The child and the irish constitution



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THE CHILD AND THE IRISH CONSTITUTION

CONTENTS
Introduction 4
I Implied Constitutional Rights of the Child 6

The Preamble 6

Citizenship 7

Article 38 and the Right to a Fair Trial 7

Article 40 and Personal Rights 9

Conclusion 10


II Express Constitutional Rights of the Child 11

Article 41 and the Family 11

Article 42 and Education 12
III Constitutional Limitations on the Rights of the Child 14

Family and Parental Autonomy 14

The Interaction Between the Rights of the Child and the Rights

of the Family 14

The Subsidiary Role of the State 19

Exceptional Circumstances and State Intervention 20

Comparison with the Rights of Children of Marital and

Non-Marital Children 23

Conclusions
IV Recommendations for Reform 26

Deletion of Article 42.5 27

Express Recognition of the Constitutional Rights of the Child 27

The Nature of an Express Constitutional Right of the Child 31

Paramountcy 34

Guarantee of the Rights of the Child 37

Wording and the Irish Text 39

V Conclusion 41



Appendix 1

Twenty-eighth Amendment of the Constitution Bill 2007 43


Appendix 2

Recommendations of the Constitution Review Group in Respect of

The Family and Children 45
Appendix 3

Section 28 of the South African Constitution 47



THE CHILD AND THE IRISH CONSTITUTION
An article by article analysis of the Constitution demonstrates that the child is seldom expressly referred to in the text. In fact children are only expressly referred to in Articles 41 and 42, and even at that these references are consequential or subject to other constitutional personas i.e. the State or parents. It would appear that the only express constitutional right a child enjoys is that of a minimum standard of education,1 although arguably it is for the State to invoke this provision. It is noted that Article 42.5 refers to the “natural and imprescriptible” rights of the child, but this provision only operates where parents have failed in their duty towards their children.
Notwithstanding this, children enjoy other constitutional protections as citizens of this State. The Supreme Court in Re Article 26 and the Adoption Bill 1987 held that a child is entitled, where appropriate, to invoke Articles 40 to 44:
“The rights of a child who is a member of a family are not confined to those identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43 and 44.”2
Moreover, Article 40 sets out a general guarantee to protect fundamental personal rights. The courts have affirmed that many of the most important rights of the child – including the right to have his or her welfare taken into account as a key priority in proceedings – derive from this Article. It should be noted, however, that Article 40.3 only obliges the State to safeguard the unspecified ‘personal rights’ of the citizen. The vagueness of this definition creates the possibility that the courts will read rights into, or out of, this provision. It is thus perhaps too imprecise to be regarded as a reliably consistent constitutional commitment to the rights of the child.
This submission shall first analyse the indirect constitutional rights of the child. These provisions do not expressly refer to the child, but, as a citizen of this State, the child is entitled to rely on these articles. It is then proposed to examine the constitutional provisions that are directly referable to the child. As shall become clear, both the express and indirect rights of a child fail to adequately account for the special position of the child in our society. In fact most of these rights are not directly applicable, but instead operate as a consequence to another event. Furthermore, an examination of the constitutional limitations on the rights of the child shall illustrate the subservient position of the child in the Constitution. On foot of this analysis one could cogently argue that children do not enjoy the benefit of constitutional rights by virtue of the fact that they are constantly undermined by the rights of other constitutional personae, and even if such obstacles can be overcome it is difficult to imagine the circumstances within which the rights of a child may be vindicated owing to the fact that their function has been so narrowly construed so as to only operate in exceptional circumstances. In light of this, certain amendments shall be recommended in the final part of this submission. It is hoped that these suggestions will stimulate debate in this area and be considered in conjunction with the 2007 Bill so as to ensure an informed, reasoned and comprehensive debate on this all important topic.

I: IMPLIED CONSTITUTIONAL RIGHTS OF THE CHILD
This section shall examine some of the constitutional provisions that implicitly apply to children. Such provisions tend to be constructed in broad terms, thereby raising the question as to whether they provide adequate and definitive protection to the welfare and interests of the child.

