Carefully crafted children's rights text disarms critics

ANALYSIS:THE PROPOSED children’s rights amendment, published yesterday, has been widely welcomed and seems likely to receive the support of all political parties. Even those who expressed reservations about the need for such an amendment have been muted so far. But these reservations could well resurface.

In the run-up to the publication of the text questions were raised as to whether the amendment was necessary at all, given that the Constitution permits the State, in exceptional cases, to endeavour to take the place of the parents where they fail in their duty towards their child.

A host of reports over the past 20 years recommended constitutional change. The most recent of these was the report on the Roscommon incest and abuse case, where both married parents of a large family had sexually abused, assaulted and neglected their children over more than a decade.

When the local health board sought to have the children taken into the care of close relatives who wanted to care for them, the mother went to the High Court and secured an order preventing it. For ill-explained reasons, the health board backed off and the children remained with their abusers for many more years.

While the letter of the law permitted the health board to act decisively in relation to these children, the absence of specific rights for children weakened its effectiveness. The constitutional guidance given to the judge gave priority to the marital family. The mother was able to obtain an order without the children having any voice in court and without their rights to a safe environment being invoked.

This will be changed by the amendment, which gives explicit recognition to the “natural and imprescriptible” rights of children, though these are not defined. It will fall to the courts to define them in specific cases. They are likely to include many of the rights mentioned in the UN Convention on the Rights of the Child, including the child’s right to life and nurture, to be cared for by his or her family, to receive care where that is not possible, to health, education and leisure, not to suffer violence or exploitation, and to have his or her views heard.

The proposed amendment also provides for the adoption of the children of married parents, and the Bill published with it makes explicit provision for this when the child has been in long-term foster care, has not had contact with his or her natural parents for at least three years, and where this is likely to continue. Critics have raised the spectre of the forcible removal of children from their families for trivial reasons and their adoption without parental consent, evoking the law in the UK where the taking of children into care can be the first step in their adoption.

The proposed amendment, combined with the draft Adoption Bill, provides for a much more nuanced approach. Children who have in effect been abandoned by their families and are in foster care may be adopted. Children of married parents can voluntarily be put up for adoption, following appropriate counselling and obtaining informed consent.

If the child has been placed for adoption and the consent is not forthcoming, it may be dispensed with. The court must consider the rights of all parties and give priority to the best interests of the child, but the adoption must be a “proportionate” response to the needs of the child.