International Human Rights Program report prompts  policy changes—and a plan to end immigration  detention of children

By Karen Gross / Illustration by Owen Gent

From the Fall/Winter 2016 issue of Nexus

No Life for a Child illustrationWhen I first met her she was this bright, interested, curious girl who had impressive language skills,” said Rachel Kronick, a psychiatrist whose intensive research involving asylum-seeking families and children began in 2011. “I watched her over the next few weeks deteriorate significantly. So much so that if she’d been a child in the community, we probably would have hospitalized her.”

Kronick was describing her encounter with a girl whose family had fled religious persecution in their country of origin, hoping to find a safe haven in Canada. They’d survived war-like conditions and arrived after a harrowing period of detention in Central America. Yet instead of a haven, they found themselves in another detention centre—this time in Laval, outside of Montreal. After being there for about a month, Kronick says the girl’s emotional and physical states declined dramatically. “She began to stop eating. She would sit on a couch all day dozing or crying,” Kronick recalled. “She began to speak about being frightened and not understanding why her family was being held like they were terrorists.”

Kronick’s work formed a key component of the International Human Rights Program’s landmark report, No Life For a Child; A Roadmap to End Immigration Detention of Children and Family Separation, released last September. Its findings jolted Canadians from coast to coast, including many in public health, policy and government, who seemed unaware that the country’s immigration holding centres are not just holding migrants deemed dangers to society. And they are not just housing adults. In fact, the two largest centres, outside Montreal and Toronto, are also housing babies, children and teenagers. Between 2010 and 2014, an average of 242 children were detained annually—in addition to an undisclosed number of children who were either Canadian citizens or permanent residents, placed  in detention along with their parents but officially listed as guests rather than detainees.

The vast majority of families pose no danger to society. “The main commonality among these cases is that they are really heartbreaking stories,” said Hanna Gros, JD 2016, the report’s coauthor and an  IHRP senior fellow. “Many of these children are young. Some are infants. So they’re very difficult cases.”

Among those cases was that of a little boy who’d been born to a woman while in custody. He went on to spend nearly three years of his life in detention with her, barely setting foot outside the confines of the Toronto holding centre. Before the two were ultimately deported, the mother spoke with Aria Laskin, JD 2014, an associate with the firm Torys in Toronto. “The little boy had never seen a dog. He’d never really played on grass. He hadn’t had the opportunity to be socialized with other children his own age,” said Laskin, whose work on the case was pro bono. “When he came back inside he would be patted down and searched. They would search inside of his diaper. And for him that was a totally routine thing.”

Although the child in this case was a Canadian citizen, he became a de facto detainee by staying with his mother. Her only other option would have likely been to release him to Children’s Aid, to be placed with strangers in foster care. “The catch-22 for most of these parents is that a Canadian child is there allegedly voluntarily,” added Sheila Block, a partner at Torys who spearheaded the firm’s pro bono work on immigration detention cases and advocated for the IHRP report recommendations with policymakers in Ottawa. “If you don’t have someone close to you on the outside who can take your child, you may hand them over to government agencies. But it’s very natural that people want to keep their children with them.”

Keeping children in detention arguably violates Canada’s international legal obligations, and the core principle enshrining children’s best interests in the International Convention on the Rights of the Child. As currently written, the Immigration and Refugee Protection Act pays lip service to that principle, stating that children are only to be detained as a measure of last resort. But the law and its regulations give a lot of room for interpretation, leaving crucial detention determinations to individual officers with the Canada Border Services Agency, who first greet migrants when they arrive. When it looked at Canada’s piecemeal approach, the United Nations Committee on the Rights of the Child determined that the best interests of the child were not being integrated or consistently applied, especially in decisions involving immigration detention.

And as Rachel Kronick and others discovered, the impact on children is jarring. Kronick and her team observed and interviewed 20 families as part of their research. In some cases—including those in which  the children were detained for as little as two days, or just a parent was detained—the effects on the children were dramatic.

