Carr on the Constitutional Amendment and Children in Care

You can learn more about Nicola Carr on our guest contributors page.

The case for an amendment to the Irish Constitution to specifically enumerate the rights of children has been well set out by a range of commentators over a period of time. The issues pertaining to children in care or those on the ‘edges of care’ (that is those children who may be eligible for placement in care on the grounds of protection or welfare), have been a touchstone in these debates.

It has been argued that the balance between the ‘inalienable and imprescritible rights’ of the family, as set out in Article 41.1, and the power of the State to intervene in ‘exceptional circumstances’ where the parents in the said family have been deemed to have ‘failed’ in their duty as set out in Article 42.5, has been too strongly skewed towards the rights of the (marital) family. It has also been criticised for setting the threshold for State intervention too high. In the Report of the Kilkenny Incest Inquiry (1993) Justice Catherine McGuinness identified that the status of the martial family within the Irish Constitution was one of the barriers to State intervention in cases such as that described in the Inquiry Report – where a range of services had failed to successfully intervene in a case of longstanding abuse. Justice McGuinness therefore recommended that consideration be given to strengthening the rights of children by way of a Constitutional amendment.

However, as the publication of the Ryan Report (2009) detailing abuse in institutional care revealed, the issue of the rights (or the denial of these rights) of children placed in State care are also a key concern and, in the wake of the report’s publication, the government outlined that it ‘remained committed’ to a constitutional amendment (see the Government’s Implementation Plan in Response to the Ryan Report.

So what are some of the specific issues for children in care or on the ‘edge of care’ and how does the proposed amendment address these concerns?

Firstly, the wording addresses the powers of the State to intervene in the family. Here, the proposed amendment outlines that the welfare of the child or children should be the ‘paramount consideration’. The ‘paramountcy principle’ is in keeping with legislation and practice guidelines in this area, including the provisions of the Child Care Act, 1991, the Children Act (2001) and Children First Guidelines (2009) – (which outline the child protection procedures that should guide the practice of the Health Service Executive and other associated parties). A clear statement within the Constitution that the child’s welfare is the ‘paramount consideration’ in such cases is congruent with stated practice and a rights-based approach. However, the point has been made in several submissions to the Committee that the failure to amend Article 41 will mean, in practice, that there is potential tension between the ‘inalienable and imprescriptable rights’ of (marital) parents and the paramountcy principle as set out in the proposed amendment. This concern may be somewhat off-set by the fact that the amendment proposes under Article 42.1.2 that children have a ‘natural and imprescriptable’ right to have their welfare regarded as the ‘primary consideration’.

One of the interesting points raised by the Committee concerning the current operation of child protection and welfare legislation (primarily cases taken under the Child Care Act, 1991) is the absence of information on the actual processing of these cases in the District Courts. This relates to the fact that proceedings under this Act are held in camera to protect the privacy of individuals. However, it is clear that broader issues of transparency arise in regard to the overall operation of the child care system. For example, up-to-date information relating to the practice of the Health Service Executive and the Courts in this area is not publicly available – far less so, information on the lived experiences of young people in care. In reality, questions involving children in care and their rights usually enter the public domain in the context of high-profile enquiries such as those described above or in the context of legal challenges to the provision of care.

Since the 1990s a number of High Court rulings have led to children being placed in secure care on welfare grounds (that is where the child is facing imminent risk through, for example, self-harm or substance misuse). This has occurred on the application of the Health Service Executive and/or advocates for the child. These orders have, in the main, been made under Article 42.5 of the Constitution, which states that in ‘exceptional cases, where parents for physical or moral reasons fail in their duty towards their children’ the State ‘shall endeavour to supply the place of the parents’. Judicial reliance up and employment of an Article referring to educational provision stretches the reality of these situations; the child is not in fact being placed in a secure facility because they need ‘education’ but because there is deemed to be a serious risk to their health and well-being. Furthermore, in many instances the parents of such children cannot necessarily be said to have ‘failed’ in their duty towards their children.

The proposed amendment to Article 42 can potentially address some of these areas. As stated above, the issue of the ‘paramountcy principle’ is clear. Furthermore the amendment outlines that the response by the State should be ‘proportionate’. Again, this will require the legislature to finally come to grips with and address some of these issues in clear policy and practice terms, potentially affording children in these situations more rights through a great equity and transparency in practice. A further important provision for children in care or on the ‘edges of care’ is draft Article 42.2.3 which sets out that the right of the child’s voice to be heard in all such proceedings, a welcome and important guarantee.

As with all the Committee’s proposals, the value of the draft amendments discussed in this blog entry will ultimately become evident through their interpretation and implementation if and when they are brought into law. In this regard, the rights of children in care will remain a touchstone.