A legal academic has questioned whether the upcoming children’s rights amendment goes far enough in making it easier for the State to intervene in families.  

Writing in yesterday’s Irish Examiner, Dr Conor O’Mahony, a lecturer in Constitutional law in UCC, suggested that the retention of the phrase “in exceptional circumstances” in the amendment raised questions as to whether what he called “the excessively high threshold for State intervention” would really be lowered.

Prior to the publication, a number of legal commentators, including Dr Oran Doyle of Trinity College and Dr Gerard Hogan, now a High Court judge, raised concerns that a children’s rights referendum might lower the threshold for State intervention in an excessive way.

Currently, the Constitution states that the State may intervene to supply the place of the parents “in exceptional circumstances”. The wording produced in 2010 by an Oireachtas committee chaired by Mary O’Rourke left out this phrase when referring to State intervention.

Dr O’Mahony noted that the Government has re-instated the words, “in exceptional cases”.  

He wrote: “This was omitted in the 2010 version because it has been shown to have been interpreted exceedingly narrowly by the courts. The fact that it will feature in the final amendment raises questions over whether the excessively high threshold for State intervention will be altered in any way.”

He added that in the 2010 wording, “the right (of the child) to be heard was stated to be a constitutional right of the child, and the prioritisation of the best interests of the child was stated to be a constitutional obligation of the State”.  

By contrast the Government’s wording included the phrase “provision shall be made by law” for these issues, meaning that they will be set out in legislation enacted by the Oireachtas.

This phrase raised questions as to how effective the amendment might be, he said.

He argued that existing legislation, which already provides for the best interests principle and the right to be heard, had been “found to be ineffective due to the overarching influence of the constitutional protection provided to the family in Article 41”.

Dr O’Mahony said: “In the hierarchy of laws, the Constitution takes precedence over legislation, and legislation falls to be interpreted in light of the Constitution.

“So, while our existing legislation states that the welfare of the child is the first and paramount consideration in disputes, the courts have, in effect, found that the constitutional rights of the family take precedence in the event of a conflict between the two.”  

In the Government wording, the best interests principle and the right to be heard are to be given legislative rather than constitutional status, he said.