2 Findings and recommendations

This Inquiry report considers the impact of detention on children at different life stages and of children affected by different circumstances.

The findings and recommendations are broadly designed to reflect the ages, stages and life circumstances of children in detention.

 

FindingsFindings against the Convention on the Rights of the Child

Findings relevant to all children in detention

The mandatory and prolonged immigration detention of children is in clear violation of international human rights law.

Both current and former Ministers of Coalition and Labor governments stipulate that the detention of children is (and was) not intended as part of deterrence policy. They confirm that the detention of children would not, in fact, be a deterrent.

At the time of writing this report, adults and children have been in detention for over one year and two months on average, over 413 days. Children who arrived on, or after 19 July 2013, are to be transferred to Nauru. This transfer can happen at any time. Children are detained on Nauru and there is no timeframe for their release.

Prolonged detention is having profoundly negative impacts on the mental and emotional health and development of children. In the first half of  2014, 34 percent of children in detention were assessed as having mental health disorders at levels of seriousness that were comparable with children receiving outpatient mental health services in Australia. Less than two percent of children in the Australian population were receiving outpatient mental health services in 2014.[7]

Children are exposed to danger by their close confinement with adults who suffer high levels of mental illness. Thirty percent of adults detained with children have moderate to severe mental illnesses. 

The numerous reported incidents of assaults, sexual assaults and self-harm involving children indicate the danger of the detention environment.
Prior to 2014, the mental health assessments of children in detention were not conducted using child-specific, clinician-rated measuring tools. Therefore, there is limited clinical data about the mental health impacts of detention on children over time.

The introduction of the mental health assessment tool (the HoNOSCA) into the detention system in 2014 provides a standardised measure for mental health assessments of children and benchmark data against which to assess the mental health progress of individuals and cohorts over time.

Despite the best efforts of the Department of Immigration and Border Protection and its contractors to provide services and support to children in detention, it is the fact of detention itself that is causing harm. In particular the deprivation of liberty and the exposure to high numbers of mentally unwell adults are causing emotional and developmental disorders amongst children.

 

Current detention law, policy and practice does not address the particular vulnerabilities of asylum seeker children nor does it afford them special assistance and protection. Mandatory detention does not consider the individual circumstances of children nor does it address the best interests of the child as a primary consideration (article 3(1)).

Detention for a period that is longer than is strictly necessary to conduct health, identity and security checks breaches Australia’s obligations to:

  • detain children as a measure of last resort and for the shortest appropriate period of time (article 37(b))
  • ensure that children are not arbitrarily detained (article 37(b))
  • ensure prompt and effective review of the legality of their detention (article 37(d)).

Given the profound negative impacts on the mental and emotional health of children which result from prolonged detention, the mandatory and prolonged detention of children breaches Australia’s obligation under article 24(1) of the Convention on the Rights of the Child

At various times children in immigration detention were not in a position to fully enjoy their rights under articles 6(2), 19(1), 24(1), 27 and 37(c) of the Convention on the Rights of the Child.

Findings in relation to conditions of detention on Christmas Island

Children and their families frequently describe detention as punishment for seeking asylum. The feeling of unfairness is particularly strong amongst people who arrived on or after 19 July 2013.

Conditions of detention vary widely across the detention network and this has a differential impact on the physical health of children.

The harsh and cramped living conditions on Christmas Island create particular physical illnesses amongst children.

The children in detention on Christmas Island live in cramped conditions. Families live in converted shipping containers the majority of which are 3 x 2.5 metres. Children are effectively confined to these rooms for many hours of the day as they are the only private spaces that provide respite from the heat. Up until July 2014, families living in the (now closed) Aqua and Lilac Detention Centres shared common bathroom facilities with everyone in those centres.

Children currently detained on Christmas Island had almost no school education for the period; from July 2013 to July 2014. The Department rectified the situation in July 2014.

 

At various times children detained on Christmas Island were not in a position to fully enjoy the following rights under the Convention on the Rights of the Child as a result of their living conditions in detention:

  • the right to enjoy ‘to the maximum extent possible’ the right to development (article 6(2))
  • the right to the highest attainable standard of health (article 24(1))
  • the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development (article 27(1))
  • the right to be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age (article 37(c)).

The failure of the Commonwealth to provide education to school aged children on Christmas Island between July 2013 and July 2014 is a breach of the right to education in article 28(1) of the Convention on the Rights of the Child.

Mothers and babies

Detention impedes the capacity of mothers to form bonds with their babies.

There are unacceptable risks of harm to babies in the detention environment.

