Dr Mick Creati, paediatrician and spokesperson for the Royal Australia College of Physicians, said in an interview with SBS News in 2020: “Incarcerating children at the age of ten or twelve, according to medical evidence, is damaging. The latest neuroscience shows clearly that the human brain is not fully developed until the age of twenty-five years. And in many cases, incarcerated children are already battling mental health issues, pre-existing trauma or in some cases, foetal alcohol spectrum disorder. We have a clear choice of whether we see these kids as vulnerable or as criminal.”
Best interest of the child
When a young person goes into detention, it is the responsibility of the state that this child is cared for adequately and that the best interest of the young person is paramount. The principle of the best interests of the child is set out in the United Nations Convention on the Rights of the Child and was ratified by Australia in 1990. According to this Convention, the best interests of the child should at least be a primary consideration and paramount, in most
cases, in actions and decisions concerning children. Article 3 states: “In all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The Convention defines “children” aseveryone under 18 years.
The Convention is not considered part of Australian law but it is scheduled to the Human Rights and Equal Opportunity Commission Act. This gives the Commission power to investigate complaints about whether the Convention’s rights have been violated, but
only in the exercise of discretion or in abuse of power. Where legislation requires the child's right to be set aside, the Commission can only advise the Parliament that the legislation should be amended. The High Court has enacted an obligation to consider human rights in cases of discretionary administrative decision-making. In the case of Ah Hin Teoh, the majority held that Australia’s ratification had given rise to a legitimate expectation that decision-makers would take its provisions into account. Where legislation permits discretion, that discretion should be exercised in conformity with Australia's international treaty
obligations.
The Australian Family Law Act requires the court to regard “the need to protect the rights of children and to promote their welfare” in any matter with which it deals under the Act. The best interests of the child should be the paramount consideration. The aim of the Family Law
Act with respect to children is “…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
When this counts for parents, it should count for the state: the child’s health concerns must be addressed, and the child must receive a proper education. The state, by putting children in derelict detention centres such as the current Don Dale (the old, condemned Berrimah prison) is clearly in violation of these principles.
When it comes to the right to humane treatment in detention, Australia has ratified the International Covenant on Civil and Political Rights, which complements the prohibition on torture and cruel, inhuman, or degrading treatment or punishment, by adding a wider range of less serious mistreatment. Thus, mistreatment violates article 10 of the Covenant, even if it does not rise to the level of torture or cruel, inhuman, or degrading treatment or
punishment.
‘Child neglect’ is defined as any serious omissions or commissions by a person having the care of a child which, within the bounds of cultural tradition, constitute a failure to provide conditions that are essential for the healthy physical and emotional development of a child.
‘Child maltreatment’ is defined as child abuse and/or neglect. The terms ‘child maltreatment’, ‘child abuse’ and child neglect; are used interchangeably.
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