Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
the Australian Catholic University
WELFARE OF YOUNG PEOPEL: A HEURISTIC FRAMEWORK
AND INADEQUATE PROVISION OF CARE
AND MALTREATMENT
CHILDREN'S HEALTH & DEVELOPMENT AT RISK
RESPONSIBILITY AND ADEQUATE SUPERVISION
COMMENTS.
Preamble
Staff in the Social
Policy and Advocacy Research Centre, and the Youth Studies Flagship at
the Australian Catholic University welcome the Human Rights and Equal
Opportunity Commission's initiative in establishing an inquiry into children
in Australia's immigration detention centres.
We support the HREOC's
commitment to establishing a consultative process that will inform Australian
government policy. Hopefully it will also inform public opinion in regard
to refugee policy. Such a consultative process can only assist government
to better assess the impact of its policies on children in immigration
detention centres as well as improve the planning and delivery of services
to children and their families who are seeking asylum in Australia.
In this submission
we address some of the key themes and questions identified in HREOC's
guide to making a submission. Our response is framed in particular by
reference to child protection legislation, used throughout Australia to
determine when interventions are required to secure the health, safety
and well-being of young people.
That is, we seek
to establish whether the circumstances under which young people are being
held in various detention centres constitute a prima facie basis for determining
that such children are at risk. We begin by establishing the criteria
used in Commonwealth, state and territory legislation to determine whether
a child is in 'need of protection'. We then use that criteria to establish
whether there is evidence that the welfare of the young people held in
detention centres is threatened by their continued detention and whether,
if the normal rule of law were applied, those children would be brought
under the protection of that legislation.
The Welfare of Young People:
In this submission
we outline the kinds of criteria normally used to assess the welfare of
all children and young people and what those criteria would imply when
considering the circumstances of those children and young people currently
in Australian detention centres.
The idea that government
ought itself to be subject to the rule of law is a long standing and widely
held liberal principle employed to guard against the arbitrary exercise
of power. The main point being made here is that the criteria for identifying
when the welfare of children is at risk which are found in some 12 separate
and current legislative enactments, points unequivocally to the serious
plight of young people in Australia's immigration detentions centres.
We turn first to
these legislative frameworks.
In Australia the
legislative definitions of 'in need of care and protection', and the mandatory
protection requirements are set out in the following State, Territory
and Commonwealth legislation:
- Commonwealth
Family Law Act 1975;
- NSW Children
(Care and Protection) Act 1989;
- Victoria's Child
and Young Person's Act 1989;
- Queensland, Child
Protection Act 1999;
- Queenland, Health
Act 1937;
- South Australia,
Family and Community Services Act 1972;
- Tasmania, Child
Welfare Act 1960;
- Tasmania, Child
Protection Act 1974;
- Child Protection
Amendment Act 1986, 1987, 1991;
- Tasmania Alcohol
and Drugs Dependency Act 1968
- ACT Children's
Services Act;
- NT Community Welfare
Act 1983.
We systematically
survey the above mentioned Acts to determine whether any young detainees
might qualify in regard to official definitions normally applied to young
people. Under 'normal' circumstances, for a child to be placed on an order,
a court needs to determine that the child in question is in need of care
and protection.
This task is approached
thematically; by identifying five main criteria used to determine whether
a child is in need of protection- they are:
- neglect, and
inadequate provision of care;
- abuse and maltreatment;
- Children's health
and development placed at risk
- Parental responsibility
and adequate supervision;
- education.
NEGLECT
AND INADEQUATE PROVISION OF CARE
One point that medical
and social scientific experts appear to agree on is that the social and
emotional environment in which a child lives impacts on their general
health and well-being (Glover, Burns, Butter and Patton 1998; Goddard,
1996; see also, Steel and Silove, 2001: 596-599).
With this in mind,
there appears to be a basis for child protection intervention in respect
to the NSW Children Care and Protection Act 1987 (section 10, subsection
(I)). The same applies with the Victorian legislation (section 63 of the
Child and Young Persons Act 1989).
In NSW a child defined
under section 10, subsection (I) in the Children Care and Protection Act
1987 as being in need of care if:
- adequate provision
is not made for the child's care; or
- the child is being
abused, or is likely to be abused; or
there is a irretrievable breakdown in the relationship between
the child and one or more of the child's parents.
