What happened to ‘Grace’? (Children in State Care)

The world will not be destroyed by those who do evil, but by those who watch them without doing anything”Albert Einstein

What happened to ‘Grace’?

by Linda Gibbons

Described ‘as the most savage rape, physical abuse and neglect ever to emerge, the case of Grace and the foster care scandal has deeply shocked the nation. The reports by the Irish Examiner over the past few weeks, have given an insight into the appalling abuse endured by this young girl who was largely forgotten by the State.

Grace who is “unable to speak and with a profound intellectual disability,” was an exceptionally vulnerable child when referred to the State for care at 11 years of age. However, it was not Grace’s inability to speak that really silenced her, but rather the inaction by the State that muted her for 20 years. Inexcusably despite the State being alerted to the abuse allegations in 1989, and indirectly acknowledging them in 1995 by ceasing to send any more children to the home, it took another 14 years before Grace was removed.

Equally for the 47 children previously placed there and for those who remained there, the State continued to ignore their vulnerability, with a child reportedly still in their care as recently as 2013.

Why didn’t the HSE intervene as per their statutory duties?

The Irish Independent has reported that the HSE tried to remove Grace in 1995 but once appealed by the foster family, the need for intervention appears to have been disregarded until the actions of several whistle-blowers ensured Grace’s removal in 2009.

What stopped the HSE disregarding their appeal and removing Grace immediately has not been clarified. However, the Director of the HSE, Tony O’Brien’s recent response that “it is not clear if the HSE has a legal capacity to take such action,” illustrates the failures that have surrounded this case.

Such a response fails to instil confidence in the State’s ability to act as the nation’s parent. It also raises several legal questions that demand urgent clarification.

  • Firstly, does the law impose different legal standards for the State as a parent than for the natural parent?
  • Does the legislation that protects the child from enduring such abuse in the family home not protect the child in the same way if the abuse happens in a State funded home?
  • Does the Child Care Act, 1991  not obligate the State to intervene and remove children when they are satisfied that the child “has been or is being assaulted, ill-treated, neglected or sexually abused” when the child is already under the responsibility of the State?
  • Does the Constitution under article 42A obligate the State to act as the “common guardian of good and to protect children” above all else?

This also raises doubts as to the effectiveness of existing legislation such as the recent Children’s First Act 2015  if those in power don’t know what to do when given reports of abuse outside the family home. As Fergus Finlay accurately states, such legislation is “insulting and meaningless” if it doesn’t serve to protect our most vulnerable citizens.

What has been the HSE’s response – another apology and inquiry?

Since Grace was removed, the efforts by the State to make restitution have included an apology and the promise of yet another inquiry. The initial claim by the Director of the HSE, Tony O’Brien that Grace’s family had already received an apology has been rebutted, forcing him to admit that his original information was “misleading.” While the Minister for Health, Leo Varadkar has advised that a statutory inquiry will be conducted to ensure that the State learns from these failings, this does not instil much confidence given the experience of previous inquiries such as the Ryan Report; which have served to demonstrate that unless it is accompanied by measurable action, an inquiry in itself will not offer increased protection for children in State care.

Where is the justice for Grace-criminally or disciplinary?

Indefensibly for Grace, those who perpetrated the abuse will never be brought to justice as her disability rendered her “not a good witness.”  Currently the Criminal Evidence Act 1992  will only allow those with intellectual disabilities who are deemed “capable of giving an intelligible account of the events…” act as witnesses in court.

Further adding to this dysfunction is the report by the Irish Independent that the professionals who allowed this abuse to remain un-investigated, have never been sanctioned for their failures and some are now “working for the State’s child protection agency.” If this is correct it is simply unacceptable and raises serious doubts as to the integrity of those people still tasked with child protection.

What needs to be done to maximise the safeguarding of children in State care?

With a new government to be elected into power, this must be seen as a chance to make real, tangible reforms to our child protection system and processes.

These changes should include the introduction of legislation governing state funded care homes to incorporate stronger accountability on the State as the national parent. This should ensure that the same legal duty of the state to intervene in the family home is also in place in state funded homes.

Perhaps it is also now time for the State to review the  Criminal Evidence Act 1992  with a view to considering the option of permitting a third party to present evidence for those with severe intellectual disabilities in such cases of alleged abuse.

Furthermore, a review of the Children’s First Act 2015 should be considered with a view to enacting a system similar to that found in Newfoundland and Labrador in Canada which have enacted both civil and criminal penalties for failure to report child abuse.  Although those working with children have a legal obligation to report abuse, there are currently no sanctions for failure to comply. This has led to criticism from leading children’s groups including Barnardo’s and the Children’s Rights Alliance.

