Tusla

In line with the Reception Conditions Directive, 2018 Regulations provide for the appointment of a Tusla employee or other individual to perform the functions of a representative.143

The 2018 Regulations apply only to an unaccompanied minor who has submitted an application for international protection or has given an indication that he or she wishes to make an application for international protection, is requesting not to be

141 _{Interview with SWTSCSA, October 2018.}

142 _{S.I. No. 230 of 2018, European Communities (Reception Conditions) Regulations 2018.} 143 _{Ibid., Regulation 10.}

expelled or returned to a territory where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, or fears or faces persecution or serious harm if returned to his or her country of origin. In practice, every unaccompanied minor is appointed a social worker who performs the functions of a representative.

Tusla’s ability to exercise legal capacity for the minor where necessary depends on the section of the 1991 Act utilised by Tusla to take the unaccompanied minor into its care. Typically, the SWTSCSA takes unaccompanied minors into care on the basis of section 4 of the 1991 Act (Quinn et al., 2014). Section 4 provides that Tusla may take into ‘voluntary care’ a child that requires care that is unlikely to be received otherwise. Under section 4, parental consent to the child being taken into care must be provided.144

This may have implications for the child’s care. For example, social workers caring for children under section 4 are statutorily obliged to have regard to the wishes of the parent or person in loco parentis in providing care to the child.145 _{In practice,} this means that the SWTSCSA is required to seek consent from parents in the country of origin or third country concerning key decisions affecting the child in relation to their health and education, such as consent for travel outside the jurisdiction and engagement in after-school activities (Corbett, 2018). If the SWTSCSA is not in contact with the family, it must seek a court order to dispense with parental consent. For example, if the child is under the age of 16, the SWTSCSA must go to court in order to dispense with parental consent for medical procedures (Quinn et al., 2014; Arnold and Sarsfield Collins, 2011; Arnold, 2013). Researchers have argued that the application of this section is problematic in the case of unaccompanied minors as the parents or guardians of an unaccompanied minor may not be in the State or contactable in order to provide their consent (Arnold and Kelly, 2012; Corbett, 2018). The SWTSCSA noted that the implications are minimal.146

Following the inspection of care facilities provided to unaccompanied minors seeking international protection in January 2018, HIQA raised the issue of the application of section 4 to the situation of unaccompanied minors (HIQA, 2018a). The inspection found that there were no copies of a court order or of parental consent to the child’s admission into voluntary care in some of the children’s case files, contrary to the Child Care (Placement of Children in Residential Care) Regulations 1995, which require proof of parental consent to be included in a child’s case file on placement in residential care. HIQA (2018a) also highlighted that admission into care under section 4 did not take into consideration significant

144 _{Child Care Act 1991, s 4(3)(b).} 145 _Ibid.

components of the unaccompanied minor’s care and was a source of uncertainty for care staff, including in relation to providing consent for participation in school activities, such as school trips and sports events. In April 2018, the residential centre reported that additional documentation had subsequently been included on file to support the children’s care status (HIQA, 2018a).

In contrast, in cases where Tusla takes the child into its care on the basis of a full care order granted by the court under section 18 of the 1991 Act, Tusla has ‘the like control over the child as if it were his parent’ and is entitled to make all decisions concerning the welfare of the child until the child reaches the age of 18.147 _{Utilising section 18 of the 1991 Act requires Tusla to go to the district court.} However, applications for a care order have been made infrequently in practice (Arnold and Kelly, 2012; Arnold, 2013; Horgan and Ní Raghallaigh, 2017). The SWTSCSA noted that applying for a care order may not always be appropriate where family reunification is being pursued. If it appears that long-term care arrangements will be needed for an unaccompanied minor, the SWTSCSA has stated that it will seek a care order (Quinn et al., 2014). The SWTSCSA noted that the practice of utilising section 4 of the 1991 Act arose from legal advice received early in the development of its service.148 _{However, the pursuance of care orders} is becoming more common.149 _{The SWTSCSA added that there is a shift towards} care orders, noting that Emergency Care Orders150 _{and Interim Care Orders}151 _have been applied for in court for unaccompanied minors; applications to court for an order in respect of children aged 15 and under are made in general; applications to the court in respect of children aged 16 and 17 are made on a case-by-case basis; and vulnerability and age are factors in the decision to make an order to the court.152

Corbett (2018) reports that guidance provided to social workers by Tusla in 2017 on voluntary consent for admission to care states that voluntary care ‘should not be sought if reunification is seen not to be possible’, in which case, ‘steps must be taken to seek the appropriate permanency placement for the child’. Researchers recommend that, while the use of section 4 provides a quick and inexpensive means to admit children into care, Tusla should be required to apply to the court for a care order under section 18, in respect of a child in voluntary care, in cases where a parent or guardian is unidentifiable or uncontactable (Arnold and Kelly, 2012; Corbett, 2018).

147 _{Child Care Act 1991, s 18(2).}

148 _{Interview with SWTSCSA, October 2018.} 149 _Ibid.

150 _{Child Care Act 1991, as amended, s 13.} 151 _{Ibid., s 17.}