HSE Reports on Deaths in State Care: Why Publication Matters

Yesterday and today there has been a great deal of commentary in Ireland on the tragic situations in which children and young people die in the care of the state. This intense commentary and discussion emerged from the publication by Alan Shatter TD of a report emanating from the HSE on the death of Tracey Fay who died when she was 18 years old and in the care of the state (RTE News coverage). Unfortunately, Tracey Fay is not the only minor to have died in state care or in relation to whom the HSE’s report has not been released either to the public or, it appears, to the families of the deceased. While this brings up multiple questions of about the responsibility of the state to protect those in its care, it also raises interseting questions about investigation and reporting in cases of death that I want to broach in this post.

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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.