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National Inquiry into Children in Immigration Detention - Background Paper 4: Health and Nutrition

National Inquiry into Children in Immigration Detention

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Background Paper 4: Health

and Nutrition

1.

States Parties recognize the right of the child to the enjoyment of

the highest attainable standard of health and to facilities for the

treatment of illness and rehabilitation of health. States Parties shall

strive to ensure that no child is deprived of his or her right of access

to such health care services.

Article

24, Convention on the Rights of the Child.

1.

The States Parties to the present Covenant recognize the right of everyone

to the enjoyment of the highest attainable standard of physical and

mental health.

Article

12, International Covenant on Economic, Social and Cultural Rights. [1]

Health

is a state of complete physical, mental and social well-being and not

merely the absence of disease or infirmity.

World

Health Organisation definition of "health" in the Preamble

to the Constitution of the World Health Organisation.

In this Background

Paper

  1. National

    Inquiry into Children in Immigration Detention

  2. Child

    asylum seekers

  3. The

    right to health: core obligations

  4. Food

    and nutrition

  5. Hygiene

    and sanitation

  6. Clothing

    and bedding

  7. Shelter

    and environment

  8. Physical

    activity

  9. Health

    services and assessment

  10. 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 health of child

asylum seekers and the impact of immigration detention on the well being

and healthy development of children. [2]

This background paper

provides an overview of international human rights standards on health

that are relevant to the Inquiry. It refers primarily to the Convention

on the Rights of the Child (the Convention) but also to other international

human rights standards (including the International Covenant on Economic,

Social and Cultural Rights (ICESCR) where relevant. [3]

This paper 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

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. These

experiences make the child vulnerable to disease, trauma and other threats

to their health, such as nutritional deficiencies.

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 highest attainable standard of health and rehabilitation. [4] The UN Committee on the Rights of the Child [5] has on

several occasions raised the issue of child asylum seekers and pointed

out that the Convention accords them the same rights as other children

in relation to health care. [6]

The health needs

of child asylum seekers are, however, often far greater than those of

children raised in Australia, due to the damaging physical conditions,

emotional trauma and nutritional deficiencies that they have commonly

experienced.

The Inquiry welcomes

submissions on the appropriateness and relevance for child asylum seekers

of the health care standards in Australian State and Territories. The

Inquiry also welcomes submissions on the needs of unaccompanied children

and the impact on their health of having no parent or adult caring for

their physical health, nutritional and emotional well being.

3. The right

to health: core obligations

The UN Committee

on Economic, Social and Cultural Rights has identified six core obligations

on the right to health under article 12, ICESCR, which include:

  • access to health

    facilities

  • nutritionally

    adequate and safe food

  • basic shelter,

    sanitation and safe drinking water

  • essential drugs
  • equitable distribution

    of all health facilities

  • a public health

    strategy and plan of action. [7]

In considering the

right to health, the underlying principles of the Convention should be

always considered. All actions concerning the child should be non-discriminatory

(article 2), ensure the best interests of the child (article 3) and allow

the child to participate in decision making concerning her or him (article

12). [8]

4. Food

and nutrition

States

Parties shall pursue full implementation of [the right of the child

to the highest attainable standard of health] and, in particular, shall

take measures … to combat disease and malnutrition… through

the provision of adequate nutritious foods.

Article

24, Convention on the Rights of the Child.

Food has critical

nutritional, cultural and social dimensions for the well being and development

of all children. According to the World Declaration and Plan of Action

for Nutrition, [9] children are the most nutritionally

vulnerable group of people in the world. This is especially true for child

asylum seekers whose access to nutritional food may have been seriously

limited for prolonged periods in their countries of origin and during

the course of their journey to Australia. [10]

Nutrition

In becoming a party

to the Convention, Australia has committed to provide every child

in Australia with the highest attainable standard of health, including

providing adequate nutritious foods. What is "adequate" will

depend on the particular nutritional needs of each child.

The maintenance of

appropriate nutritional standards is vital to the normal healthy development

of every child. [11] The nutritional needs of child

asylum seekers are generally related to micro-nutrient deficiencies caused

by conditions in the child's country of origin, the often long and arduous

journey to Australia and the unfamiliar food and conditions upon arrival

in Australia.

