How can the detention of Tharunicaa and Kopika be compatible with the rights of the Child?

Kopika, 4, and Tharunicaa, 2, inside the Christmas Island Detention Centre.
Tharunicaa and Kopika inside the Christmas Island Detention Centre

Dr Diann Rodgers-Healey

Recently, former High Court chief justice,  Sir Gerard Brennan condemned the Christmas Island detention and treatment of the children of a Tamil family, 3 year old Tharunicaa and 5 year old Kopika, as “deliberate cruelty.”

Tharunicaa was medically evacuated to a Perth hospital on 6 June 2021 for treatment and was diagnosed with septicemia and pneumonia. Her mother Priya Murugappan was reported as saying that Tharnicaa was sick for almost two weeks, and that repeated requests for early hospital care were refused.

Writing in The Sydney Morning Herald letters page, Sir Brennan stated, “Tharnicaa has committed no offence; she presents no danger. Cruelty is being inflicted upon her to punish her parents who came by boat without a visa and thus to discourage others from breaching one of our immigration policies. If we want to enforce a policy to stop people smuggling, we must do so by action taken against the people smugglers or the people being smuggled. It is a hard policy to implement, but if action is ineffective to prevent potential parents from settling in Australia, and the parents do settle and have children here, it is unconscionable to impose deliberate cruelty on those children to rectify the earlier failure to exclude the parents.”

Sir Gerard added that depriving the children of their parents or isolating them with their parents to discourage future people smugglers is “cruelty obnoxious to Australian values.”

Home Affairs Minister Karen Andrews refused growing calls to use her discretion to give refugee status to this family. She was reported as saying to the Seven Network, “It’s not a case of being mean…I am not going to have people dying trying to come to Australia by sea on my watch. I’m not going to open the gates to the people smugglers.”

It is shocking to see how the government’s hard-line adherence to its border protection policy is void of concerns of the severe impact of this policy on these young children living in detention. How can such policy be compatible with the rights of these children?

On 17 December 1990, Australia ratified the Convention on the Rights of the Child which had been adopted by the United Nations General Assembly over 30 years ago in 1989. Two of the Guiding Principles of this Convention are:

•    respect for the best interests of the child as a primary consideration
•    the right to survival and development.

Evidence shows that that detention has significant negative impacts on the mental health and wellbeing of children as reported by the Australian Human Rights 2014 enquiry. The Report stated, “The mental health screening of children in detention shows alarming results both in the rates of mental disorder in these children and in the severity of their symptoms.” Last year, 700 paediatricians and healthcare workers signed a petition expressing concerns about the “negative impact” detention was having on the development of the girls. This petition was supported by the AMA.

 Under Australian law, there is no prescribed limit to the time a child can be detained.  In March 2014, children had been held for 231 days (approximately 8 months) on average. By September 2014, the average length of detention for children and adults was one year two months. Tharunicaa, her parents Priya and Nades and her sister, Kopika, have been in detention on Christmas Island since August 2019, for almost 2 years, and with the ongoing litigation, there is no certainty what the status of this family will be any time soon.

As the 2014 Australian Human Rights Commission’s report examined in more detail the impact of detention experienced by children at different stages of their development, continued detention of Tharunicaa and Kopika is unconscionable.

Based on the work of the Australian Human Rights Inquiry, the Commission concluded that at various times children in immigration detention were not in a position to fully enjoy their rights under articles 6(2), 19(1), 24(1), 27 and 37(c) of the Convention on the Rights of the Child.

The detention of children is not an answer to stopping people smuggling. It is in clear violation of international human rights law.

The federal government has the power to immediately release the Tamil family from detention to enable Tharunicaa and her sister, Kopika to grow up in a safe, healthy and positive environment in Biloela, and enjoy adequate human rights protections, as most Australian children do, and most Australians are strongly urging.

The decision of the Australian government on 15 June 2021 to allow the Murugappan family to live in a Perth community detention placement while they pursue legal action means that the children still remain in detention and there is no change to their visa status.

The UN Committee on the Rights of the Child states that “Every child, at all times, has a fundamental right to liberty & freedom from immigration detention.” As a signatory to the UN Convention on the Rights of the Child, the government must see that the best interests of the Murugappan children are met by allowing them to remain with their parents and be at liberty in Biloela.

Angela Fredericks (from Biloela’s) Petition to the government: Bring Priya and her beautiful family back home to Biloela, Queensland

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