Amendment proposal fails to cherish children equally

In this column last week I referred to a Supreme Court judgment in what is known as the Baby Ann case, by the now retired judge Hugh Geoghegan, in which it was held that the paramount interests of the child, even independently of the existing constitutional provisions, was to be with her/his birth parents, even when the burden of psychological evidence suggested otherwise.

I was mistaken in the view that his was the only judgment in the case, but having read the three other judgments (by Adrian Hardiman, Niall Fennelly and Catherine McGuinness), the point, although less clear, still stands.

Baby Ann was born to two university students, who, at the time of the birth were not married to each other. The child was given up for adoption but, before the adoption could be completed, the students had married each other and demanded the return of the child who was 2½ years old by the time of the Supreme Court case. The weight of psychological evidence was that Baby Ann would be psychologically scarred, perhaps for a long time, by being removed from the custody of the would-be adopted parents, with whom she had bonded closely.

Some of the judges seemed to diminish the significance of the psychological evidence, substituting their own intuitions about the welfare of children. One of them, for instance, in arguing for the appropriateness of natural parents in the rearing of children, found corroboration in the bizarre biblical story of Solomon, who supposedly correctly identified the natural mother via a contrivance that even biblical fundamentalists must consider gross – proposing to cut the child in half.

In the case, a majority of the judges found that because of the present constitutional provisions on the family, the child should be returned to the natural parents.

This was irrespective of the trauma this would cause the child, both at the time of the return and, possibly, for the rest of her life. Indeed, one of the judges, Catherine McGuinness, said it was “with reluctance and some regret” that she had arrived at her judgment, but it had be decided “under the Constitution and the law as it now stands”.

Two of the four judgments, however, suggested a reasoning that supported the return of the child anyway, independently of any constitutional imperative.

But the main deficiency of the proposed amendment is the failure to guarantee the cherishing of the children of the nation equally and the absence of any requirement on the State to protect children from an epidemic of sexual abuse that there is no reason to suppose has ceased to rage.