Development of Child Protection Law in Ireland Since the Irish Free State

DEVELOPMENT OF CHILD PROTECTION LAW IN IRELAND SINCE THE IRISH FREE STATE

Mollie Breen

Child protection in Ireland has developed immensely over the last 100 years. Irish legislation concurrently developed with society’s changing attitude towards the concept of child protection. Subsequently, a highly regulated child protection system exists today under the current legislative framework of the Child Care Act 1991. The Act introduced a greater emphasis on child welfare by placing a proactive duty on the state to protect children for the first time.1 In 2012, Article 42A of the Constitution was amended to give children their own rights, making the welfare-based decision-making model under the Child Care Act 1991 slightly out of date. This article aims to highlight the significant development of child protection in Ireland whilst also analysing the limits of the current legislation in adopting a child-centric approach.

Roman Catholic social teaching dominated the public discourse and shaped all aspects of day to day life in the early decades of the Irish Free State.2 The 1908 Child Act governed the child protection system which consisted of industrial schools and reformatories. Industrial schools were established to care for delinquent children and reformatories were designed for children who had been abandoned by their parents.3 The system was one which promoted ‘child saving’, evident by the state’s provision of accommodation through the industrial system.4 This system coincided with the upsurge in Catholicism as Irish religious orders undertook the daily running of these institutions.5 Under the 1908 Act there was no duty on the state to look after children.6 There was no system of inspection and the state did not introduce regulations.7 The lack

1 Child Care Act 1991, s 3. 2 Kieran Walshe, The Development of Child Protection Law and Policy: Children Risk and Modernities (Routledge 2020) Ch 3. 3 Stanislaus Kennedy, ‘Child Care in Ireland,’ (1996) The Furrow 5, 271. 4 Walshe (n 2). 5 Kennedy (n 3), 271. 6 Catherine McGuinness, ‘It is a long way from Kilkenny to here: Reflections on legal policy developments before and since the publication of the Kilkenny Incest Investigation,’ in Deborah Lynch and Kenneth Burns (eds) Children’s Rights and Child Protection (Manchester Press 2012) 47 – 61. 7 Walshe (n 2).

of state control allowed for significant intervention from the voluntary sector. Evidence of persistent child abuse perpetrated by officials from within the voluntary sector has arisen due to the sector’s ability to exercise full control without state intervention.8

The 1970 Kennedy Report inquired into the industrial and reformatory system. Child abuse and hence inadequate protection of children under the industrial system was disclosed.9 The report emphasised that a system in Ireland existed whereby there was no real concept of child protection.10 Further national inquiries acknowledged the state’s failure to intervene in child abuse cases.11 These findings resulted in an emerging public discourse regarding the need to implement a modern child protection system. Changing attitudes and subsequent debates on child protection ultimately led to adoption of the Child Care Act 1991, which promotes a more proactive model based on child welfare.12

The Child Care Act 1991 provides a more significant role for the state in child protection than its predecessor, the 1908 Act. The 1991 Act assigned the state as the principal providers of child protection services through the Health Boards; the Health Executive Service (HSE) and currently through the Child and Family Agency (CFA).13 The imposition of state obligations are evident in section 3 of the 1991 Act. Section 3 states that it is ‘the function of every health board to regard the welfare of the child as the first and paramount consideration.’14 Moreover, section 3 includes the action of taking steps to identify children who are not receiving adequate care and protection.15 In MQ v Gleeson, Barr J accepted that there was a duty on the health board (now TUSLA ) to investigate allegations of child abuse under Section 3 of the 1991 Act.16 This proactive duty which the 1991 Act placed on the state contrasts starkly with the minimally regulated child protection system under the 1908 Act. 17 Section 5 of the 1908 act was used as a base for applications to take children into care.18 Children were permitted into

8 The Report of the Commission to Inquire into Child Abuse (The Ryan Report) 2009. 9 The Reformatory and Industrial Schools Systems Report (Kennedy Report) 1970. 10 Walshe, (n 2). 11 McGuinness (n 6).. 12 Ursula Kilkelly, ‘Learning Lessons from the Past: Legal Issues Arising from Ireland’s Child Abuse Reports,’ (2012) 12 Irish Journal of Applied Social Studies, 16 – 19. 13 Walshe (n 2) 114. 14 Child Care Act 1991, s 3 (1). 15 ibid, s 3 (2) (a). 16 MQ v Robert Gleeson and Ors (1998) 4 IR 85. 17 Geoffrey Shannon, Child Law (Roundhall 2005) 111. 18 McGuinness, (n 6) 49.

