National Inquiry into Children in Immigration Detention
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Background Paper 2: Culture and Identity
In those States in which ethnic, religious or linguistic minorities … exist, a child belonging to such a minority … shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
Article 30, Convention on the Rights of the Child.
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Article 8, Convention on the Rights of the Child.
In this Background Paper
1. National Inquiry into Children in Immigration Detention
In November 2001, the Human Rights Commissioner announced an Inquiry into the adequacy and appropriateness of Australia's treatment of child asylum seekers and other children who are, or have been, held in immigration detention. The terms of reference for the Inquiry include consideration of the rights of children in immigration detention to culture, language and religion. [1]
This Background Paper provides an overview of international human rights standards on culture and identity that are relevant to the Inquiry. It is intended as a reference and guide to individuals or organisations wishing to make a submission to the Inquiry. It should be consulted where relevant, but it is not necessary to refer to a Background Paper when making a submission.
For further information
about the Inquiry, general information on relevant international treaties
and standards and the material used in the Background Papers, see Background
Paper 1: Introduction. This and other Background Papers are available
on the Human Rights and Equal Opportunity Commission web site at
http://www.humanrights.gov.au/human_rights/children_detention/background.html.
The term "child asylum seeker" is used throughout the Background Papers. While the focus in these papers is on children who have been detained when seeking asylum in Australia, it is not intended to exclude other children who have been detained. The Inquiry relates to any child who is, or who has been, in immigration detention. "Child" refers to any person under the age of 18.
Treaties, Rules and Guidelines
- Treaties that have been ratified by Australia, such as the Convention on the Rights of the Child, are binding on Australia in international law. The implementation of treaty rights of people in Australia are monitored by United Nations treaty bodies, such as the Committee on the Rights of the Child or the Human Rights Committee.
- The fact that Australia has ratified a treaty does not automatically incorporate it into Australian domestic law. Only when treaty provisions are incorporated into Australian law do they create enforceable rights in Australia. However, courts should interpret a law to be consistent with the provisions of a treaty that Australia has ratified.
- Other international documents and instruments such as United Nations Rules, General Comments by treaty bodies, United Nations High Commissioner for Refugees guidelines, United Nations General Assembly Declarations and publications by United Nations agencies are not binding on Australia as a matter of international law. They are, however, persuasive in interpreting treaties and contain goals and aspirations reflecting a consensus of world opinion.
2. Child asylum seekers
This Background Paper explores the need for child asylum seekers to retain their cultural identity in a new country. Child asylum seekers are likely to have experienced varying levels of violence and human rights abuses before or during their journey to Australia. The child's flight from her or his home country may include experiences of war, persecution, death, sexual assault, violence, fear, flight and displacement. More specifically, the child may have either witnessed the torture or murder of family members or directly suffered abuse or violence prior to or during flight. [2] This is followed by arrival in Australia, where a different culture, language and religion may be practised, incarceration in a detention facility when the child arrives without a visa and the fears and insecurities which attach to migrant flight. [3]
The consequences of these experiences for children are the disruption of their lives and the replacement of one set of rules and behaviours with another. Deprived of their familiar cultural environment, child asylum seekers often experience changes in their relationships with family and community members, as well as a new set of relationships in the foreign country. [4] These changes bring particular developmental and emotional pressures to bear on the child, which are addressed in Background Paper 3: Mental Health and Development.
In considering the rights to culture and an identity, the underlying principles of the Convention on the Rights of the Child (the Convention) must always be considered. All actions concerning the child must be non-discriminatory (article 2), ensure the best interests of the child (article 3) and enable the child to participate in decision making affecting her or him (article 12). [5]
3. Preservation of culture, religion and language
The term culture refers to languages, traditions, rituals, beliefs and art forms connected with an individual's identity.
Under the Convention, Australia must ensure that every child in Australia, regardless of nationality or immigration status and regardless of how the child arrived in Australia, enjoys the rights to culture and identity outlined in the Convention without discrimination of any kind. [6] Australia is obliged to ensure the right of children belonging to ethnic, religious or linguistic minorities to enjoy their culture, use their language and practise their religion together with other members of their group.[7] The Convention refers to "ethnic, religious or linguistic minorities", which includes child asylum seekers. [8] The right to culture, religion and language assumes great practical importance for such children and is connected to their right "to preserve [their] identity", as provided in article 8. [9]
The role of parents
The Convention recognises the responsibilities, rights and duties of parents to provide "appropriate direction and guidance" to their children.[10] Parents are in the best position to assist their children to exercise their cultural rights.
