Many of the Government's stated objectives in its proposed constitutional amendments affecting the rights of children have already been addressed, writes Dervla Browne.
It is difficult to understand what the Government hopes to achieve by paragraphs 1 to 4 of the proposed new Article 42A of the Constitution. It is not true to say that the proposals would, for the first time, allow adoption of children of a marriage.
Since the enactment of the Adoption Act, 1988, long-term foster carers have been able to apply to adopt a child in their care, whether or not the child's parents are married. The grounds for so doing are similar to those set out in the proposed wording of Article 42A (paragraph 2.2) but also include a requirement to prove that the failure amounts to abandonment and is likely to continue until the child reaches 18, when adoption is no longer a possibility.
One could be forgiven for believing that there is no present requirement on the courts, in dealing with matters such as adoption or custody, to place "the best interests of the child" at the forefront of its considerations. But this is already required by the Guardianship of Infants Act, 1964, and in the adoption legislation.
Indeed the statement in proposed Article 42A 1, that "the State shall vindicate the natural and imprescriptible rights of the child", creates the impression that at present there is no such duty and there are no such rights. But as far back as 1980, in the case of G vs An Bord Uchtála, Mr Justice Brian Walsh stated that all children had the right to have their welfare and health guarded. These same natural and imprescriptible rights are referred to in the relevant childcare legislation.
The only provision not already contained in our legislation is that proposed in paragraph 3 of Article 42A, which enables any child to be voluntarily placed for adoption. This would enable the Oireachtas to enact legislation that would allow married parents to agree to their child being adopted. If such legislation was enacted it would undoubtedly assist where married parents of a child in long-term care could consent to the adoption, rather than the court having to decide. Otherwise it would appear to be of little relevance.
Voluntary placements of Irish children have decreased dramatically in recent years. There were 109 placements through adoption societies in 1995. This dropped to just 26 in 2004. If more and more single mothers no longer wish to place their babies for adoption, it is even more improbable that couples who have committed to marriage would wish to do so.
It is certainly the case that children born into a married family have rights expressly stated in Article 42 of the Constitution to grow up in and be educated by that family. The proposed amendments do not clearly state that children born outside marriage have the same right.
Some commentators have stated that the present difficulty with the Constitution is that the courts are asked to balance parental rights against the rights of the children. Perhaps by inserting Article 42A the Government may intend to in some way "correct" that balance. If so, the proposed wording does not appear to achieve this result. In any event it may be that this is the wrong view to take of the position of children in the Constitution.
In the "baby Ann" case Mr Justice Adrian Hardiman specifically referred to "public airings of misapprehensions relating to the position of children in the Constitution". He thought it was untrue to say that the Constitution puts the rights of parents first and those of children second. "The Constitution does not prefer parents to children.
The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child's rights," he said. He went on to acknowledge that the Constitution allowed State intervention where the parents had failed in their duty. He said, "a presumptive view that children should be nurtured by their parents is in my view itself a child-centred one".
The underlying ethos of the Irish system of childcare is to reunify the family where possible. The emphasis is on continuing the bond between parents and child after the child is in care. Foster care, not adoption, is the alternative where it is not possible for the child to stay at home. Intervention by the State in family life giving rise to permanent termination of family ties is severely limited. Even where the child is not a child of marriage there is an acknowledgment of the right of the child to grow up knowing his or her family.
In contrast, in the United Kingdom, applications are made on a regular basis to free children in care for adoption on the basis that this is in their best interests.
In the year ending March 2006, 3,700 children were adopted from care. Sixty-four per cent of these children were aged 1-4 years. The aim in the UK is to free increasing numbers of children in care for adoption.
The ethos in the English system was put in sharp focus by the case of London Borough of Sutton vs RM. In 2002 the High Court was asked to return three children to the care of the London Borough of Sutton after their married parents had brought them to Ireland. Although she had a drug addiction the mother was receiving treatment, and had been a good carer of her children when well. Even though psychiatric and social work reports all stated that the children had very strong family links and, in particular, not withstanding their mother's drug addiction, they had a strong attachment to her, the London Borough of Sutton openly acknowledged that the two younger children had been advertised as being available for adoption.
The criteria for making a decision about their adoption in England would fall far short of the requirements under Irish law. The High Court refused to order the return of the children, relying on the possibility of their adoption as one of the reasons for the refusal. Similarly, a cursory look at the jurisprudence of the European Court of Human Rights demonstrates the widespread practice in other European countries of freeing children in care for adoption.
There is another difference between the Irish system and that in many other countries. There is no legal basis for open adoption in this country. Adoption in the Irish context is the permanent termination of parental rights. Even if a parent has had ongoing access to a child in long-term care, and has had some meaningful involvement in making decisions about his or her welfare, the adoption order will of necessity bring this to an end.
After adoption, natural parents cannot apply for and obtain enforceable orders for access to their children, even where they have previously exercised access to their children on an ongoing basis. This has been the subject of comment by the Adoption Board in its annual report.
The vast majority of children in care come from poor and deprived backgrounds. Poverty is one of the highest indicators in children's mental health problems. In considering whether or not to lower the threshold for State intervention, we must acknowledge that it is these same children who will most likely be affected. Surely we should ensure that lack of resources can never be a reason why children are placed in care, perhaps never to return home.
Parents who need assistance from the health services must be secure in the knowledge that everyone is working with the aim of their child returning home. The wishes of children in disputes about where they will live should not be influenced by the socio-economic differences between the two families.
It may be that a constitutional amendment could be used as a weapon to coerce the State to resource children in need or to litigate on behalf of children who are impoverished and marginalised. But it is unlikely that this proposed amendment, as currently worded, constitutes such a weapon.
Dervla Browne SC specialises in family and adoption law