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“If the State was entitled to intervene in every case where professional opinion differed from that of parents, or where the State considered parents to be wrong in a decision, we would be rapidly stepping towards the “Brave New World” in which the State always knows best. In my view that situation would be totally at variance with both the spirit and the word of the Constitution”
Per McCracken J. North Western Health Board –v- HW (2001) 3 IR 635
The principal source of fundamental rights in Irish Family Law is to be found within the constitution. Bunreacht Na hEireann was enacted in 1937 in a time when society was heavily influenced by the Catholic Church. Marriage had a special place in society and was regarded as a sacred institute. Irish Society has changed drastically since 1937 which has had a profound effect on the family. There has been an increase in the number of marital and relationship breakdowns, an increase of one parent families and the introduction of divorce have all attributed to the change of the family structure in modern society.
Articles 41, 42 and 40.3 pertain to the family. The family under the Constitution is confined to the family based on marriage. Under Article 41.1.1 ‘the State recognises the family as the most important social group of society, as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’. This is very strong wording and implies that the family is antecedent and superior to the state itself. This was drafted in a time when the family was the most important unit group of society and enshrined with religious teachings. Therefore, it was to be protected from state intervention.
The child has natural and imprescriptible rights under Article 42.5 of the Constitution. However, the child’s rights are not expressed. It has been left up to the Courts to decide what these rights are on a case by case basis. Parents are given autonomy under the Constitution and state intervention into the functioning of a family and the decisions of parents in relation to their children is restricted. Article 42.5 permits state intervention but only in exceptional circumstances where a parent has failed in its duty towards a child for physical or moral reasons.
The defination of the family under the Constitution is the family based on marriage. Article 41 refers to the inalienable and imprescriptable rights and duties of the parents which means that these rights and duties cannot be given away. Therefore, marital parents cannot voluntarily place their child for adoption unlike non-marital parents even if it were in the best interest of the child to do so. However, The Adoption Act 1988 allows the state place a child for adoption where the parents fail in their duty.
The Constitution has been found to uphold discrimination against children born outside marriage and unmarried fathers.
In O’B –v- S, the Supreme Court upheld that the exclusion of children from unmarried parents from succession rights was permissible in light of the constitutional provisions to protect the marital family.
In the case of The State (Nicolaou) –v- An Bord Uchtala, the Supreme Court found that a natural unmarried father was not entitled to be heard prior an adoption order and was not entitled to rely on the provisions of Article 41. He was not allowed to rely on his natural and imprescriptible rights as a father as these rights are given to the family, he did not constitute a family under Article 41. Another quite amazing factor in this case was that the mother’s rights arose under Article 42 and not Article 41. The decision in this case makes it clear that the family is that based on marriage to the exclusion of all other types of relationships.
Following from this decision, Keegan-v-Ireland (1994), the European Court of Human Rights intervened and found the decision in this case was in breach of Articles 6 and 8 of the European Convention on Human Rights. The European Court of Human Rights held that the placing of a child for adoption without the consent or knowledge of the natural father was an interference of his right and respect to family life.
However, Irish Courts are not required to follow judgements of the European Court of Human Rights, they are required only to take notice of them The Supreme Court remitted the decision of the European Court of Human Rights to the High Court. The High Court, having regard to the judgement of the European Court of Human Rights found that the welfare of the child is paramount and best served with the adoptive family being the family based on marriage.
The rights under Article 41 pertain to the family as a Unit and not the individual members of that family. However, under Article 40.3, the state guarantees to respect, and as far as practicable, defend and vindicate the personal rights of the citizen. Notwithstanding this provision, this is read in conjunction with Article 41 which states the family has inalienable and imprescriptable rights which implies these rights will supersede those of the individual
Other International Agreements have adopted a wider interpretation of the family. For example, Article 8(1) of the European Convention on Human Rights provides that everyone has the right to respect for his private and family life, his home and correspondence.
The Constitution gives preference to the rights of the parent over the rights of the child. The autonomy attributed to the parent under the Constitution is at variance with the provisions of the United Nations Convention on the rights of the child which states that the right of the child is to be of primary consideration.
