Ireland - Irish High Court provides judgment on Best Interests of Child

Monday, January 12, 2015

The High Court in the Dos Santos case, recently published, has had to grapple with whether the welfare of Brazilian minors and their best interests were considered or adequately considered when a deportation decision was made against the family by the Irish Minister for Justice and Equality. Additionally, the Court had to decide whether the child’s best interests must be examined as a primary consideration when deliberating upon the issuance of a deportation order.

With regards to the best interests of the Child the High Court submitted that the Irish Immigration Act requires that “the overall effect of deportation upon a minor is taken into account fairly.” In this particular case the High Court found that the Minister had taken into account factors which were considered as matters pertaining to the welfare of the children, however “the weight to be attached to such representations was a matter for the Minister” to decide. As to the applicants’ submissions that the best interests of the child had to be examined as a primary consideration, the High Court noted that Article 3(1) of the UN Convention on Rights of the Child codifying this point does not have direct effect in Irish law and thus “does not confer any directly enforceable rights on non-national children.” In light of this argument the Court surmises that the best interests of each child should not be given primacy over any other right by reason of Article 3(1). Nonetheless, in this particular case, the Court surmises that the best interests were ““a primary consideration” insofar as they were at the forefront of the decision maker’s mind.” The Court thus concludes, along with consideration being paid to the rights to private and family life, that the Minister had taken into consideration “factors relevant to the welfare and best interests of the children” and accordingly refused the family’s application rejecting their claim that the deportation orders were fundamentally flawed.      

9 January 2015                                 

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Best interest of the child