Lucy O’Leary *
Children’s Rights in Social Care Setting under Irish law: Reality or Myth??
The recent Irish referendum has given the impression that children’s rights in Ireland will be placed on some sort of an equal footing with that of their parents. However, the reality is somewhat different. The social care setting is an area of law that is of particular controversy due to the inability of the courts to look at these children as independent entities from their biological parents, foster parents and social workers. Their opinions and feelings are largely framed in terms of the opinions of the social work profession and despite the referendum, aimed at placing children at the forefront of all matters concerning them, this will not change. This is due to the lack of a child based approach in the courts and the adversarial nature of this arena.
This article shall look at the reality of children’s rights in the social care setting in Ireland in light of the referendum, and see what, if any, changes have been made to place the child at the forefront of these disputes. It shall place particular emphasis on the right of the child to have a say in where and who shall take responsibility for their everyday care. It shall also look at the impact that both European and international standards play or should play in the voice of the child being properly heard in these cases.
The Irish Perspective
Children’s rights in Ireland have been the source of debate for decades, especially given that Ireland signed and ratified the Convention on the Rights of the Child as early as 1992, and 20 years later, children’s rights had still not been placed within the constitutional framework of this jurisdiction. While the legislative provisions protecting children and potentially giving children a voice are vast, the ‘inalienable and imprescriptible’ rights of the marital family are regarded as the “fundamental law of the state and must be taken as overriding any pre-existing law inconsistent therewith”.
The reality of the marked absence of a child centred approach in the courts has led to much criticism of how Ireland effectively regards the independent rights of the child, as a separate consideration from that of their parents, social worker, foster parents and all other interested parties. The rights of the marital family have led to some extremely contentious decisions by the courts, where the best interests of the child were clearly contrary to the outlook of their parents, but due to the hierarchical system that exists within the Constitution, and the placement of article 41 at the top of that system, the rights of the child were outweighed by the rights of their parents.
This was thought to have changed in light of the recent referendum on children’s rights in Ireland. During the campaigning for the yes vote, many criticisms were made about the language of the new article 42A and how this would not, in reality, change the previous hierarchical system. Despite these assertions, there were also fears that the new amendment would dilute the rights of parents to ‘parent’ their children. The reality however is far removed from these fears. The Supreme court has stated time and time again, that the “sanctity of the family and the enduring existence of parental authority seem….to be guaranteed by the provisions [of article 41 and 42]…..and that the framers of the Constitution considered, and enacted, that the best interests and happiness of the child would be served by its being a member of the parental household”. It is very difficult to see how this will change, given the wording of the new article 42 A.
The wording of the amendment, while it does provide some rights to children, is restricted to cases of guardianship, custody and access, and is preceded by the words “provision shall be made by law”, as is every insertion of the various provision of article 42A. This means that legislation will need to be implemented, in order to give effect to the rights of the child as asserted by this amendment. The Child Care Acts 1991-2011 and the Children Act 2001 provide for all matters regarding children. These are the legislative provisions available to children in Ireland and therefore, it could be said that this amendment offers nothing new to the realm of children’ rights in Ireland.
It could be said that the most important right for a child to have, is the right to have their views taken into consideration in all aspects of their care, a provision that is contained in the Guardianship of Infants Act 1964, s 25, a provision that has not been commenced yet, and which has been described as a ‘relatively mild obligation as it leaves the discretion to the court in relation to the child’s capacity to understand’. While the amendment provides that legislation must be enacted in order to give this provision effect, in the absence of a child centred approach by the courts and the adversarial nature of the system, it could be said that a radical overhaul of the court process would need to be implemented, in order to give proper enjoyment of these rights to children.
The social care system is a further barrier to overcome for children that find themselves encapsulated within it. Not only do they have to try and be heard by their parents and the courts, they also have to try and be heard by their social workers. While the social worker will try and ascertain the views of the child, their obligation is to act in the child’s best interest, which may not correlate with what the child actually wants. This can lead to a further ostracising of the child and a feeling of helplessness in an environment where they already feel loss of control. It has been well established that involvement in the decision making process can increase a child’s “sense of identity, self esteem and personal autonomy”. However, the absence of this approach within the system, can only serve to be of further detriment to the child.
* Lucy O’Leary
BCL 2009 in Griffith College Cork
Studied H Dip in Social Policy 2011-2012, UCC
Currently studying LLM Child and Family Law in UCC 2012-2013
This contribution had been written in preparation for publication in SOZIALEXTRA (issue 4/2013). As it is dealing with the situation in Ireland and gives at the very same time an insight into questions that are of general relevance it is worthwhile to be published also in English, not only in the German translation in the journal.
See on this topic also my own post.
 Child Care Act 1991-2011, Children’s Act 2001
 Article 41.1.1 Bunreacht na hEireann
 Re O’Brien (an infant) (1954) IR 1 at 10, per Davitt P
 Concluding observations of the UNCRC, CRC/C/IRL/CO/2, 29 September 2006, p.2
 N v HSE  4 I.R, Northern Western Health Board v H.W and C.W, (2001) 3. IR 622.
 Re O’Brien (an infant) (1954) IR 1 at 10
 Article 42A.4.1º ii
 As inserted by Children Act 1997
 Annual Review of Irish Law 2004 (Dublin: Round Hall Sweet and Maxwell, 2005) as cited in O’Callaghan, “ Realising the Child’s Right to be Heard in Private Child Contact Disputes: Progress in Practice?” (2010) Irish Journal of Family Law at 9
 J.E Timms, Children’s Representation: A Practitioners Guide (London: Sweet and Maxwell, 1995),p 440 as cited in O’Callaghan, “ Realising the Child’s Right to be Heard in Private Child Contact Disputes: Progress in Practice?” (2010) Irish Journal of Family Law at 1.