Alan Shatter (Dublin South, Fine Gael)
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I raised the plight of the child in question in a parliamentary question to the Minister for Justice, Equality and Law Reform on 10 December 2009.

On 16 August 2009, the Nigerian mother of this child was arrested in Dublin Airport for evading a deportation order. She was deported on 1 September. Her four-year-old son, who was born in the State, was temporarily placed in care on 16 August, and the HSE properly made an application to the children's court under the Child Care Act 1991 for directions on the child's welfare. The child was properly cared for, and prior to the airport incident, was never apart from his mother. The Children Court, required to make decisions protecting children's welfare, found he should not be deported.

Despite this, the Minister went ahead with the mother's deportation. Since August the child has been cared for in four different temporary fosterage arrangements with at least three different HSE social workers involved with the child. There is little doubt the mother was in the State illegally and had since 2005 evaded deportation. While this was unacceptable, it was not the child's fault and he should not be punished for it.

The Minister justified the unacceptable treatment of this child on the basis that he is not an Irish citizen and that a majority in 2004 voted for a constitutional change to ensure children born to foreign nationals residing for a short time in the State would not automatically acquire citizenship. I do not believe that those who voted in favour of constitutional change had anticipated that the State would kidnap a child from his mother in Dublin airport and simply deport the mother without regard to consequences for the child. Once the future care and welfare of this child became an issue that required a decision of the Children's Court, deportation of the mother should have been postponed to facilitate all issues relating to this child's welfare being given proper consideration.

In response to my Dáil question on 10 December last, the Minister stated:

An application has now been received from the court appointed guardian ad litem of the child in question requesting that the deportation order in respect of his mother be revoked to allow her to re-enter the State to be reunited with him. This application, made under section 3(11) of the Immigration Act 1999 as amended, is under consideration at present and a decision will issue shortly.

I am not aware of any decision yet having been made.

There is a total disconnect between the approach taken by the Department of Justice, Equality and Law and the Garda in the arrest and deportation of the mother and the retention of her child and the approach prescribed in the Children First: National Guidelines for the Protection and Welfare of Children, which emphasise that it is generally in the interest of a child's welfare that he or she be brought up by his or her parent or parents and when separated from them, that all necessary steps be taken to effect family reunification.

From a child welfare perspective, the disastrous events that occurred are indefensible but from a State cost perspective, thousands of euros of taxpayers money have now been spent by the HSE in maintaining a child in care who could still be residing in the State with his mother and by the Department of Justice, Equality and Law Reform and the HSE in legal representation before the Children's Court.

The continuing situation can only do profound damage to this young boy's immediate and long-term welfare. The longer it goes on the greater the damage to the child's capacity as an adult to make and maintain bonds or attachments. This situation can properly be described as child abuse or as inhuman and torturous treatment by the State of an innocent child. It is an exact contradiction of what the Minister, Dermot Ahern, stated on the steps of Government Buildings on the day of publication of the Murphy commission report. On that occasion, he was critical of the church's cover up of clerical abuse and of its motivation to avoid scandal stating that "the welfare of children counted for nothing". His criticism was hollow as clearly in the Minister's view the welfare of this child also counts for nothing and is of no value and no concern. The Murphy commission report also addressed what the Minister described, on its launch, as "the failings by agencies of the State". This case classically and starkly illustrates yet another failure by State agencies to give priority to the welfare of a child.

This Minister, who is never slow to defend himself, has at no stage made any public response to questions raised by me in an article in The Irish Times on 22 December last and I can only regard this as an implicit acknowledgement by him that this mother and child should not be treated this way. I call on the Minister, in these exceptional circumstances, to allow the mother of this child return to the State to care for and bring up her son here, in the overwhelming interests of the child's welfare. The Child Care Act 1991 give priority to the protection of the welfare of children, as did the child protection guidelines of 1999 and as do the December 2009 newly-published guidelines. The Minister should prioritise the welfare of this child and bring this sorry and tragic episode to an end. He should allow the mother return to Ireland and the child to be reunited with his mother and removed from the care system. A child is currently in care who does not require the care of the State and is only getting such care because the State has deported the child's mother. It is an extraordinary and scandalous situation.

John Moloney (Laois-Offaly, Fianna Fail)
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By way of responding, the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, is keeping faith with the statement he made on the steps of Government Buildings that day and if the issue is one of reuniting the mother with the child, I may be able to explain that.

I preface my reply by reminding the House that the Minister dealt with this matter in some detail on 10 December 2009 when he responded to an oral parliamentary question from Deputy Shatter on the same matter. I am aware of the opinion piece Deputy Shatter wrote for The Irish Times in support of his case on the same subject. In that article, it would appear that Deputy Shatter largely ignored the facts of the case as they had been presented by the Minister in response to the earlier parliamentary question.

The case in question is that of a Nigerian woman who arrived in this State in August 2005 and claimed asylum at that time. Her son was born in this State just two days after her arrival here but, based on the provisions of the Irish Nationality and Citizenship Act 2004, he is not an Irish citizen. The woman, two days after the birth, included her son in her asylum application meaning that any decision taken in her case applied equally to him. Arising from the refusal of the asylum application, she was notified, by letter dated 25 October 2005, that the then Minister for Justice, Equality and Law Reform proposed to make deportation orders in respect of herself and her son and she was invited to submit written representations setting out reasons deportation orders should not be made. Representations were submitted on her behalf at that time.

