A last resort? - Summary Guide: Unaccompanied children in detention
A last resort?
National Inquiry into Children in Immigration Detention
The Convention on the Rights of the Child states that unaccompanied children - particularly those seeking asylum - need special protection and assistance. Where unaccompanied children have a legal guardian, their best interests must be the guardian's 'basic concern'.
Most of the unaccompanied children who come to Australia seeking asylum arrive without a visa and are, therefore, automatically held in immigration detention.
Between 1 January 1999 and 30 June 2002, 285 unaccompanied children arrived in Australia without a visa and sought asylum. They were all detained. The highest number of unaccompanied children in detention was in July 2001 when 143 were held in detention.
Most unaccompanied children were adolescent boys - either from Afghanistan or Iraq - and most were detained at Curtin, Port Hedland and Woomera detention centres.
Alternatives to detention
During the course of the Inquiry, many unaccompanied children were detained in remote detention centres for lengthy periods of time. There are, however, options available to the Minister and the Department to remove unaccompanied children from detention centres. For instance, they can be granted a bridging visa or transferred to an alternative place of detention in the community. From December 2002 onwards, it was Department policy to make one of these alternatives a priority.
However, between 1999 and the end of 2001, only one unaccompanied child was removed from detention and placed in the community - an eight-year-old boy who was granted a bridging visa after being detained at Woomera for four months. Between January and February 2002, the majority of unaccompanied children remaining in detention were transferred to alternative detention in foster homes in Adelaide.
In December 2003 there were no unaccompanied children remaining in detention centres.
Who was responsible for the care of unaccompanied children in detention?
According to Australian law, the Minister is the legal guardian of all unaccompanied children seeking asylum in Australia. The Minister has the same rights and duties as a natural guardian and remains the child's guardian from the moment of arrival until he or she turns 18 or leaves Australia.
The Minister is able to delegate this guardianship role to another representative of the Commonwealth government or a representative of a State or Territory government. Since 1999 guardianship has been formally delegated to State child welfare authorities and since 2002 to the Department's Managers or Deputy Managers. However, since 1999, day-to-day care of unaccompanied children in detention centres has generally been understood to be the responsibility of ACM.
The Minister's role as guardian of unaccompanied children raises a significant conflict of interest as the Minister is also the detention authority and the visa decision-maker. Given these multiple roles, it is difficult for the Minister, or Departmental delegate, to make the best interests of the child the primary consideration when making decisions concerning unaccompanied children.
This conflict is not resolved by delegating the guardianship function to the Department Managers. Indeed, those Managers are placed in the impossible position of trying to gain the trust of the unaccompanied children when the same children view them as the people responsible for their detention.
I regarded the failure to remove UAMs (unaccompanied children), over whom the Minister for Immigration was guardian, from [Woomera] as a matter of particular concern. There did not appear to be a competent and independent advocate for UAMs.
Former Woomera psychologist, submission to the Inquiry
ACM's care of unaccompanied children
Many individual ACM staff worked hard to meet the needs of unaccompanied children in detention and unaccompanied children were, quite appropriately, given greater attention by ACM staff than children with parents.
Designated officers with responsibility for the care of children were appointed in Woomera and Port Hedland in early 2001 and in Curtin by late 2001.
ACM staff also developed a range of strategies over time to attempt to improve the care available for unaccompanied children, such as case management plans, progress reports and regular meetings to discuss their needs.
However, these systems were generally not able to address the problems and serious distress faced by these children - as evidenced when a group of unaccompanied children at Woomera took part in acts of self-harm in November 2001 and January 2002.
This raises the question as to whether the best interests of unaccompanied children can ever be met within a detention centre, especially when they are detained for long periods.
After one month they brought one woman but you don’t know who she is – we are just UAMs with her. At this age we need mother and father – we not leave mother and father unless there are big things to make us leave our families.
Unaccompanied child, Woomera, January 2002
The role of the Department
The Department has a role to act as the delegated guardian of unaccompanied children in detention. Department Managers were responsible for monitoring the care received by unaccompanied minors in each centre.
However, evidence to the Inquiry suggests that the Department had minimal involvement in the care of unaccompanied children and that its monitoring was ineffective.