Assessment of a child's nutritional

needs

There is general

international consensus that the best way to measure a child's health

and nutritional status is by assessing the individual child's growth against

standard weight-for-height, height-for-age and weight-for-age charts such

as those produced by the World Health Organisation, taking into account

cultural and geographic differences in child development.[12] In order to evaluate a child's nutritional needs, there should be an initial

assessment of the child's height and weight upon arrival, and careful

ongoing monitoring of any micronutrient deficiencies that the child may

have. [13]

Health screening

and assessment should be made by medical practitioners who are familiar

with the particular deficiencies suffered by children from developing

countries and refugee backgrounds (which may not be prevalent among Australian

children), taking into account the history and background of each child.

Special care must be taken when establishing the background of an unaccompanied

child whose knowledge of his or her personal history is likely to be incomplete

(see Background Paper 7: Legal Status).

In assessing the

nutritional adequacy of the food provided to child asylum seekers, an

appropriate starting point is Article 24(2)(c) of the Convention. International

studies have shown that nutritional deficiencies in refugee camps and

countries of origin of asylum seekers are widespread [14] and must be taken into account when determining the nutritional adequacy

of the food provided to each child.

The nutritional needs of pregnant

women and mothers

The Plan of Action

arising out of the 1990 World Summit for Children states that "[m]aternal

health, nutrition and education are important for the survival and well-being

of women in their own right and are key determinants of the health and

well-being of the child in early infancy." [15] Australia is obliged under Article 24(2)(d) of the Convention to "ensure

appropriate pre-natal and post-natal care for mothers". [16] This includes ensuring that the special nutritional needs of pregnant

women and new mothers are met. Poor maternal nutrition is associated with

various disorders in babies and with low birth weight.[17] Mothers also have increased nutritional needs whilst breastfeeding and

may need education and encouragement to breastfeed their babies. The World

Health Organisation recommends exclusive breastfeeding for six months,

with introduction of complementary foods and continued breastfeeding thereafter

as an important aspect of a baby's diet. [18]

Cultural considerations

In

those States in which ethnic, religious or linguistic minorities or

persons of indigenous origin 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 [or] to profess

and practise his or her own religion.

Article

30, Convention on the Rights of the Child.

Serious micronutrient

deficiencies in child asylum seekers may be the result of the child having

experienced disruption to family and cultural associations with food during

flight. This may be due to separation from family members usually responsible

for food preparation, or not being able to fulfil cultural or religious

practices surrounding food preparation and consumption. This is especially

true for unaccompanied children. According to the United Nations High

Commissioner for Refugees (UNHCR), when addressing malnutrition in refugee

children it is vital to consider the cultural acceptability, palatability

and digestibility of the food provided, in addition to its nutritional

quality. [19] Cultural considerations must be taken

into account with respect to food type, preparation and serving, particularly

considering the traditional roles of family members in relation to the

child's food. It is therefore vital that children in immigration detention

are provided with food that is culturally and religiously appropriate [20] and that it is possible for the child's family

members to prepare and serve the food in accordance with the family's

cultural practices (including appropriate times of day). The Inquiry welcomes

submissions on this point.

Water

States

Parties shall pursue full implementation of [the right to health] and,

in particular, shall take appropriate measures… to combat disease

and malnutrition… through the provision of adequate … clean

drinking-water, taking into consideration the dangers and risks of environmental

pollution.

Article

24(2)(c), Convention on the Rights of the Child.

A major factor affecting

the health of children as well as adults is the availability of clean

water. [21] Australia is obliged under the Convention

to provide every child in immigration detention with adequate clean drinking

water. The drinking water provided to children in immigration detention

should be readily available and easily accessible at all times. The UNHCR

recommends that a minimum of twenty litres of drinkable water is required

for each person every day for cooking and drinking. [22]

5. Hygiene

and sanitation

The environment in

detention facilities may give rise to conditions for the spread of infection

and disease among children unless appropriate hygiene and sanitation measures

are put in place. The risk of a child contracting an illness due to poor

hygiene is heightened for a child asylum seeker whose immune system may

be functioning at a sub-optimal level due to previous illness, poor nutritional

status or absence of immunisations.

