The proposed child amendment will help provide a more modern framework for the implementation of policies to support children, writes Geoffrey Shannon
As a solicitor who has advocated for over a decade reform of our adoption laws and of the rights of children, I feel compelled to respond to the article by Dervla Browne SC in this paper (Feb 24th).
This response is intended to contribute to an open debate on the proposed wording for a referendum on the rights of children. Ms Browne asserted that "many of the Government's stated objectives in its proposed constitutional amendments affecting the rights of children have already been addressed".
I disagree with her analysis of the proposals contained in the 28th Amendment to the Constitution Bill: the changes proposed relate to issues that can be resolved only by constitutional change. They are necessary and require a referendum. However, I will confine my comments to two issues: the adoption of children in long-term foster care and the "best interests of the child" principle.
Provision 2.2 of the proposed amendment allows for the adoption of any child where there has been a failure of parental duty for such a period as prescribed by law and where the best interests of the child so require. The Adoption Act 1988 does provide for the adoption of children of marriage. However, the drafters of the 1988 Act relied heavily on the text of article 42.5 of the Constitution. In fact, the test for parental failure set out in the 1988 Act makes it virtually impossible for a child of marriage to be adopted.
The grounds for adoption under the 1988 Act are not similar to those set out in provision 2.2. On the contrary, this is an enabling provision that will allow for a revision of the basic principles of the 1988 Act. Under that Act, adoptions can only occur where the High Court is satisfied there has been total failure, for physical or moral reasons, by parents in their duty towards the child for the previous 12 months, that the failure is likely to continue without interruption until the child reaches 18, and that the failure constitutes an abandonment on the part of the parents of all constitutional rights.
The result is that the availability of adoption to children whose parents are married has been severely circumscribed. Only a handful of such adoptions have taken place. The profound irony of this situation is that it is easier, by means of adoption, to vindicate the interests of a child born outside of marriage to be part of a caring, stable family unit, than it is to secure the same rights for a child of marriage.
The "Outline of Legislative Proposals", published alongside the Amendment Bill, indicates that a legislative definition of the term "abandonment" will be introduced. This will be an advance on the current position where the absence of a definition leads to situations where children may find themselves trapped in a legal limbo between intervention and adoption, where the State has removed a child from his or her parents in the interests of the child's welfare, but is unable to have the child adopted by another appropriate family.
Ms Browne alludes to the experience in the UK where children can be adopted with relative ease. We must learn from the UK experience in adoption and avoid its mistakes. The experience in the UK should not, however, immobilise us. Surely we can find a solution to this issue by setting out criteria for the adoption of children that are less stringent than those currently in operation but stronger than in the UK.
Through the Irish Foster Care Association I have met several children in long-term foster care who have told me of their desire to be given a "second chance" for permanent family life with their foster carers. Many of these children came into care when very young and have grown up with little or no regular contact with their birth parents. They deserve the opportunity to experience the stability and security that adoption arguably affords.
In relation to provision 4, I agree with Ms Browne that legislation currently exists to provide that the best interests of the child shall be secured in any court proceedings concerning the adoption, guardianship or custody of, or access to, any child. However, it is clear from the case law in this area that section 3 of the Guardianship of Infants Act, 1964, may be vulnerable to constitutional challenge. Conflicting court judgments have raised concerns about the ability to apply the "best interests of a child" principle where there is a dispute between parents and a third party (such as a grandmother or a foster parent) who has custody of the child. This is due to a potential conflict between section 3, which provides that the welfare of the child shall be the first and paramount consideration, and articles 41 and 42 of the Constitution, which grant "inalienable and imprescriptible" rights to parents in relation to their children. A recent Supreme Court decision, detailed by the Information Commissioner in this paper last September, highlighted the need to address issues in this area.
Ms Browne draws attention to the fact that the "vast majority of children in care come from poor and disadvantaged backgrounds". There is a clear need to tackle poverty and inequality and specifically to strengthen supports to children and families where a child is at risk of being, or has been, taken into care. In this regard, the word "proportionate" should be inserted into provision 2.1 of the proposed amendment so that it reads: "The State as guardian of the common good, by appropriate and proportionate means, shall endeavour to supply the place of the parents."
An onus would thereby be placed on the State to ensure that the first point of State intervention would be family support, unless exceptional circumstances made this inappropriate. The principle of "proportionality" is central to the European Convention on Human Rights, and European Court of Human Rights judgments, such as K and T v Finland, make clear deprivation of parental rights and access should occur only in exceptional circumstances and where the range of alternatives is manifestly unsuitable. Alternatives should be fully considered and the courts must be satisfied that no less radical measure could achieve the necessary end of protecting the child.
The Constitution provides us with a framework for our legislation, judicial decisions, administrative practices and societal values. However, the "doctrine of the separation of powers" limits its capacity to dictate the nature of services and supports for children. Nevertheless, constitutional reform in the areas covered by the proposed amendment will provide a more modern framework for the implementation of policies to support children and to vindicate their rights. The provisions will allow us to build a better and brighter future for the lives of children in Ireland.
Geoffrey Shannon is a solicitor and author of Child Law (Thomson Round Hall, 2005)