National Inquiry into Children in Immigration Detention

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Background Paper 3: Mental Health and Development

Fear of being alone.

Fear for personal safety.

Fear for safety of the family.

Talks repeatedly of the traumatic event(s).

Expresses anger or revenge against people who caused the family to flee.

Finds it difficult to trust or have confidence in people.

Nervous or uneasy in new situations.

Approaches a new situation or task as though he/ she will not succeed.

Is sad for no apparent reason.

Worries too much.

from Behaviours Associated with Victimisation in The Impact of Current and Traumatic Stressors on the Psychological Well-Being of Refugee Communities. [1]

In this Background Paper

National Inquiry into Children in Immigration Detention
Mental health and development of child asylum seekers
Development of the child
Developmental harm
Strengthening the capacities of families
Children's responses to stress and trauma
Mental health studies in Australia
The right to health, education, rest and play
Periodic review of a child's well being
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 mental health and development of child asylum seekers and the impact of detention on their well-being and development. [2]

This Background Paper provides an overview of international human rights standards on mental health and child development that are relevant to the Inquiry. It 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 Australian Human Rights 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. Mental health and development of child asylum seekers

The experiences of child asylum seekers raise specific mental health and development issues. The social conditions that give rise to a child's flight from her or his home country may include experiences of war, persecution, death, sexual assault, violence, fear, flight and displacement. Many child asylum seekers will have witnessed harm to family members or directly suffered abuse or violence prior to or during flight. A child may also experience the fears and insecurities which attach to migrant flight, an uncertain future and exposure to different cultures, languages and religions. In Australia, a child arriving without a valid visa will be incarcerated in a detention facility. [3] Such experiences may have a significant impact on the child's mental health and prospects for healthy development. The mental health needs of child asylum seekers will often be far greater than those of children raised in Australia, due to the damaging physical conditions, emotional trauma and nutritional deficiencies that they have commonly experienced. [4]

Mental health and child development issues have significant overlap and are discussed together throughout this Background Paper. The Inquiry welcomes submissions on either subject, or on related health and disability issues. See also Background Paper 4: Health and Nutrition and Background Paper 5: Prevention, Treatment and Accommodation of Disabilities.

The Convention on the Rights of the Child

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 6, Convention on the Rights of the Child.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being…

Article 3(2), Convention on the Rights of the Child.

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures… (f) [t]o develop preventive health care, guidance for parents and family planning education and services.

Article 24, Convention on the Rights of the Child.

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child…

Article 12, International Covenant on Economic, Social and Cultural Rights. [5]

Under the Convention on the Rights of the Child (the Convention), Australia must ensure that every child in Australia, regardless of nationality or immigration status and regardless of how the child arrived in Australia, survives and develops to the maximum extent possible, [6] enjoys the highest attainable standard of health and rehabilitation [7] and is allowed to recover from abuse or violence. [8]

In ensuring the mental health of the child, States Parties to the Convention and to related international instruments are required to "develop preventive health care" in addition to providing education and guidance to parents. Preventive health care means detecting and treating physical and mental illness in the child. [9] This involves examination of the child "by a physician immediately upon admission to a detention facility" to record and identify "any physical or mental condition requiring medical attention".[10] Medical care, where possible, should be provided to detained children "through the appropriate health facilities and services of the community in which the detention facility is located". [11] Mental health services in detention facilities should be adequate, including through the "appropriate training of doctors and other medical personnel". [12] Children who are assessed as "suffering from mental illness should be treated in a specialized institution under independent medical management". [13]

Australia's obligation to ensure the healthy development of child asylum seekers includes preventing harm to them during their time in Australia and promoting their physical and psychological recovery if they are survivors of abuse or violence. States Parties to the Convention have an ongoing obligation to ensure the child's right to healthy development, even where the child's parents are present.

How further harm can be prevented and recovery maximised is a focus of the current Inquiry. Submissions are welcomed on how the mental health and healthy development of child asylum seekers can be ensured, including through early identification and appropriate program and intervention planning.

Other relevant rights

The child's survival and development must be considered in the context of her or his relationships, especially the relationship with family and community. All actions concerning child asylum seekers must respect the responsibilities, rights and duties of parents and families to provide direction to a child in the exercise of her or his rights (articles 5, 9 and 18 of the Convention). The Convention recognises the family as "the fundamental group of society" and recognises children's rights in the context of parental rights and duties and children's rights to participate with their community. [14]

Australia is obliged to help maintain the child asylum seeker's culture, language and religion by virtue of article 30 of the Convention. Restoring a sense of cultural normalcy to child asylum seekers can be vital to ensuring normal development and is clearly in the best interests of the child. [15]

The United Nations High Commissioner for Refugees (UNHCR) stresses the importance of ensuring that children who suffer "emotional distress or mental disorders benefit from culturally appropriate mental health services and treatment". [16] In addition to her or his cultural needs, the past experiences of the child and the child's family need to be understood when considering the child's present mental health and developmental well being.