The child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Preamble, Convention on the Rights of the Child.
Since children depend so heavily on their parents or carers, particularly in younger years, it is important that parents are supported in directing the development of their child, particularly in a new cultural environment such as Australia. [11] Where there are no parents to guide an unaccompanied child, she or he is clearly in a more vulnerable category and must receive special protection and assistance, as required in the Convention [12] (see Background Paper 7: Legal Status).
Preservation of religion
Children must be able to profess and practise their religion. They must also be able to use their own language. Both these rights must be able to be exercised not only in the child's immediate family circle, but also in conjunction with members of the child's community. [13]
Religion includes theistic and non-theistic beliefs. It is important that the child is able to renew religious and ritual practices which may have been disrupted during refugee or migrant movement. These practices are important physical manifestations of the child's culture and assist in preserving the identity of the child. [14] The UNHCR stresses the benefit to community mental health of festivals and rites of passage:
Religious festivals and rites of passage such as birth, transition into adulthood, marriage and death are extremely important in unifying a community and in conferring identity on its individual members. The importance of such activities to community mental health should not be underestimated. For example, the provision of extra food for communal meals, or other material assistance for funerals (burial cloths, coffins, firewood, etc.) can give vital emotional support and sustain culture through a crisis.[15]
In order to practise their religion,[16] along with other members of their group, a child should have access to "books and other items of religious observance and instruction and a diet in keeping with his or her religion". [17] They should be allowed to attend regular religious services. Parents' responsibilities in ensuring their children receive appropriate teaching and practice should be specifically recognised. Qualified religious representatives should be allowed to pay pastoral visits to child asylum seekers in detention to ensure proper instruction in their religious beliefs. [18]
Preservation of language
Language is an important element of a child's identity and any loss of the child's first language may have long-term consequences for the child. [19] Where the mother tongue is lost, the child can become unable to communicate with her or his family and community. Failure to communicate properly with her or his parents may impact on a child's development. It is important to recall that, although young children may be quick to adopt the local language, parents will struggle to pick up a foreign language in the same way, especially if they are illiterate. Child asylum seekers must be able to retain and, where necessary, become literate in their mother tongue, in addition to learning the local language. While children's rights to use their own language under the Convention may not necessarily include being taught entirely in that language, it may require that part of their education be in their first language, particularly for young children. [20]
Arts and recreation
Arts and recreation such as traditional music and dance allow the communication of cultural values from one generation to the next and help restore and maintain social cohesion in a child's life. Such activities include continued practice and training in traditional skills and the celebration of traditional events or festivals. Sports, games and other recreational activities are important for community spirit and provide entertainment and relieve stress. [21] It is important for young children to be able to play and express themselves freely.
4. Right to identity
States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
Article 8(1), Convention on the Rights of the Child.
The right of children to preserve their identity is another aspect of their culture. Article 8 of the Convention defines identity as including the child's nationality, name and family relations. [22]
Children's right to nationality is connected to their asylum claim, including the question of acquiring nationality rights in the country where they apply for asylum, which will depend on the law of the local country (Australia) (see Background Paper 7: Legal Status). Often, the reason why child asylum seekers are in Australia is because they have lost their nationality rights in their home country.[23] This loss may be on account of their family's religious, ethnic or social origin, with the authorities persecuting the child's family or community on this basis.
Children's right to a name is connected with their identity and must be respected always, including through registration and record-keeping in Australia. [24]
The right to family relations is reflected throughout the Convention. [25] However, article 8, which provides for the right of the child to preserve her or his identity "including nationality, name and family relations", is qualified by the phrase "as recognised by law". The United Nations Children's Fund (UNICEF), noting the lack of clarity in this phrase, states that the right extends beyond knowing who one's parents are (see article 7 [26]), to include the child's siblings, grandparents and other relatives. The term "family" can include "where applicable, members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child" (article 5). The concept of "children's identity" extends beyond identity based on the family, but includes the child's ability to form relationships with people outside the family:
From the secure foundation of an established family environment, children can enjoy complex and subtle relationships with other adults and with a range of cultures, to a much larger degree than is often recognised. Thus children's best interests and senses of identity may be sustained without having to deny them knowledge of their origins, for example after reception into State care… [27]
The right to family relations also extends to the right of separated children to be reunited with their parents. [28]
The Convention provides that States must recognise the seriousness to children of the loss of their identity by ensuring resources are dedicated to remedy the situation. [29]
Article 22(2) obliges Australia to actively trace the family or relatives of unaccompanied child asylum seekers. [30] In addition, unaccompanied children should have any changes to their identity, such as change of nationality, officially recorded. [31]
Ways of ensuring protection for unaccompanied children include securing "appropriate temporary placement" for children while their identity is established, [32] including explaining to children what is happening and why. Whether "appropriate temporary placement" would include placement in detention rather than in family care will be considered in the Inquiry, and submissions are welcomed on this point.