Department Managers faced significant obstacles in effectively fulfilling their role as the delegated guardian of unaccompanied children - they did not have child care qualifications or experience and were not provided with specific training to help them understand and meet the needs of unaccompanied children.
There were also no guidelines describing the role of the Department Manager until late 2002 - by which time most unaccompanied children were no longer in detention centres.
During January 2002 a group of unaccompanied children in the Woomera detention centre took part in hunger strikes, lip-sewing and other acts of self-harm. These violent protests were serious enough to trigger the transfer of almost all unaccompanied children in Woomera to foster care and group homes in Adelaide.
The first group of children released into alternative detention included five unaccompanied children. On 14 January 2002, the Department requested that the South Australian child protection agency (FAYS) conduct urgent investigations regarding three of these children, the youngest unaccompanied children in the centre. These children were aged between 12 and 14 years and had been detained at Woomera between June and August 2001.
On 16 January 2002, hunger strikes began at Woomera in response to the Minister's announcement that processing of applications by Afghan asylum seekers would be suspended. Following are details regarding two of the unaccompanied children:
Child 1 – 12-years-old, detained June 2001, transferred to Adelaide 24 January 2002
Case management plan (December 2001): ‘[Child] is always polite and well behaved. He tends to follow the lead of the older boys and subsequently has been involved in one minor disturbance.’ On 20 January 2002, this child sewed his lips together. He remained on hunger strike until he was removed from the centre on 24 January 2002.
Child 2 – 14-years-old, detained August 2001, transferred to Adelaide 24 January 2002
Case management plan (December 2001): ‘[Child] interacts well with the other UAMs and is generally polite and well mannered. He follows direction accordingly and has never been in any trouble.’ A month later, this child threw himself against a wall, threatened to kill himself at least three times, went on hunger strike and ingested shampoo.
Four unaccompanied children were removed from Woomera on 27 January 2002. Three of these children had been assessed by FAYS in the previous days. FAYS reported on 26 January 2002 that the children assessed ‘should be removed as a matter of urgency from the Detention Centre.’ Following are details regarding two of these children.
Child 3 – 15-years-old, detained June 2001, transferred to Adelaide 27 January 2002
Case management plan (December 2001): '[Child] is a very quiet young man and is always polite and well mannered. He tends to follow the other UAMs in which ever direction they take. [He] has been involved in one minor disturbance.'
On 23 January FAYS noted that the child reported that 'he had sewn his own lips and is on a hunger strike that is in its 8th day'; 'that when upset he removes himself to a corner and cries and has no one to talk to about his situation'; and that he had 'no adult support within the centre and no information about his own family's whereabouts and well being.'
Child 4 – 16-years-old, detained April 2001, transferred to Adelaide 27 January 2002, released 12 February 2002
No case management plan was available for this child. On 26 January 2002, FAYS reported that the child had been on hunger strike since at least 19 January 2002 and had ingested shampoo on 21 January 2002, when he was admitted to the Woomera Base Hospital. FAYS reported that he ‘presented as highly depressed, with an inability to focus his energies on anything other than dying via starvation and dehydration.’
A number of unaccompanied children remained in the centre. Five of these children were the subject of an assessment by FAYS on 28 January 2002, after participating in hunger strikes. According to FAYS:
[The children] report being on a hunger strike for 10 days (in protest of holds on visa processing) but say they have been taking liquids … They were resolved that a drastic action of self-harm was the only option to draw attention to their despair of their living conditions. They also expressed a futility and frustration at the amount of people who had spoken to them within the camp, concerned for their well-being, who do nothing to change their circumstances.
FAYS recommend the children’s immediate release from the centre. The Department did not act on this recommendation. A week later, on 7 February 2002, these unaccompanied children reinstated a pact to self-harm if they were not removed from the centre by the end of the day. Following an urgent recommendation by the South Australian Department of Human Services on 7 February, these unaccompanied children were released into alternative detention the next day.
The Commonwealth breached the Convention on the Rights of the Child by failing to take all appropriate measures to ensure that unaccompanied children in detention received the special protection and assistance they need to enjoy their rights.