Irish and international media outlets have been reporting that, in the past three days, in two separate operations, gardai removed a young Roma girl and boy from their family homes (see here and here), placed them temporarily in the care of the State, and required them and their parents to submit to DNA testing to verify that parents and child were biologically related. As the Irish Traveller Movement have noted, it is disturbing that the details of what should be confidential child protection proceedings emerged into the public domain prematurely. Apparently, in both cases the children were fair-haired and blue-eyed, and their parents were not. Now that DNA testing has proved both of the Irish childrens’ lineage to the satisfaction of the state, and they have been returned to their parents, questions remain. These cases are all the more poignant when we recall that forced removal of children has been a historical tactic of persecution deployed against both Roma and Irish Travellers.
How did gardai use their emergency power under s. 12 of the Child Care Act 1991 in these cases? (Hear the Special Rapporteur for Child Protection discuss the legal issues here.) S. 12 allows Gardai to summarily remove a child from the family home into the care of the HSE. The garda must have reasonable grounds for believing that there is an immediate and serious risk to the health or welfare of a child. This is not a new statutory provision. It is not clear what immediate and serious risk was present in that case, or what reasonable grounds the gardai were acting upon. Moreover, s. 12 is only to be used where it is not possible to wait for an application to the District Court for an emergency care order. It is not clear why this case merited the exercise of this -clearly exceptional – police power rather than one of the other, more measured pathways to care available under the legislation. Contrast this case with another reported today, in which s. 12 was clearly invoked as a last resort in the case of an 8 year old girl, known to the HSE, who had been living in direct provision with her ill mother since birth.
It is difficult to judge, from this distance, the reasonableness of the garda’s belief that the Roma girl returned to her family tonight was at immediate and serious risk at the time of her removal. Reasonable belief is not an especially stringent standard. For instance, a garda may take account of evidence which would not be admissible in court. Questions of prima facie proof are for the later court hearings required under the 1991 Act, and so it does not matter that the garda’s belief later turns out not to have been factually accurate. However, it is clear that mere suspicion is not enough to satisfy the statutory test. And while the garda’s belief should be formed in good faith, good faith is not in itself enough to satisfy the Act – the belief must also be reasonable. A reasonable belief cannot be formed on the basis of an individual’s ethnic heritage alone. Certainly, it is important to find out what garda protocols are in place in child protection cases to ensure that gardai eliminate sources of potential racial bias from their decision-making.
Newspaper reports suggest that gardai were not satisfied with the documentation which the girl’s parents produced to verify her parentage. Subsequent investigations have shown that the information they gave about her date and place of birth was accurate. We know that at least one ‘tip-off’ to the gardai had come via facebook from a member of the public, who posted a message to the page of a television journalist known for reporting on Traveller and Roma issues. When the cases were initially reported, Irish papers were quick to see an apparent connection between these cases and the Greek case of ‘Maria’. Newspapers rushed to judgment, describing the girl as ‘found living with’ a Roma family, as an ‘Irish Maria’ and a ‘mystery girl’.
Speaking to the Seanad this evening, the Minister for Justice has accepted that the concerns raised around both Roma children were baseless. However, while he is requesting a report into these events from the Garda Commissioner he is content to say that the the gardai acted in ‘good faith’ and not out of any particular motive to target a particular ethnic group. Of course, good faith and motive are not in issue here. If it appears that the gardai acted on concerns which primarily derived from the assumption that something extraordinary must happen in order for Roma parents to have a blonde, blue-eyed child, then matters of race are clearly in play. It is important to ensure that police zeal does not over-step the bounds of the right to private and family life (there are echoes here of the ill-fated Operation Charity, notionally designed to prevent forced marriages) or of the right to protection from discrimination. If it appears that Roma families have been targeted for arbitrary reasons connected to their racial identity, clear issues arise under Article 14 ECHR. The Immigrant Council of Ireland have noted the need for robust anti-racism measures in public institutions. We know, at this point, that institutional racism and racial profiling are real issues in Ireland A recent report from the Council of Europe (here) implicated the gardai in racial profiling.
Finally, as Pavee Point have noted today, these cases appear to have granted license to some in the more agitated quarters of Irish public opinion to resurrect old myths about one of Europe’s most marginalised communities. But the more worrying facet of this story is the Minister’s apparent complacency in the face of two very disturbing linked events, which now, in the cold light of day beg for thorough independent investigation.(Pavee Point have called for an independent inquiry). I am reminded of a speech by Jacques Ranciere at a forum about the proposed expulsion of Roma from France in 2010, in which he described racism as “a passion from above”:
I conclude: a lot of energy has been spent against a certain figure of racism—embodied in the Front National—and a certain idea that this racism is the expression of ‘white trash’ (‘petite blancs‘) and represents the backward layers of society. A substantial part of that energy has been recuperated to build the legitimacy a new form of racism: state racism and ‘Leftist’ intellectual racism. It is perhaps time to reorient our thinking and the struggle against a theory and a practice of stigmatisation, precariatisation and exclusion which today constitutes a racism from above: a logic of the state and a passion of the intelligentsia.