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Submission to the National Inquiry into Children in Immigration Detention from
Catholic Welfare Australia
The Reference to Human Rights and the Rights of Children
Children and Institutional Care
The Family Unit Is Central To The Development of Children
Additional Measures and Safeguards to Protect Child Asylum Seekers
Temporary Protection Visas And Support For Children Upon Their Release From Detention
Catholic Welfare Australia is a Commission of the Australian Catholic Bishops' Conference and is the peak body that represents the social welfare apostolate of the Catholic Church in Australia at a national level. It is a national federation of Catholic social service organisations that operate in local communities. Membership of Catholic Welfare Australia is drawn from the Catholic social welfare organisations operating under the authority of a diocesan bishop or a religious order and from Catholic lay associations.
Concern for the child, even before birth, from the very first moment of conception and then throughout the years of infancy and youth, is the primary and fundamental test of the relationship of one human being to another. (Familiaris consortio n26)
The above statement, made by Pope John Paul II in his address to the General Assembly of the United Nations on 2 October 1979 and repeated in the Apostolic Exhortation: Familiaris consortio, provides the context and the rationale for the following submission from Catholic Welfare Australia. During his address to the United Nations in 1979 Pope John Paul II also emphasised the importance of human rights as the basis for ensuring a better future for all the children of the world. [1]
It is the view of Catholic Welfare Australia that the present practice of placing children in immigration detention centres fails to demonstrate due regard for their human dignity. It is also to disregard the due care that must be taken of those who are more vulnerable or dependent on others for care and protection.
There are a range of human rights instruments that can be referred to as a means of challenging the present use of mandatory detention of children but Catholic Welfare Australia would like to emphasise that the obligation for any society to care for children is primarily a moral one.
The Member Organisations of Catholic Welfare Australia have been active in child welfare matters for over 160 years. Each organisation has always taken a keen professional interest in establishing models of care that facilitate the healthy growth and development of children in all aspects of their development. Therefore, Catholic Welfare Australia welcomes the opportunity to make a submission to this National Inquiry Into Children in Immigration Detention.
In the light of its particular commitment to child welfare matters, Catholic Welfare Australia will focus in this brief submission on the following Terms of Reference:
4. The impact of detention on the well-being and healthy development of children, including their long-term development.
6. The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention.
Central to the mission and ethos of Catholic Welfare Australia and its Member Organisations is a concern to ensure that all members of society are treated in accord with their human dignity. In this regard, primacy is given to ensuring that the most vulnerable are afforded the highest degree of protection.
These values are clearly enunciated in a range of church documents and result in a set of guiding principles that inform the analysis of public policy. [2] These can be listed as:
- the social nature of human beings, created in the image of a loving God;
- the Gospel imperative to love thy neighbour, especially those in need;
- the goal of social arrangements is to enhance the human dignity of individuals;
- each person has rights to share in and duties to contribute to the common good;
- each person must have the necessary resources to fulfil their social responsibilities;
- the state must act, within the limits of the principle of subsidiary, to enure that all people have these resources i.e. adequate food, clothing, shelter, education; and,
- justice must be enacted in a spirit of love to create a society marked by genuine solidarity.
In March 2002, the Australian Catholic Bishops' Conference issued a statement on Refugees and Asylum Seekers that also underpins the position adopted by Catholic Welfare Australia in regard to the care that should be provided to children who are seeking asylum. [3] The Bishops have stated that:
The Church's pastoral care of asylum seekers convinces us that detention, beyond the minimum time necessary for carrying out security and health checks, identity checks, and the lodgement of applications for Protection Visas, is deeply destructive of human dignity. This is particularly true of children. After a minimum time these people should be released into the community and be obliged to contact the immigration authorities on a regular basis.
As a result of its long time involvement in child welfare matters, Catholic Welfare Australia is impelled to speak on behalf of the children presently being held in immigration detention. The mere fact of their being in detention makes it necessary for others to speak on their behalf. Those children in detention centres who are unaccompanied minors have a special need for others to intervene on their behalf.
