Of relative rights and putative children: rethinking the critical framework for the protection of refugee children and youth.

• Author: Crock, Mary E.
• Position: Creating New Futures for All: International Law and the Protection of Migrant Children at Risk

Abstract

This article is about a complex policy problem for governments everywhere: the phenomenon of children and young people presenting as forced migrants, either alone or in the company of responsible adults. The special vulnerability of children in situations of displacement is apparent and (typically) is readily acknowledged. Rather than responding directly and simply to the needs of the embodied child, however, governments have found serial justifications for denying protection and for adopting policies that harm, rather than help, the children in question. Using as a case study Australia's recent response to children presenting as unauthorised maritime arrivals ('UMA'), the article explores the discourses that have developed to deny children rights that are enshrined in international law. I argue that these have centred around three disabling ideas. The first is that the rights of children are compromised by their standing relative to the rights and interests of adults. The second is that the rights of refugee children and youth are affected by their status as non-citizens or aliens. This is because rights vested under international law will only have meaning if 'enabled' by domestic law. The third challenge to the notion of rights in refugee children and youth revolves around the perceived imperative that countries adopt measures to deter irregular migration. The idea is that policies must be set so as to deter adults from placing refugee children and youth in situations of peril by sending them alone in search of asylum. The protection of the putative child is invoked in defence of policies that are acutely harmful to embodied children. In Australia's case, examples of such policies are found in the mandatory detention of undocumented refugee children and youth and the decision to deflect UMA children and youth to regional processing centres on Nauru and Papua New Guinea's Manus Island. Without denying the difficulties governments face in these matters, I argue that Australia's laws and policies have now reached a tipping point. The very concept that refugee children and youth might be rights bearers has been put in question.

I The Challenge

Children presenting as forced migrants--most particularly children seeking asylum without the protection of a responsible adult--pose intractably difficult policy problems. The reasons young people end up in situations of forced displacement are as varied as the world's evils, and equally as complex. Children can be part of a mass exodus. They can be the victims of vile criminal activities. They can be pawns in complex strategies devised by adults desirous of achieving immigration outcomes for either or both children and their families. In whatever circumstances they arrive, children are the most vulnerable of migrants. They are unusually susceptible to injury in situations of unrest or disaster (natural or humanitarian). (1) They are particularly ill-equipped to deal with the complexities of legal processes in navigating the protection pathways available under international and domestic law. On the other side, there is evidence that parents and responsible adults will target countries perceived to be generous in their reception of immigrant children. (2) Often placed in situations of great peril, these young migrants are referred to in policy circles as 'anchor' children. Governments everywhere struggle when required to accommodate the needs of children within regimes directed at border control and irregular migration. (3) Australia's experience has led the government in this country to adopt policies and propose law reforms that the government itself acknowledges are detrimental to the interests of the children affected, on the presumption that punitive measures are the only way to deter irregular migration (including irregular migration by children themselves).

The central argument in this article is that there has been a tendency in the Australian case to subscribe to theories about children in forced migration that both deny the complexity of the phenomenon and fail to provide useful frameworks for finding solutions. More specifically, I contend that the approach adopted in this country has led to a regressive tendency to objectify the child migrant--and to deny to children altogether their legal status as rights bearer under international law.

The challenges refugee children and youth face in asserting the rights conferred at law (international and domestic) are threefold. First, in practice, these children are rarely considered as rights bearers in isolation from the adults who dominate the family collective. Here, the rights of the children are perceived to be qualified by the relative rights of the responsible adults who are associated with children by relationship or responsibility. When parents are characterised as irregular migrants, as security risks, or are themselves subjected to deterrent measures such as interdiction and deflection to a third country, children are often the collateral damage to decisions made about adults' status.

Second, the refugee child's status as rights bearer qua child is seen as subservient to the child's status as a non-citizen or alien. Australia's migration laws are quite express (4) in the stipulation that immigration law and policy--particularly as it relates to control and enforcement--has precedence over any other applicable law and policy. Nowhere is this as apparent as in laws and policies mandating the detention of children and youth presenting as undocumented asylum seekers.

As I have argued elsewhere, (5) Australians clearly understand the notion of obligation under international law, in particular the principle that refugees should not be refouled or returned to a place where they face persecution for a Convention reason. (6) However, there is mounting evidence that we do not accept that this obligation might vest a correlative right in persons in respect of whom obligations are owed. This is most particularly the case when the persons asserting rights are minors. Australia's position on these matters is apparent in the policy and laws enacted by its federal Parliament and by the way in which these laws have been interpreted by its highest courts. Subscribing to the dualist approach to international law, (7) both Parliament and the courts have made it plain that it is Australia's domestic laws that will dominate in the event of inconsistency with obligations assumed under international law. (8)

The third problem facing refugee children and youth aspiring to assert rights is what I identify as 'deterrence' theory. (9) This results in the figurative disembodiment of the refugee child by shifting the protective focus from the actual child to the 'putative' child. Deterrence measures play out as harsh and punitive policies that range from interdiction and deflection to a third country, mandatory immigration detention, denial of rights to education and of opportunities for family reunification. Deterrent measures are predicated on the notion that the harsh treatment of the embodied child is necessary so as to prevent harm to and the abuse of future children (the putative children). The imperative to deter is found in the harms befalling children caught up in the processes of irregular migration in general--and of irregular maritime travel in particular. The argument is that generous policies towards children presenting as forced migrants act as a pull factor, encouraging others to send their children in search of protection (or a better life). For example, in 2011, then Minister Chris Bowen used the dangers for children inherent in irregular maritime migration as a primary justification for deflecting unauthorised maritime arrivals ('UMAs') to Malaysia (10)--a country not party to the Refugee Convention, which was known to be a place where refugees suffered hardship and abuse of human rights. He said:

I think the overriding obligation is to stop unaccompanied minors risking their lives on that dangerous boat journey to Australia. The overriding obligation is to say to parents, 'Do not risk the lives of your children to get the prospect of a visa in Australia'. (11) This article begins, in Part II, with a brief overview of how the United Nations Convention on the Rights of the Child (12) and other international instruments that have shaped juridical conceptualisations of the child as legal person. While there has never been a time in human history when the international legal frameworks for the protection of refugee children have been stronger, a gulf has opened between international principle and domestic practice. Australian is presented in Part III as a case study demonstrating how the relativities of rights affect refugee children and youth in two areas of human rights law: the right to family life and the right to personal freedom and integrity of the person (infringed by immigration detention). In each instance it will be seen that the denial of children's fundamental rights is often accompanied by the invocation of deterrence as a policy motivation.

There follows, in Part IV, a study of policies adopted by Australia that plainly conflict with the rights of refugee children and youth to basic protection. With the spike in UMAs that followed the defeat of the so-called 'Malaysian Solution', (13) the government convened an Expert Panel to devise a circuit breaker that would stop the flow of refugee boats to Australia. (14) For UMA children and youth, the change with the most serious ramifications was the decision in August 2012 to re-open 'offshore' processing centres on Nauru and on Papua New Guinea's (PNG's) Manus Island as deterrents. The 'regional processing' regime has the effect of deflecting asylum seekers to these countries, which then assume legal responsibility for all aspects of status determination, care and resettlement. In July 2013, this policy was hardened further by the...