Unaccompanied children detained and denied access to mental and physical health facilities

Facts

The authors are nationals of Afghanistan, Pakistan and Iraq who claim the State Party has violated their rights under article 2 (3), 7, 9 (1), (4), 10, 17, 23 and 24 of the Covenant. In November 2013, the authors arrived in Australia as unaccompanied minors and were placed in a detention centre on Christmas Island for illegal migrants and asylum seekers, pursuant to the domestic law i.e., Australian Migrants Act. Subsequently, five authors were granted a Safe Haven Enterprise. One of the author’s requests to be taken care of by his brother was refused.

Admissibility

The communication is admissible insofar as it appears to raise issues about detention under articles 9(1) and (4) and 24 of the Covenant with respect to all authors and under articles 17, 23 and 24 of the Covenant with respect to the last author.

Merits

Taking into consideration the author’s claim to be taken care by his brother, the Committee looked into rights of a child and noted that (a) the State party took all possible measures to establish and maintain contact between the author and his brother and, (b) the author failed to present sufficient evidence. Hence, there was no violation of duties under articles 17, 23 and 24 of the Covenant. With regards to the allegations that their detention was arbitrary, unreasonably prolonged and conditions were inadequate, the Committee noted that the State party  failed to justify the time period of detention, prevalence of less intrusive measures and inability to quickly transfer the authors to a community centre tailored for their needs. Hence, placing the authors, as unaccompanied minors, in immigration detention violated articles 9 (1) (4) and 24 of the Covenant. Regarding the claim that the authors did have any domestic remedy to challenge the legality of their detention, the Committee notes that the State party has again failed on two counts, first,  to demonstrate legal precedents showing effectiveness and second, to show that the national courts have authority to make individualized rulings on the justification for each author’s detention. Hence, there is a violation of article 9 (4) of the Covenant.

Recommendations

The State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to Provide authors with adequate compensation and take all necessary steps to prevent similar violations in the future.

Implementation

January 8, 2022