National Inquiry into Children in Immigration Detention - Background Paper 5: Prevention, Treatment and Accommodation of Disabilities

National Inquiry into Children in Immigration Detention

Background Paper 5: Prevention,

Treatment and Accommodation of Disabilities

States

Parties recognise that a mentally or physically disabled child should

enjoy a full and decent life, in conditions which ensure dignity, promote

self-reliance and facilitate the child's active participation in the

community.

Article

23 (1), Convention on the Rights of the Child.

In this Background

Paper

National
Inquiry into Children in Immigration Detention
Child
asylum seekers with a disability
The
causes of disability
Prevention
of disability
Assessment
of disability
Accommodation
and intervention
The
right to physical activity, play, education and development
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 health and disability

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

well being and healthy development of children. [1]

This Background Paper

provides an overview of international human rights standards on disabilities

that are relevant to the Inquiry. It refers primarily to the Convention

on the Rights of the Child (the Convention) but also to other international

human rights standards where relevant. [2]

This paper 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 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. Child

asylum seekers with a disability

Child asylum seekers

are likely to have experienced varying levels of violence and human rights

abuses before or during their journey to Australia. The child's flight

from her or his home country may include experiences of war, persecution,

death, sexual assault, violence, fear, flight and displacement. In this

context, child asylum seekers will be more vulnerable to physical or mental

harm that may result in, or exacerbate, disability. Furthermore, children

with disabilities are especially vulnerable to exploitation, abuse and

neglect, and are entitled to special protection. [3] Children with existing disabilities will require special care and assistance

on arrival in a country of asylum.

The Convention

Under the Convention,

Australia is obliged to respect and ensure the rights of every child in

Australia, regardless of nationality or immigration status and regardless

of how the child arrived in Australia. [4] It is specifically

obliged under the Convention to ensure the right of every child with an

intellectual or physical disability to enjoy a full and decent life, in

conditions which ensure dignity, promote self-reliance and facilitate

the child's active participation in the community.[5] In addition to the Convention, there are also several international instruments

that provide greater detail as to the precise content of the right, particularly

as it applies to children in immigration detention. [6] These instruments will be used within this paper to clarify Australia's

international obligations to children with disabilities in immigration

detention.

Australia's obligations

under the Convention extend beyond refraining from discrimination against

children with a disability to the prevention, treatment and accommodation

of children's disabilities. [7] Australia is obliged

to ensure that every child develops to the maximum possible extent (article

6(2)) and enjoys the highest attainable standard of health (article 24).

Australia has also recognised the right of every child to a standard of

living adequate for the child's physical, mental, spiritual, moral and

social development (article 27(1)).

The Disability Discrimination

Act

The Australian government

has recognised its obligations under international law to eliminate discrimination

against people with disabilities, and has enacted domestic legislation

making such discrimination unlawful. The Disability Discrimination

Act 1992 (Cth) (the DDA) prohibits direct and indirect discrimination

against people on the ground of their disability. The DDA binds all federal

and state government agencies (in addition to private entities), [8] with the exception of Department of Immigration and Multicultural and

Indigenous Affairs employees and agents. [9] However,

many of the provisions of the DDA can be found in international standards

referred to in this paper.

3. The causes

of disability

Children may be disabled

by physical, intellectual or sensory impairment, medical conditions or

mental illness. The World Health Organisation has estimated that about

70 per cent of the disabilities in developing countries (which are usually

the countries of origin of children in immigration detention centres)

are caused by malnutrition, communicable diseases, low quality pre- and

post-natal care and accidents, including violence. [10] Most such disabilities start in childhood, and most are preventable.[11] Common causes of disabilities in refugee situations are malnutrition,

vitamin deficiencies, polio, cerebral palsy, leprosy, epilepsy, burns

and other accidents, injuries related to armed conflict, torture and other

severe trauma, intellectual disability and severe ear and eye infections. [12]

4. Prevention

of disability

Australia is obliged

under the Convention to ensure that every child develops to the maximum

extent possible and enjoys the highest attainable standard of health.

