Commission Website: National Inquiry into Children in Immigration Detention
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Submission to National Inquiry
into Children in Immigration Detention from
Public Health Association
of Australia
- Introduction
- Submission
summary and recommendations
- Asylum
seekers - Mandatory detention policy of the Public Health Association
of Australia
- Public
Health Association of Australia and guiding health principles
- Conventions,
treaties and instruments
- Principles
- Health as a human right
- The
refugee experience and the child refugee trauma, recovery and social
reintegration
- Conclusion
1. INTRODUCTION
The current mandatory
detention policy of the Commonwealth of Australia breaches the fundamental
principle of the rights of the child which is that children should be
able to develop to their full potential. The policy breaches every article
of the Convention on the Rights of the Child. The policy violates the
right to health as established by international law.
The policy creates
a significant risk of harm to refugee children who are incarcerated in
detention centres, at all stages in their development to adulthood.
This submission will
focus on the risk to the health of refugee children caused by the current
refugee detention policy regime. The submission will refer principally
to international human rights instruments in relation to their relevant
health rights aspects. This emphasis is consistent with the health rights
orientation and expertise of the Public Health Association of Australia.
Throughout the submission
the term "refugee" is used to apply to all those who claim refugee
status under the Convention. The definition of a refugee is that which
is incorporated into the Migration Act 1958 (Cth) by s 36(2) which
provides for the granting of protection visas to applicants who are non-citizens
to whom "Australia has protection obligations under the Refugees
Convention as amended by the Refugees Protocol"
Such a person is
defined under Article 1A(2) of the Convention as anyone who:
"owing to
well-founded fear of being persecuted for reasons, of race, religion,
nationality, membership of a particular social group or political opinion,
is outside the country of his nationality and is unable or, owing to to
such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality, and being outside the country of his
habitual residence, is unable or owing to such fear, is unwilling to return
to it."
In this submission
the term refugee is applied presumptively for putative refugees until
the status of applicants has been finally determined. It is submitted
that those children rejected as Convention refugees should have their
health rights and human rights respected and the obligations in regard
to those rights still apply to the Australian Government whilst those
children are subject to the jurisdiction of the Commonwealth of Australia.
2. SUBMISSION
SUMMARY AND RECOMMENDATIONS
It is submitted by
the Public Health Association of Australia that:
(i) Whilst there
is a paucity [see section 7] of Australian research into refugee children's
morbidity and psychological health in detention, international health
research clearly establishes that:
(ii) Refugee children
are ipso facto traumatised through the experience of oppressive
danger and the fear of danger that has caused them to seek refuge as individuals,
as members of the oppressed family or as members of the oppressed social,
political, ethnic or gender groups.
(iii) The recovery
of children from their refugee experience will vary according to the individual
child's response to their experience and to the environment into which
the child is placed.
Here the refugee
experience is defined as comprising three distinct phases of oppression,
flight and sanctuary.
(iv) As a signatory
to the Convention relating to the Status of Refugees (1951) and
its 1967 Protocol (the Refugee Convention) Australia is bound to
offer sanctuary to refugees.
Sanctuary is relevantly
defined in the Collins Australian English Dictionary as:
"2. a place
of refuge or protection 3. refuge; immunity from punishment."
(v) Furthermore as
a signatory to the Universal Declaration of Human Rights (1948)
, Australia is bound to treat refugees and those denied refugee status
consistent with the human rights principles embodied in that binding human
rights instrument.
(vi) The kind of
sanctuary offered to refugee children should be determined by the human
rights principle of the right to health, as established by Article 12(1)
and (2) of the International Convention on Economic, Social and Cultural
Rights (1966) and Article 24 of the Convention of the Rights of
the Child (1989) (the health rights principles) and the bio-ethical
principles of beneficence and non-malfeasance.
(vii) In order to
ensure refugee children's rights, policies which meet the needs of children
must be formulated and implemented. The process of formulation of such
health rights policies must be consistent with established public health
principles of policy development. These principles require that through
medical scientific methodology, population health risk indicators be established
which are the basis of health policy formulation and implementation of
consequent public health strategies.
(viii) A refugee
under the Convention is presumptively defined. In this submission the
definition of refugee is applied to all those who are claiming refugee
status and either have not had their status confirmed or those who have
had their status confirmed.
(ix) In addition
it is submitted that those who have had their application for refugee
status recognition rejected are still required to be treated by the Commonwealth
of Australia in a manner that is consistent with human rights conventions
and instruments .
(x) The scientific
health research concerning child and adolescent trauma and post traumatic
psychological conditions establishes a foreseeable risk that indefinite
or prolonged detention of children will be harmful to their health in
their immediate situation and their future.
(xi) The current
regime of imprisonment and the inevitable consequent social isolation
and deprivation fails to rehabilitate refugee children. This regime is
positively counter to the principles and obligations of international
human rights conventions, public health and humane social policy.
(xii) The current
refugee policy regime of the Australian Government fails to comply with
the human rights health principles, good public health policy and causes
risk of harm to refugee children.
(xiii) A refugee
policy based on the health needs and in the best interests of children,
consistent with the Commonwealth of Australia's human rights obligations
should be developed and implemented as a matter or urgency.
