The Best Interests of the Child

On the 10^th November 2012, the 31^st Amendment to Bunreacht na hEireann was approved. The new Article 42A in relation to Children’s Rights provides:

ARTICLE 42A – CHILDREN.

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings -

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child

What does this mean?

Article 42A.1 The Government and State is obliged to ensure, as far as practicable, that the rights of ALL children are protected and vindicated. The main effect is to recognise and affirm rights of children and place them on the same plane as the general personal rights of citizens. Citizen children would have held the personal rights of citizens in any event. There is a difference between “all children” and “citizens”. However, in practice the courts have never limited the rights protected by Article 40.3 to citizens, so this distinction is of no practical effect. Essentially, Article 42A.1 is intended to signal a clear intention to protect the individual rights of all children, regardless of marital status.

Article 42A.2. 1° - The State may intervene and try to supply the place of the parents, if the parents fail in their duty towards the child. The emphasis has been shifted so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty This intervention must have due regard for the child’s rights and will only be allowed in exceptional cases. The biggest change here is that the State can intervene where the parents have failed in their duty towards their children, whether in fact, those parents are married to each other, or not. Previously this failure was in relation to moral and social duties, whilst now the wording refers to failure in their duties to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. Under this approach, parents would be taken to have failed in their duty if they did something (or failed to do something) which was likely to affect prejudicially the safety or welfare of their child consequently leading to State Intervention. It is clear this establishes a different standard for intervention. It could imply that conscientious parental choices, based on moral or religious or philosophical commitments, might be overridden by the State where they are thought to prejudicially affect children’s safety OR welfare. Any intervention by the State must involve the use of proportionate means, which must be set out in legislation.

                 

Article 42A.2. 2° - A major change relates to the issue of adoption. Previously there was no law permitting married parents to voluntarily place a child for adoption. The law now provides, at a constitutional level, for the adoption of any child, whether that child be a child of a married, or unmarried, couple. The proposed amendment provides for adoption where the parents have failed in their duty towards the child for a specified period of time, and where the best interests of the child so require. The draft legislation published with the provision allowed for a period of three years, however this could be decreased or increased in the future.

Article 42A.3 - This represents a firm move away from the original rationale underpinning Irish adoption law: that adoption was designed to give children born outside marriage the opportunity of a life within a marital family. Previously voluntary placement for adoption was permissible only where the child was born outside of marriage or orphaned. In respect of a child born to parents who were married to each other at the time of the child’s birth, unless both parents are deceased, the child could only be adopted in the exceptionally limited circumstances envisaged by Sections 53 and 54 of the Adoption Act 2010;  any child – marital or non-marital – could be adopted where the parents have failed in their duty towards the child for at least one continuous year, and where this failure is likely to continue without interruption until the child is 18. The failure must amount to an abandonment of all parental rights in respect of the child. Such an adoption, moreover, could only proceed with High Court approval, and having due regard to the parents’ and child’s constitutional rights. Art.42A(3) offers children born inside marriage who are in long-term foster care, offering them the prospect of a more regularised and secure position through adoption. Significantly, the amendment departs markedly from the traditional view that the function of adoption is to provide a marital home for non-marital children, recognising that some children born within marriage may also be best served by adoption

Article 42A.4 1° - applies to proceedings initiated by the State and proceedings not necessarily initiated by the State. This section introduces a best interests test into the constitutional text for the first time. In all court proceedings, where significant decisions are being made in relation to a child, the paramount consideration is the best interests of the child. There is nothing to suggest that legislation enacted on foot of Article 42A.4.1 will be any different in status to legislation already in place. Note that legislation already requires that the best interests of the child are a paramount consideration in family law proceedings. For instance, section 3 of the Guardianship of Infants Act 1964 requires that in any proceedings regarding ‘the custody, guardianship or upbringing of an infant’, the welfare of that child will be the paramount consideration. In section 19 of the Adoption Act 2010, the courts and the Adoption Authority are bound to consider the welfare of the child as ‘the first and paramount consideration’. In section 24 of the Child Care Act 1991, the courts are required in any proceedings concerning the care and protection of a child to regard the welfare of the child as the first and paramount consideration. It is only in this latter case where an argument might be made as to the added value of Article 42A.4.1 in that section 24 of the 1991 Act refers to the parallel duty on the courts to have regard to the rights and duties of the parents, under the constitution or otherwise, in such proceedings.