Hygiene and sanitation

are therefore key issues in terms of both appropriate facilities and education

for children and their families. In terms of facilities, the UNHCR recommends

that there be at least one toilet for every twenty people, with family

toilets serving six to eight people being preferable. [23] Toilets must be constructed, located and lit to ensure safety and ease

of use for children.[24] Bathing and showering facilities

should enable every child to maintain general hygiene by bathing or showering

daily in privacy at a temperature suitable to the climate. [25]

In order to prevent

illness and disease among children in an immigration detention setting,

it is vital that high standards of personal hygiene be maintained. Australia

is obliged under article 24(2)(e) of the Convention to ensure that parents

and children "are informed, have access to education and are supported

in the use of basic knowledge of… hygiene and environmental sanitation".

All adolescents should receive appropriate information and counselling

about their health. The realisation of their right to health is dependent

on youth-friendly health care which respects confidentiality and privacy

and includes appropriate sexual and reproductive health care advice.[26]

6. Clothing

and bedding

Detention

facilities should ensure that each juvenile has personal clothing suitable

for the climate and adequate to ensure good health, and which should

in no manner be degrading or humiliating.

Rule

36, United Nations Rules for the Protection of Juveniles Deprived of

their Liberty.

In order to prevent

illness and infection, it is important that children have sufficient changes

of clean clothing, particularly underwear, and suitable footwear. Australia

should ensure there are appropriate facilities for children and their

families to clean and maintain clothing. [27] Children's

underclothing should be changed and washed as often as necessary for the

maintenance of hygiene. [28]

In keeping with the

requirement that clothing not be degrading or humiliating,[29] clothing provided to children in immigration detention should be culturally

acceptable and modest where necessary.

Children must also

be provided with clothing that is appropriate to the climate and gives

effective protection from rain and sun.[30] Whilst young

children are usually more vulnerable to the cold than adults, child asylum

seekers are especially susceptible to illness where they have had nutritional

deficiencies and prior illnesses.

Each child in immigration

detention should be provided with separate and sufficient bedding, which

should be clean when issued, kept in good order and changed often enough

to ensure cleanliness. [31] As with clothing, children's

bedding should be appropriate to the climate, with sufficient blankets

provided where necessary.

7. Shelter

and environment

The

availability, distribution and location of shelter, schools, playgrounds,

waterpoints, health centres and recreational facilities all affect the

safety and well-being of refugee children.

UNHCR

Guidelines on Protection and Care, ch 5.

The design and layout

of detention facilities raises issues of children's safety, security,

privacy, play and physical activity needs.

It is important for

the health, psychological and physical needs of children that there be

sufficient space in detention facilities. Children and families must have

sufficient space to allow them a minimum degree of privacy in order to

maintain some semblance of family life. [32] The UNHCR

recommends a minimum of 3.5 square metres living space per person within

a shelter and thirty square metres per person gross area for the overall

site, excluding playgrounds and sports fields. [33] The UNHCR recommends that the standards of space, privacy and freedom

of movement must be adequate for parents to meet the developmental needs

of their children and to raise them with dignity. [34]

Detention facilities

should be designed with a view to ensuring families' and children's personal

security. The layout should ensure that children are close to all basic

facilities and are provided with protection from the elements. This may

mean establishing several community entities for larger groups of asylum

seekers, each with its own communal basic facilities.[35]

Children in detention

facilities are extremely susceptible to accidents. [36] The environment in the centre should be designed to avoid accidents, and

parents should be advised as to how to prevent their children suffering

accidents in their new and foreign environment. [37] Effort should be taken to prevent children suffering accidental burns

or poisoning, and to ensure that there are no dangerous areas or objects

around the detention facility that may give rise to accidents. [38]

Accident prevention

also includes ensuring that there are plenty of safe play spaces for children

so that that they do not have to seek alternate play spaces that may be

away from parental supervision or otherwise dangerous. [39] Shade is important for play spaces, both to protect from the sun and to

make play spaces comfortable for children so that they will use them.

The Inquiry welcomes

submissions on the adequacy and appropriateness of the design of detention

facilities and whether the child's privacy, recreation and play areas

are appropriate (see also Background Paper

3: Mental Health and Development).

8. Physical

activity

States

Parties shall ensure to the maximum extent possible the survival and

development of the child.

Article

6(2), Convention on the Rights of the Child.

State

Parties recognize the right of the child to rest and leisure, to engage

in play and recreational activities appropriate to the age of the child

and to participate freely in cultural life and the arts.

