Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 10:

In page 11, between lines 30 and 31, to insert the following:

“Specific provisions relating to children

3. (1) Subject to subsections (2) and (3), in the application of this Act (or any provision thereof) in relation to a child under the age of 18 years, the best interests of the child shall be a primary consideration.(2) Nothing in this Act shall affect any provisions that are more conducive to the realisation of the rights of the child and that may be contained in other enactments or in international law in force in respect of the State and, in particular, in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the United Nations Convention on the Rights of the Child.

(3) In the application of this Act (or any provision thereof) in relation to a child under the age of 18 years, the State and any person (including the Minister) authorised to perform a function under this Act shall perform its functions in a manner compatible with the State’s obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms and the United Nations Convention on the Rights of the Child.”.

I will speak on the group of amendments because I tabled Nos. 10, 49 and 215. I welcome the Minister of State and thank his officials for their engagement with me on some of the issues I have with this Bill.

Amendment No. 10 is concerned with the best interests of the child. Article 3.1 of the UN Convention on the Rights of the Child outlines that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." The purpose of this amendment is that the best interests of the child should be a primary consideration rather than the primary or paramount consideration. That is absolutely critical. At present, the Bill only refers to the best interests of the child in a limited way, namely, where international protection has been granted upon recognition of the 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 UNHCR working group recommendation clearly states "The International Protection Bill 2015 should reflect the general principle contained in the Convention on the Rights of the Child that the best interests of the child be a primary consideration in all actions concerning children." My understanding is that the report was circulated to all Government Departments and the Attorney General. I am surprised, therefore, that its recommendations were not incorporated into the Bill. The best interest of the child is defined in detail in the Children and Family Relationships Act 2015. The courts, in determining the best interests of the child for the purpose of the Act, must consider the physical, emotional, psychological, education and social needs of the child, including his or her need for stability having regard to age and stage of development. Furthermore, since the list of considerations is not exhaustive, the court can look beyond them when making a determination concerning the child.

I do not advocate that a specific definition of what constitutes the best interest of the child be devised. I am of the view that the omission of an explicit definition by those who drafted the UN Conventions on the Rights of the Child was intended to allow for the appropriate balance of considerations within what should be well-defined procedural frameworks. I recall the excellent unpacking of this concept by Emily Logan, then Ombudsman for Children, at the 2008 Janusz Korczak lecture in Stockholm, where she said:

The best interests principle comprises a procedural rule, it governs how we go about decision-making with regard to children. It is a legally binding rule that States must follow. The rule does not state that children’s interests always come first. The aim of the rule is not to encroach on the rights of others, but to facilitate an examination of the interests of a vulnerable group. A child’s best interests should be considered in relation to all actions concerning them, that is when the action directly affects them or regards or touches them.

I understand there are concerns that amendment No. 10 - which suggests that the best interests of the child be a primary consideration - could conflict with some of Ireland's obligations under the European Convention of Human Rights. I am confused and concerned by this reasoning but for this reason, I redrafted my proposed amendment. The best interest of the child is not defined and is certainly not a jus cogensprinciple of international law, from which no derogation is allowed - it is a right subject to consideration and balancing where it competes with other rights. The European Court of Human Rights has asserted the importance of the child's best interests and has also stressed the importance of reuniting the child with his or her family unless it is not in the child's best interest. While I do not necessarily agree with the Department's view on this point, in an effort to assuage its concerns, I proposed that the best interest principle be subject to the obligation to comply with international law and conventions, in particular with the European Convention on Human Rights and the UN Convention on the Rights of the Child. It should also be noted that the best interests of the child is included in the recast asylum procedures directive.This directive was drafted by EU lawyers with full regard to the European Convention on Human Rights and other legal agreements. Any conflicts or difficulties are always identified early on. The directive provides for the best interests in several places. However, the most relevant for the purpose of the International Protection Bill is Article 23, which cites:

The best interests of the child shall be of primary consideration for member states when implementing the provisions of this directive that involves minors. Member states shall ensure a standard of living adequate for the minor's physical, mental, spiritual, moral and social development.

In practice, it is all about interpretation in the Irish system. In the absence of either a domestic or internationally agreed definition, I have heard it argued that the phrase "the best interests of the child" has no clear meaning in law. However, the Legislature can choose to deal with this in a variety of ways. For example, in the Children and Family Relationships Act, the Legislature chose to define what the best interests are, as I cited earlier. There is a test that the courts must apply when making a decision "in the best interests of children". According to the special rapporteur on child protection, the Children and Family Relationships Act includes one of the best definitions in the world.

Only last week at the recent Civil Service excellence and innovation awards the Department of Justice and Equality won an award for its work in this area on the best interests of the child. On the other hand, if we look at the Child and Family Agency Act, the Legislature chose not to define "the best interests of the child" and to leave it to the agency and the courts to interpret. In the current Bill, the definition could be left to the courts to interpret or the Legislature could define it now. Another option would be for the Bill to include a clause that the Minister could define the best interests by ministerial order. Let us remember that the best interests of the child is in the Constitution in Article 42.A. This is a part of the trend in legislating for children's rights. If we can implement the best interests of the child in child care and family law settings, why can we not do it for a small group of children in the international protection process? Why are asylum seeking children always left out in the cold?

The second amendment I tabled is No. 49, which relates to Article 37 of the UN Convention on the Rights of the Child, which is very clear on child detention. It states, "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." As I said on Second Stage, I have a grave concern around the reading of section 20(1)(c) when read in conjunction with section 20(7). This is a breach of the UN Committee on the Rights of the Child 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 be considered a child.

On the presumption of age, the problem is that asylum seekers often do not have access to proof of age, and sometimes may not be certain as to their age. Many children around the world are not formally registered at birth, although the situation is improving. I have included, however, an amendment that I feel would raise the low threshold that is in the Bill, that would require the view of an immigration officer or a garda to be supported by a second officer or garda and a requirement to ensure an age assessment is undertaken at the earliest opportunity. In putting forward the amendments, I very much thank my colleagues in my group, Senators Mac Conghail, Power, O'Donnell, Mary Ann O'Brien and Zappone for their support for the amendments.

I understand and appreciate that some NGOs have advocated not to support the Bill. I do not wish to open up a general discussion on the matter, but I have put forward the amendments to engage robustly and substantively with the Bill. I believe that change is incremental and this Bill represents the first opportunity in almost ten years to raise the baseline. Each time we raise that baseline we can hopefully raise it further. It is my role and responsibility as a legislator to engage actively and fully in the legislative process and to work to secure the necessary changes in the Bill. Ultimately, the question for me is whether children's rights have been strengthened and whether in my consideration of the Bill the situation for asylum seekers on the whole has been improved.