The same applies
with the Victorian legislation (section 63 of the Child and Young Persons
Act 1989). In Victoria section 63 of the Child and Young Persons Act 1989
indicates that a child is in need of protection if the child has
suffered, or is likely to suffer, emotional or psychological harm of such
a kind that the child's emotional or intellectual development is, or is
likely to be, significantly damaged and the child's parent(s) have not
protected or are unlikely to protect, the child from harm of that type
Moreover, 'the child's
parent(s) cannot protect them', nor are they likely to be able to protect'
child detainees 'from harm of that type'. In Tasmania the Child Welfare
Act 1960 similarly stipulates that 'neglect' is evident in the failure
to provide adequate care. (Tasmanian Child Welfare Act 1960).
In Tasmania the Child
Welfare Act 1960 describes various circumstances in which a child may
be in need of care and protection, as a result of neglect...
EVIDENCE AND ARGUMENT
There is considerable
evidence to suggest that young detainees are in an environment where there
is not adequate provision available for the child's care. This
is evident in the failure to provide a healthy context in which the child
can live. Prison-like environments do not constitute adequate provision
of care for the child. This is particularly so in centres where both
child and adult inmates are strip searched, where riots occur on a routine
basis; and where there are regular outbreaks of violence between inmates
and inmates and guards including the use of water cannons and makeshift
weapons (Flood Report 2000; Age, 6 April 2001; Sunday Herald Sun, 10 March
2002).
Moreover, indeterminate
imprisonment does not constitute adequate care for the child. Young people
detained in detention centres are by virtue of their imprisonment being
abused.
Freedom is a fundamental
human right. Young detainees have not committed crimes. Despite this,
their right to freedom from arbitrary detention has been abrogated. Their
offence was to have been born to parents fleeing tyranny; their offence
was to have been orphaned through war, persecution, or death on route
to Australia.
Compulsory detention
involves loss of liberty including restrictions on freedom of movement.
This inhibits a young person's capacity to engage in any semblance of
normal social, economic and cultural activities. Here we refer to a capacity
to develop social skills and primary personal and community connections
that provide a basis for social integration. Opportunities for social
participation, according to most standard medical and sociological accounts
are essential for healthy child and adolescent development. In other words,
denying young detainees the chance to take-part in general social activities
inhibit their social and emotional development (Patton, 1997). Moreover,
missing such opportunities to make social 'connection' is identified by
some as a major factor contributing to the development of later social
and personal problems (Resnick, Harris, & Blum, 1993, pp. 3-9). Detention
denies the young inmates opportunities for social participation that affirms
their self-worth and dignity as a human being - affirmation necessary
for healthy child and adolescent development.
If children in civil
society were segregated, isolated and subject to the 'security measures'
child asylum seekers experience, such action would be widely held to constitute
abuse. The experience of such incarceration for young people who have
recently suffered directly at the hands of uniformed men (militia), or
who have witnessed horrific violence en-route to Australia takes on a
special meaning: it 'does not constitute adequate care.'
There are issues
about the degree of psychological and physical damage caused by a child's
incarceration in an immigration detention camp. The imprisonment of young
people with other detainees many of whom are suffering with their own
health problems (ie., depression, suicidal ideation etc) does not constitute
adequate care (former ACM psychology staff Lateline ABC, 23 April 2002).
After visiting detention centres as part of a Joint Standing Committee,
Liberal MP Bruce Baird described what he saw as the 'psychological impact'
of the camp on detainees. He reported on ' the feeling of despair
that permeates these places, the general unhappiness and lack of activity,
with detainees either lying on their beds in the middle of the day or
wandering around aimlessly' (Baird, Hansard, 18 June 2001). Similar evidence
came from two Human Right and Equal Opportunity Commission officers following
their visit to Woomera in January 2002. Dr Ozdowski (HROEC Commissioner)
explained how the officers found four children 'exposed to a high level
of violence and were denied basic levels of education.' The officers also
' found
24 children had harmed themselves, including one who slashed the word
freedom on his forearm and another who tried to hang himself. A 12 year
old girl told the officers: 'I am getting crazy, I cut my hand. I can't
talk to my mother. I can't talk to anyone and I'm very tired. There
is no solution for me - I just have to commit suicide - there is no
choice'. A 16 year old boy said: 'Some of us,. We not have anyone in
here. What can we do except kill ourselves?' '(Ozdowski Age, 7, February
2002 ). [1]
There is evidence
that children in immigration detention centres suffer physical, emotional
and psychological harm which damages them bodily, emotionally and intellectually.
We refer to medical research that demonstrates how such children can become
severely depressed and suicidal. (Patton, Coffey, Carlin, Wolfe 2000).
