THE STATE will have to make provision by law for the representation of children in court proceedings affecting them if the children’s amendment is passed, according to child law expert Geoffrey Shannon. This could include separation and divorce proceedings.
He also said he expected it to reduce the number of children going into care.
At the moment there is no obligation on courts to hear the views of children, though in childcare proceedings a child’s representative may be appointed by the court.
In cases in the High Court under the Hague Convention on Child Abduction, where international law requires the views of the child to be taken into account, it has become the norm for these to be ascertained through a child psychologist. However, these are relatively rare.
In private family law proceedings, involving separation, divorce, custody and access, a provision exists for the appointment of a child representative, but this has not been activated. Instead the court occasionally orders a report on the situation of the child from a psychologist or social worker.
The proposed children’s rights amendment states: “Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to [above] ... in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.”
Mr Shannon, the Government’s rapporteur on child protection and author of Child Law, told the International Bar Association conference yesterday that the proposed amendment had “huge potential” for improving the position of children.
The amendment would remove the existing discrimination in rights between the children of married and unmarried parents, he said, which had been explicitly referred to in a recent High Court judgment by Mr Justice Sheehan.
“State intervention will be much more child-focused. The reference to the criterion of the welfare and safety of the child being prejudicially affected, along with the reference for ‘proportionate’ State intervention, will impose onerous obligations on the State to provide family support.
“This will lead to less children coming into care as the default position will be family support,” he said.