Article 41 does not expressly refer to the rights of the child. To some extent, the child is regarded as being invisible. The children should be seen and not heard approach to the rights of children has long prevailed in family law There is a presumption that the welfare of the child is to be found within the family. It is assumed that the parents will always act in the best interest of the child and they are to be given the benefit of the doubt that they know best when making decisions relating to their children. We should not assume, that the state knows best and would make a better parent in the decisions relating to children.
Article 41 and the defination of the family has caused much controversy and has instigated many debates on the issue of reform. An amendment to the Constitution has been proposed in the form of a new Article 42A which will put the child’s interest at the heart of the Constitution; to displace the privileged position of the marital family by the recognisation of the Constitution of all family forms
The rights of the parents and the integrity of the family are given legal weight by the provisions of Article 41. Although there are some unenumerated rights of the child established by case law [G –v- An Bord Uchtala 1980 IR 32], the child’s rights are not expressly stated in Constitution except for the right to education which is essentially the rights of the parents and under Article 42.5 which makes reference to the inalienable and imprescriptable rights of the child. The 1989 Convention of the Rights of the Child gives recognition to children’s rights but in Ireland, Article 41 continues to act as an impediment to the implementation of the Convention.
In the case of Re JH (An Infant) Finlay CJ stated that there is a constitutional presumption that the welfare of the child is to be found within the family unless the court is satisfied that there are compelling reasons why this is not the case or where the parents have failed in their duty and continue to fail in their duty towards their children for moral or physical reasons. He also stated in his judgement that a child had rights under the Constitution as a member of a family to belong to a group possessing inalienable and imprescriptable rights and to protection by the state of the family to which it belongs
Certain unenumerated rights of the child were also established in G-v-An Bord Uchtala  IR 32 at (p 44) Finlay P. in the High Court held that the child “has a constitutional right to bodily integrity and has an unenumerated right to an opportunity to be reared with due regard to her religious moral intellectual physical and social welfare”.
The issue was again established In Re Article 26 and the Adoption (No 2) Bill 1987  IR 656 where it was held by Finlay J that the rights of the child are not confined to Article 41, the arise under Articles 40, 43 and 44.
The right of the child were also considered in North Western Health Board -v- HW and CW  3 IR 622.
The question arose in this case whether the parents of a infant, by refusing to consent to a PKU test being carried out on their child constituted a failure in their duty as parents towards their child and whether the state could exercise its jurisdiction to intervene under Article 42.5.
Article 42.5 states that in exceptional cases, where a parent for physical or moral reasons fail in their duty toward their children, the state shall endeavour to supply the place of the parents, but always with due regard to the natural and imrescriptible rights of the child.
McCracken J in the High Court commented that it was quite clear from Article 42.5 that such a jurisdiction only existed in ‘exceptional circumstances’ but only in exceptional circumstances and only where there is a failure by the parents in their duty for physical or moral reasons.
Relying on the judgement in the case of Ryan –v- The Attorney General  he stated that although under Article 40.3.2 there was a duty on the state to protect, defend and vindicate the personal rights of a citizen, this was not unlimited. In this case the Plaintiff challenged the constitutionality of the Health (Flouridation of Water Supplies) Act 1960 on the grounds that it violated the authority of the family under Article 41. O’Dálaigh CJ in his judgement stated:-
“it is one of the duties of a parent to ward off dangers to the health of their children and in the court’s view, there is nothing in the Constitution which recognises the right of a parent to refuse to allow the provision of measures designed to secure the health of a child when the method of avoiding injury is one which is not fraught with danger to the child”.
McCracken J referred to the judgement of Henchy J in Hanrahan –v- Merck Sharp & Dohme  I.R.L.M 629 p. 636; wherein Henchy J stated that the guarantee under Article 40.3.2 applies ‘as far as practicable and refers only to cases of ‘injustice done’. In his judgement, he stated that Article 42.5 must only be used in exceptional circumstances where the parents have failed in their duty. He was of the opinion that Article 42.5 could not be relied on in cases where there was a conflict between the rights of the family and what was in the best interest of the child. Previous case law which relied on the provisions of Article 42.5 and to which he referred were cases in which children were without parents or were outside parental control. Parens Patriae jurisdiction did not arise in this case.