5. Restoring cultural normalcy
The social and mental well-being of all refugees, but particularly of refugee children, can be most effectively assured by the quick re-establishment of normal community life.
UNHCR Guidelines on Protection and Care (1994), ch 2.
According to the UNHCR, restoring a sense of cultural normalcy to child asylum seekers can be vital to ensuring normal development and is clearly in the best interests of the child. [33] There is a tendency for children who come into contact with a new culture to adapt and conform to the new environment and to lose their culture more quickly than adults. Care should be taken to ensure that children's culture is protected before this loss occurs.
Re-establishing normal community life can restore the social and mental well being of child asylum seekers. [34] Clearly, the ability of children to return voluntarily to their country of origin in a situation of safety and security is the best way to return a child to normal life. Sadly, this will not always be possible. Child asylum seekers are entitled to refugee status once they cross an international border and meet the international definition of refugee and are unlikely to be allowed early return (discussed in Background Paper 6: Legal Status). The UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997) state that it should be presumed their parents or families have sent unaccompanied children to a country of asylum in the belief that they need international protection and that accordingly their asylum claims should be considered using child-friendly interview techniques [35] (see Background Paper 7: Legal Status).
Child asylum seekers who are detained in Australia on account of their unauthorised arrival will spend anything from a few weeks to a few years in detention, depending on the length of time it takes to determine their asylum claim. If their asylum application is rejected, they may face lengthy periods of time in detention while appeals are exhausted and travel documents are sought to allow their forced removal from the country. If accepted, they are eligible for release on a temporary visa, with their longer term future still uncertain.
This Inquiry will consider the treatment of all child asylum seekers and refugees in Australia, including how their cultural rights are ensured.
6. Ensuring children's participation
The participation of children capable of forming their own views in decision-making is a central theme of the Convention. [36] Positive measures may be needed to ensure child asylum seekers are heard and their needs met. The UN Human Rights Committee has clarified that States Parties may need to undertake positive measures "to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with other members of their group". [37] For further discussion of the right to participate in decision-making, see Background Paper 1: Introduction.
7. Questions for submissions
The following questions relate to the maintenance of a child's culture while in immigration detention and may assist organisations and individuals in making submissions to the Inquiry.
- How does Australia meet its commitments to maintain children's culture under article 30 of the Convention with regard to legislation, policy and practice?
- What coordination, if any, is there across government departments to ensure an emphasis on restoring cultural normalcy to children? What coordination is there between the Department for Immigration, Multicultural and Indigenous Affairs (DIMIA), Australasian Correctional Management (ACM) and other relevant agencies? Is there any independent overview of government arrangements, including goals and indicators?
- What are the daily programs in place in detention facilities to ensure that the language, religion, arts and traditions of children's culture can be met? How are local and ethnic communities involved? What should daily programs include?
- To what extent do relevant non-governmental organisations partner or complement these programs?
- To what extent is the family unit supported in immigration detention to ensure children can practice their culture? How is the preservation of culture included in educational programs?
- What religious instruction is available for children in immigration detention? How regularly may children participate?
- What alternatives to current arrangements exist overseas? To what extent can immigration detention be made to work better to preserve children's cultural identity?
ENDNOTES:
1 The full terms of reference are available at http://www.humanrights.gov.au/human_rights/children_detention/terms.html.
2 UNHCR (1994), Refugee Children: Guidelines on Protection and Care, Geneva (UNHCR Guidelines on Protection and Care).
3 UNHCR Guidelines on Protection and Care, ch 2.
4 The country of asylum (Australia); see UNHCR Guidelines on Protection and Care, ch 3.
5 See Background Paper 1: Introduction.
6 Article 2, Convention. See Background Paper 1: Introduction
7 Article 30 of the Convention. Article 30 effectively replicates article 27 of the International Covenant on Civil and Political Rights (ICCPR), which in turn emphasises the right of persons belonging to "ethnic, religious or linguistic minorities" to the enjoyment of their own distinctive culture. Article 27 ICCPR provides: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."
