The Right of the Child to be Heard: The Case for Child Participation in Foster Care Proceedings
| Author | Donna Marie McNamara |
| Position | BCL (Law and Society) (DCU), LLM (Health and Care Law) (UCC), PhD Candidate, School of Law and Government, Dublin City University |
| Pages | 151-174 |
© 2016 Donna Marie McNamara and Dublin University Law Society
THE RIGHT OF THE CHILD TO BE HEARD:
THE CASE FOR CHILD PARTICIPATION IN FOSTER
CARE PROCEEDINGS
DONNA MARIE MCNAMARA*
Introduction
Foster care has existed in Ireland since the time of Brehon Laws, when it
was used as a means of caring for unwanted, abandoned, or orphaned
children.1 Foster care today involves the placement of a child in an
alternative family environment known as a foster family.2 There are
approximately 6,463 children in Ireland living in state care, with 93% of
those children living in foster homes.3 Children in the care of the State face
particular disadvantages and discrimination throughout their lives,
especially with regard to having their voice heard in matters affecting them.
The UN Day of General Discussion on Children without Parental Care
highlighted the concern that children are often not heard in separation and
placement proceedings.4 The UN Committee on the Rights of the Child
[hereinafter the Committee] found “decision-making processes do not
attach enough weight to children … even though these decisions have a far-
reaching impact on the child’s life and future.”5 The Committee urged all
states to strengthen their efforts in implementing the right of the child to be
* BCL (Law and Society) (DCU), LLM (Health and Care Law) (UCC), PhD Candidate, School
of Law and Government, Dublin City University. The author would like to thank Dr Sarah M.
Field for her supervision and insightful comments on this research. All errors and omissions
remain the author’s own.
1 Geoffrey Shannon, Child Law (Thomson Round Hall, 2005), at 272.
2 Ibid., at 144. Shannon observes that there is no legislative definition of what foster care entails
which may be because of its complex nature and the “evolution of a broad spectrum of foster
placements.”
3 Tusla Child and Family Agency, Annual Report
2016), at 27
4 Committee on the Rights of the Child, Day of General Discussion on Children without
parental care (UN Doc. CRC/C/153, 2005), at [663].
5 Ibid.
6 Ibid., at [664].
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In 2013, a survey conducted by Empowering People in Care of foster
children in Ireland identified the key issues which affect their lives in care.7
Of the children surveyed, 37% reported that their placement into care was
the most important issue to them and noted that this was a decision in which
they would most like to participate.8 For the purposes of this article, the
placement of the child into care will be used as the main example of a
decision-making process in which the child could and should engage. This
procedure is arguably the most important decision which will be made
during the child’s time in care and has a direct impact on his welfare,
interests, well-being, development, and happiness.
This article will examine the right of the child to be heard in the
context of the rights of children living in alternative forms of care
(specifically foster care) to participate in care placement decision-making.
Part One will examine the rights of children in alternative care placements
pursuant to the CRC. Part Two will analyse the rights of children to
participate in matters relating to them. The Irish State’s obligations under
Article 12 CRC will also be scrutinised. Part Three will address the rights
of foster children in Irish law by way of reference to the constitutional rights
I. General Rights of Foster Children under the UN
In 1989, the adoption of the CRC by the UN General Assembly reaffirmed
the position of children as rights-holders within international law. The CRC
provides an extensive framework for the promotion and the protection of
children’s rights worldwide.9 Ireland ratified the CRC without reservation
in 1992, but has struggled to comply with the standards contained therein.10
In particular, the State has failed to recognise the right of the child to
7 Empowering People in Care, Annual Report 2013
content/uploads/2015/04/EPIC_Annual_Report_Final_2013.pdf> (visited 12 August 2014).
8 Ibid.
9 UNICEF, State of the World's Children: Celebrating 20 Years of the Convention on the Rights
of the Child (UNICEF, 2009), at 1.
10 In January 2016, Ireland’s compliance with the CRC was examined by the Committee on
the Rights of the Child (the monitoring body of the CRC). Among the issues raised, Ireland’s
direct provision system was questioned, along with child poverty rates and child homelessness.
See The Irish Human Rights and Equality Commission, Report to the UN Committee on the
Rights of the Child on Ireland’s Combined Third and Fourth Periodic Reports
_the_child.pdf> (visited 26 January 2016).
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153
participate in proceedings relating to her. Article 12 CRC affords all
children the right to participate in all judicial and administrative decisions
affecting their lives and the right to have these views afforded due weight
according to their age and level of maturity.11 There is an obligation on all
states to ensure that this right is respected and to address issues of
discrimination where they arise, especially with regard to vulnerable
children such as those living in care. They must be “enabled to participate
in all matters affecting them on an equal basis with all other children.”12
For children without parental care, the broader rights of the CRC are also
applicable. However, there are specific rights within Article 20 CRC which
concern the provision of alternative care for a child who is “temporarily or
permanently deprived of his or her family environment or in whose own
best interests cannot be allowed to remain in that environment.”13 Article
20(2) CRC provides that in such cases there is an onus on the State to
provide alternative care for the child, which includes the provision of foster
care.14 In the Guidelines for the Alternative Care of Children adopted by the
UN General Assembly in 2009, it is stated that every child should live in a
supportive environment that promotes his full potential.15 It is
acknowledged that foster care offers such an environment and is the most
favourable solution for children who cannot be raised in their own family
homes, according to Article 20(3) CRC.16
Article 20 CRC does not specify a right for a child to be heard in care
proceedings. However, the Committee has stated that this right is implicitly
protected under Article 12 CRC, which means that both of these provisions
must be interpreted in conjunction with one another.17 As Article 12 CRC is
a general principle, this provision guides the implementation of the other
rights, including Article 20 CRC. Therefore, children in care have a right to
11 CRC, Article 12.
12 Committee on the Rights of the Child, General Comment No. 12: The Right of the Child to
be Heard (UNCRC/C/GC/12, 2009), at [75] [hereinafter General Comment No. 12].
