The following is an edited version of the foreword by Mr Justice John Murrayto the latest edition of 'Child Law' by Geoffrey Shannon
GIVEN THE rapid rate of change in child law over the past five years, producing this edition must have been somewhat akin to painting a bird in flight.
Not only has domestic legislation and case law developed apace in the five years since publication of the first edition, the past five years have also witnessed increasing internationalisation of child law, and the author has also analysed the potential effects of proposals which are current – in particular, the proposal in the final report of a Joint Oireachtas Committee to amend the Constitution with regard to the rights of children.
The author has not contented himself with simply updating his first edition to take account of these developments, but has greatly expanded on it, looking at various aspects of child law in significantly more depth, and adding chapters which address issues not covered in the first edition. In particular, greater analysis of the law as it concerns child sexual abuse, and a new chapter on migrant children, child refugees and asylum seekers, trafficked children and separated children, are welcome additions, providing an insight into how the law affects some of the most vulnerable children in society today.
Combining doctrinal and comparative analysis with practical, and sometimes polemical, commentary, as well as frequently juxtaposing the current state of the law with the author’s proposals for reform, the result is a work that is part textbook, part call to action. It provides not only an extremely useful reference for professional practitioners, academics and students alike, but speaks to a wider audience outside the legal community.
Indeed it is often in the nature of even the most worthy commentaries on the law, such as this work, that the author will urge expansive changes in the law even if they do not correlate with embedded legal principles beyond which the courts are precluded from going without legislation and even beyond that which the legislators, or the public, might currently find acceptable. In parts, this is what this book may be viewed as seeking to do. It adds to the value of the work, promoting as it does, in this context, reasoned debate and discourse which may be a catalyst for change in at least some of the directions signposted by the author.
The writer at all times surveys the law with his own critical eye, his key observations including: that domestic law in the area of child rights falls far short of Ireland’s international obligations; that Irish law is out of sync with Convention jurisprudence; and, in particular, that the Constitution “focuses on the nuclear marital family and does not countenance other family forms outside of this”. A prevailing motif running throughout the book is the tension in constitutional law between the recognised status of the family as an institution, and the individual rights and independence of the child.
At the same time, it is undeniable that the welfare of the child has always been centred on its membership of the family, and that the family’s special status as an institution in the Constitution is not unique to Ireland.
Various other international instruments and national constitutions such as the International Covenant on Civil and Political Rights and the constitutions of Greece, Germany, and Switzerland, to name but a number of our fellow EU member states, all recognise the importance of the family as an institution that warrants special protection.
The family, as an institution, has always been considered the cradle which best provides the nourishment and support which children require to achieve their full potential as human persons. Adoption into a family, where circumstances so warrant, has always been considered superior to other options such as care in State institutions.
The ideals of family life cannot, of course, be achieved where there is family breakdown, neglect, abuse or mistreatment, but this does not take away from the considerable force of the ideals themselves, nor does it negate the common approximation of those ideals in everyday life. Parenting, as the author recognises, is an inexact science, and the State should proceed with caution in protecting the interests of children, in order to ensure as far as possible that the integrity of the family unit is not unduly undermined.
Acrimonious disputes between parents centred on care and custody of children can provide the courts with the most intractable and painful decisions. Children have rights and needs, and these are first and paramount considerations. But so do both parents. These issues are most likely to be best resolved in the interest of the child and to the satisfaction of the parents through mutual agreement.
As is universally recognised, mediation, particularly in advance of the “locking of horns” in legal proceedings, is of primary importance in achieving this. Yet minimal provision is made legally or administratively for the role of mediation in disputes concerning childcare and the family. It is therefore unsurprising that it is not a topic which attracts major attention in a book of this nature.
It is inevitable that different people will take divergent views as to where the line between State intervention and the autonomy of the family should be drawn as a matter of policy, both on a general conceptual level and in difficult individual cases. However, whether one might agree with every argument in this book, it stands out as an impressive and much-needed reference on the law as it relates to one of our nation’s most valued resources.
Child Law
is published by Round Hall at €425 (reductions for charities and non-profit organisations) and has 1,236 pages