Teaching Law

Thursday, 14 November 2013

Forced removal of children. When will government learn?

Today's media contains the sobering news that an asylum seeker known as Latifa has been detained separately from her week old infant Farus, who is suffering respiratory problems. She is permitted to visit him between 10am-4pm but is otherwise detained with her husband and two other children. Farus' father has not been permitted to visit.

The reaction to the treatment of Latifa, Farus and their family has focused on the cruelty of separating a mother and sick infant. I agree with this assessment, but I am always interested to observe the essentialising of women's role as mother. I think that it is worthwhile to look more deeply into this picture to tease out what values are at stake in our government's treatment of this woman, her child and the child's father.

The essential woman

It's hard being a woman. We pretty much never get it right. And it's even harder being a mother. Breastfeed and you're offending members of the public. Don't breastfeed and you're damaging your baby. The Howard government felt it was so important for mothers to stay at home and bond with their babies that it invented a bonus to support stay at home mums. '[T]he care provided full-time by a parent is the most precious child care of all,' Mr Howard said.

A lot of this reflects the widely held perception of what it means to be a 'proper' woman. This perception includes an expectation of mothering - and mothering in a socially acceptable way. In fact as mothers, women cease to be women and become somehow public property, the valid object of judgement.

So some of the outcry about Latifa's separation from Farus would embody society's expectations of what is 'proper' for a mother: to be with an infant, and particularly a sick infant. This is the expected nurturing role of 'proper' mothers. It is also a government endorsed role for those who are accepted as part of our society.

I would disagree with this rationale for objecting to Latifa's treatment, because it fails to appreciate women's own individuality and their humanity separate from society's expectations. I think there are more fundamental reasons for protesting against the government's treatment. These reasons go to notions of equality and dignity - not just of Latifa, but of her husband and also the infant Farus.

Dignity and equality

The injustice of Latifa's predicament can still be expressed without essentialising what it means to be a mother or a woman, if we consider the government's actions (law and policy) in terms of human dignity. The very idea of justice is hollow without some underlying moral notion of what justice is designed to serve. It is hard to go past the notion of human dignity, which presupposes the innate equality of all humans in dignity.

The purpose of our system of governance surely is to afford justice, security and rights to support the collective good. While there are different ideological positions as to how this is achieved, there must come a point beyond which governance fails these goals altogether. Often this failure will occur at the very foundation of the values that underpin our collective good.

Despite policy objectives - such as to stop dangerous sea crossings of asylum seekers - it surely will never be acceptable to breach fundamental values of human dignity as this value underpins our system of governance. However in Australia's treatment of asylum seekers, this latest case of Latifa and her son Farus has afforded a particularly egregious example of such a breach.

A relational approach

Without essentialising Latifa's experience of motherhood, and in the absence of her own words, it is possible to criticise the government's approach. Each of us is defined in our individuality through and in the context of the relationships we enjoy. It is through 'creative interaction' that we truly become ourselves. Relationships occur at the intimate level, within a community, more widely at a state and even an international level. These 'nested' relationships constitute (but do not determine) our capacity for fulfillment of our humanity.

The dignity inherent in our enjoyment of relationships is implicit in various human rights including the right to found a family. This right is a hollow one indeed if government separates us from our family members from birth.

The operation of the Australian government's law and policy on asylum seekers fails to support the immediate and intimate relationships between Latika, her husband and their infant - as well as between the infant and his siblings. In doing so, it fails to afford dignity to these people to express themselves through their care for each other as members of a family.

Removal of children and what it says about women

The Australian government and state governments have experience in causing deep suffering through interference with the intimate relationships of families. Our governments have a long history of demonising women and using this to justify removing their children. Unmarried women, young women, women with a disability, Aboriginal or Torres Strait Islander women have all been the target of government policies to remove their capacity for self-expression through the intimate relationship of motherhood. The government has ignored the dignity of such women over the years and has taken their children away.

The government knows the suffering this has caused, acknowledging this in apologies both for the Stolen Generations, and for forced adoptions.

That governments sanctify the status of (married) mothers through policy and discourse simply highlights the narrow way in which women's dignity is upheld: it is only particular women who are afforded dignity in our society. 

And so this is the fate of Latika and her son Farus, and why we find it abhorrent. We see that this woman has been demonised as 'other'. An 'illegal'. She is a person beyond the protection of the law and yet bound by its constraints. Accustomed as it is to controlling women, the government feels no compunction against treating her unequally through failing to support her dignity as a human.

And this, of course, affects us all.
A collective sense of justice, security and rights is necessary to avoid vulnerability for anyone [as] habits of domination and violence can always be turned on different groups or individuals as it suits the advantage of the dominant... The harm, on my account, is not potential, but actual when the lives of others are violated.

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