The child rights provision requires evidence of abuse and neglect before children are placed in care or adopted, writes Conor O’Mahony
Q: So what exactly is this referendum about?
A: The referendum is about whether we want to insert a new article into our Constitution which deals with the rights of children and sets out a number of obligations for the Oireachtas and the courts with respect to the law on children. It addresses issues relating to the duties and powers of the State to intervene to protect children who are being neglected or abused; the placement for adoption of children whose parents are married; and the principles that govern court cases in which there is a dispute over the care of children.
Q: How would the proposed amendment change existing law?
A: The proposed amendment would insert a new provision into the Constitution recognising the rights of children and obliging the State to defend and vindicate those rights. It would rephrase Article 42.5, which sets out the circumstances in which the State may intervene to protect children whose parents are failing them. It would make provision for the adoption of all children (regardless of the marital status of their parents), either by consent of the parents, or where the parents have failed their children for a period of time to be prescribed by law and where the best interests of the child so require.
The amendment would also oblige the Oireachtas to pass laws stating that in court proceedings concerning child protection, guardianship, custody, access or adoption, the best interests of the child shall be the paramount consideration for the court. It would also oblige the Oireachtas to pass legislation providing that in those same court proceedings, the views of the child shall be ascertained, and given due weight having regard to the age and maturity of the child.
Q: So what would happen in practice if we vote yes?
A: The biggest concrete change that would occur is that children of married parents who are in long-term foster care would become eligible for adoption if their parents have not been caring for them for the past three years, there is no reasonable prospect of the parents resuming care of the children and the best interests of the children requires that they be placed for adoption.
Under current law, such adoption is only possible if it can be proved the parents will not care for the child at any point before the age of 18. This is effectively impossible to prove, and as a result, many children remain in foster care for years without having any formal legal relationship with their foster parents, which has implications regarding issues such as consent to medical treatment and inheritance rights.
The amendment would also ensure that the views of children are heard in all court proceedings concerning child protection, guardianship, custody, access and adoption. Currently, this is only possible in child protection proceedings, and not in cases between two parents; and the court has discretion as to whether to seek the child’s views. The amendment would make it mandatory to do so in all of the above proceedings. The remaining elements of the amendment reflect existing law and practice and make little practical difference by themselves; any real changes will come in the form of future legislative or policy changes rather than from the amendment.
Q: What would happen if we vote no?
A: If we vote no, children of married parents in long-term foster care will remain effectively ineligible for adoption. The remaining elements of the amendment could, in theory, be implemented without the need to amend the Constitution as there is nothing in that document that would prevent this from happening. However, the political reality is that it is unlikely that the Oireachtas would seek to pass laws that the people had voted against in a referendum.
Q: The aim of the referendum is to give children greater rights and protections under Irish law. But aren’t children already afforded those protections under EU law — such as the references in the Lisbon Treaty to the rights of the child?
A: While the Lisbon Treaty introduced a Charter of Fundamental Rights that includes reference to the rights of children, this charter only applies to EU law. This means that it obliges EU law to be consistent with children’s rights, but the rights of children set out in the charter do not apply in cases that do not involve any EU law issues. The vast majority of family law issues are governed by domestic Irish law and do not involve any EU law, meaning that the EU charter does not apply. The amendment, if passed, will apply to all family law proceedings in Irish courts.
Q: The amendment proposes that the State be allowed to intervene and take the place of parents “who fail in their duty towards their children”. What, by law, is the definition a parent’s duty of care? Who determines whether they have failed in their duty?
A: Irish law does not currently define either parental responsibility or parental failure; instead, it sets down conditions that must be met before State intervention can be justified. The Child Care Act 1991 gives district courts the power to grant a care order (taking the child into the care of the HSE) where the court is satisfied that the child is being assaulted, ill-treated, abused or neglected, or that the child’s health, development or welfare is being or is likely to be avoidably impaired. If the court has reasonable grounds for believing these same factors are present, but is not satisfied of them, it can grant a supervision order (allowing the HSE to visit a family and monitor a child, and provide advice relating to the child). Care orders or supervision orders are applied for by the HSE. Parents are legally represented in the proceedings and have the opportunity to contest evidence and defend the case. The final decision rests with the court.
Q: If the yes vote is carried, will the State, or agents of the State, be given more power to intervene in families?
A: It is very unlikely that the State will have any additional power to intervene in families if the amendment is passed. Although Article 42.5 will be slightly rephrased, the amended provision would be almost identical to the current constitutional position. More significantly, it would be almost identical to the Child Care Act 1991 (which, as set out above, lays down the detail of what must be proved before the district court can grant a supervision order or care order).
The term “proportionate” in the amendment provides protection for parents by requiring that State intervention goes no further than necessary to ensure the child’s welfare is protected. It also provides protection for the child by requiring that the State takes all necessary steps to ensure that the child’s welfare is protected.
