Separated Children in Ireland: Responding to ...

International Journal of Refugee Law Vol. 23 No. 4 pp. 632–655 © The Author (2011). Published by Oxford University Press. All rights reserved. For Permissions please email: [email protected] doi:10.1093/ijrl/eer026, Advance Access published on November 7, 2011

Separated Children in Ireland: Responding to ‘Terrible Wrongs’ SIOBHÁN MULLALLY*

This article examines the ambiguous and uneasy status of separated children in Ireland at the margins of child protection regimes. The treatment and care of separated children in Ireland has been the subject of continuing controversy. For many years, the failure of the state to adequately care for separated children has attracted criticism. This criticism has pointed to continuing gaps in protection and inequities in the standards of care provided. The Ryan Report: Implementation Plan, adopted by the Irish Government in 2009 in response to the Report of the Commission to Inquire into Child Abuse, committed the state to ensuring equity of care in the treatment of separated children. This commitment was a welcome, if long overdue, response to the risks faced by separated children and to the gaps in protection in law, policy and care regimes within the state. It marked a turning point in the state’s response to separated children and an acceptance of the obligations of protection arising towards a particularly vulnerable group of children in the care of the state. Much remains to be done, however, to ensure that the state meets its positive obligations of protection towards separated children and to ensure that border norms do not hinder recognition of the vulnerability and rights claims of such children.

1. Introduction The treatment and care of separated children in Ireland has been the subject of continuing controversy, attracting criticism from international and European human rights bodies.1 This criticism has pointed to continuing gaps in protection and inequities in the standards of care provided. The 2009 Report of the Commission to Inquire into Child Abuse (the Ryan Report)2 documented the ‘terrible wrongs’3 inflicted on children in residential institutions in Ireland and the history of neglect, abuse and failure on the part of the state. While the Ryan Report was specifically concerned with the historical abuse of children in residential institutions * Senior Lecturer, Faculty of Law, University College Cork, Ireland. 1 See, UN Committee on the Rights of the Child, ‘Concluding Observations on Ireland’s Second Periodic Report’, UN doc. CRC/C/IRL/CO/2, 29 Sept. 2006, paras. 64-5; Report by the Commissioner for Human Rights, Mr Thomas Hammarberg, on his visit to Ireland, Comm DH/(2008), 9, 26-30 Nov. 2007, paras. 48-9. 2 Report of the Commission to Inquire into Child Abuse (the Ryan Report), May 2009, available at . 3 This term is borrowed from the Report of the Commission to Inquire into Child Abuse: Implementation Plan (Office for the Minister for Children and Youth Affairs: Department of Health and Children, July 2009), at xi.

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Abstract

Separated Children in Ireland: Responding to ‘Terrible Wrongs’

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orders,4

4 The Commission was established on 23 May 2000, pursuant to the Commission to Inquire into Child Abuse Act 2000, and given three primary functions: to hear evidence of abuse from persons who allege they suffered abuse in childhood in institutions, during the period from 1940 or earlier, to the present day; to conduct an inquiry into abuse of children in institutions during that period and, where satisfied that abuse occurred, to determine the causes, nature, circumstances and extent of such abuse; and to prepare and publish reports on the results of the inquiry and on its recommendations in relation to dealing with the effects of such abuse. 5 Above n. 3. 6 Action for Separated Children is an alliance of NGOs, including the Children’s Rights Alliance, the Irish Refugee Council, Barnardos and the Irish Society for the Prevention of Cruelty to Children. 7 See generally, J. Bhabha, ‘Arendt’s Children: Do Today’s Migrant Children Have a Right to Have Rights?’ (2009) 31 HRQ 410-51. 8 See, ‘Report of the Joint Oireachtas Committee on the Constitutional Amendment on Children’, 16 Feb. 2010, available at: . The Committee’s terms of reference were to: ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007’. 9 See, ‘Children’s Rights being Worked On’, Irish Times, 27 July 2010.


the Government, in its response, took the opporrun by religious tunity to address a contemporary risk of abuse – of children who are strangers to the state. The Ryan Report: Implementation Plan (Implementation Plan) committed the state to ensuring greater equity of care in the treatment of separated children.5 The inclusion of separated children in the Government’s Implementation Plan followed a sustained campaign of advocacy through the Action for Separated Children in Ireland coalition, a coalition of NGOs that succeeded in placing the rights and interests of separated children firmly on the agenda of children’s rights advocates.6 Despite this success, however, significant gaps in protection remain. These gaps in protection are not unique to Ireland. As Bhabha notes, the limited protections provided to separated children highlights the difficulties faced by children’s rights advocates worldwide, in ensuring that migrant children are recognized, first and foremost, as children in need of and with rights to protection.7 These difficulties are evident in recent debates in Ireland on proposals for a constitutional amendment on the rights of the child. The proposed amendment mandates the state to ‘cherish all children of the State equally’,8 and is intended to strengthen the constitutional framework to protect children’s rights and to remedy the failings that contributed to decades of neglect of vulnerable children. Whether the proposed amendment will support expanded protections for separated children remains to be seen. Publication of the final wording of the proposed amendment was delayed because of concerns relating to its potential impact and ‘unintended consequences’ in areas such as immigration.9 The limited rights accorded to children in the context of immigration disputes is evident in the frequent deference displayed by the courts to the state’s interests in preserving the integrity of the asylum and immigration process. All too often,

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2. Reception and care of separated children It is perhaps the reception and care of separated children that has generated most concern to date.13 It is here that the failure of protection and the inequities in the treatment of separated children are most evident. The failure over several years to respond to these gaps in child protection reflects the continuing perception of separated children, first and foremost, as migrants, and as children in need of protection, only second. Being viewed primarily as migrants has meant that the state’s concern to control immigration has often limited the supports offered to such children, reinforcing the state of exception within which separated children 10 See, Mullally, ‘Citizen Children, “Impossible Subjects” and the Limits of Migrant Family Rights in Ireland’ (2011) 1 European Human Rights Law Review 43-53. The judgment of the UK Supreme Court in ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4 (1 Feb. 2011) could potentially have a significant impact on Irish law and consideration of best interests of the child in immigration and asylum law. 11 See, Irish Refugee Council, Submission on Separated Children in response to the Immigration, Residence and Protection Bill 2008, available at: . 12 See, ‘Asylum procedures: Commission refers Belgium and Ireland to EU Court of Justice for failing to complete implementation of EU rules on asylum procedures’, IP/10/808, 24 June 2010. 13 N. Mooten, ‘Making Separated Children Visible’, Irish Refugee Council, 2006, 38-49.


appeals to the best interests of the child in such disputes10 are trumped by the state’s concern to limit and control immigration. Limited attention is given to the harms endured by migrant children. For separated children, the risks faced are great. There has been a gradual recognition of those risks but, as yet, only limited legislative and policy commitment to ensuring that effective safeguards are in place against them. The Immigration Residence and Protection Bill 2010 proposed a comprehensive legal framework for migration and protection in Ireland. It did not include, however, any explicit recognition of children’s best interests in matters relating to protection and immigration and it left unanswered the concerns that have arisen relating to age assessment procedures, guardianship and best interests determinations for separated children.11 Coming in the wake of a series of reports on the failure of the state to adequately protect children at risk, the Bill suggests, at best, a continuing failure to recognize the steps required to guard against such risks in the future and, at worst, an unwillingness to remedy the indifference shown to date to separated children. This indifference resulted in the commencement of infringement proceedings against Ireland in 2010 because of its failure to fully transpose the EU Asylum Procedures Directive and, inter alia, to legislate for the additional procedural guarantees required for separated children.12 While steps have now been taken to remedy these gaps in protection, there continues to be a reluctance to acknowledge the full panoply of rights and obligations that attach to recognition of a child’s best interests.