It is recommended
that an appropriate public health rights based policy for refugee children
would achieved by:
1. The immediate
end to the detention of refugee children and their families. The process
of determining refugee status should be consistent with health and child
rights conventions and instruments to which Australia is a contracting
state.
2. The establishment
and implementation of an Early Childhood Care and Development Program
for refugee children. The aim of the program would be the identification
and diagnosis of early childhood care and development issues resulting
from malnutrition and trauma experiences, with the implementation of
appropriate Early Childhood Care and Development strategies combining
appropriate infant stimulation, health care, nutrition, education and
cultural support environments.
The management
of the Program would be the responsibility of the Commonwealth Department
of Health for funding, program development, monitoring and review. The
program's implementation should proceed through the existing Refugee
Health infrastructure.
3. The establishment
and implementation of appropriate Care and Development for adolescent
refugee children, stressing social reintegration and education assistance.
Diagnosis, treatment and monitoring health care strategies for adolescents
recovering from the refugee experience would be implemented as appropriately
required.
The management of
the program would be the responsibility of the Commonwealth Department
of Health and implementation through the existing Refugee Health infrastructure.
ASYLUM SEEKERS - MANDATORY DETENTION POLICY OF THE PUBLIC HEALTH ASSOCIATION
The Public Health
Association of Australia recognises that:
1. According to the
1951 Convention Relating to the Status of Refugees ,a refugee is
a person who "owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership in a particular social
group, or political opinion, is outside the country of his nationality,
and is unable to or, owing to such fear, is unwilling to avail himself
of the protection of that country."
2. Under the United
Nations (UN) 1951 Geneva Convention on Refugees, an agreement signed and
ratified by Australia, we have a legal obligation to provide asylum to
genuine refugees.
3. Australia's policy
of mandatory detention for asylum seekers directly contravenes our commitment
to the Universal Declaration of Human Rights (UDHR), which states that
"[e]veryone has the right to seek and to enjoy in other countries
asylum from persecution" (Article 14, UDHR).
4. Seeking asylum
in a country other than one's own is not illegal, nor is it 'queue jumping',
but rather a fundamental human right of any person experiencing persecution
in their country of origin .
5. The overwhelming
majority of asylum seekers are genuine refugees, fleeing persecution for
reasons of race, religion, nationality, membership in a particular social
group, or political opinion, which is perpetrated or condoned by the State
or beyond State control. Experiences include torture, rape, imprisonment,
threats of death, murder, and disappearance of family members .
6. Most asylum seekers
are severely traumatised by the experiences they have lived through prior
to their arrival in Australia, often chronic and repeated with cumulative
psychological effects. Such experiences are documented torture and rape,
witnessing the death of family members, separation from family and community,
extreme material hardship and food scarcity, exploitation by border officials
and camp guards, and appalling conditions during their passage to Australia
.
7. Trauma experienced
by asylum seekers is exacerbated by being placed in detention centres
and the uncertainty about their future, resulting in reports of para-suicide,
completed suicide and self-mutilation.
8. Australia's treatment
of asylum seekers violates international human rights standards. The International
Covenant on Civil and Political Rights (ICCPR) and the Convention on the
Rights of the Child (CRC) prohibit arbitrary detention particularly of
children .
9. The Refugee Council
of Australia reported that as of 1 June 2001, there were 2,857 adults
and 520 children, of whom 39 were unaccompanied minors, in Detention Centres
Detention Centres are inappropriate places for children, however, family
units may not want to be separated. Detainees may be held in poor conditions
and for long periods of time, often up to eighteen months.
10. The detention
of children is a serious concern. It violates the Convention on the Rights
of the Child, signed and ratified by Australia, and poses long-term risks
to children's psychological and social development and well being, in
particular their ability to successfully resettle in an Australian community
.
11. The mandatory
detention of asylum seekers is an excessive response that arbitrarily
denies people of certain human rights; prolongs and exacerbates the trauma
they have experienced before and during their flight; denies them the
possibility and security of normal family life; impairs their successful
resettlement; and severely affects their mental health and well being.
12. The trauma and
uncertainty of detention upon arrival is exacerbated by the denial of
Permanent Residency visas to asylum seeking refugees who can obtain Temporary
Protection visas for three years only, with limited access to resettlement
services and inability to sponsor vulnerable family members. This places
extreme pressure on those men who have left wives and children in situations
of danger, in either situations of ongoing conflict in home countries
or in unsafe refugee camps.
13. Australia has
one of the lowest intakes of refugees of the developed world , yet it
is the only one to mandate detention of all individuals entering the country
without valid visas irrespective of whether or not they are seeking asylum
.
The Public Health
Association of Australia believes that:
Australia should
fulfil its international legal obligations to protect the human rights
of asylum seekers by fully implementing all Convention and Treaty obligations
that Australia is signatory to.
The Public Health
Association of Australia therefore recommends that:
1. The Federal
Government should abolish the policy of mandatory detention for asylum
seekers.
2. A Royal Commission
should undertake an investigation into the conditions in current detention
centres and the treatment of asylum seekers within these centres.