Article 42A.2 2° - The amendment provides that where practicable, the views of the child himself, or herself, should be obtained and due weight given to those, having regard to the age and maturity of the child. It is the case that the views of the child are often taken into account in Court proceedings however the reformed article will put this on a Constitutional footing. This best interests test can only come into operation when the threshold for state intervention has been passed.This represents a very cautious and limited attempt to incorporate Article 12 of the United Nations Convention on the Rights of the Child into Irish domestic law. Indeed, Article 12 of the Convention is much broader in scope, not only recognising the right of the child to be heard directly and indirectly in all judicial and administrative proceedings (Article 12(2)) but, more generally, it recognises the obligation on the State to assure to all children the right to express their opinions freely in all matters concerning them once they are capable of forming views. In contrast, Article 42.A.4.2 fails to make reference to any other area of a child’s life other than child and family law proceedings.

                 

The Constitution must be interpreted harmoniously, and article 42A will be read in light of other constitutional provisions, namely the unaltered article 41. The Family will still be regarded as the “natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,” with a State commitment to protecting it in its “constitution and authority”.

Brophy Solicitors

7.12.12

Migration: A necessary element of the past, present and future in Ireland.

The need for Immigration

The history of the our country is pervaded with tales of migration, from the necessary departure from Irish soil during times of Famine, the Great Depression, recession in the 1980s and of course the current day consequences of the collapse of the Celtic Tiger. Between 1871 and 1961, the average annual net emigration from Ireland consistently exceeded the natural increase in the Irish population, which shrank from about 4.4 million in 1861 to 2.8 million in 1961.[1] With the exception of the 1970s, when, for the first time in Irish history, net migration to Ireland was positive, outflows continued to exceed inflows until the early 1990s.

However migration is not a faucet of our society’s history which completely emanates doom, embodying unhappier times. The 1990s – early 2000s economic boom saw unprecedented levels of prosperity. Ireland experienced a flow of migrant workers, both EU workers and asylum seekers from outside the Union. In 1996, Ireland reached its migration "turning point," making it the last EU Member State to become a country of net immigration. This was a consequence of rapid economic growth which created an unprecedented demand for labour across a wide range of sectors, including construction, financial, information technology, and health care. Unemployment declined from 15.9% in 1993 to a historic low of 3.6% in 2001.[2]

A recent report ‘Migration and the Economy’ compiled by the economist Jim Power, for the Integration Centre (a not - for – profit organisation dedicated to promoting integration) has found that even after the crash, immigrants are playing a vital role in the Irish economy. In fact for Ireland to prosper, it is necessary to promote inward immigration.

This is a stark contrast to the commonly held view that migrants are in fact a burden on the Irish economy.

The report found that foreign born works work at all levels of the economy, most working in lowly paid, service and administrative jobs. In some trades they make up one third of the workforce. The highest number of migrants came from Poland and then from the UK, both EU countries. The report also states that immigration was vital to the Irish economy in the boom years when the unemployment rate fell below 4%. It was commonly agreed that immigration was necessary. However, after the crash in 2008, there were elements in Ireland who said that immigration was unaffordable.

The report stipulates that there is little evidence to support this. It states that immigrants are retraining. There is no evidence of benefits tourism being a motivation for immigration into Ireland.

 'The non-Irish population is highly skilled with qualification levels exceeding that of the foreign population in other EU countries. The overall majority hold professional or trade qualifications. The variety of language skills they hold is vital to the Irish economy…, in short, the immigrant population has been and remains a key asset to the Irish economy.'[3]

The report recommends various measures to encourage immigrants to stay.

·        An improvement to the employment permit system in order to facilitate the recruitment of non EU workers.

·        Improved English training for immigrants.

·        A more streamlined system for recognising foreign qualifications.

·        Greater efforts to attract immigrant entrepreneurs.

·        The enactment of a statutory right to family reunification for victims.

·        Improved anti-racism measures in the workplace.

·        Greater commitment from the Gardai to tacking racist incidents

·        Keeping personal tax levels low to avoid scaring immigrant workers.

It is apparent from recent case law; M.M v minster for Justice Equality and Reform & Attorney General[4], Okunade v Minster for Justice, Equality and Reform & Attorney Genera[5]l,  that an urgent reform of our system of asylum application is required.

 Migration has been an obvious element in attempts to recover in the past, and this is not about to chance. However, in contrast to popular belief, this report commands that rather than encouraging our youth and recent graduates to depart from our shores, we should in fact be more encouraging of people arriving to avail of employment opportunities here.

Brophy Solicitors

4.12.12

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[1] Figures sourced from http://www.migrationinformation.org/Feature/display.cfm?ID=740 retrieved 3.12.12 at 10.18 a.m.

[2]Ibid.

[3] Source :http://www.workpermit.com/news/2012-11-01/irish-report-says-immigration-vital-to-economic-success. Retrieved 3.12.12 at 10.44 a.m.

