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National Inquiry into Children in Immigration Detention - Background Paper 6: Education

National Inquiry into Children in Immigration Detention

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Background Paper 6: Education

States

Parties recognize the right of the child to education and with a view

to achieving this right progressively and on the basis of equal opportunity,

they shall, in particular:

(a)

Make primary education compulsory and available free to all;

(b)

Encourage the development of different forms of secondary education,

including general and vocational education, make them available and

accessible to every child and take appropriate measures such as the

introduction of free education and offering financial assistance in

case of need;

(c)

Make higher education accessible to all on the basis of capacity by

every appropriate means;

(d)

Make educational and vocational information and guidance available

and accessible to all children;

(e)

Take measures to encourage regular attendance at schools and the reduction

of drop-out rates.

Article

28(1), Convention on the Rights of the Child.

In this Background

Paper

  1. National

    Inquiry into Children in Immigration Detention

  2. The

    right to education

  3. Other

    relevant rights

  4. Aims

    of education

  5. Child

    asylum seekers

  6. Special

    needs

  7. Primary,

    secondary and vocational education

  8. Non-formal

    education

  9. School

    curriculum

  10. Access

    to education

  11. Education

    in local schools

  12. 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 education policies, programs

and practices for child asylum seekers in detention facilities and in

the community, where they are released from detention. [1] The terms of reference also include consideration of the access to and

scope and content of education programs and how education programs in

detention compare to education programs in Australia and in other jurisdictions.

This Background Paper

provides an overview of international human rights standards on education

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 where relevant.[2] This Background

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 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. The right

to education

Under the Convention,

Australia recognises that every child has the right to education.[3] This right should be achieved progressively and on the basis of equal

opportunity. [4]

Article 28 reflects

a consensus of world opinion on the child's inalienable right to education.

The Convention provides that primary education must be compulsory and

available free to all and that "different forms of secondary education"

(including vocational education) must be available and accessible to every

child. [5] Achieving education "progressively and

on the basis of equal opportunity" means that whereas a developing

country may not be expected to grant secondary education to all children

overnight, an industrialised country such as Australia may be in a position

to do so.

Education is a right

that facilitates access to other rights. That is, if the right to education

is respected, other rights follow. For example, if children are at school,

they are more likely to participate in team sport and other games. Education

helps to meet children's mental health needs as well as being a tool to

assist equality of opportunity and their future development (see Background

Paper 3: Mental Health and Development).

The Convention guarantees

the right to education for all children in Australia regardless of nationality

or immigration status and regardless of how the child arrived in the country. [6] The right to education, read in conjunction with

the principle of non-discrimination, requires secondary and other forms

of education to be provided to all school age asylum seekers in Australia

insofar as it is available to Australian children. The Convention provides

that all asylum seeker children, even those who have had their applications

for refugee status rejected, are entitled to similar education as other

children in Australia. [7]

3. Other

relevant rights

The right to education

should be read in light of the overarching principles in the Convention

(non-discrimination, best interests, survival and development, participation). [8] The non-discrimination principle requires that child

asylum seekers be treated similarly to other children in Australia. The

'best interests' principle [9] complements the right

to education, as education is usually in the child's best interests. The

right to survival and development in article 6 similarly complements article

28, as education is vital for the healthy development of the child (see Background Paper 3: Mental Health and

Development). Article 12 guarantees respect for children's participation

and views in all matters affecting them, including their education.

The Convention

relating to the Status of Refugees (the Refugee Convention) (1951)

also requires State Parties to provide public education to child asylum

seekers on their territory. [10] Child asylum seekers

should receive the same treatment as nationals with respect to primary

education, and the same treatment as other non-national children with

respect to other education. [11] However, the Convention

on the Rights of the Child goes further in obliging State parties

to afford similar treatment to nationals and asylum seekers with respect

to all stages of education, not just primary education. [12]

The Inquiry welcomes

submissions on the appropriateness of education programs for children

of different cultural, linguistic and educational backgrounds in immigration

detention in Australia and whether the provisions of articles 2, 3, 6

and 12 are being met. It also welcomes submissions on the scope of education

programs for child asylum seekers, from the child's arrival in Australia,

through her or his refugee status determination, to release (where detained)

or continued detention pending deportation.