“On the one hand, it’s important to have flexibility because cases can vary and be complicated. But on the other hand, we have to guard against such wide discretion that allows for human rights violations to  creep into decisions.”

“A mother and three children were detained for 48 hours. Their asylum claim was rejected and was being appealed,” she recalled.

“The children had been successfully attending school, but after the detention one developed a terrible fear of vans on the street and was unable to attend school for a month. Another child developed selective mutism and couldn’t function in school. The third became violent with peers.”

Evidence like this, uncovered by the IHRP and other refugee and immigration advocates, brought a swift reaction even before the report was officially released. Instead of resisting its findings, the CBSA cooperated, detailing in a running commentary the measures it is taking to make improvements. “The change in government was  a huge factor,” said Samer Muscati, JD 2002, director of the IHRP.

“It’s changed the advocacy landscape. Now we’re able to meet with MPs, we’re able to meet with the minister himself. They understand the issues and want to work on changing things.”

Muscati and others say CBSA and government officials are also aware that child detention and family separation need to be handled as twin principles; alternatives outside of detention must be established for the entire family unit, in order to protect the welfare of the children. “We’re glad there is a recognition of this twin principle but we’d like to push the government further,” said Gros.

But while the Trudeau government has committed $138 million to improving the entire immigration detention regime, Gros points out the bulk of that is dedicated to upgrading the infrastructure of the immigration holding centres. Just a small fraction was set aside for health services and alternatives to detention. “I would suggest that when the vast majority of funds are allocated to upgrading prisons, I think that’s a problematic direction,” she said. “There needs to be a lot more focus on making alliances with local organizations that can provide support outside of detention. It’s a matter of establishing those contacts and programs. And I don’t know that $5 million will  be adequate.”

Nonetheless, Gros and other advocates are hopeful, acknowledging that MPs, policy makers and the CBSA have all shown a genuine openness to ideas and a willingness to adjust. After the IHRP report was released, CBSA began providing updated child detention statistics online in an unprecedented show of transparency. Previously the IHRP could only obtain the numbers through Access to Information requests.

The latest figures indicate the number of children being detained indeed seems to be falling, but researchers haven’t yet determined where the children are going and if their parents are going with them. That’s cause for concern. “The report isn’t only about ending child detention, it’s about ending family separation,” Muscati said.

A key goal among advocates is entrenching revised policies in  legislation, leaving less room for individual officers to make discretionary decisions. “It’s important that legislative changes be at the heart of recommendations,” Gros said. “On the one hand, it’s important to have flexibility because cases can vary and be complicated. But on the other hand, we have to guard against such wide discretion that allows for human rights violations to  creep into decisions.”

“Where there is a gap in legal rules, I would hope to see those supplied by the government,” added Prof. Audrey Macklin, faculty adviser to the IHRP. “Wherever you can be clear, you should do it.” And while she welcomes the new openness at the upper levels of government, Macklin worries whether that trickles down to the front lines. “Institutional culture changes more slowly. There has to be an institutional culture that will be receptive and responsive to change.”

Canada doesn’t have to look very far for successful examples in other countries. In Belgium and Sweden, migrant families are treated more like visitors than inmates. They are assigned case managers who guide them through living in the community, connecting them with doctors, schools and appropriate programs while they wait for their cases to be adjudicated. “There’s evidence that shows people are far more willing to leave a country voluntarily if they’re treated with dignity and they don’t feel like they have to run away from authority,” Gros said.

Forming productive partnerships with local organizations would help the government keep tabs on migrants, while allowing them to lead lives of freedom and dignity. Children could play with each other  and attend school. And whether they stay in Canada or are sent back to their countries of origin, they’ll likely be better off than when they arrived.

“We have to think about these children and families in detention as future Canadian citizens,” said Rachel Kronick, the psychiatrist who contributed to the IHRP report. “Is this the welcome we wish for them to receive?”

The IHRP released its latest detention report, “Invisible Citizens: Canadian Children in Immigration Detention,” in February 2017.