ICO not renewed because girl not a minor – 2013vol3#11

The HSE brought an application to the District Court to discharge an Interim Care Order, having determined that a mature minor from another jurisdiction was in fact an adult. The mother maintained her daughter was under 18.

The HSE solicitor told the court the matter had first come in two weeks previously. An extension of an Interim Care Order hearing had been due to take place at the end of the week, but it would not now proceed as they had determined she was an adult.

The HSE had carried out a risk assessment containing an age element and had received documentation from various sources including border control. The principal social worker for the HSE team for Separated Children Seeking Asylum was present and had assessed she needed adult services as there was a degree of urgency.

The team had been in the contact with the GNIB. There was also a trafficking element to the case. The child had been in the care of the HSE since early summer, she herself said she was an adult and was ready to move on. She was currently in a residential unit.

The GAL solicitor told the court that the GAL shared the child’s view that was over 18, she herself had told the GAL she was 22. The HSE sought to admit the evidence of the child contained in the risk assessment and the social work report but the GAL wished to bring a further Section 23 application so that she would not have to give evidence as she was fearful of seeing her mother on the grounds it would not be in the interest of the welfare of the child.

“Section 23 is in respect of a minor,” said the judge. “If she is not a minor, why isn’t she giving evidence?”

The HSE solicitor told the court that the judge, who had met the girl that morning, had made a determination that the presumption was the child was a minor and in those circumstances Section 23 applied.

“What is to prevent [the child] giving evidence via video link?” asked the judge.

“She is clear in her view she doesn’t feel she would be able to, she is very vulnerable, she has had a tragic history… it might break down any possibility of a relationship with the mother,” said the GAL solicitor.

“She is traumatised at the prospect of giving evidence, she is terrified of coming to court today and now having to face her mother, she is very, very scared of meeting her mother, particularly now in giving evidence of the age she says she is which is in contrast with the age the mother says she is,” said the HSE solicitor.

“She was shaking when she met [the judge this morning], she is extremely apprehensive and worried about the consequences,” added the GAL solicitor. The judge replied: “You’re asking the court to assume that she is a child and not a child. The difficulty is evidence.”

The HSE solicitor replied that they were still operating under the Child Care Act in order to discharge the ICO, the ICO had been made under the presumption she was a child, but they had now determined she was an adult.

“I can’t proceed with your Section 23 application,” said the judge, pointing out there was an application before her from the mother saying the child was under 18.

After further discussion the judge told the parties: “A mature minor has certain rights, the judge has to have regard to certain sections … evidence will be required she is not a minor, in support that she is a minor is her mother.”

The principal social worker for the HSE team for Separated Children Seeking Asylum told the court they would help the mature minor transition to adult services and also walk with her through any asylum process, as well as the ORAC process (Office of the Refugee Applications Commissioner). She would be moved to another residential unit.

The matter was adjourned till the following morning and the mother was once again subpoenaed to attend court. The mother’s solicitor said she would only be able to give oral testimony, she had no birth certificate. The mother contended her daughter had it, but the GAL solicitor told the court that passport was a false one.

The judge said all of her documentation had to be produced and to bring sufficient copies the next day.

The following morning the HSE told the court it was now withdrawing the application to discharge the ICO, however they stood over their previous determination. New information had now come that they would consider. The ICO itself was due to expire on Friday. They would inform the court on Friday if they wished to move another ICO.

The GAL solicitor said that the GAL had had a conversation with the child and a report had been sent to the court.

The judge noted the HSE were standing by their contention the child was over 18, she added that all parties were to bring case-law on Friday in relation to age and relevant documents would be needed.

The HSE solicitor told the court they would either proceed or withdraw their application on Friday. Once their position was ascertained they would notify the parties. When the case returned at the end of the week the HSE did not proceed with an application to extend the Interim Care Order and there were no other applications brought by either the mother or the GAL, so the order lapsed. The young adult was allocated a temporary after-care worker to facilitate referral and transition to the adult services.