13 CRC, Article 20(1).
14 CRC, Article 20(3) defines alternative care as “foster placement, kafalah of Islamic law,
adoption or if necessary placement in suitable institutions for the care of children. When
considering solutions, due regard shall be paid to the desirability of continuity in a child’s
upbringing and to the child’s ethnic, religious, cultural and linguistic background.”
15 UN General Assembly, Guidelines for the Alternative Care of Children (UN Doc.
A/HRC/11/L.13, 2009) [hereinafter The Guidelines].
16 CRC, Article 20(3).
17 The Guidelines, note 15.
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be facilitated as participants within the placement process.18 The 2009
Guidelines for Alternative Care are also underpinned by a commitment to
child participation rights, wherein it is stated that all decisions:
[S]hould respect fully the child’s right to be consulted and to have
his/her views duly taken into account in accordance with his/her
evolving capacities, and on the basis of his/her access to all necessary
information. Every effort should be made to enable such consultation
and information provision to be carried out in the child’s preferred
language.19
As such, in the context of care placement proceedings, children must be
heard at all times during the administrative planning or assessments and the
judicial hearings.20 While this right applies to all children in theory, research
suggests that in practice participation rights have not been realised for many
foster children.21 Participation has been defined as a multi-layered concept
which embraces theories of both process and outcome.22 In the context of
human rights, it means much more than allowing one to take part. Rather, it
refers to a more meaningful engagement which one exercises in decision-
making processes.23 In General Comment No. 12 on the right of the child to
be heard, the Committee recognised the role of participation in several
settings.24 With regard to the child’s right to be heard in judicial
proceedings, it is said that the “proceedings should be conducted in an
atmosphere enabling the child to participate and to express her/himself
freely.”25
18 Committee on the Rights of the Child, Treaty-Specific Guidelines Regarding the Form and
Content of Periodic Reports to be Submitted by States Parties under Article 44, paragraph 1
(b), of the Convention on the Rights (UN Doc. CRC/C/58/Rev.2, 2010), at [23]-[27].
19 The Guidelines, note 15, at [6].
20 CRC, Article 12(2).
21 Hanne Warming, ‘“How Can You Know? You’re Not a Foster Child:’ Dilemmas and
Possibilities of Giving Voice to Children in Foster Care’ Children” (2006) 16(2) Youth and
Environments 28, at 30. The topic of this article relates to participation rights within research;
however the barriers for effective communication with children in care are also relevant to this
discussion.
22 Perpetua Kirby, Claire Lanyon, Kathleen Cronin and Ruth Sinclair, Building a Culture of
Participation: Involving Young People in Policy, Service Planning, Delivery and Evaluation
(Department of Education and Skills, 2003).
23 Gerison Lansdown, Can You Hear Me? The Right of Young Children to Participate in
Decisions Affecting Them (Bernard van Leer Foundation, 2005), at 12.
24 General Comment No. 12, note 12.
25 Ibid., at [14].
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In recent years, there has been growing recognition that children
should be more involved in decision-making processes which affect their
lives. Astraea Augsberger conducted research in 2014 on the engagement
of children in foster care planning and concluded that there are many
benefits to listening to children effectively.26 She notes that empowering
children to engage as active participants teaches them valuable skills which
enhance their development, imparts knowledge about their rights, and
provides them with a sense of control in the decision-making process.27 It is
in this way that listening to children affirms their dignity and acknowledges
their right to act as autonomous agents in line with the aim of Article 12
CRC.28 A report conducted by the Department of Children and Youth
Affairs in Ireland in 2011 found that the existing structures designed to
facilitate the voice of the child living in state care should be reviewed, and
a culture of participation should be developed which would ensure
consultation with young people on the key issues which affect their lives.29
In light of this finding, it is submitted that it is important to support children
living in foster homes and to provide opportunities to participate in all
matters relating to them.30 The following section will examine Article 12
CRC with a view towards determining what this right to participate means
for children and the different ways in which they can be supported to ensure
state compliance with the CRC.
II. The Right of the Child to Participate under Article 12
CRC
Article 12 CRC consists of two components: the right of the child to express
his views freely in all decision-making, and the right of the child to engage
26 Astraea Augsberger, “Strategies for engaging foster care youth in permanency planning
family team conferences” (2014) 43 Children and Youth Services Review 51, at 52.
27 Ibid.
28 General Comment No. 12, note 12, at [82]. An important part of the child’s participation is
allowing the child the opportunity to decide their level of involvement in the process. This
starts by providing the child with child-friendly information concerning the hearing. Article 17
CRC is also of note as this provides a right to children to access information which is a
“prerequisite for the effective realization of the right to express views.”
29 Department of Children and Youth Affairs, Listen to our voices! Hearing Children and
Young People Living in the Care of the State (Government Publications, 2011) Minister’s
Foreword.
30 CRC, Article 12.
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on either a direct or an indirect basis in the process.31 This forms the
foundation of Article 12(1) CRC and Article 12(2) CRC respectively. The
language used in both of these subsections is of note as it conveys a clear
statement of the child’s right to participate whilst imposing stringent
obligations with which states must comply.32
A. Article 12(1) CRC
Article 12(1) CRC provides:
States Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child.33
i.! Capable of Forming his or her Own Views
The rights contained in Article 12 CRC are afforded to all children who are
capable of forming their own views.34 This requirement is not dependent
upon the age or level of maturity of the child.35 The Committee has provided
some guidance in relation to this, stating that all state parties “should
presume that a child has the capacity to form his or her own views and
recognise that she or he has the right to express them.”36 There is no duty on
the child to prove her level of capacity in any case.37 Rather, there is an onus
on the State to assess the capacity of the child to form an autonomous
31 General Comment No. 12, note 12, at [1]: “Article 12 of the Convention on the Rights of the
Child (the Convention) is a unique provision in a human rights treaty; it addresses the legal and
social status of children, who, on the one hand lack the full autonomy of adults but, on the
other, are subjects of rights.”