Accordingly, Australia is bound to prevent, wherever possible, the development

of any form of disability in children in immigration detention. This includes

early detection, and where appropriate, treatment of disabling conditions.

The UNHCR has suggested that initial preventive measures should specifically

target the special needs of infants and children, who are particularly

vulnerable to disabling impairments arising from their experience in a

refugee situation. [13]

Physical disability

may be prevented in several ways. First, regular screening of children

and young people may identify disabilities which may otherwise go undetected.

As discussed in Background Paper 4: Health and

Nutrition, disabilities may be prevented by immunisation against

all vaccine-preventable diseases against which children are not already

protected. [14] Micronutrient deficiencies, particularly

vitamin A and iodine deficiencies, should also be assessed and addressed

as early as possible, in order to avoid the potential development of serious

disabilities. [15] Iodine deficiency, for example, may

result in severe intellectual disability, significant impairment of learning

capacity and goitre. Newborn babies must be screened for treatable disorders

such as congenital hypothyroidism, phenylketonuria and galactosaemia,

which if left untreated, will result in serious illness, disabilities

and, in some cases, death. [16] Other important factors

in disability prevention include nutrition, safe water and sanitation,

adequate clothing and appropriate living facilities.

A significant aspect

of disability prevention for children in immigration detention is accident

prevention. As discussed in Background Paper

4: Health and Nutrition, children in immigration detention are

extremely susceptible to accidents. [17] The environment

in detention centres should be designed to avoid accidents, and parents

should be advised as to how to prevent their children suffering accidents

in their new and foreign environment. [18] Great effort

should be taken to prevent children suffering accidental burns or poisoning,

and to ensure that there are no ditches, sharp edges or dangerous objects

around the centre, such as wires or building materials that may give rise

to accidents. [19] Accident prevention also includes

ensuring that there are plenty of safe play spaces for children so that

they do not have to seek alternate play spaces that may be away from parental

supervision or otherwise dangerous. [20]

One of the major

causes of disability in refugee children is low quality pre-natal and

post-natal care. In order to prevent disability in children born while

their mother was in or recently released from immigration detention, adequate

pre-natal and post-natal care should be provided to pregnant women, new

mothers and their babies in detention, [21] as discussed

in Background Paper 4: Health and Nutrition.

Prevention of intellectual

disability, including mental illness, depends upon early intervention

and ongoing assessment and treatment. The UNHCR has stated that every

person in a refugee situation is potentially "at risk" in terms

of their mental health, due to the damaging losses of family, friends,

material possessions, nationality and identity that they have often suffered. [22] The UNHCR suggests that efforts to restore normal

patterns of life are particularly important for children, whose mental

health and psycho-social development is to a large extent dependent upon

the restoration of daily routines and activities, as well as the resumption

of educational, recreational and cultural activities.[23] See Background Paper 3: Mental Health

and Development.

The Inquiry welcomes

submissions on the appropriate steps to prevent disabilities amongst child

asylum seekers.

5. Assessment

of disability

As discussed in Background

Paper 4: Health and Nutrition, every child should undergo a comprehensive

medical examination and health care needs assessment on arrival by trained

health professionals. [24] Within such an assessment,

all children should be screened for physical and mental disabilities.

The medical assessment should seek to identify any physical or mental

condition requiring medical attention, including the effects of torture

and trauma, [25] which if left untreated could result

in mental disability. Physical conditions that might be assessed include

micronutrient deficiencies, illness, disease and absence of immunization

for preventable diseases. The health care needs of each child in immigration

detention should be regularly monitored, and preventive health programs

implemented where required. [26]

In addition to being

screened for physical and psychiatric disabilities, every child should

also be assessed upon arrival, and routinely screened, for developmental

delay, including delay in walking, poor visual fixation or uncertainty

about response to sound. Similarly, school-age children should be screened

for learning difficulties that may be due to hearing, vision or developmental

disabilities. If any of these are detected, the child should be referred

to a specialist immediately as the cause may be treatable. [27]

Care should be taken

to identify children who need immediate help to meet the requirements

of daily living. [28] This is particularly important

in the case of unaccompanied children who do not have family support and

assistance, and who may be unable or unwilling to seek assistance from

authorities.