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14 Office of the Minister for Children, Department of Health and Children, ‘National Standards for Children’s Residential Centres’ (Government of Ireland, 2001). 15 C. Joyce and E. Quinn, ‘European Migration Network: Policies on Unaccompanied Minors in Ireland’, ESRI, 2009, 31; see also, P. Conroy, ‘Trafficking in Unaccompanied Minors in the European Union Member States – Ireland’, IOM, 2003. 16 See, G. Shannon, ‘Third Report of the Special Rapporteur on Child Protection: A Report Submitted to the Oireachtas’, Office of the Minister for Children and Youth Affairs, 2009. 17 Above, n. 1. 18 Ibid., Recommendation 11. 19 D. Naughten TD, Fine Gael Spokesperson on Immigration & Integration, speech, Dignity & Demand Conference, Royal College of Physicians, 5 Nov. 2009, available at: , accessed 14 Apr. 2010. 20 J. Kanics, ‘Child Trafficking and Ireland’ (Winter 2008) 97 Studies: An Irish Quarterly Review; IOM, ‘Managing Migration in Ireland: A Social and Economic Analysis’ (2005).


existed in Ireland. While children under the age of 12 have been routinely placed in foster care, children aged 12-16 were accommodated primarily in privately run hostels, which did not come within the remit of the Social Services Inspectorate or the National Standards for Children’s Residential Centres.14 The failure to ensure adequate training for staff and managers employed in such hostels was the subject of much concern. A recent study on separated children in Ireland noted that, in some instances, these privately run hostels were managed in a manner more akin to private enterprises, overseen by managers and security personnel with little attention given to the urgent protection needs of the children in their care.15 Over the last decade, the Government-appointed Special Rapporteur on Child Protection repeatedly expressed his concern that the continuing failure to inspect and monitor residential facilities for separated children posed a serious danger to their welfare.16 Following a country visit in 2007, Council of Europe Commissioner, Thomas Hammarberg, expressed deep concern at the high numbers of separated children going missing from residential centres and the failure to put in place effective measures to prevent such disappearances.17 Separated children, he noted, should be afforded ‘an equal level of protection and rights as Irish children’, with particular attention being paid to the heightened risks and trauma faced by such children.18 The Commissioner had good reason to express such deep concern. An estimated 503 separated children have gone missing from state care since 2000 and 441 of those remain missing.19 It is presumed that significant numbers of these children have fallen into the hands of human traffickers, primarily for the purposes of sexual exploitation.20 The recent Communication from the European Commission, on an Action Plan for Unaccompanied Minors, notes that the disappearance of unaccompanied minors who should be in care is a matter of major concern. Such children risk falling prey (repeatedly, in some instances) to traffickers. Others try to connect with family members in other member states or may

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21 Commission to the European Parliament and the Council, ‘Action Plan on Unaccompanied Minors (2010-14)’, COM(2010) 213/3, 9. 22 National Action Plan to Prevent and Combat Trafficking of Human Beings in Ireland 2009-2012, Department of Justice, Equality and Law Reform, 2009. 23 See, Implementation Plan, above n. 3, foreword. 24 See, Bhabha, above n. 7. 25 Ibid., 68. 26 The commitment to equity of care in the treatment and protection of separated children is set out in the Implementation Plan, above n. 3.


end up working in the grey economy and living in degrading conditions.21 The risks faced are many and tracing and protection mechanisms continue to be seriously inadequate in Ireland, despite more than a decade of advocacy by children’s rights organisations, both nationally and internationally. The National Action Plan to Prevent and Combat Trafficking of Human Beings in Ireland 2009- 201222 commits the state to ensuring that an effective legislative framework exists to prevent and to combat child trafficking. Key to achieving this objective will be the introduction of effective care and protection measures for separated children. Despite a growing body of evidence gathered over several years, highlighting the links between the inadequate supervision of children in private hostels and the incidence of trafficking, it was not until the publication of the Ryan Report that the state finally took decisive steps to correct this failing. The state’s failure to ensure effective monitoring and inspection systems for separated children finds echoes in the Ryan Report’s damning condemnation of the lack of protection afforded to vulnerable children in Ireland over several decades. The Report’s findings on the systemic abuse of children in residential care institutions highlight the ‘marked absence’ of an independent inspection process and the consequences of such absence for child protection.23 The tragic failures that followed from this absence are highlighted throughout the Report. Until recently, despite the knowledge of the horrific consequences of past failings in protection, separated children in Ireland effectively existed in a state of exception, falling outside the established child protection mechanisms. In its response to the Ryan Report, the Government committed itself to addressing a contemporary gap in protection for a new group of vulnerable children – to borrow Bhabha’s term, ‘Arendt’s children’.24 The Implementation Plan made a commitment to, ‘. . . end the use of separately run hostels for separated children seeking asylum and accommodate children in mainstream care, on a par with other children in the care system’.25 In late 2009, the Health Service Executive (HSE) commenced implementation of its Equity of Care Policy,26 which seeks to ensure that separated children receive the same levels of protection as Irish children in care, with particular attention given to their specific needs and to the state’s protection obligations. These steps have led to the closure of privately run


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hostels and their replacement with foster placements.27 Pending the closure

27 28 29

See, Irish Refugee Council, ‘Closing a Protection Gap: National Report 2010-11’ (2011), 23-6. Children’s Rights Alliance, ‘Report Card 2011’, 64. See, Barnardos, ‘Separated Children in Foster Care’ (Oct. 2010), available at: , accessed on 2 Apr. 2011. The importance of local expertise and knowledge is highlighted in a UK study: L. Brownlees and N. Finch, ‘Levelling the playing field: A UNICEF UK report into provision of services to unaccompanied or separated migrant children in three local authority areas in England’, UNICEF, Mar. 2010, available at: , accessed on 2 Apr. 2011. 30 See, Barnardos, ‘Aftercare for Separated Children’, Oct. 2010, available at: , accessed on 2 Apr. 2011. 31 Ombudsman for Children Office, ‘Separated Children Living in Ireland’, 2007.


of the hostels, the non-governmental organisation, Crosscare, was contracted to provide 24-hour care support to the children and young people residing in them, marking the first time that care staff had been employed in such hostels.28 In 2010, the full commencement of the Health Act 2007 took effect, providing for independent inspection of all children’s residential centres and foster care arrangements by the Health Information and Quality Authority (HIQA) and marking a further step towards remedying the failures of protection to date. The increasing use of foster care placements for separated children has generally been welcomed. Concern has been expressed, however, at the potential loss of expertise and difficulties that may arise in accessing supports when children are placed outside of the Dublin area, where social work teams had developed extensive professional experience in working with separated children over the last decade.29 Delays experienced in arriving at decisions on a child’s status also contribute to difficulties for separated children and their foster families, affecting a child’s mental well being and contributing to uncertainties and stress for the foster family. Particular concern arises as to the care provided for ‘aged out’ minors, who ‘age out’ while in foster care and who may no longer have access to educational or other supports. The current practice for aged out minors is that they are placed in adult hostels for asylum seekers, under the direct provision system. The lack of care provided to this particularly vulnerable group of young people and the lack of suitable accommodation has been the subject of concern.30 Despite these concerns, the improvements made to the care and protection regimes are recognised as marking a step towards ending the institutional segregation of separated children and their marginalization within child protection systems. The Ombudsman for Children has played a particularly important role in recent years in bringing to the fore the gaps in protection provided to separated children.31 It can no longer be said that separated children exist at the margins and limits of rights regimes in Ireland. Neither can it be said, however, that the state now adheres to