Due to their dependent status, children are often vulnerable and, in times of crisis, are in need of special protection. This is especially the case for children who have endured the challenges associated with the dislocation from their country of origin. This vulnerability is even more evident when children are subject to the traumas associated with seeking asylum in another country.
Catholic Welfare Australia is aware of the complex issues associated with any migration program and wishes to limit its comments on this submission primarily to certain child welfare matters. Nevertheless, the principles of Catholic Social Teaching that guide Catholic Welfare Australia also indicate that, whether the focus is on children or adults, all governments are required to respond compassionately to those seeking asylum. Any system of immigration control that is dehumanising and degrading cannot be countenanced if the dignity of all people is to be upheld.
The Reference to Human Rights and the Rights of Children
In this brief submission, Catholic Welfare Australia does not attempt to canvas all of the human rights issues associated with the international refugee crisis. Nevertheless, it must be stated at the outset that Catholic Welfare Australia holds the view that asylum seekers have the right to seek the protection of another country and that the policy of mandatory detention of asylum seekers is in fact a violation of that right.
Rights are conferred on individuals and these rights are not intended to accommodate public policy. If a right is declared to be a right, especially if a particular country has assented to uphold that right, then that right should not be curtailed because it does not fit the nature of public policy at any given time. If it is accepted that people are owed certain human rights, because of their humanity, these rights should not be relativised according to the nature of certain Government policies.
For Governments to give proportional credence to a right is to misuse the term and amounts to a lack of national integrity. Therefore, due to its ratification of the United Nations Convention on the Rights of the Child, it is the view of Catholic Welfare Australia that this country has a duty to honour, in practice, its ratification of the Convention on the Rights of the Child.
This submission is also based on the premise that a civil society has primarily a moral obligation to ensure that the necessary requirements to live a dignified life are upheld. The immigration status of an individual has never been the basis for determining that these moral obligations should be fulfilled. The use of rights as 'trumps' is secondary to the moral obligation to care for all members of society. Likewise, any efforts to minimise the obligations of any human rights treaty, due to a narrow interpretation of the use of such treaties domestically, diminishes the status of international human rights law globally.
The policy of mandatory detention results in the perception that there is something intrinsically criminal about seeking asylum. People who arrive in Australia without a visa are presently being confined in conditions that are punitive. The location and the physical design of these detention centres reinforces the notion that seeking asylum is a punishable offence. To pursue such a policy of deterrence is highly questionable. To keep children incarcerated in such circumstances is totally unacceptable.
Children and Institutional Care
Various investigations into the care of children in this country have indicated that many forms of institutional care were not conducive to the normal and healthy development of children. [4] As far back as the 1940s, the Catholic Welfare Bureau in Sydney was actively committed to reducing the number of children who were being cared for in institutions.
Although theories about how best to provide for children in need of care have altered from time to time, it is now widely considered a matter of 'best practice' that children should only be placed in institutional settings as a last resort. This means that where it is not possible for a child's parents or family to care for the child, a living situation is found which approximates as normal a family environment as possible.
Children 'in care' should be able to engage in routine educational and social opportunities in the hope that the separation from their family of origin will not be unduly destructive. It is also considered a matter of 'best practice' that any child who may need to be placed 'in care' should be provided with all the basic educational and social supports to enable them to develop to their full potential. Ideally any child placed in substitute care should be placed in a family environment. [5]
Therefore, the principle of ensuring that the 'best interests of the child' are held paramount is presently actualised in Australia's domestic policy by avoiding any unnecessary separation of children from their parents. Even if it is necessary to place children 'in care', the present reality in this country is that no one would countenance the use of detention facilities that approximate prison conditions.