Article

31(1), Convention on the Rights of the Child.

Rest, leisure, play

and recreation are vital for the healthy development of the child. In

order to ensure the appropriate development of children in immigration

detention and provide them with the highest attainable standard of health,

they must be provided with opportunities, spaces, equipment and education

that encourage and facilitate physical activity and sport. [40]
Interaction with the physical environment is stated to be an innate

and necessary propensity in all people, including children.[41] The quality of play experience for children will be related to the environment

in which it takes place.

9. Health

services and assessment

2.

States Parties shall pursue full implementation of this right and, in

particular, shall take appropriate measures… (f) [t]o develop preventive

health care, guidance for parents and family planning education and

services.

Article

24, Convention on the Rights of the Child.

The

right to health must be understood as a right to the enjoyment of a

variety of facilities, goods, services and conditions necessary for

the realization of the highest attainable standard of health.

Committee

on Economic, Social and Cultural Rights, General Comment 14, 4 July

2000, para 9.

Australia has recognised

the right of every child to the enjoyment of the highest attainable standard

of health and to facilities for the treatment of illness and rehabilitation

of health. [42] As outlined in Background

Paper 3: Mental Health and Development, States Parties to the

Convention are required to "develop preventive health care"

in addition to providing education and guidance to parents.

Each child asylum

seeker should receive medical treatment and care in a manner which is

culturally appropriate and which respects her or his inherent dignity.

The relevant standard must be commensurate with that provided in the general

community, taking into account the special needs of child asylum seekers

outlined earlier. [43] The Inquiry welcomes submissions

on the appropriate health care standards for children immigration detention.

Initial

assessment of a child's health care needs

Every

juvenile has a right to be examined by a physician immediately upon

admission to a detention facility, for the purpose of recording any

evidence of prior ill-treatment and identifying any physical or mental

condition requiring medical attention;

The

medical services provided to juveniles should seek to detect and should

treat any physical or mental illness, substance abuse or other condition

that may hinder the integration of the juvenile into society. Every

detention facility for juveniles should have immediate access to adequate

medical facilities and equipment appropriate to the number and requirements

of its residents and staff trained in preventive health care and the

handling of medical emergencies. Every juvenile who is ill, who complains

of illness or who demonstrates symptoms of physical or mental difficulties,

should be examined promptly by a medical officer.

Rules

50-51, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty

In order to be provided

with preventive health care and with the highest attainable standard of

health and access to appropriate facilities as outlined in the Convention,

each child asylum seeker should undergo a medical examination and health

care needs assessment by trained health professionals on arrival in Australia. [44] Examination of the child "by a physician immediately

upon admission to a detention facility" should record and identify

"any physical or mental condition requiring medical attention". [45] The medical assessment should seek to identify

any physical or mental condition requiring medical attention, including

the effects of any previous abuse or violence. [46] Medical care, where possible, should be provided to detained children

"through the appropriate health facilities and services of the community

in which the detention facility is located". [47]

As children may come

from countries that do not have a policy for neo-natal or post-natal screening

of some medical conditions, children should be examined for these upon

arrival, with referral to a paediatrician if any of these conditions are

suspected. [48] The Inquiry welcomes submissions from

health care experts on the appropriate initial assessment procedures for

children in immigration detention.

Australia's obligations

under the Convention extend beyond merely treating illness to ensuring

the development of the child to the maximum possible extent, [49] and preventing, treating and rehabilitating disabilities. [50] The Inquiry welcomes submissions on assessment and screening needs for

developmental delay, delay in walking, poor visual fixation or uncertainty

about response to sound. Assessment may be required for learning difficulties

that may be due to hearing, vision or developmental problems. The rights

of children with permanent disabilities are discussed in Background

Paper 5: Prevention, Treatment and Accommodation of Disabilities.

Ongoing

medical care

States

Parties shall pursue full implementation of this right and, in particular,

shall take appropriate measures: … (b) To ensure the provision

of necessary medical assistance and health care to all children with

emphasis on the development of primary health care.

Article

24(2), Convention on the Rights of the Child.

Every

juvenile shall receive adequate medical care, both preventive and remedial,

including dental, ophthalmological and mental health care, as well as

pharmaceutical products and special diets as medically indicated. All

such medical care should, where possible, be provided to detained juveniles

through the appropriate health facilities and services of the community

in which the detention facility is located, in order to prevent stigmatization

of the juvenile and promote self-respect and integration into the community.