32 Marie-Francoise Lücker-Babel, “The Right of the Child to Express Views and to be Heard:
An Attempt to Interpret Article 12 of the UN Convention on the Rights of the Child” (1995) 3
International Journal of Children’s Rights 391.
33 CRC, Article 12(1).
34 This does not mean that a child is incapable of participating if they are young or suffering
from a disability; as the very essences of the CRC is rooted in the concept of non-discrimination
(Article 2).
35 Laura Lundy, “’Voice’ is Not Enough: Conceptualising Article 12 of the United Nations
927, at 935.
36 General Comment No. 12, note 12, at 20.
37 Ibid.
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opinion to the greatest extent possible.38 Laura Lundy notes that the
expression “capable of forming a view” is not dependent upon the child’s
capacity to express a mature view.39 Rather, it is dependent on the child’s
ability to form a view of his own.40 Article 5 CRC is also relevant in this
context, as it recognises the evolving capacity of the child and requires states
to provide appropriate direction and guidance to the child in the exercise of
her rights.
ii.! The Right to Express those Views Freely
Article 12 CRC gives all children the right to express their views freely,
which refers to the right not to be induced or pressured into expressing a
particular wish. The word “freely” is important as it is “intrinsically related
to the child’s ‘own’ perspective: the child has the right to express her or his
own views and not the views of others.”41 According to the Committee, this
also means that the child is entitled to decide by himself whether he wishes
to exercise his right to participate at all.42 Therefore, “States parties must
ensure conditions for expressing views that account for the child’s
individual and social situation and an environment in which the child feels
respected and secure when freely expressing her or his opinions.”43 Lundy
notes the importance of the reference to “an environment” in which the child
feels secure, as this ensures the best outcome for the proceedings.44 Gerison
Lansdown also addresses this and finds that too often “children’s capacities
are underestimated because of an adult failure to create an environment in
which children can articulate their views appropriately.”45 It is vital that
decision-makers make special accommodation for children during
proceedings in order to facilitate a child-friendly discussion.46
38 Ibid., at 44. In regards to conducting this assessment, there is no further guidance at present.
The Committee made reference to this in General Comment No. 12 and said that “good practice
for assessing the capacity of the child has to be developed.”
39 Ibid.
40 See Rebecca M. Stahl, “‘Don’t Forget About Me’: Implementing Article 12 of the United
41 General Comment No. 12, note 12, at 23.
42 Ibid.
43 Ibid., at 23.
44 Lundy, note 35, at 935.
45 Lansdown, note 23.
46 Y. Penny Lancaster and Vanessa Broadbent, Listening to Young Children (Open University
Press, 2003).
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iii.! A Child’s View Shall Be Afforded Due Weight According to
their Age and Maturity
The weight which a decision-maker will afford to the child’s views is
perhaps the most important factor in the process.47 According to the
Committee, “Article 12 stipulates that simply listening to the child is
insufficient; the views of the child have to be seriously considered when the
child is capable of forming her or his own views.”48 Article 12 CRC also
stipulates that the views of the child will be given due weight in accordance
with her age and maturity.49 This is further reflected in Article 5 CRC, which
recognises the evolving capacities of children.50 The age of the child is the
first factor to be considered when determining the weight of his view.
Ultimately, the phrasing of Article 12 CRC means that the decision-maker
will more likely be persuaded by the wishes of a sixteen year old than a five
year old, as the former is likely more capable of making an informed
decision.51 Regardless, the five year old has the same rights as the older
child.52 The crux of the matter is that the decision-maker will likely be more
inclined to consider the views of an older child more seriously as she likely
has a greater level of understanding which makes the process more straight-
forward to an extent.
Additionally, the child’s level of maturity determines the weight of
the views in practice. Maturity is defined in the General Comment as “the
ability to understand and assess the implications of a particular matter…in
the context of Article 12, it is the capacity of a child to express her or his
views on issues in a reasonable and independent manner. The impact of the
47 Michelle Fernando, “Express Recognition of the UN Convention on the Rights of the Child
in the Family Law Act: What Impact for Children’s Participation?” (2013) 36(1) UNSW Law
Journal 88, at 98.
48 General Comment No 12, note 12, at 28.
49 CRC, Article 12(1).
50 CRC, Article 5. See also General Comment No. 12, note 12, at 84: “Consequently, the child
has a right to direction and guidance, which have to compensate for the lack of knowledge,
experience and understanding of the child and are restricted by his or her evolving capacities,
as stated in this Article. The more the child himself or herself knows, has experienced and
understands, the more the parent, legal guardian or other persons legally responsible for the
child have to transform direction and guidance into reminders and advice and later to an
exchange on an equal footing.”
51 Lansdown, note 23.
52 Ibid., at 240 and also General Comment No. 12, note 12, at 21: “Article 12 imposes no age
limit on the right of the child to express his or her own views, and discourages State parties
from introducing age limits either in law or in practice which would restrict the child’s right to
be heard in all matters affecting her or him.”
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matter on the child must also be taken into consideration.”53 There is no
further guidance on this matter, which is problematic as the word
“reasonable” is open to interpretation. This could refer to a duty to express
one’s view in a timely manner, which may not be a reasonable consideration
when dealing with young children who may require extra assistance to
communicate their wishes.54 Therefore it could be said that the “guidelines”
provided by Article 12(1) CRC are not really guidelines at all; the
vindication of the rights provided by the Article in general is dependent
upon the subjective value judgments of decision-makers.