We also highlight that there are children in the camps who have already
been severely traumatised and injured in their homeland and and/or on
route to Australia. For these highly vulnerable children, the added injury
compounds their problems and makes recovery more difficult.
Before their arrival
in Australia, some child detainees witnessed and been subject to horrific
violence including rape, serious assault murder. The exposure of these
children to the kind of on-going violence that takes place in the detention
centres means those children continue living in fear. Living in fear exacerbates
the past injuries and problems. Given this, it seems obvious that child
detainees are not being protected; that they are being abused; suffering
harm, and are likely to be significantly damaged as a result of their
imprisonment. On this basis there appear to be grounds according to the
NSW, Victorian and Tasmanian legislation for intervention.
Child detainees regularly
witness physical assaults and violations. Reports of the handcuffing and
beatings of inmates at Port Headland is not uncommon (Flood Report 2000;
Sultan and O'Sullivan, 2001: 593-596). Neither are accounts like the one
where a man and his three year old son were kept for 13 days in an isolation
cell where it took them an hour to attract a guard's attention so they
could go to the toilet (Flood Report 2000; Age, 19 June 2001).
The incarceration
of young detainees in top-security prisons with high reinforced razor,
solid metal fencing; their continued witnessing of violence; their continued
subjection to various forms of violence exacerbates the injuries and trauma
of young asylum seekers. Under normal rules of law, mandatory and indeterminate
imprisonment for children who have not committed a crime, in surroundings
like those that child detainees endure, would not constitute adequate
care of a child. The imprisonment of child asylum seekers is a punitive
and inappropriate response to a particularly vulnerable group of innocent
children. If parents in civil society imprisoned a child; if they denied
the child access to the outside world; if they regularly exposed those
children to distressing conditions; if they allowed those children to
live amongst depressed and suicidal adults, then most Australians would
considered such adults derelict in their parental duties and the children
in need of care and protection.
ABUSE AND MALTREATMENT
In Australia a raft
of legislation specifies the terms under which a child is held to be at
risk of abuse and maltreatment.
In NSW a child is
defined under section 10, subsection (I) in the Children Care and Protection
Act 1987 as being in need of care if .. adequate provision is not
made for the child's care.
The Tasmanian Child
Protection Act 1974 stipulates that: a child may be placed under
a child protection order if it appears to a magistrate that the child
may have suffered abuse. Under the Child Protection Act 1986, a
magistrate who is not in a position to decide whether there may be a substantial
risk that the child may suffer abuse can make a temporary child protection
order.
A child is taken
to suffer abuse if by act or omission, intentionally or by default,
any person neglects, or interferes with the physical, nutritional,
mental or emotional well being of the child to such an extent that the
child suffers, or is likely to suffer, psychological damage or impairment;
or the emotional or intellectual development of the child is, or is likely
to be, endangered; or the child fails to grow at a rate that would otherwise
be regarded as normal for that child.
In NT section 4 (2)
Community Welfare Act 1983 states a child is in need of care where
the child has suffered maltreatment. For the purposes of the (NT) Community
Welfare Act 1983, a child shall be taken to have suffered maltreatment
where they suffered or are at a substantial risk of suffering:
physical injury
causing temporary or permanent disfigurement or serious pain or impairment
of a bodily function or the normal reserve or flexibility of a bodily,
inflicted or allowed to be inflicted by a parent, guardian or person having
the custody of the child, or where there is substantial risk of the child
suffering such an injury or impairment.
serious emotional
or intellectual; impairment evident by severe psychological or social
malfunctioning measured by the commonly accepted standards of the community
to which the child belongs, whether a result of physical surroundings,
nutritional or other deprivation, or emotional or social environment in
which the child is living, or where there is a substantial risk that such
surroundings, deprivations or environment will cause such emotional or
intellectual impairment.
serious physical
impairment evidenced by severe bodily malfunctioning, whether a result
of the child's physical surroundings, nutritional or other deprivation,
or the emotional or social environment in which the child is living, or
where there is a substantial risk that such surroundings, deprivation
or environment will cause such impairment.
EVIDENCE AND ARGUMENT.