One of the Member Organisations of Catholic Welfare Australia has received verbal reports, as a result of the voluntary work undertaken by its staff, which clearly indicates that the atmosphere in at least one of the detention centres is worse than gaol itself. [6] The reasons for this statement are as follows. When people are sent to prison they usually have some sense of the length of time they will be incarcerated for. There is no such certainty in immigration detention. Children and adults held in detention never know when they will be released or in some cases deported. Even the most remote gaol in South Australia is at least attached to a large town (i.e. Port Augusta) whereas the immigration detention centre at Woomera is totally isolated. Besides the psychological trauma of being isolated in such a harsh climate, this forced isolation also mitigates against contact with the wider community.
Prisoners have the right to legal assistance and access to lawyers is usually well facilitated in gaols in Australia. Presently, at Woomera, lawyers are being asked to sign a four page document which outlines the conditions of entry to the immigration detention centre. The detention centre authorities can determine what constitutes a breach of the above agreement. In gaol, most prisoners have the opportunity to work, study and to retain some personal items but this is not the case for those in immigration detention. In gaol, some provision is made for a regular system of visitation. There are many factors associated with the location of the immigration detention centre and the system operating at Woomera that prevents some people from visiting family members who may still be in detention.
Catholic Welfare Australia is most concerned about the fact that children in immigration detention centres are being housed in the same compound as adults.[7] Therefore, it is not just the actual detention of children that may harm their development but it is also their confinement within harsh and potentially soul-destroying environments that needs to be addressed.
Given the professional paradigm of limiting 'out of home' care, it is difficult to see how there could be any justification for keeping children locked up in detention centres. If a welfare organisation in Australia were to provide 'out of home care' equivalent to that of the detention centres, then it is highly probably that such an organisation would have to answer claims that it failed to provide a proper 'standard of care'.
The negative consequences of long-term institutional care and, more precisely, institutional care that resembles prison has been well documented in the social sciences. What is now emerging from the implementation of a detention/exclusion policy in Australia is that children who seek asylum or children who are with their parents who seek asylum are being treated in a dehumanising fashion. The long-term consequences of mandatory detention for the children involved cannot be measured empirically at this stage. It is possible to postulate that even an emotionally resilient child may not have an easy transition into adulthood as a consequence of their being incarcerated during their formative years.
The Family Unit Is Central To The Development Of Children
The Catholic Church has traditionally seen the rights of children being safeguarded by the protection offered by the state to the family as the foundational unity within society. [8]
In this context, Catholic Welfare Australia is concerned about the situation where a child separated from a parent due to either party being placed in immigration detention. It is acknowledged that some women and children are now being housed outside the detention facility in Woomera. Whilst this has a lot of merit, in that the children are not 'in detention', it is still less than ideal in regards to the right of children to have access to both parents. For the same reason, it is also a source of great concern that some children who are being held in detention are separated from a parent who may be residing in the community.
From the perspective of Catholic Welfare Australia, any immigration policy that works against the maintenance of the family unit cannot be seen as being in the 'best interests' of the child.
The collective and accrued experience of the Member Organisations of Catholic Welfare Australia is that the emotional, educational, spiritual, and physical well-being of children is contingent on the sense of security that they feel in their family. To expose children in detention to such abnormal family dynamics for long periods of time is to act in contravention of all the current professional understandings in child development.
Catholic welfare organisations in Australia have always placed a high priority on supporting families. Consequently many of the Member Organisations of Catholic Welfare Australia are involved in Commonwealth Government or State Government sponsored programs. These programs have been designed to minimise the breakdown of family life and to maximise the options for those who experience irreconcilable differences in their relationships.
At every point in these programs, where there are children involved, the 'best interests of the child' are to be held paramount. It is totally appropriate that the family law system in this country should ensure that all those who provide any service within the system should uphold the 'best interest' principle.
It is evident to many of the Member Organisations of Catholic Welfare Australia, who work in the area of child welfare and family law, that there is something fundamentally flawed in a policy that results in some children not being offered the protection of 'the best interest' principle. The perception is that children in immigration detention are not regarded as needing the same degree of care. Whereas, any child in detention, or any child who is separated from a parent because of the policy of mandatory detention, would seem to have a greater claim on the Government's protection.
