Children should not be in detention

The Situation

The Department of Immigration and Border Protection[1] advise that:

  • 124 children are held in immigration detention facilities within Australia; 
  • 103 children are held in detention on Nauru;
  • 1,282 children are detained in the community under residence determinations, a system referred to as Community Detention; and
  • 2,760 children are living in the community on Bridging Visas which mean their parents generally have no work rights and very limited access to any Government support.

In the stressful conditions of detention, many incidents have been reported of the abuse of children, attempts at self-harm and physical and sexual assaults.  Children also show signs of physical, psychological and distress, consistent with the high incidence of mental illness in detention centres. Some suffer from acute illness. According to the Australian Human Rights Commission Inquiry into Children in Detention, 85% of children and parents identified that their emotional and mental health had been affected since being in detention.[2] In some centres, the children have not had access to education.

Due to their dependence on the care of adults for access to the requirements of life (food, shelter, education, health care), children are inherently vulnerable and, in times of crisis, are in need of special protection. Their vulnerability is increased by attendant imbalances of power between children and adults, as adults are both the providers of services and holders of authority.[3] This vulnerability is even more evident when children are subject to the traumas associated with seeking asylum in another country or are separated from their families.

The guardian of all unaccompanied minors in detention, and so responsible for their welfare, is the Minister for Immigration and Border Protection. Our primary concern is that the Minister’s wide ranging powers under The Migration Act 1958 have the potential to conflict with protecting the best interests of unaccompanied children.  The lack of a truly independent guardian for vulnerable children seeking asylum in Australia and those detained offshore is contrary to current best practice; processes for ensuring that a duty of care is met must be independent, accountable and transparent.

The only justification offered for detaining children, including new born babies, with all its attendant consequences is that it is necessary in order to deter people from sending children to Australia in order to seek protection, and so to provide a pathway for their families.

Catholic Social Teaching principles of provisions for children seeking protection

The core of the question about detaining children is the conviction that each human being is precious and unique. So no one may be used as a means to other ends. The human dignity of each human being must be respected.  This respect prohibits others from denying them the conditions necessary for their flourishing.

For children to flourish, they need freedom to grow, play and learn in an environment free from physical constraints and from tensions likely to occasion violence and abuse. It is totally unjustifiable to choose to place them in situations in which their psychological and physical health are sure to be threatened.

There are also a number of human rights instruments, to which Australia is a signatory, that challenge the present situation, such as the UN Convention on the Rights of the Child, the UN Declaration of Human Rights and the UN International Convention on the Status of Refugees.

Where possible children also need the support of their families in a free and supportive environment. In its regulation of immigration, the Government’s first responsibility is to the welfare of the children, and to provide an environment in which they can flourish.

Necessary changes in current practice and legislation

  • No child should be detained except for a very short time to establish identity and for health checks.
  • Children held in detention for other reasons should be freed into the community with appropriate support.
  • The Law needs to be changed so that the situations in the above two points can never occur again.
  • The Guardian of unaccompanied minors should be a person whose sole responsibility is for the welfare of the children. The Minister for Immigration (and Border Protection) should not be the legal guardian of unaccompanied children due to inherent conflicts of interest.

 

[1] Department of Immigration and Border Protection, Latest Statistics, 31 March 2015. Available at: http://www.immi.gov.au/About/Documents/detention/immigration-detention-statistics-mar2015.pdf

[2] The Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention, 2014. Available at: https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf

[3] Adapted from the Truth, Justice and Healing Council, ‘Child Safe Institutions’, Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper No. 3, 11 October 2013. Available at: http://www.tjhcouncil.org.au/media/40232/131011-Submission-RC-Issues-Paper-No-3-Child-Safe-Institutions.pdf

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