral, investigation, treatment and follow-up of instances

of child maltreatment described heretofore, and, as appropriate, for judicial

involvement". [47]

The Inquiry welcomes

submissions on current programs and other actions taken to support the

well being of children in detention and on release, and on how these can

be improved.

5. Strengthening

the capacities of families

Convinced that the family, as the fundamental group of society and the

natural environment for the growth and well-being of all its members

and particularly children, should be afforded the necessary protection

and assistance so that it can fully assume its responsibilities within

the community

Recognizing

that the child, for the full and harmonious development of his or her

personality, should grow up in a family environment, in an atmosphere

of happiness, love and understanding

Preamble,

Convention on the Rights of the Child.

States

Parties shall respect the responsibilities, rights and duties of parents

or, where applicable, the members of the extended family or community

as provided for by local custom, legal guardians or other persons legally

responsible for the child, to provide, in a manner consistent with the

evolving capacities of the child, appropriate direction and guidance

in the exercise by the child of the rights recognized in the present

Convention.

Article

5, Convention on the Rights of the Child.

1.

States Parties shall use their best efforts to ensure recognition of

the principle that both parents have common responsibilities for the

upbringing and development of the child. Parents or, as the case may

be, legal guardians, have the primary responsibility for the upbringing

and development of the child. The best interests of the child will be

their basic concern.

2.

For the purpose of guaranteeing and promoting the rights set forth in

the present Convention, States Parties shall render appropriate assistance

to parents and legal guardians in the performance of their child-rearing

responsibilities and shall ensure the development of institutions, facilities

and services for the care of children

Article 18, Convention on the Rights of the Child.

Under the Convention,

all children are entitled to grow up in a positive family environment,

with parents or legal guardians of child asylum seekers having the primary

responsibilities for the upbringing of their children. Australia is obliged

to enable parents to bring up their children in a warm, nurturing family

environment which fosters the child's well being and supports their culture,

language, religion and sense of identity. Parents can be vital to their

children's well being, bolstering their ability to cope and make sense

of their current situation. Where the primary carer in particular is emotionally

stable and able to cope, the child's perceived internal controls can be

strengthened and the social context of the family will prove a positive

mediating factor in assisting the child's development. [48]

To promote the well

being of the child, Australia may be obliged to support the parents of

child asylum seekers, particularly in ways to cope with their situation

in detention, including any stress they may be experiencing.

In helping parents

and particularly the primary carer, it is important to gauge how families

are functioning now and to understand how they functioned prior to flight

to avoid wrong assumptions, such as the original healthy working of the

family unit where that may not have been the case. While children should

be able to participate in decisions that affect them (article 12), parental

involvement should be encouraged so they can provide direction and support

to their child. Parents' information needs, particularly about their legal

status and detention, the outside world and the safety of family members

in their home country, may need to be facilitated.

Unaccompanied children

will lack the social support of their family, important in itself for

healthy development, but also an important buffer to help them cope with

traumatic experiences. [49] Given their vulnerable situation,

the UNHCR states that unaccompanied children should not be detained.[50] The Convention requires States Parties to provide special care and assistance

to unaccompanied child asylum seekers, including the tracing of their

family members, which is essential and must occur immediately and in such

a way as not to endanger the child or the family. [51] Unaccompanied children should have a guardian appointed as soon as possible

and suitable care arrangements put in place for them soon after arrival

in Australia. [52] They may also need a legal representative

to advocate for them. [53] See Background

Paper 7: Legal Status.

6. Children's

responses to stress and trauma

Psychological stress

refers to the situation where a person's capacity to control the demands

of his or her environment is tested or overwhelmed. [54] A complex mix of social and psychological processes produce stress in

children and adults, but recurring elements appear to be perceived loss

of control over events, a threat to self-esteem and a feeling of helplessness. [55] While stress in children cannot be totally avoided,

its incidence can be minimised and the child can learn ways of coping

with stress.

A child may experience

physical reactions to stress. [56] The child may also

develop behavioural reactions, including cognitive reactions and even

distortions. The way a child adapts to traumatic events through coping

mechanisms has implications for preventing and treating mental health

problems. Certain perceived dangers may lead the child to try to cope

with the danger by adapting in ways that themselves may have socio-pathological

implications. [57]

It is particularly

important to consider the situation of unaccompanied children in light

of several international studies that have found that child asylum seekers

surviving the refugee process alone show greater emotional distress and

have more trouble adjusting than children who remain with or are rapidly

reunited with their families. [58]

The Inquiry welcomes

submissions on the responses of children to stress and trauma in the detention

environment.

