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Abstract
In Ireland, the Constitution guarantees very strong rights to parents and the family, and there has been a long and unfortunate history of failures to adequately protect children at risk. As a result, there has been much discussion in recent years about the need to improve legal mechanisms designed to protect the rights of children. By comparison, little attention has been given to establishing whether the theoretically strong rights of parents translate into strongly protected rights in practice. This paper presents new empirical evidence on the manner in which child care proceedings in Ireland balance the rights and interests of children and parents, including the rates at which orders are granted, the frequency of and conditions in which legal representation is provided, and the extent to which parents are able to actively participate in proceedings. A number of systemic issues are identified that restrict the capacity of the system to emphasise parental rights and hear the voice of parents to the extent that would be expected when looking at the legal provisions in isolation.
Acknowledgements
This study was completed by the authors without any research assistance. A small amount of funding was provided by the authors’ institution to cover basic travel expenses and transcription costs. The authors wish to acknowledge the support of the UCC Strategic Research Fund, the School of Law Strategic Fund and the College of Arts, Celtic Studies and Social Science.
Notes
1. See 31st Amendment to the Constitution (Children) Act 2015. The implementation of the amendment was delayed until 2015 due to an unsuccessful legal challenge to the outcome of the 2012 referendum.
2. See www.childlawproject.ie.
3. Article 41 of the Irish Constitution recognises the ‘Family’ (defined as the marital family) as ‘the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’, and provides that ‘[t]he State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State’. Article 42 builds on this by granting strong rights to parents with respect to the education of their children.
4. See State (Nicolaou) v An Bord Uchtála [1966] IR 567.
5. In G v An Bord Uchtála [1980] IR 32, it was recognised that while unmarried mothers are excluded from the protection of Articles 41 and 42, they (unlike unmarried fathers) have residual constitutional rights under the broad guarantee of ‘personal rights’ in Article 40.3, stemming from the fact of motherhood and the natural relationship that exists between the mother and the child.
6. Previously, under the Children Act 1908, child protection work was predominantly undertaken by charitable organisations linked to the Catholic Church up to the 1970s (Skehill, Citation2004, pp. 179 and 311), following which it was taken over by area Health Boards (O’Sullivan, Citation2009, pp. 311–312). The Health Boards were merged into the Health Services Executive by the Health Act 2004, and the functions of the Executive under the Child Care Act 1991 were transferred to the CFA by the Child and Family Agency Act 2013.
7. In MF v Superintendent of Ballymun Garda Station [1990] ILRM 767, Finlay CJ commented that the difficulty the Court had had in applying the Children Act 1908 in the circumstances of the case at hand demonstrated that ‘the necessity for a modern Children Act making a more efficient and simpler procedure for the protection of children available to the courts remains one of urgency..’ Similarly, O’Flaherty J commented that ‘[w]hile the Children Act 1908 may have been an enlightened piece of legislation when enacted it is now showing its age’.
8. Note that a sub-category of cases known as special care cases, which involve children being detained for their own protection, are processed through the High Court rather than the District Court, reflecting the seriousness involved in any deprivation of liberty. See Part IVA of the Child Care Act 1991 (as inserted by Part 3 of the Children Act 2001), discussed in Kilkelly, Citation2008, pp. 304–314.
9. These include supervision orders (s. 19), emergency care orders (s. 13), interim care orders (s. 17) and full care orders (s. 18). For a comprehensive examination of all child protection mechanisms in Ireland, including voluntary care, see Burns et al., in press.
10. See Articles 41 and 42 of the Constitution and the Guardianship of Infants Act 1964.
11. The right to fair procedures in decision-making (which had previously been a common law right) was given constitutional status in Garvey v Ireland [1981] IR 75 at 97, where O’Higgins CJ stated that ‘by Article 40, s. 3, there is guaranteed to every citizen whose rights may be affected by decisions taken by others the right to fair and just procedures. This means that under the Constitution powers cannot be exercised unjustly or unfairly.’
12. See, e.g., Re JH (an infant) [1985] IR 375; North Western Health Board v HW [2001] 3 IR 622; and N v Health Services Executive [2006] 4 IR 374, as discussed in Kilkelly and O’Mahony (Citation2007).
13. In North Western Health Board v HW [2001] 3 IR 622, the majority judges all referred to circumstances approximating to an immediate threat to the child’s life; an immediate threat of serious injury; or an immediate threat to the child’s capacity to function as a human person. The thresholds set in ss 13, 17, 18 and 19 of the Child Care Act 1991 for the granting of the various child protection orders are phrased somewhat differently, referring to children being assaulted, ill-treated, neglected or sexually abused, and children whose health, development or welfare has been, is being or is likely to be avoidably impaired or neglected. While the constitutional presumption noted above has only been expressly recognised in relation to marital families, the thresholds stipulated in the 1991 Act are the same for all cases, and the present study did not disclose any evidence of the thresholds being applied differently by reason of marital status.
14. In State (DC) v Midland Health Board (High Court, unreported, 31 July 1986), Keane J held that a statutory provision which allowed for the removal of a child from the custody of his parents for longer than was necessary to carry out an assessment of his welfare would constitute a breach of his parents’ constitutional rights.
15. See, e.g., Keating v Crowley [2003] 1 ILRM 88, where a provision allowing for an interim barring order to be granted ex parte without any time limit on its effect was declared unconstitutional as a disproportionate interference with the principle of audi alterem partem. The Court specifically referred to the eight-day time limit in provisions of the Child Care Act 1991 dealing with emergency and interim care orders as a model of how ex parte applications can adequately balance constitutional rights.
16. It is established that the courts have a discretion at common law to lift the in camera rule in the interests of justice or in pursuit of a crucial public interest – see Eastern Health Board v Fitness to Practice Committee of the Medical Council [1998] 3 IR 399. The case law in this area has mostly been focused on the release of documentation, especially to aid in the preparation of litigation or the investigation of allegations, and has generally resulted in parties to whom documents are released being bound to confidentiality as to the contents of the documents. See, e.g., HSE v McAnaspie [2012] 1 IR 548; JD v SD [2013] IEHC 648; Health Service Executive v B (Lifting in Camera Rule) [2013] IEDC 13, and Child and Family Agency v R [2014] IEDC 3 .
17. Child Care (Amendment) Act 2007, s. 3, as implemented by the Child Care Act 1991 (s. 29(7)) Regulations 2012 (SI 467/2012).
18. Courts and Civil Law (Miscellaneous Provisions) Act 2013, s. 8.
21. Health Services Executive v SK [2010] IEDC 2.
22. Health Services Executive v OA [2013] IEHC 172.
23. IEDC 22 and Health Services Executive v PO [2013] IEDC 23.
24. DC05, Practice Direction: Case Management in Child Care Proceedings, available at http://www.courts.ie/courts.ie/library3.nsf/16c93c36d3635d5180256e3f003a4580/84736e284d5c9f5080257c83003c3557?OpenDocument.