Child detainees 'suffer
maltreatment' and by virtue of their imprisonment are placed at high 'risk
of suffering physical injury causing temporary or permanent disfigurement
or serious pain or impairment of a bodily function or the normal reserve
or flexibility of a bodily, inflicted or allowed to be inflicted by a
parent, guardian or person having the custody of the child'. Young people
aged 11, 14 and 17 years who are reportedly threatening suicide, are at
risk of serious injury (lawyer, McDonald, Age, 29 January 2002; see also,
Sultan and O'Sullican 2001, pp. 593-596; Steel and Silove 2002, pp 596-599)
for detail on the impact of detention on children).
Self harm by children
and harm to children perpetrated by others has included prolonged 'hunger
strikes', sewing or stapling of lips together, attempted suicide, deliberate
poisoning all of which take place in detention camps cause 'serious pain',
impairment of bodily function and normal reserve of bodily flexibility'
(Age, 20 January 2002; Age, 21 January 2002; Age, 8 March 2002). In early
2002 the Age newspaper reported that ' three Afghan children had
stitches removed and remained in hospital suffering dehydration'
(Age, 21 January 2002; Age, 25 January 2002; Age, 26 January 2002) The
next day it was reported that:
the 12 year
old who collapsed yesterday was among a group of youths engaging in
self-harm, One boy 15, drank detergent, a 19 year old beat himself with
rocks and an 18 year old had slashed his chest Another 8 people
under 18 had drunk shampoo' (Age, 22 January 2002).
Michael Dudley, Chair
of Suicide Prevention Australia, from University of Western Sydney and
Sarah Mares, Faculty of Child and Adolescent Psychiatry, Royal Australian
New Zealand College of Psychiatry made the point that normally children
who were in the care of a parent who exposed them to violence and did
not 'provide adequate education or a place for play and development would
be removed from that situation while consideration would be given to prosecuting
the guardian. This is the condition of the children in the Woomera detention
centre'. (Age, 22 January 2002).
Other health specialists
have expressed similar concerns, drawing attention to internationally
published evidence indicates that prolonged detention of children is detrimental
to the mental and physical health (Royal Australian and New Zealand College
of Psychiatrists, media release, 17 August 2001).
PLACING CHILDREN'S HEALTH
The Western Australia
Child Welfare Act of 1947 defines a child in need of care and protection
as one who is living under such conditions, or is found in such
circumstances, or behaves in such a manner, as to indicate that the mental,
physical or moral welfare of the child is likely to be in jeopardy.
In the ACT the Children's
Services Act 1986 states that a child is in need of care and protection
if:
(a) a child has been
physically injured (other than by accident) or has been sexually abused
by one of the child's parents or by a member of the household, or there
is a likelihood that the child will suffer physical injury or sexual abuse
(c) by reason of
the circumstances in which the child is living, has lived or is reasonable
likely to live, or in which the child is found, the health of the child,
has been, or is likely to be, impaired, or the child has suffered, or
is likely to suffer, psychological damage of such a kind that their emotional
or intellectual development is, or will be endangered.
EVIDENCE AND ARGUMENTS
The conditions in
which many child detainees have lived and currently live impairs their
'health' and 'psychological well-being'. It also damages their 'emotional
and intellectual development' (ibid).We submit that children in immigration
detention centres are at risk of physical and emotional injury. Injury
resulting from living in prison conditions, from self-harm, and/or deliberate
or unintentional harm caused by other detainees (ie., from regular contact
with other inmates who are for example severely depressed and/or suicidal)
(see Steel, Silove, 2001: 596-599; Sultan, and O'Sullivan, 2001: 593-596).
Reports of children
being assaulted by some Centre staff and the generally intimidatory environment
[2] means that young detainees are 'living under such
conditions' that 'indicate that the mental, physical or moral welfare
of the child is likely to be in jeopardy'. As medical specialists, one
of whom was himself a detainee observed:
The detention environment,
exposure to actions such as hunger strikes, demonstrations, episodes
of self-harm and suicide attempts, and forcible-removal procedures,
all impact on a child's sense of security and stability. A wide
range of psychological disturbances are commonly observed among children
in the detention centre, including separation anxiety, disruptive conduct,
nocturnal enuresis, sleep disturbances, nightmares and night terrors,
sleep walking, and impaired cognitive development. At the most severe
end of the spectrum, a number of children have displayed profound symptoms
of psychological distress, including mutism, stereotypic behaviour,
and refusal to eat or drink. (Sultan and O'Sullivan 2001: 594).
Children whose parents
harm themselves in prison are 'at risk' in respect of their health and
development (ABC Regional News, 14 March 2002). Again, Sultan and O'Sullivan
note: 'Children of parents who reach the tertiary depressive stage appear
to be particularly vulnerable to developing a range of psychological disorders'
(ibid: 594). The trauma of separation from a parent in conditions that
are already distressful is likely to impair the well-being of the child.
