10 Unaccompanied children in detention

• 10.1 Impact of detention on emotional and mental wellbeing
• 10.2 Self-harm by unaccompanied children
• 10.3 Pontville Detention Centre
• 10.4 Forcible transfer of children to Bravo Compound at Christmas Island
• 10.5 Guardianship and welfare
• 10.6 Findings specific to unaccompanied children

I feel like I’m in jail, no one here to help us. It’s just me and God.

(17 year old unaccompanied child, Christmas Island detention centre, 16 July 2014)

Drawing by primary school aged girl, Christmas Island, 2014.

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I was particularly distressed by the utter despair of the unaccompanied boys I spoke with on Christmas Island - despair underpinned by past, present, and anticipatory trauma. Young men, in the prime of their lives, who face the intolerable realisation that any hope of a better life had almost evaporated...^[433]

In March 2014 Australian detention centres held 56 children who had travelled to Australia without parents or a legal guardian.^[434] These children, aged between 13 and 17 years of age, are known as ‘unaccompanied children’ or ‘unaccompanied minors’. Inquiry staff interviewed 49 of the unaccompanied children in detention.

The majority of the unaccompanied children are from Afghanistan, followed by children from Somalia. Other children originated from Iran, Iraq, Lebanon, Myanmar, Pakistan, Sri Lanka, and Vietnam. Nine unaccompanied children were stateless, most likely of Rohingya ethnic origin and originating from Myanmar.^[435] The percentages of unaccompanied children from the different countries of origin are detailed at Chart 48.

Chart 48: Country of origin or citizenship status of 56 unaccompanied children in detention, 31 March 2014

Chart 48 description: Country of origin or citizenship status of 56 unaccompanied children in detention, 31 March 2014. Afghanistan 32%, Stateless 16%, Somalia 14%, Iran 9%, Vietnam 7%, Iraq 5%, Sri Lanka 5%, Lebanon 4%, Pakistan 4%, Myanmar 4%.

Source: Australian Human Rights Commission analysis of data from Department of Immigration and Border Protection^[436]

The average length of time that unaccompanied children had been detained in March 2014 was 217 days.^[437]

Over the past five years there has been a surge in children arriving in Australia without parents or a legal guardian. On 1 January 2009 there were eight unaccompanied children in detention; by 1 January 2014 this number had risen to 575. Four hundred and ninety-two of these unaccompanied children were in Community Detention.^[438] This increase in children fleeing their home countries without parents reflects a worldwide trend. According to the United Nations High Commissioner for Refugees, in 2013 more than 25,300 asylum applications were lodged by unaccompanied or separated children. This is the highest number on record since the High Commissioner started recording such data in 2006.^[439]

The acute vulnerability of unaccompanied children has been widely documented. As the Australian Churches Refugee Taskforce stated in their report Protecting the Lonely Children:

Regardless of their legal status or method of entry to Australia, refugee and asylum seeker children are among ‘society’s most vulnerable’. An extensive body of research and literature has clearly established the unique developmental challenges that frequently manifest within this cohort.

Unaccompanied children are a particularly vulnerable sub-group. Separated from their families, many have experienced lengthy periods without safety or stability in transit and detention, be that overseas or in Australia, have histories of trauma and as a result many have serious and complex mental and physical health needs.^[440]

Clinical Psychologist Guy Coffey states that: ‘[a] high proportion of unaccompanied minors have strikingly high levels of trauma, loss and material deprivation in their histories’.^[441]

The United Nations High Commissioner for Refugees reports that unaccompanied children should not be detained, and that detention cannot be justified on the basis of their migration status.^[442] Despite their vulnerabilities, however, unaccompanied children are detained by the Australian Government as a measure of first, rather than last, resort.

10.1 Impact of detention on emotional and mental wellbeing

I don’t care about a visa any more. I want to finish everything. My life is very difficult. I don’t understand why I am here. I am beginning to feel crazy; my situation is very bad and getting worse. I am alone, no family, nobody here. I’ve been here 15 months, I need to do something.

(17 year old unaccompanied child, Melbourne Detention Centre, 7 May 2014)

The detention environment has particular impacts on unaccompanied children who have to process and recover from past traumatic experiences without the benefit of any parental support. Their sense of isolation and distress is compounded by the daily challenges of the detention environment.



When asked to describe detention in three words, 58 percent of unaccompanied children described it as ‘crazy-making’ and ‘depressing’ at Chart 49.

Chart 49: Responses by unaccompanied children to the question: Use three words to describe the experience of detention

Chart 49 description: Responses by unaccompanied children to the question: Use three words to describe the experience of detention. Sad/unhappy/depressing/mentally affecting/crazy making 58%, Nothing to do/boring/watching time/frustrating/no school 20%, Hopeless 20%, Awful/horrible/bad/unsettling/don't like it 18%, Jail/prison/captivity 18%, No freedom/want to leave/restricted/powerless 15%, Unsafe/worrying/scary/bullying/frightening/fighting 13%, Heart ache/painful 10%, Can't sleep 5%, Exhausting 5%, Harsh/difficult 5%, Frustrating 3%, Shameful/inhuman/no respect 3%, Not fair/unjust/cruel 3%, Peace/safe from harm 3%, Death/want to die 3%, Other 13%.

