Children in immigration detention - advice

This advice provides information on working with children and families who are subject to immigration detention.

Document ID number 2412, version 3, 23 March 2017.

See Children in immigration detention - procedure for tasks that must be undertaken.

Introduction

Working with children in immigration detention can be complex, particularly as it is an area where State law and Commonwealth law intersects. All case planning decisions need to be made on a case-by-case basis with careful consideration of the unique circumstances experienced by children and their families in immigration detention. 

Australia’s Migration Act 1958 requires people who are not Australian citizens and do not hold a valid visa to be detained in immigration detention and, unless granted a visa, removed from Australia as soon as reasonably practical. The Commonwealth government has responsibility for immigration law and policy.   

In Victoria, children subject to immigration detention may be detained in the Melbourne Immigration Transit Accommodation, known as MITA, located in Broadmeadows, or in community detention. Children and their families subject to community detention are able to reside in the community with certain conditions. The Minister for Immigration is required to approve this and determine where the child and family reside.

A MOU children in immigration detention (pdf, 4.01 MB) (MOU) is in place between the Department of Health and Human Services (the department) and the Department of Immigration and Border Protection to help clarify roles and responsibilities for the protection of children in immigration detention. Child protection practitioners should refer to the MOU when working with children in immigration detention. 

Engaging children and families who are subject to immigration detention

When engaging with a family who has recently arrived in Australia, or a family whose immigration status is unclear, child protection practitioners should ask the family about their immigration history and whether they are subject to a residence determination or visa. In some circumstances, this will assist in identifying families who are subject to immigration detention early in child protection’s involvement involvement and will allow early communication and coordinated planning to occur with the Department of Immigration and Border Protection to promote the safety and best interest of the child.   

Many children and families subject to immigration detention share experiences of trauma and dislocation. Some families may have experienced war or persecution in their country of origin and many have significant grief and loss issues. In some cases, children and their families will have been transient for significant periods of time whilst seeking safety. Some children may not be able to identify a place they call home. 

Children in immigration detention and their families encounter a range of barriers to participation in Australian society. Some of these barriers will be a result of the conditions of their detention whilst others are shared by many families from culturally and linguistically diverse backgrounds who are new to living in Australia. Some common difficulties include:

  • uncertainty about ongoing living arrangements, visa and residential status
  • physical and mental health issues exacerbated by displacement and exposure to trauma in their country of origin
  • a lack of understanding about the role of child protection and a fear of what this may mean for their immigration status
  • distrust of government which may be exacerbated by their experience of detention
  • language barriers and the need for an interpreter
  • isolation and the absence of a social network
  • limited transport access
  • a lack of familiarity with the service system and limited access to government funded services
  • financial issues, inability to seek employment or lack of employment and lack of recognition of skills and education
  • different parenting practices and a lack of understanding or awareness of community expectations about parenting
  • racism and discrimination.

For some families in immigration detention, these challenges are also risk factors and, particularly in instances where families have little access to support, may increase the likelihood a child will come into contact with child protection.

Actions to take when engaging children and families in immigration detention

The situation and needs of children subject to immigration detention are dynamic and experiences will differ between families and within each family over time. However, there are some clear actions child protection practitioners should take when engaging with children and families in immigration detention:

  • explain the role of child protection and how this differs from the role of the Department of Immigration and Border Protection. Be prepared to provide this explanation as often as required and confirm that the child and their family understands
  • ensure access to an interpreter, if required, including where a person requires assistance to understand written documents
  • ask the family what their understanding is of their residence determination, including any conditions and, where possible, sight documentation
  • seek to understand, where appropriate, a family’s experiences, including in their country of origin, travelling to Australia, and immigration detention
  • consult with and make referrals to culturally appropriate support services
  • make clear plans about what actions need to occur to strengthen the child’s connection to their culture.

In summary, under the MOU child protection must:

  • contact the Department of Immigration and Border Protection’s representative, identified in the MOU, as soon as reasonably practical to advise that a report has been received on a child in immigration detention;
  • provide the Department of Immigration and Border Protection with regular updates on the status of an investigation;
  • advise the Department of Immigration and Border Protection of the outcome of an investigation, including when a decision is made to close;
  • where it is determined, following an investigation, that a child is in need of protection advise, and work with, the Department of Immigration and Border Protection to explore options to keep the child safe, for example to relocate the person who is causing risk to the child;  
  • upon determining a protection application (PA) is necessary work with the Department of Immigration and Border Protection to ensure any decisions made meet child protection’s obligations under the Children, Youth and Families Act 2005 (CFYA) as well as the Department of Immigration and Border Protection’s obligations under the Migration Act. For example, if child protection’s recommendation is that a child be moved to another location, the Department of Immigration and Border Protection will need to seek the Minister for Immigration and Border Protection’s agreement to change the child’s Residence Determination; and
  • provide the Department of Immigration and Border Protection with reasonable access to a child in immigration detention to ensure the continued resolution of their immigration status.

Child protection practitioners are advised to refer to the MOU children in immigration detention (pdf, 4.01 MB) to gain a full understanding of their roles and responsibilities to work collaboratively with the Department of Immigration and Border Protection.  