It is also high time that the State invests appropriately in the provision of more qualified social workers to care for the needs of children  in the care of the State;  recent statistics state that “6,411 cases of suspected child neglect or abuse are awaiting allocation of a social worker, of whom 1,351 are ‘high priority” – this is unacceptable and if not tackled will likely result in more tragic cases.

As a nation it is time to demand that our watch keepers protect the country’s most vulnerable children, in the name of Grace and every other child let down by the State.



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Surrogacy: a legal vacuum


Surrogacy: a legal vacuum by Ciara Herlihy

While the Children and Family Relationships Act 2015 introduces significant changes to Irish law in the areas of guardianship, custody, access and adoption, and regulates the area of donor assisted human reproduction for the first time, surrogacy remains unregulated, resulting in a legal vacuum which continues to cause difficulties and uncertainty for commissioning parents and children born via surrogacy arrangements.

In 2005, the Commission on Assisted Human Reproduction published a report recommending that surrogacy arrangements be permitted. They also recommended the introduction of legislation to govern these arrangements, and the establishment of a body to regulate assisted human reproduction generally.

Surrogacy was included in the original draft of the Children and Family Relationships Bill, incorporating extensive governing provisions including a ban on commercial surrogacy. However, these proposals were removed, with Minister for Justice Frances Fitzgerald noting that there were “critical issues needing to be resolved”. This removal of the proposals was strongly criticised by many, including former Minister for Justice Alan Shatter.

Surrogacy remains a controversial issue, hitting the headlines particularly during the marriage referendum in 2015. Countries across Europe have taken widely different approaches; for example, France and Italy have banned all surrogacy arrangements while the United Kingdom has banned commercial surrogacy.

Despite the lack of regulation in Ireland, there is evidence that Irish couples have children born via surrogacy arrangements both domestically and abroad, partly perhaps given that domestic adoption is almost non-existent and the numbers of inter-country adoptions have decreased over the past number of years. The Irish Independent has reported that at least 57 children have been born via surrogacy between 2008 and early 2015. This figure is based on the number of emergency travel certificates granted to commissioning parents who must apply for these before they are able to bring the child into Ireland. The requirement to apply for emergency travel certificates depends on the country in which the child is born, meaning that the number of children is likely to be much higher.

In order to support these parents and in acknowledging the fact of surrogacy, the Department of Justice issued a guidance document in 2012 in relation to overseas surrogacy arrangements called “Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered into Outside the State”.

MR v. An tArd- Chláraitheoir 

A high profile case involving a domestic surrogacy arrangement was widely reported in 2013 and serves to reflect the current vacuous legal position on surrogacy in Ireland until legislation is introduced.

This case involved a woman who acted as a surrogate for her sister and gave birth to twins, she being known as the gestational mother. Counsel for the parents described this as a “gesture of love” for her sister who was unable to give birth. They had collectively agreed that the children would be raised and cared for by her sister, the genetic mother, who had provided the ovum, and her husband, who was also the genetic father of the twins, having provided the sperm in the fertilisation process.

There was no dispute between the parties as to who ought to be recognised as the legal parents of the twins. However, difficulties arose when the genetic parents sought to register the birth of the children, in particular to register the genetic mother as the legally recognised mother of the twins.

In the High Court, Justice Abbott observed that the surrogacy arrangement was not in fact illegal as surrogacy was not banned in Ireland. The central issue before the court was who should be registered as the mother of the twins under the Civil Registration Act 2004: the genetic mother, or the woman who had given birth to the child, the gestational mother.

The state argued that the gestational mother is the sole person capable of being recognised as the legal mother. Conversely, counsel for the parents argued that the definition of “mother” should be based on the genetic link with the child.

Ultimately the High Court made a declaration that the genetic mother should be registered as the legal mother of the twins.

The state successfully appealed this decision which was overturned by the Supreme Court in November 2014, meaning that the genetic mother could not be registered as the legal mother of the twins.

The judgment recognised that “any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content” and was very critical of the government’s continued failure to legislate in the area. Chief Justice Denham urged for the gap in the law to be addressed, noting that surrogacy was “quintessentially a matter for the Oireachtas”, and not a matter for the courts in the absence of legislation.

The Supreme Court decision means that the genetic parents would only have the option to jointly adopt the twins, being the only way to allow the genetic mother to be recognised as their legal mother.

