A leading academic has warned that the wording on children’s rights proposed by the Oireachtas committee chaired by Mary O’Rourke cannot “provide any meaningful guidance to State agencies” as to when the State should intervene in families to protect vulnerable children and has produced an alternative wording.

Writing in today’s Irish Times, Dr Oran Doyle, a law lecturer in Trinity College, said that the idea that the inclusion of a “best interests” test would solve the problem was mistaken.

His intervention comes after it was announced last week by the Minister for Children, Frances Fitzgerald, that the Government would hold a “stand alone” referendum on the issue later this year. Last year, she said she was considering a wording produced by an All Party Oireachtas Committee which included the phrase “best interests of the child”.

Dr Doyle said that the question of when the State may intervene and take children into care was “[t]he real source of contention in current debate, and the likely focus of any referendum proposal”.

There was a risk that people would see a children’s rights proposal “as a panacea for a whole range of problems” but he warned that “[w]hat can be achieved by constitutional reform, however important, is more limited.”

He pointed out that the belief that children’s rights are not protected by the Constitution was incorrect.

Children, he said, “have the same personhood rights as adults (eg, the right to bodily integrity)”.

“Children do not have the same political process rights as adults (eg, the right to vote). Children have, however, a number of age-limited positive rights that are not held by adults (eg, the right to a free primary education),” he added.

He said: “The real source of contention in current debate, and the likely focus of any referendum proposal, is the question of when the State may intervene and take children into care or start making decisions on behalf of children that override the wishes of the parents. 

“To call this a children’s rights issue is somewhat misleading; the issue here concerns who exercises for children the rights that they cannot exercise themselves.

“On this issue, most people would accept that parents should have the primary decision-making role in respect of their children, but that there must be some residual or fallback role for the State to protect vulnerable children.”

The difficulty, he said, concerned “the appropriate threshold for State intervention. What level of bad parenting must be reached before the State can, in effect, assume parental responsibility for a child?”

The Constitution currently sets this threshold in Article 42.5:

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

Many believed this threshold was too high, he said, but the proposed reforms did not directly address the issue of the appropriate threshold for State intervention.

“When this question is not directly addressed, one is left vainly trying to infer from a number of provisions what precise change would be effected by an amendment,” Dr Doyle said. Instead, he proposed an alternative test for State intervention.

His wording would read: “Where the parent or parents of any child act or fail to act in respect of that child in a manner that no reasonable parent would and that has the potential to affect significantly the interests of the child, the State by appropriate means shall endeavour to supply or supplement the place of the parents, but always with due regard to the best interests of the child.”

This wording, he suggested “directly addresses the threshold for State intervention, but makes it somewhat easier for the State to intervene than at present”.

Meanwhile the Government is set to introduce legislation to help adopted people trace their birth parents.

According to the Sunday Times, the legislation will be introduced together with the children’s referendum.

Frances Fitzgerald, Children’s Minister, has not ruled out the possibility that the law could apply retrospectively.

She said the laws, which would give adoptive children access to their birth certs, would be passed by the Oireachtas “at the earliest opportunity”.

The legislation, she said, would “provide for proactive tracing and reunion services by appropriate bodies for adopted adults, birth mothers and birth families”.

Claire McGettrick of the Adoption Rights Alliance said that such legislation, while welcome, would be useless if it could not be applied retrospectively as it would not help the thousands of adopted people currently seeking access to their birth certificates.

Adopted people, McGettrick added, were prohibited from access to their birth certs because the Constitutional rights of the birth mother, including their right to privacy, were deemed to have greater weight than the right of the child to know their identity.