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best practice norms. A particular gap in the protection provided relates to the guardianship system and a failure to recognise its particular significance for separated children – a group without the mediators and advocates so essential to the practical realisation and enjoyment of rights.32

3. Guardianship: on the significance of advocates and mediators

32 33

See generally, Bhabha, above n. 7. Child Care Act 1991, s. 3; and, 1996 Refugee Act, s. 8(5)(a). See, HSE, ‘Services for Separated Children Seeking Asylum’, available at: . 34 See, S. Martin, A. Christie, D. Horgan and J. O’Riordan, ‘“Often They Fall Through the Cracks”: Separated Children in Ireland and the Role of Guardians’ (2011) Child Abuse Review (forthcoming). 35 Child Care Act 1991, s. 4 applies. 36 Ibid., s. 5 applies. See generally, Joyce and Quinn, above n. 15, ch. 4.


The changes made to the accommodation of separated children do not address other shortcomings in the legal responses offered to such children’s protection needs. The reactive and incremental response to the protection needs of separated children is reflected in the confusion that surrounds the application of the legislative framework. Separated children in Ireland fall within the scope of the Child Care Acts 1991-2007. Enacted before immigration became a pressing phenomenon in Ireland, the 1991 Act does not make any specific reference to separated children. It applies, however, to all children, ‘who are not receiving adequate care and protection’ and places responsibility on the HSE for their care.33 Children’s rights advocates in Ireland have pointed to the inadequacies of the Child Care Act 1991 as a legislative framework for the protection of separated children, in part, because it presumes the presence of a guardian and fails to ensure that effective alternative arrangements are in place.34 The 1991 Act was passed prior to immigration and asylum becoming pressing concerns in Ireland, and there is no reference to separated children or migrant children in the legislation. Historically a land of emigration, it is only in recent years that immigration and asylum issues have entered into mainstream political discourse in Ireland. The absence of any specific legislative guidance on separated children in the Child Care Acts has led to disparities and sometimes confusion in the care regimes applied at local level. The majority of separated children are taken into care on a voluntary basis.35 In some instances, however, legislative provisions applying to ‘out of home’ children are applied.36 Where these responses are deemed inadequate, as where heightened risks of trafficking arise, for example, social work teams have applied for interim care orders for the children concerned. In


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37 Child Care Act 1991, s. 26. See, Irish Refugee Council, above n. 27, 18-19; and, S. Martin, A. Christie, D. Horgan and J. O’Riordan, ‘What role for guardians?: Work with separated children in Ireland’ (2010), presented at Issues in Safeguarding Refugee and Asylum Seeking Children Conference (BAPSCAN), University of Lancaster. 38 Office of the Minister for Children, ‘National Children’s Strategy: Our Children, Their Lives (2000-2010)’, 71. 39 Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, 22 Dec. 2009, para. 69. See also, Fundamental Rights Agency, ‘Separated, asylum-seeking children in European Union Member States - Summary Report’ (2010): ‘A legal guardian should be provided to every separated, asylum seeking child as soon as possible. Appropriate legal representation, advice, counselling and free legal aid should be provided to separated children and their guardians or other representatives as soon as possible’, at 34. 40 For further discussion of protection issues relating to separated children in Ireland, see, proceedings of a one-day seminar on Models of Guardianship, hosted at University College Cork, Ireland, 28 Nov. 2007, available at: , accessed on 2 Apr. 2011. 41 Children’s Acts Advisory Board, ‘Giving a voice to children’s wishes, feelings and interests: Guidance on the Role, Criteria for Appointment, Qualifications and Training of Guardians ad Litem Appointed for Children in Proceedings under the Child Care Act, 1991’ (May 2009), 3. 42 Separated Children in Europe Programme, ‘Statement of Good Practice’ (4th revised ed., Mar. 2010), 21-2.


some cases, guardians ad litem (GALs) have been appointed for separated children, usually from the non-governmental organisation, Barnardos.37 The ad hoc response to care and accommodation of separated children is evident in the general approach taken to the provision of guardians. The National Children’s Strategy (2000-2010), provided that ‘Unaccompanied children seeking refugee status will be treated in accordance with best international practice, including the provision of a designated social worker and Guardian-Ad-Litem’.38 GALs can play a key role in challenging age assessment decisions or in raising concerns about discrimination or inadequacies in care provided. Given the potential for conflict of interest, the HSE cannot adequately fulfill such roles in caring for separated children. The UNHCR guidelines on children note that, ‘An independent, qualified guardian needs to be appointed immediately, free of charge in the case of unaccompanied or separated children’.39 These guidelines are not adhered to in Ireland. While GALs are appointed on an ad hoc basis for separated children, there is no consistent practice or guidance on when this should happen.40 Neither are the precise roles and responsibilities of the GAL clearly established in Irish law. The inadequate protections provided to separated children reflect broader failings within child protection regimes in Ireland, including on the roles and responsibilities of the GAL. Seeking to address these failings, a recent consultation by the Children’s Acts Advisory Board concluded that the role of a GAL should be to, ‘independently establish the wishes, feelings and interests of the child and present them to the court with recommendations’.41 This proposal is narrower than the broader role for guardians envisaged, for example, by the Statement of Good Practice of the Separated Children in Europe Program (SCEP).42 It does, however,

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43 See, art. 19, ‘Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers’, OJ L 31, 6 Feb. 2003, 18-25; art. 16, ‘Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof ’, OL 212, 7 Aug. 2011, 12-23; and, art. 30, ‘Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’, 2004/83/EC, 19 May 2004. The European Commission in its recast of the Asylum Procedures Directive places emphasis on improving the representation of a child by strongly supporting the idea of ‘legal guardianship’ vis à vis other forms of representation, European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures for granting and withdrawing international protection (recast)’, COM (2009) 554 final, Brussels, 21 Oct. 2009. See, FRA above n. 39, 33. On proposals for strengthening EU action on separated children, see, ‘General Recommendations for EU Action in relation to Unaccompanied and Separated Children of Third Country Origin’, adopted at ‘Addressing the protection gap for unaccompanied and separated children in the EU: role of the Stockholm Programme’, organized by Save the Children under the auspices of the Swedish Presidency, Brussels, 15 Sept. 2009, available at: , accessed on 2 Apr. 2011. 44 Irish Refugee Council, ‘Ensuring Protection for Separated Children: Submission on the Immigration Residence and Protection Bill’, Apr. 2008, 21. See also, above n. 27. 45 UN Committee on the Rights of the Child, ‘Treatment of Unaccompanied and Separated Children Outside their Country of Origin’, 1 Sept. 2005, UN doc. CRC/GC/2005/6.


