Separated Children Seeking Asylum & the Child Care System Jacqueline Kelly, 27 th March 2012 Refugee & Immigrat

1. Separated Children Seeking Asylum & the Child Care System Jacqueline Kelly, 27th March 2012 Refugee & Immigration Practitioners’ Network

2. Background Teresa’s talk focused on immigration issues arising in the context of child protection cases before the District Court. By contrast, this talk focuses on separated children who are cared for the by the HSE but whose cases rarely come before the District Court. It emerges from my background of working with adult asylum seekers and, within the childcare process, on behalf of the parents of children in care. A version of this talk was first delivered to NGO staff, guardians ad litem and HSE staff at the Closing the Protection Gap seminar run by Samantha Arnold, the Irish Refugee Council’s Children & Young Person’s Officer, in January of this year.

3. Who are Separated Children? • The Separated Children in Europe Programme define separated children as “children less than 18 years of age, outside their country of origin and separated from both parents, or their previous, or customary primary caregiver” (Separated Children in Europe Programme, Statement of Good Practice, 4th Ed., Save the Children, Copenhagen.) • The decision to travel is not usually the child’s own & travel arrangements are usually made by a family member (see Arnold & Sarsfield Collins, CPG, p13 referring to HSE and Joyce & Quinn research) • Most children leave in order to flee persecution, armed conflict, to escape poverty and deprivation or because of family circumstances such as the death or imprisonment (Joyce & Quinn) • Often children themselves don’t know where they are going until they have actually arrived (All I have to Say, Separated Children in Their Own Words, CD, Ombudsman for Children & Young People)

4. Separated Children in Ireland • Between 2000 & 2010, 5952 separated children were referred to the HSE • 2865 of those children were placed in care (Barnardos, 2010) • Although numbers have diminished in recent years, statistics for 2010 show that in the Dublin South East region, 95 separated children were referred to them and 66 of these were placed in their care. • During the same year, 37 applications for asylum were made on behalf of separated children in Ireland.

5. Overview • The Child Care Act applies to separated children & they are entitled to its full protections • The Child Care Act 1991 (as amended) and the Refugee Act 1996 (as amended) are both applicable to separated children • The legal representative of the separated child should look at how both pieces of legislation affect the child • The legal provision used to take the child into care under the Child Care Act 1991 can have immense implications for the child and for after-care once the child reaches 18. • The manner in which the child is taken in to care currently crucially affects how his/her voice is heard in decisions affecting his/her welfare, whether he/she has a guardian ad litem, a legal guardian and a Court overseeing the decisions taken in respect of his welfare. • Many have proposed law reform and specific legislation for separated children in Ireland, I argue that existing childcare law, the Childcare Act 1991 Act and Regulations, could be used to greater effect to protect separated children in care.

6. Legislative Framework for Care of Separated Children in Ireland • UN Convention on the Rights of the Child 1989 • European Convention on Human Rights Act 2003 • BunreachtnahÉireann1937, A42.5 • Child Care Act 1991 (as amended) • Child Care (Placement of Children in Foster Care) Regulations 1995 • Refugee Act 1996 (as amended) Constitution, CRC

7. Legislative Framework for Care of Separated Children in Ireland (cont’d) • There is no separate legislation for separated children in Ireland • S8(5) (a) of The Refugee Act 1996 (as amended) refers to children under 18 who enter the state and are not in the custody of any adult - such children must be referred to the HSE • S 8(5) (a) 1996 Act provides expressly that the Child Care Act applies to separated children • S8(5) (b) obliges the HSE to appoint an “officer” and gives that officer the power to decide whether or not an application for asylum should be made on behalf of the child if deemed appropriate by that officer (see also SI/52/2011) • S3 1991 Act – HSE obliged to ensure child’s welfare is paramount in accordance with S24 of the Act • S 4(4) 1991 Act – “voluntary” care and care for and lost or abandoned children • S5 1991 Act – accommodation of homeless children • S16 1991 Act – Imposes a statutory duty on the HSE to institute care proceedings where a child is unlikely to receive care or protection which he is unlikely to receive unless the court makes a care order or a supervision order in respect of him

8. Refugee Act (1996), Section 8(5)(a) Where it appears to • an immigration officer or an authorised officer • that a child under the age of 18 years • has either arrived at the frontiers of the State or has entered the State, and • is not in the custody of any person, • the officer shall, as soon as practicable, so inform the [HSE] in whose functional area the child is • and thereupon the provisions of the Child Care Act 1991 shall apply in relation to the child.

