Referendum lowered bar for State intervention in child welfare, court hears

The Attorney General's counsel has told the Supreme Court the 2012 children's referendum may have resulted in a "lower" bar for State intervention in parental decisions affecting the health and safety of their children.

Article 42a – the 2015 ‘child rights’ constitutional amendment – marked a “child-focused constitutional recalibration”, Conleth Bradley SC, for the Attorney General, said.

When it comes to State intervention, Article 42a marked a shift to a more child-centred approach focused on a child’s safety and welfare, he said. Article 42a provides for “proportionate” State intervention in “exceptional” cases where there has been parental failure to the extent a child’s safety and welfare is likely to be prejudicially affected.

In exchanges with Mr Justice William McKechnie, counsel said this appeared to be a lower bar than existed prior to Article 42a. The bar appeared to have dropped “very significantly”, the judge responded.

In his submissions, Mr Bradley stressed the Attorney General was not advocating for either side in an important appeal by the parents of a catastrophically injured boy against “contingency” orders permitting a hospital treat him as it considers clinically appropriate.

The parents are concerned the hospital wants to administer certain pain-relieving treatments that can trigger respiratory distress and withhold invasive intensive care interventions should his condition substantially deteriorate. They want him to get any treatment necessary to keep him alive.

The orders, including one making the boy – referred to as John – a ward of court, were granted by High Court president Ms Justice Mary Irvine.

The hospital has said it believes John has no prospect of making a meaningful recovery from catastrophic injuries suffered in a road crash last summer but the parents maintain it is too early to ascertain his prognosis and he should be given “every chance”.

John’s court-appointed guardian has supported the orders as in his best interests.

At the request of the Supreme Court, the Attorney General and the Irish Human Rights and Equality Commission (IHREC) were respectively involved in the appeal as a notice party and amicus curiae, assistant to the court on legal issues.

After the three-day appeal concluded on Thursday, Mr Justice Donal O’Donnell, presiding, said the five-judge court will give judgment as soon as possible but the sides have liberty to apply. Everyone in the case will be thinking in the coming weeks of John, his family and all providing care to him, he said.

A core issue in the case concerns the threshold for intervention by the State in relation to decisions by parents concerning the health and welfare of their children and the impact of Article 42a on that threshold.

Article 42a provides, in “exceptional” cases where parents fail in their duty towards their children to such extent the safety or welfare of their children “is likely to be prejudicially affected”, the State shall, “by proportionate means as provided by law, endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child”.

In submissions on Thursday for IRHEC, Michael Lynn SC said it was particularly concerned about the use of the High Court’s wardship jurisdiction to make the orders. There is “a lack of clarity” about the legal basis of the jurisdiction to take minors into wardship and the orders made under that jurisdiction meant John’s parents had no legal authority to make decisions concerning his welfare, he said.

In exchanges with the judges, counsel accepted there were regular reviews of wards and John’s mother had been appointed as the committee to represent his interests in wardship.

In closing arguments for the mother, Siobhán Phelan SC said the combination of the orders granted to the hospital permit treatment which may have the constitutionally impermissible effect of terminating John’s life. The exercise of the wardship jurisdiction has a disproportionate effect and “lays to waste” the entirety of the rights between John and his parents, she also argued.

Closing the case for John’s father, Ciarán Craven SC argued the orders should also be refused on grounds they are unnecessary for reasons including the duty of doctors to respect their patients constitutional rights.