address the key issue of representation of the child’s interests and the required independence of such a role. The EU asylum acquis recognises the importance of legal guardianship and includes references to guardianship and various forms of legal representation. Guardianship functions, as such, however, are not clearly defined and there has been criticism of the failure to develop effective standards to strengthen advocacy and representation in relation to separated children.43 In Ireland, the Irish Refugee Council has called for reform of the Child Care Act 1991 to extend the role of the GAL outside of court proceedings and to ensure that every separated child is appointed an independent, professional guardian until a durable solution has been achieved, or until a child reaches the age of eighteen. As the Council argues, the GAL should not be the child’s legal adviser or their social worker, so as to avoid any potential conflict of interest in the determination of the child’s best interests. Their role is to act as an advocate in the child’s best interests and in the search for a durable solution for the child.44 Such participation by a guardian in all discussions on care arrangements and in the search for a durable solution is essential to strengthen advocacy and protection mechanisms for separated children. The absence of independent representation for separated children has attracted the criticism of the UN Committee on the Rights of the Child, which has highlighted Ireland’s continuing failure to meet the requirements of its own General Comment (No.6) on the Treatment of Unaccompanied and Separated Children Outside of their Country of Origin.45 Commenting on Ireland’s Second Periodic Report, the Committee


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46 47

See, UN Committee on the Rights of the Child, above n. 1, para. 64. ‘Irish acceptance of asylum claims lowest in EU’, Irish Times, 21 Jan. 2011; EUROSTAT asylum applicants and first instance decisions in third quarter 2010, 20 Jan. 2011. 48 A dispute arose in early 2010 concerning the implementation of a Department of Justice, Equality and Law Reform policy position on dispersal of ‘aged out minors’, adopted in Jan. 2009, reported in: ‘“The only thing we have is education”’, Irish Times, 15 May 2010. See also, Joint Committee on Education and Science Debate, ‘Supports for Children in a Multi-ethnic Society: Discussion with Department of Education and Science’, 22 Apr. 2010, available at: . Judicial review proceedings in the High Court challenging the state’s policy on dispersal and direct provision for aged out minors attending school is currently pending. 49 B. McGonagle and G. Brophy, ‘Steady Traffick’ (2008) 102 Law Society Gazette 26.


expressed concern that separated children were not receiving adequate guidance, support and protection during the asylum process, in particular, with respect to access to services and an independent representation.46 The absence of a GAL raises difficulties for determinations of the child’s legal status and representation on this question. A separated child is determined to be a child ‘in care’. However, the child’s migration status remains uncertain unless she or he is granted refugee status or subsidiary protection, or leave to remain. It should be noted that Ireland’s recognition rates on asylum applications are amongst the lowest in the EU.47 Many children remain for several years in an uncertain legal status, further hindering the process of integration and settlement in their new home. This situation is exacerbated where a decision is taken that it is not in a child’s best interests to pursue an asylum application. For aged out minors the uncertainties as to legal status raise particular difficulties, including in access to education and to appropriate accommodation.48 In practice, applications for asylum are made by, or on behalf of, the majority of separated children who are not reunited with their families. Questions arise, however, as to who should determine whether or not an application for asylum or subsidiary protection is to be pursued on behalf of a child. Under the 1996 Refugee Act, this decision falls to the HSE. The 2010 Immigration Residence and Protection Bill left this position unchanged, leaving open the possibility of conflicts of interest to arise from this allocation of responsibility. Difficulties may arise, for example, if a child’s asylum application is refused and a decision has to be taken whether or not to pursue judicial review proceedings as a remedy against such refusal. The HSE is not well-positioned to make such a decision on behalf of the child as a conflict of interest may arise. The absence of an independent guardian at this point is keenly felt.49 The confusion surrounding the precise roles and functions of different agencies working with separated children in Ireland have been the subject of legal proceedings. These cases highlight the challenges faced by separated children in securing access to effective legal remedies. The case of Marina Djimbonge (a minor) v. Refugee Appeals Tribunal, Minister for Justice and the

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HSE,50

50 51

Unreported, High Court, 16 Oct. 2006, No. 1293 JR. Unreported, High Court, 2006, No. 768 JR, discussed in D. O’Connell, D. Griffin and P. Kenna, ‘Fundamental Rights Agency: Thematic Study on Child Trafficking – Ireland’ (July 2009), para. 221. 52 F. Gartland, ‘Children’s Rights Vote a Step Closer’, Irish Times, 15 Jan. 2011. The proposed new wording of the amendment is reported to include a specific commitment to ensuring that children’s voices are heard in all legal proceedings. 53 Barnardos, ‘Separated Children’ (Apr. 2009), available at: .


concerned a 15-year-old separated child, from the Democratic Republic of the Congo, who was subsequently placed in the care of the HSE. Following the refusal of her asylum application by the Refugee Appeals Tribunal, she sought to institute judicial review proceedings before the High Court challenging the refusal. However, in order to obtain legal aid, and according to the Rules of the Superior Courts, she was required to bring proceedings by a ‘next friend’, i.e. a person who represents the minor in an action where the minor does not have a legal guardian and is unable to maintain a suit on his or her own behalf. As the HSE refused to act as a next friend in this case, Marina Djimbonge was unable to initiate the proceedings and, instead, with the assistance of a private practitioner, challenged the rigid application of the ‘next friend’ rule as an infringement of article 6 of the European Convention on Human Rights and of her constitutionally protected right to have access to the courts. The High Court accepted her argument and granted leave to initiate the proceedings without a next friend. A similar difficulty arose in the case of Jamal Nourali (a minor) v. the HSE and the Legal Aid Board.51 Jamal, a 17-year-old Somali minor in the care of the HSE also sought leave to apply for a judicial review, challenging the rejection of his asylum application by the Refugee Appeals Tribunal. In this case, the Legal Aid Board, in the course of the proceedings, decided to exercise its discretion and to grant legal aid to the applicant, avoiding the necessity of further litigation. As these cases demonstrate, separated children face many barriers in ensuring that their voices are heard in legal proceedings, at a time when much is at stake. The absence of such an independent voice has long been a matter of concern for children’s rights advocates. The proposed constitutional amendment on children’s rights specifically addresses the question of children’s voices being heard, and should further strengthen the argument for improving access to the law for separated children.52 If separated children are not to continue in a state of legal exception within the state, making such constitutional changes relevant will, however, require significant legislative and policy reforms. Proposals for legislative reform have called for a dedicated legislative provision for the appointment of a GAL for all separated children, so that ‘. . .children can apply for protection residency permits in their own right’.53 In his 2007 Country Report on


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4. Gaps in protection, durable solutions and best interests The inadequacies in care and protection found in Ireland are not, of course, unique. Elsewhere, states continue to fall below the standards required by the CRC and UNHCR guidelines. To date, only minimal protections have been developed for separated children through the EU asylum acquis. In its Concluding Observations on the UK’s recent report, the UN Committee on the Rights of the Child called again for the appointment of guardians for all separated children and a more childfriendly asylum process.58 In Ireland, the Ombudsman for Children and others have also pointed to the absence of published guidelines on the treatment of separated children in the asylum process and the failure to ensure that the asylum process is child friendly.59 As Kilkelly notes, the 54 55 56

Above n. 1, para. 50. Ibid., para. 54. Action Plan, above n. 21, 9. See proposals amending: ‘Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers’, COM(2008)815; ‘Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national’, COM (2008)820; ‘Council Regulation (EC) No 2725/2000 concerning the establishment of “Eurodac” for the comparison of fingerprints for the effective application of the Dublin Convention’, COM (2008) 825; ‘Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status’, COM(2009)554; and, ‘Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’, COM(2009)551. 57 See proposals amending Council Directives, ibid. 58 UN doc. CRC/C/GBR/CO/4, 20 Oct. 2008, para.70. 59 Ombudsman for Children, above n. 31. See also, Irish Refugee Council, ‘The Single Protection Procedure: A Chance for Change’ (2009), 43.