7. Mental

health studies in Australia

A number of studies

have been conducted on the mental health impacts of detention in Australia

on adult asylum seekers. The results of the studies are relatively consistent,

in spite of the wide range of sampling methodologies and assessment approaches

employed, and the diversity of cultural and regional backgrounds of the

asylum seekers involved. [59]

The studies have

presented a consistent picture of asylum seekers as "a highly traumatised

population at risk of persisting emotional disturbance".[60] In summarising the experiences of mental health, legal and welfare workers

in Australia, it has been claimed that "[a]sylum seekers both in

detention and living in the community show evidence of profound depression,

helplessness and hopelessness".[61] For asylum

seekers held in detention while their refugee claims are being processed,

the risk of "retraumatisation" is claimed to be particularly

high. [62]

A 1997 study found

that more than two-thirds of 40 asylum seekers attending a community assistance

centre in Sydney had experienced at least one traumatic event, such as

witnessing killings, being assaulted or suffering trauma and captivity. [63] Thirty-seven per cent fulfilled the relevant criteria

for post traumatic stress disorder (PTSD). [64] In a

recent study examining detainees at Villawood Immigration Detention Centre,

85 per cent of participants reported chronic depressive symptoms, and

65 per cent had pronounced suicidal ideation. [65] Another

study found that the effects of pre-migration trauma exposure, anxiety,

depression and PTSD symptoms among asylum seekers may be exacerbated or

prolonged by stressors in the post-migration environment. [66] A study of Tamil asylum seekers living in the community found that 'statistically

significant' predictors of depression levels included family separations,

fears of being sent home, delays in processing refugee claims, conflict

with immigration officials, difficulty in obtaining treatment for health

problems, loneliness, boredom and isolation. [67] Most

of these were also significant predictors of anxiety levels and PTSD symptoms.

Studies comparing asylum seekers in detention to those in the community

further suggested that detention may directly contribute to increased

severity of psychological distress. [68]

The Inquiry will

consider the extent to which these studies have implications for child

asylum seekers in detention and the extent to which additional research

may be required. Submissions addressing the relevance of these studies

for children and the need for any further research are particularly welcome.

8. The right

to health, education and play

Right to health

The right to the

"highest attainable standard of health and to facilities for the

treatment of illness and rehabilitation of health" is guaranteed

in the Convention.[69] Mental health and proper development

is central to a child's physical health and physical illness in child

asylum seekers may have mental health or developmental causes. The right

to the highest attainable standard of health is discussed in Background

Paper 4: Health and Nutrition.

Right to education

The right to education

is recognised in the Convention.[70] School can be a

place in which a child can engage in positive learning and curricular

activities and these bring the structure and predictability that mark

a return to normalcy.[71] Schools may also act as a

useful focal point for mental health assessment and referral, as mental

health services are more likely to be perceived as a normal part of the

child's life when linked with school. Neglect of proper schooling can

impact upon a child's developmental needs. Article 29(1) of the Convention

outlines the linkage between the child's education and development. [72] See also Background Paper 6: Education.

Right to rest and leisure,

to play and recreation

1.

States Parties recognize the right of the child to rest and leisure,

to engage in play and recreational activities appropriate to the age

of the child and to participate freely in cultural life and the arts.

2.

States Parties shall respect and promote the right of the child to participate

fully in cultural and artistic life and shall encourage the provision

of appropriate and equal opportunities for cultural, artistic, recreational

and leisure activity.

Article

31, Convention on the Rights of the Child.

The Convention rights

of the child to rest, leisure, play, recreational activities and to participate

in cultural and artistic life are vital for the healthy development of

the child. [73]

The right to rest

can be as important as the right to nutrition, shelter, health care and

education. An over-tired child is unable to function properly, is unable

to learn and is susceptible to falling ill. [74] Accordingly,

Australia is obliged to ensure that child asylum seekers in detention

have adequate time for quality sleep and relaxation. The applicable international

standard appears to be sleep and relaxation of twelve hours between the

hours of 8.30 pm and 6 am for those aged under fourteen or in fulltime

education. [75] The right to leisure extends beyond

having sufficient time to sleep at night, but includes having the time

and freedom to do as one pleases. Submissions are welcomed on the right

to rest in detention and, specifically on the impact of curfews, muster

and spot checking of detainees on the quality of children's rest.