Babies born in detention in Australia to stateless parents may be sent to Nauru without any recorded nationality.

The Commonwealth has a responsibility to provide babies with a nationality when they are born to stateless parents in detention; Convention on the Rights of the Child, articles:

7(1): The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

7(2): States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

 

At various times mothers and babies in detention were not in a position to fully enjoy the following rights under the Convention on the Rights of the Child:

  • the right to the highest attainable standard of health (article 24(1));
  • the right to enjoy ‘to the maximum extent possible’ the right to development (article 6(2)) and the associated right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development (article 27(1)).
  • the right to be protected from all forms of physical or mental violence (article 19(1))

Preschoolers

Detention is impeding the development of preschool aged children and has the potential to have lifelong negative impacts on their learning, emotional development, socialisation, and attachment to family members and others.

Preschoolers are exposed to unacceptable risks of harm in the detention environment.

Lack of access to preschool activities for children who arrived on or after 19 July 2013 has learning and development consequences for children at this critical stage of brain development.

 

At various times preschoolers in detention were not in a position to fully enjoy the following rights under the Convention on the Rights of the Child:

  • the right to the highest attainable standard of health (article 24(1));
  • the right to enjoy ‘to the maximum extent possible’ the right to development (article 6(2)) and the associated right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development (article 27(1)).
  • the right to be protected from all forms of physical or mental violence (article 19(1))

Primary school aged children

Detention is disrupting the normal development of primary school aged children and is damaging their emotional health and social development.

There are unacceptable risks of harm to primary school aged children in the detention environment.

The lack of school education on Christmas Island for primary school aged children who arrived in Australia on or after 19 July 2013 has had negative impacts on their learning and may have long term impacts on the cognitive development and academic progress of these children.

 

At various times primary school aged children in detention were not in a position to fully enjoy the following rights under the Convention on the Rights of the Child:

  • the right to the highest attainable standard of health (article 24(1));
  • the right to enjoy ‘to the maximum extent possible’ the right to development (article 6(2)) and the associated right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development (article 27(1)).
  • the right to be protected from all forms of physical or mental violence (article 19(1))
  • the right to be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age (article 37(c)).

The failure of the Commonwealth to provide education to primary school aged children on Christmas Island between July 2013 and July 2014 is a breach of the Convention on the Rights of the Child, article:

28(1): States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a)  Make primary education compulsory and available free to all.

 

Teenagers

Detention puts teenagers at high risk of mental illness, emotional distress and self-harming behaviour.

Detention impedes the social and emotional maturation of teenagers.

The lack of school education on Christmas Island for teenagers who arrived in Australia on or after 19 July 2013 has had negative impacts on their learning and may have long term impacts on the cognitive development and academic progress of these children.

 

 

At various times teenagers in detention were not in a position to fully enjoy the following rights under the Convention on the Rights of the Child:

  • the right to the highest attainable standard of health (article 24(1));
  • the right to enjoy ‘to the maximum extent possible’ the right to development (article 6(2)) and the associated right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development (article 27(1))
  • the right to be protected from all forms of physical or mental violence (article 19(1))
  • the right to be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age (article 37(c)).

The failure of the Commonwealth to provide education to teenagers on Christmas Island between July 2013 and July 2014 is a breach of the Convention on the Rights of the Child, article:

28(1): States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(b) …make [different forms of secondary education] available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need.

 

Unaccompanied children

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

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

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

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

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

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

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

 

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

39: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
The failure of the Minister for Immigration and Border Protection to release unaccompanied children from detention breaches the Convention on the Rights of the Child, articles 3(1)and
18(1): …Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
Current guardianship arrangements do not afford unaccompanied children special protection and assistance as required by the Convention on the Rights of the Child. This breaches article:

20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

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

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

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

Children indefinitely detained

Some children have been detained for longer than 27 months because at least one of their parents has an adverse security assessment by ASIO. The indefinite detention of these children raises special concerns for their physical and mental health and their future life opportunities. 

 

 

Children with at least one parent who has an adverse security assessment by ASIO may be subject to extremely long periods of detention. The failure of the Commonwealth to consider less restrictive detention alternatives for these families would be a breach of the Convention on the Rights of the Child, article 37(b).

Children in detention on Nauru

Children on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress. The Commission is concerned that detention on Nauru is mandatory for children and that there is no time limit on how long they will be detained.

 

The Commission finds that the inevitable and foreseeable consequence of Australia’s transfer of children to Nauru is that they would be detained in breach of article 37(b) of the Convention on the Rights of the Child.
           