the care of a ‘relative or other fit person.’19 In State v G the Supreme Court held that the health boards had no statutory duty to act as ‘fit persons’ under the 1908 Act.20 However, under the 1991 Act, the state through TUSLA are obliged for the first time to actively seek for children needing protection and provide the necessary care to those who require it. Additionally, judicial review can be enforced by the state’s failure to conform with this statutory duty.21 The addressed sections of the 1991 Act coincide with Shannon’s view that the Act marks a departure from the reactive model of child saving to one with a greater emphasis on child welfare.22

The 1991 Act evidently introduced increased protection for children in Ireland. However, the welfare-based model falls short of centring children’s rights.23 Under the 1991 Act, the welfare of the child is not paramount in cases between parents and the state.24 The primacy is evident in section 3 and section 24 of the 1991 Act. Both sections state that the rights and duties of parents must be considered in regard to the welfare of the child.25 The prioritisation is further evident throughout case law.26 A series of reports were published which suggested that the threshold for state intervention in family life to protect children had been set too high due to the constitutional presumption that the child’s best interests lie with its birth parents.27 At a legislative level, the welfare principle of the 1991 Act was analysed by the courts through the ‘lens of constitutional protection for family autonomy.’28 Calls for reform of the Constitution emanated due to the lack of provision for children as right-holders in Ireland’s child protection law.29

In November 2012, the enactment of a new provision of the Constitution was approved by referendum; Article 42A, which recognises children as right-holders.30 Article 42A provides that the state must ensure that the ‘best interests of the child are the paramount

19 Children Act 1908, s 59. 20 State v Groake (1990) 1 IR 305. 21 ibid 230. 22 Shannon (n 8) 113. 23 Ursula Kilkelly, Barriers to the Realisation of Children’s Rights (2007) 63 -75. 24 Re JH (1985) IR 375. 25 Child Care Act 1991, s 24. 26 Re JH (n 24); N v HSE [2006] IESC 60, IR 374 – Fennelly J stated that there is a ‘primordial constitutional principle that a child’s welfare is best served in the heart of its natural family.’ 27 Conor O’Mahony, ‘The Same, but Different? Article 42A and the Threshold for State Intervention in Family Life: In Re JJ.’ (2022) Irish Supreme Court Review 3. 28 ibid, 4. 29 Kilkelly (n 12). 30 O’Mahony, (n 28) 2.

consideration.’31 This best interests’ principle differs from the welfare principle in the Child Care Act 1991. The conflict between parental and children’s rights has been tested in the Supreme Court in the case of Re JJ in January 2021.32 The Supreme Court ruled that medically recommended treatment for a critically injured boy should be authorised despite the refusal of the boy’s parents.33 The court reasoned that in cases where suffering is ‘extreme’ and ‘avoidable’ the state may intervene in parental decisions.34 The child’s best interests were unduly considered. This decision has been thought to highlight that the threshold for state intervention has been lowered.35 However, such a decision may have been possible prior to the insertion of Article 42A due to the high threshold that has to be met to override the parental decision.36 Further, the lack of a definition of ‘best interests’ due to the 1991 Act adopting a welfare approach has resulted in conflicting judgments and obiter commentary.37 This uncertainty may result in future judgments which prioritises parental decision over the child’s best interests.38 The Law Societyand the Department of Children and Youth Affairs has recommended that the 1991 Act be amended to make explicit provisions for the best interest’s principle to be a paramount consideration, as opposed to welfare. 39 To ensure a child-centred approach is adopted a best interests test needs to be prioritised through reform instead of the welfare approach currently present in the 1991 Act. Such reform will result in equal treatment for child protection decisions and prevent the discrepancy which prevails within the judiciary.40

It is evident that child protection law changed dramatically from the introduction of the 1991 Act, mainly due to the proactive obligation placed on the state. The Constitutional amendment limits the Child Care Act 1991 in cases of balancing the rights of the child

31 Article 42A 4.2. 32 Re JJ (2021) IESC 1. 33 ibid. 34 ibid. 35 Finn Keyes, ‘Children’s Rights and End of Life Decision-Making: In the Matter of JJ’ (2021) Irish Judicial Studies Journal 58. 36 O’Mahony (n 28) 11. 37 Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution (5th edn, Bloomsbury professional 2018) 2298; PH v Child and Family Agency [2016] IEHC 106, para 40. 38 Eoin Carolan, ‘The Constitutional Consequences of Reform: Best Interests after the Amendment’ (2007) 3 IJFL 4, 2. 39 Law Society Submission, Review of the Child Care Act 1991 (2018) 14. 40 PH v Child and Family Agency (2016) IEHC 106; M v Minister for Justice and Equality (2018) IESC 14.

and the parents. The Act’s welfare approach as opposed to a best interest’s approach has resulted in an inconsistency in ensuring children’s rights are centred. Subsequently, reform is necessary to ensure Ireland has a consistent approach to child protection.