4. Aims

of education

States

Parties agree that the education of the child shall be directed to:

(a)

The development of the child's personality, talents and mental and physical

abilities to their fullest potential;

(b)

The development of respect for human rights and fundamental freedoms,

and for the principles enshrined in the Charter of the United Nations;

(c)

The development of respect for the child's parents, his or her own cultural

identity, language and values, for the national values of the country

in which the child is living, the country from which he or she may originate,

and for civilizations different from his or her own;

(d)

The preparation of the child for responsible life in a free society,

in the spirit of understanding, peace, tolerance, equality of sexes,

and friendship among all peoples, ethnic, national and religious groups

and persons of indigenous origin;

(e)

The development of respect for the natural environment.

Article

29(1),Convention on the Rights of the Child.

Article 29 of the

Convention addresses the fundamental purposes of education for the child.[13] Beyond literacy and numeracy, [14] education must include

human rights, democracy and peace education, particularly for children

who are survivors of conflict and flight. [15]

In its General Comment

on the aims of education, the Committee on the Rights of the Child [16] states that every child has a right to an education "designed to

provide the child with life skills, to strengthen the child's capacity

to enjoy the full range of human rights and to promote a culture which

is infused by appropriate human rights values". Education must be

"child-centred, child-friendly and empowering". [17]

5. Child

asylum seekers

This Background Paper

explores the need for child asylum seekers to receive an education throughout

their time in Australia. Child asylum seekers may have experienced war,

persecution, death, sexual assault, violence, fear, flight and displacement.

They will have experienced disruptions to their lives, including their

education. This is followed by arrival in a foreign country, where a different

culture, language and religion is often practised. Deprived of their familiar

cultural environment, child asylum seekers often experience changes in

their relationships with family and community members and will need to

negotiate a new set of relationships in the foreign country (see Background

Paper 2: Culture and Identity and Background

Paper 3: Mental Health and Development). For children and young

people who have survived trauma and/or armed conflict, it is particularly

important that their education has no further disruptions.

The difficulties

in making the transition to life in a new country can be softened for

children by innovative methods of education. Carefully crafted educational

programs can help to restore a child's playfulness which may have been

lost during traumatic events. [18] Schools and pre-schools

can serve to facilitate play among young children who have survived trauma

and flight. Parents and teachers can be assisted to communicate with children

on difficult issues. [19]

6. Special

needs

Culture

and language

In

those States in which ethnic, religious or linguistic minorities or

persons of indigenous origin exist, a child belonging to such a minority

or who is indigenous 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.

Education for child

asylum seekers must promote respect for their cultural identity, language,

religion and values.[20] Education should "enhance

personal and cultural identity and promote the psychosocial stability

and development of children, their families and communities." [21]

Initial classes for

child asylum seekers may need to provide children with language proficiency

in both English and their mother tongue.[22] UNHCR urges

that careful consideration be given to the language of instruction for

child asylum seekers, recommending that the child's mother tongue may

need to be used as the primary means of instruction, particularly for

younger children. [23] Where it is likely that the child

will receive refugee status and remain in Australia, English may then

become the medium of instruction. Education should enhance the child's

ability to integrate into Australia if she or he is recognised as a refugee.

Practical knowledge and skills relevant to economic opportunities should

be provided for older children. [24]

The Inquiry welcomes

submissions on the appropriate language(s) of instruction for child asylum

seekers and appropriate school models employed in Australia and overseas

jurisdictions.

Disabilities

Recognizing

the special needs of a disabled child, assistance …shall be provided

free of charge, whenever possible, …and shall be designed to ensure

that the disabled child has effective access to and receives education,

training…preparation for employment and recreation opportunities

in a manner conducive to the child's achieving the fullest possible

social integration and individual development, including his or her

cultural and spiritual development.

Article

23(3), Convention on the Rights of the Child.

All children, no

matter how profound their disability, are entitled to education that maximises

their potential. [25] According to United Nations Children's

Fund (UNICEF), any law or practice that limits this entitlement (for example,

by deeming a child "ineducable") breaches articles 2 and 28

of the Convention. [26] Children with disabilities need

to receive appropriate preferential treatment to achieve full participation

in school. Additional resources should be made available for this purpose.[27]

Children and young

people who are illiterate or who have cognitive or learning difficulties

have the right to special education.[28] The Inquiry

welcomes submissions on the extent to which detention facilities and schools

in the community are equipped with the necessary education staff, facilities

and programs required to enable child asylum seekers with disabilities

to participate in class. [29] We also welcome submissions

on the applicable standards and programs in Australia [30] and overseas jurisdictions. [31]

Gender-sensitive education

Girl children, such

as those from Afghanistan, may have experienced discrimination in education

before arrival in Australia.[32] Education programs

for child asylum seekers should ensure the full participation of girls

and young women. If a girl's culture or traditions limit or prohibit the

teaching of girls, the State Party (Australia) is still obliged to ensure

the girl's right to education is fully realised. [33] Female teachers and separate facilities may help increase girls' participation,

particularly when they first start classes.[34] The

Inquiry welcomes submissions on this point.