As the Age (18 March 2002) highlighted in a recent report, adults who
self-harm are sometimes parents.
' the mother
of a seven year old girl was admitted to the Adelaide Hospital in a
critical condition after trying to hang herself (Age, 18 March 2002)
The report details other 'incidents' which indicate the unhealthy context
in which child detainees live:
another woman
was admitted after setting herself on fire, other detainees hung themselves
from the razor wire in a 'crucifix' demonstration and were admitted
to the medical centre with severe cuts. (Age, 18 March 2002).
Given such evidence
it appears there are reasonable grounds for Child Protection intervention.
Child detainees have
been 'physically injured (other than by accident)' inside the detention
centres. Moreover, 'there is a likelihood that the child [in detention]
will suffer physical injury'. 'By reason of the circumstances in which
the child is living, has lived', [namely in detention], 'the health of
the child, has been', and 'is likely to be, impaired'. Furthermore, those
children are 'likely to suffer, psychological damage of such a kind that
their emotional or intellectual development is, or will be endangered'.
EDUCATION
In South Australia-
under the Children's Protection Act 1993 an application may be made to
the Youth Court when the Minister is of the opinion that the child is
at risk and an order should be made for the child's care and protection.
For the purposes of the Act, a child is at risk if the child is
of compulsory school age but has been persistently absent from school
without satisfactory explanation of the absence.
In NSW a child defined
under section 10, subsection (I) in the Children Care and Protection Act
1987 as being in need of care if adequate provision is not made for the
child's care.
In Tasmania the Child
Welfare Act 1960 describes various circumstances in which a child may
be in need of care and protection. That includes, a neglected child as
one who 'has not attained the age of 16 years in respect of whom there
have been at least 2 convictions under section 9 of the Education Act
1932 without lawful excuse, attend school regularly'.
In the ACT the Children's
Services Act 1986 states that a child is in need of care and protection
if 'the child is required by law to attend school and is persistently
failing to do so and the failure is likely to be harmful to the child.
EVIDENCE AND ARGUMENT
According to former
detention centre teaching staff, children in immigration detention centres
over the age of 12 years do not attend school (Katy Brosnan, Elly Leaver,
former teachers, Port Headland, ABC Lateline, 10 April 2002). Given such
evidence child detainees who do not have access to education are 'at risk'
and there are grounds for an order to secure the child's care and protection.
Many children in
detention camps who have not attained the age of 16 years regularly fail
to attend school. Moreover, the quality of the education offered to the
children who do attend school is reportedly dubious according to the available
evidence. As one former detention centre educationist explained, there
was no syllabus, no accountability and in her opinion, 'an absolute disgrace',(Katy
Brosnan, Lateline 10 April 2002; Age, 7 February 2002 ).[3]
Similar 'insider' reports come from Aamar Sultan, medical practitioner
and former detainee in Villa wood Detention Centre, who observed that:
for most
of the previous two years, there has been a general dearth of activities,
resources, or educational material, leaving detainees [young and old]
with long period of unstructured time. Despite recent improvements,
boredom, aimlessness and apathy are widespread, particularly among those
who have been detained for longer periods of time (Sultan and O'Sullivan,
2001, p. 593).
PARENTAL RESPONSIBILITY
In NSW a child defined
under section 10, subsection (I) in the Children Care and Protection Act
1987 as being in need of care if: there is a irretrievable
breakdown in the relationship between the child and one or more of the
child's parents.
In Victoria section
63 of the Child and Young Persons Act 1989 indicates that a child is in
need of protection if the child's parent(s) have not provided for,
arranged or allowed the provision of, or are unlikely to provide, arrange,
or allow the provision of, basic care or effective medical, surgical or
other remedial care.
In Queensland under
sections 9 and 10 of the Child Protection Acts 1999 a child is defined
as being in need of protection if that child does not have a parent
able and willing to protect the child from harm. (Harm is defined as any
detrimental affect of a significant nature on the child).
In South Australia
under the Children's Protection Act 1993 an application for an order may
be made to the Youth Court . if the guardians of the child are unable
to maintain the child, or are unable to exercise adequate supervision
and control over the child.
In the ACT the Children's
Services Act 1986 states that a child is in need of care and protection
if: (d)the child is engaged in behaviour that is, or is likely
to be harmful and the parents or guardians are unable or unwilling to
prevent the child engaging in that behaviour
(f) there is serious incompatibilities between the child and one of their
parents or guardians
.