The right to play

refers to unstructured activities free from adult direction, whereas recreation

refers to curricular activities undertaken for pleasure, often connected

to the school. Play and recreation [76] are not compulsory

for the child, but the choice is that of the child; the State party is

obliged to facilitate the child's right to play and recreation.

Recreation activities

can include sports, arts, science, films and games. Such activities, usually

part of school curricula, should be genuinely voluntary. Where recreation

equipment is shared between adults and children, children should have

equitable access to the equipment. For example, where a detention facility

possesses a volleyball net or pool table for recreational activities,

children must be allowed equitable enjoyment of such facilities along

with adults. Recreation facilities must always be provided in a culturally

sensitive manner to ensure girls have equal access. Recreational activities

are also discussed in Background Paper 6:

Education.

The right to play

is a more complex right. [77] Often seen by adults as

a luxury rather than as a necessary part of life, play forms a vital part

of a child's development, particularly in learning social and personal

skills such as negotiation, sharing and self-control.[78] Play and recreational activities are also important for the physical development

of the child and to avoid mental harm, as outlined above. For child asylum

seekers, play can help the child cope with what has happened to them,

including past experiences of trauma or violence. Play can relax the child,

relieve tensions, help assimilate experiences learnt and help the child

function within the family and the community. These are all vital components

of healthy development. [79]

The quality of play

and recreation experience is related to the environment in which it takes

place. Inadequate provision of appropriate play space for children may

have mental health implications for child asylum seekers. [80] Basic play needs are simple: safe, accessible space for the child's use,

preferably with possibilities for creating or changing things. Design

should focus on safety and accessibility, but also consider shelter from

the sun and precautions such as safe heights and surfaces and adult supervision.

The design of play areas should conform to minimum existing standards

in Australia (article 2). The Inquiry welcomes submissions on appropriate

play facilities and applicable State and Territory standards on the design

of play and recreation areas as they may apply to detention facility design.

The right to cultural

and artistic activities includes the right to join with family and community

in adult cultural and artistic pursuits as well as child-centred culture

and arts. Children in a refugee situation may require special measures

to ensure their rights under article 31, on account of their vulnerability. [81]

In all these activities,

the child's right to participate under article 12 should be upheld.

9. Periodic

review of a child's well-being

States

Parties recognize the right of a child who has been placed by the competent

authorities for the purposes of care, protection or treatment of his

or her physical or mental health, to a periodic review of the treatment

provided to the child and all other circumstances relevant to his or

her placement.

Article

25 Convention on the Rights of the Child

Article 25 of the

Convention requires Australia to ensure that a child who is detained "for

the purposes of care, protection or treatment of his or her physical or

mental health", has the right to a periodic review of her or his

treatment and needs.[82] This right, which is relevant

to child asylum seekers being detained or institutionalised for health

or mental health purposes, is separate from Australia's obligation to

review the standards of treatment in its own institutions under article

3(3) of the Convention and the right to challenge detention under article

37(d). [83] Periodic review under article 25 should

consider both the appropriateness of the child's placement for the purpose

of the child's health or mental health and the progress of the child's

care. State authorities often sincerely believe that the "best interests

of the child" are being served by treatment which can amount to neglect,

mistreatment and even abuse.[84] Article 25 gives children

the right to have their treatment reviewed regularly.

The current Inquiry

will consider the extent to which Australia's care arrangements meet the

obligations under the Convention, including children's right to be heard,

to be in contact with the outside world and to have access to effective

complaints procedures.

The Convention requires

conformity with national standards on child care [85] and this is discussed further in Background

Paper 8: Deprivation of Liberty and Humane Detention.

10. Questions

for submissions

The following questions

may assist organisations and individuals in making submissions to the

Inquiry.

How does Australia
support the mental health and development needs of child asylum seekers

in detention? Is there initial and ongoing assessment and treatment

of these needs from the time of the child's arrival in Australia?
What in your
experience is the impact of detention on the well-being and healthy

development of children, including their long-term development? Can

you support this view with evidence?
Can child asylum
seekers who are experiencing mental health or developmental difficulties

be properly treated in detention facilities? How? Is this in the "best

interests" of the child?
To what extent
are the international standards in articles 19 and 39 of the Convention

met in Australia today?
What are the
relevant legislative, administrative and other measures in place to

ensure child asylum seekers receive the protection and care they need?