The Commission finds that Australia transferred children to Nauru regardless of whether this was in their best interests, in breach of article 3(1) of the Convention on the Rights of the Child.

The Commission has serious concerns that the conditions in which children are detained on Nauru are in breach of the Convention on the Rights of the Child, articles 19(1), 20(1), 24(1), 27(1), 27(3), 28, 31 and:

16(1): No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

37(a): No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

 

Continuing impacts of detention

While children show noticeable improvements in social and emotional wellbeing once released from detention, significant numbers of children experience negative and ongoing emotional impacts after prolonged detention.

  • The Commonwealth is under an obligation to provide medical and associated support services to promote the physical and psychological recovery, rehabilitation and reintegration of children who have had their mental health affected by their time in detention.

 

 

The Commission makes the general finding in chapter 4 (supported by the evidence in chapters 4 and 6 to 11) that the mandatory and prolonged detention of children breaches Australia’s obligation under article 24(1) of the Convention on the Rights of the Child because of the impact of prolonged detention on the mental health of people detained. 

The Commonwealth is under an obligation under article 24(1) of the Convention to provide medical and associated support services to promote the physical and psychological recovery, rehabilitation and reintegration of children who have had their mental health affected by their time in detention.

Recommendations

Recommendation 1

It is recommended that all children and their families in immigration detention in Australia and detained on Nauru be released into the Australian community as soon as practicable and no longer than four weeks after the tabling of this report.

Recommendation 2

It is recommended that the Migration Act 1958 (Cth) be amended to provide that children and parents may be detained only for a strictly limited period of time necessary to conduct health, identity and security checks.  Continued detention beyond this period of time should only be permitted following an individual and periodic assessment by a court or tribunal of the necessity for this continued detention. 

Recommendation 3

It is recommended that the Department of Immigration and Border Protection commence processing refugee applications within four weeks of the tabling of this report and that those found to be refugees be granted Protection visas.  

Recommendation 4

It is recommended that no child or parent be taken to a regional processing country where they will be detained unless that country can provide a rule of law based regime for their assessment as refugees and unless the conditions of detention meet international standards.

Recommendation 5

It is recommended that all immigration detention facilities on Christmas Island be closed.

Recommendation 6

It is recommended that an independent guardian be appointed for unaccompanied children seeking asylum in Australia.

Recommendation 7

It is recommended that an independent review be conducted into the Department of Immigration and Border Protection’s decision to approve the use of force to transfer unaccompanied children from Bravo Compound to Charlie Compound on 24 March 2014.

Recommendation 8

It is recommended that all detention centres be equipped with sufficient CCTV or other cameras to adequately capture significant incidents in detention.  All recordings of such incidents in detention centres should be maintained so that these recordings are available as evidence in any review process.

Recommendation 9

It is recommended that ASIO review the case of each family in detention with a parent that has received an adverse security assessment in order to identify:

  • whether there is a risk in granting the family a visa or placing them in community detention; and
  • how any risk could be mitigated, for example by a requirement to reside at a specified location, curfews, travel restrictions, reporting requirements or sureties.

Recommendation 10

It is recommended that in light of the significant mental health impacts of immigration detention, children currently in immigration detention continue to be assessed at regular periods using the HoNOSCA mental health assessment tool to ensure consistency in screening methodology.

Recommendation 11

It is recommended that  in light of the significant mental health impacts of immigration detention children currently and previously detained, at any time since 1992, have access to government funded mental health support

Recommendation 12

It is recommended that those children held on Christmas Island who have been denied adequate education from July 2013 to July 2014 be assessed to determine the support they require to meet the learning benchmarks appropriate for their age and stage of development.

Recommendation 13

It is recommended that all families and unaccompanied children in immigration detention receive information about organisations that provide free legal advice and have regular access to facilities such as phones and IT equipment.

Recommendation 14

It is recommended that the Convention on the Rights of the Child to which Australia is a party, be implemented by legislation as directly applicable Australian law.

Recommendation 15

It is recommended that a royal commission be established to examine the:

  • long term  impacts of detention on the physical and mental health of children in immigration detention;
  • reasons for continued use of this policy since 1992, including offshore detention and processing; and
  • remedies for any breaches of the rights of children that have been detained.

Recommendation 16

It is recommended that an independent review be conducted in 12 months to identify the implementation of these recommendations.

 



[7]International Health and Medical Services, Health of the Nation Outcome Scales for Children and Adolescents (HoNOSCA) screening tool results of children in immigration detention in Australia 2014 for period April to June 2014. First Notice to Produce, 24 July 2014.