Human Rights in Ireland welcomes this guest post from Samantha Arnold. Samantha is the Children’s and Young Persons’ Office at the Irish Refugee Council.  She is the manager of the Independent Advocacy Pilot, a pilot that provides one-to-one support for separated children seeking asylum.  Click here to get involved or to attend an upcoming charity gig at the Village on 6th April.

Yesterday, 3 April 2013, Barnardos and the HSE launched research undertaken by Dr Muireann Ní Raghallaigh which looked to review and reflect on separated children in foster care and supported lodgings.  It is a welcomed report as it is the first of its kind reviewing a system that has been in place for just over 2 years.

Until the end of 2010, Separated children, or children who are outside of their country of origin and separated from their parents or guardians, were housed in large hostels.  The hostels were largely unsupervised and often children went missing, still to be untraced. Presently, however, the HSE works to ensure that separated children are placed in a foster family or supported lodgings arrangement as soon as possible.  This policy, titled ‘Equity of Care’, was established in response to widespread outcry over the way children were accommodated in the hostels prior to their closure in December 2010.  Under this new regime, the HSE works to provide separated children with care on a par with the wider care population made up of predominately Irish children.
In her report, ‘Foster Care and Supported Lodgings for Separated Asylum Seeking Young People in Ireland: The views of young people, carers and stakeholders’, Muireann captures the views of those on the ground with largely positive findings.  Muireann highlights (among other things): positive relationship building between carer and child; young people being facilitated to settle within a home setting; and feelings of security among young people.  The research highlights the improvements the HSE made in a short space of time for separated children living in Ireland.  I will not go into the detailed findings of the report as the report is not the focus of this blog.  I am writing about one area that still needs attention, aftercare.  The issue of aftercare did arise as an area of concern in respect of HSE practice in the report and at the launch itself.  Practice in this area still reflects the need to see these children as children first – rather than asylum seekers first.

Fergus Finlay, Chief Executive of Barnardos closed the launch by stating that although great strides have been made in relation to equitable care for separated children, there was ‘more to be done’.  In the area of aftercare, this is certainly the case.  It has long been argued that the application of Section 45 of the Child Care Act 1991 (as amended) in the case of separated children is still inequitable.  And this is why:

Section 8.5(a) of the Refugee Act 1996 sets out the role of the Health Service Executive in respect of the ‘unaccompanied minor’ (separated child).  S. 8.5(a) states that:

Where it appears to an immigration officer that a child under the age of 18 years who has arrived at the frontiers of the State is not in the custody of any person, the immigration officer shall, as soon as practicable, so inform the health board in whose functional area the place of arrival is situate and thereupon the provisions of the Child Care Act, 1991 , shall apply in relation to the child.

In simple terms, this means that the HSE has the responsibility of applying the relevant Sections of the Child Care Act 1991 (as amended) to the child in question. Their obligation to provide this function comes from Section 3.1 of the Child Care Act 1991:

It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

The HSE must provide care for a separated child in some form as it is evident that an unaccompanied minor does not have a home or legal guardian to look after them in Ireland.

Once the child is referred to the HSE, the Refugee Act 1996 merely states that the Child Care Act 1991 must be invoked.  It does not suggest, or require, the HSE to use any particular Section of the Act in the case of separated children.  This may be because the drafters of this particular piece of legislation: (A) thought the HSE would be the most appropriate and knowledgeable governmental department to decide which Section of the Act to apply in the case of the individual child (based on an assessment by the social workers themselves – the Irish experts in respect of Child Care) or (B) simply did not consider the complexities of the care needs of this demographic.

It is in this same vein, if we apply the former reasoning (reasoning A), that we can suggest that the drafters of the Refugee Act 1996 saw the application of the Child Care Act 1991 as applying in its entirety.  That is to say, any section of the Act through to Section 45 which relates to Aftercare could arguably be invoked. Although Section 45 does not state that all children who are in care ‘must’ be able to avail of aftercare and what that must look like, it does provide guidance for the Health Service Executive:

(a) Where a child leaves the care of a health board, the board may, in accordance with subsection (2), assist him for so long as the board is satisfied as to his need for assistance and, subject to paragraph (b), he has not attained the age of 21 years.

