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National Inquiry into Children in Immigration Detention - Background Paper 2: Culture and Identity

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

    2. Child

      asylum seekers

    3. Preservation of culture, religion and language
    4. Right

      to identity

    5. Restoring

      cultural normalcy

    6. Ensuring

      children's participation

    7. Questions

      for submissions


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

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.

  1. How does Australia

    meet its commitments to maintain children's culture under article 30

    of the Convention with regard to legislation, policy and practice?

  2. 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?

  3. 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?

  4. To what extent

    do relevant non-governmental organisations partner or complement these

    programs?

  5. 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?

  6. What religious

    instruction is available for children in immigration detention? How

    regularly may children participate?

  7. 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.

29

Article 8(2), Convention.

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.

36

Article 12, Convention.

37

Commenting on the equivalent provision of ICCPR article 27; General

Comment 23, at para 6.2. See also para 6.1.