The Preamble

It should first be noted that the Preamble to the Constitution commits the State to the pursuit of a number of goals, including, inter alia, the ‘promot[ion] of the common good’, the protection of ‘the dignity and freedom of the individual’, and the attainment of ‘true social order’. Relied on by the courts in a series of cases, these objectives could potentially apply to cases concerning the rights and interests of children. In the case of A. v. Governor of Arbour Hill,3 wherein the Applicant sought to be released from imprisonment on the grounds that the offence of unlawful carnal knowledge under s.1 of the Criminal Law Act, 1935 of which he had been convicted, had subsequently been struck down, Murray C.J. in justifying his decision to refuse the application for release relied, in part, on the Preamble’s desirous notion of ‘true social order’.


Nonetheless the Preamble’s references to ‘the common good’, ‘dignity and freedom’, ‘Prudence, Justice and Charity’, and ‘true social order’ are so vague and indeterminate that it is difficult to predict the manner in which they may be interpreted in particular cases. Their generality means that in any individual case “they add little to the more precise terms of the relevant Articles”4 in question. It is thus impossible to conclude whether they might have a positive or negative impact on the constitutional position of the child. As Hogan and Whyte have noted, from the point of view of the citizen (or child) seeking to rely on the provisions of the Preamble they “can be as easily used against them as in their favour”.5

Citizenship

Article 2 sets out the entitlement of every person born on the island of Ireland to Irish citizenship. The language of the text thus dictates that every child born in the Republic of Ireland, or in Northern Ireland, is entitled to claim Irish citizenship, and all the privileges, duties and rights entailed therein. This is clearly an important right for the child, as citizenship is a prerequisite to the enjoyment of certain rights, such as, for example, the right to obtain an Irish passport.6


This has been qualified by Article 9.2.1° however, which provides that a child born in the island of Ireland will not automatically be entitled to citizenship if he or she does not have “at least one parent who is an Irish citizen or entitled to be an Irish citizen”.7 This restriction only applies to children born after 1 January 2005, at which date the Irish Nationality and Citizenship Act 2004 came into force. This Act bestows citizenship on those children whose parents were resident in Ireland for three of the four years before birth, thereby demonstrating a genuine link to the State.

Article 38 and the Right to a Fair Trial

Article 38.1 provides that “no person shall be tried on any criminal charge save in due course of law”. This has been held by the courts to create a constitutional right to a fair trial which equally applies to children. Therefore, in cases where a child is accused of a crime he or she shall receive the same constitutional protections as any other citizen.


That said however, in cases where a child is a victim of an offence, Article 38 might be seen to create problems from a child protection perspective. As the constitutional source of the various procedural protections to which an accused is entitled, this Article can sometimes be perceived as a limitation on the ability of the State to vindicate the interests of a victim of an alleged crime. This opinion was notably voiced by media commentators in respect of the decisions in C.C. v. Ireland8 and A. v. Governor of Arbour Hill Prison.9 In the case of C.C. the Supreme Court deemed the strict liability offence of unlawful carnal knowledge of a girl under 15 years of age, pursuant to section 1(1) of the Criminal Law (Amendment) Act 1935, to be unconstitutional. On foot of that decision the case of A. concerned a habeas corpus application on the basis that the Applicant was been imprisoned on foot of an unconstitutional offence. These cases sparked a mass public debate which, amongst other things, called for a constitutional amendment to expressly recognise the rights of the child.
There are a number of difficulties with seeking to invoke such an amendment so as to prevent the recurrence of similar cases. First it is salutary to note that in a trial situation the case is between the accused and the State, not the victim. Therefore the individual rights of the victim, or any amendment thereto, may not affect the course of a trial.