Australian Human Rights Commission, Inquiry Questionnaire for Children and Parents in Detention, Australia, 2014, 40 respondents (Note: respondents can provide multiple responses)

Professor of Developmental Psychiatry, Louise Newman, reported to the Inquiry that unaccompanied children suffer high rates of mental health disorders.^[443] According to Professor Newman, many unaccompanied children suffer ‘from ongoing fear and anxiety about the welfare of their families and communities ... that sense of exile, sense of alienation, contributes to their vulnerability and depression’.^[444]



A former volunteer in the detention facilities on Christmas Island and in Darwin submitted the following description of unaccompanied children to this Inquiry:

[They] were young, alone, afraid and deeply distressed. I noted them attempt to act as adults to cope without the appropriate time, age and circumstance to transition into this role. I believe that their childhood was lost in this environment and they will never be able to truly recover.^[445]

When Inquiry staff asked unaccompanied children why they came to Australia they were most likely to respond that they feared for their life, at 30 percent of responses. The second most reported reason for fleeing their home country was war. The reasons for unaccompanied children coming to Australia are set out in Chart 50.

Chart 50: Responses by unaccompanied children to the question: Why did you come to Australia?

Chart 50 description: Responses by unaccompanied children to the question: Why did you come to Australia? Fear for life/living in danger/threats/not safe/terrorism 30%, War 15%, Persecution by government 13%, Family member killed 10%, Religious persecution 6%, Stateless/born in a country that would not accept me/no future 6%, Better life in Australia 6%, Torture 3%, Followed aunt/uncle who came to Australia 2%, Family violence 2%, Unable to work 2%, Kidnapping of family member 2%, Problems living in country 1%, No human rights 1%, No freedom 1%.

Australian Human Rights Commission, Inquiry Questionnaire for Children and Parents in Detention, Australia 2014, 47 respondents



It is clear that being held in detention places an additional burden on these young people, who are already affected by their past experiences. When Inquiry staff asked whether their emotional and mental health had been affected since being in detention, every one of the 42 respondents answered yes.^[446] The detailed explanations of the mental health impacts on unaccompanied children are shown at Chart 51.

Chart 51: Responses by unaccompanied children to the question: What are the emotional and mental health impacts on you?

Chart 51 description: Responses by unaccompanied children to the question: What are the emotional and mental health impacts on you? Always worried 19%, Not able to sleep well 17%, Restlessness/agitated 14%, Going crazy 9%, Always sad/crying 7%, Clinging/anxious 5%, Headaches 5%, Nightmares 3%, Not eating properly/weight loss 3%, Can't provide for self 2%, Attempted suicide 2%, Self-harming 2%, Frightened to be alone 2%, Bed wetting/incontinence 2%, No support 2%, Feeling monitored 2%, Returned from community detention 2%, Separation from family member 2%, Discrimination 2%

Australian Human Rights Commission, Inquiry Questionnaire for Children and Parents in Detention, Australia 2014, 37 respondents (Note: respondents can provide multiple responses)



When asked how they felt in detention, 48 percent of the unaccompanied children said that they felt depressed all of the time. Forty-five percent said that they felt hopeless all of the time. Chart 52 shows the responses to how often they felt depressed.

Chart 52: Responses by unaccompanied children to the question: How often do you feel depressed?

Chart 52 description: Responses by unaccompanied children to the question: How often do you feel depressed? All of the time 48%, Most of the time 21%, Some of the time 27%, A little of the time 3%, None of the time 0%.

Australian Human Rights Commission, Inquiry Questionnaire for Children and Parents in Detention, Australia 2014, 33 respondents

Chart 53 shows the responses to how often the unaccompanied children reported that they felt hopeless.

Chart 53: Responses by unaccompanied children to the question: How often do you feel hopeless?

Chart 53 description: Responses by unaccompanied children to the question: How often do you feel hopeless? All of the time 45%, Most of the time 29%, Some of the time 10%, A little of the time 6%, None of the time 10%.

Australian Human Rights Commission, Inquiry Questionnaire for Children and Parents in Detention, Australia 2014, 31 respondents

When Inquiry staff visited the detention facilities on Christmas Island in March 2014 they met with most of the unaccompanied children detained there. The majority of them had been detained for six to eight months.

The child psychiatrist who assisted the Inquiry on visits to the Christmas Island and Darwin detention centres recorded the mental state of unaccompanied children she met:

most [children] reported fear, loneliness and boredom, [one] boy said ‘I am crying all night in my bed. I can’t sleep’. Another said, ‘Even though we go to English class sometimes, I can’t concentrate or remember’.

Many boys had symptoms consistent with major depression, PTSD [Post-Traumatic Stress Disorder] and generalised anxiety disorder. One or two appeared potentially psychotic with confused and bizarre mood or presentation. There is an intense shared anxiety about transfer to the adult compound or to Manus Island, and of concern is a sense [of] loss for peers who have been ‘extracted’ and transferred. For some of the boys, this anxiety and despair includes suicidal ideation. Some told us they would rather die than be transferred to Manus but asked us not to tell anyone in case they were moved in to [the Psychological Support Program] and away from their friends. ...

They asked us: ‘Who can I speak to?’; ‘Who looks after me?’ None had spoken to a lawyer or were aware they might have a right to do so.