Rule

49, United Nations Rules for the Protection of Juveniles Deprived of

their Liberty. [51]

After initial assessment

and treatment when they first arrive in Australia, child asylum seekers

have the right to "necessary medical assistance and health care …

with emphasis on the development of primary health care" under article

24(2)(b) of the Convention. This requires the health care needs of children

in immigration detention to be regularly monitored.[52] In order to ensure that every child receives 'preventive and remedial'

health care, health care programs may need to be individualised and coordinated.

Such programs should include a structured immunisation program for all

child asylum seekers under Article 24(2)(a) of the Convention, in accordance

with the relevant national standards. [53] All medical

records of the child should be recorded on a confidential file (see Background

Paper 7: Legal Status).

The Inquiry welcomes

submissions on the form primary health care should take and whether this

requires an individual health care plan to be implemented for each child

in immigration detention. The Inquiry also welcomes submissions on the

appropriate health care models for child asylum seekers and how health

care in detention facilities compares with health care in Australia's

States and Territories, including the necessary ratio of medical professionals

to children in immigration detention.

Medical personnel

should be trained in cross-cultural health care, including the special

needs of child asylum seekers. [54] Care should be taken

for children who may feel uncomfortable in discussing their health problems

openly (especially if they relate to past sexual or violent incidents)

or who are fearful about the proposed examination or treatment. Studies

indicate that child asylum seekers may focus on non-specific pain as their

main concern, avoiding mention of specific details or psychological symptoms. [55] Unaccompanied children may require special support

in health care, as they may not have an adult carer to bring them to the

attention of medical authorities. Medical communications with a child

asylum seeker may need to utilise an interpreter unless the child is able

and comfortable in discussing health matters in English. [56] The Inquiry welcomes submissions on these points.

Dental Care

Dental health care

is important for child asylum seekers, particularly younger children.

Australia should ensure that preventive and remedial dental health care

is available to all child asylum seekers.[57] Preventing,

identifying and treating decay in a timely manner reduces the need for

extractions. The detention of child asylum seekers should not result in

their dental health being adversely affected. The Inquiry welcomes submissions

on this point, including reference to relevant Australian State and Territory

standards on dental health for children.

Ante-natal

care and birth

States

parties … shall take appropriate measures…to ensure appropriate

pre-natal and post-natal health care for mothers.

Article

24 (2)(d), Convention on the Rights of the Child.

2…States

Parties shall ensure to women appropriate services in connection with

pregnancy, confinement and the post-natal period, granting free services

where necessary, as well as adequate nutrition during pregnancy and

lactation.

Article

12, Convention on the Elimination of All Forms of Discrimination against

Women.

Paediatric specialists

have suggested that appropriate pre-natal health care includes providing

pregnant women with services (including counselling) for ante-natal screening

for malformation, hepatitis B, HIV and haemoglobinopathies.[58] Given the impact that a pregnant woman's emotional wellbeing may have

on the health of her child, [59] the health and mental

health of pregnant women in immigration detention may need to be monitored

and access to specialist mental health services made available.

The Inquiry will

consider the extent to which women asylum seekers should be given access

to similar childbirth facilities that are available to non-asylum seeking

women giving birth in public hospital facilities. Arrangements should

be made wherever practicable for children to be born in a hospital outside

the detention centre, and special accommodation should be provided for

all necessary pre-natal and post-natal care and treatment. [60]

After birth, infants

and children under five years may require access to early childhood services.

These services typically include help with feeding difficulties, [61] guidance on the child's feeding needs and day-to-day care, education on

child development, counselling for post-natal depression, and advice concerning

the child's immunisation program and parenting in general. Interpreters

should be available where necessary. The Inquiry welcomes submissions

on this point. The Inquiry also welcomes submissions on the screening

and health needs of newborn babies.

As outlined earlier,

the World Health Organisation, in addition to UNICEF, [62] has stressed the importance of breastfeeding to a baby's diet, including

its extensive nutritional, immunological and psychological benefits. Where

the mother is having difficulties breastfeeding, early assistance from

a health professional experienced in breastfeeding management, a lactation

consultant or a breastfeeding counsellor should be provided.

