Ms Catherine Ghent:

To pick up on that point, it is very important to ask what is the role of the guardian and what we do when we go into court. I am a solicitor who represents guardians and I sometimes represent children. A guardian is the representative of a child before the court. It is not just someone who goes to the child and says, "What do you think about this?" That is a role which would not be appropriate. Children need advocates before the court and we all know the effect when they do not have one. They need regulated professionals who have expertise and who will say: "I am determining what is in your best interests. I am going to promote and listen to what you say. I am going to put that before the court and I am not going to put it in a passive way. I am going to advocate for you."

The constitutional amendment recognised children as rights holders on their own behalf and it did not diminish or specify any limits on the children's rights. In fact, for the first time, it gave constitutional backing and a constitutional impetus for children's rights to be the paramount consideration. That has been recognised in the key judgment given by Mrs. Justice Baker last year in regard to what this actually means, where she said that even within the existing statutory framework, the guardian is the representative of the child.

In that judgment she also said the child is entitled to the full panoply of rights in terms of fair procedures. What does "fair procedures" mean? This was established in the reHaughey case, where someone went before a tribunal and what was at stake was their reputation and reputational damage. Within that context, which we also see in the Charleton inquiry, people are entitled to cross-examine and to put their client's case before the decision making body. What I am really worried about is that in diluting and diminishing, and in the extraordinary step of removing the right to cross-examine, we take away from children the rights which have been constitutionally identified as pertaining to people, not just in court proceedings, but before tribunals where reputational damage is involved.

Mr. Justice McMenamin has acknowledged the fundamental impact of a care order on a child. That is what we are talking about. He said that in cases where the decision and the consequences are so profound for the child, we need to protect their constitutional rights. I am an advocate for the child before the court and, therefore, I need to cross-examine on their behalf and I need to be able to bring appeals on their behalf. Mrs. Justice Baker said those rights as previously identified in terms of fair procedures are actually enhanced. I question how the removal of the right to cross-examine, which is a fundamental right which applies to other citizens, is compatible with the key decision as to what representation for children looks like, even within the limited statutory provision as it stands. In fact, I think they are not compatible.

I was involved in a case a number of years ago where a father was subsequently convicted of rape of his child. When we went into the court in the care proceedings, he looked for access. The judge told us that he had a right of access to his child and, despite the fact his very young child was saying “I am terrified of him, I do not want access”, the judge granted it. The HSE at the time did not appeal that. We appealed it on behalf of the child. The Circuit Court judge expressed her serious concern and stopped what could have been a really abusive process for the child. Recently, there has been a case where the parents fled from another European jurisdiction.

There are legal remedies in a European context under regulations. The Child and Family Agency, CFA, did not spot that this was a case where the child should have been returned to the jurisdiction which had most information in regard to the child. A guardian ad litemwas appointed. The guardian ad litem instructed me and I immediately highlighted that this was not the right jurisdiction to deal with this. That became very clear. The case has become very sad and difficult and the level of tension is very concerning. The child now has a sibling born in a different jurisdiction in respect of whom there are proceedings in being. The sibling could be adopted in that jurisdiction and the child in our jurisdiction may not have any contact with them. We are seeking to stop siblings being split up. In circumstances where the CFA did not do that, the ISPCC is that child's only voice.

We have cases before the courts at the moment. There has been a certain limited backlash to the referendum. Certain judges have taken the view that they are at the vanguard of parents' rights and they have to protect parents' rights. At times, it is quite difficult to get the voice of the child heard before the court. For example, in cases where a child has been beaten to the extent that injuries are apparent, where they have scars or have been scalded, certain judges determine that this is severe physical chastisement and that the child has not been assaulted. If those cases were before the criminal courts judges would have to find that assault was committed. Where would those children go if they did not have the ISPCC to tell the judge that that is unacceptable and that the judge has a responsibility to vindicate and promote children's welfare?

That is the seriousness of what we are dealing with and that is why I am asking the members of the committee to question if the provisions of this Bill are constitutionally compatible. How do they give effect to specific identification of the constitutional rights, which we all said was appropriate and necessary? In terms of looking at the constitutional rights and giving effect to Article 42A, it is not passive. It should not be allowed to sit there. There is an obligation to promote. How can that be promoted if the child is given a lesser status in proceedings than parents or the Child and Family Agency? We have serious concerns in that regard which I would like to be addressed.