Case shines a harsh light on the inadequacies of Constitution

Analysis: The baby Ann case underlines the need for children's rights, writes Carl O'Brien

Analysis: The baby Ann case underlines the need for children's rights, writes Carl O'Brien

It had been a groundbreaking High Court decision. Mr Justice John MacMenamin ruled last June that two-year-old baby Ann would be psychologically damaged if she was taken away from an intended adoptive couple and given to her natural parents.

The girl, who is almost three years old and who has lived with her adoptive parents since she was three months old, had clearly developed an emotional bond with her new mother and father to a high and unusual degree.

There was evidence from psychologists and psychiatrists over the extent to which a breaking of a bond of attachment at Ann's age could have long-term serious psychological consequences for her. Amid all the uncertainties and emotion that swirled over whether custody of the child should lie with the natural parents or adoptive parents, one aspect was clear: returning Ann to her natural parents would cause the child harm.

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Yesterday, in the face of all that evidence, the Supreme Court ruled to do that. It could only rely on what is in the Constitution. Due to a lack of any recognition for children's rights, judges didn't take a child's best interests into account. In effect, the evidence over the harm to baby Ann didn't carry any weight. In the eyes of the Constitution and the court, the child was almost invisible.

In a sense, yesterday's case is less about an emotionally charged and heartbreaking struggle over the custody of baby Ann. It is about the wider issue of how the rights and wel- fare of individual children are neglected in the Constitution.

If ever there was a case which illustrated the need to provide for clear rights that protect the welfare of children, this was it.

One aspect of the case is the manner in which it shows the imbalance in the way children from marital and non-marital families are treated in the eyes of the law. If the natural parents of baby Ann never married, all likelihood is that the child would remain with its adoptive parents. However, because the couple married - a month before legal proceedings that led to the High Court case began - their family unit was able to avail of "inalienable and imprescriptable" rights contained in the Constitution.

The only way the State can intervene relating to children of a married couple is in exceptional cases where there has been a failure of duty on the part of the parents. This high threshold does not apply to unmarried couples and their children.

On first examination, this ruling comes at a convenient time for the Government which is embarking on a campaign to hold a referendum which would strengthen children's rights in the Constitution.

Children's rights can sometimes be a difficult and woolly concept to grasp. However, a case such as this illustrates starkly the consequences of gaps in the Constitution when it comes to children's welfare.

The Government's plan to hold a referendum has initially attracted widespread support and generated little opposition. However, the baby Ann case has put into focus how any attempt to protect children's rights could be seen as an attempt to undermine parents' rights.

On a political level, the baby Ann case could prove to be an early warning signal of what could become a bitter and divisive referendum if it is mishandled. A carelessly- worded amendment, for example, could spark fear and alarm over the spectre of social workers interfering unneces- sarily in families across the State.

It will be up to the Government to seek to ease these fears and illustrate how the absence of children's rights has had a serious impact on the welfare of some of the most vulnerable young people in the State. In child custody cases, separations, divorce proceed- ings, child abuse cases and adoptions, the rights of married parents tend to dominate above all else. The best interests of the child are an after-thought.

Their invisibility means the courts, as happened yesterday, have been making decisions that may be in a married parent's best interests - but not a child's.