Ireland, Thomas Hammarberg noted that guardians play a particular role in ensuring that, ‘the voice of a separated child is heard during the asylum procedure and that his or her best interests are taken into account in an objective manner’.54 He also noted that the provision of a GAL for each child could assist in preventing disappearances and in remedying the problem of children going missing from state care.55 As yet, these concerns have not been addressed. The asylum acquis does not provide for the appointment of a representative for separated children from the moment of identification. Representation is stipulated only for asylum applicants and there is, as yet, a lack of common understanding on the powers, qualifications and role of representatives where they are appointed.56 Negotiations on the revision of the asylum acquis include proposals for strengthened protections for separated children but many gaps remain, including in the definition of roles and responsibilities of GALs or other representatives and in the identification of durable solutions outside of the asylum or subsidiary protection processes.57

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60 U. Kilkelly, ‘Barriers to the Realisation of Children’s Rights in Ireland’, The Ombudsman for Children’s Office, 2007, 81. 61 Immigration Residence and Protection Bill 2010, s. 71(2)(f). See generally, Kanics ‘Realising International Protection for Children’ (Terre des Hommes: Child Protection in Europe), 28 Oct. 2008, available at , accessed on 2 Apr. 2011. 62 S.I. No. 52 of 2011 (Prn. A11/0241). 63 Ibid., s. 4(b) and (c). 64 Ombudsman for Children Office, ‘Separated Children Living in Ireland’ (2007), 30-31. 65 Above n. 21, para. 5.2. 66 Law Society of Ireland, ‘Rights-based Child Law: The case for reform’ (2006), 18.


asylum process, despite international guidance, has not been adapted to take into account the specific needs of children.60 The 2010 Immigration Residence and Protection Bill specifically recognizes gender and childspecific acts of persecution, drawing on the language of the Qualification Directive.61 However, little was done to ensure that the asylum process itself becomes more child-friendly. In interviews conducted by the Ombudsman for Children, separated children reported their experiences of the asylum process as alienating and stressful. Recently, following the commencement of infringement proceedings by the European Commission, the Refugee Act 1996 (Asylum Procedures) Regulations 2011 were adopted62 to give further effect in Irish law to the Asylum Procedures Directive. The Regulations specifically address the interview process at first instance and require the Refugee Applications Commissioner to take the best interests of the child into account as ‘a primary consideration’ and to ensure that the interview and subsequent report and recommendations are carried out by officers with knowledge of the special needs of minors.63 This step is an important one and goes some way towards addressing the state’s obligations towards particularly vulnerable children in the asylum process. The publication of guidelines on a child friendly asylum process and their effective implementation would strengthen and reinforce the legislative changes introduced. Delays in arriving at decisions on a child’s asylum application can be particularly stressful, given the continuing legal uncertainty as to the child’s legal status.64 Where a child is felt by a social worker to be too young or not yet ready to engage with the asylum process, an asylum application may be postponed until the child is older. While this decision may be justified, the limited availability of other routes to resolution of the child’s legal status can exacerbate an already difficult situation for a child, leaving the child in an ongoing situation of uncertainty and legal insecurity. The recent Communication from the European Commission on an Action Plan for unaccompanied minors, highlights the importance of durable solutions and the need for alternative paths to protection for migrant children.65 Both the Law Society of Ireland66 and the Government’s Special Rapporteur


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protection67

67 Above n. 16. See also: Irish Refugee Council, ‘EU Minimum Standards for Separated Children Seeking Asylum- Incorporating the Best Interest of the Child into the Immigration, Residence and Protection Bill 2010’ (2010), 11. 68 Immigration Residence and Protection Bill 2010, s. 139 (1)(a). 69 Ibid., s. 139(5)(a) and (b). 70 See generally, Bhabha, above n. 7, discussing the importance of adult mediators in accessing effective rights protection for migrant children. 71 Immigration Residence and Protection Bill 2010, s.89.


have recommended that separated children be for Child granted the status of temporary permission to remain, so as to avoid the legal limbo within which many children find themselves in Ireland. Importantly, the 2010 Bill did provide for the introduction of special measures for child trafficking victims, specifically allowing for extended recovery and reflection periods beyond the general provision of sixty days.68 The decisions on whether or not to grant such an extension for child trafficking victims, however, was left to the discretion of the Minister for Justice and Law Reform, suggesting, again, a reluctance to affirm the protection obligations of the state, even in the extreme case of child trafficking. In addition, the Bill’s proposal to allow for six-month temporary residence permits to be issued for trafficked persons who cooperate with law enforcement bodies did not exempt children from the conditionality attached, despite extensive criticism of this failure.69 The absence of alternative routes to legal status and to a durable solution is not addressed in the 2010 Bill. Again, there is no provision for a durable solution for child victims of trafficking, outside of the possibility of an application for protection under the proposed new single protection procedure. There is also a lack of clarity as to the rights of trafficked children during the period of reflection and recovery or while in receipt of a temporary residence permit. This gap highlights, again, the importance of adult mediators and sustained children’s rights advocacy for a particularly vulnerable group of children.70 For other separated children, the spectre of a vide juridique remains. Under the 2010 Bill, the Minister retained an absolute discretion to grant a residence permission where a protection application is denied, and where there are ‘compelling reasons’ to justify permission to remain being granted.71 What these compelling reasons might be are not specified. How or whether this possibility could offer a protection route for children falling outside of asylum or subsidiary protection regimes remains uncertain. A matter of concern is that it is necessary to first apply for protection under the proposed single asylum procedure, even though a child may not satisfy the requirements of either the refugee definition or subsidiary protection. For the moment, no other route to a residence permission is proposed and, as such, the likelihood of continuing delays and uncertainties remains. The 2010 Immigration Residence and Protection Bill did not

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72 73

Above n. 42. Irish Refugee Council, above n. 67. See, UNHCR Guidelines on Determining the Best Interests of the Child, May 2008, available at: , accessed on 2 Apr. 2011. 74 See, UN Convention on the Rights of the Child, art. 20; and, Barnardos, ‘Submission to the Joint Committee on Justice, Defence and Women’s Rights, on the Immigration, Residence and Protection Bill 2010 With Regards to Separated Children’, Oct. 2010, available at: . 75 Above n. 57. 76 Above n. 43, art. 20. 77 Unreported, Cooke J. High Court, 19 Jan. 2010.


