The Constitution should be amended to give children legal rights as individuals, according to a report published by the Law Society today. It also recommends the setting up of a State-funded system of specially trained guardians ad litem (to represent the interests of children in court proceedings).
The report states that Article 41 of the Constitution protects the family based on marriage only, and the rights guaranteed by it belong to the family unit, rather than individuals in it.
There is an apparent contradiction between the Constitution and the 1964 Guardianship of Infants Act, which states that the court shall have regard to the welfare of the child as the first and paramount consideration, it says. This has been reconciled by the judiciary finding that the welfare of the child is to be found within the confines of the Constitution.
"The focus is not on actively promoting the welfare interests of the child, but merely with ensuring that these are not seriously impaired," it says. "This approach is attributable to the wording of Articles 41 and 42 of the Constitution."
It recommends a guardian ad litem service made up not of lawyers but of professionals with experience in childcare and knowledge of the law in the area. At the moment there is no regulation, supervision or accountability of guardians ad litem, and the matter is left in the hands of individual judges. "A child who is a subject of, or significantly affected by, the outcome of court proceedings has a right to age-appropriate representation at these proceedings," the report says. It recommends both a guardian ad litem and a solicitor for the child in such proceedings, with the solicitor taking instructions from the GAL about the child's wishes and best interests. The report was drawn up by a working group consisting of solicitors Ms Barbara Hussey, Ms Sinead Kearney and Mr Geoffrey Shannon, psychiatrist Dr Gerard Byrne, psychologist and family therapist Mr Brian Smith and Ms Trish Walsh, social worker and lecturer.
It will be issued at a conference today to be addressed by the EU Commissioner, Mr David Byrne, the Attorney General, Mr Michael McDowell, the Minister of State for Health and Children, Ms Mary Hanafin, and Mrs Justice Denham.