ANALYSIS:The Roscommon abuse case has brought renewed focus on the need for a children's rights amendment to the Constitution, writes Legal Affairs Editor Carol Coulter
IT IS now 16 years since Judge Catherine McGuinness, as she then was, recommended a constitutional amendment to protect the rights of children in the context of the family.
This arose from her report on what was known as the Kilkenny incest case, where a man had sexually abused his daughter over a number of years and the social services felt constrained from intervening in the family because of the protection given to it by the Constitution. Article 41 guarantees to protect the family and the institution of marriage “on which the family is founded”. Thus only the marital family has specific recognition.
Article 42.5 states: “In exceptional cases, where the parents for physical or moral reasons, fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptible rights of the child.”
In her report McGuinness said: “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.”
There have been a number of cases that have tried to tease out the relationship between these two sets of rights. In 1985 the then chief justice, Mr Justice Finlay, considered that the rights of the child, whose parents were married, were to be a member of a family, to the protection by the State of the family to which the child belonged, and the right to be educated by the family.
Only in “exceptional cases” of parental failure towards their children could there be interference from the State.
The limitations on this have also been examined by the courts. For example, in a case known as HW, the Supreme Court upheld a decision of parents not to allow their baby undergo a heel-prick test to identify a number of serious childhood illnesses, though the court accepted that this test was, in medical terms, “unquestionably in the best interests of the infant”.
Mr Justice Murphy commented here that, under the Constitution, “the failure of parental duty which would justify and compel intervention by the State must be exceptional indeed.” Elsewhere such exceptional failure has been defined as an immediate threat to the health or life of the child, who does have rights as a citizen under the Constitution. However, these rights are mediated through the parents in the marital family.
Where the child of unmarried parents is concerned, the welfare of the child is paramount, leading lawyers such as child law expert Geoffrey Shannon to conclude that the children of unmarried parents have a higher level of protection from the State than those of married parents.
“The result of this is that neither the courts nor the relevant State authorities are entitled to act in situations in which welfare-adverse treatment of the child exists, but does not satisfy the designated constitutional criteria,” he told The Irish Times.
Other judgments have stressed that parents do not have the right to abuse their children, and that children have the right to have their views taken into account in certain proceedings, opening up the possibility that the courts might, in the future, rebalance the rights of children and the authority of married parents.
The revelations in Roscommon Circuit Court this week revealed that the mother in a marital family obtained an injunction restraining the health board from intervention in her family.
While we do not know the details, this highlights the fact that the threat of seeking such an order, backed up by considerable judicial authority setting a high threshold for State intervention, could have a “chilling effect” on overworked social workers.
The vast majority of children are best off being cared for by their families, and this requires constitutional recognition. But so does the right of children, who by definition are dependent and vulnerable, to have their welfare the paramount consideration of organs of the State when it makes decisions concerning them, irrespective of their family status.