All actions concerning child asylum seekers must also be non-discriminatory (article 2), ensure the best interests of the child (article 3) and enable the child to participate in decision-making affecting her or him (article 12). [17]

3. Development of the child

Children change and develop constantly as they make the transition from total dependency at birth to the interdependency of adulthood.[18] Even for children growing up in a loving family situation with full protection of the State, development is a delicate process. For child asylum seekers, whose State may have failed to protect them from violence and abuse, healthy development can be very precarious, depending on a number of variables including the effects of any past abuse or violence and the extent to which past trauma may be compounded by present or future uncertainty.

Children do not develop in isolation, but in reaction to their environment and through nurturing by their family and community.[19] For child asylum seekers, their development does not pause while their family's refugee status application is processed or while they remain in detention. Given the various levels of uprooting, disruption and insecurity involved in the refugee experience, the development of children can be severely arrested.

Healthy development means providing the optimal conditions for the child to flourish in her or his current situation and not merely preparing the child for adulthood. Ensuring a positive environment for child development is in the child's best interests, as required by the Convention.

4. Developmental harm

Developmental harm arises where the risk factors which threaten a child accumulate and overwhelm the child's capacity to cope.[20] Factors impacting on the healthy development of child asylum seekers are many, but can be grouped as:

their past conditions and experiences, such as experiences of trauma;
current stressors (daily life);
additional factors which can act as a buffer to or accelerator of harm. [21]

Past traumatic experiences

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.

Article 39, Convention on the Rights of the Child.

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 19(2), Convention on the Rights of the Child.

Under the Convention Australia must protect children from violence, abuse and neglect. [22] Where a child has suffered such mistreatment, Australia is obliged to promote the child's recovery. [23] States Parties to the Convention are required to report to the UN Committee on the Rights of the Child [24] on the measures they have adopted to ensure the physical and psychological recovery and social reintegration of the child victim of neglect, exploitation or abuse, in an environment which fosters the health, self-respect and dignity of the child. [25]

While not all child asylum seekers will have experienced abuse or violence, many of them will. Even where the child may not have experienced abuse or violence directly, if the child's primary carer (usually the mother) is depressed, stressed or anxious, the child may exhibit similar symptoms of stress or trauma. [26]

Experiences of abuse or violence can create developmental harm in children. Symptoms in children who experienced abuse or violence can include poor sleep and nightmares, bedwetting, behavioural problems, either introversion or aggression, depression, problems with familial and other relationships, emotional numbness, learning difficulties, eating disorders and psychosomatic health problems. [27] The Inquiry welcomes submissions on the incidence and significance of these symptoms in child asylum seekers and what strategies are required to promote a child's recovery from abuse and violence.

Current stressors

Child asylum seekers who arrive in Australia without a visa are held in immigration detention facilities. They will spend anything from a few weeks to a few years in detention, depending on the length of time it takes to determine their asylum claim. Detention ends when the child is either recognised as a refugee and released on a temporary protection visa or is deported. After release on a temporary protection visa, the child asylum seeker may require access to a range of social support systems. [28]

Australia's responsibility to child asylum seekers does not end once they enter a detention facility. While detained, child asylum seekers are entitled to enjoy all the rights outlined in the Convention. [29] On release or deportation, Australia's obligations continue. This is because child asylum seekers require medium and long-term solutions to their situation and their time in Australia should be used positively to help, not hinder their development. [30] Those recognised as refugees and released into the community require ongoing assistance. Those to be removed to other countries will require ongoing protection, assistance and monitoring, particularly unaccompanied children. [31]

The impact of detention on children

Detention is an additional stressor on child asylum seekers who are adjusting to life in a strange country. As the length of detention increases, a child's development may be affected. The UNHCR advises against the detention of children, stating that "detention can be harmful". [32] Children may become "either passive and submissive or aggressive and violent" as a result. [33] The Inquiry welcomes submissions on this point.

Conditions in detention facilities may also contribute to a child's stress or trauma. For example, children may be affected by security measures designed to control and manage detainees. Where adult detainees engage in protests or attempts at self-harm, the child may be affected. Where security measures, such as tear gas, physical force and separation of adults from children or security checks at night are employed, children may be adversely affected. The Inquiry welcomes submissions on the impact on children of conditions in detention facilities and specifically the impact of security measures.

The child may also face threats from other detainees. This may range from verbal taunting to sexual abuse. The Convention obliges Australia to protect children from sexual exploitation and abuse. [34] Preventive strategies should be taken in relation to girl asylum seekers who may face sexual violence or assault in their home country, during flight or in a country of asylum. Single women and girls should be housed separately from unrelated adult men. [35] If detained, children should be "separated from adults unless it is considered in the child's best interest not to do so" (article 37(c), Convention). [36]

The Inquiry welcomes submissions on the appropriateness of detention for the healthy development and mental health of children, particularly where the child requires rehabilitation and treatment.

