How new wording might have helped other children
The proposed wording of a constitutional amendment on children’s rights has been broadly welcomed. But would its existence have changed the outcomes of previous high-profile cases?
IT HAS TAKEN more than 20 years, 17 major reports into child-protection failings and repeated promises from successive governments. But finally, this week, the Government announced that, next month, it will hold a referendum to strengthen children’s rights.
“For decades we have had a legacy of failing our country’s children,” Minister for Children Frances Fitzgerald said. “This referendum is the clearest statement the nation can make that that legacy is being left behind.”
It all sounds impressive. But will it really, as the Government claims, ensure vulnerable children are protected, that families are supported and that the children of the State are treated equally? Or is it just some feelgood rhetoric that will do little to change an underfunded and often-chaotic child-protection service?
In searching for answers it’s worth examining some of the key reports and court cases over the years where the issue of children’s rights – or their absence – was cited as a vital factor.
KILKENNY INCEST CASE
In March 1993 a Kilkenny father was jailed for pleading guilty to rape, incest and assault of his daughter over a 15-year period. The scale of the physical and sexual abuse was shocking. But disclosure that the victim had such extensive contact with the local hospital, social workers, GPs and public-health nurses was more chilling.
The Kilkenny Incest Investigation group, chaired by former Supreme Court judge Catherine McGuinness, found there were basic problems of poor communication, little consistent record-keeping and a lack of co-operation between arms of the State. But it also highlighted a significant legal stumbling block.
“We feel that the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children,” the report stated.
“We believe the Constitution should contain a specific and overt declaration of the rights of born children. We therefore recommend that consideration be given by the Government to the amendment of Articles 41 and 42 of the Constitution so as to include a statement of the constitutional rights of children.”
The Government says the proposed amendment does just this. It will help ensure children are protected from harm by setting out how and when intervention should occur. It will place the protection of children at the centre of decision-making, regardless of their parents’ marital status. It will also oblige the State to ensure that in “exceptional cases”, where safety and welfare are at risk because of parental failure, the focus will be on the impact on the child.
Those opposed to the referendum, however, say it will give too much power to a neglectful State and erode the rights of parents.
BABY ANN CASE
This child was born to an unmarried couple in July 2004 who decided to give their child up for adoption. Within days, the baby was placed in care; later, a couple were found who wished to adopt the girl.
Then, two years later, the unexpected happened: the birth parents withdrew their consent. They wanted their baby back. In a resulting High Court case, it was found that Ann should remain with her adoptive parents. The judge said Ann would be “psychologically damaged” if she was taken away from her adoptive parents. He held that her natural parents, while motivated by the best interests of their child, were guilty of a failure of duty to her.