Those responsible for immigration policy need to address this disparity if Australia is to have a collective sense of integrity. This can only be achieved by ensuring that all children who are residing in Australia are to be offered the same standard of care regardless of geographical location. The capacity of the Convention on the Rights of the Child to effect any real change in childrens' rights becomes highly tentative if a child's immigration status becomes the primary condition for an actualisation of his or her rights.
Additional Measures and Safeguards to Protect Child Asylum Seekers
Catholic Welfare Australia would also like to comment more specifically on the sixth Term of Reference for this Inquiry as copied below:
6. The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention.
Since the 1970s, many Church groups in Australia have provided a high degree of support for those who arrived seeking protection as refugees. The immigration policy at that time, especially in regard to the Vietnamese 'boat people', meant that people seeking asylum were only held in detention for a short time.
Ideally, all Governments should be required to assist with the care and support of those seeking asylum or those who are residing in the community as they await a determination of their immigration status. In the absence of a more generous response from any level of Government in Australia, Catholic Welfare Australia is of the opinion that there is enough infra-structural support within the Catholic welfare sector to provide some assistance in this regard.
This support would take the form of broad-based counselling to assist people to determine their needs and to refer them to the appropriate pastoral care mechanisms within the wider Catholic or civic community. As in the past, many of these support services would be provided through the range of Catholic welfare networks that operate throughout Australia.
Temporary Protection Visas And Support For Children Upon Their Release From Detention
The issue of Temporary Protection Visas is not directly listed in the Terms of Reference for this Inquiry. However, Catholic Welfare Australia believes that a critique of this type of visa falls within the ambit of the sixth Term of Reference. Given the 'best practice' paradigm, which has been referred to in this submission, the use of Temporary Protection Visas must be addressed.
As they are only initially valid for three years, these Temporary Protection Visas produce a great deal of insecurity. It is difficult to see how any child could thrive educationally, socially, and emotionally with the knowledge that after a relatively short time the grant of protection will be reviewed. There is the ever-present possibility that the whole family may once again be on the move. In a child's life, this may mean that schooling and social networks are always tinged by a sense that that there is no permanency.
It is possible to construct a scenario where a child who has been through all the traumas associated with seeking asylum in Australia may just be establishing a normal routine when the family is forced to move again. The long-term consequences of such disruptions are not easily determined but it is difficult to justify in regards to the 'best interest' principle. From the counselling perspective, the possibility of assisting a child to regain some normal patterns of development may be decreased by the insecurity associated with the use of Temporary Protection Visas.
Many refugees who come to Australia expend a lot of energy in learning English. It may be particularly disruptive for a child who has begun mastering English language skills to have this process interrupted.
The mere fact that a child is aware that there is no real sense of permanency may negatively impact on his or her total development. Catholic Welfare Australia also suggests that the issue of the use of Temporary Protection Visas should be challenged in the context of this National Inquiry Into Children in Immigration Detention.
Catholic Welfare Australia is appreciative of the opportunity to make a submission to this National Inquiry into Children in Detention. As stated at the outset, the main concern of Catholic Welfare Australia is in regard to the general question of child welfare. Given this perspective, it is difficult to find any basis for the maintenance of the mandatory detention of children.
The rights of all children are being compromised by the placement of some children in immigration detention. It is acknowledged that there are many complex issues associated with any form of child welfare. It is beyond question that the placement of children in immigration detention centres, especially for lengthy periods of time, cannot be for the benefit of the children concerned. Neither the children involved nor the wider community is served by the use of mandatory detention.
The possible negative consequences of being placed in detention are also compounded by the actual atmosphere and environment of the detention centre. The recent media reports, which depict serious unrest in some of the Australian immigration detention centres, are another reason why children and their families should be settled in the community as they await a determination of their status.
The mandatory detention of those who arrive in Australia without valid documents is primarily a punitive policy. Tragically this policy is exacting a toll on those who are least able to assert their own rights.
Catholic Welfare Australia is willing to participate in any discussions or meetings which could assist in a process of designing a better option for all those involved.