The impact of detention on parents

The impact of lengthy detention on the mental health of the child's parents or carers, such as depression, stress or anxiety, may also impact negatively on the child. UNHCR points out that "the more trauma or stress the parents or care-taker has been subjected to, the greater the danger that children risk neglect or abuse". [37] Parental stress can arise for a number of reasons, including past trauma, the slow processing or rejection of asylum claims or future uncertainties. Children's faith in their parents may be affected by their parents' seeming powerlessness in detention. UNHCR cautions that care needs to be taken to ensure that parents are able to nurture their child and that if the parent is too physically weak or emotionally stressed, "then the child's greater developmental need is for the parent to receive help". [38]

The Inquiry welcomes submissions on how parents cope in detention in relation to the effect parents' mental health has on their children.

Keeping the family together

Only where children are in a situation such as abuse or neglect by their parents should separation be contemplated and then only after due process and where it is in the best interests of the child.[39] In addition, UNHCR has stated that unless it is "necessary to prevent abuse or neglect, a child should not be separated from her/his family and community for treatment." [40] This principle reflects the provisions of the Convention. [41] See also the discussion on detention and the best interests of the child, and the right to family life in Background Paper 1: Introduction, and the discussion of detention in Background Paper 8: Deprivation of Liberty and Humane Detention.

Additional factors which can promote or hinder the well being of children

Positive or negative factors may intervene between the developmental threat to a child and the child's reaction to the threat. For example, the attention and nurturing of a child's carer would be a factor that would assist a child to deal with daily stress, while a depressed primary carer unable to care for her or his child would be a negative factor.

Ensuring the well being of the child will involve enhancing the factors which promote the well being of children and reducing the negative factors which will harm the child. It also involves providing special assistance to children who have already suffered serious developmental harm.

Promoting the child's well being

According to the UNHCR, the principles which underpin the promotion of positive factors for children include restoring a sense of "normalcy" by helping the family function as normally as possible, ensuring that good things happen on a predictable basis for the child (such as eating, going to school, playing) and by helping families secure a medium and long-term solution to their situation. [42] The return of normal living conditions and including children in information sharing and decisions are also positive factors. [43]

These needs correspond to the various rights of the child outlined in the Convention such as the rights to health, development, education, leisure and play and family life and to be involved in the decision making process concerning her or him.

Child asylum seekers must also be informed of the reasons for their current situation, such as their detention. They must be told what decisions are being taken, who is making them and be enabled to participate in decision making on matters affecting them. [44]

Intervening to assist children who have suffered harm

The Convention requires States Parties to protect and rehabilitate children who have experienced previous abuse and violence, and states that their recovery and reintegration must "take place in an environment which fosters the health, self respect and dignity of the child". [45] Any intervention needs to be culturally appropriate to the child and support any positive coping mechanisms of the child and her or his family. [46]

The Convention obliges States Parties in the case of violence, injury or abuse, neglect or other mistreatment of a child, to take "protective measures … includ[ing] effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement". [47]

The Inquiry welcomes submissions on current programs and other actions taken to support the well being of children in detention and on release, and on how these can be improved.

5. Strengthening the capacities of families

… Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding…

Preamble, Convention on the Rights of the Child.

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 5, Convention on the Rights of the Child.

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. 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.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children…

Article 18, Convention on the Rights of the Child.

Under the Convention, all children are entitled to grow up in a positive family environment, with parents or legal guardians of child asylum seekers having the primary responsibilities for the upbringing of their children. Australia is obliged to enable parents to bring up their children in a warm, nurturing family environment which fosters the child's well being and supports their culture, language, religion and sense of identity. Parents can be vital to their children's well being, bolstering their ability to cope and make sense of their current situation. Where the primary carer in particular is emotionally stable and able to cope, the child's perceived internal controls can be strengthened and the social context of the family will prove a positive mediating factor in assisting the child's development. [48]

To promote the well being of the child, Australia may be obliged to support the parents of child asylum seekers, particularly in ways to cope with their situation in detention, including any stress they may be experiencing.

In helping parents and particularly the primary carer, it is important to gauge how families are functioning now and to understand how they functioned prior to flight to avoid wrong assumptions, such as the original healthy working of the family unit where that may not have been the case. While children should be able to participate in decisions that affect them (article 12), parental involvement should be encouraged so they can provide direction and support to their child. Parents' information needs, particularly about their legal status and detention, the outside world and the safety of family members in their home country, may need to be facilitated.