include provision for best interests determinations and did not make any reference to the best interests of the child or the welfare principle, though both are presumed to underpin the operation of the Child Care Acts 19912007. It was hoped that the 2010 Bill would include provision for best interest determinations for all separated children, expanding the scope of protection available and bringing policy and practice in Ireland in line with the SCEP Statement of Good Practice.72 The UNHCR and the Irish Refugee Council have both recommended legislative amendment to provide for a formal best interests determination within two years of a child’s arrival within the state, and prior to any decision on removal.73 However, no indication has, as yet, been given that such proposals will be acted upon. The absence of a clear statement of entitlement to international protection for separated children has repeatedly been highlighted as a failure to ensure compliance with the CRC.74 More broadly, this failure reflects a reluctance to acknowledge the protection obligations that are engaged by the presence of separated children within the state. Ireland has not opted into the Reception Conditions Directive and seems unlikely to opt into any future recast of the Directive. The Commission proposal for a recast Directive includes enhanced protections for the best interests of the child, with further elaboration of a non-exhaustive list of factors to be taken into account in any assessment of a child’s interests, and a specific commitment to ensuring that a child’s views are heard, in accordance with his or her level of maturity.75 The 2004 Qualification Directive specifically mandates that the best interests of the child shall be ‘a primary consideration’ in its implementation by member states.76 As confirmed by Cooke J in the cases of Dokie (A Minor) and Ajibola v. Refugee Applications Commissioner & Others,77 the Directive was transposed into Irish law by adoption of the European Communities (Eligibility for Protection) Regulations 2006. An explicit legislative commitment to a child’s best interests should not, therefore, be controversial, particularly given the changes introduced as part of full implementation of the Procedures Directive.78


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78 79

Above n. 62. See, Alli [a minor] & Anor v. MJELR [2009] IEHC 595 (2 Dec. 2009), discussed in Mullally, above n. 10. 80 J. Bhabha, ‘The Citizenship Deficit: On being a citizen child’ (2003) 46 Development 8. 81 See, Alli, above n. 79, in which the ‘exceptionality rule’ and the insurmountable obstacles test in art. 8 immigration disputes are discussed in light of EB Kosovo v. Secretary of State for the Home Department [2008] 3 WLR 178 and Huang [2007] 2 AC 167. 82 [2011] UKSC 4 (1 Feb. 2011). 83 See, T Hammarberg, ‘The rights of children in migration must be defended’, Save the Children Sweden Conference, Warsaw, 20 Mar. 2007, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id= 1111219ampSite=COE. 84 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, application no. 13178/03, judgment of 12 Oct. 2006.


For the moment, however, given the politicization of concerns that have arisen around immigration and the proposed constitutional amendment on children, inclusion of such a reference in the proposed Immigration Residence and Protection Bill may attract some controversy. In a series of cases involving citizen children with foreign national parents, the Irish courts have displayed a willingness to limit the scope of the child’s constitutionally protected personal rights and rights to private and family life. General reasons of immigration control associated with the common good have been accepted as sufficiently ‘substantial’ to justify interference with the right to private and family life, including in situations involving citizen children.79 In these cases, the perspective of the child is ‘strikingly absent’.80 It is difficult to overcome the suspicion that an ‘exceptionality rule’ operates in practice,81 such that the state’s general interests in immigration control almost invariably win in the delicate balancing exercises that are played out before the courts and Government officials. These cases and the limited attention given to the children involved stand in marked contrast to the recent UK Supreme Court judgment in ZH (Tanzania) v. Secretary of State for the Home Department. There, Baroness Hale concluded that in immigration disputes the best interests of the child must be ‘a primary consideration’. This meant, she said, that they ‘must be considered first’.82 Council of Europe Commissioner, Thomas Hammarberg, recently noted that politicians, despite proclaiming their full support for children’s rights, appear ‘unable to draw the necessary conclusions’ about the rights of migrant children.83 This reluctance, or hesitancy, is evident in the treatment of separated children in Ireland, and the caution that is shown towards legislative and constitutional commitment to the best interest principle. The gaps in protection that can arise because of the vide juridique that migrant children sometimes find themselves in, were highlighted by the European Court of Human Rights in the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium84 and the treatment afforded to five-year-old Tabitha and her mother. Tabitha, a girl from the Democratic Republic of the Congo (DRC), was travelling with her uncle to join her mother in Canada, where she had obtained refugee status. Tabitha was stopped in

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85 86 87 88 89 90

Ibid., paras. 31 and 32. Bhabha, above n. 7, 433. Rahimi v. Greece, application no. 8687/08, judgment of 5 Apr. 2011. Above n. 70. Ibid. Program Law of 24 Dec. 2002, Guardianship on the Unaccompanied Foreign Minors, Title XIII, ch. 6 (Belg.).


Belgium and separated from her Uncle because they did not have the necessary documentation to support her entry or transit through Belgium. While in Belgium, Tabitha was detained with adult asylum seekers for a two-month period. She was subsequently deported to the Democratic Republic of the Congo, despite intervention from UNHCR and others, and without any prior notice to her mother or other family members.85 The Court’s finding that Belgium’s actions had breached articles 3, 5 and 8 of the European Convention on Human Rights (ECHR) led to reforms both in reception conditions and guardianship laws in Belgium and transformed Belgium, in Bhabha’s words, from ‘one of the least to one of the most rights-respecting of EU states for Arendt’s children’.86 More recently, the European Court of Human Rights has again highlighted the vulnerability of migrant children, particularly separated children and unaccompanied minors. In Rahimi v. Greece,87 the Court found that the treatment by Greece of an unaccompanied Afghan minor constituted degrading treatment contrary to the absolute protections found in article 3. Drawing on Mayeka v. Belgium, the Court highlighted the failure by the state to discharge its positive obligations towards a group of children that it categorised as amongst the most vulnerable in society. This vulnerability arose from the child’s age, legal status, his position as an unaccompanied minor without a guardian and his situation as a stranger in an unfamiliar country. The absence of a guardian in this case was critical. As Bhabha notes, limited access to a guardian or other adult mediator can effectively neutralize a child’s claims to special treatment and to international protection.88 The absence of an advocate who is ‘charged with unlocking the protective promises contained in statutes’89 leads, Bhabha argues, to ‘functional statelessness’ across key dimensions of social, protection and economic need, fixing separated children in their ‘radical otherness’. This otherness has led to an acceptance of gaps in protection that would not be tolerated in respect of children ‘of the State’. Steps taken by Belgium in response to the Mayeka judgment included legislative provision for the appointment of guardians for each separated child.90 The crisis of child protection that has faced Ireland in recent years could offer the same opportunities for transformation. As yet, this potential has not been fully realized.


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91 92 93 94 95 96

Above n. 8. Ibid., 15-16. Above n. 8. ‘Children’s Rights being worked on’, Irish Times, 27 July 2010. Above n. 8, 15, proposed wording of Article 42.1.3. See, ‘Proclamation of the Irish Republic to the People of Ireland’, available at: .