B. Article 12(2) CRC
Article 12(2) CRC provides:
For this purpose the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of
national law.
i.! Direct and Indirect Participation
The most notable aspect of Article 12 CRC is that it affords children an
opportunity to determine the extent to which they will participate in
decisions affecting them. To this end, participation is facilitated in two
forms: directly and indirectly. This right is afforded to all children
regardless of age, and thus even very young children have the right to
engage in decision-making which affects them.55 This offers a certain degree
of flexibility to all parties concerned in the process, especially for the child
who has the right to decide both how he wishes to engage and the extent to
53 General Comment No. 12, note 12.
54 Lansdown, note 23, at 2: “Respecting the rights of young children to be heard necessitates a
preparedness to create the space to listen to their views in ways appropriate to them – through
music, movement, dance, story-telling, role play, drawing, painting and photography, as well
as through more conventional dialogue. This requires the provision of time, adults willing to
listen, and environments in which they feel safe and comfortable.”
55 Lothar Krappmann, “The Weight of the Child’s View (Article 12 of the Convention on the
Rights of the Child)” (2010) 18 International Journal of Children’s Rights 501, at 502.
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which he may engage in the process.56 The Committee has stated that, where
possible, the child should be encouraged to participate directly. However, it
noted that this may not always be realistic. In such cases, an indirect method
will satisfy the child’s rights pursuant to Article 12.57 Therefore the manner
of participation does not affect the weight given to the view of the child.
One method is not deemed to be more persuasive than the other; alternative
avenues are viewed as equal to direct participation, as they may be more
suitable for a child in a certain case.
Direct participation is the preferred form of a child’s participation
because it provides an opportunity for the child to voice her opinion and to
gain a deeper understanding about why this decision is necessary and how
it affects her life. As discussed, it is recommended that the child is afforded
the choice to decide his level of engagement in the process. To enable the
child to make this decision, she should be afforded sufficient information
about the proceedings. Notwithstanding this, in all proceedings the
decision-maker must have regard to which form of engagement would be in
the child’s best interests.58 This can mean that even though a child wishes to
attend the hearing, he can be refused if it is deemed to be in conflict with
his best interests.59
Direct participation can be achieved either by allowing the child to
attend the discussion or by private consultation between the decision-maker
and the child.60 It is important that the proceedings are conducted in a child-
friendly manner, which involves creating a safe environment to facilitate
open discussion. In New Zealand, for example, judges are encouraged to
engage in this process.61 As part of the guidelines drafted by Boshier J for
interaction with children, it is suggested that judicial discussions take place
either in judges’ chambers or outside of the courtroom, to which the child
and her lawyer would be invited.62 No such system or even recommendation
for a similar system exists to date in Ireland. The child should be afforded
56 Lansdown, note 23, at 7: “The experience of involvement in shared activities with both adults
and peers, where there is a presumption of ability to complete a task successfully, encourages
children’s development.”
57 General Comment No. 12, note 12, at [35]–[36].
58 CRC, Article 3.
59 Ibid.
60 Aisling Parkes, “The Right of the Child to be Heard in Family Law Proceedings: Article 12
UNCRC” (2009) Intl Fam L 238, at 239.
61 Peter Boshier, “Making Our Children Count: The New Care of Children Act 2004 – Is s.59
of the Crimes Act 1961 Still Good Law?” (speech presented to Save the Children New Zealand,
17 June 2005).
62 Ibid.
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the right to express their wishes and this should be accommodated where
possible.63 Such is the case in New Zealand, but not in Ireland.
There are some instances in which indirect participation might better
suit the child.64 Whilst this should not replace the direct involvement of the
child in decision-making, it does serve as a beneficial alternative for
children who are very young, unable to express their views personally, or
too uncomfortable or unwilling to directly interact with the decision-maker.
In these cases an indirect method should be made available to the child, such
as the opportunity to write directly to the decision-maker and have this
afforded the same weight as if the child had engaged directly.65 Decision-
makers are obligated under Article 12 CRC to ensure that the weight
afforded to a child’s views does not vary regardless of whether the child
participated in person or otherwise, as neither the CRC nor the Committee
stipulates that direct participation is more persuasive than the alternative.
For children who have decided not to engage in the proceedings it is
important that they are given the opportunity to indirectly express their
views.66 For example, the child might feel uncomfortable speaking about his
experiences, but he may be willing to communicate them in writing.
Another option available to facilitate indirect participation would be to
introduce care support officers to assist the child during the proceedings.67
As a result, children may feel more comfortable in speaking to someone
they trust. An example of such a person would be a care support officer.
Their role would be distinct from that of the social worker because their
responsibility would be to ensure that the child is heard in proceedings
relating to them, and to represent them indirectly where the child so wishes
or the child is too young to attend in person. A support officer should
maintain regular contact with the child to ensure “consistency and
continuity, and following through on promises, aspects often missing for
children and young people in care. A common complaint is that workers
change too often, are rarely available when they call, are slow to return calls,
and do not follow through on requests and promises.”68 Judy Cashmore has
argued that all children in care should be appointed a care support officer as
63 Ibid.
64 Parkes, note 60.
65 General Comment No. 12, note 12.
66 CRC, Article 12(2).
67 See Margaret Bell, Promoting Children’s Rights in Social Work and Social Care (Jessica
Kingsley Publishers, 2011), at 41. Bell advocated for the use of elected representatives to
portray children’s views.