8 Article 30, Convention. The Convention refers to all children on State territory, regardless of whether they are citizens or non-citizens. Article 2 prohibits discrimination on the basis of immigration status (see also General Comment 23 of the UN Human Rights Committee on article 27, ICCPR). Note that the right to non-discrimination (article 2) and the separate right for everyone to be treated equally (article 26), do not mean that minorities cannot be recognised or are not in need of special protective measures.
9 Article 8 is outlined below. See too UNHCR Guidelines on Protection and Care; UNICEF (1998), Implementation Handbook for the Convention on the Rights of the Child (UNICEF Implementation Handbook), United Nations Children's Fund, New York, p407. These note articles 7 and 9 of the Convention (right to know both parents), article 14 (freedom of religion under guidance of parents), article 16 (prevents arbitrary or unlawful interference with the child's family), article 20 (where a child is deprived of a family environment, there should be cultural continuity in their upbringing), article 21 (repeats this for inter-country adoption), article 29 (respect for culture in the aims of education) and articles 10 and 22 (require positive measures for child asylum seekers).
10 Articles 5, and 18, Convention. This right persists unless there is clear evidence of abuse or neglect, in which case the State is expected to intervene to protect the child; see articles 19, 34 and 39, Convention. Under article 3, Australia is obliged to promote the best interests of the child. Some practices, asserted to be based on the customs of a country, such as female genital mutilation or denial of basic education to girl children, violate a child's basic human rights. See article 24(3) of the Convention and article 2(f) of the Convention on the Elimination of all forms of Discrimination Against Women.
11 Parents can include "…where applicable, members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child..", (article 5, Convention).
12 Article 20(1) of the Convention provides: "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."
13 See also article 27, ICCPR.
14 UNHCR Guidelines on Protection and Care, ch 3.
15 UNHCR Guidelines on Protection and Care, ch 3.
16 See too, articles 18(1) and 27 ICCPR; article 1(1) Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
17 Human Rights and Equal Opportunity Commission (HREOC), Immigration Detention Guidelines, para 5.1. See too Article 6 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; Rule 42, UN Standard Minimum Rules for the Treatment of Prisoners; Rule 48, United Nations Rules for the Protection of Juveniles Deprived of their Liberty; see also Guideline 10 (viii) UNHCR (1999) Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers.
18 HREOC Immigration Detention Guidelines, para 5.2; Rule 41, UN Standard Minimum Rules for the Treatment of Prisoners; Rule 48, United Nations Rules for the Protection of Juveniles Deprived of their Liberty.
19 For example, if the child's asylum claim, along with that of the family, is rejected and they are repatriated to their country of origin, any loss of the child's mother tongue could be devastating to her or his future survival.
20 UNICEF Implementation Handbook, p413, UNHCR Guidelines on Protection and Care, ch 3. See generally, UNHCR Guidelines on Protection and Care, ch 8.
21 UNHCR Guidelines on Protection and Care, ch 3.
22 See too UNICEF Implementation Handbook, p113.
23 See Background Paper 7: Legal Status.
24 See article 7, Convention, article 24 ICCPR, UNHCR 1997 Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum; at para5.6; UNHCR Guidelines on Protection and Care, ch 8.
25 In particular articles 5, 7, 8, 9, 10, 18, 22, Convention.
26 Article 7(1) provides: "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".
27 UNICEF Implementation Handbook, p113.
28 UNICEF suggests that long waiting lists for immigrant or emigrant children should be replaced by speedy decisions "and with a presumption in favour of the child being allowed to join their parents", citing articles 9, 10 and 22.UNICEF, Implementation Handbook, p113.
30 Article 22(2) provides: "States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention."
31 See Background Paper 7: Legal Status.
32 UNICEF Implementation Handbook p115.
33 UNHCR Guidelines on Protection and Care, ch 3 (discussed in Background Paper 3: Mental health and Development).
34 UNHCR Guidelines on Protection and Care, ch 2.
35 According to the UNHCR, all interviews with unaccompanied children must be carried out "by professionally qualified persons, specially trained in refugee and children's issues. Insofar as possible, interpreters should also be specially trained persons." UNHCR (1997) Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, Executive Summary.
37 Commenting on the equivalent provision of ICCPR article 27; General Comment 23, at para 6.2. See also para 6.1.