10. Questions

for submissions

The following questions

relate to the maintenance of a child asylum seeker's health while in immigration

detention and may assist organisations and individuals in making submissions

to the Inquiry.

  1. How does Australia

    meet its commitments to the health of child asylum seekers under article

    24, Convention and article 12, ICESCR, with regard to its legislation,

    policy and practice?

  2. What are the

    relevant Australian State and Territory standards and practices on health

    care provision?

  3. What coordination,

    if any, is there across government departments to ensure the health

    care needs of child asylum seekers are met? To what extent are relevant

    professional bodies involved in outlining these standards?

  4. What are the

    initial assessment and screening procedures in place for child asylum

    seekers? Are there any gaps?

  5. Are individual

    health care programs in "the best interests of the child"?

    How do they work?

  6. How does health

    care work in practice in detention facilities?

  7. Are there adequate

    and suitable staff?

  8. How can a child

    asylum seeker access health care?

  9. How are pregnant

    mothers and families supported in immigration detention?


ENDNOTES:

1

See General Comment 14 of the Committee on Economic, Social and Cultural

Rights (CESCR): General Comment 14: The right to the highest attainable

standard of health, UN Doc E/C.12/2000/4, 11 Aug 2000, which elaborates

the provisions of article 12 of the IESCR. The Committee has referred

to article 12 as being the most comprehensive provision on the right to

health in international human rights law. It imposes on State Parties

a binding duty to ensure that each person can control her or his own health

and body, including sexual and reproductive freedom, and "the right

to a system of health protection which provides equality of opportunity

for people to enjoy the highest attainable level of health.": CESCR, General Comment 14: The right to the highest attainable standard of

health, UN Doc E/C.12/2000/4, 4 July 2000, para 8.

2

The full terms of reference are available at http://www.humanrights.gov.au/human_rights/children_detention/terms.html.

3

International instruments and guidelines such as the United Nations

Rules for the Protection of Juveniles Deprived of their Liberty (1990)

and UNHCR (1994), Refugee Children: Guidelines on Protection and Care,

Geneva (UNHCR Guidelines on Protection and Care). These standards are

outlined in greater detail in Background

Paper 1: Introduction.

4

Article 24, Convention, read in light of the principle of non-discrimination

in Article 2. Background Paper 1: Introduction.

5

The Committee supervises the Convention of the same name; see Background

Paper 1: Introduction.

6

See for example the Committee on the Rights of the Child, Concluding

Observations of the Committee on the Rights of the Child: Denmark (Initial report), UN Doc CRC/15/Add.33.m, 15 Feb 1995, para 14.

7

In CESCR, General Comment 14, para 43, the Committee outlines the

State's core obligations in relation to health as at least the following

obligations:

"(a) To ensure the right of access to health facilities, goods and

services on a non-discriminatory basis, especially for vulnerable or marginalized

groups;

(b) To ensure access to the minimum essential food which is nutritionally

adequate and safe, to ensure freedom from hunger to everyone;

(c) To ensure access to basic shelter, housing and sanitation, and an

adequate supply of safe and potable water;

(d) To provide essential drugs, as from time to time defined under the

WHO Action Programme on Essential Drugs;

(e) To ensure equitable distribution of all health facilities, goods and

services;

(f) To adopt and implement a national public health strategy and plan

of action, on the basis of epidemiological evidence, addressing the health

concerns of the whole population; the strategy and plan of action shall

be devised, and periodically reviewed, on the basis of a participatory

and transparent process; they shall include methods, such as right to

health indicators and benchmarks, by which progress can be closely monitored;

the process by which the strategy and plan of action are devised, as well

as their content, shall give particular attention to all vulnerable or

marginalized groups." See too paras 53-54.

8

See Background Paper 1: Introduction.

9

International Conference on Nutrition, Rome, December 1992. See http://www.fao.org/docrep/u5900t/u5900t01.htm.

10

Many asylum seekers arrive in countries of asylum in poor health as a

consequence of past deprivation and prolonged periods with a sub-optimal

diet. See LK Ackerman, 'Health problems of refugees', Journal of American

Board of Family Practice, 10(5) p337 cited in C Burns, K Webster,

P Crotty, M Balinger, R Vincenzo and M Rozman (2000) 'Easing the transition:

food and nutrition issues of new arrivals', Health Promotion Journal

of Australia, 10(3), p230 at p231.