(e)there is no appropriate person to care for the child because the child
has need abandoned, the child's parents or guardians cannot, after reasonable
enquiries have been made, cannot be found; to the child's parents are
dead and the child has no guardian
In NT section 4 (2)
Community Welfare Act 1983 states that a child is in need of care where
the child is not subject to effective control and is engaging in
conduct which constitutes a serious danger to their health and safety.
In Tasmania the Child
Welfare Act 1960 describes various circumstances in which a child may
be in need of care and protection, as a result of neglect or being beyond
the care or control of the parent with whom they child is living. A neglected
child is a child who is in need of care and protection to
secure that they are properly cared for.
EVIDENCE AND ARGUMENT
Much of this legislation
suggests that a child in need of care when they are 'beyond the care or
control of the parent with whom they child is living' .
The imprisonment
of the child, and in most cases their parents, by the Australian government
often makes it impossible for parents of young detainees to parent adequately.
Prison life prevents parents from attempting put in place living conditions
that benefit their child. It also subverts parents attempts to build relationships
with their child aimed at securing their parental influence over the child.
The capacity of parents to prevent their child from self-harming and to
restrain or guide their conduct is limited by the conditions of living
in a detention centre.
Parents of children
in detention are denied their parental rights and capacity to protect
their children from harm. They are not 'able to protect their children'
from harm. Sultan and O'Sullivan (2001) argue that the effects of such
diminished parental responsibility:
A secondary effect
[of detention on children] is mediated via parents, whose ability to
provide caring and nurturing environment is progressively undermined
as they pass through the stages [of depression] outlined above, with
risk of neglect and physical abuse of dependent children increasing
across the course of detention. Following allegations of child sexual
abuse at the Woomeras centre, detaining authorities have increased monitoring
of parents at Villawood for evidence of abuse and neglect, leading to
parental fears of their children being removed, which has further increased
family insecurity. At times, children have also become negotiating pawns
in attempts to contain protests with the detention centre. For example,
on a number of occasions, the authorities have separated children from
their parents to pressure adults to cease their hunger strikes (Sultan
and O'Sullivan 2001, p. 595).
There is also the
plight of unaccompanied minors. The policy of mandatory and indeterminate
detention of children in conditions like those described means that the
Australian government as custodian of unaccompanied children 'allows'
those children to 'suffer' various 'injuries' which 'cause temporary and
permanent disfigurement' and impairment to the young inmates 'bodily functions,
flexibility' and 'normal reserve'. In civil society parents or guardians
who permitted such suffering would be subject to child protection legislation.
Cases of self-harm
also raise issues about the provision of adequate supervision. For parents
of child detainees this goes to the question of the government denying
or undermining their parental rights by incarcerating them in an environment
that obstructs mothers and fathers from fulfilling their parental obligation
of providing a healthy environment in which injuries including self harm
is unlikely. Thus, in respect to the NT Community Welfare Act 1983 there
are reasons for concern. Children held in immigration detention centres
are often not 'subject to effective control and engage in conduct that
constitutes a serious danger to their health'.
There is also the
issue of unaccompanied minors who deliberately harm themselves. This poses
questions about whether the state in loco parentis has been neglectful
in providing adequate supervision and control of children in their care.
Given the incidence of self-harm by unaccompanied minors, there appear
to be grounds under South Australian law for arguing that unaccompanied
child detainee who self-harm be placed 'in need of care and protection'.
It is worth pointing
out that the prison conditions and status of child detainees is itself
a primary cause of the child's own 'behaviour that is likely to be harmful'.
Moreover, in cases where the state is acting in loco parentis,
the parent (the state) appears to be unwilling to prevent the child they
are responsible for from engaging in harmful behaviour (ie., a preventative
measure, might involve removing them from the environment that is causing
the self-harm).
A number of children
in immigration detention centres have 'lost parents, and those parents
cannot be found'. In these cases the government assumes a guardianship
role, which under normal rule of law prohibits the kind of treatment young
detainees currently endure.
The 'incompatibilities'
between parents and children as outlined in the legislation raises issues
in respect to unaccompanied minors. In the case of these children the
Australian Commonwealth government assumes a guardian role. When this
takes place an 'incompatibility' exists between the child and government
as prison-keeper-cum-guardian/parent. The two roles parent and the authority
that determines their imprisonment are incongruous and incompatible.
