A last resort? - Summary Guide: Unaccompanied children in detention

A last resort?

National Inquiry into Children in Immigration Detention

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The Convention on the Rights of the Child states

that unaccompanied children - particularly those seeking asylum - need

special protection and assistance. Where unaccompanied children have a

legal guardian, their best interests must be the guardian's 'basic concern'.

Most of the unaccompanied children who come to Australia

seeking asylum arrive without a visa and are, therefore, automatically

held in immigration detention.

Between 1 January 1999 and 30 June 2002, 285 unaccompanied

children arrived in Australia without a visa and sought asylum. They were

all detained. The highest number of unaccompanied children in detention

was in July 2001 when 143 were held in detention.

Most unaccompanied children were adolescent boys - either

from Afghanistan or Iraq - and most were detained at Curtin, Port Hedland

and Woomera detention centres.

Alternatives to detention

During the course of the Inquiry, many unaccompanied children

were detained in remote detention centres for lengthy periods of time.

There are, however, options available to the Minister and the Department

to remove unaccompanied children from detention centres. For instance,

they can be granted a bridging visa or transferred to an alternative place

of detention in the community. From December 2002 onwards, it was Department

policy to make one of these alternatives a priority.

However, between 1999 and the end of 2001, only one unaccompanied

child was removed from detention and placed in the community - an eight-year-old

boy who was granted a bridging visa after being detained at Woomera for

four months. Between January and February 2002, the majority of unaccompanied

children remaining in detention were transferred to alternative detention

in foster homes in Adelaide.

In December 2003 there were no unaccompanied children remaining

in detention centres.

Who was responsible for the care of unaccompanied children

in detention?

According to Australian law, the Minister is the legal guardian

of all unaccompanied children seeking asylum in Australia. The Minister

has the same rights and duties as a natural guardian and remains the child's

guardian from the moment of arrival until he or she turns 18 or leaves

Australia.

The Minister is able to delegate this guardianship role to

another representative of the Commonwealth government or a representative

of a State or Territory government. Since 1999 guardianship has been formally

delegated to State child welfare authorities and since 2002 to the Department's

Managers or Deputy Managers. However, since 1999, day-to-day care of unaccompanied

children in detention centres has generally been understood to be the

responsibility of ACM.

The Minister's role as guardian of unaccompanied children

raises a significant conflict of interest as the Minister is also the

detention authority and the visa decision-maker. Given these multiple

roles, it is difficult for the Minister, or Departmental delegate, to

make the best interests of the child the primary consideration when making

decisions concerning unaccompanied children.

This conflict is not resolved by delegating the guardianship

function to the Department Managers. Indeed, those Managers are placed

in the impossible position of trying to gain the trust of the unaccompanied

children when the same children view them as the people responsible for

their detention.

ACM's care of unaccompanied children

Many individual ACM staff worked hard to meet the needs of

unaccompanied children in detention and unaccompanied children were, quite

appropriately, given greater attention by ACM staff than children with

parents.

Designated officers with responsibility for the care of children

were appointed in Woomera and Port Hedland in early 2001 and in Curtin

by late 2001.

ACM staff also developed a range of strategies over time

to attempt to improve the care available for unaccompanied children, such

as case management plans, progress reports and regular meetings to discuss

their needs.

However, these systems were generally not able to address

the problems and serious distress faced by these children - as evidenced

when a group of unaccompanied children at Woomera took part in acts of

self-harm in November 2001 and January 2002.

This raises the question as to whether the best interests

of unaccompanied children can ever be met within a detention centre, especially

when they are detained for long periods.

The role of the Department

The Department has a role to act as the delegated guardian

of unaccompanied children in detention. Department Managers were responsible

for monitoring the care received by unaccompanied minors in each centre.

However, evidence to the Inquiry suggests that the Department

had minimal involvement in the care of unaccompanied children and that

its monitoring was ineffective.

Department Managers faced significant obstacles in effectively

fulfilling their role as the delegated guardian of unaccompanied children

- they did not have child care qualifications or experience and were not

provided with specific training to help them understand and meet the needs

of unaccompanied children.