68 Judy Cashmore, “Promoting the participation of children and young people in care” (2002)
26 Child Abuse & Neglect 837, at 843.
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part of building a rights framework, as it is important that there is a point of
contact for every child when she is in care.69
Overall, Article 12(2) CRC is fundamental as it allows the child to
coordinate his involvement. Where feasible, the chosen form of
participation should be facilitated by the decision-maker. It is imperative
that a range of cross-sector services be developed and made available to
children wishing to express their views in judicial and administrative
proceedings. To successfully realise the objective of the CRC, it is important
that states comply with their obligations and actively work to further
enhance children’s rights.70 In order to achieve participation in practice it is
important that those who work with children are adequately trained and that
they understand the value of listening to children. This may involve the
allocation of sufficient resources to provide for the implementation of
Article 12 CRC in practice.
ii.! Implementing Article 12 CRC in Foster Care Decision-
Making
With the words “shall assure” in Article 12(1) CRC, the CRC imposes a
powerful obligation on states to ensure that the child’s right to self-
expression is upheld. This wording leaves no opportunity for states to
exercise discretion in the manner in which this right is implemented.71 The
Committee provides that all states should implement legislation in order to
give effect to Article 12 CRC in family law proceedings.72 Aisling Parkes
has observed that it is clear that while implementing legislation is the
starting point, this does not necessarily ensure compliance with the child’s
right to participate in practice.73 Therefore it is necessary to examine the
obligations imposed on states, as Article 12 CRC imposes a clear obligation
to assure this right.74
First and foremost, it is fundamental that the legislation enacted to
give effect to Article 12 CRC respects the child’s right to engage at all stages
of the process.75 It should also establish the standards of best practice for
facilitating the child in decision-making proceedings. The Committee has
69 Ibid.
70 General Comment No. 12, note 12.
71 General Comment No. 12, note 12, at 6.
72 Ibid.
73 Parkes, note 60, at 239.
74 CRC, Article 12(1).
75 General Comment No. 12, note 12, at [6].
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affirmed that mandatory training for those who work with children must be
introduced as “adults need preparation, skills and support to facilitate
children’s participation effectively, to provide them, for example, with skills
in listening, working jointly with children and engaging children effectively
in accordance with their evolving capacities.”76 This is important to ensure
the effective realisation of Article 12 CRC as the adults who work with
children “need to be committed to the principle of listening to children.”77
Such training would provide instruction on how best to communicate with
children of all ages, the benefits of involving children in decisions affecting
them, and also the various different ways in which they can facilitate
participation to suit all children. These professionals should be instructed
on how to best communicate with children, why it is important to listen to
children’s views in matters relating to them, and the different ways in which
they can encourage children to engage, either directly or indirectly.78
Training could improve the relationship between the child and the decision-
maker, which in turn would increase the overall quality of the engagement
and the child’s participation.79
The legislation should also establish an independent complaints
mechanism by which children would be entitled to access in cases where
they have not been afforded the opportunity to participate in any manner, in
cases where children’s views were disregarded, or in cases where children
were mistreated or disrespected during the process. For all countries, it is
important that children have access to such a service to ensure that their
rights are being afforded correctly and without discrimination.80
Furthermore, it is submitted that it is also in the best interests of children for
such a service to be established, and this is an important consideration for
states in light of their obligations pursuant to Article 3 CRC.81 By
implementing an effective and thorough legislative Act, Ireland would
ensure that Article 12 CRC is realised in theory. However, the challenge is
how this can be put into practice to ensure consistency, which in turn
satisfies the principle of non-discrimination.82
76 Ibid., at para. 134(G).
77 Lansdown, note 23, at 31.
78 Ibid.
79 Ibid., at 7: “There is a growing body of evidence indicating that where children are given
opportunities to participate, they acquire greater levels of competence, which in turn enhances
the quality of participation.”
80 CRC, Article 2.
81 Ibid., Article 3.
82 Ibid., Article 2.
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III. The Status of the Rights of Foster Children under the
CRC in Irish Law
For a long time, children outside of the nexus of the traditional marital
family were disadvantaged in Ireland. Prior to the enactment of Article 42A
of the Irish Constitution, the Irish Constitution was described as being
virtually silent on children’s rights. The rights of the child were largely
confined to the context of the marital family unit.83 This posed a number of
challenges for children without parental care. Article 41 afforded the marital
family unit “inalienable” and “imprescriptible” rights, which has been
interpreted as giving a “higher value to the rights of parents than to the rights
of children.”84 By situating the rights of the child within the context of the
marital family, the Constitution overlooked a broader category of children
who are without parental care. Due to the inalienable protection afforded to
marital families, removing children from the care of their parents has been
subject to an arguably onerous burden of proof.85 Accordingly, placing a
child into state care involved proving that the parents had failed either
“physically or morally” to provide for the child. This became challenging
as there was no provision for the child’s needs, wellbeing, or voice to be
taken into consideration.
Under Article 42A, which was introduced in 2012, the State is entitled
to intervene where there has been a failure of parental duty such that the
safety or welfare of the child is likely to be prejudicially affected.86 The
Oireachtas is now obliged to introduce legislation following the
amendment, which will necessitate consultation with children who are
capable of forming their own views in cases concerning proposed
83 Barnardos, The Case for Constitutional Change
September 2014).
84 Kilkenny Incest Investigation Team, Report of the Kilkenny Investigation Team (Stationery
Office, 1993), at 56.
85 Article 42.5° imposed an obligation on the State, as guardian of the common good, to
intervene in such cases to supply the place of parents “but always with due regard for the natural
and imprescriptible rights of the child.” See also North Western Health Board v HW [2001]
IESC 90; N v HSE [2006] 4 IR 374.
86 Article 42A.4.1°: “Provision shall be made by law that in the resolution of all proceedings –
(i) brought by the State, as guardian of the common good, for the purpose of preventing the
safety and welfare of any child from being prejudicially affected, or (ii) concerning the
adoption, guardianship or custody of, or access to, any child, the best interests of the child shall
be the paramount consideration.”