Young people who don’t have other family with them, who often are orphans develop strong bonds particularly within the same language groups. At times the ‘extraction’ of boys deemed to have turned 18, had meant that one young man no longer had anyone else who spoke his language. There is a very pervasive anxiety about being transferred, and about that happening without warning, which contributes to disturbed sleep.^[447]

In some instances, unaccompanied children have been sent to Manus Island because they were assessed as being 18 when in fact they are younger. In these situations, unaccompanied children are returned to mainland detention centres, usually Christmas Island. One unaccompanied child who had been detained on Manus Island told the Inquiry team:

I witnessed horrible things, people throwing chairs, protesting ... those who had self-harmed were taken to [a] place...

(Unaccompanied child sent to Manus Island, Papua New Guinea, after an incorrect age assessment)

10.2 Self-harm by unaccompanied children

In July 2014, the Commission received the case files of 37 unaccompanied children who were either in detention or had been in detention.^[448] The case files revealed some alarming details about the nature of self-harm and suicide attempts amongst this group. Seven of the 37 children (19 percent) had engaged in actual self-harm in detention and nine children (24 percent) had threatened self-harm.



The Incident Reporting Guidelines require Serco to report to the Department of Immigration and Border Protection using two categories of self-harm: ‘threatened’ or ‘actual’ self-harm.^[449] There is no category for attempted suicide. The Commission is concerned that these descriptions do not adequately reflect the severity of some incidents. It is only through reading all notes associated with each incident, especially clinical reports, that any light is shed on what actually occurs when a child self-harms.



Four of the seven unaccompanied children who engaged in what was recorded as ‘actual self-harm’ by Serco, were attempting suicide according to clinical records. The suicide attempt of one 16 year old unaccompanied Somali boy on Christmas Island was very near fatal. The description in the incident report reads:

On Saturday [date] a nurse called out to me because at approx 03:10AM client [number] had hung himself in the toilet with the door locked. ... I held him up while the nurse raced to get scissors to cut him down. We got him down and layed [sic] him on the bed and the nurse and I started chest compressions and after approx. 1 minute he started breathing again.

The 16 year old boy had been in detention for less than one month. He had a history of trauma prior to coming to Australia. In May 2014 the Department of Immigration and Border Protection referred the boy to the Minister for Immigration and Border Protection for a Community Detention placement. In the referral to the Minister it was noted that the boy was diagnosed with mixed depression, anxiety disorder, Post-Traumatic Stress Disorder and bipolar disorder. The referral submission then stated that the boy ‘attempted self-harm while in held detention’.



No detail appears to have been provided in the referral submission to the Minister about the nature of the incident or the severity of the behaviour. This possibly accounts for why the Minister declined the recommendation that the boy be released into Community Detention. The Minister wrote that it was ‘not clear to me why he cannot be transferred to Nauru’. As of July 2014 this teenager remains in detention on mainland Australia.



The six case studies that are contained in this chapter demonstrate how detention can cause mental health deterioration in unaccompanied children including self-harm and suicide attempts.

 

 

10.3 Pontville Detention Centre

In 2013, the majority of unaccompanied children detained in Australia were held at Pontville Detention Centre in Tasmania. In July 2013 there were 254 unaccompanied children detained there.^[457] Between 1 January 2013 and 14 August 2013 there were reports of 50 incidents of actual self-harm and 49 incidents of threatened self-harm at Pontville.^[458]

The Commission visited Pontville in May 2013 and raised concerns with the Department about its prison-like nature and high fences. The Commission expressed concern about the level of despair and anxiety expressed by the unaccompanied children who had been held there for prolonged periods.

In September 2013 the Australian Government transferred a significant number of unaccompanied children from Pontville into Community Detention. On 21 September 2013, the Department of Immigration and Border Protection reported that there were no unaccompanied children detained at Pontville. Pontville was closed in February 2014.^[459]

10.4 Forcible transfer of children to Bravo Compound at Christmas Island

Under the Convention on the Rights of the Child, children in detention should be treated with humanity and respect, and in a manner which takes into account the needs of persons his or her age (article 37(c)).

When the Inquiry team visited Christmas Island in July 2014, a number of unaccompanied children complained that the Serco officers had used force against them when they moved them from a compound known as ‘Charlie’ to another compound known as ‘Bravo’ on 24 March 2014. The following is a description of what happened during this move.

On 21 March 2014, in response to safety concerns arising from an incoming tropical cyclone, all families and children were transferred from the family detention centres at Christmas Island to the single men’s detention centre at North West Point. The single men’s compound at North West Point is a large high security complex; purpose-built to hold single men on Christmas Island.

The cyclone caused significant damage to two of these family detention centres and they were deemed uninhabitable until repairs could be made. Extra space was needed for families and the Department decided that as there was space at the Charlie Compound, this was the best place to move families. This necessitated the move of the 38 unaccompanied children from ‘Charlie’ Compound to the adjacent ‘Bravo’ Compound.

On 23 March 2014, the evening before the scheduled transfer, the children were informed of the planned move by an officer of MAXimus Solutions – the care and welfare provider for unaccompanied children.

MAXimus sent an email to the Department’s Regional Manager, the children’s delegated guardian, and the Phosphate Hill Centre Manager indicating that the children would be refusing to leave Charlie compound. In the email, MAXimus said that it ‘wanted to alert stakeholders to this so we can minimise any negative behaviours tomorrow’.