[4] Case C- 277/11 M.M v minster for Justice Equality and Reform & Attorney General, 22 November 2012.

[5] {2012}IESC 49.

A Need for Reform

The much needed reformation of the Irish Asylum system has once again been thrust into the spotlight with the recent decision of M.M v Minister for Justice, Equality and Reform, Attorney General.

Under current legislation, the European Communities (Eligibility for Protection) Regulations, when an unsuccessful asylum applicant is informed that his or her application for refugee status has been refused, s/he will be informed that the Minster proposes to make a deportation order. S/he will have the opportunity to apply to the Minister for Justice, Equality and Law Reform for permission to remain in the State on the grounds that he or she is eligible for 'subsidiary protection'. Subsidiary protection is available to a person who does not qualify as a refugee but if returned to his or her country of origin, would face a real risk of suffering serious harm as defined for the purpose of the Directive.

 On 22^nd November the European Court of Justice held in the case of M.M v Minster for Justice, Equality and Reform, Attorney General, that Ireland’s system of subsidiary protection does not comply with the right to be heard, a fundamental principle of European Union Law. 

Applicants for subsidiary protection make a paper application to the minister, who on the basis of this application and asylum makes a decision. The government argued as the applicant has a right to be heard in the application process, it is unnecessary to hear the applicant again in the subsidiary protection procedure.

The Court of Justice firmly rejected this argumentation. The Court noted as Ireland has established two separate procedures for dealing with asylum and subsidiary protection, an applicant has the right to be heard in the context of both procedures.

Ireland is in fact the only EU country not to have a single asylum and subsidiary protection procedure. In Ireland, an applicant must first apply for asylum – a process which may take years, and receive a firm rejection of their asylum before qualifying as eligible to apply for subsidiary protection.

The complicated and cumbersome nature of the Irish Asylum application process was also recently highlighted in the decision last month in the Supreme Court case Okunade v Minister for Justice Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012). The Supreme Court granted injunctions restraining the deportation of a Nigerian woman and her five year old Irish-born son while they challenged their deportation order and a ministerial decision refusing them subsidiary protection. Overturning the decision of the High Court, the Supreme Court found that the deportation order constituted a disproportionate interference in the family life of the young boy who knew no other country than Ireland. The Asylum process of this country was held to be the blame for the amount of time the family had resided here.

Brophy Solicitiors

30.11.12 

Tackling the Culture of Disbelief in Asylum Claims

Earlier this month, following the Irish refugee council’s report ‘Difficult to believe’, a conference was held on Credibility in asylum claims.

Professor Guy S. Goodwin Gill a senior research fellow and professor of International Refugee law at Oxford University was the keynote speaker.

He spoke about the protection of refugees as “a matter of international obligation”, stressing the importance of “a fair and efficient procedure” in the determination of asylum claims. He highlighted that the 1951 Refugee Convention says nothing about procedures or process leaving its implementation up to the states themselves.

He described how a fair process must include certain essential elements such as a full hearing; appropriate evidential standards; evidence-based decisions and the requirement of a review or appeal.

In terms of establishing the risk of persecution he noted the problems with the onus being placed solely on the applicant and said practical considerations impose a duty on the decision maker.

In discussing the decision in Rustamov  v Russia 2012, the professor asked “what must asylum seekers show?”

In this case,  the Court pointed out that requesting  an applicant “to produce "indisputable" evidence of a risk of ill-treatment in the requesting country would be tantamount to asking him to prove the existence of a future event, which is impossible, and would place a clearly disproportionate burden on him.”

The professor asserted that “The Strasbourg court is clearly sending signals about the process of decision-making.”

He also noted that the appreciation of fear of persecution is based on an objective situation and said that the decision-making process requires us to look at a series of variables making it unpredictable.

The professor noted that decision makers can’t ever have absolute confidence in their decisions but insisted that a well established process anchored in International law is needed.

In terms of personal credibility, he noted that although asylum applicants have a duty to tell the truth, there is a duty on decision makers also. He claimed that too little attention is paid to assessment and more attention needed to be paid to form for example early legal assistance, affirming that “this is what experience has taught us”.

The professor said he was pleased to read the IRC report and agreed that the system is not working and is not in compliance with international obligation. He described our system as “a ready-made case-study of what not to do”.

He highlighted how medical evidence is not given any weight in Ireland. In contrast he gave an example of a UK Court of Appeal case in which the applicant was totally lacking in credibility but succeeded on the basis of medical evidence alone.

The professor also discussed decision-makers assumptions, taking for example the claim that you can’t through an airport on a fake passport.