9. What happens after the separated child is referred to the HSE? • Following an assessment the HSE decides whether and how the child will be taken in to care. • In most cases separated children in Dublin are taken into care using S4 of the 1991 Act (“voluntary care”) and are assigned a duty social worker. • S4 is the same provision that is being used in more than 40% of all cases of children in care throughout Ireland • In a number of cases, particularly in Cork, (CPG, Arnold & Collins),Section 5 of the 1991 Act is used (which provides for housing of homeless children, such a child is not a “child in care” under the Act) • An application for a care order is rarely made on behalf of separated children seeking asylum. Such an application is at the discretion of the HSE and typically occurs where the child is very young.

10. Section 4 1991 Act • Mechanism for taking in to care children who are in need of care and protection that they would otherwise not receive & those who are lost or abandoned • Imposes a duty on the HSE to act to provide care and protection where the child would not otherwise receive it • Imposes a duty on the HSE to maintain the child so long as his welfare as it appears to the HSE requires it & so long as he remains a child • Creates a positive duty on the HSE to endeavour to reunite the child where he is lost or abandoned where it is in his best interests to do so

11. Section 4 1991 Act (Voluntary Care) 4.—(1) Where it appears to [the HSE] that a child who resides or is found in its area requires care or protection that he is unlikely to receive unless he is taken into its care, it shall be the duty of the [HSE] to take him into its care under this section. (2) Without prejudice to the provisions of Parts III , IV and VI , nothing in this section shall authorise [the HSE] to take a child into its care against the wishes of a parent having custody of him or of any person acting in loco parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of him. (3) Where [the HSE] has taken a child into its care under this section, it shall be the duty of the [Executive] — • subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the [HSE] to require it and while he remains a child, and • to have regard to the wishes of a parent having custody of him or of any person acting in loco parentis in the provision of such care. (4) Without prejudice to the provisions of Parts III, IV and VI, where the [HSE] takes a child into its care because it appears that he is lost or that a parent having custody of him is missing or that he has been deserted or abandoned, the [HSE] shall endeavour to reunite him with that parent where this appears to the [Executive] to be in his best interests.

12. Intention of Section 4 1991 Act • As noted previously, it was drafted prior to 1996 Refugee Act and not with separated children in mind • Purpose is to provide a voluntary means of taking into care those children who require care and protection with the cooperation of their parents. • Does not pass legal guardianship to the HSE • Parent retains their rights and can terminate the arrangement at any time • Not intended to circumvent formal care proceedings & where it appears to the HSE that a child requires care or protection which he/she is unlikely to receive unless a court makes a care order or a supervision order in respect of him, “it shall be the duty of the executive to make an application” for such an order (Section 16).

13. When is Section 4 of the 1991 Act usually used? • Section 4 provides for “voluntary care” in circumstances where the child is not receiving adequate care or protection • Section 8 of the 1991 Act gives gives a non-exhaustive list of examples of what might constitute a such a lack of care or protection: • children whose parents are dead or missing • children whose parents have deserted or abandoned them • children who are homeless • children at risk of being neglected or ill-treated • children whose parents are unable to care for them due to ill-health or for any other reason

14. Children in Voluntary Care • Department of Health statistics in 2011 (Children in Care & Child Abuse Statistics), show that 1534 children were admitted to voluntary care in 2009, while only 834 were admitted on a care order • Use varies in different parts of the country • Particularly prevalent & likely to be used in the East and South of the country • By far the biggest reason (more than 600 cases) was parental inability to cope • Only 10 separated children cases are recorded in these statistics – these statistics appear to be inaccurate