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165
intervention under Article 42A.87 In this way, the child’s right to participate
in matters affecting her will finally be recognised in Irish law, albeit in a
somewhat limited manner. The requirement to introduce subsequent
legislation means that the child does not possess an express constitutional
right to participate, as this right will merely be protected by way of
legislation. However, Emily Logan, Ireland’s first Ombudsman for
Children, commented “that a more maximal approach to incorporation
could have been adopted in the 31st Amendment.”88
A. Assessing Ireland’s Compliance with Article 12 CRC
The administrative bodies charged with the promotion of child welfare in
a statutory duty upon health boards to identify children who are not
receiving adequate care and “in so far as is practicable, give due
consideration, having regard to his age and understanding, to the wishes of
the child.” However, there is no further guidance on this right as to how it
can be implemented in practice.90 In more serious cases, both the District
Courts and the Circuit Courts (on appeal) have jurisdiction to hear and
determine care placement proceedings.91
proceedings. It was seen as a welcome improvement in Irish law as it
conferred powers on the health boards to provide care and support services
for children in need, thus overcoming the non-interventionist approach
adopted by the courts.92 The significance of this overhaul is a representation
87 Edel Quinn, Next Steps for Children’s Rights in Ireland
of-ireland/quinn-next-steps/#more-16844/> (visited 14 February 2016). “The new article
employs a novel, though not unprecedented, approach to a number of the rights provided
therein. Some provisions are not constitutional directives but enabling provisions, placing a
mandatory obligation on the State to legislate on aspects of adoption (Articles 42A.2.2 and
42A.3), best interests of the child (Article 42A.4.1) and hearing the views of the child (Article
42A.4.2). The wording adopts the imperative ‘shall’ in terms of provision being made in law
for these rights.”
88 Emily Logan, The Children's Referendum: View from the Ombudsman for Children
September 2014).
89 Child Care Act,1991, s.3(1).
90 Child Care Act 1991, ss.3(2)(b)(i)-(ii).
91 Child Care Act 1991, s.28(1).
92 See Nóirín Hayes, Children’s Rights - Whose right? A Review of Child Policy Development
in Ireland (The Policy Institute, Trinity College, 2002), at 47. See also Robbie Gilligan,
“Family Support and Child Welfare” (1995) in Harry Ferguson and Pat Kenny eds., On Behalf
of the Child (A and A Farmar, 1995).
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166
of a movement towards recognising the child as a separate entity, with rights
courts and health boards to act in the interests of the child’s welfare, whilst
incorporating checks and balances in terms of the rights of the natural
parents.94 It also provides for the right of the child to participate in court
proceedings relating to her care, but in a more limited manner than Article
In any proceedings before a court under this Act in relation to the care
and protection of a child, the court, having regard to the rights and
duties of parents, whether under the Constitution or otherwise, shall–
(a)!Regard the welfare of the child as the first and paramount
consideration, and
(b)! In so far as practicable, give due consideration, having regard to
his age and understanding, to the wishes of the child.95
For children in need of care and protection, the law provides for a range of
placements to suit their best interests including short-term care, long-term
health boards to place a child in foster care subject to a voluntary order,
which necessitates that the parents agree with the placement.96 Throughout
Europe, the vast majority of care placements have been ordered by
administrative bodies without court involvement.97 However, in cases where
there is a serious and immediate risk to the child’s wellbeing and safety,
93 Convention on the Rights of the Child, ‘Initial reports of States parties due in 1994: Ireland’
(CRC/C/11/Add.12, 1996): “The Act represents a movement away from the concept of children
as parental property to an understanding of the child as a person who has rights by virtue of
being a child.”
94 Ibid.
95 See also Child Care Act 1991, s.30(2): “A court will be in a position to facilitate a child's
request if the child wishes to attend at a court hearing in proceedings in his or her case.
However, this section also makes provision for the court to refuse such a request if it considers
that having regarded to the age of the child and the nature of the proceedings it would not be
in the best interests of the child.”
96 Child Care Act 1991, s.4: “Where it appears to a health board that a child […] requires care
or protection that he is unlikely to receive unless he is taken into its care, it shall be the duty of
the health board to take him into its care under this section.”
97 Kim Holt and Nancy Kelly, “Administrative Decision Making in Child-Care Work:
Exploring Issues of Judgment and Decision Making in the Context of Human Rights, and Its
Relevance for Social Workers and Managers” (2014) 44 British Journal of Social Work 1011,
at 1017.
2016] The Right of the Child to be Heard
167
proceedings for a care order to be made. There is no reference in this
provision for the child to be heard during proceedings.98
Children to make regulations pertaining to foster care, which resulted in the
drafting of the Child Care (Placement of Children in Foster Care)
Regulations 1995 (hereinafter the Regulations). According to reg.4, a health
board shall, in so far as practicable, pay due consideration to the wishes of
the child, having regard to their age and level of understanding. The
National Standards for Foster Care 2003 (“the Standards”) also provide a
good source of guidance for the implementation of quality care and these
Standards have also established a means by which it can be ensured that
children and young people are heard and involved in decisions relating to
their care. Ursula Kilkelly has recognised that these Standards go above and
beyond the existing legislation in terms of recognising the rights of children
in care.100 She notes that they are consistent with both the CRC and the 2009
Guidelines for Alternative Care and thus they are an influential source for
foster care regulation in this country.101 The failure to recognise these
Standards on a statutory level, however, means that in reality they lack
substantial legal authority.102 As such, in the event that a child has a
complaint regarding a breach of a Standard, there is no effective remedy
available to him.103
B. The Placement Process
To ensure a child-friendly process for child participants, it is important to
create a safe environment to minimise the risks involved in the decision-
making process. There is, however, no such requirement within the 1991
98 Child Care Act 1991, s.16: “Where it appears to a health board with respect to a child who
resides or is found in its area that he requires care or protection which he is unlikely to receive
unless a court makes a care order or a supervision order in respect of him, it shall be the duty
of the health board to make application for a care order or a supervision order, as it thinks fit.”
99 Department of Health and Children, National Standards For Foster Care (The Stationary
Office, 2003).
100 Ursula Kilkelly, Children’s Rights in Ireland: Law, Policy and Practice (Tottel Publishing,
2008), at 346.
