In its efforts to protect children, the State must also protect the integrity of the family unit, Ireland’s leading judge 
has said.
The Chief Justice, Mr Justice John Murray in the foreword to the latest edition of Geoffrey Shannon’s Child Law, writes that “the State should proceed with caution in protecting the interests of children, in order to ensure as far as possible that the integrity of the family unit is not unduly undermined”.
His words will be seen as particularly relevant in the context of recent calls for the Government to hold a referendum on children’s rights.
Mr Justice Murray noted that the book highlighted “the tension in constitutional law between the recognised status of the family as an institution, and the individual rights and independence of the child”.
He said it was inevitable that people would have different views “as to where the line between State intervention and the autonomy of the family should be drawn as a matter of policy”.
However, he said that it was undeniable “that the welfare of the child has always been centred on its membership of the family, and that the family’s special status as an institution in the Constitution is not unique to Ireland”.
He pointed to a series of other international instruments and national constitutions such as the International Covenant on Civil and Political Rights and the Constitutions of Greece, Germany, and Switzerland, which recognised “the importance of the family as an institution that warrants special protection”.
He added: “The family, as an institution, has always been considered the cradle which best provides the nourishment and support which children require to achieve their full potential as human persons.
“Adoption into a family, where circumstances so warrant, has always been considered superior to other options such as care in State institutions”.
He accepted that this ideal of family life could not be realised where there is family breakdown, neglect, abuse or mistreatment, but this did not “take away from the considerable force of the ideals themselves, nor does it negate the common approximation of those ideals in everyday life”.
Mr Justice Murray said: “Parenting, as the author recognises, is an inexact science, and the State should proceed with caution in protecting the interests of children, in order to ensure as far as possible that the integrity of the family unit is not unduly undermined.”
Children had rights and needs, he accepted, and these were first and paramount considerations. However, parents also had rights, and mutual agreement between the parents was the most likely way to provide the best resolution in the interest of the children.
He added his voice to the growing calls for a greater utilisation of mediation in family law where children are concerned, and noted that only minimal legal and administrative provision was made for the role of mediation in disputes concerning childcare and the family.