International Protection Bill 2015: Second Stage, 2 December 2015

Senator Jillian van Turnhout: It is almost ten years since the last substantive legislation was introduced in this area. I am cognisant of what we are trying to do today. It is complex. It has been difficult for Members and the civil society organisations specialising in the areas of refugees, asylum and children’s rights issues – from whom many Members, including myself, seek guidance and advice in advance of parliamentary debates – to analyse the intricacies of this Bill in the time that has been given to us. On the other hand, I appreciate the effort on the part of the Government to bring this important Bill to fruition before the Christmas recess.

I intend to focus my intervention and my engagement on this Bill to issues relevant to children and children’s rights, because I believe this is the area where I can add my expertise. In this regard, I thank the Children’s Rights Alliance for its support in helping me to understand the complexities of the Bill.

Article 22 of the UN Convention on the Rights of the Child obliges Ireland to ensure that children seeking or holding refugee status, whether unaccompanied or not, should receive appropriate protection and assistance in the enjoyment of the rights of the convention and other applicable human rights treaties. The State is further obliged to assist a child in the tracing of his or her family and in obtaining information relevant for reunification. In circumstances where the child’s family cannot be found, the child is entitled to the same protections as other children deprived of their families under the convention.

In 2006, the UN Committee on the Rights of the Child called on the State to “take necessary measures to bring [its immigration] policy, procedures and practice into line with its international obligations, as well as principles outlined in other documents, including the Statement of Good Practices produced by the United Nations High Commissioner for Refugees and Save the Children”. As the Minister is well aware, Ireland will be examined before the UN Committee on the Rights of the Child in January 2016, in other words, in a few weeks’ time. It would be very disappointing if the provisions for children in this Bill were found by the committee to be wanting in respect of our convention obligations. My concern in this regard is further heightened by the fact that the key recommendations of the working group on direct provision in respect of children are not implemented in this Bill. It is disappointing that there have been no positive reforms for the 1,600 children currently in the direct provision system – they are the most vulnerable group of asylum seekers – despite a HIQA report in May 2015 identifying serious child welfare and protection concerns in a number of children and family services areas.

I realise it is outside the scope of this Bill, but the Minister knows of my view on the importance of having an independent complaints mechanism similar to that afforded to the Ombudsman for Children. I have raised the issue with the Minister for Children and Youth Affairs as well.

I am also concerned about payments, particularly payments to children. They have not changed in 15 years. At the least, the payments should be brought in line with the qualified child increase as referenced in the working group report. I imagine that is a decision for the Minister for Social Protection but perhaps the Minister for Justice and Equality could advise the Seanad on the matter.

I welcome the provision in the Bill for the new single application procedure to streamline and speed up the application process. It is long overdue. Even ten years ago people were talking about the establishment of an independent protection appeals tribunal and the inclusion of child-specific forms of persecution as grounds for protection. These are referenced in section 7(2).

One substantive area I have difficulty with relates to the notion of the best interests of children and how this is dealt with in the Bill. I thank the Minister and her officials for their engagement in the past 24 hours to try to see how we can strengthen the relevant provisions and work together. Let us consider the provisions relating to the best interests of the child in Irish legislation. It was the current Minister for Justice and Equality, Deputy Fitzgerald, who, during her previous role as Minister for Children and Youth Affairs at the time of the passage of the Child and Family Agency Bill as well as recently with the Children and Family Relationships Bill, put the key provisions relating to the best interests of the child into Irish law. I am keen to ensure we progress that legacy with this Bill.

Article 3 of the UN Convention on the Rights of the Child as it relates to the best interests of the child is clear. My difficulty is that the Bill only refers to the best interests of the child in a limited way, for example, in cases where international protection has been granted upon recognition of a child’s status in the application of a medical examination to determine the age of an unaccompanied minor or in certain aspects of the conduct of protection interviews for unaccompanied minors. The working group report recommendation stated that the International Protection Bill 2015 should reflect the general principle contained in the Convention on the Rights of the Child to the effect that the best interests of the child should be a primary consideration in all actions concerning children.

I submitted an amendment yesterday, but I have since redrafted it to ensure that in introducing the idea of the best interests of the child as the primary consideration, nothing in this legislation shall affect any provisions that are more conducive to the realisation of the rights of the child contained in other enactments or international law. For example, the European Court of Human Rights has asserted the importance of the child’s best interests. It also stressed the importance of reuniting the child with his or her family unless it is not in the child’s best interests. I have submitted an amendment to ensure that the best interest principle is subject to the obligations under the European Convention on Human Rights and the UN Convention on the Rights of the Child.

Another area I have concerns over relates to training for authorised officers on children’s rights. The working group report made clear that there should be a provision requiring decision-makers who take decisions in respect of children and those who interview children have received appropriate procedural and substantive training. This could be specific training on children’s rights and certified qualifications in interviewing children. Perhaps that is something the Minister could address. I have not tabled an amendment on the matter at this point but I will do so on Report Stage if I believe it is not being dealt with. Section 34(8) relates to how personal interviews by authorised officers may be dispensed with where the applicant is under the age of 18 years and he or she is of such an age and degree of maturity that an interview would not usefully advance the examination.   Will the Minister to look at the Children and Family Relationships Act which includes the provision for a court to appoint an expert to determine and convey a child’s view? I agree with the recommendation by the Children’s Rights Alliance that the Bill should include a provision that section 34(8)(b) can only be exercised upon the appointment of an expert on the views of children. Perhaps that is something we can look at.

Article 37 of the UN Convention on the Rights of the Child is very clear on the issue of child detention: “The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. It was of great concern to me when I read section 20(1)(c) in conjunction with section 20(7). The latter provides that a child under 18 years can be detained as an adult if there are reasonable grounds for believing the person is not under 18 years. I believe this is a breach of the UN Committee on the Rights of the Child’s general comment No. 6 which provides that in cases of uncertainty as to the individual’s age, the individual should be given the benefit of the doubt and should be considered a child. I realise that the Bill’s provision has been inserted to protect a Garda who, using reasonable presumption, makes such a decision. In response, I have submitted an amendment that I hope will provide protection for children’s rights and provide balance. I thank my group colleagues, Senators Fiach Mac Conghail, Marie-Louise O’Donnell, Averil Power, Katherine Zappone and Mary Ann O’Brien, who have supported the two amendments I have tabled for Committee Stage.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”