Unaccompanied children

Unaccompanied children will lack the social support of their family, important in itself for healthy development, but also an important buffer to help them cope with traumatic experiences. [49] Given their vulnerable situation, the UNHCR states that unaccompanied children should not be detained.[50] The Convention requires States Parties to provide special care and assistance to unaccompanied child asylum seekers, including the tracing of their family members, which is essential and must occur immediately and in such a way as not to endanger the child or the family. [51] Unaccompanied children should have a guardian appointed as soon as possible and suitable care arrangements put in place for them soon after arrival in Australia. [52] They may also need a legal representative to advocate for them. [53] See Background Paper 7: Legal Status.

6. Children's responses to stress and trauma

Psychological stress refers to the situation where a person's capacity to control the demands of his or her environment is tested or overwhelmed. [54] A complex mix of social and psychological processes produce stress in children and adults, but recurring elements appear to be perceived loss of control over events, a threat to self-esteem and a feeling of helplessness. [55] While stress in children cannot be totally avoided, its incidence can be minimised and the child can learn ways of coping with stress.

A child may experience physical reactions to stress. [56] The child may also develop behavioural reactions, including cognitive reactions and even distortions. The way a child adapts to traumatic events through coping mechanisms has implications for preventing and treating mental health problems. Certain perceived dangers may lead the child to try to cope with the danger by adapting in ways that themselves may have socio-pathological implications. [57]

It is particularly important to consider the situation of unaccompanied children in light of several international studies that have found that child asylum seekers surviving the refugee process alone show greater emotional distress and have more trouble adjusting than children who remain with or are rapidly reunited with their families. [58]

The Inquiry welcomes submissions on the responses of children to stress and trauma in the detention environment.

7. Mental health studies in Australia

A number of studies have been conducted on the mental health impacts of detention in Australia on adult asylum seekers. The results of the studies are relatively consistent, in spite of the wide range of sampling methodologies and assessment approaches employed, and the diversity of cultural and regional backgrounds of the asylum seekers involved. [59]

The studies have presented a consistent picture of asylum seekers as "a highly traumatised population at risk of persisting emotional disturbance".[60] In summarising the experiences of mental health, legal and welfare workers in Australia, it has been claimed that "[a]sylum seekers both in detention and living in the community show evidence of profound depression, helplessness and hopelessness".[61] For asylum seekers held in detention while their refugee claims are being processed, the risk of "retraumatisation" is claimed to be particularly high. [62]

A 1997 study found that more than two-thirds of 40 asylum seekers attending a community assistance centre in Sydney had experienced at least one traumatic event, such as witnessing killings, being assaulted or suffering trauma and captivity. [63] Thirty-seven per cent fulfilled the relevant criteria for post traumatic stress disorder (PTSD). [64] In a recent study examining detainees at Villawood Immigration Detention Centre, 85 per cent of participants reported chronic depressive symptoms, and 65 per cent had pronounced suicidal ideation. [65] Another study found that the effects of pre-migration trauma exposure, anxiety, depression and PTSD symptoms among asylum seekers may be exacerbated or prolonged by stressors in the post-migration environment. [66] A study of Tamil asylum seekers living in the community found that 'statistically significant' predictors of depression levels included family separations, fears of being sent home, delays in processing refugee claims, conflict with immigration officials, difficulty in obtaining treatment for health problems, loneliness, boredom and isolation. [67] Most of these were also significant predictors of anxiety levels and PTSD symptoms. Studies comparing asylum seekers in detention to those in the community further suggested that detention may directly contribute to increased severity of psychological distress. [68]

The Inquiry will consider the extent to which these studies have implications for child asylum seekers in detention and the extent to which additional research may be required. Submissions addressing the relevance of these studies for children and the need for any further research are particularly welcome.

8. The right to health, education and play

Right to health

The right to the "highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health" is guaranteed in the Convention.[69] Mental health and proper development is central to a child's physical health and physical illness in child asylum seekers may have mental health or developmental causes. The right to the highest attainable standard of health is discussed in Background Paper 4: Health and Nutrition.

Right to education

The right to education is recognised in the Convention.[70] School can be a place in which a child can engage in positive learning and curricular activities and these bring the structure and predictability that mark a return to normalcy.[71] Schools may also act as a useful focal point for mental health assessment and referral, as mental health services are more likely to be perceived as a normal part of the child's life when linked with school. Neglect of proper schooling can impact upon a child's developmental needs. Article 29(1) of the Convention outlines the linkage between the child's education and development. [72] See also Background Paper 6: Education.

Right to rest and leisure, to play and recreation

1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

Article 31, Convention on the Rights of the Child.