In terms of Appeal and review Professor Goodwin Gill said that it is not enough to say “I do not believe” and described the system as a “world of inferences”. He noted that almost universally a late submission equals a lack of credibility.

He expressed that what we want is a picture of the individual in context, concluding that “The individual needs to be brought back into the picture, back into the realm of international law.”

Justice Catherine McGuiness, who was chairing this discussion added that the “the narrow concept of judicial review opens itself up to a culture of disbelief.”

The following speaker was Professor Rosemary Byrne an associate professor of International and Human rights law and the Director of the centre for post-conflict justice at Trinity. Professor Byrne said that a “serious reconsideration of the system was needed” and that there was reason for significant concern over the low recognition rate here.

She discussed asylum testimony as human rights testimony and noted that “the nature of the asylum seeker as a victim has an impact on the way testimony is presented”.

She expressed the importance of rethinking how we approach credibility.

She mentioned Canadian studies that highlight a “presumptive scepticism” in asylum claims showing that unstated assumptions are driving the process.

She mentioned in particular the problems of the unstated assumption that the motivations of asylum seekers are to deceive the system.

Following this Dr. Jane Herlihy, Executive Director of the centre for the study of Emotion and the Law (CSEL) gave a presentation on psychological evidence in asylum claims. She focused particularly on the diagnosis of post traumatic stress disorder and emphasised that the absence of a diagnosis does not disprove a history of trauma just as the presence of a diagnosis is not evidence of trauma.

Fadela Novak-Irons, the UNHCR Policy Officer for Europe, described the importance of quality in decision making and expressed how credibility was at the core of this process. She highlighted the various challenges faced by the system such as decisions under conditions of uncertainty; Absence of witnesses; General nature of country of origin; human behaviour; the role of memory as well as trauma and vulnerabilities.

She went on to discuss the CREDO project currently been undertaken by the UNHCR and described it as taking a multidisciplinary approach to these issues.

The aim is for the UNHCR to launch new credibility guidelines by 2014.

Brophy Solicitors 

26.11.12

Immigration registration fee increased without warning

This week, the fee required for non EU people who are legal residents in the state to register with the authorities has increased from €150 per person to €300 per person. 

Thousands of immigrants who currently live in Ireland, including international students will be affected.

The Immigrant Council of Ireland have criticized this sudden hike in registration costs saying that: 

“The manner in which the new €300 fee was announced flies in the face of Government commitments to bring in a modern, streamlined and transparent Immigration System and in some cases will see families being forced to pay hundreds of euro more, even before the budget.”

Denise Charlton, Chief Executive of the Immigrant Council of Ireland said:

“The Government is quick to highlight and publicise the progress which has been made on citizenship, visas and in reducing bureaucracy, but this increase which will hit families hard, has effectively been announced by stealth. 

Individuals and families who are legally resident here are being asked out of the blue to dig deeper than ever before.”

Irish registration fees are now amongst the highest in Europe, in Belgium the fee is generally no more than €50, in Italy it is just over €100, with a similar charge in Austria.

http://www.immigrantcouncil.ie/media/press-releases/608-100-overnight-jump-in-immigration-fee-completely-unjust-sudden-announcement-comes-without-notice-or-consultation

Brophy Solicitors

26.11.12

Hungarian Passports for Sale!

The Hungarian government are planning to sell special residency bonds to help pay off the country’s debt.

Hungary has billions of euros worth of foreign currency debt, equivalent to 78% of its annual economic output, with the country’s debt being the highest in Central and Eastern Europe, according to Moody's Investors Service.

The Initiative  aimed  at Chinese investors, would involve spending €250,000  to  the indebted  country in exchange for preferential immigration treatment.

It has been indicated by politicians that  foreign  investors would receive residency and ultimately citizenship.

The concern for other EU countries is that a Hungarian passport  comes with the entitlement to live and work across the EU.

http://rt.com/news/hungary-citizenship-buy-bonds-663/

http://www.telegraph.co.uk/finance/financialcrisis/9644190/Hungary-plans-to-offer-passports-to-investors-buying-its-debt.html

Brophy Solicitors

23.11.12

Should the Ombudsman’s powers of oversight be extended to the areas of immigration and Asylum?

The role of the Office of the Ombudsman is to examine complaints from members of the public who feel they have been unfairly treated by certain public bodies.

Last week, the Ombudsman (Amendment) Act 2012 passed its final stages in the Dáil granting further powers of independent investigation to the Office of the Ombudsman. Some 140 government agencies were added to the list including the third level sector, the National Treatment Purchase Fund, Fas, the Irish Medical Council and the Family Support Agency.