101 Ibid.
102 Ibid.
103 Ibid.
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168
should be as informal as practicable, the majority of child care proceedings
are held in the District and Circuit Courts.105 The lack of a statutory
a safe environment is problematic as it is acknowledged that traditional
courtrooms can be a stressful environment for children.106 This is naturally
due to the adversarial nature of court hearings, making them particularly
unsuitable for young children.107 Furthermore, the majority of courtrooms
are not physically designed to accommodate children and this could instil
feelings of intimidation and anxiety in them.108
Creating an environment to facilitate children to express their views
requires that the entire process is safe and secure especially during the
placement hearing.109 Kilkelly deems this to be an important consideration
for children in alternative care, and important from the perspective of
Article 12 CRC, because such children may have already experienced
violations of their rights such as a lack of parental care, neglect, or abuse.110
cases where the child becomes a party to the proceedings. For example,
under s.25(2) the court may appoint legal representation for the child.111
However, it is acknowledged that this only occurs in a limited number
of cases.112 In such cases where it would not be possible to facilitate the
child as a participant, Article 12(2) CRC provides that indirect participation
should be encouraged.113 In Ireland, the child has a right to indirect
representation in court, but this is at the court’s discretion pursuant to s.26
circumstances where it is in the best interests of the child or in the interest
of justice, as detailed within s.26(1).114 However, the primary purpose of a
GAL is to inform the court of the child’s best interests. There is no
104 General Comment No. 12, note 12, at [134].
105 Child Care Act 1991, s.29(4).
106 Ursula Kilkelly, “Children’s Rights and Youth Courts: The Irish Experience” (2008) 8(1)
Youth Justice 39.
107 Ibid.
108 Ibid.
109 Lundy, note 35.
110 Ursula Kilkelly, Barriers to the Realisation of Children's Rights in Ireland (Commissioned
by the Ombudsman for Children, 2007).
111 Child Care Act 1991, s.25(2). See also Geoffrey Shannon, “Giving a Voice to the Child –
The Irish Experience” (2000) 14 Irish Journal of Law, Policy and the Family 131, 138.
112 Shannon, note 111, at 138.
113 General Comment No. 12, note 12, [35]–[36].
114 Child Care Act 1991, s.26(1).
2016] The Right of the Child to be Heard
169
obligation imposed on the GAL to convey the views of the child, as required
by Article 12 CRC.115 Therefore, the appointment of a GAL does not
adequately satisfy the role of an indirect representative and thus the child’s
right to indirect participation is not sufficiently vindicated. A care support
officer, for example, would be better suited to this purpose, as their primary
responsibility would be to act as a representative of the child, which
necessitates communicating the child’s interests and views where the child
cannot do so herself.
For all children entering care, s.11 of the Child Care (Placement of
Regulations] provides that the child has a right to receive a care plan
stipulating the aims and objectives of the placement, the support to be
provided to the child, the arrangements for access, and a review of the
placement.116 The Committee acknowledges that the use of this care plan is
to ensure that the provision and permanency of care is in the child’s best
interests.117 Reports have found that not every child living in foster care is
given this care plan, however. Even those who do receive a care plan
Regulations acknowledge consultation with children during care planning,
this is not an express right as s.11(3) requires consultation between social
workers and children “in so far as practicable.”119 In contrast, the Standards
make provision for child participation during the preparation of a care plan.
As these Standards have not been given statutory effect, in the event that a
Standard is breached, the child has no recourse available to him.
As participation is a process, the child in question should also be given
the opportunity to participate not just in proceedings regarding her initial
placement, but also in care review hearings.120 Where the child is not given
the opportunity to participate, this is a missed opportunity for the decision-
makers and foster carers in terms of improving the child’s care. Section
must inform the foster parents and, in so far as is practicable, the child. The
115 Ibid. This is attributable to the manner in which the Irish courts have interpreted the best
interest’s principle. This principle has been said to “underlie the provision of child-care
services in Ireland.”
116 Child Care (Placement of Children in Foster Care) Regulations (S.I. No. 260/1995), s.11(1).
117 The Guidelines, note 15, at [61]-[62].
118 Rosemary Horgan, “Foster Care in Ireland” (2002) 3(1) Irish Journal of Applied Social
Studies 30, at 38: “Even where there are Care Plans they are usually light on the specifics in
that regard.”
119 Child Care (Placement of Children in Foster Care) Regulations (S.I. No. 260/1995), s.11(3).
120 General Comment No. 12, note 12.
Trinity College Law Review [Vol 19
170
child can be afforded an opportunity to be heard in person or otherwise to
stipulates that the health board must have regard to any views or information
expressed by the child in relation to the review.122 It is submitted that this
provision should be reconsidered as the phrase “in so far as practicable”
serves as an impediment to the realisation of Article 12 CRC.123 Once the
board to inform the child, where practicable, about the decision.124 The
conformity of this practice with Article 12 CRC is questionable.
C. The Role of Decision-Makers in Facilitating the Child as a Participant
Article 12 CRC requires decision-makers to afford due weight to the child’s
views according to his age and level of maturity.125 While this has been
guidance as to how decision-makers shall comply with this right. This raises
concerns with regard to the effectiveness of child participation in practice.
due consideration to the views of the child, having regard to her age and
understanding.126 As opposed to the use of the word “maturity”, which
understanding.”127 This is paradoxical, as to understand something implies
that one has knowledge on the subject matter, but there is no requirement in
Irish law for the child to be informed regarding the placement.128 It is unclear
as to how a child can possess a sufficient level of understanding when he
has no right to receive age-appropriate information to assist him in
participating.129 The law therefore acts as an inhibitor as it prevents the
preconditions necessary for the child to understand the placement process.
121 Child Care Act 1991, s.18(4).
122 Ibid, s.18(5).
123 Kilkelly, note 110, at 346: “‘in so far as practicable’ is a weak standard in so far as it provides
for consultation with the child only in so far as it is practicable, and in this regard it falls short
of article 12.”
124 Child Care Act 1991, s.18(6).
125 CRC, Article 12(1).
126 Child Care Act 1991, s.24.
127 Ibid.
128 The Guidelines, note 15, at [134a].
129 National Standards 2003, note 99, at [7.10]: “A written account of the decisions of the
review is given to the child, the parents, where appropriate and the foster carers and a copy is
retained on the case file.”
