As Universal Children's Day was being celebrated yesterday, more than 11,000 Irish children faced removal to foreign countries, writes Raymond Doorley.
More than 11,000 Irish children are living in a state of limbo, faced with the threat of being effectively deported to foreign countries. It is an appropriate time, with yesterday being Universal Children's Day, to consider their precarious situation, which demands both attention and immediate action to defend their rights.
Last February, shortly after the Supreme Court upheld the deportation of several adult non-nationals in the O and L cases, the Department of Justice abolished the procedure where residency could be applied for based on parentage of an Irish child. As a result of this action, which was not mandated by the court decision, residency applications affecting more than 11,000 Irish children have been set aside, even though many have been pending for over two years. Since then, more than 1,000 deportation letters have been delivered to the parents of these children giving them 15 days to explain why they should not be removed from the country.
Keeping in mind that the Minister for Justice has repeatedly stated that parents who are being deported will have to take their children with them, and that each case will be looked at on its merits, it would follow that new procedures would be put into place to ensure the constitutional rights of the affected Irish children will be fully protected.
Minimally, this would involve conducting a Child Impact Review before any official action is taken that would bring about the effective deportation of an Irish citizen child. The review would seek to uphold section 3 of the Guardianship of Infants Act, 1964 and section 24 of the Child Care Act, 1991 which provide that paramount consideration be given to the welfare and best interests of the child in any matters that affect them.
The Child Impact Review would include a thorough examination of the circumstances in the foreign country in question and would look closely at any obstacles that might prevent the child from vindicating his or her constitutional and human rights. The review would seek answers to the following questions:
If the Irish child is being sent to a country that routinely engages in serious breaches of human rights, what protection will the child have?
What will be done if the government of the foreign country refuses entry to or subsequently deports the Irish child on the grounds that the child is a non-national with no rights of residency?
Does the foreign country provide free or subsidised public education and public health services only to its own citizens?
Will the country confer citizenship on the Irish child?
If not, how will the Irish child, as a resident alien, have his or her basic education and health rights vindicated?
How will the consular offices ensure that the child will be able to realise his or her rights to a proper education, to decent healthcare, to protection from abuse and to all of the child's rights recognised by the Irish Constitution and the UN Convention on the Rights of the Child?
What will happen if the child is forced to move to a country where even the limited benefits of consular assistance are unavailable?
How will care be provided if the child's parent or parents are placed in prison following deportation?
Forced marriage, female genital mutilation and torture are common practices in countries to which Irish children could be sent. What safeguards exist to ensure that an Irish child does not fall victim to such abuses?
What are the rates of extreme poverty and HIV infection in the country in question?
How long will the Irish child be required to stay in effective exile?
If the Irish child is left behind by deported parents, who will care for the child? Have any preparations been made or resources allocated to ensure such care is provided?
These are among the questions that must be answered before any deportation orders are entered against the parents of Irish children.
Unfortunately, no indication has been given by the Minister for Justice or by Department officials that any thorough consideration of the best interests of the child or examination of conditions that Irish children would be forced to cope with in foreign countries have or will be undertaken.
Under such circumstances, the only reasonable action available to the Minister is to abandon efforts to deport the more than 11,000 Irish children whose parents have legally applied for residency. The Minister should accept the recommendations made by the Irish Human Rights Commission and regularise the residency status of these families without further delay.
Following this, the Minister and the Department should put into place adequate safeguards and Child Impact Review procedures to address future cases involving the potential effective deportation of Irish children.
And lest we forget, these children are fully-fledged Irish citizens. Every child born in Ireland is entitled to Irish citizenship. The Constitution established that right and the Supreme Court reaffirmed it in the O and L cases, and made it clear that all Irish citizen children have equal citizenship status and equal rights.
The court decision may have permitted the deportation of non-national parents in two particular instances, but it does not allow any Irish children to be treated as "second-class" citizens and in no way absolves the State of its responsibility to act in the best interests of Irish children and to protect their constitutional and human rights.
Raymond Dooley is the chief executive of the Children's Rights Alliance, a coalition of 75 Irish non-governmental organisations concerned with the rights and welfare of children