7. Pre-school,

primary, secondary and vocational education

Education programs

for child asylum seekers should be similar to those available to local

children and preferably be based in existing schools rather than setting

up separate ones (see below). Where access to education for local children

is less than universal, Australia should expand access to education for

both local and asylum seeking children. [35]

The UNHCR Guidelines

on Protection and Care emphasise the importance of involving the child's

family and community from the outset in organising educational opportunities

for their children. Educational program planning should involve the students,

their parents and the community. Including children in planning will also

satisfy children's right under the Convention to participate and express

their views. [36]

Pre-school education

International standards

do not impose a duty on States to provide a particular type of pre-school

education. However, where pre-school education is provided, it must be

available to all children without discrimination. The Convention does

require States Parties to assist parents in their child-rearing responsibilities,

including by developing 'institutions, facilities and services for the

care of children' (article 18(2)).

Primary education

Under article 28(1)(a)

of the Convention, it must be compulsory for child asylum seekers to attend

primary school. Primary education should include as a minimum literacy

and numeracy. [37] From the time of their arrival in

Australia, the child asylum seeker's primary education must be free. [38] This may require providing children with the necessary books, uniforms

and equipment in order to participate in primary schooling. [39]

Secondary education

Secondary education

must be 'generally available' which means 'firstly, that secondary education

is not dependent on a student's apparent capacity or ability and, secondly,

that secondary education will be distributed throughout the State Party

in such a way that it is available on the same basis to all'. [40]

Child asylum seekers

above the compulsory school age for the relevant State or Territory (15

years in most Australian jurisdictions) are entitled to continue their

education under the Convention and should be encouraged to take up additional

educational opportunities. [41]

The Inquiry welcomes

submissions on relevant education standards for Australia, including submissions

on access to secondary, vocational and higher education for child asylum

seekers and Australian children. Submissions could also address any barriers

to primary and secondary education that may exist.

Higher education

Higher education

(post-secondary education) is an integral part of children's rights. Under

article 28(1)(c) of the Convention, higher education must be made "accessible

to all on the basis of capacity by every appropriate means." State

Parties should ensure disadvantaged young people are able to take entrance

exams to higher education courses and be awarded grants or scholarships

if they succeed. [42]

Vocational

education

The

steps to be taken by a State Party to the present Covenant to achieve

the full realization of [the right to work] shall include technical

and vocational guidance and training programmes, policies and techniques

to achieve steady economic, social and cultural development and full

and productive employment under conditions safeguarding fundamental

political and economic freedoms to the individual.

Article

6(2), International Covenant on Economic, Social and Cultural Rights.

In addition to article

28 of the Convention, vocational education and training are guaranteed

by article 6(2) of the International Covenant on Economic, Social and

Cultural Rights, to which Australia is a State Party.

Articles 28(1)(b)

and (d) of the Convention provide that vocational education and vocational

information and guidance must be available and accessible to all children

and young people, with vocational training available in areas likely to

prepare the young person for future employment. [43] The Inquiry welcomes submissions on the extent to which vocational education

and training is available to child asylum seekers in Australia.

8. Non-formal

education

Non-formal education

includes courses and activities which increase children and young people's

knowledge and skills, but do not result in recognised qualifications.

Personal health education

is an example of non-formal education and would include the promotion

of basic hygiene and health training for children. This could involve

child asylum seekers themselves teaching health skills to other children

and to their families. [44] Other examples would be:

  • traditional music,

    dance and other arts

  • physical education
  • apprenticeship

    schemes for young people to learn a trade

  • pre-school and

    day care for 0-5 year olds

  • extracurricular

    activities to maintain cultural identity and language.

The Inquiry welcomes

submissions on non-formal education programs for children in immigration

detention.