The recent report of the Joint Oireachtas Committee on the Constitutional Amendment on Children91 recommended that the proposed constitutional amendment should require that the welfare and best interests of the child would be the first and paramount consideration in all matters relating to the guardianship, adoption, custody, care or upbringing of a child. It further proposed that the constitutional amendment would recognise and acknowledge the ‘natural and imprescriptible rights of all children’ and mandate the state, ‘as far as practicable’, to protect and vindicate those rights.92 It remains to be seen whether or not the proposed amendment might assist in securing greater protection for separated children. The Committee’s report93 does not make any reference to separated children or to immigrant children more generally. It is likely that the balancing process that has been evident to date in disputes relating to migrant children will continue to inform the interpretation of the constitutional amendment, if enacted. In proposing a revised wording for the constitutional amendment, the Minister of State with responsibility for Children specifically sought the advice of the office of the Attorney General as to the amendment’s possible impact on immigration law and policy.94 For separated children seeking protection, the proposed amendment’s affirmation of the natural and imprescriptible rights of all children, together with the commitment to secure the best interests and welfare of the child as the ‘first and paramount consideration’ in matters relating to care, custody and upbringing’, 95 is to be welcomed. The limitations of ‘practicability’ proposed, however, are likely to allow for the state’s concerns with immigration control to continue to play a role in determining the scope of the state’s obligations of protection towards children. The proposed constitutional amendment refers to the state’s duty to cherish ‘all children of the State equally’, drawing on and adapting the evocative language of the 1916 Proclamation of the Irish Republic, which refers to ‘all children of the nation’.96 To date, discussions relating to children’s right to equality before the law and equal protection of the law have specifically highlighted continuing inequalities in the treatment of the children of unmarried parents, as compared to those of married parents. The proposed wording, by referring to children ‘of the State’, while purporting to reinforce the equality protections of article 40.1 of the Constitution, leaves open the possibility of a limited understanding of the state’s obliga-

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tion towards non-citizen children, including separated children. Concerns have been raised in the past as to the precise meaning of references to ‘citizens’ in the fundamental rights chapter of the Constitution and the lack of clarity relating to the rights afforded to non-citizens.97 For the moment, it remains unclear as to whether the proposed constitutional amendment will remedy or add to that confusion.

5. Age assessment: an ‘inexact science’

97 See, S. Mullally, ‘Citizenship and family life in Ireland: asking the question “Who belongs”?’ (2005) 25 Legal Studies 578-600. 98 See, Bhabha, above n. 7, 427.


Shortcomings in the identification and age assessment procedures used for separated children persist in Ireland, as elsewhere, despite concerns being expressed at the risks to which separated children might be exposed as a result of such failings. Concern has been expressed that errors at port of entry and the absence of a clear policy framework on age assessment may lead to minors being returned to port of embarkation. As is well known, the absence of effective identification procedures also heightens the potential for trafficking and limits the possibility of effective monitoring and protection. If a minor is incorrectly assessed as over eighteen, he or she may be placed in adult accommodation and without the protections and safeguards required. Age assessment also serves a screening and protection purpose, by seeking to ensure that an adult is not accommodated alongside minors. In Moke v. the Refugee Applications Commissioner, Finlay Geoghan J noted the importance of securing an immediate decision on age assessment, given the protection needs of children and the attendant risks faced. Commenting on the need for reform in age assessment procedures followed in the UK, the Children’s Commissioner recently noted that, ‘a careful and fair process producing the most reliable age assessments possible . . . should serve both the protective and screening functions’. The consequences of an incorrect age assessment can be very grave. As Bhabha notes, without consistent and reliable procedures for age assessment, child specific protections will not reach their intended recipients.98 These dangers were highlighted by the Council of Europe Commissioner, Thomas Hammarberg, and have repeatedly been raised by UNHCR and the Ombudsman for Children, amongst others. In Ireland, the absence of standardized procedures for age assessment has resulted in a diverse range of practices being followed by bodies such as the Garda (Police Service) National Immigration Bureau, the HSE and the Office of the Refugee Applications Commissioner (ORAC). In a response to a query raised by


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the UN Human Rights Committee, the Irish Government described the age assessment process followed by ORAC as follows:99 Where a person claims to be an unaccompanied minor but appears to be over the age of 18 years, a determination is made by at least one (and in many cases two) senior and experienced ORAC staff members, following an interview with the person (with interpretation if required). The objective of the interview is to seek to establish the age of the person concerned by exploring a range of issues with him or her such as his or her early childhood, education and the ages of other family members.

99 Supplementary additional information by the Government of Ireland concerning the List of Issues (CCPR/C/IRL/Q/3) taken up in connection with the consideration of the Third Periodic Report of Ireland under the International Covenant on Civil and Political Rights (CCPR/C/IRL/3). 100 Above n. 15, 23 101 Immigration Act 2003, s. 5(2)(b) and s. 5(2)(c). The Irish Human Rights Commission has expressed concern at the risks posed to minor asylum seekers arising from such legislative provisions. See, Irish Human Rights Commission, ‘Submission to the UN CERD Committee on Ireland’s Combined Third and Fourth Periodic Reports’, Nov. 2010, para. 73, available at: . 102 UNHCR, ‘Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’, UN doc. HCR/GIP/09/08, 22 Dec. 2009, para.75


Initial decisions on age are often made by immigration officers at ports of entry. It is here that the possibility of error is perhaps greatest, and the consequences of errors most grave. At present, there is a lack of clarity on the procedures followed by immigration officers in age assessment decisions. A recent report from the European Migration Network notes that age assessment interviews may be conducted by an immigration officer with an interpreter present or available by telephone. Basic questions are asked on topics such as school, the reason for travel, age of siblings, etc., and attention is given to the relative maturity of the interviewee.100 Decisions made by an immigration officer are open to reassessment at a later stage. Despite the grave consequences of errors in such decisions, there is as yet no legislative or policy framework setting out the procedures to be followed for an appeal or reassessment. Currently, where an immigration officer has reasonable grounds for believing that the person is not under the age of 18, she or he shall be treated as if they have reached the age of 18 for the purposes of arrest and detention decisions.101 There is no provision for the benefit of doubt being given and no guidance on what might constitute ‘reasonable grounds’ for such a belief. UNHCR Guidelines on Child Asylum Claims note that in cases of uncertainty in age assessment the margin of appreciation allowed should ensure that the individual is treated as a child.102 As yet, in Ireland, there is little to suggest that uncertainty in such assessments is resolved to the

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103 104 105

Barnardos, above n. 74, 4. G. Shannon, Child Law (Round Hall, 2nd ed., 2009), 897-975. See, UNHCR, above n. 102, para. 75; Irish Human Rights Commission, ‘Submission to the UN Human Rights Committee on the Examination of Ireland’s Third Periodic Report on the ICCPR’, Mar. 2008, 63. 106 See, H. Crawley, ‘When is a child not a child: Asylum, age disputes and the process of age assessment’, Immigration Law Practitioners’ Association, May 2007, 187-202. 107 Separated Children in Europe Programme, above n. 42, 25. 108 See, Royal College of Paediatrics and Child Health, ‘X-Rays and Asylum Seeking Children: Policy Statement’ (19 Nov. 2007), available at: . 109 ‘Report of the Special Rapporteur on the human rights of migrants, Addendum, Mission to the United Kingdom of Great Britain and Northern Ireland (22-26 June 2009)’, UN doc. A/HRC/14/30/ Add.3, para. 56.


benefit of the individual applicant. Inconsistencies and uncertainties relating to age assessment procedures remained in the 2010 Bill, with the possibility that, in some instances, age assessment would be carried out by a single immigration officer or member of the Garda Siochána.103 As the Special Rapporteur on Child Protection has noted, this leaves open the possibility that the default categorisation invoked will be that of an adult.104 The UNHCR has further recommended that separated children should not be subject to detailed interviews at the point of entry, and both the UNHCR and the Irish Human Rights Commission have highlighted the need for child and gender sensitivity in assessment processes.105 The Irish Refugee Council has proposed the establishment of age assessment panels, drawing on a broad range of child centred expertise, following good practice guidelines proposed by the Immigration Law Practitioners’ Association106 and by the Separated Children in Europe Programme, which call for ‘independent professionals with appropriate expertise’ to conduct age assessments, and to include assessment of physical, developmental, psychological and cultural factors.107 The process of age assessment, and disputes arising, can be traumatic for a child. Over-reliance on physical appearance as a proxy for chronological age assessment, and cultural barriers to understanding the diverse roles and responsibilities that may be undertaken by a child in many parts of the world, often complicate the process. The UK Royal College of Paediatrics and Child Health has highlighted the extreme difficulties faced in seeking to arrive at an accurate age assessment.108 As they note, it is an ‘inexact science’ and the margin of error can sometimes be as much as five years. The UN Special Rapporteur on Migrants has recently highlighted again the failure to extend the benefit of the doubt in age-disputed cases, and strongly criticised the excessive reliance on subjective criteria in age assessment procedures.109 As he noted, the consequences of errors being made can lead to minors being treated as adults throughout the asylum


