Section 14 IPA states that where it appears to an immigration officer or an IPO officer that a child under the age of 18 years, who has arrived at the frontiers of the State or has entered the State and is not accompanied by an adult who is taking responsibility for the care and protection of the child, the officer shall inform, as soon as practicable, the Child and Family Agency (Tusla) and thereafter the provisions of the Child Care Act 1991 apply.
The law provides for the appointment of a legal representative, but the sections of the Child Care Act that would need to be invoked, are not in practice. Unaccompanied children are taken into care under Section 4 and 5 of the Child Care Act 1991 as amended. Neither section provides for a legal guardian. There are no provisions stating that a child must be appointed a solicitor, nor is there any legislative provision that a legal representative must be assigned within a certain period of time. Upon referral to Tusla, each unaccompanied child is appointed a social worker. Tusla then becomes responsible for making an application for the child, where it appears to Tusla that an application should be made by or on behalf of the child on the basis of information including legal advice in accordance with Section 15(4) IPA. In that case, Tusla arranges for the appointment of an appropriate person to make an application on behalf of the child. There is no legislative or policy guidance setting out how Tusla should make a decision on whether or not an unaccompanied minor should make an international protection application and such decisions appear to be made on a case by case basis. The sole decision on whether or not an unaccompanied child may make an application for international protection is entirely at the discretion of the Child and Family Agency, which raises concerns in relation to the child’s individual right to seek asylum under Article 18 of the Charter of Fundamental Rights.
The provisions on the appointment of a legal representative do not differ depending on the procedure (e.g. Dublin). The Dublin III Regulation is engaged once an application is made. However, the assignment of the Member State responsible for the examination of a child’s claim differs for those of adults under Article 8 of the Dublin III Regulation. At that point, the child will typically have a solicitor, whose duty it is to provide advice and legal representation to the child. If the child is in care, they will also have a social worker whose duty it is to provide for the immediate and ongoing needs and welfare of the child through appropriate placement and links with health, psychological, social and educational services.