Secondly, it is important to realise that the Supreme Court in C.C. did take into account the rights of the child as “a legitimate end to be pursued by appropriate means”. The interest of the State in child protection was thus already a factor in the Court’s conclusion in this case. However, the court held that, despite this objective, the infringement of the accused’s rights was not justified. As Hardiman J. noted, the consequence of section 1(1) was that an individual who reasonably believed that a girl was not under the age of 15 would have their constitutional rights reduced to nought on the basis of a general social interest in deterring underage intercourse. A morally blameless individual would thus have their constitutional rights sacrificed on behalf of a social policy. The key problem with any attempt to restore a strict liability regime is that it is so offensive to our existing constitutional conception of the rule of law that it is almost impossible to justify. It is thought that a specific constitutional recognition of the importance of child protection would not alter the outcome of the case because, as already stated this was a factor to which the court had regard.

Moreover, even if the interests of the child were to be given constitutional status so as to be taken into account in the course of a criminal trial where the victim is a child, an argument could be made that the strict liability regime itself actually offends against the rights of any accused who is also a child. It is arguable that children, by virtue of their greater exposure to, and interaction with fellow children, are more likely to be at risk of unwittingly committing the offence of unlawful carnal knowledge. A strict liability regime therefore would criminalise those children who have consensual sexual intercourse with other children. Therefore a constitutional amendment seeking to safeguard the rights of children may not provide a solution to a C.C. situation.

Article 40 and Personal Rights

This Article guarantees a number of important fundamental rights, including the right to equal treatment, the right to life, the right to liberty, freedom of expression, freedom of association and assembly, and the inviolability of the dwelling place. It also commits the State to the protection of the ‘personal rights’ of the citizen, an open-textured formulation which has been interpreted by the courts to include rights which are otherwise not specified in the Constitution, commonly referred to in legal parlance as unenumerated rights.


Although none of the various elements of Article 40 make specific reference to the position of the child, some attempts have been made to identify the rights of the child under the Article 40.3 guarantee to protect the “personal rights of the citizen from unjust attack”. O’Higgins C.J. in G. v. An Bord Uchtála found, for example, that:
“The child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being.”10
Finlay-Geoghegan J. expressed the view that:
“[T]he right of a child to have decisions in relation to guardianship, custody or upbringing, taken in the interests of his/her welfare is a personal right of the child within the meaning of Article 40.3 and therefore one which the State pledges to vindicate as far as practicable.”11
MacMenamin J. applied this right in the ‘Baby Ann’12 case in reaching the decision to grant custody of the child in question to her prospective adopters, rather than her natural parents. However, this decision was reversed on appeal to the Supreme Court which favoured the more traditional approach in determining that the interests and welfare of a child are best protected within the child’s constitutional family.

Conclusion

As is evident from the foregoing the broad terms of the Constitution are capable of incorporating the interests of the child, but it is equally clear that each such reference is capable of being overruled by another provision. These references lack the clarity and certainty required to definitively state that our Constitution does adequately cater for the interests of children. As shall become imminently clear the following analysis of the express constitutional rights of the child does little to appease this opinion.


II: EXPRESS CONSTITUTIONAL RIGHTS OF THE CHILD
This section examines the constitutional provisions directly referable to the child and his or her upbringing. As shall become evident, the child in a constitutional context is only expressly referred to in relation to other constitutional personae, most notably parents and the family unit, with the State occupying a subsidiary role. As a supplement to this section, the subsequent section shall demonstrate the truly subservient role which children’s rights currently engage in the Irish Constitution by virtue of the limitations and restrictions contained therein.

Article 41 and the Family

Article 41 concerns the family based on marriage. Although the only express reference to a child in this Article is in relation to the requirement to make proper provision upon divorce, it is implicit that as a member of a constitutional family the child does benefit from consequential rights. Finlay C.J., relying on Articles 41 and 42 stated that:


“The infant, being the child of married parents, now legitimised, has … rights under the Constitution as a member of a family, which are

  1. to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law;