3. The Federal
Government should establish an intersectoral collaborative working group
that seeks to develop a model which conforms with its international
human rights obligations.
The Public Health
Association of Australia recommends, in the interim, that:
1. At a minimum,
families with children, and without criminal records should be immediately
removed from detention centres, to enable them to regain some family
routine, to benefit from community support, to decrease their vulnerability
to detention centre guards, and to provide the children with more freedom,
access to education and better socialisation.
2. The determination
of refugee status shall be expedited in order to minimise time in detention
centres.
3. The Federal
Government should require from Australasian Correctional Management
(ACM), standard reporting in a transparent manner, to meet minimum quality
of care guidelines, especially health care.
4. The Australasian
Correctional Management (ACM) should immediately upgrade the resources
and facilities available to asylum seekers in detention, particularly
addressing the treatment of asylum seekers by ACM guards through training
programs. Of particular concern is the use of tear gas and water canons
to quell unrest amongst detainees.
5. The Federal
Government should abolish the Temporary Protection Visa category, and
provide permanent protection and asylum status to refugees seeking asylum
in Australia, allowing access to human services available the community.
4. THE PUBLIC
HEALTH ASSOCIATION OF AUSTRALIA AND GUIDING PUBLIC HEALTH PRINCIPLES
Public Health Association
is a non-government organisation committed to public health, the aims
and objectives of which are constituted by the principles of the World
Health Organisation Ottawa Charter. 1 Guided by these
principles the Public Health Association of Australia policy is that effective
public health is based on five essential strategies:
- consideration
of public policy including the implications of education, transport,
finance, housing, immigration and refugee policy for health policy.
- monitoring both
social and physical aspects of the health environment including identifying
qualitative and quantitative indicators of health in lifestyle, community
organisation, the natural and built environments.
- educating communities
in health advocacy and action including resourcing and teaching community
members to evaluate state of the art information technology, utilising
communications media and community development strategies in public
health issues.
- developing individual
skills in health advocacy including training the trainers, community
consultation, conflict resolution and other skills needed in public
health management.
- reorienting all
community services towards the strategic perspective of preventative
strategies involving the development of skills in strategic planning,
organisational development and program evaluation. 2
5. CONVENTIONS,
The relevant human
rights and humanitarian treaties and instruments establishing health rights
for refugee children are:
World Health Organisation
Constitution (1948)
"The enjoyment of the highest attainable standard of health is one
of the fundamental rights of every human being without distinction of
race, religion, political belief, economic or social condition."
Universal Declaration
of Human Rights (1948)
Article 25(1)
"Everyone has the right to a standard of living adequate for the
health and well- being of himself and his family, including food, clothing,
housing and medical care and necessary social services, and the right
to security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control."4
International
Covenant on Economic, Social and Cultural Rights (1996)
Article 12
(1) The States Parties to the present Covenant recognise 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 realisation of this right shall include those necessary for:
(a) The provision
for the reduction of the still-birth rate and of infant mortality and
for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational
and other diseases;
(d) The creation of the conditions which would assure to all medical
service and medical attention in the event of sickness. 5
The Declaration of
Alma-Ata (Primary Health Care. Report of the International Conference
on Primary Health Care , Alma-Ata, USSR, 6-12 September 1978, WHO, 1978,
p. 2)
Article I
The Conference strongly reaffirms that health, which is a stage of
complete physical, mental and social well-being, and not merely the absence
of disease and infirmity, is a fundamental human right and that the attainment
of the highest possible level of health is a most important world-wide
social goal whose realisation requires the action of many other social
and economic sectors in addition to the health sector.
and
Article V
Governments have a responsibility for the health of their people which
can be fulfilled only by the provision of adequate health and social measures.
A main social target of governments, international organisations and the
whole world community in the coming decades should be the attainment by
all peoples of the world by the year 2000 of a level of health that will
permit them to lead a socially and economically productive life. Primary
health care is the key to attaining this target as part of development
in the spirit of social justice.
Recommendation
8.
The Conference, recognising the special needs of those who are
least able, for geographical, political, social or financial reasons,
to take the initiative in seeking health care, and expressing great concern
for those who are most vulnerable or at greatest risk.
RECOMMENDS that
as part of the total coverage of populations through primary health care,
high priority be given to the special needs of women, children, working
populations at high risk, and the under-privileged segments of society,
and that the necessary activities be maintained, reaching out into all
homes and working places to identify systematically those at highest risk,
to provide continuing care to them, and to eliminate factors contributing
to ill health.
Convention on the Rights of the Child (1990)
Article 24
1. States Parties recognise 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:
(a) To diminish
infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health
care to all children with the emphasis on the development of primary
health care;
(c) To combat disease and malnutrition, including within the framework
of primary health care, through inter alia , the application of readily
available technology and through the provision of adequate nutritious
foods and clean drinking -water, taking into consideration the dangers
and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) 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 child health and nutrition, the advantages
of breast-feeding, hygiene and environmental sanitation and the prevention
of accidents;
(f) To develop preventative health care, guidance for parents and family
planning education and services.
3. States Parties
shall take all effective and appropriate measures with a view to abolishing
traditional practices prejudicial to the health of children.