Assessing parental capacity within a detention centre environment

As with any case, reports made to child protection concerning children residing in an immigration detention facility will involve an assessment of the capacity of the child’s parent or parents to protect the child. In some circumstances, this will be difficult as there may be environmental factors, unique to an immigration detention environment, and which the parent has limited ability to control and change, that impact on their parenting capacity. For example, a parent may have a mental illness that is exacerbated by being in detention. It is important an assessment of risk to a child posed by the mental health of a parent within detention is approached in a careful and considered manner. For further advice on mental illness see Mental health assessments and treatments – advice.

Practitioners who encounter difficulties assessing parental capacity should consult with other professionals involved with the family and a supervisor. In some circumstances it may be appropriate to consult with a child protection practice leader or involve the principle practitioner.

Issuing a protection application for a child subject to immigration detention who is living in the community

A PA may be issued when the practitioner is satisfied on reasonable grounds that a child is in need of protection under one or more of the grounds under section 162(1) of the CYFA. Such a decision will be based on a comprehensive risk assessment of the available information, consideration of all relevant principles in the CYFA and in consultation with a supervisor and endorsed by a team manager. Alternative options to minimise the risk and maintain the child in the care of a parent must be explored.

Practitioners should seek legal advice early when considering any court action.

Practitioners must also advise the Department of Immigration and Border Protection as soon as practicable when giving consideration to issuing a PA with respect to a child in immigration detention. Planning must be undertaken with the Department of Immigration and Border Protection and should explore alternative options to protect the child. If you are considering removing the child from their usual residence, the Department of Immigration and Border Protection will need to seek the agreement of the Minister for Immigration and Border Protection to amend the child’s Residence Determination.  

It is also important that as much information as possible has been gathered from the Department of Immigration and Border Protection regarding the child’s legal situation and any future planning regarding their residency in Australia.

If a PA is being issued for a child subject to community detention, ensure a consultation has taken place with the Child Protection Litigation Office or a divisional legal officer, and include any information you have obtained about the child’s immigration status and the outcome of any planning undertaken with the Department of Immigration and Border Protection. 

Issuing a protection application for a child in an immigration detention facility

Additional practice issues to be considered when deciding to issue a protection application by emergency care for a child residing in an immigration detention facility, include:

  • Is the Department of Immigration and Border Protection aware a protection application is being considered?
  • Has the Department of Immigration and Border Protection been engaged to the fullest extent possible and has any alternative solution been explored which may address the risk to the child?
  • Will the Minister for Immigration and Border Protection agree to releasing a child into community detention and amending their residence determination if a protection application by emergency care is pursued? 
  • Where the detention environment is contributing to the risk posed to the child, is there the potential for changes to be made that will decrease this risk, for example, if another detainee poses a risk to the child is the Department of Immigration and Border Protection willing to relocate this person?
  • Will the Department of Immigration and Border Protection release the child’s parents into community detention and, if so, would this address the protective concerns to the extent a PA may not be required?
  • Has the Department of immigration and Border Protection presented any other proposals to keep the child safe that may negate the need to issue a PA?
  • Are there any immediate plans for the parents to be returned to their country of origin or removed to an offshore processing centre?

Practitioners should advise their supervisor if any issues arise in the course of an investigation or case planning for a child that are specific to the child being in an immigration detention facility or if any difficulties arise in the discharging of duties outlined in the MOU. For example, if there is disagreement between child protection and the Department of Immigration and Border Protection about placing a child from an immigration detention facility into out of home care and efforts to resolve this have been unsuccessful, a consultation may be required with Legal Services and the Assistant-Director, Child Protection Unit, Statutory and Forensic Services.

Advising parents of their legal rights where matters are before the Children’s Court

All parents are entitled to be legally represented in matters before the Family Division of the Children's Court. Most families subject to immigration detention will be unfamiliar with the role of the Children’s Court and may not be aware of their right to be legally represented and attend Court. 

It is important parents residing in immigration detention, including those in an immigration detention facility, are advised of the availability of assistance from Victoria Legal Aid (VLA) and are encouraged and assisted to obtain legal representation.

Parents can be directed to VLA who will appoint a VLA solicitor to represent them or refer them to a private practitioner for advice and representation. For further information about Legal Aid see Legal Aid - advice. 

Where a parent is in an immigration detention facility, it may be necessary to arrange with staff at the immigration detention facility for the parent to be able to contact a legal representative. If a legal representative wishes to visit a parent in an immigration detention facility the legal representative will need to negotiate this with the facility staff.  

Responsibilities of the Department of Immigration and Border Protection when working with child protection

The MOU sets out the roles and responsibilities of the Department of Immigration and Border Protection when working with children in need of protection, and includes ways in which the Department of Immigration and Border Protection must engage with and assist child protection to exercise its statutory functions under the CYFA. Refer to the MOU for further information.

Child protection practitioners who are unclear about the roles and responsibilities of child protection or the Department of Immigration and Border Protection should consult with their supervisor. If there are any issues, relevant to the MOU, that cannot be resolved at an operational level, consultation may need to occur with Legal Services and/or the Assistant Director, Child Protection Unit, Statutory and Forensic Services.

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