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Child asylum seeker wins government payout over Christmas Island detention trauma

Christmas Island immigration detention centre
The Christmas Island immigration detention centre, where the asylum seeker child was diagnosed with post-traumatic stress disorder, major depression with anxiety, separation anxiety, stuttering and bed-wetting. Photograph: Scott Fisher/Getty Images

A nine-year-old girl who was held in Christmas Island detention has been awarded a settlement by the immigration department over claims her physical and mental health deteriorated in her 12 months on the island.

The girl, known as A.S, was five years old when she arrived in Australia on 26 July 2013 and was placed in the Christmas Island detention centre, along with her father and pregnant mother.

She suffered recurrent dental abscesses and recurrent allergic reactions while in detention on Christmas Island and was also diagnosed with post-traumatic stress disorder, major depression with anxiety, separation anxiety, stuttering and bed-wetting.

The case was the backbone of a class action by law firm Maurice Blackburn about the negligent treatment of asylum seekers at the Christmas Island detention centre, but the class action was disbanded by the supreme court in Victoria last month after judge Jack Forrest ruled the cases in the class action lacked commonality.

The individual claim by A.S. was then scheduled for a six-week trial before the immigration department offered a settlement, on the grounds that the amount of the settlement be kept confidential.

The offer was finalised before Judge Forrest in the supreme court in Melbourne on Wednesday.

Tom Ballantyne, senior medical negligence lawyer for Maurice Blackburn in Melbourne, said achieving a settlement would make any subsequent claims by Christmas Island detainees “much easier.”

Ballantyne told journalists outside court that the girl and her family were satisfied with the outcome.

“Look, there’s never any amount of compensation that can properly recognise what the lead plaintiff has gone through and what other people have gone through on Christmas Island,” he said. “I can say that they’re satisfied and quite relieved that it’s over.”

According to facts contained in the statement of claim filed in September 2016, A.S. was held in detention on Christmas Island with her mother and father for two weeks after arriving in Australia, before her mother was transferred to a detention centre in Darwin.

Following that separation, A.S. developed anxiety and began stuttering and wetting the bed.

She and her father were transferred to Darwin to join her mother a week later and were then approved for community detention, but they were never released into the community and were instead transferred back to Christmas Island detention centre in October 2013, after her younger brother was born.

The family was moved to another detention centre on 19 August 2014, one week before Maurice Blackburn filed the original writ for a class action, and A.S. was released into the community after being granted a bridging visa in January 2015.

Maurice Blackburn argued that the minister for immigration, the Australian government and Serco had failed in their duty of care to A.S. in failing to take reasonable care to ensure detention did not cause or exacerbate any injury to her; failing to ensure she attended school; and failing to ensure that as a minor she was only detained as an option of last resort.

The Department of Immigration and Border Protection disputed those allegations.

Sister Brigid Arthur from the Brigidine Asylum Seekers Project, who was acting as litigation guardian for A.S., said A.S. and her family were “very relieved to have it behind them.”

She said that while it was in the pursuit of justice, the court process itself had been re-traumatising.

“I am very happy for the family’s sake that this is over and I’m also very happy that such actions can still happen in Australia and that the whole issue of detention is being subject to the law and I hope that that continues,” Arthur said.

The family are still living in the community on bridging visas and their refugee status has not been determined.

Arthur said being held in immigration detention was inherently traumatising and no amount of improving conditions in detention could fully remove that trauma.

“All people who have been in detention are traumatised, and in particular children because the parents are anxious about the children and that trickles through to how the kids then feel,” she said. “Sometimes they feel guilty that they actually in some way caused the problems, it’s amazing what the kids will think. So detention has long-term deleterious affects on families.”

In 2015, the department was ordered to pay $10,000 in costs to lawyers from Maurice Blackburn for blocking access to certain units at the Christmas Island detention centre, after the Victorian supreme court had granted them unprecedented access to the centre for the purpose of the case.

The class action purported to include more than 35,000 people who were held in detention on Christmas Island between August 2011 and August 2014. Those claims will now have to be pursued individually.

The trial for a separate class action against the Australian government, G4S and Transfield Services over treatment of detainees at the Manus Island detention centre is due to start at the supreme court in Melbourne on 15 May.