| | | You are here: Home >> Press Section >> Rights–based approach to Child Law now widespread | | | | Rights–based approach to Child Law now widespread | | Reproduced from The Irish Times |
by Ursula Kilkelly
| | | | Over the last twenty years International Family Law has come to play an increasing part in Irish Law. | | | Not long ago Family Law was a typically national affair. Lawyers who understood the Irish legal framework even with its dozens of enactments were competent to represent clients in Family Law disputes.
Over the last two decades however, the influence of International Law has crept into Ireland or in some cases being directly transplanted, the national legal system, meaning that a Family Lawyers brief now requires knowledge of an increasing number of regional and international instruments.
The Law making institutions that are increasingly active in this field include the United Nations, the Council of Europe, the Hague Convention and Private International Law and most recently the European Union.
Many of these Declarations, Treaties and Agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to Child and Family Law matters such as adoption, family breakdown and matters of custody and access.
Increasingly the emphasis is on the rights of individual family members – notably the children.
In this regard the principles at the heart of the Convention on the rights of the child now twenty years old have come to be re-iterated in numerous other international and European Treaties. The rights based approach to children’s issues has truly taken hold and is having a transforming effect on the way children are treated in the national laws of many countries, if not yet in Ireland.
The most recent addition to this collection of Treaties is the EU Charter of Fundamental rights which came into force on December 1st as part of the Lisbon Treaty. No-one knows what impact the Charter will have on our Courts but the fact that its provisions include Article 24 the rights of the child and Article 30 on the family, means that there is a potential here for a reconsideration of Irish Law in these areas.
In particular the Charter requires that the best interests of the child is a primary consideration and all actions concerning children and that children’s views are taken into account in matters that concern them, in accordance with their age and maturity.
Based on the Convention on the Rights of the child, the Charter represents an important consolidation of these standards at European level, one that is likely to be influential on the Irish legal system.
Indeed it may require reshaping of Irish Law in this area which continues to think about children in paternalistic terms.
Concepts of “welfare” (all its components) “custody” and “access” should be challenged on the basis of the Conventions influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.
The Convention as universal blueprint for the treatment of children in Family Law and other areas has also influenced the European Court of Human Rights in its interpretation of the Court in a range of areas. In this way the Court has asserted child specific standards where purely adult orientated approaches previously prevailed.
The influence of the Convention will ultimately mean that children’s rights including the right to have decision made that genuinely take their interests and views into account will have to be taken seriously in Irish Law.
Influences from the European level are not new to Irish Family Lawyers. The European Convention on Human Rights which has bound Ireland for decades was given effect in Irish Law in 2003.
The Case Law of the European Court of Human Rights on adoption, alternative care and abduction is extensive and adds both procedural and substantive layers to Family Law in this and in other jurisdictions.
Especially important from our prospective is that the Convention takes a much broader view of the family than the Irish Constitution.
This will eventually bring changes to our traditional concept of the family to include co-habiting families, same sex relationships and step and adopted families.
In fact this has already happened with the High Court Judgments in McD on the lesbian family (pending before the Supreme Court) and re G about the rights of an unmarried father.
The latter case was decided on the basis of the EU Brussels Regulation 2201-2003 (concerning jurisdiction in Family Law matters) highlighting that the horizontal conversation between all the European Instruments, as well as between the Irish and the European is already underway.
It is vital that this dialogue between the national and the international is two way, given what Irish Law can contribute. To this end the Irish Court should actively interpret and apply the European Convention on Human Rights in the Irish context.
In 2008 the House of Lords adopted this approach in the case of re P and in doing so struck down the Northern Ireland Law that excluding an unmarried couple from adoption (even though the European Court has not reached this conclusion) suggesting there is plenty for Irish Lawyers to learn here as seeds sown in London are carried across the Irish Sea.
So the complexity of Irish Family Law into which international European Law is now interwoven means that Lawyers needs GPS to navigate its many layers and influences. The changing face of Family Law in Ireland brings with it the challenge of keeping up with these many new and fast developing authorities. It also bring opportunities for Lawyers keen to provide quality advocacy to their clients.
For those interested in pushing out the limits of Irish Family Law in seeing it modernized from within, these inter related international instruments and their underlying values provide a lens through which Irish Family Law can be considered afresh.
Dr Ursula Kilkelly Senior Lecturer in Law in University College Cork will address the Four Jurisdictions Family Law Conference in Enniskerry on January 29th and 30th, bookings to S O’Toole at arcadiamarketing.ie
| | | | |  For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
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