Protecting irish children better - The case for an inquisitorial approach in child care proceedings

AuthorKieran Mcgrath
PositionHolds a degree in Law and a Masters in Social Work from University College Dublin
This paper examines the Irish legal system’s approach to
children and argues that, in spite of recent attempts to reform both
the child protection system and some aspects of both the law and its
application, there are still many deficiencies from a children’s rights
perspective. It will be argued that the adversarial legal system used
in Ireland is particularly unsuited to complex cases involving child
welfarematters and can produce many anti-therapeutic effects as far
as children are concerned. The difficulties experienced by children
will be explored, as will the use of legal measures in civil cases,
initiated by the State, to protect children. It will be further argued
that law reform in Ireland could benefit from learning from the
inquisitorial model used in the Netherlands which results in far less
conflict, even where very difficult and complex decisions about
children are being made.
In Ireland, legal proceedings concerning children arenow
partof the legal mainstream, whereas up to relatively recently, they
constituted a jurisprudential backwater (McGrath, 1997). Since the
mid-1980s, child abuse has also become an increasingly politicised
issue in Ireland. This has been influenced particularly by the setting
up of child abuse inquiries since 1993 (Ferguson, 1996, p. 29). Over
this time, the rate of reported child abuse in Ireland has risen
136 [5:1Judicial Studies Institute Journal
*Kieran McGrath holds a degree in Law and a Masters in Social Work from University
College Dublin. Part of his post-graduate social work studies was undertaken at the Child &
Family Institute, Sacramento, California. From Jan ‘88 – Mar ‘02 he was the Head of the
Social Work Department in St Clare's Assessment & Therapy Unit, the Children's University
Hospital, Temple St., Dublin. In March 2002, he was appointed Assistant Director in St
Clare’s. He is also attached to the Dept of Social Studies, Trinity College wherehe teaches a
course to final year Masters students, entitled “Social Work and the Law.” In April 2005 he
was awarded a UNESCO Visiting Professorship by the University of Valencia, Spain.
considerably. For example, in the ten years between 1984 and 1994,
the number of suspected cases investigated by health boards
increased more than ten fold (see Table 1 below).
The far greater attention given to child abuse and the public
outpourings of outrage, while appropriate at one level, create other
problems, including increased public demand for more punitive and
legalistic measures to be used against parents who abuse or neglect
their children. This makes it more difficult for parents in danger of
abusing or neglecting their children to seek help, as they may suffer
greater stigma and social isolation as a result (McGrath, 1996).
Arecurring theme since the mid-1980s in the public
discourse on this issue has been the inadequacies of both the civil and
criminal law in handling cases involving children. The enactment of
the 1991 Child Care Act, following the aforementioned high profile
child abuse inquiries, gave child protection cases a higher legal
status. It also, however, opened up that area of the law to the full
rigours of the adversarial legal system which accentuates conflict
leading to a far greater influence for a legal, rather than child
welfare, discourse in child protection (McGrath, 1998).
The writer’s first degree was in Law and he was, therefore,
naturally drawn to considerations of the interface between law and
social work. The interest in the legal aspects of child protection work
springs directly from his work in St Clare’s Child Sexual Abuse Unit,
in the Children’s University Hospital, Temple Street, Dublin. This
multi-disciplinary unit was one of two set up in late 1987, in the
midst of a great deal of public and professional disquiet about child
sexual abuse.
The writer also has a particular interest in other European
legal systems, in particular, in the Dutch legal system because of its
highly developed approach to children, both in criminal and civil
cases. The inquisitorial nature of Dutch law also makes it very
different to Irish law, which is steeped in the adversarial tradition.
The writer’sexperience as a clinician specialising for many years in
achild sexual abuse unit and also research in which he has been
involved, indicates that the influence of the adversarial system on the
2005] Protecting Irish Children Better - The Case for an
Inquisitorial Approach in Child Care Proceedings

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