The Government's proposed children's rights referendum “will have major implications in the child protection and in the adoption area” one of the country’s leading experts on child law has said.
Geoffrey Shannon, one of the co-authors of a damning report on the deaths of 196 children known to the HSE which was published earlier this week, welcomed the announcement made yesterday in the Dáil by Tánaiste Eamon Gilmore that the referendum would be held in the autumn. No wording has been announced as yet.
Speaking on Morning Ireland, Mr Shannon claimed that the Constitution led to social services intervening too late in a number of cases of child deaths referred to in his report.
He said: “Some children are seriously disadvantaged and are vulnerable to having second best choices made for them by the absence of the provision in the Constitution and with my colleague Norah Gibbons having spent two years looking at children in the child protection system it's very clear to me that the failure to intervene was one of the real problems.
“The deference to parental rights impeded the State in intervening and unfortunately intervention when it arrived was too late for many of these children.”
The Constitution, in Article 41.1.1, acknowledges “the inalienable and imprescriptable” rights of the family to autonomy and in Article 42.1 the family “the primary and natural educator of the child,” a clause which prevents State interference in the married family.
Article 42.5 allows the State to intervene in the family in “exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children”.
However the report itself makes no reference to any specific case in which the Constitutional provisions on the family hindered social workers in assisting vulnerable children.
Mr Shannon acknowledged that there had been serious failures on the part of social workers to implement child care legislation.
However he said that, for many of the social workers involved, “there was this perception that married parents had rights which prevented them from intervening”.
He quoted a Supreme Court judge who had said there needed to be “an immediate and fundamental threat to the capacity of the child to continue to function as a human person deriving from an exceptional failure of parental duty before the State could intervene”.
He said: “My view is that what we need to have is a robust child protection system which enables the State to intervene where it's appropriate, not where the life of the child is at risk, but where the welfare of the child is at risk.”
And he claimed that, had there been a children's rights provision in the Constitution to lower the threshold for State intervention, some of the deaths investigated by his report could have been prevented.
He said: “It would be unfair of me to say that, to calculate the number of children that would still be with us of we had a provision in our Constitution but I'm in no doubt that if intervention had occured at an earlier stage that the outcome would have been different.”
Mr Shannon added that such a referendum needed to make it easier to adopt the children of married families. He said that the 2,000 children in long term foster care were in a “twilight zone between a family that cannot fully care for them and a family that cannot fully have them”.
However, very few children are given up for adoption in Ireland each year regardless of whether their parents are married or not.
In the Dáil, Mr Gilmore said that preparation for the referendum would not be rushed because it had been signalled for some time.
Responding to Fianna Fáil justice spokesman Dara Calleary, who expressed concern the referendum might be “hijacked by people campaigning on issues with nothing to do with the referendum,” he said the referendum was being held on a stand alone basis to avoid this sort of confusion.
He said there was previous experience of referendums being held where a number of issues had been put on the same day.
A number of proposed wordings are being looked at by the Minister for Children, Frances Fitzgerald, including one including the term “best interests of the child”.
A range of legal and social commentators have warned that the term “best interests of the child” could lead to a number of possible pitfalls.
Constitutional expert and recently appointed High Court judge Gerard Hogan said that the phrase “best interests of the child” could be ambiguous.
Everyone, he said, was in favour of the best interests of the child, but, he asked, "who is going to decide what is in the best of the child, and how is this going to be done?"
He told RTE in 2010: “We’re all in favour of the best interests of the child, and there is something of a mother and apple pie dimension to this. But in practical terms you have to ask yourself, when you’re talking about the best interests of the child, who is going to decide what is in the best of the child, and how is this going to be done? And if you’re talking about the State vindicating the rights of the child, you have to remember that this is likely to be officialdom, or some judge making this decision.
Another Trinity lecturer, Dr Oran Doyle, expressed misgivings about the wording. In a speech, also in 2010, Dr Doyle said that the proposed referendum posed the question as to who would decide what the best interests of the child were.
He suggested that Article 42.2.3 of the wording gave a de facto answer to this question, an answer which said might entail "greatly expanded state power and greatly reduced parental autonomy".