  2. to protection by the State of the family to which it belongs, and

  3. to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education.”13

Indeed the child of a non-marital family enjoys the same rights, as is evident from the dicta of Gavan Duffy P. in Re M. wherein he confirmed that a child born outside marriage “has the same ‘natural and imprescriptible rights’ as a child born within wedlock”.14 However, a child does not enjoy the right to be a member of a family solely by virtue of his or her birth to his or her parents, as in the jurisprudence of the European Court of Human Rights in interpreting the European Convention on Human Rights.15 Instead, under Irish jurisprudence a child only becomes a member of a family if his or her natural parents are married to one another. There are various concomitant effects arising from this mode of thinking which most notably arise in the context of adoption. The recent Supreme Court decision in the ‘Baby Ann’ case is demonstrative of the fact that in the eyes of the Irish courts the welfare and best interests of a child are best served by placing the child within a constitutional family which consists of parties who may well be strangers to the child, rather than allowing the child remain in the custody of parties who have acted in loco parentis for the majority of the child’s life. It is difficult to decipher what constitutional rights, if any, of the child are being vindicated and protected in such a scenario. Instead it would appear to be bolstering the rights of the natural parents, which may well be contrary to the best interests of the child in question. It is pertinent to remember that a natural parent’s right to his or her child may not always accord with the child’s right to have his or her welfare protected.



Article 42 and Education

Article 42 deals with the right to education, although it is true to say that it has more to do with the Family, thus almost acting as an addendum to Article 41. The constitutional concept of education is broader than scholastic education and includes the general upbringing of the child which is a duty bestowed upon parents with the State acting in a subordinate role. Although the State is obliged to provide for free primary education, Article 42 also acknowledges the primacy of the Family as an educational provider. Article 42.3.1° further specifies that the State cannot oblige parents to send their children to a particular school, or type of school “in violation of their conscience and lawful preference”.


Education has been interpreted broadly by the courts to include forms of developmental training beyond those involved in traditional academic schooling. This Article was thus relied on in relation to claims by children with disabilities that the State was making inadequate provision for their educational welfare. The utility of this right was, however, arguably limited by the refusal of the Supreme Court in Sinnott16 and T.D.17 to compel legislative and executive expenditure on the enforcement of this socio-economic entitlement.


III: CONSTITUTIONAL LIMITATIONS ON THE RIGHTS OF THE CHILD
This section shall examine the limitations imposed by the Constitution itself on the exercise of the rights of a child. The analysis thus far has demonstrated that children’s rights play a minor role at best within the Irish Constitution. The following examination shall demonstrate that when considered in conjunction with other constitutional rights, the rights of the child occupy a subservient role within the Constitution as it currently stands.

Family and Parental autonomy

The Constitution’s protection of the notion of parental or familial autonomy has the potential to produce sub-optimal welfare outcomes for the child members of such units. It is submitted that the constitutional portrayal of the family as an autonomous unit, immune from everyday State intervention, adversely impacts on the protection of the rights of the child.


Articles 41 and 42 of the Constitution demonstrate a strong commitment to the conception of the family as an independent decision-making body. The family is described as the “primary educator” of children, its significance assured by the Constitution’s depiction of it as a “moral institution possessing inalienable and imprescriptible rights”. As the “natural primary and fundamental unit group of society”, it is thus heavily protected from State interference.

The Interaction Between the Rights of the Child and the Rights of the Family

It is submitted that at the crux of any proposed amendment in relation to the rights of the child it is necessary to contend with the issues arising from the current interaction between the rights of the family unit and those individuals within it. Article 41 has been held by the courts to protect the autonomy of the family as an institution. Costello J. concluded in Murray v. Ireland that:


“The rights in Article 41.1.1 are those which can be properly said to belong to the institution itself as distinct from the personal rights which each individual member might enjoy by virtue of membership of the family.”18
Kenny J. had similarly held in Ryan v. Attorney General that Article 41 addressed the question of the constitutional protection of the family “in its constitution and authority”.19 This Article thus appears to govern the relationship between the family unit and external actors, such as the State. Article 42, on the other hand, addresses the distribution of authority within the family unit, vesting primary responsibility for the education of the child in its parents.
It is clear therefore that the family’s right to autonomy from State interference is established in strident and expansive terms in the constitutional text. The courts have, however, emphasised that these rights, despite being described as imprescriptible and inalienable, are not absolute.20 The Constitution’s commitment to the independence of the unit could not, for example, overbear an individual’s right to be protected against injurious attack by another family member.21 An infringement of Article 41 and 42 could similarly be upheld where the dictates of public policy or of the common good so demanded.22 It is thus inaccurate to suggest that the rights of the family automatically outrank the rights of the child. As Denham J. stated in her decision in the case of North Western Health Board v. H.W.:23
“The child is the responsibility of the parents. The rights of the parents in exercising their responsibility are not absolute; the child has personal constitutional rights. The child has rights both as part of the unit of the family and as an individual.”
The courts evidently accept that there is a need for a balance to be struck between the personal rights of individual family members and the autonomy of the unit, and of the parents. Denham J., in her judgment in H.W., subsequently commented:
“The court has a constitutional duty to protect the life or health of the child from serious threat and the court has a constitutional duty to protect the family. A just and constitutional balance has to be sought.”24
The particular nature of this balance must therefore be a key concern for any examination of the Constitution’s protection of the rights of the child. The focus of this analysis will thus fall on the courts’ perception of the point at which State intervention on behalf of the child is constitutionally permissible.
The first obstacle to any attempt by the State to undertake child protection measures is the presumption that the welfare of the child is best served by its membership of the constitutional family unit. The Supreme Court in J.H. held that the protected autonomy of the marital family established a “constitutional presumption that the welfare of the child … is to be found within the family”.25 Furthermore, Finlay C.J., in reliance on Article 42.5, concluded that this presumption could only be rebutted where:
“[T]he Court is satisfied on the evidence that there are compelling reasons why [the welfare of the child] cannot be [found within the family], or … the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and continue to fail to provide education for the child for moral or physical reasons.”26
The recent Supreme Court decision in the ‘Baby Ann’27 case reiterated this constitutional presumption and emphasised the importance of establishing a failure of parental duty, thereby illustrating the prevailing acceptance of this traditional constitutional balance.

The fact that this reasoning established a very high threshold for State intervention was clearly demonstrated in the case of North Western Health Board v. H.W..28 The case concerned the refusal of a child’s parents to allow a diagnostic PKU test to be conducted on their child. The test involved the taking of a sample of blood by way of a heel-prick, and had been proven to reduce the incidence in Ireland of a number of serious childhood illnesses. The performance of the test was thus, as Murphy J. admitted “beyond debate … in medical terms, … unquestionably in the best interests of the infant”.29


The majority of the Court nonetheless concluded that the parents were entitled to refuse to allow their child to undergo the test. The constitutional presumption that the child’s welfare is generally found within the family unit thus operated to expose the infant in question to a danger which, the deciding judges accepted, was not in his best interests. “Unwise and disturbing”30 as the parent’s decision appeared, the Supreme Court felt that the autonomy of the parents prevented the State from ensuring that the child received the medical treatment which an overarching concern for his welfare would require.
In keeping with his judgment in H.W., Hardiman J. in the later case of ‘Baby Ann’ appeared to regard the rights of the child in terms of the relative rights of parents and third parties. In interpreting the rights of the child Hardiman J. appears to suggest that these rights do not have an independent existence. Rather, a child’s rights operate in practice as a right to decisional primacy over the care of the child. The child does not appear in the court’s assessment of individual entitlements. The question instead is one of whether the parents or some third party ought to exercise control:
“A right conferred on or deemed to inhere in a very young child will in practice fall to be exercised by another on his or her behalf. In practice, therefore, though such a right may be ascribed to a child, it will actually empower whoever is in a position to assert it, and not the child himself or herself.”31
Hardiman J. thus envisaged the constitutional protection of the rights of a child as a choice between the effective vesting of those rights in the parents, on the one hand, or a third party such as the State, on the other. He thus argued that the current regime “does not prefer parents to children”, but rather “prefers parents to third parties, official or private, priest or social worker”.
There is, of course, some merit in this view. However, it is arguably based on a narrow conception of the character of a child’s entitlements under the Constitution. Hardiman J. views these in strictly subjective and autonomous terms. A right, in his opinion, is necessarily connected to an individual’s autonomy. It guarantees the individual’s ability to make his or her own judgments and decisions in respect of particular matters. In the context of a child, these decisions are those related to the upbringing and welfare of the child. This sort of autonomy-entitlement cannot be exercised by a young child.
Hardiman J. neglects, however, the possibility of a constitutional entitlement to an objective level of treatment. Such an outcome-oriented conception of entitlements is alien to our traditional understanding of the rights of adults in a liberal system. In terms of children’s rights, however this welfare-oriented understanding of rights has been accepted by many commentators.
This is important from the point of view of any possible amendment to the Constitution. On Hardiman J.’s analysis, the rights of the child are effectively vested in another party until such time as he or she is in a position to exercise them himself or herself. Thus, any greater protection of children’s rights would simply increase the rights of the party holding those rights.
If there is a desire to increase the objective protection of children from harmful situations, it may therefore be necessary to include an express welfare component in any definition of the rights of the child. Any amendment would necessarily have to declare that the entitlement being created is one to an objective level of treatment, if it was to achieve its aim. This would not necessarily have to reduce the primacy of the parents’ subjective decision-making, when compared to that of the State. It would, however, ensure that where the decisions of any party, parent or State, could be shown to adversely impact on the child, its entitlement to have its welfare ensured would be vindicated by the courts.

