Separated Children in Ireland: Responding to 'Terrible Wrongs'

Abstract

The treatment and care of separated children in Ireland has been the subject of continuing controversy, attracting criticism from international and European human rights bodies. This criticism has pointed to continuing gaps in protection and inequities in the standards of care provided. The Report of the Commission of Inquiry into Child Abuse 2009 (the Ryan Report), documented the ‘terrible wrongs’ inflicted on children in residential institutions in Ireland and a history of neglect, abuse and failure on the part of the State. While the Ryan Report was specifically concerned with the historical abuse of children in residential institutions run by religious orders, the Government, in its response, took the opportunity to address a contemporary risk of abuse – this time, of children who are strangers to the State. The Ryan Report: Implementation Plan committed the State to ensuring greater equity of care in the treatment of separated children. The inclusion of separated children in the Government’s Implementation Plan followed a sustained campaign of advocacy through the Action for Separated Children in Ireland coalition, a coalition of NGOs which succeeded in placing the rights and interests of separated children firmly on the agenda of children’s rights advocates. Despite this success, however, significant gaps in protection remain. These gaps in protection are not unique to Ireland. As Bhabha notes, the limited protections provided to separated children highlights the difficulties faced by children’s rights advocates worldwide, in ensuring that migrant children are recognized, first and foremost, as children in need of and with rights to protection. These difficulties are evident in recent debates in Ireland on proposals for a constitutional amendment on the rights of the child. The proposed amendment mandates the State to ‘cherish all children of the State equally,’ and is intended to strengthen the constitutional framework to protect children’s rights and to remedy the failings that contributed to decades of neglect of vulnerable children. Whether the proposed amendment will support expanded protections for separated children remains to be seen. All too often, appeals to the best interests of the child in such disputes are trumped by the State’s concern to limit and control immigration. Limited attention is given to the harms endured by migrant children. For separated children, the risks faced are great. There has been a gradual recognition of those risks, but, as yet, only limited legislative and policy commitment to ensuring that effective safeguards are in place against such risks. The Immigration Residence and Protection Bill 2010 proposed a comprehensive legal framework for migration and protection in Ireland. It did not include, however, any explicit recognition of children’s best interests in matters relating to protection and immigration and it left unanswered the concerns that have arisen relating to age assessment procedures, guardianship and best interests determinations for separated children. This paper examines the continuing gaps in protection faced by separated children in Ireland, reflecting broader failings in migration law and policy, and in the recognition of positive obligations to protect some of the most vulnerable children in the care of the State.