4. States Parties
undertake to promote and encourage international cooperation with a view
to achieving progressively the full realisation of the right recognised
in this article. In this regard, particular account should be taken of
the needs of developing countries.
Article 39
States Parties all appropriate measures to promote physical and psychological
recovery and social reintegration of a child victim of; any form of human
neglect, exploitation or abuse; torture or any other form of cruel, inhuman,
or degrading treatment or punishment; or armed conflict s. Such recovery
and reintegration shall take place in an environment which fosters the
health, self-respect and dignity of the child."
6. PRINCIPLES
"The problem
of justice is closely related to the problem of a healthy order of society.
It is concerned with the healthfulness of the parts as well as the sound
condition of the whole. These two aspects of justice are, of course, inseparable.
If the needs and aspirations of the individuals comprising society are
reasonably taken care of by the system of justice, and if reciprocal concern
for the health of the social body exists among the members of society,
there is a good chance that a harmonious and flourishing society will
be the result." 6
The right to health
has slowly evolved since 1946 through the key international human rights
instruments identified in the preceding section. 7 The
Vice Chairperson of the United Nation's CESCR has stated that "although
there was an abundant bibliography on health, very little of it related
to health as a human right." 8
It has been argued
that the right to health is rendered merely declaratory because a right
must be enforceable and a guarantee for health is legally unenforceable.9
However, the right
to health incorporates two enforceable rights, that of the right to health
care and to a physical, economic and social environment which are the
determinants of individual and public health. This interpretation of the
right to health is consistent with the definition of health implicit in
the international human rights instruments referred to above, Rights based
public health is predicated on the thesis that;
- Health which
is defined as a "state of moral, mental and physical well-being"
is a human right.
- The main determinants
of health are economic, political, social and cultural.
- The achievement
of universal health is primarily dependent on the attainment of social
justice and equity.
Applying this thesis,
rights based public health analyses ill health and disease as being produced
primarily by social structures of inequality and deprivation.
Rights based public
health has developed within the context of the emergence of international
human rights law. Public health particularly prior to the late nineteenth
century was a utilitarian-based response to plague and disease. Epidemic
control measures such as quarantine which derives from the Italian for
'forty days', which was the length of time deemed necessary to isolate
the sick, were the first use of public health strategy to protect borders
and populations. The strategy was based on the belief that illness resided
in places which had to be kept separate, whilst those from the unsafe
infectious places had to be kept out by a protective state. 10
This contagion model of public health relied upon the stigmatisation and
exclusion of threat groups. An example is the stigmatisation of medieval
lepers who were deprived of property and all other rights. 11
During the fourteenth century Jews were stigmatised as the carriers of
plague, which led to pogroms and mass killings.12
Contrary to this
exclusionary and discriminatory early form of public health strategy,
rights based public health sees the achievement of universal health as
a common good right dependent on social justice. Here health is defined
broadly as "a state of moral, mental and physical well being."
13 In 1977 the Thirteenth World Health Assembly determined
that the main health objective of the World Health Organisation (WHO)
in future decades should be that of ensuring that the people of the world
attain a level of health that would permit them to lead "socially
and economically productive lives." This Health For All statement
significantly recognises that the main determinants of health are economic
and social and not to be narrowly confined to a health sector. 14
This perspective that sees the critical determinates of health and disease
as economic, political, social and cultural and not spatially determined
provides an inclusive and non-discriminatory basis for public health policy.
15 The struggle for social justice and the overcoming
of exploitation are the strategic directions of rights-based public health.16
Such a strategy is consistent with a common goods conception of rights.17
The right to health is a fundamental group right. The importance of such
rights is not merely that of the interest of the right holder, but is
justified on the basis of the common good which confers a stringency on
the right beyond that of a justification of individual interests. The
right to health rather than being relegated to that of a "second
generation" right is a pre-eminent human right which justifies a
precedence to the individual and common interests to which it relates
when they clash with other interests. This provides a justificatory basis
for the health rights of refugees to take precedence over the interests
supporting a detention refugee policy. Public health, like unpolluted
air is in the interest of everyone in society. The Commonwealth may argue
that its detention refugee policy is in the public interest, but even
if that were to be true, it would not be a common good since unlike rights
based health it is not in everyone's interest.
Health is then one
of a class of rights that are fundamental in that everyone, including
refugee children have an interest which is non-competitive (their enjoyment
of health is not at the expense of anyone else), is similar in nature
for everyone (all enjoy it in the same way) and it serves the same interest
in every person's case (though not everyone enjoys the benefit to the
same degree). "Equity in health implies that ideally everyone
should have a fair opportunity to attain their full health potential and,
more pragmatically, that no one should be disadvantaged from achieving
this potential, if it can be avoided. Equity is therefore concerned with
creating equal opportunities for health and bringing health differentials
down to the lowest level possible." 18
The last twenty years
has seen the emergence of a rights based participatory public health movement
characterised as the "new public health."19
The two well-springs of rights based public health are the growing political
and legal influence of international human rights instruments and the
emergence of class and gender based social movements that have raised
health issues such as with occupational health and safety, the women's
movement, and the indigenous people's movement.
