As the legal, financial and business implications of the United Kingdom's decision to leave the European Union continue to dominate the headlines and the negotiations, the human cost of Brexit is coming clearer into view.
Nowhere is this more visible than with respect to the Border question and the impact of Brexit on those who live in the border regions of Northern Ireland and the Republic is likely to be acute. Among those immediately impacted, the consequences for children and young people will be profound. Although children under 18 years did not have the opportunity to vote in the 2016 Brexit referendum, 61 per cent of males and 80 per cent of females in the youngest cohort of votes (aged 18 to 24) voted to remain.
Despite their lack of a say, the Northern Ireland Commissioner for Children and Young People , Koulla Yiasouma, and Ireland's Ombudsman for Children, Niall Muldoon, noted in 2017 that "young people on both sides of the border will live most closely with the huge consequences, positive and negative of the 'vote'".
Although children have had no input into the decision to leave or its implications, they are likely to be worst affected by Brexit and for longer. This concern led the EU Network of Children’s Ombudspersons to flag with EU leaders their duty to take account of the views of young people in the negotiations. So far, however, there is little evidence that this warning, like others, has been heeded.
The consequences for children of the United Kingdom’s decision to leave the European Union will be extensive and potentially very grave. The jurisdiction of the EU in areas that affect children’s lives has been growing over the decades, to the extent that multiple EU regulations and directives now offer important protection, especially to children who are vulnerable such as those who are abducted or trafficked. Family lawyers have been giving consideration to the implications of Brexit for family law cases that cross-borders or, as in the case of Northern Ireland, families whose lives straddle borders with non-UK states. Children who live with one parent but cross the Border to enjoy family contact with the other, for instance, will have their already complex lives further disrupted by Brexit. Maintenance payments, also regulated under EU law, will be difficult to address and uncertainty surrounds the framework that will govern cases previously determined by European rules that decide which member state is competent to make decisions about a child. Questions have also arisen as to which framework will govern proceedings in train before the UK’s intended exit on March 29th, with little or no guidance available from the legal professions or Government as to how such cases should be treated in the courts.
Charter of Fundamental Rights and Freedoms
After Brexit, children in the United Kingdom will be removed from the sphere of broader protection set out in the Charter of Fundamental Rights and Freedoms of the EU. Since its adoption as part of the Lisbon Treaty in 2009, the charter has applied to the EU institutions and has played an important role in enabling the EU to fulfil its objectives to promote and protect the rights of the child. Its protections include, under Article 24, the right to special protection and care, the right to have a say on matters that concern them, the requirement to ensure that the child's best interests are a primary consideration in all actions relating to children and the right maintain on a regular basis a personal relationship and direct contact with his/her parents unless that is contrary to the child's interests.
After the United Kingdom leaves the EU, these protections will no longer apply to children in the UK – meaning children in the North will no longer enjoy the protections enjoyed by children south of the Border. This raises clear concerns about compliance with the Good Friday Agreement human rights protections.
While in some instances international regimes - like the Hague Convention in the case of child abduction - may provide an alternative protection framework, these are a poor relation of the robust European-wide systems that have emerged in recent years.
It was for this reason that in February 2019, the Children's Commissioners of England, Wales, Scotland and Northern Ireland wrote to the UK government's secretary of state for exiting the European Union Stephen Barclay MP, expressing immediate concerns about the provision for children following Brexit. They sought particular assurances around arrangements for children with regard to co-operation on child protection and law enforcement, specifically asking what regime will replace the current pan-European protocols in this area with regard to children affected by online child abuse, trafficking and child abduction. The commissioners also expressed concern about the arrangements for vital co-operation on civil law and child protection that support children whose parents live in different jurisdictions.
Notwithstanding the gravity of these issues, children living in the Border regions of Ireland will suffer even more as a result of Brexit than their counterparts in the rest of the UK, largely because many of the EU protections kick in on a cross-border basis. Crossing the Border is a lifetime and daily occurrence for many children and their families, whether they live North or South of the Border. Many children - the number is unknown - live in one jurisdiction and go to school, enjoy sporting and leisure activities or access healthcare or other social services in the other. These children will have their lives seriously disrupted by Brexit even if the full extent of the impact is as yet unclear. Protocols will have to be agreed to enable children who cross the Border to continue to attend school and to enable school buses to cross the Border unhindered. Access to vocational and third level educational opportunities on an all-island basis may be problematic, as well access to work placement and sporting opportunities. The latter may be particularly acute for those whose sports are played on an all-Ireland basis and for whom regular frictionless travel North and South is integral to their sporting lives. European arrangements have fostered Ireland-wide co-operation in healthcare and related areas for decades now. Arrangements currently support emergency staff to provide mutual aid across the Border, and the EU Cross-Border Patient Mobility Directive supports the optimal delivery of healthcare to those in the Border regions. The current reality of life in the Border regions means that those living one side of the Border are facilitated to attend their GP (including cross-Border GP out of hours services) or have their medication dispensed at a pharmacy on the other.
Decades and millions of Euros (indeed of EU money) have been spent building up collaboration between health services across the Border, yet some of the country’s sickest children will be detrimentally affected if the current all-island paediatric cardiology services for very ill babies and children is disrupted or made unworkable.
No one is listening
It is difficult to identify the numbers of children likely to be affected by Brexit in this context and equally difficult to establish the impact of Brexit on the Northern Ireland services that are currently supported by EU funding.
Concerns exist that child poverty will rise as EU subsidies are withdrawn from Northern Ireland farmers and in rural areas in particular, the impact of the peace dividend, distributed through European Structural Funds and PEACE money which funded cross-community work for example, is likely to be significant. More generally, it is inevitable that even if the Belfast Agreement is protected in substance, some erosion of the gains made in community relations - so heavily invested by the EU - would sadly seem inevitable.
Children in the Border regions have sought to have their voices heard, through supportive consultative processes facilitated by the Northern Ireland Commissioner for Children and Young People and the Ombudsman for Children, and with the participation of civil society and advocacy groups. In one such process, in 2017, children articulated their fears that Brexit will see a regression to a hard border, to the return of daily conflict and to a rolling back of the mutual respect between the communities that has become the norm in their daily lives. Although they have not lived through violent conflict in their lifetime, they are acutely aware what a hard border would mean for them and their families and they do not want a return to the violence and divisions of the past. They are deeply worried for their futures and have expressed their concern that the standards of protections across the island will be weakened and their opportunities to work, travel and study, and to access vital health, education, sport and cultural activities across the island, as well as across the EU, have being removed, without them having had a say. “It’s our Brexit too”, they have complained. But no one is listening.
Prof Ursula Kilkelly is a professor of law and Dean of the School of Law at University College Cork. She is also an international children’s rights scholar.