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.
So the fear of the State intervening in functioning families and seizing their children appears ill-founded. The amendment does, however, rebalance parental and children’s rights to ensure that the problems of children in seriously dysfunctional families can be addressed and the marital status of the parents cannot be an obstacle to this.
It is an indisputable fact that, while the overwhelming majority of children are lovingly cared for by their families, for a minority their family is a very dangerous place to be and can be the site for emotional, sexual and physical abuse and grievous neglect.
Such abuse is no respecter of marital status. Some of the most horrendous cases of abuse – and even child murder – that have come to light have involved the children of married parents. The Kilkenny incest case, the Kelly Fitzgerald case, the McColgan sexual abuse case, the Monageer case and the Roscommon incest and rape case all involved married couples and their children.
The passing of this amendment will not mean that the status of the marital family is undermined. The Minister, along with her predecessor, Barry Andrews, and the all-party committee, was careful not to seek to amend article 41 of the Constitution, which deals with the family. Article 42, which is to be amended, deals with education. So the affirmation of the status of the family based on marriage remains intact.
This means the courts will still have to carry out a balancing exercise if the rights of the child and the rights of the marital family are seen to conflict. It does not mean that children’s rights, however defined, trump the rights of the family if there is a conflict but that the courts have to have regard to the rights and the best interests of children, as well as the constitutional rights of the family.
However, these considerations apply only where there are court proceedings, either involving the State in care proceedings, or private cases concerning adoption, custody or access issues. The amendment does not oblige the State to make the best interests of the child the paramount consideration. This was also absent from the previous government’s wording.
This means that the best interests of the child need not prevail in actions taken by government departments: for example, in the placing of the asylum seekers’ children in direct provision accommodation, condemned as unsuitable by many NGOs, or the widely criticised practice of placing children with mental health problems in adult psychiatric wards, or the provision – or lack of provision – for the education of children with special needs. There is no doubt that the proposal of such far-reaching provisions would have met with political and administrative resistance.
Frances Fitzgerald has produced a carefully crafted amendment that has disarmed most of her potential critics and will strengthen the right of children to protection and care. It won’t answer all the problems that face vulnerable children, but it could not have been expected to.
Carol Coulter is Legal Affairs Editor