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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.

  1. mary walsh
    February 26, 2010 at 4:44 pm

    I would like to know what happens when a child is placed in care and their parent is fighting for access and cannot get any at all. Also are there any support groups available for parents in this situation.

  2. Nicola Carr
    February 26, 2010 at 4:53 pm

    Mary – I am not aware of a specific group that supports parents of children in care, there are a number of organisations that provide support to parents generally that may be able to advise.

  3. Jim Beresford
    March 28, 2010 at 10:54 pm

    Nicola – Southern Ireland has a Catholic Constitution whose preamble acknowledges “all our obligations to our Divine Lord, Jesus Christ” and demands that “all actions of both men and States” must be referred to “the Most Holy Trinity”.

    In 1961 (when I was 13) an Irish court illegally ordered my incarceration in a Catholic prison because my parents were in a “mixed marriage” and the State alleged that my non-believing (nominally Protestant) father was failing to raise me as “a good Catholic boy” in breach of the Ne Temere, a 1908 Vatican decree which Ireland had incorporated into civil law in 1951.

    My experience is by no means untypical and shows that Ireland’s Catholic Constitution means that religious considerations override all others when Irish courts make “welfare” decisions about children. The “paramount consideration” is to keep the child within the Catholic fold. Isn’t that so?

    Jim Beresford, former Artane child prisoner 14262, England

    • March 29, 2010 at 4:35 am

      Jim, thanks for your comments on various posts. Your experience is, as you note, in no way unique although it is thankfully not something that occurs any more. There is no doubt that this kind of removal was a gross violation of your rights as a child and also, of course, of the rights of your entire family unit.

  4. Jim Beresford
    March 30, 2010 at 4:02 pm

    Fiona: Many thanks for your kind reply. Yes, arbitrary arrest and imprisonment without trial is a human rights crime sadly all too common in repressive regimes the world over, and Ireland is no exception. Ireland compounded its crime by perpetrating it on a grand scale, as did Stalin’s Russia. But unlike Russia, Ireland is unrepentant and offers its victims neither apology nor redress.

    For me, Ireland’s crime was a personal disaster with consequences that subsist to the present day. Imprisonment not only unjustly robbed me of personal liberty and education, it also destroyed my good name and that of my family. The State’s illegal intervention in my family killed my father, wrecked my mother’s health and drove my younger brother, Tom (imprisoned with me), to an early alcoholic grave. Though legally innocent, I was publicly disgraced and sentenced in a criminal court while denied the opportunity to defend myself against the State’s scurrilous lies. Then, with the court’s approval, the State’s lies were splashed on the front pages of the newspapers, making me a pariah in Ireland to this day. Ireland is still peddling those lies. The lies are contained in a Stasi-type file held at the Special Education Archive in Athlone – “special” in this context means educationally sub-normal. The file amounts to a false identity – a criminal identity – that the State is imposing upon me. The State continues to deny me access to records on my childhood imprisonment.

    While Tom and I were in the prison, our father was admitted to hospital with a terminal illness. He pleaded to have his sons brought to his bedside. Our mother repeatedly begged the Education Minister (child prison supremo) to release us so we could visit our father. The Minister refused. I relate this in order to illustrate the utterly inhuman mindset behind my false imprisonment. I ask you in all candour, what kind of person would deny two young boys the right to visit their dying father and deny a dying man the right to see his sons? That is the mentality that I now confront in my struggle for justice in Ireland.

    State-authorised prison brutality, malnutrition, politico religious brainwashing, exhausting slave labour and sexualised violence quickly reduced me to a mental and physical wreck. After I escaped from the prison and from the country, Ireland issued a warrant for my arrest and tried its level best to hunt me down even as I was suffering the bereavement of my father’s death. I managed to evade my pursuers and I have lived as a child prison refugee ever since, unable to return to my native country for fear of persecution. The UK is sanctuary to thousands like me. In view of Ireland’s refusal to restore my citizenship rights, I now have no option but to formally renounce Irish nationality and never set foot in Ireland again. Having robbed me of everything else, Ireland is now determined to deny me that basic birthright to which we are all entitled, the right to affection for our place of birth.

    I dearly wish I could share your conviction that Ireland has changed its ways, Fiona. But surely an unrepentant delinquent State is only too likely to repeat its crimes.

    Jim Beresford, former Artane child prisoner 14262, England

  1. February 26, 2010 at 3:01 pm
  2. March 1, 2010 at 6:05 am

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