How new wording might have helped other children

The proposed wording of a constitutional amendment on children’s rights has been broadly welcomed. But would its existence have changed the outcomes of previous high-profile cases?

IT HAS TAKEN more than 20 years, 17 major reports into child-protection failings and repeated promises from successive governments. But finally, this week, the Government announced that, next month, it will hold a referendum to strengthen children’s rights.

“For decades we have had a legacy of failing our country’s children,” Minister for Children Frances Fitzgerald said. “This referendum is the clearest statement the nation can make that that legacy is being left behind.”

It all sounds impressive. But will it really, as the Government claims, ensure vulnerable children are protected, that families are supported and that the children of the State are treated equally? Or is it just some feelgood rhetoric that will do little to change an underfunded and often-chaotic child-protection service?

In searching for answers it’s worth examining some of the key reports and court cases over the years where the issue of children’s rights – or their absence – was cited as a vital factor.

KILKENNY INCEST CASE

In March 1993 a Kilkenny father was jailed for pleading guilty to rape, incest and assault of his daughter over a 15-year period. The scale of the physical and sexual abuse was shocking. But disclosure that the victim had such extensive contact with the local hospital, social workers, GPs and public-health nurses was more chilling.

The Kilkenny Incest Investigation group, chaired by former Supreme Court judge Catherine McGuinness, found there were basic problems of poor communication, little consistent record-keeping and a lack of co-operation between arms of the State. But it also highlighted a significant legal stumbling block.

“We feel that the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children,” the report stated.

“We believe the Constitution should contain a specific and overt declaration of the rights of born children. We therefore recommend that consideration be given by the Government to the amendment of Articles 41 and 42 of the Constitution so as to include a statement of the constitutional rights of children.”

The Government says the proposed amendment does just this. It will help ensure children are protected from harm by setting out how and when intervention should occur. It will place the protection of children at the centre of decision-making, regardless of their parents’ marital status. It will also oblige the State to ensure that in “exceptional cases”, where safety and welfare are at risk because of parental failure, the focus will be on the impact on the child.

Those opposed to the referendum, however, say it will give too much power to a neglectful State and erode the rights of parents.

BABY ANN CASE

This child was born to an unmarried couple in July 2004 who decided to give their child up for adoption. Within days, the baby was placed in care; later, a couple were found who wished to adopt the girl.

Then, two years later, the unexpected happened: the birth parents withdrew their consent. They wanted their baby back. In a resulting High Court case, it was found that Ann should remain with her adoptive parents. The judge said Ann would be “psychologically damaged” if she was taken away from her adoptive parents. He held that her natural parents, while motivated by the best interests of their child, were guilty of a failure of duty to her.

But the Supreme Court overturned this decision. It ruled that the child be handed back to her natural parents. A crucial factor in the Supreme Court’s decision was that the Ann’s birth parents were married, having wedded a month before the High Court case. The Constitution affords special protection to the married family.

Under the Government’s proposed amendment, there will be an affirmation of each individual child’s inherent rights. Importantly, it provides that the rights and protections enjoyed by children are to be enjoyed by “all children, irrespective of their parents’ marital status”. As a result, there will no longer be discrimination against the treatment of children from married or unmarried families.

Those opposed to the referendum say the move will end up giving the State preference over parents in legal cases – although the planned amendment also states that the Constitution will continue to respect and preserve the rights of the family.

THE RYAN REPORT

Three years on and the findings of the Ryan report haven’t lost their capacity to shock. The sheer scale and longevity of the torment inflicted on defenceless children – more than 800 known abusers in more than 200 State-funded institutions during a period of 35 years – make clear that this was systematic abuse. Between 1936 and 1970 170,000 children were consigned to the 50 or so industrial schools.

The recommendations of the Ryan report point to the need for the needs of children to be foremost in all policies affecting children, to ensure children never suffer again in such a manner.

“Services should be tailored to the developmental, educational and health needs of the particular child,” the report states. “Adults entrusted with the care of children must prioritise the well-being and protection of those children above personal, professional or institutional loyalty.”

The planned constitutional amendment won’t change child policies, per se. But it will require that the interests of the child be made “paramount” in any court proceedings taken by the State relating to child protection, adoption, guardianship, custody and access.

Supporters of the proposed constitutional change say such a move could also help bring about the kind of cultural and political change that ensures there is a greater focus on these issues through our childcare policies. Again, opponents argue that this will give the State even more power to neglect young people.

ADOPTION OF CHILDREN

An estimated 2,000 children have been in foster care for long periods of time, with little or no contact from their birth parents.

In practice, however, they’re not eligible for adoption. This is because of the Constitution’s protection of the marital family. The threshold for adoption is so high that parents would need to be found guilty of effectively abandoning their children – a very rare occurrence.

The Government has produced draft legislation, to be enacted if the referendum is passed, that will ensure there is no longer discrimination between the adoption of children from marital and nonmarital families.

The Bill sets out in detail rules about voluntary adoptions and the adoption of children in foster care as a result of serious and persistent parental failure.