Where are the gaps?
What are the
arrangements between State and Territory child welfare agencies and

the Department of Immigration, Multicultural and Indigenous Affairs

(DIMIA)? How does the care of children work in practice? Can you give

examples?
Do detained
children suffer discrimination in comparison with other children in

Australia when it comes to their mental health and development? Can

you support any views with evidence? How are children on temporary protection

visas treated? How are other children treated?
To what extent
are the mental health studies concerning adults relevant to children?

What additional research is needed?
What processes
exist to ensure there is sufficient overview so that a child's treatment

in detention is properly supervised and monitored? Who should conduct

the monitoring of the child's mental health needs?
What are the
daily programs in place in detention facilities for children? Are they

culturally sensitive and ensure equality of access for boys and girls?

ENDNOTES:

M McCallin (1993), The Psychological Well Being of Refugee Children:

Research, Practice and Policy Issues, International Catholic Child

Bureau, Geneva, p84.

The full terms of reference are available at http://www.humanrights.gov.au/human_rights/children_detention/terms.html.

See discussion of Australia's mandatory detention policy in Background

Paper 7: Deprivation of Liberty and Humane Detention.

See Background Paper 4: Health and Nutrition,

for physical health implications.

See the UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 14: the right to the highest attainable standard of

health, 11 Aug 2000 UN Doc E/C.12/2000/4, CESCR, which elaborates

the provisions of article 12 of the International Covenant on Economic,

Social and Cultural Rights (ICESCR) (1966).

Article 6(2), Convention.

Article 24(1), Convention.

Article 39, Convention.

Rule 51, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty (1990). See too Principle 4(1), United Nations

Principles for the protection of persons with mental illness and the improvement

of mental health care (1991).

Rule 50, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty. Each institution should have at least "one

qualified medical officer who should have some knowledge of psychiatry.

The medical services should be organized in close relationship to the

general health administration of the community or nation. They shall include

a psychiatric service for the diagnosis and, in proper cases, the treatment

of states of mental abnormality." Rule 22(1), Standard Minimum

Rules for the Treatment of Prisoners (1955).

Rule 49, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty. This is in order "to prevent stigmatization

of the juvenile and promote self-respect and integration into the community".

The provision of appropriate medical professionals is in addition to "the

provision of a sufficient number of hospitals, clinics and other health-related

facilities, and the promotion and support of the establishment of institutions

providing counselling and mental health services, with due regard to equitable

distribution throughout the country"; CESCR, General Comment 14,

para 36.

Rule 53, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty. See Principle 9(1), United Nations Principles

for the protection of persons with mental illness and the improvement

of mental health care, which provides that treatment should occur

"in the least restrictive environment and with the least restrictive

or intrusive treatment appropriate to the patient's health needs and the

need to protect the physical safety of others". See also Rule 22(2), UN Standard Minimum Rules for the Treatment of Prisoners.

See articles 3(2), 5, 7, 8, 9, 10, 18 and 22, Convention (right to parents),

article 14 (freedom of religion under guidance of parents), article 16

(prevents arbitrary or unlawful interference with the child's family),

article 20 (where a child is deprived of a family environment, there should

be cultural continuity in their upbringing), article 21 (repeats this

for inter-country adoption), article 29 (respect for culture in the aims

of education) and articles 10 and 22 (require positive measures for child

asylum seekers).

See Background Paper 2: Culture and Identity;

also UNHCR (1994), Refugee Children: Guidelines on Protection and Care,

Geneva (UNHCR Guidelines on Protection and Care), ch 3.

UNHCR Guidelines on Protection and Care, ch4.

See Background Paper 1: Introduction.

UNHCR Guidelines on Protection and Care, ch4. This transition is the focus

of developmental psychology of children. See C Peterson (1996), Looking

forward through the lifespan: Developmental Psychology, Prentice Hall,

p18.

This includes interacting with the stress or coping capacity of their

parents, see Peterson, Looking forward through the lifespan, p

25. See McCallin, The Psychological Well Being of Refugee Children,

pp 84-86.

