The annual report of the Special Rapporteur on Child Protection says that there was a reduction in the number of significant court judgments on child-protection issues in the period from January 2020 to June 2021.
Professor Conor O'Mahony’s report describes this as “unsurprising”, given the problems posed to the courts by the COVID-19 pandemic.
“While the courts facilitated over 2,000 virtual hearings from April to December 2020 in all areas of law, the Child Care Law Reporting Project identified a number of challenges in respect to child-protection cases,” the report says.
These included delays in obtaining assessments, due to COVID-19, and the likelihood that child-care cases would encounter further delays in what was an already overburdened system.
Impact of amendment
Professor O’Mahony’s report, however, highlights a “landmark” judgment from the Supreme Court, in the case of In Re JJ, in January 2021 on the constitutional rights of children.
He says that this was the first judgment since the enactment of article 42A of the Constitution to conduct a detailed examination of whether and how the amendment on children’s rights impacted on the threshold for authorising State intervention to protect children.
The case concerned a young boy (referred to in the judgment as ‘John’) who suffered catastrophic brain injuries, as well as extensive other injuries, in an accident.
His brain injuries caused him to develop a severe case of dystonia, a hyperkinetic movement disorder which causes abnormal electrical signals to trigger painful, prolonged, and involuntary contractions of muscles.
Ward of court
While the medical team had succeeded to a degree in bringing the dystonia under control, they believed that further interventions would cause unjustifiable pain and suffering.
John’s parents, however, refused to agree to the hospital’s treatment plan, maintaining that John’s preference would be for his life to be continued for as long as possible by whatever means necessary.
On application of the hospital, John was declared a ward of court, and various orders were sought by the hospital authorising such treatment as they determined medically necessary to manage his pain.
“The central question in the case was whether the circumstances were such as to authorise the court to override the parents’ decisions in respect of their son’s medical treatment,” the rapporteur writes.
“This involved a detailed consideration of whether the parents had failed in their duty within the meaning of article 42A.2.1, which in turn raised the question of the extent to which the amendment approved in 2012 had altered the test for State intervention that existed under the old article 42.5.”
Blameworthiness
Although the Supreme Court described the parents’ conduct as “exemplary and humbling”, it concluded that the refusal of the parents to consent to the hospital treatment plan constituted parental failure of duty, within the meaning of article 42A.
The court held that the new article differed from the old, in that a shift in focus from parental failure of duty “for physical or moral reasons”, to parental failure of duty “to such extent that the safety or welfare of any of their children is likely to be prejudicially affected”, removed a previous requirement of blameworthiness on the part of parents before a finding of parental failure could be made.
While Professor O’Mahony (pictured) suggests that the change brought about by the amendment may be overstated, he believes that the Supreme Court judgment in the case “suggests that the enactment of article 42A has altered (and most probably lowered) the threshold for intervention at least a little”.