However the agencies that deal with immigration and asylum were expressly omitted. This is a level of oversight that the Department of Justice seems to resist and  has proven to be a contentious issue.

If the Ombudsman were allowed to investigate agencies like the Irish Naturalisation and Immigration Service and the Office of the Refugee Applications Commissioner, it would mean that immigrants and asylum seekers would be able to lodge a complaint with a body independent of the Department of Justice in cases of poor administration. This would be likely to result in more accountability and improved decision making processes in these areas.

Many other European countries have this level of oversight in their equivalent immigration services. For example the UK Parliamentary and Health Service Ombudsman can deal with complaints relating to the Home office including the UK Border Agency and Identity and Passport Service as well as the Immigration Services Commissioner.

While our current Ombudsman Emily O’Reilly has noted that the Ombudsman (Amendment) Act 2012 is an historical milestone for her office, she has said that would like to see the agencies dealing with immigration and asylum come under her offices remit also. She expressed that it was a move that many, including the United Nations have been calling for over the years.

Denise Charlton, chief executive of the Immigrant Council of Ireland (ICI), agreed with Ms. O’Reilly stating that

"The Government's refusal to extend the Ombudsman's role to this area not only leaves people without an independent avenue of complaint in cases of poor administration, but in extreme cases can deny vulnerable migrants access to emergency supports and services," she also noted that

“This failure not only lets down vulnerable migrants, but also a system which has undergone many improvements in recent years."

The ICI has said it intends to ask the Department of Justice to review the current position and meet with the Ombudsman to examine if any interim steps can be taken to extend the protections of her office to those using the Irish Naturalisation and Immigration Service.

The general consensus on this issue seems to be that these Agencies should be held to account in situations of unfair treatment and poor administration like other public bodies.

Minister for Justice and Equality, Alan Shatter, has promised that this issue will be reviewed in future legislation.

http://www.independent.ie/breaking-news/national-news/call-to-widen-ombudsmans-remit-3276911.html

http://www.irishtimes.com/newspaper/breaking/2012/1024/breaking35.html  

Brophy Solicitors

31.10.12

Amnesty International urges Europe to act to help refuges fleeing Syria

Amnesty International has called on EU leaders to take the necessary steps to help the hundreds of thousands of people fleeing Syria.

Over 350,000 refugees have registered or are awaiting registration in Syria’s neighboring countries- namely Turkey, Lebanon, Jordan and Iraq.

 It has been predicted that over 700,000 refugees will have fled to Syria’s neighbors by the years end. Conversely, the EU has only received 16,500 Syrian asylum seekers. 

Amnesty have advised that the EU implement the following measures to alleviate this crisis:

•    Ensure access to protection and fair asylum procedures for all Syrian asylum-seekers arriving in the EU

•    Ensure no refugees are returned to Syria until the situation has stabilized and their safety can be assured

•    Agree a common EU approach towards determining refugee claims

•    Adopt a generous interpretation of international protection

•    Lift obstacles to safety, such as visa requirements and overly burdensome family reunification procedures

 www.amnesty.org/en/news/europe-act-now-help-refugees-fleeing-syria-2012-10-24

Brophy Solicitors

30.10.12

INIS update guidelines for migrant victims of domestic abuse

The Irish Naturalization and Immigration Service (INIS) have updated their guidelines for migrant victims of domestic abuse. The revised guidelines no longer require the parties to be living apart in order to apply for independent immigration status.

These new guidelines have been welcomed by the domestic violence coalition that is comprised of the Immigrant Council of Ireland;  Nasc; the Irish Immigrant Support Centre; Women’s Aid; Sonas Housing; Doras Luimní; Longford Women’s Link; AkiDwA; and the Domestic Violence Advocacy Service.

However Mr. Brian Killoran of the Immigrant Council has said that a number of issues remain to be resolved in relation to the new guidelines.

“We are still unclear as to the types of immigration status that will be issued to victims of domestic violence, and the rights and entitlements that these status types will give those who are in very vulnerable, dangerous situations,” he said. “We would urge the INIS to positively use its discretion to grant an immigration status to victims of domestic violence that allows for clear access to the labor market and to emergency supports. In the past, we have found that the lack of clear guidance and direction has prevented some victims of domestic violence from accessing help.”

The Coalition has advised that they will continue to work with INIS in addressing the outstanding concerns.

http://www.pila.ie/bulletin/october-2012/17-october-2012/guidelines-for-migrant-victims-of-domestic-abuse-updated-child-s-right-to-company-of-his-parents-prevents-father-s-depor/

http://www.nascireland.org/latest-news/3576/

Brophy Solicitors

30.10.12