A toddler born in immigration detention on Nauru will be brought to Australia to receive critical tests after the federal court ruled against a plan from the home affairs department to continue treating her in Papua New Guinea.
The two-year-old girl and her mother were flown from Nauru to Port Moresby last month amid concerns the girl was dying of encephalitis. The hospital there had said it did not have the necessary equipment or specialist staff to treat her.
She is the fourth refugee child held on Nauru brought to Australia either by court order or by threat of court action in the past seven months.
The cost of the girl’s medevac flight to Port Moresby was $137,000 – $11,000 more than the cost of a flight to Australia, which was the option recommended by the department’s healthcare provider, International Health and Medical Services.
The girl’s condition improved under treatment in PNG but the medical director of the hospital told the department it did not have either the equipment or the expertise to perform a necessary MRI on a child that young.
The hospital does not have a paediatric anaesthesiologist to properly sedate her during the MRI, or a paediatric neurologist, both of which were declared by expert witnesses in affidavits to be necessary for the girl’s care.
Australia’s Department of Home Affairs agreed it had a duty of care to ensure the girl received an MRI and an EEG at an appropriate medical facility but maintained that the hospital in PNG was appropriate.
At an urgent injunction hearing at the federal court in Melbourne on Tuesday, counsel for the department, Andrew Yuile, suggested that equipment and staff could be provided to the hospital within seven days to prevent her having to come to Australia, or that she could receive treatment in a third country.
Judge Bernard Murphy questioned the department’s decision to send the girl to PNG instead of Australia in the first instance, and said the department was “scurrying around trying to make arrangements” to do the tests in PNG with no guarantee that could be achieved.
“We are talking about a two-year-old child who at some point … it was feared that she would die,” Murphy said.
He ordered that the girls and her mother be brought to Australia to undergo the tests at a tertiary-level hospital within 48 hours, and that her father, who remains on Nauru, should join them by Friday.
The law firm Maurice Blackburn, who represents the girl through her father, cited correspondence provided to the court by the department in which senior medical staff at the hospital said that they did not have the requisite specialists.
An email on 13 June said: “Again, I would like to reiterate that I recommend Australia as the first option.”
Counsel for Maurice Blackburn, Matthew Albert, said the girl should not be sent to a third country such as Taiwan for treatment because the court had been given no evidence that any other place was equipped to perform an MRI on such a young child either.
Albert said the girl’s father should be present because he spoke very good English, while her mother spoke none. He could therefore communicate with and give informed consent to the doctors.
The department argued that service could be performed by a translator but Murphy rejected that option.
“To rely on interpreters is to take another risk with the applicant’s health,” he said.
Jennifer Kanis, head of social justice with Maurice Blackburn, told the Guardian the speed of care provided to the girl so far had been “woefully inadequate” and questioned why the girl’s circumstance even had to come to court.
“We’re talking about a child who’s two, who had a life-threatening illness … The evidence was that the hospital in PNG couldn’t provide the tests that were needed, so why were we even in court? What did they expect? You really have to query why the government was forcing a two-year-old child to take court action in order to receive medical care.”
An affidavit from Dr Nick Martin, a former senior medical officer for IHMS on Nauru, said that the care available on Nauru for such a complex case was “grossly inadequate”.
“Both the offshore processing centre on Nauru and the Republic of Nauru hospital have limited outpatient facilities targeted to children, and have limited resources. These facilities would be grossly inadequate to treat a child presenting with the applicant’s clinical history with the early intervention that is required in such cases. There is no appropriate way of monitoring the applicant’s health and development.”
There is no MRI scanner at Nauru hospital and “paediatric healthcare on Nauru is basic”.
The girl is the fourth child removed from Nauru for health reasons since December following legal action in Australia. Three of the transfers were ordered by the federal court and one was consented to by the Australian government just before a court hearing.
Most cases have concerned young children suffering acute mental health crises. In one case, a 10-year-old boy had made repeated suicide attempts but the Australian government resisted moves to move him to a hospital until until a court ordered his transfer.
The court’s order to reunite the child with her father may signal a significant shift in the Australian government’s policy of separating families, often for months or years, between offshore islands and Australia.
Several department sources, and sources on Nauru, have confirmed to the Guardian that it is “unofficial policy” to use family separation as a coercive measure to encourage refugees in split families to agree to return to Nauru, or even to abandon their protection claims.
Between Australia and the Australian-run regional processing centres on Manus and Nauru, fathers are separated from children, while wives and husbands, and siblings, have spent months apart. There are several fathers on Nauru who have never met their children: their wives have been taken to Australia during pregnancy and the children born in Australia injuncted from returning to Nauru.