11

UNHCR Guidelines on Protection and Care, ch4.

12

World Health Organisation, WHO Global Database on Child Growth and

Malnutrition, http://www.who.int/nutgrowthdb/intro_text.htm,

8 August 2001. Weight and height measures are appropriate for children.

The appropriate measure for babies is length.

13

See article 24(2), Convention. See also the Plan of Action for Implementing

the World Declaration on the Survival, Protection and Development of Children

in the 1990s, UNICEF, 1990: See http://www.unicef.org/wsc/plan.htm#Food.

14

M Toole (1992), 'Micronutrient deficiencies in refugees', The Lancet, 339: 121 pp1-15 (C Burns, K Webster, P Crotty, M Balinger, R Vincenzo

and M Rozman (2000) 'Easing the transition: food and nutrition issues

of new arrivals', 10(3), p231.

15 Plan of Action for Implementing the World Declaration on the Survival,

Protection and Development of Children in the 1990s, UNICEF, 1990; http://www.unicef.org/wsc/plan.htm#Role.

16

See also article 12(2), Convention on the Elimination of All Forms

of Discrimination of All Forms of Discrimination against Women (CEDAW),

ratified by Australia in 1983, which obliges it to "ensure to women

appropriate services in connection with pregnancy, confinement and the

post-natal period, granting free services where necessary, as well as

adequate nutrition during pregnancy and lactation."

17

Poor nutrition in pregnant women may cause spina bifida (associated with

inadequate folate intake) and iodine deficiency disorders (permanent mental

retardation associated with inadequate iodine intake): The Royal College

of Paediatrics and Child Health and the King's Fund (1999), The Health

of Refugee Children: Guidelines for Paediatricians, London.

18

World Health Organisation (2001), 'Note for the Press No.7', 2 April 2001; http://www.who.int/inf-pr-2001/en/note2001-07.html.

19

UNHCR Guidelines on Protection and Care, ch5.

20 General Comment 22 of the Human Rights Committee (which supervises

the International Covenant on Civil and Political Rights) states

that "[t]he observance and practice of religion or belief may include

not only ceremonial acts but also such customs as the observance of dietary

regulations…"; General comment 22: The right to freedom of

thought, conscience and religion ( Art. 18), 30 July 1993.

21 Plan of Action for Implementing the World Declaration on the Survival,

Protection and Development of Children in the 1990s, UNICEF, 1990.

See http://www.unicef.org/wsc/plan.htm#Child.

22

UNHCR Guidelines on Protection and Care, ch5.

23

UNHCR Guidelines on Protection and Care, ch5.

24

UNHCR Guidelines on Protection and Care, ch5.

25

Rules 13,15 and 16, United Nations Standard Minimum Rules for the Treatment

of Prisoners (1955); Rule 34, United Nations Rules for the Protection

of Juveniles Deprived of their Liberty; also Guideline 10(ix), UNHCR

(1999), Guidelines on applicable Criteria and Standards relating to

the Detention of Asylum-Seekers (UNHCR Guidelines on Detention) (1999).

26

CESCR, General Comment 14, para 23.

27

Rule 18, Standard Minimum Rules for the Treatment of Prisoners.

28

Rule 17(2), Standard Minimum Rules for the Treatment of Prisoners.

29

Rule 33, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty; Rule 19, Standard Minimum Rules for the Treatment of

Prisoners.

30

Guideline 9.5, Immigration Detention Guidelines, issued by the

Human Rights and Equal Opportunity Commission, March 2000.

31

Rule 33, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty.

32

UNHCR, Guidelines on Protection and Care, ch5.

33

UNHCR, Guidelines on Protection and Care, ch5.

34

UNHCR, Guidelines on Protection and Care, ch5.

35

UNHCR, Guidelines on Protection and Care, ch5.

36

The Royal College of Paediatrics and Child Health and the King's Fund

(1999), The Health of Refugee Children: Guidelines for Paediatricians,

p10.

37

Under Article 24(2)(e), Convention, Australia is obliged "to ensure

that all segments of society, in particular parents and children, are

informed, have access to education and are supported in the use of basic

knowledge of…the prevention of accidents".

38

See discussion in Background Paper 3:

Mental Health and Development.

39

UNHCR Guidelines on Protection and Care, ch5.

40

See Background Paper 3: Mental Health

and Development.