The Convention rights of the child to rest, leisure, play, recreational activities and to participate in cultural and artistic life are vital for the healthy development of the child. [73]

The right to rest can be as important as the right to nutrition, shelter, health care and education. An over-tired child is unable to function properly, is unable to learn and is susceptible to falling ill. [74] Accordingly, Australia is obliged to ensure that child asylum seekers in detention have adequate time for quality sleep and relaxation. The applicable international standard appears to be sleep and relaxation of twelve hours between the hours of 8.30 pm and 6 am for those aged under fourteen or in fulltime education. [75] The right to leisure extends beyond having sufficient time to sleep at night, but includes having the time and freedom to do as one pleases. Submissions are welcomed on the right to rest in detention and, specifically on the impact of curfews, muster and spot checking of detainees on the quality of children's rest.

The right to play refers to unstructured activities free from adult direction, whereas recreation refers to curricular activities undertaken for pleasure, often connected to the school. Play and recreation [76] are not compulsory for the child, but the choice is that of the child; the State party is obliged to facilitate the child's right to play and recreation.

Recreation activities can include sports, arts, science, films and games. Such activities, usually part of school curricula, should be genuinely voluntary. Where recreation equipment is shared between adults and children, children should have equitable access to the equipment. For example, where a detention facility possesses a volleyball net or pool table for recreational activities, children must be allowed equitable enjoyment of such facilities along with adults. Recreation facilities must always be provided in a culturally sensitive manner to ensure girls have equal access. Recreational activities are also discussed in Background Paper 6: Education.

The right to play is a more complex right. [77] Often seen by adults as a luxury rather than as a necessary part of life, play forms a vital part of a child's development, particularly in learning social and personal skills such as negotiation, sharing and self-control.[78] Play and recreational activities are also important for the physical development of the child and to avoid mental harm, as outlined above. For child asylum seekers, play can help the child cope with what has happened to them, including past experiences of trauma or violence. Play can relax the child, relieve tensions, help assimilate experiences learnt and help the child function within the family and the community. These are all vital components of healthy development. [79]

The quality of play and recreation experience is related to the environment in which it takes place. Inadequate provision of appropriate play space for children may have mental health implications for child asylum seekers. [80] Basic play needs are simple: safe, accessible space for the child's use, preferably with possibilities for creating or changing things. Design should focus on safety and accessibility, but also consider shelter from the sun and precautions such as safe heights and surfaces and adult supervision. The design of play areas should conform to minimum existing standards in Australia (article 2). The Inquiry welcomes submissions on appropriate play facilities and applicable State and Territory standards on the design of play and recreation areas as they may apply to detention facility design.

The right to cultural and artistic activities includes the right to join with family and community in adult cultural and artistic pursuits as well as child-centred culture and arts. Children in a refugee situation may require special measures to ensure their rights under article 31, on account of their vulnerability. [81]

In all these activities, the child's right to participate under article 12 should be upheld.

9. Periodic review of a child's well-being

States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.

Article 25 Convention on the Rights of the Child

Article 25 of the Convention requires Australia to ensure that a child who is detained "for the purposes of care, protection or treatment of his or her physical or mental health", has the right to a periodic review of her or his treatment and needs.[82] This right, which is relevant to child asylum seekers being detained or institutionalised for health or mental health purposes, is separate from Australia's obligation to review the standards of treatment in its own institutions under article 3(3) of the Convention and the right to challenge detention under article 37(d). [83] Periodic review under article 25 should consider both the appropriateness of the child's placement for the purpose of the child's health or mental health and the progress of the child's care. State authorities often sincerely believe that the "best interests of the child" are being served by treatment which can amount to neglect, mistreatment and even abuse.[84] Article 25 gives children the right to have their treatment reviewed regularly.

The current Inquiry will consider the extent to which Australia's care arrangements meet the obligations under the Convention, including children's right to be heard, to be in contact with the outside world and to have access to effective complaints procedures.

The Convention requires conformity with national standards on child care [85] and this is discussed further in Background Paper 8: Deprivation of Liberty and Humane Detention.

10. Questions for submissions

The following questions may assist organisations and individuals in making submissions to the Inquiry.

How does Australia support the mental health and development needs of child asylum seekers in detention? Is there initial and ongoing assessment and treatment of these needs from the time of the child's arrival in Australia?
What in your experience is the impact of detention on the well-being and healthy development of children, including their long-term development? Can you support this view with evidence?
Can child asylum seekers who are experiencing mental health or developmental difficulties be properly treated in detention facilities? How? Is this in the "best interests" of the child?
To what extent are the international standards in articles 19 and 39 of the Convention met in Australia today?
What are the relevant legislative, administrative and other measures in place to ensure child asylum seekers receive the protection and care they need? Where are the gaps?
What are the arrangements between State and Territory child welfare agencies and the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA)? How does the care of children work in practice? Can you give examples?
Do detained children suffer discrimination in comparison with other children in Australia when it comes to their mental health and development? Can you support any views with evidence? How are children on temporary protection visas treated? How are other children treated?
To what extent are the mental health studies concerning adults relevant to children? What additional research is needed?
What processes exist to ensure there is sufficient overview so that a child's treatment in detention is properly supervised and monitored? Who should conduct the monitoring of the child's mental health needs?
What are the daily programs in place in detention facilities for children? Are they culturally sensitive and ensure equality of access for boys and girls?