The right to a healthy
life and environment is the ethical and legal basis which establishes
the political and social imperative of public health. This ethic is grounded
in the intrinsic value of life. Public health is also consequentialist
20 in the objective to achieve a healthy and just society
for all people. The human right of health is applied and implemented through
social change in a society of contradiction, exploitation and inequality.21
It is in the international
health rights instruments that the legal basis of health rights is established.
Human rights health law establishes multi-layered obligations and justiciable
entitlements. Obligations on States are to respect, the duty to protect
and the duty to fulfil. 22
The duty to respect
requires primarily that the Commonwealth as a duty holder refrain from
direct violations of rights. This means that;
"wherever
possible, to respect the freedom and the resources of those at risk, in
order for them to find solutions to their own problem wherever they can."
Whilst the duty to
respect has been traditionally associated with individual negative based
rights, the State may not positively infringe common goods rights such
as creating the conditions for ill-health or negligently allowing disease
or damage to the health of individuals or groups of people. The secondary
obligation to protect requires duty holder States to prevent the right
to health from being infringed by third parties. The role of the State
in the protection of common goods rights such as health is "similar
to the protection of civil or political rights" 24
International human
rights law provides precedents for a state obligation to protect individuals
from infringing third parties.
"An illegal
act which violates human rights and which is initially not directly imputable
to a State (for example, because it is the act of a private person. .
.) can lead to international responsibility of the State . . . because
of the lack of due diligence to prevent the violation or to respond to
it as required by the Convention." 25
The Declaration on
the Elimination of Violence Against Women places obligations on states
in relation to
"violence against women, whether those acts are perpetrated by
the State or by private persons." 26
The European Court
of Human Rights held that states have an obligation to protect individuals
from the acts of third parties and that these obligations
" may involve the adoption of measures designed to secure the
respect for private life even in the sphere of the relations of individuals
between themselves." 27
This decision is
consistent with the approach of the UN Human Rights Committee which stated
that:
"Positive measures of protection are. . . required not only against
the acts of the State party itself, . . . but also against the acts of
other persons within the State party." 28
The obligation to
fulfil requires duty holders to provide resources, such as
"to provide food, housing, health, and education (or a monetary
entitlement sufficient to secure access thereto) to those in society without
the means to provide for themselves."29
The multi-layered
obligations on state duty holders to human rights, provide a rigorous
standard for the Commonwealth in regard to the health rights of refugee
children.
Convention Relating
to the Status of Refugees
The Convention defines
a refugee as someone with a "well-founded fear of being persecuted
for reasons of race, religion, nationality, membership in a particular
social group, or political opinion." There are three elements
to the refugee definition. A person must be:
1. In fear of being
persecuted.
2. The fear must be a realistic response and cannot be imaginary.
2. The persecution must be on specified prohibited grounds.
Persecuted
has been defined as implying a failure to protect against violence or
ill-treatment by Lord Hope in Horvath v Secretary of State for the Home
Department [2001] 1 AC 489 at 497-498
". . . the
word 'persecution' implies a failure by the state to make protection available
against the ill-treatment or violence which the person suffers at the
hands of his persecutors."
Central to the definition
of a refugee is the experience of fear and psychological trauma. The Macquarie
Dictionary defines fear as "1. a painful feeling of impending
danger, evil, trouble, etc; the feeling or condition of being afraid.
2 a specific instance of such a feeling. 3. anxiety or solicitude."
In regard to children,
such experiences and feelings are clearly within the generic definition
of child psychological maltreatment developed by the International Conference
on Psychological Abuse;
"Psychological
maltreatment of children and youth consists of acts of omission and commission
which are judged on the basis of a combination of community standards
and professional expertise to be psychologically damaging . Such acts
are committed by individuals, singly or collectively, who by their characteristics
(e.g age, status, knowledge, organisational form) are in a position of
deferential power that renders a child vulnerable. Such acts damage immediately
or ultimately the behavioural, cognitive, affective, or physical functioning
of the child. Examples of psychological maltreatment include acts of rejecting,
terrorising, isolating, exploiting, mis-socializing." (Proceedings
Summary, 1983)30
Child refugees are
by definition subjected to and suffering from psychological maltreatment
and trauma. This is destructive to human development because it frustrates
and/or distorts the fulfillment of basic psychological needs. 31
There are three phases
of the refugee experience:
1. Psychological
trauma, which is very often associated with experiences of violence,
rape and persecution
2. Flight
3. Sanctuary, which in Australia for many refugees is manadatory incarceration.
The psychological trauma experienced by child refugees in these phases
of the refugee experience requires the Commonwealth of Australia as
duty-holder under the health rights international instruments and the
Convention of the Rights of the Child and to implement policies which
are consistent with those instruments and the Convention.