9. School

curriculum

The knowledge, skills

and processes students learn are usually referred to as the school curriculum.

School curricula for children and young people in immigration detention

must meet the minimum standards for Australian students (article 2). The

Inquiry welcomes submissions that discuss the curricula in Australian

schools in relation to that offered to child asylum seekers in detention.

Submissions may include discussion of such aspects as subjects, assessment,

reporting and certification.

While the Convention

does not define what is meant by 'education', education includes vocational

education, the elimination of illiteracy and access to scientific and

technical knowledge. [45]

10. Access

to education

Education must be

available to all children. "Availability" will depend on the

location and geographic distribution of relevant schools, the ability

of the child to attend school and the provision of proper facilities and

staff. [46]

Article 28 obliges

all States to take concrete measures to encourage regular attendance at

school and reduce school drop-out rates. [47] Factors

affecting school attendance might include:

  • the child's parents

    being unaware of or unwilling to send their child to school

  • the journey to

    school being unsafe and inconvenient

  • schooling being

    unaffordable for the parents [48]

  • age, culture

    and language-appropriate schooling not available [49]

  • inappropriate

    teachers

  • high turnover

    of teachers or students

  • unpredictable

    or interrupted school hours

  • the child being

    excluded from class for various reasons [50]

  • the child having

    to forgo some other right (e.g. right to play) because they are attending

    school

  • lack of individual

    assessment and feedback on the child's progress. [51]

The Inquiry welcomes

submissions on factors affecting school attendance for child asylum seekers.

We particularly welcome strategies for maximising school attendance.

Child-friendly learning environment

To encourage children

to learn and to engage in homework and other activities, the creation

of a child-friendly learning environment is vital. [52] Several factors should be considered to create such an environment. The

UNHCR Guidelines on Protection and Care point out that teachers can assist

traumatised children and that accessible play and recreational opportunities

and facilities should be available. [53]

Libraries and learning

resources such as study areas are important aids to learning. Libraries

for local and asylum seeking children should be well-stocked with suitable

materials. Unaccompanied children and young people in particular should

be encouraged and enabled to make full use of them. [54]

The Inquiry welcomes

submissions from educators on how best to provide a child-friendly learning

environment for child asylum seekers, including appropriate models from

Australian and overseas jurisdictions.

Monitoring the child's education

To determine the

extent to which a child's right to education is being fulfilled, both

the child's individual education and the educational programs available

in immigration detention should be monitored (article 3(3) of the Convention). [55] The Inquiry welcomes submissions on the level of

monitoring of students' performances, how such monitoring should be conducted

and what the relevant monitoring bodies should be.

11. Education

in local schools

The Inquiry would

welcome submissions on whether local school education is appropriate for

child asylum seekers while they are in detention. The UNHCR has recommended

that, particularly in urban areas, "arranging access for refugee

children to existing schools is preferable to establishing special schools

for refugees". [56] The United Nations Rules

for the Protection of Juveniles Deprived of their Liberty provide

that the education of children in detention should take place outside

the detention centre in the general school system in order to facilitate

the continuation of their education upon release and their social and

cultural development. [57] The continuity of attending

school contributes to traumatised children's psychological recovery, [58] with the rapid integration of child asylum seekers into the regular school

system specifically recommended by the Committee on the Rights of the

Child. [59]

In relation to education

for child asylum seekers detained in remote areas in Australia, it should

be recalled that these children are placed in those remote areas by the

Australian authorities, who have it in their power to determine where

children are to be located.

The Inquiry welcomes

submissions on where child asylum seekers should be located if they are

to be detained (whether in urban, regional or rural areas). Submissions

from those children and young people in detention facilities, including

those who have attended school outside the facility, are particularly

welcome. Also welcome are submissions from residents who live in proximity

to detention facilities, including a description of what local education

programs are available for their children in the area.

12. Questions

for submissions

The following questions

relate to a child's education while in immigration detention and may assist

organisations and individuals in making submissions to the Inquiry.

  1. How does Australia

    support the right to education of child asylum seekers in detention?

    What is the quality of educational opportunities available and what

    measures would enhance the quality?

  2. What are the

    relevant legislative, administrative and other measures in place to

    ensure children in immigration detention receive the education they

    need? How do they compare to education in relevant States and Territories

    for other children. Where are the gaps?