ENDNOTES:

1 M McCallin (1993), The Psychological Well Being of Refugee Children: Research, Practice and Policy Issues, International Catholic Child Bureau, Geneva, p84.

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

3 See discussion of Australia's mandatory detention policy in Background Paper 7: Deprivation of Liberty and Humane Detention.

4 See Background Paper 4: Health and Nutrition, for physical health implications.

5 See the UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 14: the right to the highest attainable standard of health, 11 Aug 2000 UN Doc E/C.12/2000/4, CESCR, which elaborates the provisions of article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966).

6 Article 6(2), Convention.

7 Article 24(1), Convention.

8 Article 39, Convention.

9 Rule 51, United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990). See too Principle 4(1), United Nations Principles for the protection of persons with mental illness and the improvement of mental health care (1991).

10 Rule 50, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Each institution should have at least "one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality." Rule 22(1), Standard Minimum Rules for the Treatment of Prisoners (1955).

11 Rule 49, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. This is in order "to prevent stigmatization of the juvenile and promote self-respect and integration into the community".

12 The provision of appropriate medical professionals is in addition to "the provision of a sufficient number of hospitals, clinics and other health-related facilities, and the promotion and support of the establishment of institutions providing counselling and mental health services, with due regard to equitable distribution throughout the country"; CESCR, General Comment 14, para 36.

13 Rule 53, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. See Principle 9(1), United Nations Principles for the protection of persons with mental illness and the improvement of mental health care, which provides that treatment should occur "in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others". See also Rule 22(2), UN Standard Minimum Rules for the Treatment of Prisoners.

14 See articles 3(2), 5, 7, 8, 9, 10, 18 and 22, Convention (right to parents), article 14 (freedom of religion under guidance of parents), article 16 (prevents arbitrary or unlawful interference with the child's family), article 20 (where a child is deprived of a family environment, there should be cultural continuity in their upbringing), article 21 (repeats this for inter-country adoption), article 29 (respect for culture in the aims of education) and articles 10 and 22 (require positive measures for child asylum seekers).

15 See Background Paper 2: Culture and Identity; also UNHCR (1994), Refugee Children: Guidelines on Protection and Care, Geneva (UNHCR Guidelines on Protection and Care), ch 3.

16 UNHCR Guidelines on Protection and Care, ch4.

17 See Background Paper 1: Introduction.

18 UNHCR Guidelines on Protection and Care, ch4. This transition is the focus of developmental psychology of children. See C Peterson (1996), Looking forward through the lifespan: Developmental Psychology, Prentice Hall, p18.

19 This includes interacting with the stress or coping capacity of their parents, see Peterson, Looking forward through the lifespan, p 25. See McCallin, The Psychological Well Being of Refugee Children, pp 84-86.

20 J Garbarino, Developmental Consequences of Living in Dangerous and Unstable Environments: the Situation of Refugee Children, in McCallin, The Psychological Well Being of Refugee Children, p1.

21 McCallin, The Psychological Well Being of Refugee Children, p71.

22 Article 19, Convention.

23 Article 39, Convention.

24 The UN Body that oversees implementation of the Convention. See Background Paper 1: Introduction.

25 Committee on the Rights of the Child, General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Parties under Article 44, paragraph 1(b) of the Convention, 11 October 1996, Part V111B(2): 20/11/96. UN Doc CRC/C/58; at para 90. See also paras 91, 129-131.

26 McCallin, The Psychological Well Being of Refugee Children, p84; A Mahjoub, The Theory of Stress as an Approach to Studying Psychological Responses in a War Environment, cited in McCallin, The Psychological Well Being of Refugee Children, pp36-37.

27 The International Children's Institute (2000), Introduction to Literature Review: Psychosocial Programming for Children in Refugee Camps, Montreal, Canada.

28 Introduced in 1999 and revised in 2001, temporary protection visas have a number of restrictions, most notably the inability to seek permanent residency status. See Background Paper 7: Legal Status. See too DIMIA Fact Sheet 64.

29 This includes the right to be detained only as a last resort and for the shortest appropriate period of time (article 37(b)). See Background Paper 8: Deprivation of Liberty and Humane Detention.

30 See UNHCR Guidelines on Protection and Care. UNHCR promotes the concept of "durable" (medium and long-term) solutions for children and their families in all planning and programming regarding child refugees and asylum seekers.