J Garbarino, Developmental Consequences of Living in Dangerous and

Unstable Environments: the Situation of Refugee Children, in McCallin, The Psychological Well Being of Refugee Children, p1.

McCallin, The Psychological Well Being of Refugee Children, p71.

Article 19, Convention.

Article 39, Convention.

The UN Body that oversees implementation of the Convention. See Background

Paper 1: Introduction.

Committee on the Rights of the Child, General Guidelines Regarding

the Form and Contents of Periodic Reports to be Submitted by States Parties

under Article 44, paragraph 1(b) of the Convention, 11 October 1996,

Part V111B(2): 20/11/96. UN Doc CRC/C/58; at para 90. See also paras 91,

129-131.

McCallin, The Psychological Well Being of Refugee Children, p84;

A Mahjoub, The Theory of Stress as an Approach to Studying Psychological

Responses in a War Environment, cited in McCallin, The Psychological

Well Being of Refugee Children, pp36-37.

The International Children's Institute (2000), Introduction to Literature

Review: Psychosocial Programming for Children in Refugee Camps, Montreal,

Canada.

Introduced in 1999 and revised in 2001, temporary protection visas have

a number of restrictions, most notably the inability to seek permanent

residency status. See Background Paper 7: Legal

Status. See too DIMIA Fact Sheet 64.

This includes the right to be detained only as a last resort and for the

shortest appropriate period of time (article 37(b)). See Background

Paper 8: Deprivation of Liberty and Humane Detention.

See UNHCR Guidelines on Protection and Care. UNHCR promotes the concept

of "durable" (medium and long-term) solutions for children and

their families in all planning and programming regarding child refugees

and asylum seekers.

Such as transfer of documentation, reunion with family members in the

home country; see Background Paper 6: Legal Status.

UNHCR Guidelines on Protection and Care, ch4. See also UNHCR Guidelines

on Protection and Care, ch8:

"Considering

the effects that a prolonged stay in camp or camp-like situations may

have on children's physical and psychological developments, the refugee

status determination or decision-making on the child's best interests

must be made quickly, and with the appropriate special attention and procedures.

Keeping children in limbo regarding their status, hence their security

and their future, can be harmful to them". See discussion in Background

Papers 7: Legal Status and Background Paper 8: Deprivation of Liberty

and Humane Detention.

UNHCR Guidelines on Protection and Care, ch4. UNHCR describes the effects

on adolescents as ranging "from depression, apathy, delinquent behaviour

or aggressive acts to situational mental disturbances, drug abuse and

suicide" which may reflect the high level of anxiety and despair

with the refugee community as a whole".

Article 34 provides: "States Parties undertake to protect the child

from all forms of sexual exploitation and sexual abuse. For these purposes,

States Parties shall in particular take all appropriate national, bilateral

and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual

activity;

(b) The exploitative use of children in prostitution or other unlawful

sexual practices;

materials."

See Rule 8, Standard Minimum Rules for the Treatment of Prisoners;

Rule 29, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty; Guideline 8, UNHCR, Guidelines on applicable

Criteria and Standards relating to the Detention of Asylum-Seekers (1999)

(UNHCR Guidelines on Detention); Rule 26.3, Standard Minimum Rules

for the Administration of Juvenile Justice (1985) and article 37(c),

Convention. See reference to Australia's reservation to article 37(c)

in Background Paper 8: Deprivation of Liberty

and Humane Detention.

Australia made a reservation to article 37(c), Convention, in relation

to the separation of children from adults in prisons on ratification in

December 1990. Arguably the intention of the reservation did not extend

to children in immigration detention. Whether the reservation does extend

to children in immigration detention will be considered by the Inquiry.

The reservation stated:

"Australia accepts

the general principles of article 37. In relation to the second sentence

of paragraph (c), the obligation to separate children from adults in prison

is accepted only to the extent that such imprisonment is considered by

the responsible authorities to be feasible and consistent with the obligation

that children be able to maintain contact with their families, having

regard to the geography and demography of Australia. Australia, therefore,

ratifies the Convention to the extent that it is unable to comply with

the obligation imposed by article 37 (c)."

UNHCR Guidelines on Protection and Care, ch4.