  3. In each detention

    facility, is an individual assessment of educational needs undertaken

    by qualified educators and is an education plan involving the student

    and her or his parents developed and implemented?

  4. To what extent

    is adequate pre-school, primary, secondary, higher and vocational education,

    as outlined in this paper, available for child asylum seekers, both

    in detention facilities and in local schools?

  5. What measures

    have been taken to encourage school attendance and prevent non-attendance?

    What are the practical barriers to school attendance?

  6. To what extent

    is special education available for children with physical and/or mental

    disabilities? Does it take into account the child's age and developmental

    needs? To what extent is it available for children with learning difficulties?

  7. Is the curriculum

    relevant and appropriate to the child? Are gender, age, culture, language

    and the child's personal background taken into account?

  8. How are different

    age groups and capabilities accommodated?

  9. What educational

    assessment programs are in place? Are records kept of students' achievements?

    Are certificates available to validate the formal academic and/or vocational

    achievement of students in immigration detention? Are these qualifications

    recognised in all Australian States and Territories?


ENDNOTES:

1

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

2

International instruments and guidelines such as the United Nations

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

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

Geneva. (Guidelines on Protection and Care); Convention against Discrimination

in Education, adopted by UNESCO General Conference, 14 December 1960

(by which date it is sometimes cited) and entered into force for Australia

1 March 1967. These standards are outlined in greater detail in Background

Paper 1: Introduction.

3

Article 28, Convention.

4

Article 28(1), Convention.

5

United Nations Children's Fund (UNICEF) (1998), Implementation Handbook

for the Convention on the Rights of the Child (UNICEF Implementation

Handbook), UNICEF, New York, p370.

6

Article 2, Convention. The scope of article 2 is outlined in greater detail

in Background Paper 1: Introduction.

7

The Committee on the Rights of the Child (CRC), in its Concluding Observations

on Belgium's Initial Report, expressed concern that Belgium was providing

a different standard of education to those children whose asylum applications

had been rejected but remained in the country: "[U]naccompanied minors

who have had their asylum request rejected, but who can remain in the

country until they are 18 years old, may be deprived of an identity and

denied the full enjoyment of their rights, including health care and education.

Such a situation, in the view of the Committee, raises concern as to its

compatibility with articles 2 and 3 of the Convention", CRC, Concluding

Observations of the Committee on the Rights of the Child: Belgium,

UN Doc CRC/C/15/Add.38, 20 June 1995, para 9. Also see Concluding Observations

of the Committee on the Rights of the Child: Denmark, UN Doc CRC/C/15/Add.33,

15 Feb 1995, para 14,where the Committee expressed concern that "all

children who have had their asylum requests rejected but who remain in

the country have had their rights to health care and education provided

de facto but not de jure. It is the view of the Committee that

this situation is not fully compatible with the provisions and principles

of articles 2 and 3 of the Convention".

8

See Background Paper 1: Introduction for further discussion of these principles.

9

Article 3, Convention.

10

Article 22, Refugee Convention.

11

Article 22 of the Refugee Convention states that: "1. The Contracting

States shall accord to refugees the same treatment as is accorded to nationals

with respect to elementary education. 2. The Contracting States shall

accord to refugees treatment as favourable as possible, and, in any event,

not less favourable than that accorded to aliens generally in the same

circumstances, with respect to education other than elementary education

and, in particular, as regards access to studies, the recognition of foreign

school certificates, diplomas and degrees, the remission of fees and charges

and the award of scholarships."

12

The right to education is outlined in other international instruments,

including the International Covenant on Economic, Social and Cultural

Rights (1966), the United Nations Rules for the Protection of Juveniles

Deprived of their Liberty, the United Nations Standard Minimum

Rules for the Treatment of Prisoners (1955), UNHCR (1999), Revised

Guidelines on applicable Criteria and Standards relating to the Detention

of Asylum-Seekers (UNHCR Guidelines on Detention); UNHCR (1997), Guidelines

on Policies and Procedures in dealing with Unaccompanied Children Seeking

Asylum (UNHCR Guidelines on Unaccompanied Children), UNHCR Guidelines

on Protection and Care, ch 9. See Background

Paper 1: Introduction.

13

See CRC, General Comment 1: The Aims of Education, UN Doc CRC/GC/2001/1,

17 April 2001. Education programs should fully reflect the promotion and

protection of human rights and the values of peace, tolerance and gender

equality, using every opportunity presented by the International Decade

for a Culture of Peace and Non-Violence for the Children of the World

(2001-2010).