(a) The incident

On 24 March 2014, the day of the transfer, the children reiterated that they did not want to move. According to Serco officers the relocation was urgent because families at North West Point were frustrated and ‘were involved in a number of incidents including peaceful demonstrations and a minor disturbance’.

At 1:15pm the children were officially notified that they were to pack their belongings and move to Bravo. According to Serco, the children refused and ‘showed no signs of conceding their position’.

At 1.30pm, the Commander of the Emergency Response Team arrived on site at the request of the Serco Centre Manager to provide a briefing to him on the use of force.

Written authorisation was sought for the use of force by way of an ‘enhanced escort position’, if children would not move voluntarily. Permission for the use of force was given by the Department’s Regional Manager on Christmas Island. Prior to force being used, there was further ‘verbal negotiation by both Serco and MAXimus staff’ until 3.00pm.

Between 3:00pm and 3.15pm the Emergency Response Team entered Charlie Compound and facilitated the transfer of the children to Bravo Compound.

The Inquiry has viewed hand-held camera footage of the transfer and reviewed the Serco incident report, as well as an investigation report by an external consultant engaged by Serco. The Commission has also seen a feedback report from MAXimus.

According to the Serco incident report, three children allegedly ‘became aggressive with incidents of biting, spitting and (possible) attempts to escape’ when they were encouraged to move. As a result the Emergency Response Team used restraint techniques including wrist locks and arm bars to forcibly transfer those children. One child had his head held by one officer while wrist locks and arm bars were being used by two other officers.

The footage viewed by the Inquiry depicts a distressing scene. The three children are seen screaming and resisting Serco officers as they are being forcibly moved. There is no evidence of biting or spitting during these moves.

One of the children is seen being forcibly removed from his bedroom by two Serco officers. The officers are seen struggling with the child to remove him from the room. Immediately after passing through the doorframe the child starts to scream ‘my head’ or ‘my hand’ multiple times. The Inquiry is concerned that in response to the child’s screaming one of the Serco officers using force against the child yells at him four times to ‘shut up’. The Commission considers this to be an inappropriate response by the Serco officer to a child in distress.

(b) Decision to approve use of force

The Department’s Detention Service Manual specifies that all use of force ‘should be proportionate to the situation, objectively justifiable and only used as a measure of last resort. ... In the first instance, staff should seek to achieve the desired objective, whenever possible, by de-escalation techniques such as discussion, negotiation, or verbal persuasion’.^[460]

The Inquiry acknowledges the logistical challenges caused by the tropical cyclone on 23 March 2014 and the need to remove families from North West Point. Real questions remain, however, about the degree of urgency to the move, the speed with which a decision to use force was made, and whether the decision to approve the use of force was taken only as a measure of last resort, particularly in light of available alternatives.

The Managing Director of MAXimus, Ms Deborah Homewood, answered questions about the incident during the Inquiry’s public hearing in Canberra on 22 August 2014. One alternative identified by Ms Homewood was to move the unaccompanied children directly from North West Point to Bravo Compound, rather than returning them to Charlie Compound first. From there, they could have been individually taken back to Charlie Compound to collect their belongings.^[461]

Further, it appears that there was a range of de-escalation techniques such as discussion, negotiation or verbal persuasion that could have been used more effectively prior to an authorisation for the use of force being sought.

The independent reviewer of the incident, engaged by Serco, was not asked to advise about the circumstances leading to the approval for the use of force. It appears that the Serco decision to seek approval from the Department was made quickly - within 15 minutes of the children being formally asked to move.

While there was some negotiation after authorisation was sought, the evidence before the Inquiry, particularly that of Ms Homewood, suggests that this negotiation could have been better handled. In particular, it appears that:

• MAXimus, the care and welfare provider for the unaccompanied children, was not consulted before an authorisation was sought to use force

• No interpreter was used during the period of negotiation with the children at Charlie Compound after they had been asked to move, while interpreters were available the evening before when the children were at North West Point

• No psychologist (or other professional mental health worker who was familiar with the children) was present at the time of transfer

• No trained negotiator was engaged

While some of the children have a good grasp of English, it is imperative that interpreters are made available for effective communication in challenging situations. Without interpreters, it is unclear how the concerns of the children were adequately addressed when the boys were told of the decision to move them to Bravo Compound.

It is also unclear on the evidence whether any regard was given to the age of the children, their particular vulnerabilities and their mental health histories.

The post-incident reports do not discuss the reasons why the children did not want to relocate to Bravo Compound. Some children told the Inquiry that they preferred the attached bathrooms at Charlie Compound and did not like the communal bathrooms at Bravo Compound. The Inquiry has received anecdotal evidence that there are incidents of bedwetting amongst unaccompanied children. Some children told the Inquiry that they do not like the high fences at Bravo Compound and that they feel like they are in a prison.^[462]

Following the transfer, MAXimus provided a feedback report to the Department. In the report MAXimus expressed concern about the lack of interpreters used during the negotiations and the lack of communication to MAXimus, particularly regarding the use of force.