31 Such as transfer of documentation, reunion with family members in the home country; see Background Paper 6: Legal Status.

32 UNHCR Guidelines on Protection and Care, ch4. See also UNHCR Guidelines on Protection and Care, ch8:

"Considering the effects that a prolonged stay in camp or camp-like situations may have on children's physical and psychological developments, the refugee status determination or decision-making on the child's best interests must be made quickly, and with the appropriate special attention and procedures. Keeping children in limbo regarding their status, hence their security and their future, can be harmful to them". See discussion in Background Papers 7: Legal Status and Background Paper 8: Deprivation of Liberty and Humane Detention.

33 UNHCR Guidelines on Protection and Care, ch4. UNHCR describes the effects on adolescents as ranging "from depression, apathy, delinquent behaviour or aggressive acts to situational mental disturbances, drug abuse and suicide" which may reflect the high level of anxiety and despair with the refugee community as a whole".

34 Article 34 provides: "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials."

35 See Rule 8, Standard Minimum Rules for the Treatment of Prisoners; Rule 29, United Nations Rules for the Protection of Juveniles Deprived of their Liberty; Guideline 8, UNHCR, Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) (UNHCR Guidelines on Detention); Rule 26.3, Standard Minimum Rules for the Administration of Juvenile Justice (1985) and article 37(c), Convention. See reference to Australia's reservation to article 37(c) in Background Paper 8: Deprivation of Liberty and Humane Detention.

36 Australia made a reservation to article 37(c), Convention, in relation to the separation of children from adults in prisons on ratification in December 1990. Arguably the intention of the reservation did not extend to children in immigration detention. Whether the reservation does extend to children in immigration detention will be considered by the Inquiry. The reservation stated:

"Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37 (c)."

37 UNHCR Guidelines on Protection and Care, ch4.

38 UNHCR Guidelines on Protection and Care, ch4.

39 Article 9(1) provides: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence." See also Australia's obligation to protect against child abuse in article 19 (discussed above) and article 34 (below).

40 UNHCR Guidelines on Protection and Care, ch4.

41 See articles 5, 9(1) and 18, Convention.

42 Including resolution of the family's refugee claim, see Background Paper 7: Legal Status.

43 See UNHCR Guidelines on Protection and Care, ch4.

44 Articles 12 and 5, Convention. Where the child is not capable of forming his or her own views, the child's parents should be involved in the decision-making process.

45 Article 39, Convention.

46 Principle 9, United Nations Principles for the protection of persons with mental illness and the improvement of mental health care provides that "the treatment and care of every patient shall be based on an individually prescribed plan…"

47 Article 19(2), Convention.

48 A Mahjoub, The Theory of Stress as an Approach to Studying Psychological Responses in a War Environment, cited in McCallin, The Psychological Well Being of Refugee Children, p38. See too General Comment 14 of the Committee On Economic, Social And Cultural Rights on the need to "ensur[e] access to child-friendly information about preventive and health-promoting behaviour and support to families and communities in implementing these practices." at para 22.

49 A Mahjoub, The Theory of Stress as an Approach to Studying Psychological Responses in a War Environment, cited in McCallin, The Psychological Well Being of Refugee Children, pp36-37.

50 "Children seeking asylum should not be kept in detention. This is particularly important in the case of unaccompanied children", UNHCR (1997) Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (UNHCR Guidelines on Unaccompanied Children), Geneva, para 7.6.

51 UNHCR Guidelines on Protection and Care, ch 10; UNHCR Guidelines on Unaccompanied Children, para 5.17; UNHCR/Save the Children (2000) "Statement of Good Practice" of the Separated Children in Europe Programme, para 3.
Article 20 of the Convention provides:
"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.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background." See also articles 22(2), 7(1), 10(1), 10(3) and 9(3), Convention.

52 The UNHCR/Save the Children "Statement of Good Practice" of the Separated Children in Europe Programme has a detailed description of the functions of a guardian or adviser at paras 4 and 10. See also articles 18(2), 19, 20, Convention; UNHCR Guidelines on Unaccompanied Children, para 5.7.

53 UNHCR Guidelines on Unaccompanied Children, para 8.3.

54 See A Mahjoub, The Theory of Stress as an Approach to Studying Psychological Responses in a War Environment, cited in McCallin, The Psychological Well Being of Refugee Children, p24.

55 A Mahjoub, The Theory of Stress as an Approach to Studying Psychological Responses in a War Environment, cited in McCallin, The Psychological Well Being of Refugee Children, p27.

56 A Mahjoub citing Selye, in The Theory of Stress as an Approach to Studying Psychological Responses in a War Environment, cited in McCallin, The Psychological Well Being of Refugee Children, pp30-31.

57 J Garbarino, Developmental Consequences of Living in Dangerous and Unstable Environments: The Situation of Refugee Children, in McCallin, The Psychological Well Being of Refugee Children, pp6-9.