Q: What kind of evidence will the State need before taking a child away from its parents?
A: An order to take a child away from parents would require evidence of chronic neglect that is detrimental to the child’s welfare, health or development, or evidence of physical, sexual or emotional abuse. It would also be necessary to prove that the child requires care or protection that cannot be provided without taking the child into care. This will reflect the current legal position. At present, about half of children taken into care involve cases of neglect, and the other half are divided between physical, sexual or emotional abuse.
Q: Will the new laws put too much power in the hands of social workers — as has been argued has happened in Britain, which has seen a doubling of the number of children taken into state care?
A: No. Britain does not have a written constitution and its legal system does not emphasise the rights of parents and the family to the same extent as the Irish system. It has no equivalent to Article 41 of our Constitution, which grants extensive and very strong rights to the family unit. Article 41 will be unchanged if the amendment is passed. The Irish system will continue to operate on the basis of a constitutional presumption that the best interests of the child are to be found within the family, and it will continue to set a very high threshold for rebutting this presumption. Social workers will still be required to justify any case for intervention before the district court, and the parents will still be entitled to legal representation to defend the case and contest any evidence presented against them.
Q: Does a yes vote in any way weaken the status of the family unit and the role of a parent?
A: No. Article 41 of the Constitution will not be changed in any way if the amendment is passed. Articles 42.1 to 42.4 of the Constitution gives similarly strong and extensive rights to parents with respect to their children’s education, and these provisions will also remain unaltered if the amendment is passed. While the amendment would oblige the Oireachtas to pass legislation making the best interests of the child paramount in specified court proceedings, the courts will be obliged to interpret this legislation in light of Articles 41 and 42 of the Constitution. The presumption for the courts will be that the child’s best interests are best served within the family, and this presumption would only be rebutted by the sort of evidence required to justify a care order or supervision order.
Q: If a child is taken from its parents, what happens next? Can parents ever regain custody of their children if they are taken into care?
A: If a child is taken into care, the HSE places the child in a suitable placement — usually with a foster family, and preferably with relatives. Placement in an institution is now rare in Ireland and is very much the exception to the rule. Parents can apply for access to the child, and the legal system operates on the basis that this is to be encouraged where possible. Care orders can be made for a set period of time or up to the age of 18. If a parent can show that he or she is capable of resuming care of the child, he or she can apply to the court to discharge the order, or the court can decide not to renew a time-limited order. Under the amendment, the one exception to this would be where children are placed for adoption after having been in care for over three years.
Q: Could children be forcibly placed for adoption without their parents’ consent even where their parents are making a genuine effort to resume caring for them?
A: No. The adoption bill that accompanies this amendment stipulates that adoption is only a possibility where there is no reasonable prospect of the parent resuming care of the child. In addition, the amendment itself stipulates that adoption is only a possibility if the child’s best interests require it — which would not be the case if the parent was making a genuine effort to resume the care of the child. The High Court will make the ultimate decision in these cases, and will be required by the law to reserve adoption to those cases where there is no prospect of a child being cared for by the natural parent.
Q: How can we trust the State to look after the best interests of a child, when we have heard so many horror stories about children dying while in State care?
A: There is no doubt that the State has failed to adequately care for some of the children in its care in the past. However, it is no solution to this problem to say that these children should have remained at home — they only found themselves in State care in the first place because they suffered appalling neglect or abuse at home. A small minority of children will always require State intervention to protect them; their welfare will be served by placing stronger obligations on the State to meet their needs, not by leaving things as they are. The provision of adequate resources is a key part of this process, and while the amendment will not guarantee that this will happen, it has the potential to make a political statement to politicians (and to voters) that sufficient public resources should be allocated to social services in each year’s budget.
Q: One of the changes allows for a married couple to voluntarily place their child up for adoption. But what happens if both parents don’t agree?
A: If both parents are legal guardians, then the consent of both parents would be required and either of them would be entitled to veto the adoption. They would then have to resolve custody and access issues between them, in the district court if necessary. If an unmarried father has not been appointed a legal guardian, he would be entitled to apply to the district court to be appointed a guardian before any adoption could be consented to. If successful in his guardianship application (as over 80% of unmarried fathers are), then his consent to the adoption would be required and he would be entitled to veto it.
Q: Will the referendum give greater transparency to what happens in the family court?
A: By itself, the referendum will not improve transparency around family court proceedings. However, a separate package of reforms is being prepared which will (if implemented) have this effect. The minister for children recently announced a pilot reporting scheme for child protection proceedings in the district court, and the minister for justice has committed to reforming the in camera rule in the lifetime of this government.
* Conor O’Mahony lectures in constitutional law at University College Cork
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