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Mutual Learning and Training Conference - Recourse to European and International Mechanisms - Dublin April 2017

Dublin, March 30 & 31 2017

The Law Society of Ireland

Blackhall Place

Dublin 7, D07 VY24


Introduction


On 30 and 31 Mach 2017 the Child Law Clinic, School of Law at University College Cork, in collaboration with the AIRE Centre in London, Child Circle in Belgium and the Centre for Women War Victims (ROSA) in Croatia hosted a conference in Dublin exploring the International and European avenues of recourse to litigate children’s rights, with special focus to the situation and specific needs of unaccompanied and separated children.

The conference, taking place at the premises of the Law Society of Ireland in Blackhall Place, marks the fifth event organised in the context of the Separated Children in Judicial Proceedings Project, run with the partial funding of the Rights, Equality and Citizenship Programme of the EU.


“The object of the conference is to build the capacity for legal professionals (including judges) to become more aware of the need for child centred justice in all judicial proceedings involving separated children. The project also aims to ensure that legal professionals benefit from the knowledge and tools provided so as to ensure that the conduct and outcomes of such proceedings always take full account of the best interests of the child as a primary consideration.”

Ms Béatrice Blois, Legal Project Manager for the Separated Children project at AIRE Centre.


Building on the successful experience of the Project event previously held in Brussels in October 2016, on this occasion too the Dublin conference proposed a discussion as to what legal avenues exist at the European and international level to advance children rights and how to access them effectively.

On both days the event used a combination of panel discussions and interactive workshops to introduce and explore the do’s and don’ts of children rights litigation before the main international fora, comparing - for each of these – the advantages and disadvantages, procedures and substantive law. In particular, the event provided practical guidance as to how children’s cases can be brought before: the European Court of Human Rights, the European Committee of Social Rights, the UN Committee on the rights of the child through the communication procedures set under Optional Protocol 3, the Court of Justice of the European Union.


The event brought together legal professionals, judges and specialists organisations operating in Ireland and neighbouring countries, as well as leading regional and international experts, organisations and academics operating on various aspects of child-friendly justice and litigation, who gathered to share insights and experiences and discuss practical questions and concerns to be addressed when considering advancing children rights before International and European mechanisms. In addition to the many speakers and contributors intervening, on the two days the event attracted a varied audience of more than 60 participants.


As a result of the event, the audience was provided a comprehensive guidance on the following aspects of international and European litigation on children’s rights:

  • Procedural issues with regard to the involvement of separated children in European and international fora: who can take cases and to which bodies? What can they be taken about?  When can these cases be taken? Which countries have accepted the right to have cases brought against them?  What effect does a decision have on the underlying case?

  • Understanding when to take a case onwards to European or International mechanisms: how do these cases arise? How to choose the appropriate forum strategically? How to use international decisions at a domestic level?

  • Main issues and challenges experienced when litigating on behalf of children within the Irish legal system and the potential to access international and European mechanisms;

  • International/UK Experience of strategic litigation at the European and International level;

  • Detecting the specific needs and vulnerabilities of separated children, ensuring that their views are heard and taken in due consideration;

  • Employing a multi-agency and multi-disciplinary approach to children’s rights litigation;

  • Reflecting on the procedural role of the child, with particular reference to the implications of his/her status as a party or a separately represented subject and his/her specific assistance needs in this context;


Day 1 – Panel Discussion on Strategic litigation on children’s rights and an Irish perspective to taking cases to the ECtHR and Workshop on International and European litigation avenues


On the first day, Professor Ursula Kilkelly, University College Cork, Catherine Cosgrave, Legal Services Manager, Immigrant Council of Ireland and Nuala Mole, Senior Lawyer and Founder of the AIRE Centre, opened the event with an introductory session on current issues in children rights litigation in Ireland and at the European level.


Catherine Cosgrave discussed the state of play of strategic litigation of children rights cases in Ireland, highlighting the alarming situation of vulnerable irregular migrants, who often fail to be recognised as victims of trafficking or as asylum seekers owing to the inadequate procedures in force. Ms Cosgrave pointed out the stark contrast in the rhetoric used when discussing the children protection in the domestic and migration contexts, highlighting how children rights seem to be given different levels of importance in the two.

Drawing on this reflection, Nuala Mole, intervened to discuss how, especially in matrimonial and abduction disputes, very often cases are taken by adults with little regard as to what the position and interests of the children involved might be. Ms Mole flagged how, in its work, the AIRE Centre has attempted to reverse this trend by taking cases on behalf of children, both before the Luxembourg and Strasbourg Courts, in situations relating to a variety of legal contexts, including cases concerning the wrongful taking of children in public care, the rights of imprisoned parents to have contacts with their children or unaccompanied asylum seeking children in Greece.

In the second half of the morning, the following session provided an ‘Irish perspective’ to litigating cases before the European Court of Human Rights, thanks to the contribution and insights brought by Judge John O’Connor, District Court of Ireland, Dr Aoife McMahon BL and Dr Conor O’Mahony, UCC.

In particular, Dr Aoife McMahon, discussed the added value of Article 8 ECHR in litigating the best interests of the child in the immigration sphere, while Dr Conor O’Mahony illustrated the practical issues to consider to effectively vindicate children’s rights before the Strasbourg Court, learning from the experience of O’Keeffe v Ireland.


