Critical gaps: Uncertain access to education for children in immigration detention centres Evan Stringer

In many countries worldwide, including Canada, children continue to be held in detention facilities pending determination of immigration status or pending deportation procedures. This may occur if authorities deem their families to be a danger to the public, a flight risk, or, in the case of the Canadian legislation, when they lack sufficient identification (s. 55(2) Immigration and Refugee Protection Act). Section 60 of the IRPA affirms that children shall be detained only as a measure of last resort. Nonetheless, the Canada Border Services Agency reported that in 2011-2012, 289 children were detained. While the average stay was roughly one week, other stays lasted over two months (CBC). In 2010, when the MV Sun Sea arrived on the shores of British Columbia, over 40 children- who had just spent three months at sea- were detained for over four months (Canadian Council for Refugees). The practice of detaining children in immigration matters raises many concerns, and indeed the UN has criticized the practice. Countries including the UK, France, Belgium, Sweden and Japan have stopped detaining children who claim or have claimed refugee status, with the UK’s deputy minister calling it a “shameful practice” (CBC). Among the myriad of problems that arise with immigration-related detention is the following: What happens to the education of a child detained for several months?

In view of what authorities presume will be “short-term” detentions, the rationale for failing to provide a cohesive plan of education for a revolving door of children seems more palatable. Nonetheless, a multi-month gap in a child’s education is significant, and contrary to art. 28 CRC, which states that states party shall provide compulsory, free primary education to all. Nonetheless, the IRPA- the legislation which explicitly allows for the detention of children for immigration-related purposes- makes no mention of a child’s right to education while in detention. In Ontario, where many immigration claims are processed, the Education Act stipulates in article 40 that the School Board may conduct an education program in an outside institution, but there is no legislation that mandates this.

Canada’s Detention Guidelines suggest that children detained for more than seven days will have access to a teacher (s. 5.10). However, this does not go far enough to ensure respect for the child’s right to education: First, ministerial Guidelines are not legally binding- they may be departed from in “exceptional” circumstances (which are not defined). Second, recent news items suggest that the guidelines are not being met- in a 2012 article, the CBC reported that one first-grade-aged child placed in detention for five months received only “some art classes” (CBC). At such a critical juncture in a child’s development, education is crucial, and Canada along with other countries that detain migrant children, must carry out thorough reviews to determine whether, in fact appropriate education is being consistently provided, and amend legislation to address current gaps, in order meet their obligations under art. 28 CRC and to promote the best interests of all children in Canada. 

Right to education: what about juveniles? - Pamela Ankrah

Last year I read a disturbing news article about a young boy, which till this day has been on my mind. In September 2012, 12-year-old American boy Christian Fernandez was facing life in prison. The 12-year-old boy was being tried as an adult for an alleged murder of his 2-year-old brother.[1] This would mean that Christian would be detained in an adult detention centre for the rest of his life. Whereby he will not be able to practice most of his fundamental right as a child, such as the right to education.

The right to education is a fundamental human right. It is a universal right under the Convention on the Rights of the Child[2]. Unfortunately, a lot of children worldwide are being incarcerated and have been denied this fundamental human right. Detention has serious consequences that are damaging to the progress/growth of such children and their future. The CRC forbids life imprisonment for children.[3] However, worldwide a lot of minors receive a life sentence when they commit a crime, for example Christian.

Christian had a disturbing upbringing, which is now a reflection of his actions. And yet Christian was getting straight A's in middle school. Which shows that despite his disturbing upbringing he has the capacity and talent to learn and educate himself.  Article 28 CRC says that States must recognize and ensure the right of a child to education. A right that Christian unfortunately is about to loose.

Not only has the State failed to provide a safe home for Christian according to article 19 of the CRC. But it is also acting in contrary with article 37 CRC by trailing Christian as an adult and detaining him for life and denying him the right to education. Luckily for Christian, his story was all over the news and this year he got the (good) news that he will be sentenced as a minor. Which means that he will be detained till the age of 19 in a juvenile facility.

There is a constant debate and discussion about juvenile detentions centre’s being ineffective. Despite research expressing the need for strong educational programs in juvenile detention facilities, there does not exist a uniform standard for education in juvenile centres.[4] The question therefor remains whether juveniles like Christian can truly exercise their right to education behind bars.

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[1] http://www.dailymail.co.uk/news/article-2204144/Cristian-Fernandez-The-sad-past-boy-13-tried-adult-killing-2- year-old-brother.html

[2]  Hereafter “the CRC”

[3]  Article 37 CRC – States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

[4] http://www.edjj.org/Publications/list/osep_rehabsvrs-1999.html

Children’s rights to education and gender equality - Annemiek Schipper

Education is a fundamental pillar of human development. The Convention on the Rights of the Child (CRC), emphasizes the importance of the right to education for children. Education creates the basis of equality of opportunity and promotes the fullest possible development of the child. However it is not enough to provide access to education. The quality of the education plays a major role in order for a child to reach their potential. Article 28 of the CRC places a duty on the States Parties to recognize the right of the child to education ‘on the basis of equal opportunity’. Despite this ‘universal’ Convention, equality in education is not an ‘universal’ phenomenon. Inequality in education mostly occurs amongst girls, children with disabilities, indigenous and minority children, and children living in rural communities.[1]

In order to achieve these goals, boys and girls all over the world should have equal chances to practice this right to education. Unfortunately there are still states which violate the right to education and gender equality. Malala was a Pakistani education activist, who fought hard for the right to education for girls in Pakistan. Malala was shot in Pakistan in 2012, when she stood up and spoke out in favor of education for girls. In Pakistan, especially in rural areas the situation is terrible because of social and cultural obstacles. In some areas the education of girls is strictly prohibited on religious grounds. Due to this strict prohibition, governmental organizations have tried to open informal schools in order to educate girls. Unfortunately local landlords still oppose these attempts, because of the fear the community will cease to follow then blindly. [2]

Although the international framework offers a good guidance to protect this valuable right, there seems to be a lack of proper implementation of the Convention on the Rights of the Child. I believe international organizations and governments should cooperate more intensively to reduce and minimize the level of inequality in the children’s rights to education.

