Contemporary detention environments

Children can be detained in Australia in a range of lawful detention and detention-like environments. These include physically ‘closed’ and community-based detention environments, and otherwise ‘open’ institutions in which children are subjected to restrictive practices, such as physical restraint.

Our inquiry indicated that detention environments may present higher levels of risk of child sexual abuse, as compared to many other institutional contexts. Characteristics of contemporary detention environments that enable opportunities for child sexual abuse can be:

• environmental, such as the lack of privacy afforded to children, which can normalise behaviours that are potentially abusive or are precursors to abuse
• operational, such as when staff are regularly afforded opportunities to be alone with, and have great authority over, children
• cultural, including cultures of disrespecting children or tolerating the humiliating and degrading treatment of children.

Research suggests that children are generally safer in community settings than in closed detention environments. The Australian Government and state and territory governments should only detain children as a last resort and for the shortest appropriate time. Where a government detains children, they should take all appropriate steps to ensure the care and protection of those children.

We recognise there may be circumstances in detention institutions in which the best interests of the child cannot be easily reconciled with other imperatives, such as maintaining safety and security. Still, governments and institutions can and should take steps to improve the safety of children in detention environments, when detention is considered absolutely necessary as a last resort. This includes providing staff with resources and children in detention with access to services to meet their needs.

Detention institutions and those involving detention and detention-like practices should implement our proposed Child Safe Standards, which articulate the essential elements of a child safe institution. These standards can be implemented in a secure environment, and are readily adaptable to the new and emerging detention contexts and changes in existing detention environments. In protecting children with disability in detention, the National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework will play a significant role, in concert with our Child Safe Standards.

Further, given the Australian Government’s commitment to ratify the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) by December 2017, it should ensure that the ‘national preventive mechanism’ has the capacity and expertise to monitor, and recommend action on, child sexual abuse in detention environments.

Youth detention is intended to provide a secure environment for the detention and rehabilitation of children convicted or accused of criminal offending. State and territory governments owe children in youth detention a duty of care that includes protecting them against, and responding appropriately to, sexual abuse.

Yet we were told in private sessions about the sexual abuse of 515 children in youth detention, 91 of whom told us they were abused after 1990. While the reported impacts of the abuse varied, many victims described a cycle of reoffending and incarceration that they have struggled to break, often driven by substance abuse and mental health problems. Many described feelings of anger towards, as well as distrust of, ‘authority’. A number of survivors told us that they did not report the abuse, for reasons that included not feeling safe doing so while in detention, not having access to a trusted adult to whom they felt they could make a report, or fearing being punished or labelled a ‘dobber’.

Commissioned research suggests that the nature of youth detention environments means they are high-risk institutional settings. The level of risk of child sexual abuse to which children in youth detention are exposed is influenced by factors such as placement decisions (for example, placing older and younger children together), the institutional culture, the level of access children have to trusted adults, and the extent to which operational procedures and the physical environment provide opportunities for abuse. Risk is also influenced by the vulnerabilities of the detained children, many of whom are particularly vulnerable to child sexual abuse due to experiences of trauma, family violence, abuse and/or neglect before entering youth detention.

It is difficult to assess the adequacy of the responses of governments and institutions to child sexual abuse in youth detention due to a lack of publicly available information. However, in private sessions we heard about responses that did not take children or their complaints of sexual abuse seriously. Of the victims who told us they had disclosed abuse to youth detention staff, medical professionals or other adults in their lives, many said they were not believed or their complaints were dismissed and not reported to the police. Some told us they did not know who they could confide in. Others described responses that failed to remove children from risk of harm, including allowing perpetrators to continue to have access to children following an allegation of child sexual abuse.

We acknowledge that youth detention systems in some jurisdictions are already undergoing significant change. We also acknowledge the particular safety and security concerns that can be presented, particularly by older children in detention. However, the practices of each state and territory vary and it is essential that all jurisdictions address the ongoing risk of child sexual abuse in youth detention institutions. In addition, it is important for jurisdictions to address the needs of survivors of child sexual abuse in youth detention, including by providing, and facilitating access to, therapeutic treatment services. These services would help victims to deal with the impacts of abuse, and may help to reduce negative social outcomes, including anger, substance abuse and recidivism.

State and territory governments should improve the safety of children in youth detention by:

• implementing our proposed Child Safe Standards in youth detention environments
• reviewing the building and design features of youth detention facilities to identify and address elements that may place children at risk of being sexually abused in these environments and enhancing the use of technology to better monitor and prevent abusive behaviours
• reviewing legislation, policy and procedures to ensure that children are detained in appropriate and safe placements (not, for example, in adult prisons), frameworks take account of the importance of children having access to trusted adults, and best practice processes are in place for strip searches and other authorised physical contact between staff and children
• considering further strategies to provide for the cultural safety of Aboriginal and Torres Strait Islander children in youth detention
• providing staff in youth detention with appropriate training in relation to the needs and experiences of vulnerable children, including the barriers these children can face in disclosing sexual abuse, and trauma-informed care
• improving access to therapeutic treatment for victims of child sexual abuse who are in youth detention, including by assessing their advocacy, support and therapeutic treatment needs and referring them to appropriate services, and ensuring they are linked to ongoing treatment when they leave detention
• reviewing internal and external complaint handling systems for youth detention to ensure they are capable of dealing with complaints of child sexual abuse effectively
• ensuring youth detention environments are overseen by an independent body with the appropriate visitation, complaint handling and reporting powers.