It is important to

bear in mind that for cultural reasons, asylum seekers may not view minor

impairments as disabilities, or may be reluctant to bring disabilities

to public attention. [29] This is particularly the case

in relation to intellectual disability where early recognition is essential. [30]

The Inquiry welcomes

submissions on the appropriate procedures to assess disabilities amongst

child asylum seekers.

6. Accommodation

and intervention

Recognising

the special needs of a disabled child, assistance shall be designed

to ensure that the disabled child has effective access to and receives

education, training, health care services, rehabilitation services,

preparation for employment and recreation opportunities in a manner

conducive to the child's achieving the fullest possible social integration

and individual development, including his or her cultural and spiritual

development.

Article

23(3), Convention on the Rights of the Child.

In order to meet

its international obligations under the Convention, Australia must accommodate

the needs of all children with disabilities in immigration detention.[31] In doing so, detention centre authorities must ensure that children with

disabilities have access to all services and facilities within the detention

centre. This includes ensuring that the needs of children with physical

disabilities are taken into account in site planning and construction

of the centre.

Pursuant to its obligations

under Article 23(2) of the Convention, Australia must also ensure that

the right of every child with a disability to special care is fulfilled.

This may include providing children with disabilities with access to appropriate

health care, including specialist treatment where necessary, ensuring

that the child has access to rehabilitation facilities and providing physical

aids where required.

Rehabilitation and integration

The UNHCR has recommended

the implementation of two mutually reinforcing concepts, namely community-based

rehabilitation and integration. [32]

Community-based rehabilitation

According to the

community-based rehabilitation model, adult care-givers and peers of children

with disabilities are the primary participants in the care of children

with disabilities who require rehabilitation. For example, trained workers

should show families how to assist the rehabilitation of children with

disabilities, how to encourage the mobility of children with physical

handicaps and how to develop skills and social behaviour of children with

mental disabilities. As such, families with children with disabilities

may need extra support services within the immigration detention setting. [33]

Integration

the

needs of each and every individual are of equal importance all

resources must be employed in such a way as to ensure that every individual

has equal opportunity for participation.

Introduction,

UN Standard Rules on the Equalisation of Opportunities for Persons with

Disabilities 1993.

In keeping with Australia's

obligations under article 23(1) of the Convention, the UNHCR has recommended

that to the extent that it is possible, children with disabilities should

be served by the same services as other children in a community rather

than be physically segregated. [34] To this end, it

must be ensured that all children's facilities in immigration detention

are accessible to children with disabilities. This includes access to

information, and is particularly important in the case of unaccompanied

children.

The Inquiry welcomes

submissions on community-based rehabilitation and integration.

7. The

right to physical activity, play, education and development

Physical

activity, play and recreation

Persons

with disabilities participating in sports activities should have access

to instruction and training of the same quality as other participants.

Rule

11(4), UN Standard Rules on the Equalisation of Opportunities for Persons

with Disabilities 1993.

In order to ensure

the appropriate development [35] of children in immigration

detention centres and provide them with the highest attainable standard

of health [36], children should be provided with opportunities,

spaces, equipment and education that encourage and facilitate physical

activity and sport. [37] The UN Standard Rules on

the Equalisation of Opportunities for Persons with Disabilities (1993)

require States to ensure that children with disabilities "have equal

opportunities for recreation and sports". [38]

This means that there

must be adequate and appropriate spaces and equipment to facilitate play

and physical activity by children with disabilities in immigration detention.