Article 9(1) provides: "States Parties shall ensure that a child

shall not be separated from his or her parents against their will, except

when competent authorities subject to judicial review determine, in accordance

with applicable law and procedures, that such separation is necessary

for the best interests of the child. Such determination may be necessary

in a particular case such as one involving abuse or neglect of the child

by the parents, or one where the parents are living separately and a decision

must be made as to the child's place of residence." See also Australia's

obligation to protect against child abuse in article 19 (discussed above)

and article 34 (below).

UNHCR Guidelines on Protection and Care, ch4.

See articles 5, 9(1) and 18, Convention.

Including resolution of the family's refugee claim, see Background

Paper 7: Legal Status.

See UNHCR Guidelines on Protection and Care, ch4.

Articles 12 and 5, Convention. Where the child is not capable of forming

his or her own views, the child's parents should be involved in the decision-making

process.

Article 39, Convention.

Principle 9, United Nations Principles for the protection of persons

with mental illness and the improvement of mental health care provides

that "the treatment and care of every patient shall be based on an

individually prescribed plan"

Article 19(2), Convention.

A Mahjoub, The Theory of Stress as an Approach to Studying Psychological

Responses in a War Environment, cited in McCallin, The Psychological

Well Being of Refugee Children, p38. See too General Comment 14 of the Committee On Economic, Social And Cultural Rights on the need to

"ensur[e] access to child-friendly information about preventive and

health-promoting behaviour and support to families and communities in

implementing these practices." at para 22.

A Mahjoub, The Theory of Stress as an Approach to Studying Psychological

Responses in a War Environment, cited in McCallin, The Psychological

Well Being of Refugee Children, pp36-37.

"Children seeking asylum should not be kept in detention. This is

particularly important in the case of unaccompanied children", UNHCR

(1997) Guidelines on Policies and Procedures in dealing with Unaccompanied

Children Seeking Asylum (UNHCR Guidelines on Unaccompanied Children),

Geneva, para 7.6.

UNHCR Guidelines on Protection and Care, ch 10; UNHCR Guidelines on Unaccompanied

Children, para 5.17; UNHCR/Save the Children (2000) "Statement of

Good Practice" of the Separated Children in Europe Programme, para

Article 20

of the Convention provides:

"1. A child temporarily or permanently deprived of his or her family

environment, or in whose own best interests cannot be allowed to remain

in that environment, shall be entitled to special protection and assistance

provided by the State.

2. States Parties shall in accordance with their national laws ensure

alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic

law, adoption or if necessary placement in suitable institutions for the

care of children. When considering solutions, due regard shall be paid

to the desirability of continuity in a child's upbringing and to the child's

ethnic, religious, cultural and linguistic background." See also

articles 22(2), 7(1), 10(1), 10(3) and 9(3), Convention.

The UNHCR/Save the Children "Statement of Good Practice" of

the Separated Children in Europe Programme has a detailed description

of the functions of a guardian or adviser at paras 4 and 10. See also

articles 18(2), 19, 20, Convention; UNHCR Guidelines on Unaccompanied

Children, para 5.7.

UNHCR Guidelines on Unaccompanied Children, para 8.3.

See A Mahjoub, The Theory of Stress as an Approach to Studying Psychological

Responses in a War Environment, cited in McCallin, The Psychological

Well Being of Refugee Children, p24.

A Mahjoub, The Theory of Stress as an Approach to Studying Psychological

Responses in a War Environment, cited in McCallin, The Psychological

Well Being of Refugee Children, p27.

A Mahjoub citing Selye, in The Theory of Stress as an Approach to Studying

Psychological Responses in a War Environment, cited in McCallin, The

Psychological Well Being of Refugee Children, pp30-31.

J Garbarino, Developmental Consequences of Living in Dangerous and

Unstable Environments: The Situation of Refugee Children, in McCallin, The Psychological Well Being of Refugee Children, pp6-9.

DS Masser (1992), "Psychological functioning of American refugee

children" in Child Welfare, 71, pp439-456; MB Melville & MB Lykes

(1992), "Guatemalan Indian children and the sociocultural effects

of government sponsored terrorism", Social Science and Medicine,

34, pp533-548; EM Ressler, N Boothby, and D Steinbock, (1998),Unaccompanied

children: care and protection in wars, natural disasters and refugee movements,

Oxford University Press, Oxford, UK; MM Tsoi, GK Yu and F Lieh-Mak, (1986),

"Vietnamese refugee children in camps in Hong Kong", Social

Science and Medicine, 23, pp1147-1150; all cited in A Sourander (1998), Behaviour Problems and Traumatic Events of Unaccompanied Refugee Minors,

Child Abuse and Neglect, 22(7) pp719-727.

