Applying a Human Rights Lens to the Work of the Biden Task Force on Separated Families

Jennifer McQuaid and Randi Mandelbaum

Lawyers, psychologists, primary health physicians, and human rights professionals are watching as the Biden and Harris Inter Agency Task Force, created by Executive Order on February 2, 2021, and led by the Commissioner of the United States Department of Homeland Security (DHS), begins to make amends for the effects of the government’s Zero Tolerance Policy which forcibly separated nearly 6,000 children from their parents.^[1] While policy makers and politicians debate the best ways to manage the ongoing and life-altering effects of President Trump’s family separation policies, we believe the Task Force should step back, recalibrate, and incorporate a human rights framework to guide the recovery of these children and families.

The preamble of the Convention on the Rights of the Child (CRC), ratified by the UN General Assembly resolution in 1989, and signed by every nation except the United States, builds its 54 articles on the assertion that a child’s family is the fundamental group of society, and, as such, is the “natural environment for the growth and well-being of its members, particularly children.”  Accordingly, families should be afforded necessary protection and assistance so that parents can assume the primary responsibility for the upbringing and development of the child. In fact, many of the articles of the CRC, and the following six in particular, directly relate to the egregiousness of the harm inflicted by the US Government to children’s human rights and should be used as guiding principles for the difficult work that the Task Force faces.

Table 1. Articles from the UN Convention on the Rights of the Child of particular relevance

Identifying and reunifying families separated under Trump’s immigration policies is a good first step and consistent with Article 9 of the CRC. The joy felt by parents and children if and when they are reunified is palpable and powerful. Yet reunification alone, an almost impossible outcome for over 600 children at this point, will not be sufficient to heal the damage that was inflicted.^[2] Parents, children, psychologists, and lawyers alike are asking: “How do we make this trauma go away?” And “how can we truly stabilize the family?” The answers to these questions lie in our willingness as a nation to first recognize the unconscionable harms committed by our government when it forcibly ruptured thousands of parent-child bonds, and second, the essential need to put into place the therapeutic supports and legal remedies required to make the families whole. Children have a right to legal stability (Article 22), health and well-being (Article 24), and our nation needs to promote the psychological recovery of those it has harmed (Article 39).

The CRC’s priorities are based upon avoiding harm and protecting children because the effects of traumatic events on children are well documented. They include separation anxiety, depression, post traumatic stress disorder, behavioral and academic issues, and insomnia. Our extensive clinical and legal expertise tells us that reunification alone is not enough to bring about an end to these symptoms. By the time a family ends up at our southern border, they present with layers upon layers of trauma and stress. Subsequent forcible separation of children from their parents is yet another traumatic life event that threatens well-being. We need to understand the context within which this harm was done, its effects, and then take steps, as a nation, to mitigate the long-term damage.

In the face of severe hardship, children look to the adults in their life for protection, love, and guidance. This is particularly true in cases of extreme deprivation and distress—such as migration and asylum. Parents protect children from stress, help them make meaning of their experiences, and at the very least—when nothing else can be done—parents encircle their children in their arms. In this way, children learn to both physically and emotionally adapt as they interact with the world. Research shows the presence of a consistent caregiver is one of humankind’s strongest protective factors. And the inverse also holds true: forcible separation from a parent is one of the most traumatic events a child can experience. Without that caregiver grief and fear overwhelm. Food and warmth are just not enough for well-being. Children need the consistent attention of a trusted adult who knows them. When that person is removed, the loss is profound.

The active symptoms of psychological trauma may remit over time. But without intervention, these children will carry with them a wound inside—a place of anxious loss and separation that nags and festers. If left unresolved, this feeling is likely to be triggered in subsequent situations of real or imagined separation: parents leaving for work, children leaving for school, shifting friend groups and expected milestones of growing up. The normal comings and goings of everyday life will take on new meanings. This is what we in child psychology and child welfare call the long-term effects of severely disrupted attachment relationships.

Recognizing the importance of family and attachment, the CRC, as well as the US Constitution and various state and federal laws, protect the sanctity of the family and a parent’s right to rear and raise their child. The values behind these edicts instruct that children can only be removed from their parents and placed into state custody if it can be established in a court of law that the children would be at imminent risk of harm if they remained, even temporarily, in the care of their parents. Our human rights and due process principles demand nothing less. Moreover, domestic laws, going back to at least 1980, mandate that children who have needed to be removed from their parents should be reunified with their parents as soon as it is safe to do so.^[3] If therapeutic or supportive services are needed to help this to happen, child protection agencies must offer these services to the parents as soon as reasonably possible. In fact, a recent US law—the Family First Prevention Services Act which was enacted in February 2018, just before the Zero Tolerance policy went into effect—reaffirmed this longstanding legal principle and committed increased federal funds to local and state child welfare agencies for services aimed at keeping families together.^[4] While these child welfare laws are not directly applicable to recently-arrived immigrant children and families in the United States, the constitutional precepts are, as are other statutes as well as international human rights law.

Article 39 of the CRC calls for state actors to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment.” Here, that harm was inflicted by the US Government. Accordingly, the Biden Inter-Agency Task Force now must craft, mandate, and implement new policies and a therapeutic framework that not only reunites those families that are still waiting, but also supports and stabilizes those families that have been brought back together, both from a legal and psychological perspective.

We call on the Biden Task Force to do the following:

1. Locate and return all separated children to their parents, including bringing parents back to the United States who have been deported.
2. Broaden the awareness of the psychological effects forcible separation policies have on children and caregivers.
3. Engage reunited families in evidence-based therapeutic interventions aimed at mitigating the long term effects of parent-child separation.
4. Allow asylum seeking families to stay together in the United States with a path to lawful permanent residence status and ultimately citizenship.

We cannot undo the harms that have been exacted, but we must reform current practices to avoid future suffering and mitigate the damage already inflicted.

Jennifer McQuaid, Assistant Clinical Professor, Yale Center for Asylum Medicine, USA.

Randi Mandelbaum, Distinguished Clinical Professor of Law, Rutgers Law School, USA.

References

[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-the-establishment-of-interagency-task-force-on-the-reunification-of-families/; Miriam Jordan, Family Separation May Have Hit Thousands More Migrant Children Than Reported, N.Y. Times (Jan. 17, 2019), https://www.nytimes.com/2019/01/17/us/family-separation-trump-administration-migrants.html?searchResultPosition=50.

[2] Mimi Dwyer & Mica Rosenberg, Explainer: Biden Pledged to Reunite Migrant Families Separated by Trump Policies. What Happens Now?, Reuters (Feb. 2, 2021, 6:07 AM), https://www.reuters.com/article/us-usa-immigration-separation-explainer/explainer-biden-pledged-to-reunite-migrant-families-separated-by-trump-policies-what-happens-now-idUSKBN2A218D.

[3] Major Federal Legislation Concerned with Child Protection, Child Welfare and Adoption, https://www.childwelfare.gov/pubs/otherpubs/majorfedlegis/

[4] Memorandum for federal prosecutors along the southwest border from U.S. Attorney General Jeff Sessions, Zero Tolerance for Offenses Under 8 U.S.C. § 1325(a) (Apr. 6, 2018), https://www.justice.gov/opa/press-release/file/1049751/download.