Following the consideration of her case under the relevant statutory provisions, deportation orders were signed in respect of mother and son on 23 November 2005 and notified to them by registered letter dated 29 November 2005. They failed to present to the Garda National Immigration Bureau, GNIB, as required, and were therefore classified as persons evading deportation. They continued to evade their deportation for more than three and a half years until, on 16 August 2009, mother and son were apprehended by officers of the GNIB at Dublin Airport. Following questioning by the immigration officer and checks on the relevant Garda database, they were identified as persons who were evading deportation.

At this point, the mother was arrested and detained and she was conveyed to the Women's Prison, Dóchas centre. As this prison had limited facilities for children, and in accordance with well established procedures, the woman in question was given the option of putting her son voluntarily into the care of the Health Service Executive, HSE. She refused to do so and as a result the arresting garda was left with no option but to execute his powers under section 12 of the Child Care Act 1991 to secure appropriate care for the child.

In accordance with HSE procedures, that body sought and was granted an emergency care order on 17 August 2009, at which point the child was placed in the care of the HSE. An interim care order was subsequently granted on 24 August. 2009. The Deputy will appreciate that all aspects of the case relating to the child's care are the responsibility of the HSE, however, the Minister for Justice, Equality and Law Reform has no evidence to suggest that the welfare needs of this child have not been or are not being met.

Given that the woman in question and her son were the subject of valid deportation orders, arrangements were made to have them both repatriated to Nigeria by chartered flight on 1 September 2009. On this date an application was made by the HSE to have the interim care order lifted to allow the child to accompany his mother to Nigeria. The application was refused by the District Court and the child remained in the care of the HSE. As a result, the woman in question was repatriated without her son.

Alan Shatter (Dublin South, Fine Gael)
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That is what should not have happened, and the District Court reached that decision based on the child's welfare.

John Moloney (Laois-Offaly, Fianna Fail)
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I will put it this way, if the mother's intention was to be reunited with her son, she had every option to allow her son travel to Nigeria either ways.

Alan Shatter (Dublin South, Fine Gael)
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The court obviously agreed with her that it was not in the child's interests.

John Moloney (Laois-Offaly, Fianna Fail)
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I would have thought that the child's interests would have been with the natural mother in her home country, Nigeria.

Alan Shatter (Dublin South, Fine Gael)
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The court made that decision.

John Moloney (Laois-Offaly, Fianna Fail)
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Since her deportation on 1 September 2009, representatives of the bureau have made sustained efforts to communicate with the woman in question in order to facilitate the return of her son to Nigeria. However, she has refused to co-operate meaning that her son must remain in the care of the HSE until that position changes.

Alan Shatter (Dublin South, Fine Gael)
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The District Court will not allow the child go back to Nigeria.

John Moloney (Laois-Offaly, Fianna Fail)
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No.

Alan Shatter (Dublin South, Fine Gael)
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The District Court will not allow the child travel to Nigeria.

John Moloney (Laois-Offaly, Fianna Fail)
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In fact, I understand, during one telephone call with a Garda representative she indicated that she did not wish for her son to be reunited with her in Nigeria.

Alan Shatter (Dublin South, Fine Gael)
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The District Court judge does not either.

John Moloney (Laois-Offaly, Fianna Fail)
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I would have considered that the mother's wish would have been first for the maternal part of this response.

Alan Shatter (Dublin South, Fine Gael)
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The child is just a pawn in all of this.

John Moloney (Laois-Offaly, Fianna Fail)
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The court appointed guardian ad litem of the child in question has submitted an application to have the mother's deportation order revoked to allow her to re-enter the State to be reunited her son. I understand this application is under consideration by Department officials.

It must be emphasised that the woman in question could at any point bring closure to this situation by accepting the repatriation of her son. To date, she has refused to facilitate this in Nigeria. I find it difficult to understand the position she has adopted. It would have to be assumed that she is hoping that while the child remains in this State, her chances of returning to, and remaining in, this State are enhanced.

The fact remains that she arrived in this State as an asylum seeker and had all of her protection-related needs considered in detail at all stages of the statutory process. It is difficult to credit how a person whose case has benefited from such detailed consideration could now hold the State's immigration laws in such contempt and, as such, the Minister does not share Deputy Shatter's view that the solution to the problem is to have her returned to this State. To do so would only serve to encourage many others to flout the system in similar fashion.

Alan Shatter (Dublin South, Fine Gael)
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The Minister is pre-judging the consideration he alleges his officials are giving to this. The Minister's conclusion is that the child stays in care-----

John Moloney (Laois-Offaly, Fianna Fail)
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The Minister acknowledges that the priority should be for the child to be with his mother in her home country.

Alan Shatter (Dublin South, Fine Gael)
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-----indefinitely because-----

John Moloney (Laois-Offaly, Fianna Fail)
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We should not use the situation. The facts remain-----

Charlie O'Connor (Dublin South West, Fianna Fail)
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I thank the Minister of State.

Alan Shatter (Dublin South, Fine Gael)
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The Minister is using this child.

Charlie O'Connor (Dublin South West, Fianna Fail)
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I regret I must move on.