The proposed children's rights amendment to the Constitution will give the State preference over the parent when deciding what is in a child’s best interests, according to former MEP and disability rights campaigner Kathy Sinnott.
Ms Sinnott claimed children are better protected under the current Constitution, where the State only steps in when the role of the parent has failed.
“This [proposed] wording and the other proposed wordings of the past all start from the premise that it is the State and not the parent who determines the best interests of the child,” she told RTÉ Radio One’s Morning Ireland programme this morning. “It reverses the natural order.”
Ms Sinnott said there were particular concerns about how the proposed changes would impact on children with special needs, by giving the State “control over what it wants to do for children with special needs in individual cases.”
“This gives a neglectful State even more control over children. They are already not doing their job of protecting children and this gives them even more power to neglect,” she said.
Responding to the comments, the Government-appointed special rapporteur on child protection Geoffrey Shannon said the amendment would not lead to an increase in the number of children coming into the care system, but “lead to the right children coming into the care system”.
“Where the welfare and safety of the child is prejudicially affected, it is only then that the State will intervene in a proportionate manner,” he said.
The amendment would also allow hundreds of children in care to be adopted by rectifying a constitutional problem which had these children “locked in a legal limbo”, Mr Shannon said.
“A child drifts in care because they can’t be adopted. They live in a sort of twilight zone between a family that cannot fully care for them and a family who cannot fully have them,” he said. “The only way those children in care can be adopted is by constitutional change.”
David Kenny, assistant professor of law at Trinity College, said the proposed wording does not go far enough to ensure that the interests of the child are to the fore.
“My concern is that that language is not as clear as it seems,” he said. “Historically, the best interests of the child have been presumed to lie with their marital parents. If there is a dispute between marital parents on one side and the State or adoptive parents or other parents on the other, the marital parents are presumed to have the best interests of the child at heart and the child has gone to them at the expense of an independent consideration of what would be best for the child.”
Mr Kenny said the wording should have stated that the best interests of the child would be “assessed independently” rather than “with regard to the marital status of their parents”.
Despite his concerns on this point, Mr Kenny said the wording was “an excellent draft and improves in most respects on anything we have seen before”.