58 DS Masser (1992), "Psychological functioning of American refugee children" in Child Welfare, 71, pp439-456; MB Melville & MB Lykes (1992), "Guatemalan Indian children and the sociocultural effects of government sponsored terrorism", Social Science and Medicine, 34, pp533-548; EM Ressler, N Boothby, and D Steinbock, (1998),Unaccompanied children: care and protection in wars, natural disasters and refugee movements, Oxford University Press, Oxford, UK; MM Tsoi, GK Yu and F Lieh-Mak, (1986), "Vietnamese refugee children in camps in Hong Kong", Social Science and Medicine, 23, pp1147-1150; all cited in A Sourander (1998), Behaviour Problems and Traumatic Events of Unaccompanied Refugee Minors, Child Abuse and Neglect, 22(7) pp719-727.

59 D Silove and Z Steel (1998), The Mental Health and Well-Being of On-Shore Asylum Seekers in Australia, Psychiatry Research and Teaching Unit, University of New South Wales.

60 D Silove and Z Steel (2000) "The Psychological Cost of Seeking and Granting Asylum", in AH Shalev, R Yehuda and AC McFarlane (eds) International Handbook of Human Response to Trauma. Kluwer Academic/ Plenum Publishers, New York, p435.

61 D Silove, P McIntosh and R Becker (1993), "Risk of retraumatisation of asylum-seekers" in Australia in Australian and New Zealand Journal of Psychiatry, 27, pp606-612 at p607.

62 Silove et al, "Risk of retraumatisation of asylum-seekers", p607.

63 D Silove, I Sinnerbrink, A Field, V Manicavasagar and Z Steel (1997), "Anxiety, depression and PTSD in asylum seekers: Associations with pre-migration trauma and post-migration stressors", British Journal of Psychiatry, 170, pp351-357.

64 Namely DSM-IV. See, for example, http://www.mental-health-today.com/ptsd/dsm.htm

65 A Sultan & K O'Sullivan (2001) "Psychological disturbances in asylum seekers held in long term detention: a participant-observer account" Medical Journal of Australia, 175, pp593-596.

66 Silove et al, "Anxiety, depression and PTSD in asylum seekers", pp351-357.

67 Silove et al, "The Psychological Cost of Seeking and Granting Asylum".

68 The Maribyrnong Detention Centre Tamil Survey, cited in D Silove and Z Steel (1998), The Mental Health and Well-Being of On-Shore Asylum Seekers in Australia.

69 Article 24, Convention.

70 Articles 28 and 29, Convention.

71 UNHCR Guidelines on Protection and Care, ch4.

72 The aims of education are outlined in article 29, Convention and expanded in the Committee on the Right of the Child's General Comment 1, which provides that the aims of education are:
"the holistic development of the full potential of the child (29(1)(a)), including development of respect for human rights (29(1)(b)), an enhanced sense of identity and affiliation (29(1)(c)), and his or her socialization and interaction with others (29(1)(d)) and with the environment (29(1)(e)).", UN Doc CRC/GC/2001/1, CRC General Comment 1, 17 April 2001.

73 UNICEF (1998), Implementation Handbook for the Convention on the Rights of the Child (UNICEF Implementation Handbook), United Nations Children's Fund, New York, p419; UNHCR Guidelines on Protection and Care, ch4.

74 UNICEF Implementation Handbook, p419

75 Article 2(1) International Labour Organisation Convention No.79. It should be noted that Australia has not ratified the Convention. See UNICEF Implementation Handbook, p419.

76 UNICEF Implementation Handbook, p420.

77 See the Declaration of the Child's Right to Play (1959), adopted by the International Association for the Child's Right to Play, cited in UNICEF Implementation Handbook, pp420-421.

78 UNICEF Implementation Handbook, pp417, 420.

79 UNHCR Guidelines on Protection and Care, ch4.

80 UNHCR Guidelines on Protection and Care, ch4.

81 UNICEF Implementation Handbook, pp421-422. See also Background Paper 2: Culture and Identity.

82 See the Committee on the Rights of the Child, General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Parties, 11 October 1996, Part V111B(2), . 20/11/96. CRC/C/58, where the Committee requests States Parties to "Please indicate the measures undertaken, including of a legislative, administrative and judicial nature, to recognize the right of the child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical and mental health, to a periodic review of the treatment provided to the child in public and private institutions, services and facilities, as well as all other circumstances relevant to his or her placement"; at para 86. The detail of information sought is outlined in para 87.

83 See Background Papers 7 and 8 on Legal status and Deprivation of Liberty and Humane Detention respectively. Article 3(3), Convention provides: "States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision".

84 UNICEF Implementation Handbook, p341.

85 Article 3(3), Convention.

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