A subtle change to protecting children

The no side in the referendum claims the State would remove children from loving homes. But will it, asks Conor O’Mahony

IN A referendum campaign that has not been especially contentious, one of the few issues to generate any amount of discussion is whether the constitutional amendment on children will give the State more power to intervene in family affairs and override parental authority.

The single biggest reason given by opponents of the referendum to vote no is that the amendment will allow the State to remove children from loving and caring homes, or to impose decisions on sensitive personal or medical matters over the objections of their parents.

This has been the rallying cry of the most vocal opponents of the amendment, such as Kathy Sinnott, John Waters, and Mary Ellen Synon, as well as groups such as the Christian Solidarity Party. Does the claim survive detailed legal scrutiny?

At present, article 42.5 of the Constitution provides: “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 for the natural and imprescriptible rights of the child.”

It is proposed to replace this with a new provision, article 42A.2.1, which will provide: “In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State, as guardian of the common good, shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

The first thing that should strike the reader is how similar these two provisions are. There are only two differences that might affect the question of whether the power of the State to intervene will be greater if the amendment is passed. The first is the description of parental failure, which changes from “for physical or moral reasons” to “to such extent that the safety or welfare of any of their children is likely to be prejudicially affected”.

The amendment shifts the focus from the reason for parental failure to the effect of that failure; but is unlikely to change much in practice.

Existing legislation governing State intervention (namely the Child Care Act 1991) already requires that child’s “health, development or welfare” is or is likely to be “avoidably impaired or neglected” before a child is taken into care. The amendment seems to do little other than harmonise the language used in the Child Care Act and in the constitutional provision that authorises that act.

The second change is the shift from intervention by “appropriate means” to by “proportionate means”. The real difference here lies in the fact “proportionate” is a well-established legal term that implies a relationship of proportionality between the severity of any interference with rights and the importance of the aim being pursued by that interference. It also implies that intervention goes no further than absolutely necessary. In the context of child protection, the idea is that the more pressing the need is to intervene to protect a child, the more serious the form of State intervention that can be justified (and vice-versa).

Under the proportionality test, excessive State intervention that goes further than absolutely necessary to protect children will be deemed disproportionate by the courts. If a supervision order will safeguard the child’s welfare without removing the child from the home, then that is the proportionate step to take. Conversely, if a child’s welfare cannot be protected without being removed from the family home, then the proportionate State response to that child’s needs is to seek a care order. This balancing act protects the interests of both children and parents, and seeks to place more emphasis on earlier, less intrusive intervention in the form of family support and less emphasis on crisis intervention, when the damage may have already been done.

In practice, State intervention to protect children takes the form of applications for care orders or supervision orders in the District Court. In these pro-ceedings, the focus tends to be far more on the Child Care Act than on the Constitution; the role of the Constitution is largely a background one that frames proceedings and places them in a context of constitutional rights. Crucially, the Child Care Act expressly acknowledges the constitutional rights of parents — and these rights, under article 41 of the Constitution, will not be changed in any way by the amendment.

Taking all of this into account, the changes to the constitutional provisions governing state intervention in families are rather subtle, and only one part of a complex picture where the Child Care Act 1991 spells out the real detail. If the amendment is passed, intervention will still have to be justified in the district court, on the balance of probabilities, by reference to a need to safeguard the child’s welfare. Parents will have the same constitutional rights, and the same right to defend proceedings and challenge evidence presented by the HSE, as they have at present.

Therefore, court-ordered intervention will still be reserved to cases where it is demonstrably necessary to protect a child from neglect or abuse. It seems unlikely the State will have any more (or any less) power to intervene if the amendment is passed. The real question is whether the Government will take seriously the supposed shift to earlier and less intrusive interven-tion by channelling the necessary resources to family support services.

* Dr Conor O’Mahony lectures in constitutional law at University College Cork.

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