Convention of
the Rights of the Child
The Convention as
with health rights elevates the traditional categories of children's need
to the category of rights, codifying them 32 and establishing
the obligation of society to ensure that these rights are respected, protected
and fulfilled.33
The Convention rests
on four basic principles:
1. The best interests
of the child
2. Non-discrimination
3. Participation
4. Survival and development.34
Specifically the
right to health is established and incorporated by the Convention in all
the following Articles:
- of all children
to enjoy the rights of the Convention without discrimination of any
kind (article 2)
- to survival and
development (article 6)
- that the best
interests of the child will be a primary consideration in all actions
concerning children (article 3(1))
- for all children
to participate meaning fully in all matters affecting them (article
12)
- to family life
(articles 5, 9. 18)
- the highest attainable
standard of health (article 24)
- practise their
culture, language and religion (article 30)
- freedom from
torture, ill-treatment and abuse (article 37)
- protection from
all forms of physical or mental violence, sexual abuse and exploitation
(articles 19 and 34)
- freedom of expression,
thought and conscience (articles 19 and 34)
- protection as
a refugee child (article 22)
- recovery from
the effects of neglect, exploitation, abuse, torture or ill- treatment,
or armed conflicts (article 39)
- not to be deprived
of liberty unlawfully or arbitrarily, with detention only in conformity
with the law, for the shortest appropriate period and as a last resort.
(article 37)
- rest and play
(article 31)
- privacy (article
16)
- a standard of
living adequate for physical, mental, spiritual, moral and social development
(article 27)
- if detained to
be treated with humanity and respect for their inherent dignity and
in a manner which takes into account their age.
7. THE REFUGEE
EXPERIENCE AND THE CHILD - CHILD REFUGEE TRAUMA, RECOVERY AND SOCIAL REINTEGRATION
Refugee children
suffer in many ways as a consequence of wars, internal conflict, repression
and persecution. These experiences affect the health of children in many
ways, using a broad definition of health which includes not only physical
well being but also mental and social well being. The direct effects of
war, repression and persecution on children include death, injury, disability,
physical and sexual abuse, detention, loss of families through death and
separation, displacement from homes and countries, and by definition psychological
trauma. The indirect effects on children include poverty, poor living
conditions, poor nutrition, poor health care, poor education, disruption
of normal life, loss of family life and recreation and safety, discrimination
and exploitation.35
Overwhelmingly the
research documents the harmful effects of the refugee experience on children
and the imperative of policies and health based programs of rehabilitation,
recovery and social reintegration. These public health strategies and
programs are consistent with the norms and principles of the Convention
of the Rights of the Child, in particular Article 39.
"States Parties
shall take all appropriate measures to promote physical and psychological
recovery and social reintegration of a child victim of: any form of neglect,
exploitation, 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.
Considerable international
health research has documented the extent and effects of the psychosocial
trauma and destruction that child refugees have been subjected 36
.
Traumatic experiences,
such as the refugee experience can influence the child's emotional, cognitive
and moral development, because the child's self image, expectations and
understanding of the environment is influenced which can have profound
developmental consequences.37 Since the early 1990's,
epidemiological studies in culturally diverse environments have documented
high level of trauma in refugee groups.38
Psychic trauma is
defined as " . . . the mental result of one sudden, external blow,
or series of blows, rendering the young person temporarily helpless and
breaking past ordinary coping and defensive operations. Trauma begins
with events outside the child, through which a number of internal, lasting
changes is initiated. Terr divides the effects of trauma into two main
types: the effect of single events (type 1 trauma) and the effects of
prolonged or repetitive extreme external exposures (type II trauma). While
a number of reactions are the same disregarding the type of event experienced,
the effects of long lasting or repetitive exposures follow a less predictable
pattern than the effects of a single event, and can result in enduring
personality changes.39
Research overwhelmingly
indicates that experience of trauma is predictor of chronic psychosocial
and mental health problems. 40
Reactions after traumatic
experiences have been known for some time under various designations -
shell-shock, traumatic shock, traumatic neurosis, survivor syndrome 41
However, it was only
in 1980 that the diagnosis of adults for Post-Traumatic Stress Disorder
(PTSD) was first included in the American diagnostic and statistical manual
for mental disorders (DSM). Four criteria establish this diagnosis:
1. exposure to
an extreme event outside the range of normal human experience,
2. repeated re-experience of the event or part of it,
3. persistent avoidance of stimuli associated with the traumatic experience
and numbing of the general responsiveness,
4. persistent symptoms of increased arousal.42
It was not until
1987 that the diagnosis of PTSD for children was formalised and recognised.43
There are two main
reasons why it is more difficult to diagnose children with post-traumatic
stress disorders and reactions. The early research had used general screening
instruments which were unsuitable to assess child stress reactions. 44
Information was primarily gathered from parents and teachers,45
who are known to underestimate children's reactions, partly due to their
own overwhelming stress reactions 46 and partly because
it is difficult, for parents also notice re-experience reactions and emotional
numbing in children, 47 which are two of the four essential
elements in a PSTD diagnosis.
