The Constitution Of Ireland And The Un Law Family Essay

Published Date: 02 Nov 2017

Introduction,

To put the ‘welfare principle’ into its proper legal context it is useful to first consider

the law governing this principle and its application/interpretation by the Irish Courts.

As in all matters concerning children, the welfare and the best interests of the child is a primary consideration. In that respect the Constitution of Ireland and the UN 1989 Convention on the Rights of the Child (UNCRC) provide the guiding principles which inform the current legislation and jurisprudence in this regard.

The law recognises that children have rights and that these rights must be respected and protected. Such rights have been held by the courts to be confirmed by the constitution under article 42.5 which refers to the ‘natural and imprescriptible rights of the child’, and also Article 40.3 which refers to the personal rights of the citizen, there is judicial debate [1] as to which provision confirms the individual rights of the child but it is common case that the rights of the child are distinct and separate legal rights [2] .

Shatter specifically states that when the Courts have been asked to balance family rights with the personal rights of the child , the rights of the child as an individual have not always been given adequate recognition and protection, and this has led to some confusion as to the constitutional soundness of treating the welfare of the child as the paramount consideration in the determination of disputes concerning a child’s upbringing between parents and third parties [3] ,

A constitutional amendment to expressly provide that the welfare of the child is the paramount consideration in the resolution of all disputes over a child’s upbringing was proposed by the Constitutional Review Group [4] in 1996, and was only recently passed by referendum in November 2012.

The law also acknowledges that both the Constitution and the UNCRC place the rights of children against the background of responsibilities and rights of parents. Therefore the law and the judiciary are required to give due respect to these competing rights and responsibilities.

In this context, it is important to ensure that respect for the rights of the child also takes account of an objective assessment of what is in the child’s interests. [5] 

In Irish law, the ‘best interest’s test’ or ‘welfare principle’ forms part of the legal framework applicable to decisions about children. Thus, section 3 of the Guardianship of Infants Act 1964, section 24 of the Child Care Act 1991 and section 24 of the Adoption Act 2010 , each of which set out general principles concerning the paramount importance of the welfare of the child and also the need to take account of the views of the child require that decisions concerning children be based on their best interests [6] ,

The approach of the Supreme Court in the G case, the North Western Health Board [7] case and the McK [8] case recognises a number of important points: that a child has rights that are independent of any right of the parent as such; that these rights are, during the child‟s early years, exercised on behalf of the child, usually by the child‟s parents or guardians; that the rights remain the rights of the child as they develop towards maturity and adulthood; and that there are various points, sometimes based on an age threshold and sometimes based on an assessment of maturity and capacity, at which the law recognises that the child can exercise these rights independently of their parents or guardians even before they reach full adulthood at the age of 18. As a result, the law acknowledges that a person under 18 years of age is, in a number of contexts, an independent rights-holder that is commensurate with the progressive development and maturity of that person

The best interests test has sometimes been criticised as amounting to no more than a simple paternalistic test of "parents know best". When the best interests test is seen, however, in the light of a rights-based approach, it is clear that it is not paternalistic in nature but has an objective aspect that ensures an appropriate level of protection against outcomes that would be inconsistent with the rights of children.

This objective aspect of the best interests test has been emphasised, for example, in the 2009 decision of the Supreme Court of Canada in AC v Manitoba (Director of Child and Family Services [9] ). It is notable that the best interests test has also been incorporated into international rights-based instruments on children, including the 1989 UN Convention on the Rights of the Child.

This objective best interests test ensures, therefore, that outcome in an individual case is not to be equated with the particular preferences of the person under 18, his or her parents or guardians (subject to the presumption that their views should be given priority under Article 41), still less of any person acting in the place of parents or guardians (such as the Health Service Executive exercising powers under the Child Care Act 1991).

The Commission emphasises that this is as important in the context of physical health care as it is in the context of mental health care. Indeed, the Commission notes that, in the very specific context of the detention of a young person under the Mental Health Act 2001, an objective best interests test ensures that all those involved in decision-making under the 2001 Act do not equate any person.s preferences for specific forms of treatment with the best interests of the child or young person. Viewed in this light, the Commission has therefore concluded, and recommends, that the ¡°best interests¡± test, assessed objectively by reference to the rights of the child, should be included as a primary24

consideration in the approach it takes to the specific issues addressed in this Report, and in the draft Bill appended to it.

1.35 The Commission recommends that its proposed legislation on consent to, and refusal of, health care and medical treatment concerning persons under the age of 18 should include as a primary consideration the best interests of the child, assessed objectively by reference to the rights of the child.