14

CRC, General Comment 1, para 9: "Basic skills include not

only literacy and numeracy but also life skills such as the ability to

make well-balanced decisions; to resolve conflicts in a non-violent manner;

and to develop a healthy lifestyle, good social relationships and responsibility,

critical thinking, creative talents, and other abilities which give children

the tools needed to pursue their options in life."

15

UNHCR Guidelines on Protection and Care, ch9.

16

The Committee on the Rights of the Child supervises the Convention and

its General Comments assist in interpreting the Convention's provisions.

See Background Paper 1: Introduction. To date, only one General Comment has been issued; that on article 29.

17

CRC, General Comment 1, para 2.

18

UNHCR Guidelines on Protection and Care, ch9.

19

G Machel (1996), The Impact of Armed Conflict on Children, UNICEF,

New York, 1996, tabled at the 51st session of the General Assembly, 26

August 1996, UN Doc A/51/306. The report concluded that the most important

factor contributing to a child's resilience is the opportunity for expression,

attachment and trust that comes from a stable, caring and nurturing relationship

with adults.

20

Article 30, Convention. See Background Paper

2: Culture and Identity.

21

UNHCR Guidelines on Protection and Care, chs4 and 9.

22

Article 30 of the Convention guarantees children the right to speak their

own language without interference. Their right to "use" their

own language does not necessarily entitle them to be taught in that language,

although, according to UNICEF, this may be necessary at least initially

with child asylum seekers. See UNICEF, Implementation Handbook,

p413.

23

UNHCR Guidelines on Protection and Care, ch4.

24

UNHCR Guidelines on Protection and Care, ch9.

25

Rule 6 of UN Standard Rules on the Equalization of Opportunities for

Persons with Disabilities (adopted by the UN General Assembly, 48th

session, resolution 48/96, annex, of 20 December 1993): "Education

in mainstream schools presupposes the provision of interpreter and other

appropriate support services. Adequate accessibility and support services,

designed to meet the needs of persons with different disabilities, should

be provided. Parent groups and organizations of persons with disabilities

should be involved in the education process at all levels. In States where

education is compulsory it should be provided to girls and boys with all

kinds and all levels of disabilities, including the most severe. Special

attention should be given in the following areas:

  • Very young children

    with disabilities

  • Pre-school children

    with disabilities".

26

UNICEF Implementation Handbook, p377.

27

Committee on Economic, Social and Cultural Rights (CESCR), General

Comment 5: Persons with disabilities , 9 Dec 1994, para 9. See also

Rule 6, UN Standard Rules on the Equalisation of Opportunities for

Persons with Disabilities 1993, which provides: "States should

recognize the principle of equal primary, secondary and tertiary educational

opportunities for children, youth and adults with disabilities, in integrated

settings. They should ensure that the education of persons with disabilities

is an integral part of the educational system."

28

Rule 38, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty.

29

See UNICEF Implementation Handbook, p377.

30

National Goals of Schooling in Australia are national minimum standards

agreed to by the State, Territory and Commonwealth Ministers of Education.

The latest is the Adelaide Declaration on National Goals for Schooling

in the Twenty-first Century (April 1999); http://www.dest.gov.au/sectors/school_education/policy_initiatives_reviews/

national_goals_for_schooling_in_the_twenty_first_century.htm

31

Submissions could refer to the Human Rights and Equal Opportunity Commission's Rural and Remote Education Inquiry. See Briefing paper on "School

Education for Students with Special Needs" at http://www.humanrights.gov.au/human_rights/rural_education/briefing/disability_ed6.html

32

UNICEF estimates that of the 110 million children of primary school age

who are not in school, two-thirds of them are girls. See http://www.unicef.org/pdeduc/education/girlsedu/girls_ed.htm.

33

Articles 28, 2, Convention. Recommended by UNHCR Guidelines on Protection

and Care, ch9.

34

UNHCR Guidelines on Protection and Care, ch9.

35

UNHCR Guidelines on Protection and Care, ch9.

36

Article 12, Convention.

37

CRC, General Comment 1,para 9.

38

Article 28(1)(a), Convention.

39

UNICEF Implementation Handbook, p387.

40

See CESCR, General Comment 13; The right to education (article 13),

UN Doc E/C.12/1999/10, 8 December 1999, para 13.

