A study of the extent to which Irish law, policy and practice allow for Ireland's application of the United Nations Convention on the Rights of the Child, 1989 to pre-natal children

The central research question of this thesis asks the extent to which Irish law, policy and practice allow for the application of the United Nations Convention on the Rights of the Child (CRC) to pre-natal children. First, it is demonstrated that pre-natal children can fall within the definition of ‘child’ under the Convention and so the possibility of applying the Convention to children before birth is opened. Many State Parties to the CRC have interpreted it as applicable to pre-natal children, while others have expressed that it only applies from birth. Ireland has not clarified whether or not it interprets it as being applicable from conception, birth, or some other point. The remainder of the thesis examines the extent to which Ireland interprets the CRC as applicable to the pre-natal child. First, the question of whether Ireland affords to the pre-natal child the right to life under Article 6(1) of the Convention is analysed. Given the importance of the indivisibility of rights under the Convention, the extent to which Ireland applies other CRC rights to pre-natal children is examined. The rights analysed are the right to protection from harm, the right to the provision of health care and the procedural right to representation. It is concluded that Ireland’s laws, policies and practices require urgent clarification on the issue of the extent to which rights such as protection, health care and representation apply to children before birth. In general, there are mixed and ad hoc approaches to these issues in Ireland and there exists a great deal of confusion amongst those working on the frontline with such children, such as health care professionals and social workers. The thesis calls for significant reform in this area in terms of law and policy, which will inform practice.

Reforming the legal framework for clinical trials with neonates in Ireland: a children’s rights approach

This thesis assesses the current regulatory framework regarding clinical trials with neonates in Ireland from a children’s rights perspective, as derived from the UN Convention on the Rights of the Child 1989 (UN CRC) and its supporting instruments. The focus on neonates in the thesis is due to the particular need for clinical research with this group of children, their dependency on others for their protection and the lack of attention which has been given to them in the regulatory framework. The importance of children’s rights in this area is linked to the role of human rights in the regulation of clinical research in general. A rights-based approach is of great practical relevance in reforming law, policy and practice. For example, the CRC contains a set of commonly agreed legal benchmarks which can be used to assess the current framework and shape recommendations for reform. In this way, it provides a set of binding norms under international law, which must be complied with by states and state actors in all law, policy and practice affecting children. However, the contribution which a children’s rights approach could make to the regulation of research with children has not, to date, been explored in detail. This thesis aims to address this gap by developing a set of children’s rights-based benchmarks, which are used to assess the Irish regulatory framework for clinical trials with neonates and to develop recommendations for reform. The purpose of the analysis and recommendations is to assess Ireland’s compliance with international children’s rights law in the area and to analyse the potential of children’s rights to effectively address inadequacies in the Irish framework. The recommendations ultimately aim to develop a framework which will enhance the protection of neonates’ rights in this important area of children’s lives.

An evaluation of the implications of the best interests of the child principle in the context of same-sex parenting in Ireland

Same-sex parenting is by no means a new phenomenon but the legal recognition and acceptance of gay and lesbian couples as parents is a relatively recent development in most countries. Traditionally, such recognition has been opposed on the basis of the claim that the best interests of children could not be met by gay and lesbian parents. This thesis examines the validity of this argument and it explores the true implications of the best interests principle in this context. The objective is to move away from subjective or moral conceptions of the best interests principle to an understanding which is informed by relevant sociological and psychological data and which is guided by reference to the rights contained in the UN Convention on the Rights of the Child. Using this perspective, the thesis addresses the overarching issue of whether the law should offer legal recognition and protection to gay and lesbian families and the more discrete matter of how legal protection should be provided. It is argued that the best interests principle can be used to demand that same-sex parenting arrangements should be afforded legal recognition and protection. Suggestions are also presented as to the most appropriate manner of providing for this recognition. In this regard, guidance is drawn from the English and South African experience in this area. Overall, the objective is to assess the current laws from the perspective of the best interests principle so as to ensure that the law operates in a manner which adheres to the rights and interests of children.

Representation and participation in child care proceedings: what about the voice of the parents?

In Ireland, the Constitution guarantees very strong rights to parents and the family, and there has been a long and unfortunate history of failures to adequately protect children at risk. As a result, there has been much discussion in recent years about the need to improve legal mechanisms designed to protect the rights of children. By comparison, little attention has been given to establishing whether the theoretically strong rights of parents translate into strongly protected rights in practice. This paper presents new empirical evidence on the manner in which child care proceedings in Ireland balance the rights and interests of children and parents, including the rates at which orders are granted, the frequency of and conditions in which legal representation is provided, and the extent to which parents are able to actively participate in proceedings. A number of systemic issues are identified that restrict the capacity of the system to emphasise parental rights and hear the voice of parents to the extent that would be expected when looking at the legal provisions in isolation.

Child care proceedings in non-specialist courts: the experience in Ireland

It is widely accepted that court proceedings concerning child protection are a particularly sensitive type of court proceedings that warrant a different approach to other types of proceedings. Consequently, the use of specialized family or children’s judges or courts is commonplace across Europe and in common law jurisdictions. By contrast, in Ireland, proceedings under the Child Care Act 1991 are heard in the general courts system by judges who mostly do not specialize in child or family law. In principle, the Act itself and the associated case law accept that the vulnerability of the parties and the sensitivity of the issues involved are such that they need to be singled out for a different approach to other court proceedings. However, it is questionable whether this aspiration has been realized in a system where child care proceedings are mostly heard in a general District Court, using the same judges and the same physical facilities used for proceedings such as minor crime and traffic offences. This article draws on the first major qualitative analysis of professional perspectives on child care proceedings in the Irish District Court. It examines evidence from judges, lawyers, social workers, and guardians ad litem and asks whether non-specialist courts are an appropriate venue for proceedings on an issue as complex and sensitive as child protection, or whether the establishment of specialist family courts with dedicated staff and facilities provides a better solution.