Fr Peter McVerry SJ makes the case for the kind of amendment to the Constitution that would adequately protect the best interests of the child.
The unmarried parents of Baby Ann placed her for adoption when she was three months old. Two years later, now married, they sought her return. The High Court rejected their request on the grounds that Baby Ann would be psychologically damaged if she were now to be removed from her foster parents. However, the Supreme Court overturned the High Court judgement because, under the Constitution, the child had to be returned to the natural parents, as their behaviour in placing the child for adoption did not constitute ‘failure’ to fulfil their duty to Baby Ann.
This difficult case highlighted the fact that the focus of the decision was not so much Baby Ann’s best interests but the constitutional rights of the parents. The Supreme Court would, almost certainly, have made a different decision if Baby Ann’s parents had remained unmarried. The Constitution is the primary source of domestic law and as such, it gives direction to the Oireachtas for the framing of legislation, and also to the courts as they seek to balance competing rights and interests.
Articles 41 and 42 of the Constitution provide constitutional protection for the marital family and create the principle of parental authority in relation to children. This gives the rights of married parents precedence over the interests or needs of the child. Only in exceptional and limited circumstances can the State intervene in family life, in the best interests of the child.
In the vast majority of families, there is, of course, no conflict. But in families where there may be a conflict between the interests of the family and the interests of the child, the rights of the family almost always take precedence.
The Constitution was written in 1937, a time when it was believed that children should be ‘seen and not heard’; almost all families were marital families headed by a father; and in the context of the rise of communism and fascism in Europe, there was a fear that the State could pose a threat to family rights.
Given the economic, social and cultural changes that have occurred over the past seventy years, the Constitution needs to be amended to reflect modern thinking. Children are no longer viewed as the property of their parents; they are recognized as members of society. The Constitution needs to reflect society’s belief that childhood is to be protected and valued and it needs to include an express statement that children have individual rights.
Over the years, a number of official reports have recommended that the Constitution be amended to
strengthen the protection afforded to children’s rights. These include: the Kilkenny Incest Investigation (1993) and the Constitution Review Group (1996).
An amendment to the Constitution requires a statement that the State will facilitate children to reach their full potential, by including the child’s right to health, housing, social supports and play and recreation, alongside education. Such an amendment – if carefully worded – need not undermine the current strong protection given to the family by the Constitution; quite the opposite, in fact.
Affirming the rights of the child in the Constitution would place an onus on the State to support children and their families by providing a range of child and family support services. Indeed, the amendment should also recognize the right of the child to be reared by their parents, where possible.
At present, most High Court actions to secure the rights of children are initiated by the child’s parents because the State has failed to provide the educational or therapeutic services which they need. Indeed, in the Baby Ann case, it was the failure of the State to ensure her parents had adequate support to rear her that prompted them to give her up for adoption.
In those few cases where the best interests of the child are in conflict with the wishes of the parents, an amendment to the Constitution would allow the Courts to protect the needs of the child by making judgements based equally on the rights of the family and of the child. At present, because the rights of the family are expressly recognized in the Constitution and the rights of the child are not, it is often not possible for the Courts to give sufficient weight to the rights of the child.
The amendment should also enable the State to fulfil its duty to intervene when deemed necessary in order to uphold children’s rights. At present, the State is permitted by the Constitution to intervene only ‘in exceptional cases, where the parents, for physical or moral reasons, fail in their duty towards their children’ (Article 42.5).
The amendment should also state the right of the child to be protected from all forms of physical, emotional and sexual abuse or exploitation. This would provide the basis for ensuring an adequate and comprehensive State response to children who have been abused or are at risk of abuse.
A Constitutional amendment affirming the rights of the child would remove the virtually invisible status of the child in the Constitution, allowing the Courts to balance the rights of the child with the rights of the family. It would also put an onus on the State to ensure that adequate family support systems are in place to allow parents to rear their children, in circumstances where the exceptional needs of the child, or of the parents, make it difficult.
This article first appeared in The Messenger (May 2008), a publication of the Irish Jesuits.