The Subsidiary Role of the State

The court’s interpretation of the constitutional text reflects a clear conception of the State as simply an ancillary protector of children’s rights. Denham J., having identified the necessity for a balance between parental autonomy and the personal rights of the child, felt that “[t]he people have chosen to live in a society where parents make decisions concerning the welfare of their children and the State intervenes only in exceptional circumstances”.32 Murphy J. agreed that the Constitution “relegat[ed] the State to a subordinate and subsidiary role”, concluding that “[t]he failure of the parental duty which would justify and compel intervention by the State must be exceptional indeed”.33


From the point of view of child protection, there are, therefore, two chief objections to the Constitution’s approach to parental autonomy. The first is that it “plainly accords a primacy to the parent and [that] this primacy … gives rise to a presumption that the welfare of the child is to be found in the family exercising its authority”.34 The second difficulty is the fact that the courts have, by analogy with the terms of Article 42.5, generally allowed the State to rebut this presumption and intervene on behalf of the child only in the narrow and limited context of ‘exceptional circumstances’ of parental failure.
In light of the courts’ conclusion that the personal rights of the child arise in Article 40.3, the judiciary’s treatment of the State as the subsidiary guarantor of these rights is somewhat surprising. Article 40.3, after all, obliges the State to “defend and vindicate” these rights “as far as practicable”. There exists, therefore, a positive duty on the State to actively protect the personal rights of all citizens. However, in the case of children, this duty is effectively delegated to a third party.
Furthermore, the duty is delegated to a third party which, by virtue of Article 42.5, is immune from State scrutiny or intervention except in exceptional circumstances. Alone of the State’s citizenry, the State therefore appears to owe its children a reduced obligation under Article 40.3. For all others, the State must act “as far as practicable” to uphold their rights. For children, however, the State is not obliged and in fact is not entitled to intervene except in a very limited context.
This high threshold for State intervention thus undermines the extent to which a child can successfully assert its entitlements under Article 40.3.

Exceptional Circumstances and State Intervention

The Supreme Court held in Re Article 26 and the Adoption Bill (No.2) 198735 that Article 42.5 applied not only to the failure of parents to provide education but also to a failure to secure the “other personal rights of the child”. This Article, with its requirement of “exceptional circumstances” of “physical or moral” failure, thus became the jurisdictional template for State intervention in defence of the rights of the child.