The symptoms of post-traumatic
stress disorder in children are often different from adults, dependent
on the age and development of the child. In children the experience of
fear, helplessness and terror can be expressed in disorganised or agitated
behaviour. Specific for trauma in children are compulsory repeated behaviours
or monotonous play, in which themes or aspects of the behaviour are expressed,
nightmares without recognisable content, reduced interest in activities
the child used to engage in with pleasure, trauma specific fear that is
expressed at sensitive times before falling asleep, in the dark or in
the bathroom, reduced confidence in self and others, a sense of severely
limited future, and for small children, the loss of already mastered developmental
competencies such as cleanliness or language. 48
The psychological
reactions of children subjected to severe trauma are not uniform, but
are related to the context in which the experiences take place. From the
existing research, it is appropriate to conclude that children who have
been exposed to war, violence and persecution are all influenced by such
experiences, but their reactions are dependent on their physical and psychological
health, the presence or absence of parent/s, family and friends, their
material conditions, their earlier experiences, the types of violent experiences
to which they have been exposed, and the losses these experiences have
caused.49
War, torture and
other organised violence which characterises so much of the refugee experience
have a profound effect on children. Prolonged and repeated exposures to
trauma can have a profound influence on children's personality development
through its impact on trust, values and morality. Torture and violence
also have specific, well documented psychological effects that interfere
with parenting making the children of torture survivors particularly vulnerable
and at risk.50
It has been estimated
that during the past decade some 10 million children were deeply affected
and traumatised by armed conflicts and some 12 million left homeless and
dispossessed by violence.51
The international
community, through the international law in place for this purpose, has
taken on a responsibility to "respect and ensure", inter alia
, the recovery of children who are victims of armed conflicts consistent
with Article 2 of the Convention of the Rights of the Child:
"State Parties shall respect and ensure the rights set forth in
the present Convention to each child within their jurisdiction. . . "
Immediately after
the 1990 World Summit for Children, the then UNICEF Director stated that
"the leaders of the world have agreed to be guided by the principle
of a "first call for children" - a principle that the essential
needs of children shall be given high priority in the allocation of resources,
in bad times as well as good times, at national and international as well
as family levels."52
The 1924 Declaration
of Geneva contained five principles, one of which was that children should
be the first to receive assistance in emergencies "[the] child should
be the first to receive relief in times of distress." It is from
the Declaration that the "children first" principle developed
53 .
Violence has many
negative effects on the psychological development of children and adolescents.
Since World War II, the effects on children exposed to war and violence
has attracted growing scientific attention. 54
Early research tended
to see child reactions to violence as mediated completely through parental
experience and reactions and not to have long lasting effects on otherwise
healthy children.55
Contemporary research
has focused on more general aspects of the impacts on child development.
Several studies indicated that child experiences of war and organised
violence can have profound developmental consequences.56
The effect of war,
violence and oppression on children has three distinct origins:
(i) the child's
own direct experiences, such as assault, beatings, and witnessing violence;
(ii) the loss and separation from family and important family members;
(iii) the impact of traumatic experiences on parental responsiveness
and role function 57.
Epidemiological studies
indicate that:
Children are not mere passive receptors of experience, but actively process
and integrate experiences into an existing constructed social context.58
Children react differently to trauma according to their age.59
Pre-school children are most sensitive to traumatic events because of
limited cognitive resources and the consequent difficulties of understanding
and emotional processing of experiences. They are more dependent on the
reactions of their parents because of feelings of helplessness when confronted
with danger and need the most help from their surrounding emotional and
physical environment.60
Post traumatic reactions
include clinging to parents, violently protesting when left alone, afraid
of going to sleep, anxious towards strangers and nightmares 61
.
School age children
have more cognitive, emotional and behavioural coping resources towards
traumatic experiences. However psychosomatic problems, including poor
concentration, a generalised attitude of arousal and fear of the future
are linked to trauma experience.62
Adolescents because
of their understanding of the consequences traumatic event are somewhat
more vulnerable than younger children. They experience a premature and
forced entry into adulthood. This can result in self destructive diversionary
behaviour, pessimistic expectations and continued expectation of new trauma
experience.63
The childhood experience
of trauma and its sequelae are intertwined with parental and family functioning
64 .
This is most obvious
with parental loss and family destruction or disintegration as a consequence
of the traumatic event. However, with children in families who experience
trauma, post-traumatic disturbances in parental responsiveness and impaired
parental role function are major causes of secondary stress.65
The acute emotional
reactions of children following acute war related experiences can be summarised
within the concept of Post Traumatic Stress Disorder. Social support,
access to support from family or family substitutes, open and adequate
communication with the family and the possibility of participation in
play and structured activities can help children cope with such experiences.
In addition post traumatic disturbances of parental responsiveness and
role function renders children particularly vulnerable. Torture has specific,
well documented psychological effects that interfere with parenting, therefore
children of torture survivors are particularly at risk.
Detention and
Pre and Post -Natal Health and Development
Research based evidence
from the disciplines of physiology, education, and psychology overwhelmingly
demonstrate that the early life years are the most critical.66
The human brain's structure is biologically determined and develops in
the prenatal stage of life. The connections in the brain that are significant
to the foundation of later development are the consequence of the infant's
interaction with social environments.
This critical period
concept in brain development has been scientifically widely accepted for
some time. The critical period occurs prenatally or very soon after birth.