There are grounds
for arguing that an 'irretrievable breakdown exists' in the relationship
between an unaccompanied child and the parent - namely, the Commonwealth
government acting in loco parentis. The 'incompatibility' in the
relationship is evident in the act of forcibly detaining the unaccompanied
child; a child who has already been subject to persecution and orphaned.
There is also evidence of incompatibility when the guardian -the Australian
Government- fails to meet that child's basic needs in respect to their
emotional and physical well-being.
Australia's practice
of holding unaccompanied child asylum seekers in immigration detention
centres indicates at best a conflict of interest between those acting
in loco parentis and the child, and at worst, an 'irretrievable
break down in the relationship' between the two. According to the NSW
Children and Care Protection Act 1987 these are clear grounds for defining
unaccompanied children held within Australia's immigration centres, and
especially unaccompanied children as 'being in need of care.
Holding unaccompanied
minors in prison adds to their injuries and is not in the best interest
of the child. Moreover, there is a fiduciary relationship between the
unaccompanied child and the Australian government. This relationship involves
a duty or obligation to act in good faith towards the person for whom
responsibility has been accepted in such a way as to confer a benefit
upon that person. (It is understood that the power the stronger party
possess ought not be exercised to the detriment of the weaker party).
Such fiduciary obligations are inherent in the relationship between those
acting in loco parentis and the child.
The fiduciary (ie.,
the state and/or its representatives) is obliged to act in the interest
of the young person to the exclusion of the fiduciary's own interest.
Furthermore, persons subject to this duty are not expected to profit from
the relationship, or to put themselves in a position where the fiduciary
obligation and personal interest may conflict. Fiduciary obligations operate
with a recognition that the position of disadvantage or vulnerability
on the part of the weaker party which causes that person to rely on the
other and requires the protection of equity acting upon the conscience
of the other .
In this regard, and
particularly given the extreme vulnerability of unaccompanied child asylum
seekers, the state has an obligation to consider the well-being of minors
above their own. The interests needing protection within fiduciary relationships
are those of the weaker party.
The actual circumstances
of the relationship between unaccompanied child detainees and the Commonwealth
government are such that the child is entitled to expect that the government
will act in his or her interests. The nature of the relationship in terms
of the power, vulnerability, trust, confidence and dependence between
the two parties provides evidence of a relationship requiring fiduciary
entitlements. This relations must implicate the government in the unaccompanied
child's affairs or so align the government with the protection or advancement
of the child's interests.
CONCLUDING COMMENTS
Australia is the
only country in the world to compulsorily 'detain' asylum seekers who
arrive without valid documentation. This is a policy of which Australians
should not be proud. It involves an exercise of state power which in tandem
with the suspension of normal legal protections that are available to
all other people, brings Australia uncomfortably close to historical and
contemporary examples of what happens when state regimes extinguish fundamental
legal and constitutional rights understood to constitute the rule of law.
The immigration detention
centres provide an experience of isolation, the physical design features
and austerity more commonly found in high security prisons designed to
house high risk criminal offenders.
- Australia now
pursues a policy that has meant the indefinite detention of thousands
of people.
- In late 2001 there
were 582 children in immigration detention centres, 53 of them were
unaccompanied.
- In Australia,
people classified as 'unlawful entrants' are subject to mandatory sentencing
in detention centres for long and indeterminate periods of time.
- These people
include large numbers of pregnant women, babies, children and teenagers.
- Many of these
people have recent and direct experience of political oppression and
violence - including systematic and illegal detention and torture -
in their country of origin.
We argue that Australia's
has abrogated its international obligations recognised by a number of
conventions to which Australia was a signatory. The mandatory detention
of asylum seekers breaches Australia's human rights obligations under
the International Covenant on Civil and Political Rights, the Refugee
Convention [4] , and the Convention on the Rights of
the Child (see also, Art 31 Refugees Convention). Australia's international
obligations, (as set out in the principles and provisions of the Convention
on the Rights of the Child and the International Covenant on Civil and
Political Rights) compels Australia's federal government to comply with
the conventions. If the government does not, then we breach international
standards that we only recently agreed to uphold
Such observations
sit alongside claims of child sexual abuse, maltreatment, evidence of
self-harm, documented evidence of serious health and social pathologies
amongst young detainees; and the provision of inadequate health, social
and educational services for child and teenage detainees.
