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

• Author: Kieran Mcgrath
• Position: Holds a degree in Law and a Masters in Social Work from University College Dublin
• Pages: 136-152

VIEWPOINT

PROTECTING IRISH CHILDREN BETTER – THE

CASE FOR AN INQUISITORIAL APPROACH IN

CHILD CARE PROCEEDINGS

KIERAN MCGRATH*

I. INTRODUCTION

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.

II. RECENT DEVELOPMENTS ON CHILD PROTECTION

IN IRELAND

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).

III. BACKGROUND

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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