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D. and E. and their two children v. Australia

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D., E. and their two children v. Australia

Court/Judicial Body:
Human Rights Committee

Communication no. 1050/2002

11 July 2006

Instruments Cited:
International Covenant on Civil and Political Rights, article 9(1) and (4) (Right to liberty); article 24(1)(Special protection of the child).

The complainants were a family of four – two parents and their two children of Iranian nationality – who were asylum-seekers held in detention in Australia. They claimed a violation of their right to liberty under art. 9 and a violation of the children’s rights to special protection under art. 24 of the International Covenant on Civil and Political Rights (ICCPR). The complaint cited General Comment No.17/35 of 5 April 1989, in which the Human Rights Committee stated that the ICCPR requires “the adoption of special measures to protect children, in addition to the measures that States are required to take under article 2 to ensure that everyone enjoys the rights provided for in the Covenant”. The complainants argued that the State was in breach of this provision by keeping the children in detention without consideration of their best interests.

In reply, the state argued that it had discharged its obligation of special protection towards the children by providing social and educational programmes appropriate to the children’s ages and abilities available through the detention facilities. The State also argued that the policy of detention furthered the legitimate aims of Australia’s immigration policy and, in any case, the best interests of the children were to remain with their parents.

The Committee concluded there had been arbitrary detention in violation of art. 9(4) of the Covenant, because of the length of detention, which exceeded three years, and the state’s inability to show that such prolonged detention was justified. However, the claim of breach of art. 24 was declared inadmissible as it was not sufficiently substantiated. Relevant factors in making this decision were the evidence presented by Australia as to the facilities available to children in detention and the argument that non-separation from the parent is in their best interests.

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This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.