Force should only be used against children as a measure of last resort. All other alternatives to the use of force should be explored. Evidence indicates that such alternatives were not adequately considered. Accordingly, the Commission finds that the decision to approve the use force to transfer unaccompanied children from Charlie Compound to Bravo Compound on 24 March 2014 was in violation of article 37(c) of the Convention on the Rights of the Child. The Commission finds that the children were not treated with humanity and respect and in a manner which takes into account their vulnerability and age.

(c) Use of force

Serco advised the Commission that they used two handheld cameras to record the transfer. Of those two cameras, one was not working, and the footage from the other was of poor quality. There was no closed-circuit television coverage of the compound areas at ‘Charlie Compound’ where the children had been living. The footage viewed by Commission staff is seven minutes and 10 seconds long. It does not show any discussion or any incidents of biting, spitting or resistance by the boys before they were forcibly moved to Bravo Compound. Based on the post-incident review by Serco, it cannot be said to be a complete record. The Inquiry notes with concern that there are gaps in the footage where nothing of relevance is captured.

The footage was described by the external consultant as follows:

The video footage is of very poor quality and it is apparent that the camera operator/s had very limited experience in the use of video equipment. This makes analysis difficult as the [unaccompanied children] are not always in frame for the entire [use of force] incident/s or the video footage commences after the [use of force] has already commenced.

Serco states that the restraint techniques were only used ‘where all other attempts at verbal de-escalation techniques failed’. The head control technique was said to be used to prevent biting or spitting.

The Managing Director of MAXimus, Ms Deborah Homewood, told the Inquiry that she was concerned about the use of force:^[463]

I think force was over-used. Yes I do. I don’t think it was necessary. I think that the whole thing could have been handled very differently from the start.

There is insufficient evidence before the Inquiry to determine whether the use of force by the Serco officers was more than strictly necessary.

Images of children being forcibly moved from Charlie Compound to Bravo Compound taken from video footage provided by the Department of Immigration and Border Protection

 

 

 

 

 

10.5 Guardianship and welfare

Australia has obligations to ensure that unaccompanied children seeking asylum receive special protection and assistance.^[464] Article 20 of the Convention on the Rights of the Child requires Australia to ‘ensure alternative care’ for these children.

An important element of the care of unaccompanied children is effective guardianship.^[465] In the absence of a child’s parents, the legal guardian of an unaccompanied child has the ‘primary responsibility for the upbringing and development of the child’, and is under an obligation under the Convention on the Rights of the Child to act in the best interests of the child.^[466]

The United Nations Committee on the Rights of the Child has emphasised that, in order to ensure proper representation of an unaccompanied child’s best interests, it is important:

1. that his or her guardian ‘have the necessary expertise in the field of childcare, so as to ensure that the interests of the child are safeguarded and that the child’s legal, social, health, psychological, material and educational needs are appropriately covered by, inter alia, the guardian acting as a link between the child and existing specialist agencies/individuals who provide the continuum of care required by the child’; and

2. that ‘[a]gencies or individuals whose interests could potentially be in conflict with those of the child’s should not be eligible for guardianship’.^[467]

The Commission considers that, in ensuring a child’s best interest, a guardian would advocate:

• that the child not be held in detention
• for the shortest possible period of detention in conditions appropriate for children
• for the adequacy and appropriateness of accommodation, education, language support and access to health services.^[468]

(a) Concerns about guardians’ lack of expertise

Under the Immigration (Guardianship of Children) Act 1946 (Cth), it is the Minister for Immigration and Border Protection who is also appointed the legal guardian of certain ‘non-citizen’ unaccompanied children. In this role the Minister has the same ‘rights, powers, duties, obligations and liabilities as a natural guardian of the child’.^[469] The responsibilities of a guardian under section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth):

include the responsibilities which are the subject of the Convention [on the Rights of the Child].  They are responsibilities concerned with according fundamental human rights to children.^[470]

Under the current arrangements, the Minister has delegated his guardianship responsibilities to nominated Departmental officers at Executive Level 2. They are either Detention Centre or Regional Managers, or occupy higher positions within the Department.^[471] The Department states that:

The delegation has been made at this level as the delegated guardian is required to make important decisions which relate to the care and welfare of children, such as decisions about medical treatment or education.^[472]

The Commission notes that the nominated Department officers are not required to have specific qualifications or experience relating to children.^[473] The Commission has previously raised concern about the ability of the guardians to monitor properly and ensure the appropriate care and progress of an unaccompanied child if they do not have appropriate qualifications or specific child welfare experience.^[474]

The Commission notes that there has been a positive development in this regard. The Department states:

At the time of the Commission’s last report, there was no specific services provider to provide care and support to UAMs [Unaccompanied children]. Rather, UAMs were allocated a mentor from the adult population. Since 2009, when [Illegal Maritime Arrivals] began to increase, the Department has engaged a specialist pastoral care service for UAMs, to ensure that this particularly vulnerable group has a separate and independent source of support. Welfare officers are involved in the development of programmes, activities and excursions. They also provide oversight and support to ensure that children attend school, complete homework, and observe a normal and healthy daily routine.^[475]

The Department currently contracts MAXimus Solutions to provide these services, and has stated that all MAXimus Solutions Client Support Workers are required to hold a certain level of qualification in social, community or child welfare.^[476]

The Commission welcomes this development, noting that it would be entirely inappropriate for Serco officers to be undertaking this role. However, the Commission remains concerned that as the nominated guardians, Departmental officers are not sufficiently qualified to make important decisions relating to the care and welfare of vulnerable children.^[477]

(b) Concerns about guardians’ conflict of interest

The Commission has repeatedly stated that the effectiveness of the Minister’s role as guardian of unaccompanied children conflicts with his additional responsibilities for administering the immigration detention regime under the Migration Act and for making decisions about granting visas, removals, and transfers to Nauru and Manus Island. Given these multiples roles, it is difficult for the Minister, or his delegate, to make the best interests of the child the primary consideration.

