National Inquiry into Children in Immigration Detention
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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 Human Rights and Equal Opportunity 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]
See also Background Paper 3: Mental Health and Development.
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:
1 The full terms of reference are available at http://www.humanrights.gov.au/human_rights/children_detention/terms.html
2 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.
3 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.
6 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."
7 Articles 23 and 24, Convention.
8 Section 14, Disability Discrimination Act 1992 (Cth).
9 Section 52, Disability Discrimination Act 1992 (Cth).
10 World Health Organisation (1981), Disability Prevention and Rehabilitation cited in UNHCR Guidelines on Protection and Care, ch6.
11 UNHCR Guidelines on Protection and Care, ch6.
12 UNHCR Guidelines on Protection and Care, ch6.
13 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.
16 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.
17 The Royal College of Paediatrics and Child Health and the King's Fund (1999), The Health of Refugee Children: Guidelines for Paediatricians, London.
18 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."
19 For an Australian model of best practice for accident prevention, see the Child Accident Prevention Foundation of Australia (www.kidsafe.com.au).
20 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.
22 UNHCR, Assisting Disabled Refugees: A Community-based Approach.
23 UNHCR, Assisting Disabled Refugees: A Community-based Approach.
24 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.
25 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).
26 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.
27 The Royal College of Paediatrics and Child Health and the King's Fund, The Health of Refugee Children: Guidelines for Paediatricians, p10.
28 UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach, p32.
29 UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach, p33.
30 UNHCR (1996), Assisting Disabled Refugees: A Community-based Approach, p 33.
31 See Standard Rules on Equalization of Opportunities for Persons with Disabilities, especially Rules 2-12 inclusive.
32 UNHCR Guidelines on Protection and Care, ch6.
33 UNHCR Guidelines on Protection and Care, ch6.
34 UNHCR Guidelines on Protection and Care.
35 Australia is obliged to do so under article 6, Convention.
36 As required under article 24, Convention.
37 Rule 21, United Nations Standard Minimum Rules for the Treatment of Prisoners.
38 Rule 11, Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
39 Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
41 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.
42 UNHCR Guidelines on Protection and Care, ch6.