This week, parliament will table the Australian Human Rights Commission’s report on children in immigration detention. From the public hearings the commission held last year, it is clear that Australia’s system of mandatory immigration detention, callous as well as counterproductive in general, is especially abusive when it comes to children.
When the commission reviewed the situation of children in immigration in 2004, it found Australia’s immigration detention framework was fundamentally inconsistent with international law and failed children in nearly every respect. More than a decade later, Australia’s policies remain essentially unchanged.
Although the detention of children on Christmas Island ended late last year, the government continues to detain children in facilities such as Darwin, and also offshore on Nauru, where some 135 children languish in detention.
These children are locked up for long periods of time, sometimes sharing facilities with unrelated adults. Education is irregular, primary health care is inadequate, and mental health services are insufficient, among other shortcomings.
The detention of children has serious long-term impacts, including developmental delays, anxiety, depression, post-traumatic stress disorder, memory loss, and other mental health consequences. Self-harm and thoughts of suicide are far too common.
The United Nations General Assembly has called on states not to detain migrant children solely because they or their parents have breached immigration laws. The UN Committee on the Rights of the Child, which oversees states’ compliance with the global child rights treaty, urges countries to “expeditiously and completely cease the detention of children on the basis of their immigration status.” The UN Secretary-General confirmed in 2013, “Detention of migrant children constitutes a violation of child rights.”
Within Europe, the Council of Europe’s Parliamentary Assembly concluded in 2011 that “no detention of unaccompanied children on migration grounds should be allowed.” Regional bodies for the Americas have issued similar calls.
Other countries have taken note.
For example, South African law requires unaccompanied migrant children to be treated in the same way as South African children who are in need of care. Belgium, Japan, and the United Kingdom have each announced policies aimed at ensuring alternatives to detention for migrant children. And last year Malta’s prime minister pledged to end the detention of migrant children.
To be sure, there’s often a significant gap between these countries’ promises and their practices.
But the disconnect shows how out of step Australia’s detention policies are. Its practice of detaining migrant children has been explicitly, and sharply, criticised by the Committee against Torture, the Committee on the Rights of the Child, and other UN bodies. Indeed, in a sign of its isolation on this issue, Australia is perhaps the only Organisation for Economic Cooperation and Development country to impose mandatory, indefinite detention on children.
Australia should respond to the commission’s report by immediately ending mandatory detention of migrant children in both onshore and offshore facilities and establishing true alternatives to detention.
Alternatives to detention need to go hand-in-hand with other protections. These include access to lawyers and, in addition, guardians to safeguard unaccompanied children’s best interests. For children who face persecution in their home countries, children who are stateless, and children with disabilities, legal and other assistance is especially important.
Regular contact with family members is crucial. More to the point, children should be able to see and interact with the outside world—including by attending local schools, and taking part in religious services and youth groups if they wish.
Other measures relate to a state’s obligations to provide unaccompanied migrant children the same opportunities as other children to get the life skills they’ll need as adults, including through education and vocational training.
Finally, Australia’s immigration policies should recognise that there are many situations when return is not in a child’s best interest. Examples include armed conflict and generalised violence, ongoing or recent natural disaster, and intra-family abuse.
It is time to end the detention of children solely for their immigration status and implement serious, safe, and satisfactory alternatives to detention.
Australia’s continuing failure to take these steps makes it an international outlier. More importantly, it does a tremendous disservice to the children in its care and to the values that should guide its policies.
Michael Bochenek is Senior Counsel to Human Rights Watch’s Children’s Rights Division.
