ANALYSIS:The courts have been reluctant to rule on a situation where the rights of the child conflict with the rights of the constitutional family, as they clearly did in this case, writes CAROL COULTER, Legal Affairs Editor
IT IS ironic that the conviction of a man for the rape of his son, following the conviction last year of his wife for incest with another son, comes on the eve of the publication of the text of a constitutional amendment to protect the rights of children.
Since the first inquiry that examined the protection of children in Irish law, the 1993 Kilkenny incest inquiry, the inhibitions placed on those charged with child protection by the constitutional protection of the marital family has been a live issue.
Chaired by then Judge Catherine McGuinness, the inquiry recommended “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 Constitution guarantees to “protect the Family in its constitution and authority”. Only “in exceptional cases, where parents for physical or moral reasons, fail in their duties towards their children”, can the State intervene to “supply the place of the parents”. The article in question continues: “with due regard to the natural and imprescriptible rights of the child”.
However, these rights are not specified in the Constitution, and the courts have been reluctant to rule on a situation where the rights of the child conflict with the rights of the constitutional family, as they clearly did in this case.
While children have rights as citizens, they are minors and cannot legally access these rights except through their families or guardians. What can they do if their rights conflict with those of their parents?
The 1991 Child Care Act introduced a legal structure enabling health boards to take a range of steps to promote the welfare of children. The emphasis is on supporting the family. The normal court where such legal steps are taken is the District Court, where supervision orders (supervising the child in his or her own home) and care orders (providing for foster or other care outside the home) are brought by the health board.
Under this Act, the child’s interests are “the first and paramount consideration”. However, it is also recognised that in general, the child’s interests will best be met within the family. The constitutional emphasis on parental rights, without any definition of the rights of the child, has left the authorities without any clear guidance on what to do where the family is not upholding the child’s welfare, but where it is difficult to establish a “failure” for “physical or moral reasons”.
A novel feature of this case is that it appears that the health board responsible, which was aware of problems in the family from the early 1990s, was paralysed by a High Court action taken by the mother with the help of an unspecified “right-wing organisation” to prevent it from intervening in the family.
Four further abusive years passed before anything meaningful was done.
As far as can be ascertained, the “organisation” supporting the mother was the collection of individuals around Mina Bean Uí Chroibín.
It is unclear how she came to know of this family. Mina Bean Uí Chroibín is not a lawyer, and it is astonishing that her intervention might have produced such paralysis in the health board.
What this episode reveals is the need for clarity on children’s rights. While the Child Care Act does offer a framework for intervention, it operates within a constitutional ambiguity: what happens when the rights of the family and the rights of the child collide? What are the rights of the child, so that in such a situation a court has constitutional guidance to enable it to override the rights of the family, if necessary?
The constitutional amendment to be unveiled today will leave the article emphasising the rights of the family untouched, while elaborating on the rights of the child in the succeeding article, entitled Education.
Hopefully, that will be sufficient to remove any doubt from the minds of those working with vulnerable families as to what the priorities are.
But none of this will be of any use without the resources to ensure that support is available for vulnerable families, and especially for the children. Sporadic visits from social workers will not be enough. Time and again, children have been failed by a lack of resources, and no amount of inquiries, no changes in the law, can fix this problem.