The Baby Ann case highlights the need to amend the Constitution to give express recognition to the rights of the child, writes Ursula Kilkelly
Yesterday's Supreme Court judgment in the Baby Ann case has thrown into sharp relief the relevance of the Constitution to children and their families and the need to address its current imbalance by giving express protection to the independent rights of the child.
Baby Ann (not her real name) was born in 2004 to young unmarried parents who placed her for adoption almost immediately. In November 2004, at the age of three months, she was placed with foster carers with whom she has since lived. The child's mother, in particular, appeared to have continuous difficulty with this decision and in January 2006 the girl's parents married and began the process of having Ann returned to them. At issue in these proceedings was Article 42.5 of the Constitution, which provides that in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State shall endeavour to supply the place of the parents with due regard to the natural and imprescriptible rights of the child.
According to Mr Justice MacMenamin in the High Court in September 2006, Ann's parents, although unblameworthy, were considered to have abandoned their child by placing her for adoption and there were compelling reasons why her welfare could not be achieved in their custody. These related principally to the extraordinarily level of attachment that Ann had developed to her adoptive parents and factors which suggested that transfer of custody could not successfully be undertaken without causing Ann emotional and psychological harm. He ruled that Baby Ann's placement with her adoptive parents was lawful and that the adoption should proceed.
Yesterday, not unexpectedly, the Supreme Court overturned this decision and ordered the return of Baby Ann to her natural parents. The court gave two principal grounds for its decision. The first, according to Mr Justice Fennelly, was that there must be "a clearly demonstrated failure of [ parental] duty before the State may exercise its power to supply the role of parents". However, the court found no evidence of such failure to exist in this case and, in particular, found that the placement of the child for adoption was insufficient for this purpose.
Secondly, the Supreme Court disagreed with the emphasis placed by the High Court on the difficulties envisaged in returning Ann to her natural parents. Clearly, significant time had elapsed during which Ann had bonded significantly with her adoptive parents and, according to expert evidence, faced a risk of serious psychological and emotional harm should she be removed at this stage of her life.
As Mr Justice Hardiman explained, however, the fact that the child's natural mother had withdrawn her consent to her adoption more than 13 months ago meant that responsibility for the lapse of time could not solely be laid at her door. Indeed, Mr Justice Hardiman criticised the authorities for not responding to the withdrawal of her consent with "a proper level of urgency and seriousness".
Neither the High Court nor the Supreme Court decision was reached without serious concern for the enormity of the dispute before the court and the interests and rights of all the parties. In an unusual move, the Supreme Court is to give consideration next week to how the transfer of Baby Ann is to be achieved successfully. Moreover, there is little doubt, as noted by Ms Justice McGuinness, that the decision is the correct one under the law as it currently stands. This notwithstanding, the decision raises a number of concerns.
Firstly, it confirms the dominant position of the family based on marriage in the Constitution. There is little doubt that the Supreme Court would not have reached the same conclusion had Ann's parents remained unmarried.
Secondly, the case provides real evidence of the virtually invisible status of the child in the Constitution. This invisibility is highlighted by Ms Justice McGuinness who notes as the striking feature of the case that "the one person whose particular rights and interests, constitutional and otherwise, were not separately represented" was the child herself.
While this invisibility could have been ameliorated, to some extent, by the appointment of legal or other representation to put forward the case from an independent perspective, the legal paradigm within which the case was decided also requires attention. In particular, the case illustrates that the starting point of the decision about Ann's future was not what was in her best interests, but rather whether the behaviour of her natural parents constituted "failure" to fulfil their constitutional duty to her.
This is a high threshold which, as the case highlights, is extraordinarily difficult to satisfy. Yet, the only constitutional test available in these cases frustrates express, detailed consideration of what is in the child's interests and which approach would better ensure full protection of her rights.
According to the Convention on the Rights of the Child, to which Ireland along with 191 other states is a party, these rights include the right to life, survival and development; the right to non-discrimination in the enjoyment of rights, the right to grow up in a safe family environment; the right to be protected from harm; the right to have decisions taken in the child's best interests; the right to be heard, directly or indirectly through representation in all matters concerning the child, and the right to know and be cared for by one's parents.
Consideration of these rights may well pull in opposite directions but, at least where they have constitutional expression, the court is provided with the mechanism to fairly and proportionately resolve this conflict, and to weigh these rights carefully against the rights of the parents involved.
There is no evidence that the court would reach a different conclusion in a reconsideration of this case using a children's rights-based analysis, but the process would at least ensure detailed consideration is given to the rights of the child.
A further point raised by this case is the failure to put in place more modern, moderate options for providing alternative care for children in these circumstances. Provision for open adoption and long-term, legally-recognised fostering arrangements is something to which the Government must turn its attention without further delay.
Beyond the tragic circumstances of this case, it highlights clearly the need to amend the Constitution to give express recognition to the rights of the child. The Taoiseach gave a commitment only a week ago to holding a referendum to effect such change. This case explains why this is urgent, and why a rights-based, child-focused approach to this issue is so important.
Dr Ursula Kilkelly is senior lecturer at the Faculty of Law, University College Cork