During the afternoon session, Saoirse Brady, Legal and Policy Director, Children’s Rights Alliance, moved to examine the potential of international remedies available at the UN level, giving an overview of the still underused Communication Procedure to the Committee on the Right of the Child under the Third Optional Protocol to the UNCRC, and discussing its potential to tackle systemic issues in Ireland.


Before opening the floor to the working groups, Gary Kiernan, General Manager and Chief Operations Office at Tusla/Child & Family Agency, illustrated Tusla’s national strategy and various roles in child protection in Ireland, with special emphasis on the work conducted with asylum seeking and trafficked children, addressing the issues at stake under a more operational angle.


The session was followed by an interactive workshop designed to introduce the participants to the international mechanisms discussed up to that point. Through the use of case scenarios displaying situations where children rights to residence and education as EU citizens and children rights as victims of trafficking were at issue, the audience was challenged about the information received throughout the day and prompted to consider the different legal and practical issues engaged by the use of individual and collective complaint procedures in each situation.   

While each of the 3 working groups was given time to analyse the issues and exchange views separately, all groups were then required to report back and discuss findings and observations with the plenary and the panellists. Nuala Mole and other speakers from previous sessions helped to coordinate and advise the groups throughout.   

 

Finally, day 1 of the conference was successfully closed by the interventions of Dervla Browne, Senior Counsel Court of Justice and Movement of Children, and Grainne Lee, Barrister-at-Law, who discussed the recent developments occurred in the context of article 15 transfers under Brussels II bis in the light of the decisions of the CJEU in CFA v JD and C v M.

Day 2 – Panel discussion and Workshops: bringing cases before the ECtHR and the Committee of Social rights, the experience of the Ombudsman for Children’s Office, asylum seeking children and children at risk of radicalisation and a reflection on the child-specific consequences of Brexit  


On Day 2, the event offered again a varied combination of panel discussions and workshops with a view to address the procedures before the international mechanisms not yet covered during Day 1 – namely the European Court of Human Rights and the European Committee of Social Rights – and discuss a series of pressing issues currently emerging in the field of child protection.

 

The discussion was opened by the intervention of the Ombudsman for Children, Dr Niall Muldoon, who gave an insightful presentation on the role and guiding principles of the Ombudsman for Children's Office in Ireland and highlighted the proactive functions of this organism in handling complaints and investigations on behalf of children.


After his intervention, Ruth Kirby, Barrister at 4 Paper Buildings, London, offered an instructive perspective on the sometimes overlooked condition of children at risk of radicalisation and on the existing procedural remedies to prevent or mitigate the risks emerging from this phenomenon, from inherent jurisdiction to more traditional child protection orders and care mechanisms. Ms Kirby also disproved the common misconception by which radicalisation is linked to new immigration influxes, specifying how in the majority of cases those at risk are British children of long established families and who are often home-schooled.

Moving into a different problem area, Syd Bolton, Solicitor UK (non-practising) and consultant at Methoria International, closed the first session of Day 2 by addressing the experience of unaccompanied asylum-seeking children in the Greek camps of Lesvos and Chios and speaking about the potential value of resorting to international mechanisms to tackle the systemic issues relating to their situation.  

The second half of the morning was entirely devoted to exploring the procedural aspects and child-specific considerations for bringing cases before the European Court of Human Rights and the European Committee of Social Rights. The session was chaired by Judge Clarke of the Supreme Court of Ireland and saw the remarkable participation and contributions of Anna Austin, from the Registry of the European Court of Human Rights, and Professor Colm O’Cinneide, Professor at UCL London and former member of the European Social Rights Committee.


Both panellists provided a comprehensive overview of the instruments at hand, from their establishment to the main procedural and administrative pitfalls of the system, and guided the audience through the child-specific issues to take into account when considering taking cases concerning children before the respective mechanisms.

The session was again followed by a series of interactive workshops, during which the audience was confronted with various problem scenarios and led to reflect on the scope for action of International and European mechanisms.

On this occasion the scenarios dealt, among other things, with the role and value given to children views in the context of care proceedings and the specific needs of asylum seeking children who are at risk of trafficking and exploitation.    


Once the workshops were concluded and the findings discussed with the plenary and commented by the panellists of the previous sessions, the audience gathered back to attend the final session of the event, during which Catriona Jarvis, Judge (retired) of the Upper Tribunal Immigration & Asylum Chamber, continued the discussion on unaccompanied asylum-seeking children arguing for the need to have specially-trained judges in asylum cases concerning children.


A concluding speech by Nuala Mole, presenting an overview of the yet neglected potential implications of Brexit on children, followed. By offering a compelling reflection on the condition of separated children involved in migration, abduction and family procedures both in the UK and countries connected to the UK in various ways, Ms Mole’s intervention marked the final note of the conference, reinstating the need to encourage the application and promotion of ever growing standards of protection in all decisions concerning children and successfully closing the 2 days.


“The legal contexts may be very different, but the overwhelming experience for the children themselves is often the same: they are all affected by the actual or threatened separation from their family members. Whether they are the victims of a tug of war between their parents or unaccompanied asylum seekers fleeing civil war, they have that shared characteristic. That is what makes them such a vulnerable group.”

Nuala Mole Founder and Senior Lawyer at AIRE Centre.



Find more about the AIRE Centre Separated Children in Judicial Proceedings Project here