References
Alston, P., 1994 (Ed.), The Best Interests of the Child: Reconciling Culture and Human Rights. Oxford: Clarendon Press.
Alston, P., Parker, S., and Seymour J., 1992, Children, Rights and the Law. Oxford: Clarendon Press.
Australian Catholic Bishops' Conference, 2002, A Statement on Refugees and Asylum Seekers. 26 March 2002, Canberra.
Australian Catholic Social Welfare Commission, 1996, Towards a Practical Theology of Welfare: Guiding Principles for Catholic Social Welfare Service Agencies, COMMONWealth, Vol. 5 No. 1. Canberra: ACSWC
Australian Catholic Social Welfare Commission, 1997, The Heart of Our Nation Towards a National Commitment to Caring for Children and Young People. Discussion Paper No. 12. Canberra: ACSWC
Commonwealth of Australia, 1998, Joint Standing Committee on Treaties - United Nations Convention on the Rights of the Child. 17 th Report. Canberra.
Department of Families, Youth and Community Care, Queensland, 1999, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions. (Forde Inquiry)
Familiaris consortio, 1981, ('On the Role of the Christian Family in the Modern World') Apostolic Exhortation of Pope John Paul II. Melbourne: A.C.T.S. Publications.
Freeman, M., 1997, The Moral Status Of Children. The Netherlands: Matinus Nijhoff Publishers.
Gudorf, C., 1994 'Children, Rights Of'. In: Dwyer, J.A. (Ed.), The New Dictionary of Catholic Social Thought. Collegeville, Minnesota: The Liturgical Press.
Harvey, C., 1999, 'Talking about Refugee Law', Journal of Refugee Studies Vol.12. No.2
Mediansky, F., 1998, 'Detention of Asylum Seekers: The Australian Perspective'. In: Detention of Asylum Seekers in Europe: Analysis and Perspectives. Hughes, J., & Liebaut, F., (Eds.), Netherlands Martinus Nijhoff.
Mason J., (Ed.), 1993, Child Welfare Policy: Critical Australian Perspectives. Sydney: Hale & Iremonger.
Nicholls, G., 1998,'Unsettling Admissions: Asylum Seekers in Australia', Journal of Refugee Studies Vol. II, No.1 1998.
Rayner, M., 2001, Political Pinballs: 'The Plight of Child Refugees in Australia', Walter Murdoch Lecture: 31 October 2001.
Thorpe, D., 1994, Evaluating Child Protection. Buckingham: Open University Press.
Tregeagle, S., 2000, 'What have we learnt about wardship: Lessons for the future'. Australian Association of Social Workers: New South Wales Branch.
Tomison, A., 2001, 'A history of child protection: Back to the Future? Family Matters Issue No.60 Australian Institute of Family Studies.
Von Buchwald, U.,
1994, 'Refugee Dependency: Origins and Consequences'. In: Marsella, A.J.,
et al. Amidst Peril and Pain: The Mental Health and Well-Being of the
World's Refugees. Washington: American Psychological Association.
ENDNOTES
1. Pope
John Paul II, 1981, 'Familiaris consortio' Apostolic Exhortation on The
Role of the Christian Family in the Modern World. n26
2. Australian Catholic Social Welfare Commission, 1996,
Towards a Practical Theology of Welfare: Guiding Principles for Catholic
Social Service Agencies. Vol. 5 No.1 p 6.
3. Australian Catholic Bishops' Conference, 26 March 2002,
Refugees and Asylum Seekers
4. See The Report of the Commission of Inquiry into Abuse
of Children in Queensland Institutions. (The Forde Inquiry)
5. Australian Catholic Social Welfare Commission, 1997,
The Heart Of Our Nation: Towards a National Commitment to Caring for Children
and Young People. Discussion Paper No. 12 p 17. Canberra.
6. As reported by Mr Dale West the Director of Centacare
Adelaide.
7. Ibid.
8. Gudorf, C., 1994, cited in New Dictionary of Catholic
Social Thought. Dwyer, JA., (Ed.) see page 144.
