Irish ruling fuels debate on children's rights

Soon after her birth in 2004, a girl known as Baby Ann was placed for adoption by her unmarried parents. A few months later, the birth mother withdrew her consent.

The legal tangle that ensued has now been resolved through a decision last month by the Supreme Court of Ireland that many legal and child care experts find peculiar: The court ordered the "phased" return of the child to her birth parents, basing its ruling on the birth parents' having since married.

The family that cared for Baby Ann for two years will have to surrender her, regardless of their distress, and hers.

Heart-rending decisions like these occur in family courts in many countries. But the judgment handed down Nov. 13 by Ireland's loftiest court was based on the special status that the Irish Constitution gives to married parents and the short shrift it gives to children.

All parties to the conflict have had their identities hidden from the public, but it can be assumed that the birth parents have in recent days seen Baby Ann for the first time in two years. If her birth parents had remained unmarried, she would probably have remained with the adoptive family.

Even some of the justices involved in the decision expressed their frustration. Justice Catherine McGuinness, one of five Supreme Court judges to rule on Baby Ann, said she had been criticizing the Constitution's inadequate protection of children since 1993. "The striking feature of the Irish Constitution is the relative invisibility of children, said Geoffrey Shannon, an expert on the protection of children under Irish and international law. Some children are in danger of having second-best decisions made for them in the absence of provisions in the Irish Constitution protecting their interest."

Before the Baby Ann ruling, Shannon had been appointed by the Irish government to make an article-by-article review of the Constitution and children's rights. His report could influence a decision on whether to prepare a constitutional amendment to be put to voters next spring.

Article 41 of Ireland's 1937 Constitution gave "superior" rights to the family. The article did not define "family" as consisting of a married couple and whatever children they might have, but this is how it has been interpreted by the Supreme Court. According to Shannon, unless the Constitution is amended, hundreds of children who have been adopted or placed in foster care in Ireland will continue to have an uncertain legal status.

Gerry Whyte, head of the law school at Trinity College Dublin, said the Baby Ann case showed that when a married couple and other adults were in dispute over a child, "compelling reasons" concerning the child's welfare would have to be presented to an Irish court before it could intervene against married birth parents.

Child care experts agree that the Irish courts are in a bind. The striking feature of the baby Ann case is that a child and two couples were ensnared in a legal process lasting two years, said Paul Gilligan, chief executive of the Irish Society for the Prevention of Cruelty to Children. He said the case also raised questions about the adoption process, since the birth mother had offered the child for adoption but then so quickly changed her mind. "This is a very traumatic position for a baby and couples to be put in, Gilligan said. Parents will be asking how this could happen."

Eamon Quinn
3 December 2006

http://www.iht.com/articles/2006/12/03/news/irish.php

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