In the context of the adoption of children of married couples Finlay C.J. held that the requirement of failure would not be satisfied by a “mere inadequacy of standard in the discharge of parental duty”. Failure must be total, and must arise for physical or moral reasons. It must be a joint failure by both parents but it need not be blameworthy. Such a strict definition of the concept of failure implicitly precludes State intervention in a situation in which actions of parents which fall short of total failure nonetheless have an adverse impact on the welfare of their child.
The statutory insistence on proof of abandonment, which is interpreted in an objective manner, in the context of what became the Adoption Act 1988 was described by Finlay C.J. as indicative of a “special regard for the constitutionally protected parental rights”. This leaves open the question of whether a requirement of abandonment is actually mandated by the Constitution’s commitment to parental autonomy. At present, however, it is regarded as a necessary additional proof in cases of adoption. Thus, the possibility exists that the requirement of abandonment might not be satisfied, even in situations where a total failure of parental duty has been established.36 This should, however, only apply to the actual adoption of the child. It ought not preclude State intervention in defence of its welfare.
The State’s ability to ensure the welfare of the child in the constitutional family is inhibited not only by the court’s strict construction of the concept of failure, but also by the insistence on proof of exceptional circumstances. This is further compounded by the approach taken to date by the Irish courts in examining such cases. As already noted, there is a presumption that the best interests of the child are served within the constitutional family. In addition the Supreme Court has taken the view that, in cases in which the actions of a parent are at issue, “[i]t is presumed that his or her actions are in accordance with the best interests of the child.”37 This clearly indicates that the courts will not examine the welfare implications of a parent’s conduct unless some positive “evidence [is] produced that it would not serve [the child’s] best interests”.38 As highlighted in the earlier examination of the decision in J.H., as upheld in the recent ‘Baby Ann’ case, the State will only be permitted to intervene where it can satisfy the Court that there are exceptional circumstances, or compelling reasons, to allow it.
This was reiterated in the decisions of the majority of the Supreme Court in H.W.. The individual judges furnished a variety of examples of situations in which they would regard State intervention as justified. Denham J. felt that exceptional circumstances could include the existence of an immediate threat to the health or life of the child. Murray J., as he then was, similarly spoke of an immediate and fundamental threat to the capacity of the child to continue to function as a human person, deriving from an exceptional dereliction of parental duty. Murphy J. meanwhile referred to an instance of parental neglect which would constitute an abandonment of the child and of all rights in respect of him.
Furthermore, the threshold for State intervention was, if anything, raised by the recent Supreme Court decision in ‘Baby Ann’. The Court in that case emphasised that the constitutional presumption in favour of parental autonomy could only be rebutted where a failure of parental duty had actually been established.
The judges went further, however, to consider what could constitute a failure of duty on the part of the parents. The Court held that, where no issue of physical incapacity was raised, a failure of moral capacity would have to be established. A failure on this ground could only be established by blameworthy or culpable parental conduct. The mere giving up of a child for adoption could not, in the Court’s view, be regarded as blameworthy.
This decision arguably makes the already elevated criteria of Article 42.5 even more difficult to satisfy. This is especially so given the general reluctance of courts to attribute blame or fault in such sensitive matters. A court may be unwilling (and, arguably, it would be unsatisfactory on policy grounds) to readily accuse individuals of morally culpable conduct in their dealings with their child. This is reflected in Hardiman J.’s view that:
“[I]n a case such as this where there is no question of physical incapacity to rear a child, an allegation of failure in duty to the child is … a very grave allegation.”39
These tests create an obvious risk that the State could be prohibited from intervening to prevent parental actions which have a negative impact on the welfare of the child, where those actions fall short of these raised thresholds, a point starkly evident in the above mentioned case of H.W..

In his judgment in H.W. Hardiman J. appeared to suggest an additional restriction on State intervention under Article 42.5. The learned judge was of the opinion that the authority of the family is incapable of temporal subdivision.40 He thus envisages intervention by the State only in situations in which it is to supplant the place of the parents entirely. This would logically seem to prohibit any transient interventions by the State to address a temporary risk. This could further expose a child to the danger of occasionally detrimental conduct on the part of its parents which nonetheless fails to justify its removal from the family entirely.



Comparison with the Rights of Children of Marital and Non-Marital Parents

The presumption that the welfare interests of a child coincide with its membership of a marital family, allied to the Article 42.5 inspired exceptional circumstances threshold for State intervention, clearly reduces the level of protection which a child is entitled to expect from the Irish constitutional order. That this is unquestionably the case is demonstrated by a comparison of the way in which the courts have treated the rights of children under Article 41 and 42, with the rights of those children of unmarried couples which rest entirely on Article 40.3.