What we have argued
here is that if any civil parent or guardian acted in the way the Australian
government has in regard to child asylum seekers detained in immigration
centres, they would be immediately subject to child care and protection
orders. There are too many examples of the Australian government contravening
its own legislation enacted to protect the wellbeing of vulnerable children
and applied to all civil parents and guardians for that purpose. Thus
we see the principle of exceptionality applied to exempt the Australian
government from regulations that apply to all others and to injury to
children that in all other circumstances would be unlawful. It is action
that is not only damaging to the young people concerned, but offensive
to Australians who identify themselves as members of a democratic and
humane culture.
The Australian government's
self-imposed exemption from the normative and legal restraints which ordinarily
render absolute government power give cause for serious concern for citizens
interested in justice and the well-being of one of the most vulnerable
groups of children. Arguments for the suspension of law on the basis of
the right to protect a nation state's own existence is what facilitated
the authority of regimes like the Third Reich and the establishment of
concentration camps. On the grounds of 'general national principles' certain
perversions of justice, as exceptions to normal rule ought not be allowed
.
Perhaps Chris Goddard
and Max Liddell hit the mark when they observed the hypocrisy of the prevailing
situation.
It is surely impossible
to imagine that any child protection service anywhere in the world would
regard keeping a child behind razor wire in a desert as anything but
emotionally abusive. It is not hard to imaging how history will judge
the present circumstances of the children being held in .. detention
(Age, 21 March 2002).
References.
Sultan, A., and O'Sullivan,
K., 2001, Psychological disturbances in asylum seekers held in long terms
detention; a participant-observer account, Medical Journal of Australia,
(175), pp. 593-596.
Bond, L., Carlin,
J., Thomas, L., Patton, G., 2001, Does Bullying cause emotional problems?
A Prospective study of Teenagers, British Medical Journal, (323), pp.
480-484.
Glover, S., Burns,
J., Butler, Patton, G., 1998, Social Environments and emotional wellbeing
in young people, Family Matters, (49). Pp. 11-16.
Human Rights and Equal Opportunity Commission, 1998, Those Who've Come
From Over the Seas, HREOC, Sydney.
Indermaur, D., 2001,
Young Australians and Domestic Violence, Trends and Issues in Crime and
Criminal Justice, No 195, Australian Institute of Criminology, Canberra.
Joint Standing Committee
on Foreign Affairs, Defence and Trade Human Rights Sub-Committee, 2001
A Report on visits to immigration detention centres, Canberra, Parliament
of the Commonwealth of Australia.
Patton, G., 1997,
Meeting the Challenge of adolescent Mental Health, Medical Journal of
Australia, (166), pp. 399-400.
Patton, G., Coffey,
C., Carlin, J., Wolfe, R., 2000, Adolescent depressive disorders: A population
based study over three years, British Medical Journal, (318), pp. 765-768.
Resnick, M.D., Harris,
L.J., & Blum, R.W., 1993, 'The Impact of caring and connectedness
on adolescent health and well-being,' Journal of Pediatrics and Child
Health, vol. 29, supplementary 1: 3-9.
Senate Legal and
Constitutional Reference Committee. 2000, A Sanctuary Under Review: An
Examination of Australia's Refugee and Humanitarian Determination Processes,
Commonwealth Government of Australia, June, Canberra.
Steel. Z., Silove,
D M., 2001, The mental health implications of detaining asylum seekers,
Medical Journal of Australia, (175), pp.. 596-599.
United Nations Convention
on the Rights of the Child, 1989, Adopted by the General Assembly of the
United Nations, 20 November.
United Nations Convention
on the Rights of the Child, 1989, Adopted by the General Assembly of the
United Nations, 20 November.
Age, 7 February 2002 'Dr Ozdowski [Commissioner HROEC] Said nine children
has been at Woomera for more than a year and 70 more for more than six
months, even though children should only be detained as a last resort
and for a limited time under the UN Convention on the Rights of the Child,
to which Australia is a signatory.'
2. They ( staff) - just kick the kids - they just want
to insult us in any way.' (Al-Hashimy, released Woomera inmate, (Age,
8 February 2002); see also
3. Age 7 February 2002. Report on Human Rights and Equal
Opportunity Commission - ' children under 13 received eight hours
of classes a week and there was virtually no education for teenagers a
claim disputed by the Federal Government'
4. Australia committed itself to provide protection to
people applying for refugee status in Australia and who are recognised
as refugees in accordance with the international definition in the 1951
Convention relating to the status of refugees (the Refugee Convention)
and the 1967 Protocol Relating to the Status of Refugees.
Last
Updated 9 January 2003.