41

Article 28(1)(c) Convention stipulates that higher education must be made

accessible to all. See also Rule 38, United Nations Rules for the Protection

of Juveniles Deprived of their Liberty.

42

UNICEF Implementation Handbook, p380.

43

Rule 42, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty provides: "Every juvenile should have the right

to receive vocational training in occupations likely to prepare him or

her for future employment."

44

UNHCR Guidelines on Protection and Care, ch9. See Background

Paper 4: Health and Nutrition on the need for asylum seeking young

people to receive culturally appropriate sex and personal development

education.

45

UNICEF Implementation Handbook, p373.

46

According to the UN Committee on Economic, Social and Cultural Rights,

availability of education means "functioning educational institutions

and programmes have to be available in sufficient quantity within the

jurisdiction of the State party. What they require to function depends

upon numerous factors, including the developmental context within which

they operate; for example, all institutions and programmes are likely

to require buildings or other protection from the elements, sanitation

facilities for both sexes, safe drinking water, trained teachers receiving

domestically competitive salaries, teaching materials, and so on; while

some will also require facilities such as a library, computer facilities

and information technology"; CESCR, General Comment 13, para

2(6)(a). See also the reports of the Human Rights and Equal Opportunity

Commission's Remote and Rural Education Inquiry at http://www.humanrights.gov.au/human_rights/rural_education/index.html#1

47

Article 28(1)(e), Convention.

48

In its Guidelines for Periodic Reports, the Committee on the Rights

of the Child has registered concern at the "real cost to the family

of the child's education," even if it is nominally free; see Committee

on the Rights of the Child, General Guidelines Regarding the Form and

Content of Periodic reports to be Submitted by States Parties under Article

44, paragraph 1(a), of the Convention, adopted by the Committee on

the Rights of the Child on 11 October 1996, para 106.

The Committee on Economic, Social and Cultural Rights has commented that

the right to a free primary education 'is expressly formulated so as to

ensure the availability of primary education without charge to the child,

parents or guardians: "Fees imposed by the Government, the local

authorities or the school, and other direct costs, constitute disincentives

to the enjoyment of the right and may jeopardize its realization …

Other indirect costs may be permissible, subject to the Committee's examination

on a case-by-case basis"; CESCR, General Comment 11, UN Doc

E/C.12/1999/4, 10 May 1999, para 7.

49

CESCR, General Comment 13, para 6 (c)

50

Such as separation/isolation detention, or hospitalisation.

51

Rule 40, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty provides: "Diplomas or educational certificates

awarded to juveniles while in detention should not indicate in any way

that the juvenile has been institutionalized." Other factors could

include access to general information and media (article 17 Convention);

provision of age-appropriate children's books; quality of the school library

(as distinct from the detention facility library); number of teachers

per student; number of composite classes; competence of teachers; regular

assessment of teachers' qualifications.

52

UNHCR Guidelines on Protection and Care, ch9. See also CRC, General

Comment 1, para 2.

53

UNHCR Guidelines on Protection and Care, chs 4 and 9. See also CRC, General

Comment 1.

54

Rule 41, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty provides: "Every detention facility should provide

access to a library that is adequately stocked with both instructional

and recreational books and periodicals suitable for the juveniles, who

should be encouraged and enabled to make full use of it."

55

Article 3(3), Convention: "States Parties shall ensure that the institutions,

services and facilities responsible for the care or protection of children

shall conform with the standards established by competent authorities,

particularly in the areas of safety, health, in the number and suitability

of their staff, as well as competent supervision". Discussed in Background

Papers 3 and 8: Mental Health and Development and Deprivation of Liberty

and Humane Detention, respectively.

56

UNHCR Guidelines on Protection and Care, ch9.

57

See Rule 38, United Nations Rules for the Protection of Juveniles Deprived

of their Liberty.

58

UNHCR Guidelines on Protection and Care, ch9.

59

"The Committee recommends that the State party examine the reasons

for delays in the procedures for processing applications and for the settlement

of children, with a view to shortening them. The Committee also recommends

that the State party make further efforts to ensure the rapid integration

of children into the normal school system." CRC, Concluding Observations

of the Committee on the Rights of the Child : Norway, UN Doc CRC/C/15/Add.126,

28 June 2000, para 50. The Committee was also concerned by "the fact

that some child applicants are not integrated into local education systems";

para 50.