In its submission to this Inquiry, the Department provided the following explanation about ‘actual’ conflict of interest:

The Government’s view is that this is a perceived conflict of interest rather than an actual conflict of interest because exercise of the powers is generally separated and because steps, such as the provision of independent advice or assistance to [Immigration (Guardianship of Children) Act] minors, are taken to manage the possibility of a conflict between the Minister’s different roles.^[478]

The Commission respectfully disagrees with the Government’s position that the current arrangements for the guardianship and support of unaccompanied children avoid any actual conflict of interest.



In the event of any conflict between guardianship obligations and migration policies, the Minister and the delegated guardians are required to give priority to their roles under the Migration Act. In August 2012 the Immigration (Guardianship of Children) Act 1946 (Cth) was amended to make clear that the Minister or his delegated guardians can only exercise ‘the same rights, powers, duties, obligations and liabilities as a natural guardian’ of an unaccompanied child in immigration detention to the extent that those duties do not affect the performance or exercise of any function, duty or power under the migration law.^[479]



In some instances, the law or the policies relating to immigration detention are in direct conflict with the best interests of the child. For example, there was no formal education available for children on Christmas Island in the period from July 2013 to July 2014. However, the Government policy was that unaccompanied children who arrived in Australia after 19 July 2013 were to be held in detention on Christmas Island.



It would have been difficult for the relevant delegated guardian to advocate effectively for these children to be sent to the Australian mainland to attend school when Government policy was (and is) that these children must be detained on Christmas Island. The constraints on the ability of Departmental staff to be effective guardians are illustrated by the comments of one delegated guardian:

I have a dual role but I do not see any conflict. We are bound by the policy ... I act in their best interests and advocate where I can ... I worry about there being no education or meaningful activities.^[480]

The Committee on the Rights of the Child states that the potential for conflict in the roles of those appointed to be guardians of unaccompanied children should be sufficient to disqualify them from assuming the guardianship role. The Commission agrees with the principle set out in a University of New South Wales submission to the Inquiry:

A person discharging duties as a guardian should not discharge any other statutory duties in relation to a child for whom they are providing assistance.^[481]

(c) Lack of independent advocate for unaccompanied children

Unaccompanied children in detention do not have an independent advocate. MAXimus Solutions workers who are employed as Independent Observers can only play a limited role in terms of protecting the best interests of unaccompanied children. The Department makes clear that ‘[t]he Independent Observer has no casework, legal advocacy, or investigative responsibilities and cannot act as a qualified interpreter or advocate on behalf of an unaccompanied minor’.^[482]

The Department describes the role of the Independent Observers in these terms:

to ensure that the treatment of unaccompanied minors during migration procedures is fair, appropriate and reasonable, and to provide support to unaccompanied minors in immigration detention to ensure their physical and emotional wellbeing. The Independent Observer builds rapport with the child so that they can more effectively assist and reassure them while their immigration status is being resolved.

It is policy that an Independent Observer should be present whenever the Department or other Government agency interviews an unaccompanied minor.^[483]

The impact that the lack of an independent advocate for unaccompanied children has is illustrated by one unaccompanied boy’s experience of his age assessment interview.

10.6 Findings specific to unaccompanied children

Unaccompanied children require higher levels of emotional and social support because they do not have a parent in the detention environment. Detention is not a place where these children can develop the resiliencies that they will need for adult life.

There are causal links between detention, mental health deterioration and self-harm in unaccompanied children.

The detention environment poses unacceptable risks of harm to these vulnerable children.

Detention is not a place where unaccompanied children are able to recover from past trauma. 

As their legal guardian, the Minister for Immigration and Border Protection has failed to act in the best interests of unaccompanied children by not releasing unaccompanied children into community alternatives.

The Minister cannot be an effective guardian for unaccompanied children as he has conflicting roles as both Minister responsible for immigration detention and as legal guardian.

The decision of the Commonwealth to approve the use of force to transfer unaccompanied children from Charlie Compound to Bravo Compound on 24 March 2014 meant that children were not treated with humanity and respect and in a manner which took into account their vulnerability and their age.

As all of the unaccompanied children in detention are teenagers, the finding in chapter 9 that at various times teenagers were not in a position to fully enjoy the rights in articles 6(2), 19(1), 24(1), 27(1) and 37(c) of the Convention on the Rights of the Child applies to the unaccompanied children discussed in this chapter.

In addition the failure of the Commonwealth to remove unaccompanied children from detention environments which inhibit recovery from past trauma is a breach of the Convention on the Rights of the Child, article:

39: 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.