There were also no guidelines describing the role of

the Department Manager until late 2002 - by which time most unaccompanied

children were no longer in detention centres.

CASE STUDY

During January 2002 a group of unaccompanied children

in the Woomera detention centre took part in hunger strikes, lip-sewing

and other acts of self-harm. These violent protests were serious

enough to trigger the transfer of almost all unaccompanied children

in Woomera to foster care and group homes in Adelaide.

The first group of children released into alternative

detention included five unaccompanied children. On 14 January 2002,

the Department requested that the South Australian child protection

agency (FAYS) conduct urgent investigations regarding three of these

children, the youngest unaccompanied children in the centre. These

children were aged between 12 and 14 years and had been detained

at Woomera between June and August 2001.

On 16 January 2002, hunger strikes began at Woomera

in response to the Minister's announcement that processing of applications

by Afghan asylum seekers would be suspended. Following are details

regarding two of the unaccompanied children:

Child 1 – 12-years-old,

detained June 2001, transferred to Adelaide 24 January 2002

Case management plan (December

2001): ‘[Child] is always polite and well behaved. He tends

to follow the lead of the older boys and subsequently has been

involved in one minor disturbance.’ On 20 January 2002,

this child sewed his lips together. He remained on hunger strike

until he was removed from the centre on 24 January 2002.

Child 2 – 14-years-old,

detained August 2001, transferred to Adelaide 24 January 2002

Case management plan (December

2001): ‘[Child] interacts well with the other UAMs and is

generally polite and well mannered. He follows direction accordingly

and has never been in any trouble.’ A month later, this

child threw himself against a wall, threatened to kill himself

at least three times, went on hunger strike and ingested shampoo.

Four unaccompanied children were

removed from Woomera on 27 January 2002. Three of these children

had been assessed by FAYS in the previous days. FAYS reported on

26 January 2002 that the children assessed ‘should be removed

as a matter of urgency from the Detention Centre.’ Following

are details regarding two of these children.

Child 3 – 15-years-old,

detained June 2001, transferred to Adelaide 27 January 2002

Case management plan (December 2001): '[Child]

is a very quiet young man and is always polite and well mannered.

He tends to follow the other UAMs in which ever direction they

take. [He] has been involved in one minor disturbance.'

On 23 January FAYS noted that the child reported

that 'he had sewn his own lips and is on a hunger strike that

is in its 8th day'; 'that when upset he removes himself to a corner

and cries and has no one to talk to about his situation'; and

that he had 'no adult support within the centre and no information

about his own family's whereabouts and well being.'

Child 4 – 16-years-old,

detained April 2001, transferred to Adelaide 27 January 2002, released

12 February 2002

No case management plan was

available for this child. On 26 January 2002, FAYS reported that

the child had been on hunger strike since at least 19 January

2002 and had ingested shampoo on 21 January 2002, when he was

admitted to the Woomera Base Hospital. FAYS reported that he ‘presented

as highly depressed, with an inability to focus his energies on

anything other than dying via starvation and dehydration.’

A number of unaccompanied children

remained in the centre. Five of these children were the subject

of an assessment by FAYS on 28 January 2002, after participating

in hunger strikes. According to FAYS:

[The children] report being

on a hunger strike for 10 days (in protest of holds on visa processing)

but say they have been taking liquids … They were resolved

that a drastic action of self-harm was the only option to draw

attention to their despair of their living conditions. They also

expressed a futility and frustration at the amount of people who

had spoken to them within the camp, concerned for their well-being,

who do nothing to change their circumstances.

FAYS recommend the children’s

immediate release from the centre. The Department did not act on

this recommendation. A week later, on 7 February 2002, these unaccompanied

children reinstated a pact to self-harm if they were not removed

from the centre by the end of the day. Following an urgent recommendation

by the South Australian Department of Human Services on 7 February,

these unaccompanied children were released into alternative detention

the next day.