For example, considerations that should be taken into account when designing

play spaces for younger children include security, ease of supervision,

heights, surfaces and textures, handrails, protrusions, paths and ramps,

acoustic conditions and special equipment that provides for a range of

physical abilities. [39]

Education and psychosocial

development

Australia is obliged

under article 23(1) of the Convention to facilitate children with disabilities'

active participation in the community. The rights of children with disabilities

under article 31 to rest, leisure and participation in artistic and cultural

life, as discussed in Background Paper

3: Mental Health and Development, should be recognised without

discrimination .[40] Authorities are also obliged to

ensure that children with disabilities have effective access to educational

and recreational opportunities in a manner conducive to their achieving

the fullest possible social integration and individual development, including

their cultural and spiritual development (article 23(3)).

The Committee on

the Rights of the Child has emphasised the importance of recognising the

right of children with disabilities to full inclusion in regular schools.

The Committee's Guidelines for Periodic Reports, which Australia should

follow in its reports to the Committee, specifically asks for information

on inclusion of children with disabilities in schools. [41] The UNHCR has recommended that teachers in refugee settings be encouraged

to include children with disabilities in their classes whenever possible,

with clear guidelines given to them on the physical needs of children

with various types of disabilities. [42] See also Background

Paper 6: Education.

The Inquiry welcomes

submissions on the rights of child asylum seekers with disabilities to

physical activity, play, recreation, education and psychosocial development.

8. Questions

for submissions

The following questions

may assist organisations and individuals in making submissions to the

Inquiry. Individuals or groups making a submission on child asylum seekers

and disability should also note the questions included in Background

Paper 3: Mental Health and Development and Background

Paper 4: Health and Nutrition.

How does Australia
support the health needs of detained child asylum seekers with disabilities?
How does Australia
prevent the development of any form of disability in children in immigration

detention?
How appropriate
are the health screening mechanisms for child asylum seekers with disabilities?

To what extent should they inform health service planning and delivery?
What in your
experience is the impact of detention on the well being and healthy

development of children with disabilities including their long term

development? Can you support your view with evidence?
Are facilities
for children with disabilities adequate? Are they adequate for infants,

young children and teenagers? Can you support your view with evidence?
To what extent
are the international standards on child asylum seekers with disabilities

met in Australia today? How are these standards reflected in the daily

programs in place in detention centres for children?
What are the
relevant legislative, administrative and other measures in place to

ensure child asylum seekers with disabilities receive the protection

and care they need? Where are the gaps?
How is the principle
of non-discrimination approached? Are children with disabilities treated

equally to other children in immigration detention?

ENDNOTES:

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

International instruments and guidelines such as the United Nations

Rules for the Protection of Juveniles Deprived of their Liberty (1990)

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

Geneva (UNHCR Guidelines on Protection and Care). These standards are

outlined in greater detail in Background

Paper 1: Introduction.

Committee on Economic, Social and Cultural Rights (CESCR), General

Comment 5: Persons with disabilities, 9 Dec 1994, para 32, referring

to article 10(3) of the International Covenant on Economic, Social

and Cultural Rights.

Article 2, Convention.

Article 23(1), Convention.

For example, The Standard Rules on the Equalization of Opportunities

for Persons with Disabilities, adopted by Resolution of the United

Nations General Assembly on 20 December 1993 (A/48/627); UN Declaration

on the Rights of Mentally Retarded Persons (1971),UN Declaration

on the Rights of Disabled Persons (1975) (the latter two are scheduled

to the Human Rights and Equal Opportunity Commission Act 1986 (Cth)).

The Standard Rules have been adopted by a large number of States and signify

a strong moral and political commitment on behalf of States to take action

for the equalisation of opportunities for people with disabilities. The

Rules offer an instrument for policy-making and action to persons with

disabilities and their organisations. In their Introduction, the Standard

Rules state that "special attention may need to be directed towards

groups such as women, children, the elderly, the poor, migrant workers,

persons with dual or multiple disabilities, indigenous people and ethnic

minorities. In addition, there are a large number of refugees with disabilities

who have special needs requiring attention."

