Are we there yet? – Realising the rights of the Child – Linda Kearin

Ireland has a disturbing past with regard to the protection of children and the vindication of their rights. The recent shameful history of child abuse in Ireland demonstrated by the Ryan and Roscommon Reports, and more recently ‘Grace’ has led to the creation of review groups to establish how vulnerable children were left to be the victims of the most heinous of crimes.
The insertion of Article 42A into the Irish Constitution was approved by a referendum of the people in 2012, it will better reflect the rights enunciated under the UN Convention on the Rights of the Child, in particular Article 19 which provides that the State shall take all appropriate measures to protect children from all forms of abuse and neglect. Article 42A.4.1 provides that the best interests the child shall be the ‘paramount consideration’ in certain areas of decision making affecting a child; care proceedings and child protection cases, adoption, guardianship, custody and access cases. It also provides that the rights of the child are independent of the family and significantly the marital status of a child’s parent does not affect the rights of the child as an individual. This is a significant development in the law which could have positive profound effect for children. Decisions will be determined solely based on what is best for the child in question. Up to this point children’s rights were only provided for within the context of the family unit. This is the context in which the Irish courts have historically operated; where the family unit is supremely represented within the constitution and as such the courts are reluctant to interfere in family life, particularly with regard to the upbringing of a child. This position has seriously restricted the courts discretion in vindicating the rights of children and placing their welfare and best interests as paramount.
The Children Act 1997 provides for the wishes of the child to be taken into account in private law proceedings. The Child Care Act 1991 provides the statutory basis for the appointment of a Guardian Ad Litem where the court is satisfied that this appointment is necessary in the interest of the child and justice. The Guardian Ad Litem has a dual role; to inform the court of the child’s wishes and feelings and to advise on the child’s best interests. However the appointment of the Guardian Ad Litem is left to the discretion of the judge which results in an inconsistent application of the service. The Children Act 2001 also provides for the appointment of a Guardian Ad Litem with respect to children where a special care order is applied. A special care order means that the child is committed to Tusla’s care for as long as the order remains in force. It authorises Tusla to provide appropriate care, education and treatment and, for that purpose, to detain the child in a special care unit if necessary.
The Children and Family Relationship Act 2015 is a long and complex piece of legislation and places additional powers on the courts with regard to guardianship, access and custody. The Act requires the child’s best interests to be the paramount consideration in any decisions on guardianship, custody and access. In all cases the views of the child must be taken into account if the child is in a position to express his/her views. The rights and responsibilities of a guardian include; deciding on the child’s place of residence and with whom they live, making decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing and to consent to medical and dental treatments for the child. Significantly a guardian also has the right to place the child for adoption, and consent to the adoption of the child, under the Adoption Act 2010 .
The 2015 Act extends the remit of individuals who can apply to the court for guardianship of a child; a step-parent, a civil partner or a person who has cohabited with a parent for not less than three years and where they have co-parented the child for more than two years. A person who has provided for the child’s day-to-day care for a continuous period may also apply. In the event of a parent becoming incapacitated and unable to look after their child, the court can appoint a temporary guardian.
The Act provides that an unmarried father will automatically be a guardian if he has lived with the child’s mother for 12 months, including at least three months with the mother and child following the child’s birth. Previously unmarried fathers did not automatically acquire guardianship rights. The father’s relationship with his children can still be determined by the relationship he has with the mother and in the event of the couple being unable to make a decision regarding custody and access then the courts will determine what is appropriate. The Act implies that the maternal relationship trumps the paternal relationship with the child; while this may have been the case in Ireland in previous generations it certainly doesn’t reflect the social norm in 2017, this is a clear demonstration of the law lagging behind the evolving social landscape. The 2015 Act aims to reflect best practice in providing for the best interests of every child, which raises the question as to why every child of an unmarried father doesn’t have an automatic right to this father as a legal parent / guardian? If all children are treated equally, it could be argued that the state is discriminating in favour of children of married fathers. Unmarried fathers are not afforded the same automatic rights as married fathers, so in turn their children could suffer a limited relationship with their father as a result of the conditions outlined in the new legislation (or while the guardianship process goes through the courts). The 2015 Act requires the court to deal with cases promptly without delay, it places a duty on the court to include the views of the child, but it is not clear from the legislation how this should happen, such lack of clarity could lead to the child’s views being omitted altogether. This is a major flaw in the legislation.
The family law system places repeated emphasis and importance on the best-interest principle, ensuring that regard is given to the welfare of the child as a primary concern in family law proceedings. The Children and Family Relationship Act 2015 is a positive development and beneficial to children as it provides an enhanced automatic identification of guardians, albeit not absolute. The implementation of Article 42A has the potential to have a significant and positive effect on the regulation of child protection and adoption, if applied correctly it has the potential to make significant difference to a child’s life. It sends a clear message that Ireland values children and their rights, and subsequently will protect them. Despite the fact that this regard for children has been a long time coming, it is clear that it is a progressive step in the development of child law in Ireland.

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