The Committee on the Rights of the Child has explained that the right in article 39 of the Convention is connected to the right in article 24(1) to health. The Committee states that in ensuring the access of unaccompanied children to health care:

States must assess and address the particular plight and vulnerabilities of such children. They should, in particular, take into account the fact that unaccompanied children have undergone separation from family members and have also, to varying degrees, experienced loss, trauma, disruption and violence. Many such children, in particular those who are refugees, have further experienced pervasive violence and the stress associated with a country afflicted by war. This may have created deep-rooted feelings of helplessness and undermined a child’s trust in others. ...The profound trauma experienced by many affected children calls for special sensitivity and attention in their care and rehabilitation. (General Comment No 6, paragraph 47).

The particular vulnerabilities of unaccompanied children cannot be addressed in the detention environment, which exacerbates the effects of previous trauma, rather than fostering the health, self-respect and dignity of unaccompanied children.

The failure of the Minister for Immigration and Border Protection to release unaccompanied children from detention breaches the Convention on the Rights of the Child, articles 3(1) and

18(1) ...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.

Current guardianship arrangements do not afford unaccompanied children special protection and assistance as required by the Convention on the Rights of the Child. This breaches article:

20(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.

20(2): States Parties shall in accordance with their national laws ensure alternative care for such a child.

The failure of the Commonwealth to appoint an independent guardian for unaccompanied children in immigration detention breaches the Convention on the Rights of the Child, article 20(1).

For the reasons set out in this chapter, the Minister for Immigration and Border Protection does not meet the criteria set out by the Committee on the Rights of the Child (in para 33 of General Comment No 6) to effectively perform the role of guardian for unaccompanied children. Specifically, the conflict between his obligations as guardian and his role and functions as Minister under the Migration Act, and the lack of expertise in the field of childcare on the part of the Minister or those within the Department to whom he delegates his guardianship responsibilities, render the Minister an inappropriate and ineffective guardian.

The decision of the Commonwealth to approve the use of force to transfer unaccompanied children from Charlie Compound to Bravo Compound on 24 March 2014 breaches article 37(c) of the Convention on the Rights of the Child,.

Force should only be used against children as a measure of last resort. All other alternatives to the use of force should be explored. Further, force should be used only when the child poses an imminent threat of injury to him or herself or others (Committee on the Rights of the Child, General Comment 10, para 89).

The evidence indicates that alternatives to the use of force were not adequately considered. Accordingly, the Commission finds that the decision to approve the use of force to transfer unaccompanied children from Charlie Compound to Bravo Compound on 24 March 2014 was in violation of article 37(c) of the Convention on the Rights of the Child. The Commission finds that the children were not treated with humanity and respect and in a manner which takes into account their vulnerability and age.

---

^[433]Professor E Elliott, Paediatrics and Child Health, Children's Hospital, Westmead, Expert assisting the National Inquiry into Children in Immigration Detention, Additional evidence provided to the Inquiry, Email communication, 26 September 2014.

^[434]Department of Immigration and Border Protection, Children in detention data list as at 31 March 2014, Item 1, Document 1.1, Schedule 2, First Notice to Produce 31 March 2014.

^[435] Department of Immigration and Border Protection, Children in detention data list as at 31 March 2014, Item 1, Document 1.1, Schedule 2, First Notice to Produce 31 March 2014.

^[436]Department of Immigration and Border Protection, Children in detention data list as at 31 March 2014, Item 1, Document 1.1, Schedule 2, First Notice to Produce, 31 March 2014.

^[437]Department of Immigration and Border Protection, Children in detention data list as at 31 March 2014, Item 1, Document 1.1, Schedule 2, First Notice to Produce 31 March 2014.

^[438]Department of Immigration and Border Protection, Historical data on children in detention 2004 – 2014, Item 25, Schedule 2, First Notice to Produce 31 March 2014.

^[439]United Nations High Commissioner for Refugees, Global Trends 2013 (2014), pp 3 and 29. At http://www.unhcr.org/5399a14f9.html (viewed 11 September 2014).

^[440]Australian Churches Refugee Taskforce, Protecting the Lonely Children: Recommendations to the Australian Government and UN Committee on the Rights of the Child with respect to unaccompanied children who seek asylum and refuge in Australia (2014), p14 (citations omitted). At http://www.australianchurchesrefugeetaskforce.com.au/category/campaigns/all-the-lonely-children/ (viewed 9 September 2014).

^[441]G Coffey, Submission No 213 to the National Inquiry into Children in Immigration Detention 2014, p 14. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014-0 (viewed 7 October 2014).

^[442]United Nations High Commissioner for Refugees, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012), Guideline 9.2, para 54. At http://www.unhcr.org/505b10ee9.html (viewed 11 September 2014).

^[443]Professor L Newman, Second Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Melbourne, 2 July 2014, p 3. At https://www.humanrights.gov.au/sites/default/files/Prof%20Newman%20and%20Dr%20Yong_0.docx (viewed 18 September 2014).

^[444]Professor L Newman, Second Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Melbourne, 2 July 2014, p 4. At https://www.humanrights.gov.au/sites/default/files/Prof%20Newman%20and%20Dr%20Yong_0.docx (viewed 18 September 2014).

^[445]Name withheld, Christmas Island and Darwin volunteer, Submission No 114 to the National Inquiry into Children in Immigration Detention 2014, p 7. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%20114%20-%20Name%20withheld%20-%20Christmas%20Island%20and%20Darwin%20Volunteer%20in%202010_0.doc (viewed 14 August 2014).

