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The Christmas Island orphan must be set free

By Patmalar Ambikapathy Thuraisingham - posted Friday, 24 December 2010

As a country we are having a discussion yet again about the mandatory detention of children.

This Christmas we and the people we elected a few months ago on a raft of representations and promises, are faced with the decision about what to do about an orphaned boy of eight. He apparently experienced and witnessed the drowning of his fellow passengers and his parents.

If there was ever a case of needing to remove a vulnerable child from an ongoing stressful situation this is it, and yet we have an Immigration Department spokesperson making indecisive statements about the boy‘s future as if it was an enormous and even, maybe to the Department, an insoluble problem.


To all of them I say delay defeats justice, get this boy out immediately where he can run free in a secure environment where he can hopefully begin to heal.

To say his human rights are being breached is an understatement as it is also against the rule of law to incarcerate an innocent person.

We do not know whether his parents were asylum seekers or not, but if statistics are borne out they will have been, and so would also have committed no crime, offence or be in breach of any policy.

This compounds the situation that faces the government.

One other matter of concern to me is that this government that is prepared to continue with the mandatory detention policy and law, that was brought in by a previous Labor government, are not the impartial independent advocate the child needs.

The government comes to the issue without "clean hands" as authors of a cruel policy in breach of international law. We signed the United Nations Convention on The Rights of the Child in 1990 that in my view the government is in breach of.


It is also my view they are not acting in a compassionate or bona fide manner and must have the power they have over the child by default removed from them immediately.

I suggest that the welfare of the boy, his guardianship, care, control and custody be reviewed as a matter of urgency, with the appointment of an independent advocate well outside the administrative processes of the department . The department has so far demonstrated its failure in looking after his best interests.

I see nowhere any discussion about the expectations of the boy, the cultural practices within his family and religion in a situation of loss of both parents. Cultural practices and rituals are enormously comforting in such situations to help the boy make some sense of, and come to terms with, his loss.

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About the Author

Patmalar Ambikapathy, BA ( Durham) Barrister ( London), M.Phil ( Cambridge), is a Barrister and Human Rights Consultant for Children.

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