D Silove and Z Steel (1998), The Mental Health and Well-Being of On-Shore

Asylum Seekers in Australia, Psychiatry Research and Teaching Unit,

University of New South Wales.

D Silove and Z Steel (2000) "The Psychological Cost of Seeking and

Granting Asylum", in AH Shalev, R Yehuda and AC McFarlane (eds) International

Handbook of Human Response to Trauma. Kluwer Academic/ Plenum Publishers,

New York, p435.

D Silove, P McIntosh and R Becker (1993), "Risk of retraumatisation

of asylum-seekers" in Australia in Australian and New Zealand

Journal of Psychiatry, 27, pp606-612 at p607.

Silove et al, "Risk of retraumatisation of asylum-seekers",

p607.

D Silove, I Sinnerbrink, A Field, V Manicavasagar and Z Steel (1997),

"Anxiety, depression and PTSD in asylum seekers: Associations with

pre-migration trauma and post-migration stressors", British Journal

of Psychiatry, 170, pp351-357.

Namely DSM-IV. See, for example, http://www.mental-health-today.com/ptsd/dsm.htm

A Sultan & K O'Sullivan (2001) "Psychological disturbances in

asylum seekers held in long term detention: a participant-observer account" Medical Journal of Australia, 175, pp593-596.

Silove et al, "Anxiety, depression and PTSD in asylum seekers",

pp351-357.

Silove et al, "The Psychological Cost of Seeking and Granting Asylum".

68 The Maribyrnong Detention Centre Tamil Survey, cited in D Silove

and Z Steel (1998), The Mental Health and Well-Being of On-Shore Asylum

Seekers in Australia.

Article 24, Convention.

Articles 28 and 29, Convention.

UNHCR Guidelines on Protection and Care, ch4.

The aims of education are outlined in article 29, Convention and expanded

in the Committee on the Right of the Child's General Comment 1,

which provides that the aims of education are:

"the holistic development of the full potential of the child (29(1)(a)),

including development of respect for human rights (29(1)(b)), an enhanced

sense of identity and affiliation (29(1)(c)), and his or her socialization

and interaction with others (29(1)(d)) and with the environment (29(1)(e)).",

UN Doc CRC/GC/2001/1, CRC General Comment 1, 17 April 2001.

UNICEF (1998), Implementation Handbook for the Convention on the Rights

of the Child (UNICEF Implementation Handbook), United Nations Children's

Fund, New York, p419; UNHCR Guidelines on Protection and Care, ch4.

UNICEF Implementation Handbook, p419

Article 2(1) International Labour Organisation Convention No.79.

It should be noted that Australia has not ratified the Convention. See

UNICEF Implementation Handbook, p419.

UNICEF Implementation Handbook, p420.

See the Declaration of the Child's Right to Play (1959), adopted

by the International Association for the Child's Right to Play, cited

in UNICEF Implementation Handbook, pp420-421.

UNICEF Implementation Handbook, pp417, 420.

UNHCR Guidelines on Protection and Care, ch4.

UNICEF Implementation Handbook, pp421-422. See also Background

Paper 2: Culture and Identity.

See the Committee on the Rights of the Child, General Guidelines Regarding

the Form and Contents of Periodic Reports to be Submitted by States Parties,

11 October 1996, Part V111B(2), . 20/11/96. CRC/C/58, where the Committee

requests States Parties to "Please indicate the measures undertaken,

including of a legislative, administrative and judicial nature, to recognize

the right of the child who has been placed by the competent authorities

for the purposes of care, protection or treatment of his or her physical

and mental health, to a periodic review of the treatment provided to the

child in public and private institutions, services and facilities, as

well as all other circumstances relevant to his or her placement";

at para 86. The detail of information sought is outlined in para 87.

See Background Papers 7 and 8 on Legal status and Deprivation of Liberty and Humane Detention respectively. Article 3(3), Convention provides: "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".

UNICEF Implementation Handbook, p341.

Article 3(3), Convention.

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National Inquiry into Children in Immigration Detention - Background Paper 3: Mental Health and Developmen