41

See Background Paper 3: Mental Health

and Development.

42

Article 24, Convention.

43

Article 12, IESCR; article 24, Convention; Principle 24, Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment.

44

Rule 50, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty. The purpose of the examination must be clearly explained

to the child in terms they can understand, and the child's consent should

be sought. Suitable interpreters should be used, where necessary, to ensure

that a valid consent is obtained. The Royal College of Paediatrics and

Child Health and the King's Fund (1999), The Health of Refugee Children:

Guidelines for Paediatricians, p9.

45

Rule 50, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty. Each institution should have at least "one

qualified medical officer who should have some knowledge of psychiatry.

The medical services should be organized in close relationship to the

general health administration of the community or nation. They shall include

a psychiatric service for the diagnosis and, in proper cases, the treatment

of states of mental abnormality." See also Rule 22(1), Standard

Minimum Rules for the Treatment of Prisoners.

46

Principle 24, Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment (1988); Rule 50, UN

Rules for the Protection of Juveniles Deprived of their Liberty, Guideline

10, UNHCR Guidelines on Detention.

47

Rule 49, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty. This is in order "to prevent stigmatization

of the juvenile and promote self-respect and integration into the community".

48

See CESCR, General Comment 14, para 14. Conditions could phenylketonuria,

hypothyroidism, cataracts, congenital cardiac disease or congenital hip

dislocation. Children should also be screened on arrival for HIV, gastroenteritis,

tuberculosis, hepatitis B, malaria, typhoid and schistosomiasis. See the

Royal College of Paediatrics and Child Health and the King's Fund (1999), The Health of Refugee Children: Guidelines for Paediatricians,

p10.

49

Article 6, Convention.

50

Article 23, Convention.

51

See also Principle 24, Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment: "A proper

medical examination shall be offered to a detained or imprisoned person

as promptly as possible after his admission to the place of detention

or imprisonment, and thereafter medical care and treatment shall be provided

whenever necessary. This care and treatment shall be provided free of

charge."

52

Article 25, Convention, which details the child's right to periodic review

of her or his treatment.

53

See The Australian Immunisation Handbook 8th Edition, Australian Government Department on Health and Ageing (2003).
In particular, all children should be immunised against diptheria,

tetanus, whooping cough, poliomyelitis, measles, mumps and rubella at

the appropriate stage within their first year or shortly thereafter. http://www1.health.gov.au/immhandbook/pdf/handbook.pdf

54

See UNHCR Guidelines on Protection and Care, ch4, also discussed in Background

Paper 2: Culture and Identity and Background

Paper 3: Mental Health and Development. Experience in treating

refugee and asylum seeking children will guard against making erroneous

diagnoses or missing important information (such as evidence of torture).

A UK study conducted in 1996 found that the training of inner city primary

health care professionals was generally inadequate to deal with the needs

of refugees in their area. 'Warning sounded over refugee role', Doctor,

3 October 1996 cited in The British Medical Association (2001), The

Medical Profession and Human Rights: Handbook for a Changing Agenda,

Zed Books, London, p393.

55

The British Medical Association, The Medical Profession and Human Rights:

Handbook for a Changing Agenda, p393.

56

Rule 6, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty.

57

See Rule 49, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty; Rule 22(3), Standard Minimum Rules for the Treatment

of Prisoners.

58

Ante-natal screening for HIV is now universal; see The Royal College of

Paediatrics and Child Health and the King's Fund (1999), The Health

of Refugee Children: Guidelines for Paediatricians, London.

59

See UNHCR, Guidelines on Protection and Care, ch4. For an Australian

reference see "The Health of Young Australians" report, endorsed

by the Australian Health Ministers Conference in 1995.

60

Rule 23, Standard Minimum Rules for the Treatment of Prisoners.

61

Breastfeeding should be promoted as "this method of nutrition provides

complete, hygienic food for the healthy growth and development of infants",

and includes an obligation to "promote the stimulation of lactation

of mothers not able to produce sufficient milk by teaching the mothers

to frequently put the child to the breast." UNHCR Guidelines on Protection

and Care, ch5.

62

WHO/UNICEF, The Innocenti Declaration on the Protection, Promotion

and Support of Breastfeeding (1990). Full text at http://www.unicef.org/nutrition/index_24807.html