The current law would also allow the genetic mother to apply to become the legal guardian of the children along with her husband under the Children and Family Relationships Act, after she shares responsibility with him for the day-to-day care of the twins for at least two years. It is now also possible for children to have multiple guardians, meaning that the gestational mother would remain as the legally recognised mother and guardian along with her sister and her husband.

Towards the legal regulation of surrogacy arrangements

The government has committed to putting legislation in place to govern surrogacy arrangements, to include the setting up of a Regulator to maintain records of all surrogacy arrangements and assisted reproduction activities. It is envisaged that these proposals will include a ban on commercial surrogacy but will allow surrogate mothers to be reimbursed for “reasonable expenses”. Legislation may also require intending parents and surrogate mothers to attend counselling before consenting to the surrogacy arrangement. Last December, Minister for Health Leo Varadkar said that new laws on surrogacy were in the process of being drafted but were unlikely to be published until later this year.

Ireland’s Special Rapporteur on Child Protection Geoffrey Shannon has emphasised that children “should not be left in a legal limbo. A child born through surrogacy could potentially have five individuals involved: the surrogate mother, the commissioning mother, the egg donor, the commissioning father and the sperm donor”, and pointed to the issue of children born via overseas surrogacy arrangements being stateless.

Children and families will remain in legal limbo until much-needed clarity is provided in the form of a clear legislative framework to regulate surrogacy arrangements. It is essential that the rights and interests of children are at the centre of any regulatory framework.


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Religious dominance in School Admissions in Ireland – Not Catholic, No School?

Religious dominance in School Admissions in Ireland – Not Catholic, No School?

By Sarah Berkery

Rule 68 of the Rules for National Schools states that: “Of all the parts of a school curriculum Religious Instruction is by far the most important, as its subject-matter, God’s honour and service, includes the proper use of all man’s faculties, and affords the most powerful inducements to their proper use”, is suggestive such a possibility.  This Rule was deleted in December by the Minister for Education, Jan O’Sullivan who stated that it was a “symbol of the past, and not our future.” The deletion of this Rule suggests that the dominance of the Catholic Church in education could be the master of its own downfall in terms of religious education.

The issue of religious dominance in the educational context is fast gathering pace both nationally and internationally with many online petitions calling for an end to the preference of allocating primary school places to Catholic children.

With almost 97% of Irish primary schools having a Catholic ethos protected in law, it must be queried how children of a different denomination or no denomination at all are to effectively vindicate their Constitutional right to free primary education?  The story of a young boy from a “nonreligion” family being refused from nine schools, forcing his parents to postpone his commencement of education for a year is just one of many such stories in Ireland’s multi-cultural society. Reuben’s experience has however usefully served to highlight the not uncommon practice of parents baptizing their children simply to get them into a primary school. Recently Archbishop Martin said that he does “…not believe that presenting baptismal certificates is an appropriate way to judge access to schools.” This view has been welcomed by many as an important contribution to the debate surrounding the need for reform in the area of  access to schools in Ireland.

The results of a recent Behaviour and Attitudes poll found that 84% of those surveyed were of the view that no child should be excluded from a school because of their religion or lack of religion; and 87% felt that the State is responsible for ensuring that children do not experience religious discrimination in the school curriculum.  Undoubtedly the State’s responsibility to ensure that children do not experience religious discrimination extends further than merely the curriculum in schools but to their ability to actually gain admission to these schools in the first instance.

More broadly there seems to be a fundamental disconnect between the prohibition on discrimination on grounds of religion, and the religious exemption provision which encourages discrimination on the same grounds in the context of school admission. The reality of this exemption is that if a school wants to protect a particular ethos it can refuse a child admission to the school on the basis that the child is not of that religion. The exemption acts as an ethos-based defence to any claim of what would otherwise be regarded as blatant discrimination.

Patronage the Problem?

Despite recommendations by the Government in 2011 that Catholic schools be dissolved/divested of their patronage, Catholic schools do not appear to want to give up their ownership of schools and in reality they cannot be forced to.  To date, only 8 schools have been handed over by the Catholic church as part of this divestment process. Another complicating factor is the fact that the Catholic Church owns many of the buildings that the schools are based in. Of the 8 schools already handed over only 2 of these schools are being run from buildings vacated by the Catholic Church while the remaining 6 schools have no buildings. Surely, this is evidence that this approach cannot operate?  While this approach bears all the hallmarks of being able to reduce religious dominance in schools by in effect taking the Catholic Church out of the equation, in reality the current approach and associated processes are effectively unworkable.