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110 A, R (on the application of) v. London Borough of Croydon (Rev 1) [2010] 1 All ER 469, [2009] UKSC 8. See, United Kingdom Border Agency, ‘Disputed Age Cases, Asylum Policy Instructions’ (Home Office, 2009), available at: , accessed on 14 Apr. 2011. 111 See, A v. London Borough of Croyden and SSHD and WK v. SSHD and Kent County Council [2009] EWHC 939 (Admin), per Collins J, para. 7. 112 A, R (on the application of) v. London Borough of Lambeth [2008] EWCA Civ 1445 (18 Dec. 2008); [2009] Fam Law 290, para. 81. 113 [2003] EWHC 1689 (Admin), [2003] 4 All ER 280. 114 Above n.110, per Baroness Hale, para. 27.


process and being detained on that basis, without the protections required for a separated child. Age-assessment procedures for separated children have been the subject of legal challenge, both in Ireland and elsewhere. The question as to the precise role of the courts in age disputed cases and the scope of the remedy of judicial review in such cases was recently considered by the UK Supreme Court. In the case of A, R (on the application of) v. London Borough of Croydon (Rev 1)110 questions arose as to what role the courts should have where conflicting evidence as to the age of an asylum seeker had been given by a pediatrician and a social worker, and the local authority had decided to rely on the findings of the latter in arriving at its determination of age. Refusals by local authorities to rely on the evidence submitted by pediatricians in age disputed cases involving asylum seekers have led to several legal challenges, highlighting the significance and potential risks attaching to the outcomes of such disputes.111 Earlier, Ward LJ in the Court of Appeal, had noted that age determinations often involved very difficult questions of fact, which required a measure of professional knowledge or experience on the part of the decision maker.112 The Court of Appeal had found that this question of fact was appropriately determined by the local authority, in compliance with the principles laid down by Stanley LJ in R (B) v. Merton London Borough Council.113 The Supreme Court, however, found that despite the difficulty in resolving a disputed question of fact, the questions posed before the court were not unlike other questions of fact that frequently came before the court. The question was one to which there was a right or wrong answer, and differed from discretionary judgments as to whether or not a child was ‘in need’.114 Noting the difficulties that might arise with increased judicialisation of the process, Baroness Hale pointed out that the better the quality of the initial decision-making process, the less likely it was that age disputes would ultimately fall for determination by the courts. In Ireland, the courts have followed the tests laid down in Merton and have challenged the limited procedural guarantees available in agedisputes, securing some, albeit limited, reform. In Moke v. Refugee Applications

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654 Commissioner,115

115 116 117 118

[2005] IEHC 317. Ibid., per Finlay Geoghan J. 2006 IEHC 28 Above n. 21


Finlay Geoghan J in the High Court, drawing on Merton and principles of constitutional justice and fair procedures, set out minimum procedural requirements to be followed in initial age assessment decisions. These included requirements that the interviewee be clearly informed, in simple terms, of the procedures to be followed and the consequences of any decisions taken. The reasons for decisions taken, the Court said, must also be explained, but need not be ‘long and elaborate’. Clear and simple information as to the procedures to be followed for a reassessment must also be given. Age assessment, the Court acknowledged, was an ‘inexact science’, and the difficulties faced are even greater when the assessment is of a person ‘who is from a different cultural, racial and ethnic background and may have suffered traumatic events in his or her life’.116 Against this background, the possibility of reassessment was an important balance to the informal nature of the initial assessment and the admitted inexact science of age assessment. As Finlay Geoghan J also pointed out, however, the possibility of reassessment is of no benefit to the applicant unless its existence is effectively communicated. The onus to ensure that such a possibility existed, she said, lay on the respondents - in this case, the Office of the Refugee Applications Commissioner. As to who should make a determination of age, the High Court concluded that the power to carry out age assessments was a necessary or incidental power to ORAC’s duty to inform the Health Service Executive of the arrival of a separated child. A similar conclusion could be arrived at in relation to the powers and duties of immigration officers. The possibility of a medically backed age assessment process was noted by the Court, though it was pointed out that difficulties had been encountered in securing the participation and availability of medical practitioners and many ethical issues remained unresolved in relation to such processes. The consequences of an incorrect age assessment for credibility determinations within the asylum process have also attracted the attention of the courts. In Odunbaku (a minor) v. Refugee Applications Commissioner & Ors,117 the High Court noted that an incorrect age assessment may have a material effect on how credibility is assessed in the asylum process and could, therefore, invalidate decisions taken. Any such conclusion, the Court found, would depend on the facts of the particular case and the scope of the alleged error in age assessment. The recent Communication from the Commission on an Action Plan for Unaccompanied Minors,118 highlights concerns relating to the reliability and proportionality of age assessment procedures across member states. Importantly, the Communication


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emphasises the need for a guardian to be present at all stages of the process and for children to be treated as children, until the contrary is proven.119 States remain reluctant, however, to extend this benefit of the doubt and, with it, to expand the scope of protection provided to separated children. This reluctance highlights the broader challenges faced in piercing the veil of state sovereignty when the rights of migrant children are at stake, even where the risks faced are great.

6. Concluding remarks

119 120

Ibid., 11. This term is borrowed from Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton University Press, 2008), 222.


The continuing political focus on separated children as migrants or refugees first, rather than as children, denies them the support, care and protection necessary to ensure effective vindication of their rights. Separated children are amongst the most vulnerable category of migrants and of children. Despite this acknowledged vulnerability, however, ‘border norms’,120 with all their exclusionary and alienating potential, continue to be applied by states. Tentative proposals for reform are currently pending at EU level but, as yet, the practices and policies at member state level continue to fall short of the standards required by the CRC and by UNHCR Guidelines. In Ireland, the legacy of past failings in child protection has brought an added urgency to debates on reform. Yet for separated children, the steps required to ensure adequate protection have not yet been taken. Throughout the Implementation Plan, there is repeated reference to the importance of ensuring that children’s voices are heard and that the lessons of past failings are brought to bear on child protection laws and policies. As yet, there is only limited evidence, however, that these aspirations will be realized for separated children in Ireland. As the numbers of people coming to Ireland to seek asylum continues to drop, asylum is no longer a pressing political concern. Separated children are less visible now, strangers to the state and vulnerable to the pull of populist political demands to curb further immigration and supports to non-citizens. The state can no longer argue, however, that the arrivals of refugees or others seeking protection is a new phenomenon, or that the steps required to remedy a legacy of child abuse within the state were not brought to its attention. For separated children, significant protection gaps remain. It is likely that continuing scrutiny and questioning by children’s rights advocates will be necessary for some time, if the limits of border norms are to be overcome.