Teresa Blake BL 27 th March 2012

 Immigrant children - responding appropriately  Child Protection and Welfare law  Specific issues in representation  Issues when children are in care /aftercare  Challenges  Some Conclusions

 Immigrant Children  -asylum seeking children  Part of family group- humanitarian leave to remain  Born in Ireland not Irish citizen  Arrive in Ireland –with third party  Family re-unification  Specific challenges –when child protection issues arise

 UN Convention on the Rights of the Child  European Convention on Human Rights  Constitution of Ireland 1937  Child Care Act 1991  Children Act 2001  Statutory Instruments.  Caselaw.

 Article 42.5 Constitution of Ireland  In exceptional cases, where parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavor to supply the place of parents, but always with due regard for the natural and imprescriptible rights of the child.

 Sec 3 -general obligation on health service executive  Rights and duties of parents  ‘welfare of the child as the first and paramount consideration’  Evolving capacity of the child  ‘own family is best ‘

 Test ‘Why the welfare of the child cannot be secured to it, in its own family unit and by its parents’  Welfare of the child as the first and paramount consideration  Capacity of the child  Representation full party  Guardian ad litem.

 Section 3(3) Child Care Act-  Child care and family support services  ‘positive obligation to support family life’  Interference proper and proportionate Section 4 Voluntary Care

 Section 12 Action by an Gardai  enter if needs be by force  Deliver into the custody of the health board  Application to court within 72 hours  Emphasis is protection  MQ Decision  National Guidance -Children First

 Sec 13 threshold criteria – court is of the opinion that there is reasonable cause to believe that  (a) there is an immediate and serious risk to the health or welfare of a child which necessitates him being placed in the care of a health board, or (b) there is likely to be such a risk if the child is removed from the place where he is for the time being.

 District Court Rules -Sworn statement  Executing warrant /Ex-parte urgent appl  Any DJ otherwise than in public  Appeal does not stay the order  Identification is not necessary  Directions –address, treatment, access  Sec14 Notification. Sec15Accommodation

 Parents not represented at ECO.  Difficulty getting legal aid.  Interpretation facilities.  Cultural issues.  Placement issues for children –food; faith, contact.

 Threshold Criteria DJ is satisified that  (a) an application for a care order has been or is about to be made  (b) there is reasonable cause to believe that any of the circumstances of 18(1) exists or has existed….child be placed and maintained in the care of the HSE pending the determination of the care order

 Child placed/maintained in the care of the health board.  Valid for 28 days or on consent longer  On notice to parents  Existing court orders/directions continue to operate  Can have several ICO’s before final determination.

 On the application of a health board, …the court is satisfied that (a)child has been or is being assaulted ill-treated, neglected or sexually abused;  (b)Child’s health development or welfare has been or is being avoidably impaired or neglected;  (c) the child’s health development or welfare is likely to be avoidably impaired or neglected.  And the child requires care or protection he is unlikely to receive unless an order is made.

 Commits child to care of HB to 18 or less  HB control over child as if a parent  Do what is reasonable  Consent to medical treatment, and passport  Decide on type of care  Section 47 Aplications  Caselaw

 Rights of children. Placement sec 36; Access sec 37.  Section 47 Question affecting the welfare of a child.  Duties of HSE  Passport,  Consent to medical treatment  Sec 23 Non Fatal Offences Against Person Act.  Education Welfare Act 1998 School attendance.

 Exercise of HSE Discretion.  Care planning  Statutory review  Court review.

 Reasonable grounds for believing that  (a), (b), (c) …and it is desirable that a child be visited periodically  Give necessary advice to parents  Right to complain  Duration 1yr  Renewable.consequences of obstructing

 Child protection involving Immigrant children evident in cases coming before the courts.  Challenges are significant for family and child;  Child care system and court process.  Development of attuned family support systems for the children and family is a priority.