The Government is considering a Constitutional amendment which would ensure the welfare interests of a child prevail in court following yesterday's Supreme Court ruling that a two-year-old girl be returned to the custody of her birth parents.
The girl, known as Baby Ann, was offered up for adoption by her parents who were unmarried at the time. The parents withdrew their consent for the adoption and married a month before the High Court proceedings. The five-judge court unanimously upheld an appeal by the natural parents of the girl against a High Court decision directing that Ann remain with her would-be adoptive parents.
The Supreme Court ruled that the child must be returned to her natural parents on a phased and sensitive basis to be decided by the court in line with professional advice. This was a reversal of the High Court judgment when, in a significant ruling earlier this year, Mr Justice John MacMenamin ruled that 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. Yesterday the Suprem Court rejected these findings. A crucial factor in the court's decision, Ms Justice Catherine McGuinness noted, was that, in light of her birth parents' marriage and the provisions of the Adoption Act, there was now "no realistic possibility" that Ann could be adopted by the couple.
Minister for Children Brian Lenihan said the judgment brought into focus the wisdom of the Government's decision to propose a referendum on the status of children in the Constitution.
He said: "I believe [the judgment] may have implications for the content and wording of any constitutional change. I will also examine the implications of these judgments for legislative change in the adoption code."
Part of this review will focus on ways to ensure the best welfare interests of a child prevail in court and that children of marital and non-marital families are treated equally in the eyes of the law, The Irish Times understands.
Solicitor and child law expert Geoffrey Shannon said the case underlined the need for change.
"The case raises general issues about the absence of children's rights in the Constitution and the serious impact this has on vulnerable children," he said.
The Irish Foster Care Association expressed concern at how this decision would affect the child and how removing a two-year-old from her prospective adoptive parents could do "untold damage".
The Children's Rights Alliance said the judgment was "a clear example of why we need to amend the Constitution to provide for children's rights".