Amendment supporters guilty of serious distortions

Fri, Sep 28, 2012, 01:00

WITH BARE-FACED dishonesty, proponents of the “children’s rights” amendment persistently cite two landmark childcare cases – the “Roscommon case” and the “Baby Ann case” – as indicating an urgency for constitutional changes to protect children.

Overwhelmingly, however, what emerges from these cases is not any inadequacy of the Constitution in relation to children, but incompetence and dubious practice by social workers.

The Gibbons report on the “Roscommon case” makes clear that there were no definitive constitutional or legal impediments preventing the Western Health Board from intervening in this appalling family situation.

It is true that, in 2000, after 11 years of engagement between the family and the health board, the parents obtained an ex parte order in the High Court in a bid to frustrate a proposed shared parenting arrangement.

But Gibbons tells us that, whereas the health board afterwards took legal advice, which urged immediate steps to challenge the High Court order, social workers appeared to misunderstand the order and ignored their own lawyers’ advice.

Contrary to the assertions of pro-amendment agitators, the High Court order did not extend the parents’ definitive protection from an intervention. It was at all times open to the health board to apply to vary or vacate the order, and/or to seek a care order in the District Court, and/or to apply to the High Court to have the children made wards of court.

For seven months, the health board did nothing. When finally it returned to the High Court, lawyers for the parents were able to observe that there didn’t appear to be much urgency in the matter.

The judge said he would not set aside the order but varied it to facilitate any order of the District Court.

Still, no such application was made, the health board bizarrely interpreting the High Court judgment as an outright rejection of its application.

At no time was any application by the health board rejected by any court, on constitutional grounds or otherwise.

Many people unfortunate enough to have experience of an intervention by social workers know that they are wont to trample all over families on the basis of circumstances far less drastic than could be observed by the dogs on the road where this Roscommon family lived.

A former social worker has written to me outlining why such contradictions arise: “Social workers are human and can be intimidated when on child protection visits with dangerous families.

“They prefer targeting instead the easy cases where they get to flex their power. They can justify making errors as they have large caseloads, but this can give them the excuse not to be sitting on the more difficult cases.”

Serious misrepresentations are being perpetrated also in respect of the “Baby Ann case” of 2006.

Media commentators and amendment proponents frequently assert that the Supreme Court ordered that Baby Ann be handed back to her natural parents – who had recently married – because of inappropriate constitutional protections for married parents, insinuating that this conflicted with the child’s interests because she had already bonded with the prospective adoptive parents.

This is an outright distortion. In fact, the Supreme Court moved to reverse a profound injustice arising from a serious abuse of power by social workers.

Baby Ann had been born in July 2004 and her parents, both students, initially decided to place their child for adoption.

The mother signed consent forms and in November 2004 the child was placed with the prospective adoptive parents.

Before an adoption order was made, however, the parents changed their minds, and in September 2005 communicated this decision in writing to the Adoption Board.

It emerged in the Supreme Court hearing that several of the HSE’s social workers had previously been acquainted with the couple seeking to adopt Baby Ann, creating a glaring and unacknowledged conflict of interest.

Following the parents’ change of heart, there occurred a number of unexplained delays, which resulted in the child illegally remaining with the prospective adoptive couple.

In January 2006, however, the parents married and immediately began legal action under Article 40.4.2 of the Constitution, seeking the release of their child from the custody of the prospective adopters.

These circumstances were central to the Supreme Court’s decision to reverse the judgment of the High Court, which had favoured the prospective adoptive couple.

The High Court judge, Mr Justice MacMenamin, was found by the Supreme Court to have accepted “in all material contexts” the evidence of social workers over that of the parents.

Several of the Supreme Court judges noted the shameful treatment of the parents by some of those driving the adoption. Mr Justice Hardiman pointedly observed: “It was always unfortunate, and became more unfortunate as time and events moved on, that the proposed adopters were not, as I presume they normally would be, strangers to the parents’ social worker.”

Four of the five Supreme Court judges held that Baby Ann’s return to her parents was the proper and just outcome. Only Judge Catherine McGuinness expressed a different view, complaining that the Constitution tied her hands.

In fact, the Constitution was relevant only because it gave the parents the necessary standing, as a married couple, to pursue the natural rights of themselves and their child.

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