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[1]G. van Bueren, The International law on the Rights of the Child, Martinus Nijhoff Publishers 1998, p. 245-246

[2]A. Latif, Alarming situation of education in Pakistan, <http://www.unesco.org/education/efa/know_sharing/grassroots_stories/pakistan_2.shtml>

Education in accordance with convictions - Lore Rammeloo

Giel aka Lobsang Nyima

The story of Giel

On 16 November 2013, Giel (a 15 year old Belgian boy) finally arrived in a Buddhist monastery in Shimla, in the North of India. His new name is Lobsang Nyima. Since he was 6, he wanted to become a Buddhist monk. The training takes 15 years.

The Juvenile Court of Ghent decided that Giel was allowed to start his Buddhist training, but the Court of Appeal of Ghent forbade Giel to leave Belgium. An investigation about the exact state and circumstances in which the minor lived, was required in order to make a right decision. One crucial topic of the appeal court's investigation was the topic ‘education’. Did Giel receive good education until today and is there a sufficient guarantee that he will receive good education in India?

Education in accordance with convictions

First of all, the principle of compulsory education is only applicable to children, because it is in the best interest of the child that children are not entitled to be denied education. However, in Belgium there is no compulsory attendance at school, just obligatory education. Giel's mother chose for home schooling, which is completely lawful.

In her program she gave special attention to Buddhism. Article 5(b) of the Convention against Discrimination in Education provides that ‘no person or group of persons should be compelled to receive religious instructions inconsistent with his or their conviction’. Article 24 of the Belgian constitution says that education is free. That’s the reason why there are catholic, Jewish or Steiner schools. Because there is a lack of Buddhist schools, the requesting party has to choose for private education or has to go abroad. The mom of Giel chose the first option, but now Giel himself wants to dive into the real Buddhist life.  

The quality of the education was a main factor for deciding whether the 15 year old boy is competent to make such a radical decision or not. It is obvious that the Court decided also to check out the level of education in the Jonang Takten Phuntsok Choelink-monastery in India. There is no reason for concern if the monastery supplies Giel with a good social environment and a open and reflective education helping him to realize his full potential. Another crucial point is the fact that Giel can leave the monastery whenever he wants to start another study. Hence, there is no difference with children following arduous ballet programs in Russia or children who are going to a cooking school.

In my point of view it’s necessary that a team of psychologists and youth workers are enabled to give their professional opinion. Giel is only 15 years old and the decision to leave for 15 years to follow such a specific education is a compelling decision and should not be made without proper reflection. It’s important that Giel can use his right to be educated in accordance with his conviction, but every state needs to create a framework in order to make sure that the rights of the child are respected but also that the child’s choice is the best for himself.

Quality education for all? Canadian government discriminates against Aboriginal children Georgia Lloyd-Smith

The right to education is well recognized in the international community. International legal documents such as the Convention on the Rights of the Child (CRC) and the Convention against Discrimination in Education (CDE) set out requirements that governments must meet to comply with international standards. The Canadian government, as a party to both of these conventions, has promised to provide high quality education. Importantly, according to Article 28(1) of the Convention on the Rights of the Child, the Canadian government must provide this education to all Canadians on an equal basis.

However, in practice, the quality of education provided to Aboriginal Canadians is much lower than that provided to the average Canadian. In the Canadian government, the education of Aboriginals falls under the jurisdiction of the federal government while provincial governments have the responsibility to educate non-Aboriginal individuals. As a result, Aboriginal students receive over $5000 less towards their education than non-Aboriginal students. Not surprisingly, consistently inadequate levels of funding for Aboriginal education has resulted in low quality education and dismal education outcomes. The UN Special Rapporteur on Indigenous People highlighted the high drop-out rates, low education attainment and low quality schooling available for Aboriginal students. On many reserves, less than half of the population has graduated from high school and the proportion of Aboriginals without a high-school diploma is more than 30% higher than that of non-Aboriginal Canadians.

The disparity between the quality of education offered to Aboriginal children and that offered to non-Aboriginal children has consistently been criticized both locally and internationally. Politically, the federal government has been under pressure to provide better education to Aboriginal students for over 30 years and yet little has been done. Is the Canadian government also under a legal obligation to improve the quality of education of Aboriginal Canadians? Are they breaching their international obligations by violating provisions of the CRC? I think the answer is yes. First, Article 2 of the CRC provides a right against non-discrimination that is supported by Article 28(1) of the CRC that creates a duty on States Parties to recognize the right to education on the basis of an equal opportunity. The Canadian government has discriminated against Aboriginal children by consistently under-funding their education systems when compared to non-Aboriginal children. In doing so, they have failed to provide the right to education on an equal basis across Canada. In addition, the Canadian government is also breaching the CDE which bans any distinction based on race that has the effect of impairing equality of treatment in education and in particular of limiting any group of persons to an education of inferior standard.

Based on international law, the Canadian government is discriminating against Aboriginal children by not providing them with equal access to education. If the Canadian government is not willing to improve Aboriginal education on-reserves, legal action may be the only way forward to ensure that Aboriginal children have a meaningful right to education.