At this early development stage many changes are occurring in the brain
at their most rapid rates. Effective endogenous or exogenous stimulation
occurring during the critical period has long term consequences on subsequent
development. Critical period of brain development involves a complex of
change from rapid cell mass formation, various enzyme systems and electric
brain activity rapidly approach adult characteristics and when external
stimuli are most effective in causing long lasting behavioral changes
persisting into adulthood.67
An example of a single
event catastrophic effect is illustrated in the case of malnutrition and
brain development. During the first months of life the brain is the organ
that grows most rapidly. In the first months of life the brain grows at
about 2 mg per minute and by 14 months is approximately eighty per cent
of adult size. In malnourished infants the shape of electroencephalographic
peaks, as well as the frequency and amplitude of the waves occurs.68
The most rapid brain
development occurs in the first two life years, establishing the basis
of future intellectual, psychological, physical and immunological development.69
Environments that are stimulating of the child's senses coupled with good
nutrition contribute to the healthy development of brain organisation
and structure. Complex motor and perceptual experiences in infancy can
enhance later life learning ability and even compensate for early nutritional
and trauma disadvantage.
Based on this research,
principles that facilitate early childhood health through appropriate
care have been developed and are widely accepted and utilised in public
health child strategies.
These principles
of early childhood health facilitation and care are:
- Development commencement
is prenatal and learning begins at birth.
- Factors determining
the development of children are interdependent and multi-dimensional.
- The needs of children
are various and complex.
- Development is
multi-determined and dependent on nutrition and biomedical status, social
and cultural contexts.
- Development is
cumulative and not necessarily progressive.
- Development and
learning is a participatory process for children.
- Development and
learning are interactive and social processes for children.70
Detention and
the Principles of Early Childhood Care and Development
These public health
child development principles clearly are incompatible with the detention
of refugee children. In order to comply with health right instruments
and sound public health principles of child development, child refugee
programs should implement the principles and objectives of Early Childhood
Care and Development. This holistic approach to child health recognises
that physical, intellectual, emotional, spiritual development as well
as socialisation, and the attainment of cultural values are interrelated
factors in the health and life of the young child.71
Such an approach is consistent with refugee child policies that should
be based on children's health and developmental needs and capacities.
Therefore it is strongly recommended that the Commonwealth of Australia
should have a child refugee health policy and program based on the principles
of early childhood care and development which would be appropriately resourced
and applied to the needs of traumatised children with the objective of
facilitating their recovery and social reintegration.
In order to implement
such a public health program the current policy of detention of children
and their families for prolonged periods would obviously need to be reviewed
and comprehensively changed to a policy of refugee recovery and social
reintegration.
The current prenatal
and early childhood detention environment for refugee children is inimical
to the healthy development of infants and very young children.72
The establishment
of alternative child and health rights based policies is imperative. Specifically,
given the refugee experience of trauma the implementation of an Early
Childhood Care and Development Program for refugee children is urgently
required. A similarly targeted strategic public health program appropriate
for older and adolescent children is similarly required. The aim of the
programs would be the identification and diagnosis of childhood and adolescent
care and development issues arising from malnutrition and trauma experiences.
The strategies implemented would be to facilitate appropriate health,
education and cultural support environments. These programs would be consistent
with the Commonwealth of Australia's obligations under Ch IV of the Refugees
Convention as amended by the Refugees Protocol, as a Contracting State
to the Convention relating to the Status of Refugees and the Convention
on the Rights of the Child.
The protection obligations
imposed by the Convention upon the Commonwealth as a Contracting State
relate to the civil rights of refugees.73 In regard
to refugee children clearly the current detention policy is a breach of
those obligations and the childrens rights. The socio-economic health
standards enjoyed by most Australians and the feasibility of alternative
public health rights based policy and programs for the benefit of refugee
children makes this breach by the Australian Government particularly culpable
and inexcusable.
Overwhelmingly international
research indicates that refugee children suffer from the effects of the
refugee experience with significant numbers experiencing Post Traumatic
Stress Disorder. The dysfunctional environment of detention centres is
a totally inappropriate social environment for such children. The health
rights obligations of the Commonwealth and good public health policy requires
the release from detention of refugees and their families as a matter
of urgency to prevent the exacerbation of physical and psychological harms
and to assist in the required rehabilitation and restoration of health
to refugee children and their families.
The recovery of refugee
children to whom Australia as a Contracting State to human rights Conventions
has enforceable obligations can be reasonably achieved within the context
of specifically designed and targeted public health programs. Only this
kind of public health policy would comply with the Commonwealth's international
health rights obligations. It should not be a requirement on the advocates
of a health rights public health policy for refugee children to establish
the need for such a policy. Rather, it should be incumbent on the Commonwealth
to demonstrate how policies and the treatment of refugee children complies
with its human rights obligations as a Contracting State. Clearly, the
policy of detention of refugee children creates foreseeable harm and is
contrary to accepted public health principles and is contrary to the large
body of international research that documents the effects of the traumatic
experience of refugee children.
The Public Health
Association of Australia submits that the detention of refugee children
causes harm to children, many of whom are ill and desperately in need
of care. It is also submitted that the detention of refugee children breaches
all principles of good public health policy. Refugee children should be
assisted in recovery through sound public health policies without the
moral, economic and social cost that is being imposed on the Australian
community by the current policy regime.
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v Khawar [2002] HCA 14 (11 April 2002) http:// www. austlii. edu. au/au/cases
at 29 per McHugh and Gummow
Last
Updated 9 January 2003.