The Australian Government’s policy is to detain children in ‘held’ immigration detention only as a last resort and for the shortest time practicable. Children who arrive in Australia by boat are taken to Nauru, which now operates as an ‘open’ centre. For other children, community detention is now the main form of immigration detention in Australia, although it remains open to the federal government to return to a policy of detaining children in held indefinite detention.

While there is a lack of reliable data on child sexual abuse in immigration detention, recent inquiries provide insight into the nature and extent of such abuse. This includes the 2016 report of the Child Protection Panel (CPP) review, which was established by the Department of Immigration and Border Protection (the department). The CPP found that 27.6 per cent of a sample of 214 incidents of child abuse, neglect and exploitation reported between 1 January 2008 and 30 June 2015 involved child sexual abuse. Further insights, including into institutional responses to the abuse, were gained throughout our inquiry, notably in our public hearing during Case Study 51: Institutional review of Commonwealth, state and territory governments (Institutional review of Commonwealth, state and territory governments).

The impacts of child sexual abuse in immigration detention are often similar to those experienced by victims in other institutional contexts. Still, we heard about specific impacts, including the particular vulnerability of victims to cumulative harm, difficulty recovering from sexual abuse while in held detention and fears about disclosing abuse. We heard that these impacts may be exacerbated by the extent of detainees’ dependency on the department and its service providers, and the perceived effect that disclosure may have on placement and immigration-status decisions. A further challenge for victims of child sexual abuse in immigration detention can be adapting to a new country in the aftermath of abuse.

Our commissioned research identifies immigration detention as a specific institutional context with an elevated risk of child sexual abuse. Held detention has unique features that combine to create this risk. These include a lack of privacy, the close proximity of children and adults in some settings, the clustering together of higher risk groups (for example, unaccompanied minors) and aspects of organisational culture. Institutional risk is likely to be lower in community detention due to protective factors such as access to stronger and more positive social networks, more stable housing, and health and some social services. Yet a number of factors contribute to the risk of abuse in these community-based environments, many of which relate more broadly to out-of-home care environments. These factors include inadequate resources, training and support for carers and staff and the inappropriate placement of, and support for, children with harmful sexual behaviours.

Vulnerability to child sexual abuse is likely to be accentuated for many children in immigration detention. Reasons for this include that the children are likely to have experienced abuse and trauma previously, acquire trauma in the detention environment and experience high levels of social isolation. A further reason is the likelihood that the ability of parents to provide comfort and support to their children is compromised by the detention environment. Before their detention, some children have experienced extreme events, including war crimes and sexual violence. Relatively high numbers of children in immigration detention are also ‘unaccompanied’ and lack parental or extended family support while in detention. Many of these children are suffering a profound sense of loss and grief following the death of their parents and other family members.

It is difficult to assess the adequacy of responses to child sexual abuse in immigration detention due to the significant barriers to identifying and reporting the abuse and the limited information on it. Additionally many of the immigration detention services are contracted to third parties and the level and adequacy of monitoring and supervision of such services, including responses to reports of abuse, is unclear. Even so, the CPP highlighted some concerns with institutional responses. These included the department’s lack of capability to manage complex cases of child abuse effectively, ineffective risk assessment systems, inadequate staff training in relation to child abuse, incomplete and unreliable records of child abuse incidents and inadequate information sharing resulting in inappropriate transfer and placement decisions.

We were told about some important developments to strengthen protections for children in immigration detention, including against sexual abuse – notably the department’s adoption in 2016 of its Child Safeguarding Framework. Still, further work is needed to better understand the nature, extent and causes of child sexual abuse in immigration detention, minimise opportunities for abuse to occur in these environments and improve children’s safety.

Institutions involved in the administration of immigration detention environments should implement our Child Safe Standards. The Australian Government should establish a mechanism to regularly audit the implementation of the standards in immigration detention by staff, contractors and agents of the department. The outcomes of each audit should be reported publicly.

In addition, the department should improve the safety of children in immigration detention by:

• publicly reporting within 12 months on the implementation of the CPP’s recommendations
• contractually requiring its service providers to comply with our proposed Child Safe Standards, as the department applies them to the immigration detention context
• identifying the scope and nature of the need for support services for victims of child sexual abuse and ensuring appropriate therapeutic and other specialist and support services are funded to meet the identified need
• designating appropriately trained child safety officers for each place in which children are detained, to build the capacity of staff and service providers to implement our proposed Child Safe Standards
• implementing an independent visitors program in immigration detention.