Woman of stature

Dublin former Supreme Court judge, Mrs Justice Catherine McGuinness sips her cappuccino in the tranquil setting of the Orangerie at the Radisson Hotel in Stillorgan, and remarks on the beautiful spring morning.

Her diminutive figure, in dark trousers and petrol blue jacket, belies her stature on the Irish legal and political landscape.

The 79-year-old has had a career in politics, a career at the bar and a career in the judiciary as well as a variety of roles in agencies, investigations and commissions.

She has also been a central figure in the push for the children’s rights amendment to the Constitution.

She says her conviction that change was needed pre-dated her chairing of the Kilkenny incest inquiry, though that was her first official call for it.

There had been an accumulation of cases while she was a practising barrister that pointed to a need for a change in the balance of rights between children and the family, she says, including adoption cases.

The details of the Kilkenny incest inquiry, which she chaired in 1993, are still firmly in her mind. A young girl was abused by her father over many years and bore his child.

She drinks again from her coffee cup and says the thinking was that what was happening there was “a family thing”; no one should interfere, though there were people who knew what was going on.

“The voice of the child was not heard,” she says.

“I felt there was an imbalance in the law.”

In her inquiry report, she found the “very high emphasis” on the rights of the family in the Constitution could “consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children”. She made various recommendations, including that the government amended articles 41 and 42 to include a statement of the constitutional rights of children.

Many of the recommendations were introduced by then minister for health Brendan Howlin.

“You’ve got to get a minister who wants to change things and he was keen to do it,” McGuinness says.

But the constitutional amendment was not forthcoming at that time.

Other cases came to court, including in 2001 North Western Health Board V HW and CW , when the State sought to have a screening blood test, the heel prick test carried out on an infant against the wishes of the parents.

All of the judges agreed the test was in the best interests of the child, McGuinness says, but because of the rights of the family enshrined in the Constitution they ruled against the health board.

Talk of an amendment “came up time and time again” over the following years.

"Then when the Ombudsman for Children was appointed, I had an ally in the field," McGuinness says.

She leans forward in her chair. She is a great admirer of Emily Logan, who has been "strong on lots of issues", she says, and has a "quality of character in a quiet kind of way".

They both worked together, but it wasn’t until the current Government took power and a full Minister for Children was appointed, that she felt confident the amendment would go ahead.

“From then on I was pretty sure something would happen,” she says.

In November 2011, she was appointed chairwoman of the Campaign for Children. Then there was debate about the wording.

“Emily was extremely keen to have administration issues included because her experience was really dealing more with faults in the administration rather than things that went as far as a court hearing,” she says.

But it became obvious that there was a fear that if administration was included, huge amounts of money would have to be spent by the various government departments. The departments were very much against including administration, she says.

“Emily fought on and on until the last ditch, but we knew we’d lost that battle.”

The final wording of the amendment referred to the rights of the child in terms of issues before the courts. It emphasised the importance of listening to the voice of the child.

The amendment passed on November 10th, 2012, with 58 per cent of voters supporting it. A challenge to it was rejected by the High Court in October 2013 and appealed to the Supreme Court where it is yet to be heard.

Though it has not yet been included in the Constitution, McGuinness believes the amendment has already had some effect. There is more emphasis on intervening to help children at an earlier stage with more orders for the supervision of children in families. There is also more concentration on hearing the voice of the child.

She believes if and when it is finally in place, the amendment will change things for the better. Resources may be more forthcoming, for example, in cases of children needing secure care.

“I would hope it would put extra pressure on the Government because they would have to be afraid that someone would raise a constitutional issue in the courts,” she says.

“While there is a general reluctance to interfere in the separation of powers, there have been a number of more recent appointments to the Supreme Court that might give a more even balance on that question than perhaps there has been in the past.”

She says she is “at one with the Ombudsman” in hoping the Supreme Court appeal does not succeed.

“We just have to wait and possess our souls in patience, as they used to say in Victorian days.” She laughs at the sentiment and finishes her coffee.