^[446]Australian Human Rights Commission, Inquiry Questionnaire for Children and Parents in Detention, Australia, 2014, Response to question: Do you think the emotional and mental health of you/your children has been affected since being in detention? Unaccompanied children across the detention network, 42 respondents.

^[447]Dr S Mares, Child Psychiatrist; Expert report to the Human Rights Commission after the visit to the Christmas Island Immigration Detention Centres, March 2014, p 15. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014/expert (viewed 12 September 2014).

^[448]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce 10 July 2014.

^[449]Department of Immigration and Border Protection, Department of Immigration and Border Protection and Serco Incident Reporting Guideline v2.0, Item 10, Document 10.5, Schedule 3, First Notice to Produce 31 March 2014.

^[450]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[451]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[452]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[453]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[454]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[455]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[456]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

^[457]Department of Immigration and Border Protection, Historical data on children in detention 2004 – 2014, Item 25, Schedule 2, First Notice to Produce 31 March 2014.

^[458]Department of Immigration and Citizenship, Response to the Australian Human Rights Commission’s (AHRC) 13 August 2013 request for information concerning detention and asylum seekers, provided by email to the Commission on 16 September 2013, p 2.

^[459]Department of Immigration and Border Protection, Immigration detention facilities locked, Item 22, Document 22.1, Schedule 2, First Notice to Produce 31 March 2014.

^[460]Department of Immigration and Border Protection, Detention Services Manual Chapter 8- Safety and security, Use of reasonable force in immigration detention, 16 August 2013, p 6.

^[461]Ms D Homewood, Fourth Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Canberra, 22 August 2014, pp 12-13. At https://www.humanrights.gov.au/sites/default/files/Ms%20Homewood.pdf (viewed 23 September 2014).

^[462]Australian Human Rights Commission, Inquiry Questionnaire for Parents and Children in Detention, Australia 2014, Response to question: Do you feel you are safe here?

^[463]Ms D Homewood, Fourth Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Canberra, 22 August 2014, pp 12-13. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014-1 (viewed 23 September 2014).

^[464]Convention on the Rights of the Child, arts 20 and 22. At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 1 September 2014).

^[465]Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6 (2005), para 33. At http://www.refworld.org/docid/42dd174b4.html (viewed 10 September 2014).

^[466]Article 18(1) of the CRC states that 'the best interests of the child will be [the legal guardian's] basic concern'. See also Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6 (2005), para 33. At http://www.refworld.org/docid/42dd174b4.html (viewed 10 September 2014).

^[467]Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6 (2005), para 33. At http://www.refworld.org/docid/42dd174b4.html (viewed 10 September 2014). See also Separated Children in Europe Programme, Statement of Good Practice (4^th ed, 2009), D3.3 (p 22). At http://scep.sitespirit.nl/images/18/219.pdf (viewed 10 September 2014).

^[468]Convention on the Rights of the Child, arts 24(1), 27(1)-(3), 28(1), 29(1) and 30. At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 1 September 2014).

^[469]Immigration (Guardianship of Children) Act 1946 (Cth), s 6(1). See also Department of Immigration and Border Protection, Fact Sheet 69 – Caring for Unaccompanied Minors, at http://www.immi.gov.au/media/fact-sheets/69unaccompanied.htm (viewed 1 October 2013).

^[470]X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524, 537-538 [43] (North J).

^[471]Immigration (Guardianship of Children) Delegation 2013 (Cth), Sch 2.

^[472]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention 2014. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf (viewed 7 October 2014).

^[473]Department of Immigration and Border Protection, Qualification requirements for staff, Item 13, Document 13.1, Schedule 2, First Notice to Produce 31 March 2014.

^[474]Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), p 722. At https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention (viewed 8 October 2014)

^[475]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention, p 51. At https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014-0 (viewed 8 September 2014).

^[476]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention, p 51. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf (viewed 8 September 2014).

^[477]See Committee on the Rights of the Child, Report of the Committee on the Rights of the Child, UN Doc A/61/41 (2006), para 33, which refers to the need for the guardian to have ‘the necessary expertise in the field of childcare’. At http://www.crin.org/docs/Report_CRC_GA61_Eng.pdf (viewed 9 September 2014).

^[478]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention 2014, p 61. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf (viewed 7 October 2014).

^[479]Immigration (Guardianship of Children) Act 1946 (Cth) s 8(2).

^[480]Dr S Mares, Child Psychiatrist; Expert Report to the Human Rights Commission after the visit to the Christmas Island Immigration Detention Centres, March 2014, pp 20-21. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014/expert (viewed 12 September 2014).

^[481]UNSW Human Rights Law Clinic, The Andrew & Renata Kaldor Centre for International Refugee Law, and the UNSW Faculty of Arts and Social Sciences, Submission No 207 to the National Inquiry into Children in Immigration Detention 2014, p 14. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%20207-%20University%20of%20New%20South%20Wales.docx (viewed 10 September 2014).

^[482]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention, p 53. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf (viewed 7 October 2014).

^[483]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention 2014, pp 52-3. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf (viewed 8 September 2014).

^[484]Dr S Mares, Child Psychiatrist; Expert Report to the Human Rights Commission after the visit to the Christmas Island Immigration Detention Centres, March 2014. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014/expert (viewed 12 September 2014).