The need for more community-based schools and non-denominational schools is more important now than ever. Although pluralism in education might take time, as warned by Archbishop Diarmuid Martin, unless people of other faiths and indeed of no faith are given more freedom to attend nonreligious schools, catholic education would actually be diluted rather than strengthened.

The United Nations Committee on the Rights of the Child recently called on the Government to take urgent action to end the freedom that allows Irish schools to discriminate against children on religious grounds. In it’s Report the Committee recommended that the Government “expeditiously undertake concrete measures to significantly increase the availability of non-denominational or multidenominational schools and to amend the existing legislative framework to eliminate discrimination in school admissions, including the Equal Status Act.” Ireland has yet to respond to this Report but it will be interesting to see if the Government will respond by way of a further meaningless commitment to change the system in Ireland or will actually amend the law that allows for blatant discrimination on grounds of religion for access to schools.

Despite using this serious issue of religious discrimination and school admissions as a political football it appears that the only way to ensure, fairness equality and transparency is to consider removing religion from schools altogether and to campaign for a full divestment of religion from schools , or at the very least remove it as an entry requirement/test. To achieve this basic level of fairness,, the Government also needs to consider amending the Equal Status Acts 1998-2000 to remove the provision that allows schools to lawfully refuse a child admission to a school on grounds of religion where that school wants to protect its ethos After all, religion is arguably a private matter for families and individuals and should not be interlinked with education.  The time for change is ripe with the upcoming election and the strong, clear recommendations from the United Nations that this discrimination has to stop.



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Guardianship rights for unmarried fathers

Written by Vanessa Crowley

Landmark reforms to family law are to allow unmarried fathers’ automatic guardianship rights

As widely reported over the last number of weeks, many sections of the Children and Family Relationships Act 2015 were commenced on 18th January 2016.

Approximately 36% of children are born outside of marriage each year in Ireland and prior to the commencement of this Act only the mother of those children had guaranteed guardianship status.

The 2015 Act has heralded a new era for family law as it addresses the long ignored position of the unmarried father and finally allows for automatic guardianship where the cohabitation requirement is met.

As a guardian of a child the unmarried father will have a say in where that child will live, go to school and in what religion, if any, the child will be raised. His permission will also be required for medical treatment and to secure a passport for the child.

Automatic guardianship will only be granted to unmarried fathers who have lived with the mother of the child for a minimum of 12 months, which must include at least three months after the birth of the child.

However, the change is not retrospective; a father currently cohabiting with the mother of his child will not have guardianship rights until 12 months from the date of commencement, 18 January 2016.

Barnardos has said that the new provision “recognises and values the commitment of fathers to their children, and by applying a cohabitation clause, ensures that fathers who do not wish or intend to be involved in their child’s life are not automatic guardians”.

However, this does not reflect reality, as in many cases it is simply not possible for an unmarried father to meet the cohabitation requirement as it not always appropriate or possible depending on the circumstances. Where it will further fail fathers is where the relationship with the mother breaks down preventing the father from “earning” their rights to the child.

Up to this point the only ways in which an unmarried father could secure guardianship was by both parents signing a Statutory Declaration reflecting their agreement; or by applying to court to seek an order to make him a guardian where this is in the best interests of the child.

This piece of legislation recognises the international standard that every child “as far as possible” has “the right to know and be cared for by his or her parents”, as is underlined in the United Nations Convention on the Rights of the Child.

Although a major step forward, there is nothing in the Act to provide for unmarried fathers who do not live with the mother of their child but may nonetheless have a strong relationship with the child. It is regrettable that the legislation does not go far enough to benefit these fathers and that such fathers still have to seek court intervention or the permission of the mother to establish a legal relationship with their child. Treoir believes that unmarried fathers, like married fathers, should be the automatic guardians of their children. In 2011 the Law Reform Commission recommended that a non-marital father should automatically be a joint guardian of the child with the child’s mother. There are a number of countries where unmarried fathers are the automatic guardians of their children, including Northern Ireland, Britain, Australia and many European countries. In these countries, where an unmarried father jointly registers the birth of the child with the mother, he will have an automatic right to guardianship of that child; the Republic of Ireland has denied unmarried fathers this right.

This new approach correctly recognises and values the need to address gender-based discrimination, giving fathers a much stronger legal status. It also gives legal recognition and clarity to non-traditional family units and is a welcome modernisation of Irish law. It is hoped that further progress will be made in which Ireland will attain the international standard for unmarried fathers and whether these different options now available will provide clarity or cause confusion awaits to be seen.

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