15. Features of Section 4 Voluntary Care • Parents retain legal guardianship • There are few formalities & no court proceedings • There is generally no access to a guardian ad litem (pursuant to Section 26 of the Act) • No oversight by a court or an independent guardian • As a matter of practice, parents rarely receive legal advice

16. Particular Vulnerability of Separated children in voluntary care Hearing the voice of a child in voluntary care can be difficult That difficulty is greatly increased in the case of separated children in voluntary care: • No legal guardian (no person to sign the “reception into care” forms • Absence of a watchful parent/family member who might regularly see the child/raise concerns on their behalf • No clearly defined “end point” • Responsibility for all major decisions fall to the social worker • Absence of another person who might raise concerns/have recourse to a Court to seek directions on the child’s behalf if necessary • Hard to establish how children’s voices are heard/wishes considered (Section 3(2) of the 1991 Act, A12 CRC) and who they can in practice bring to support them at a Child in Care review

17. Concerns About the Use of Section 4 for Separated Children • Likelihood is that voluntary care will be the only form of care provided, that no formal care proceedings will follow even in the usual circumstances where family reunification cannot or does not occur. • The requirement to conduct an investigation into the possibility of restoring family unity sits uneasily with the State’s obligations of confidentiality to a person in need of international protection (A22 of the Procedures Directive and A19 of the Refugee Act) – it should be consistently conducted in line with the above provisions, with SCEP Guidelines and in connection with the Red Cross. • No independent oversight of the decisions that have been taken & the length of time it took to make those decisions. • Because there is no legal guardian and no guardian ad litem, enormous (and legally complex) decisions in relation to family reunification and asylum rest with only with the social worker without the guidance or direction of a Court or independent guardian • There is an absence of legal advice and information given to child in relation to their right to have their views heard and considered in all decisions affecting them .

18. Legal Advice for Separated Children in the Care of the HSE • Specialised legal advice is provided for by the Refugee Legal Service (part of the Legal Aid Board) • This advice is, however, limited to advice and representation relating to an application for asylum/protection • It doesn’t cover legal advice on the rights of a child in care, the right of the child to have his/her voice heard and access to a Court • While broader information and advice could be given, it is difficult to do so without an independent guardian ad litem in place

19. By Contrast.. • If another child (whose parents were in Ireland) was in voluntary care, and the parent was dissatisfied with the voluntary care placement, he/she could seek the immediate return of the child and legal advice on his/her rights regarding this • If care proceedings were brought in response, the parent would obtain full legal representation • Yet for the separated child, vulnerability can lead to further vulnerability.

20. Summary: Absent Protective Factors for the Separated Child in voluntary care are: • A Parent to Seek their return, or to raise concerns about their placement or development in care • No legal guardian • No right of access to a Guardian Ad Litem • Lack of access to broad legal advice and representation in relation to the care process

21. Representatives of the Separated Child should consider • Informing the child of his/her rights as a child in care (RLS well placed to do this given expertise in both areas) • Empowering the separated child by ensuring he/she is enabled to present his/her views at the Child in Care review and has supporting person(s) present • Ensuring decisions are taken in relation to the child in a timely fashion • Seeking directions from the District Court pursuant to Section 47 of the Childcare Act where necessary and appropriate • Seeking, by way of a Section 47 application, the appointment of a guardian ad litem pursuant to Section 26 of the 1991 Act by the District Court

22. Section 47 of the Childcare Act 1991 “Where a child is in the care of the [HSE], the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.” This is a very broad provision, based on the welfare of the child, allows a court to make directions on all aspects of a child’s upbringing, care, health and development. See EHB v McDonnell [1999] IR 174, WHB v KM [2002] 2 IR 493

23. The Existing Legal Framework • The legal framework for separated children has incurred trenchant criticism from a myriad sources and understandably so • Yet practitioners should not give up and assume that current law and practice is immutable • Continue to question how the voice and visibility of the separated child can be strengthened

24. Finally.. • While a child should never be “just a statistic”, every child in care should always be accounted for in national statistics • The collation and publication of comprehensive, detailed national statistics relating to the numbers of separated children in care (not just those in the asylum process) nationally should be an urgent priority.