The absence of an Article 41/42 dimension allows the court to treat the welfare of the child of a non-marital couple as its primary and paramount concern. The rights of the child’s parents are recognised by the courts, but are only a subsidiary factor in its overall welfare assessment. In the cases of K. v. W.41 and W.O’R. v. E.H.42 the applicants were natural fathers seeking to assert guardianship rights over their children so as to partake in any subsequent adoption process involving the respective children. Although dismissing both applications the Courts set out the rights of the natural father in a child-centred fashion. Unencumbered by pre-existing assumptions, the welfare of the child was examined in the context of the actual circumstances of his case. The constitutional entitlements of the father were thus dependent on the extent to which the relationship would benefit the child. Hamilton C.J. summarised the position as follows:

“[T]here may be considerations appropriate to the welfare of the child … as may make it desirable for the child to enjoy the society, protection and guardianship of its father …. The extent and character of the rights of the [natural] father of a child … accrue not from any constitutional right vested in the natural father to be appointed guardian but from the relationship of the father to the child.”43


A similar overriding concern for the welfare of the child is evident in the court’s treatment of the rights of the natural mother. The rights of the natural mother in respect of her child have long been established as more extensive than those of the father.44 Unlike the father, for example, the consent of the mother was required in the case of an adoption. Despite the Constitution’s strong protection of this right, however, the courts have subjected these rights, where appropriate, to the interests of the child. In Northern Area Health Board v. An Bord Uchtála,45 for example, McGuinness J. allowed an adoption to proceed without the consent of the mother where the mother was regarded by experts as unable to care for her child.
It would appear, therefore, that two very different child protection regimes exist within the parameters of the Irish Constitution. In cases concerning the children of non-martial couples, the welfare and interests of the child are treated as the court’s primary concern. Issues of parental rights are examined in terms of their impact on the welfare of the child. The court is charged with the contextualised assessment of the evidence before it, aiming to establish, on balance, what will actually be in the best interests of the child.
Cases involving the rights of children of marital couples are of a very different order. The court is not asked to examine the best interests of the child. On the contrary, the task in such cases is to consider if exceptional circumstances of parental failure have been shown, such as would allow the State to intervene to protect the child. The logical corollary of this type of analytical approach is that neither the courts nor, consequently, the relevant State authorities, are entitled to act in situations in which welfare-adverse treatment of the child exists, but does not satisfy the designated constitutional criteria.
From the point of view of child protection, this is obviously unsatisfactory. The fact that, as the decisions in H.W. demonstrate, the threshold for State intervention is set at such a high level inevitably exposes children to the risk of unchecked infringements on the part of their parents of their Article 40.3 rights. The conclusion to be drawn from this overview of the constitutional caselaw must therefore be that the continuing influence of Article 42.5 constitutes the biggest single obstacle to a successful child protection regime. The notion of parental autonomy, of itself, need not overbear the interests of the child. However, a situation in which the State is entitled to act – in fulfilment of its express constitutional duty to uphold the personal rights of its citizens – only in a limited and much-constrained context is a matter of concern.

Conclusions

As is clear from the foregoing analysis, the operation of Article 42.5 is the antithesis of an effective constitutional child protection system. Its fundamental premise is contrary to the desired objective. Article 42.5 is based on establishing a failure of parental duty and is therefore constructed in negative terms and indeed has been interpreted accordingly. It is submitted that what is required is a positive and purposive approach to child protection within the Constitution. There is a need to adequately recognise the child as being an individual constitutional persona entitled to, and capable of, enjoying the benefit of constitutional rights. To achieve this it is necessary to positively vest constitutional rights in the child. Such an amendment would remove the need to prove that there has been an initial failure on the part of other persons or entities before asserting the child’s constitutional entitlements. Rather, the child will always be deemed entitled to enjoy the benefits which the Constitution may bestow on him or her. In light of these observations the following section details a number of recommendations for reform.


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