Dr Nicola Carr, Lecturer, School of Sociology, Social Policy and Social Work and Chair of EPIC [EPIC (formerly IAYPIC) is an independent association that works throughout the Republic of Ireland, with and for children and young people who are currently living in care or who have had an experience of living in care.]
The need for constitutional reform is brought particularly sharply to the fore when considering children and young people for whom there are child protection and welfare concerns and/or who have been placed in care. Some of the most cogent arguments about the need for such reforms have been made in the context of inquiries into failings of the systems for care and protection. The Report of the Kilkenny Incest Investigation (1993) which examined the failure of the state to intervene in the context of long-standing inter-familial abuse identified that the ‘very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children.’ (1993:96). The circumstances explored in the Kilkenny case pre-dated the introduction of the Child Care Act, 1991 which sets out the current statutory framework for child protection and welfare, that said, the publication of the Kilkenny Report is credited with speeding up the enactment and resourcing of this legislation.
The Child Care Act, 1991 provides the main legislative framework allowing the State to intervene in respect of a child who ‘requires care and protection’. The Act includes orders (Emergency Care Order, Interim Care Order and Care Order) allowing the placement of a child in alternative care. Any such order must be granted by the District Court, and obviously can be subject to legal challenge. Part V of the Child Care Act, 1991 states that in any proceedings before the Court the welfare of the child ‘must be the first and paramount consideration’ and that the Court ‘in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.’ However these statements are prefaced by the requirement to have ‘regard to the rights and duties of parents, whether under the Constitution or otherwise’.
The need to consider the rights of parents in this context is important and provides a necessary check against potentially disproportionate intervention. However, the limits of the current Constitutional provisions in respect of an explicit recognition of children’s rights are highlighted. In the Roscommon Child Care Case (2010) again involving long-standing inter-familial abuse, the married parents of the children about whom there were significant concerns successfully obtained an ex-parte order from the High Court aimed at preventing the removal of the children from parental custody. In their submission to the High Court the parents argued that as ‘a married couple’ they had ‘inalienable and imprescriptable rights over our children’ (2010:39).
The circumstances of the Roscommon Case, including the recourse by the parents to the High Court are unusual, but it does highlight the problem surrounding the lack of an explicit recognition of the rights of children within the Constitution However, notwithstanding this important issue, the Report of the Inquiry Team on the Roscommon Child Care Case (2010), notes that this was just one element amongst the wider systemic failings of the child protection and welfare services in this case.
The wider question about how children’s rights are actualized within the child protection and welfare system and the care system are critical concerns. For example, Part V, 26 of the Child Care Act, 1991 allows for the appointment by the court of a Guardian ad Litem to independently represent the child’s interests an wishes in proceedings, however, guardians are not routinely appointed in such cases. Further still, many care arrangements are made on a ‘voluntary’ basis – between the HSE and parents – i.e. without recourse to court – for example the placement of a child with a relative carer. In such circumstances an independent advocate for the child would not be appointed.
This is just one among many examples that raises the question of how children and young people’s rights are actually operationalised within the child protection and welfare context and the care system. The Children’s Referendum marks a potentially positive step towards effecting change, but the real effects for children and young people will be in how they experience their rights in practice.