The fundamental issue in this case was the conflict between the rights of the parents under Article 41 and the rights of the child.
McCracken J accepted that the medical opinion presented in this case pointed to the test being in the best interest of the child. This was not in dispute. The issue was whether the benefit to the child could override the rights of the parents to reject to have the test done. He considered the fact that parents make decisions on a daily basis regarding the vaccinations and inoculations of their children and this is a decision left to the discretion of the parents. McCracken J refused the order stating that he did not believe the decision of the defendants, who he said were caring and conscientious parents, constituted an exceptional case. Having regard to the provisions of Article 40.3.2, unjust attack or injustice referred to in that Article could only amount to the refusal of the parents to have the test done which he did not believe was an injustice to the child.
This case was appealed to the Supreme Court which upheld the High Court decision.
Keane CJ (descending judgement) stated that if the case was to be determined in by what was in the best interest of the child, the order should have been granted by the High Court.
He went on to state that the central issue to the case was whether the constitutional rights of the child were to be upheld Courts in circumstances where they were not being upheld by the parents.
In his judgement, Keane C.J relied on a number of English cases.
In In re T. (A Minor) (C.A) ; In this case, a child was born with a life threatening liver defect. The child underwent surgery which was unsuccessful. The parents of a child refused to consent to a liver transplant because it would cause the child pain and distress. The medical evidence produced stated that the child would not live beyond 2 ½ years without the transplant. The High Court held that the mother was being unreasonable and that it was in the best interest of the child to have the operation. The Court of Appeal set aside this decision and accepted the parents’ decision as a reasonable decision with which the Courts could not interfere.
Keane CJ described this case as being at the otter limits of an area where the parents’ rights outweigh that of the child and that, on consideration, it may have been in the best interest of the child not to have the surgery. However, he stated a distinction must be made between this case which involved a medical procedure and a case involving the application of a test which is clarified by the decision in In Re C. (A Child) (H.I.V) Testing) 
The issue in this case was whether the court could order a baby to be tested for H.I.V. The parents refused to agree to the test stating that it was an ‘affront to their parental autonomy’. The local authority applied for an order under the Children Act 1989. Wilson J in this case stated that the wishes of the parents could not override the paramount consideration of the child’s welfare. In his judgement Wilson J stated that based on the evidence before him that 20% of babies infected with H.I.V would develop a serious A.I.D.S related illness. He permitted the order to be made.
From these cases, it appears that English Courts will regard the welfare of the child as paramount consideration.
The Irish Courts, in deciding such cases, would have regard to the Constitution and the principle of the family autonomy under Articles 41 and 42.
In the absence of any legislation to regulate the administration of the test, I believe the only way this case could have been decided was having regard to the rights of the parents under the Constitution. However, this case might have been decided differently if the parents of the child were not married. The order would more than likely be granted in a situation were the parents were not married. The welfare of the child would take paramount consideration over the rights of non-marital parents under Section 3 of the Guardianship of Infants Act. This is quite an extraordinary state of affairs. Article 42.5 protects the child of marital families whilst the non-marital child is protected by Section 3 of the Guardianship of Infants Act. However, Article 42.5 can only be invoked in “exceptional circumstances” having regard to the provisions of Article 41. It would seem therefore that the rights of a child to a non-marital family would be better protected.
Exceptional circumstances would seem to imply a much more serious issue than that which arose in HW-CW such as abuse or neglect. In this particular case, I believe McCracken J was correct in his decision. I do not believe the outcome of this case, having regard to the autonomy of the family, could have been any different.
State intervention is not promoted save in exceptional circumstances. Parents are presumed to know what is best for their child even if that decision is deemed wrong or unwise. However, there needs to be a balance between the rights of the family and the rights of the child as a member of that family.
I am in agreement with The Constitutional Review Group when they state that Articles 41 and 42 overemphasis the rights of the family to the possible detriment of the individual.
Article 42.5 refers to the natural and imprescriptable rights of the child. However, it is not stated anywhere what these rights are. Article 40.3.1 refers to the state guaranteeing to defend and vindicate the personal rights of the citizen but this right is overridden by the inalienable and imprescriptable rights of the Family under Article 41.
The problem lies with the provisions of Article 41. In my view, the
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