(b) Where a health board is assisting a person in accordance with subsection (2) (b), and that person attains the age of 21 years, the board may continue to provide such assistance until the completion of the course of education in which he is engaged.

It is of the opinion of the author that it is rarely the case that a separated child is not in need of aftercare.  My opinion is based on what is known about separated children in Europe.  They are separated from their families, their country, their homes, their friends, their social networks and their schools.  Moreover, a recent UK-based report found that separated children were 5 times more likely to suffer from depression, anxiety and post traumatic stress than accompanied children.

My opinion aside, the HSE repeatedly, and yesterday was no exception, puts forward the argument that it is ‘government policy’ that a separated child must be placed in adult asylum accommodation, or Direct Provision, upon reaching the age of 18.  This is not to say that individual social workers do not fight the case of a few fortunate young people to remain in their foster placements beyond their 18th birthday.  This is especially the case where the young person is in the middle of the academic year.  However, this is not the norm, nor does it appear to be HSE ‘policy’.

However, there is only one document addressing this theme that is publically available.  That is a joint policy between the HSE and the Reception and Integration Agency (which we have long established operates more like a business rather than a facility built to support a group of very vulnerable people) regarding the fate of ‘aged-out’ minors.  It states that:

When an unaccompanied minor in the care of the HSE reaches 18 years of age (“aged out minor”), he or she may be referred by the HSE to the RIA for transfer to adult accommodation and service provision. In circumstances where the HSE deems such a person to be particularly vulnerable, the period in HSE care can be extended beyond 18 years of age at the HSE’s discretion.

The reference to separated children (unaccompanied minors) in the Refugee Act 1996  under Section 8.5(a), Sections 3 and 45 of the Child Care Act 1991 interpreted in good faith and even the above policy statement implies that it is ultimately up the HSE to determine whether or not the individual unaccompanied minor should be able to avail of aftercare.  However, this is not the opinion of the HSE.  It is of the HSE’s view that a ‘government policy’ requires that the child go to Direct Provision upon turning 18.  This interpretation implies that there is a cessation clause built into the Refugee Act 1996 that would amend Section 8.5(a) to state that this provision is only applicable until the child reaches the age of majority.  This would mean that the Child Care Act 1991 only applies until the applicant reaches the age of 18.  This is simply not the case.  Unfortunately, however, this question of law (is there a temporal limit to S. 8.5(a) of the Refugee Act 1996?) has not been interpreted by a judge to-date.

To illustrate my point:

Example 1: Interpreted as argued within the confines of the legislation.

 

  1. The Refugee Act 1996 allocates responsibility for unaccompanied minor’s care to HSE with no provisos.

  2. Child Care Act 1991 is invoked in its entirety.

  3. Decision to provide after care in the context of Section 45 rests with the HSE considering the individual needs of the child.

 

Example 2: Interpreted with ‘government policy’ narrowing the protection and care legislation.           

  1. The Refugee Act 1996 allocates responsibility for unaccompanied minor’s care to HSE.

  2. Child Care Act 1991 is invoked.

  3. The Refugee Act 1996 ceases to apply to the unaccompanied young person when they reach 18.  Therefore the Child Care Act 1991 ceases to be applicable.  It is therefore the HSE’s duty to transfer the 18 year old to the Reception and Integration Agency.

My question is thus: Does the HSE have a responsibility, or duty, to advocate for the child’s best interest, or welfare, and to ensure that aftercare is provided to all separated children knowing that if aftercare is not provided (in terms of the provision of secure foster family or supported lodgings accommodation), that the young person will be transferred to Direct Provision?  This transfer will most likely mean: dispersal from their current location, disrupted education, being torn from social and support networks and a general unravelling (or indeed re-unravelling) of the child’s mental health.

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