Articles 23 and 24, Convention.

Section 14, Disability Discrimination Act 1992 (Cth).

Section 52, Disability Discrimination Act 1992 (Cth).

World Health Organisation (1981), Disability Prevention and Rehabilitation cited in UNHCR Guidelines on Protection and Care, ch6.

UNHCR Guidelines on Protection and Care, ch6.

UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach,

Geneva.

14 Plan of Action for Implementing the World Declaration on the Survival,

Protection and Development of Children in the 1990s, UNICEF, 1990.

See http://www.unicef.org/wsc/plan.htm#Child.

15 Plan of Action for Implementing the World Declaration on the Survival,

Protection and Development of Children in the 1990s, UNICEF, 1990.

See http://www.unicef.org/wsc/plan.htm#Food.

This is required under article 24 of the Convention. These tests are routinely

performed, for example, on all babies born in New South Wales (where parental

consent is obtained). NSW Department of Health (1998), Newborn screening:

Test to protect your baby, 8 August 2001.

The Royal College of Paediatrics and Child Health and the King's Fund

(1999), The Health of Refugee Children: Guidelines for Paediatricians,

London.

Under Article 24(2)(e) of the Convention, Australia is obliged "to

ensure that all segments of society, in particular parents and children,

are informed, have access to education and are supported in the use of

basic knowledge of the prevention of accidents."

For an Australian model of best practice for accident prevention, see

the Child Accident Prevention Foundation of Australia (www.kidsafe.com.au).

UNHCR Guidelines on Protection and Care, ch5.

21 Plan of Action for Implementing the World Declaration on the Survival,

Protection and Development of Children in the 1990s, UNICEF, 1990.

See http://www.unicef.org/wsc/plan.htm#Child.

UNHCR, Assisting Disabled Refugees: A Community-based Approach.

The purpose of the examination must be clearly explained to the child

and their parents in terms they can understand, and parental/child consent

should be sought. It should be explained that the primary purpose of the

examination is the protection of public health, and the child and parents

should be made to feel as much in control of the process as possible.

See the Royal College of Paediatrics and Child Health and the King's Fund,

The Health of Refugee Children: Guidelines for Paediatricians,

p9.

Principle 24, Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment (1988); Rule 50, United

Nations Rules for the Protection of Juveniles Deprived of their Liberty;

Guideline 10, UNHCR Guidelines on applicable Criteria and Standards

relating to the Detention of Asylum-Seekers (1999) (UNHCR Guidelines

on Detention).

See Background Paper 4: Health and Nutrition for discussion of the requirements of article 24, Convention and article

12, International Covenant on Economic, Social and Cultural Rights.

The Royal College of Paediatrics and Child Health and the King's Fund, The Health of Refugee Children: Guidelines for Paediatricians,

p10.

UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach,

p32.

UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach,

p33.

UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach,

p 33.

See Standard Rules on Equalization of Opportunities for Persons with

Disabilities, especially Rules 2-12 inclusive.

UNHCR Guidelines on Protection and Care, ch6.

UNHCR Guidelines on Protection and Care.

Australia is obliged to do so under article 6, Convention.

As required under article 24, Convention.

Rule 21, United Nations Standard Minimum Rules for the Treatment of

Prisoners.

Rule 11, Standard Rules on the Equalization of Opportunities for Persons

with Disabilities.

Standard Rules on the Equalization of Opportunities for Persons with

Disabilities.

Article 2, Convention.

Committee on the Rights of the Child, General Guidelines Regarding

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

under Article 44, paragraph 1(a), of the Convention, adopted by the

Committee on 11 October 1996, para 92.

UNHCR Guidelines on Protection and Care, ch6.

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National Inquiry into Children in Immigration Detention - Background Paper 5: Prevention, Treatment and Accommodation of Disabilities