2016] The Right of the Child to be Heard
171
In assessing Ireland’s compliance with Article 12 CRC, it is also
necessary to examine the current levels of training required for those who
work with children in care, which includes decision-makers (including
members of the judiciary), social workers, and foster carers. From the
perspective of ensuring that the process is designed in a child-friendly
manner, it is clear that there it is imperative to ensure that adequate training
programmes are provided for all persons working with children. Such
training would provide instruction on the different ways in which children
can express their views and provide guidance concerning the ways in which
children can be encouraged and facilitated in order to achieve meaningful
participation on their part. The Standards require health boards to “ensure
that training is organised in such a way as to encourage and facilitate
attendance by foster carers.”130 However, there is no such stipulation to
encourage and facilitate the child’s attendance.
In 2007 The Family Law Reporting Pilot Project found that Irish
judges are concerned with their own lack of education and training in
dealing with children in the courtroom.131 It was noted that there is no
adequate framework for facilitating the views of the child in line with
Article 12 CRC, which has led to inconsistency in how judges have
interpreted this right.132 The following passage illustrates this inconsistency:
Some will hear the children in their chambers concerning their
preferences especially if children are older. Others feel it may be
inappropriate to hear a child, considering that the child could be
manipulated by one or other parent and fearing this will involve
children in their parents’ disputes thereby further damaging familial
relationships. They prefer to ask an expert to examine a child … and
report back to the court on what is likely to be the best outcome for
the child.133
While the provision of mandatory training is recommended by the
Committee, it does pose problems for Ireland as members of the judiciary
who were appointed prior to 1995 are under no obligation to undergo
training.134 Nevertheless, for other members of the judiciary and for the
130 Ibid., at [16.4].
131 Carol Coulter, Family Law Reporting Pilot Project (Report to the Board of the Courts
Service, 2007).
132 Ibid., at 50.
133 Ibid., at 51.
134 Courts and Court Officers Act 1995, s.19.
Trinity College Law Review [Vol 19
172
wider category of lawyers working in the family courts it is important that
obligatory training is made available.135 The Law Reform Commission
made a similar recommendation in 1996 in its report on the family courts.136
Ten years later, this recommendation has still not been heeded. Social
workers should also be trained in children’s rights and the rights contained
in the CRC so as to ensure Ireland’s compliance. In the Code of Professional
Conduct and Ethics issued by the Irish Social Workers Registration Board,
the duties listed for social workers to comply with include upholding human
rights in practice, respecting the rights and dignity of persons, and keeping
professional skills and knowledge up to date.137 These requirements can
only be satisfied if social workers are afforded training on human rights,
specifically children’s rights protected in the CRC. In particular, in the
pursuit of upholding human rights it stated that social workers must promote
the right to meaningful participation.138 On this basis, it is important that,
during the course of their work, social workers seek to employ these human
rights standards in order to comply with their duties listed in their Code of
Conduct and to create a child-friendly process which encourages child
participation.
Conclusion
At present, and as has been shown, the Irish foster care system is inadequate
and does not satisfy the rights of children living in its care.139 In 2011, a
135 Ibid. Section 48 is of note as this provision allows the Minister for Justice to provide funds
for the training and education of judges. According to Mr Justice Michael White (The High
Court), training is being developed for members of the judiciary in accommodating children:
Mr Justice Michael White, Challenges in Family Law Proceedings
%20Michael%20White%20_%20Challenges%20in%20Family%20Law%20Practice%20Bac
kground%20Paper.pdf> (visited 8 September 2014).
136 Law Reform Commission, Report on Family Courts (The Law Reform Commission, 1996).
137 Irish Social Workers Registration Board, Code of Professional Conduct and Ethics for
Social Workers
(visited 6 September 2014).
138 Ibid., at 5.
139 This is highlighted by a number of recent findings which illustrate the inherent problems
within the system. Of particular concern is the number of children being placed abroad due to
a lack of specialised care places in this country, with an estimated ten children in special care
placements in Northampton, Scotland and Nebraska (Carl O’Brien, “Children in State Care
Based Abroad Due to a Lack of Places at Home” The Irish Times, 2013). This practice needs
to be addressed immediately especially in light of the Committee’s Report on Germany’s
compliance with the CRC (Committee on the Rights of the Child, Concluding Observations
Germany (2014) CRC/C/DEU/CO/3-4
2016] The Right of the Child to be Heard
173
report of the Department of Children and Youth Affairs found that the
current mechanisms in place for facilitating children during decision-
making processes were inadequate and in need of reform.140 Specifically, it
concluded that the notion of expressing one’s views was “alien” to many of
the children surveyed.141 Several recommendations were put forward by the
children in order to improve their time in foster care.142 Firstly they
suggested that the Irish care planning system should be re-examined; fewer
adults should be in attendance at review meetings, and young people should
have a say in who attends their reviews.143 The second suggestion, in relation
to social workers, was “social work practice and the way in which social
workers interact with young people in care needs to be reviewed and
improved.”144 Interestingly, it was also suggested that the current training
for social workers needs to be reviewed and that young people should play
a role in any new training provided.145 The final suggestion submitted in this
report was that young people should play a role in assessing the suitability
of their own social worker.146
In revising the current framework to ensure compliance with the CRC,
it is important to consider the changes which can take effect both in policy
and in practice. It is submitted that Article 42A of the Constitution alone is
not enough to meet the needs of children in practice; legislation must be
enacted to give effect to this provision and to ensure that all children have
the express right to participate in all proceedings relating to them.
Mandatory training should also be introduced for all adults involved in a
foster child’s life as part of fulfilling the objective of Article 42A. An
effective training programme would provide professionals with an
understanding of Article 12 CRC, how to listen to children of all ages and
how to afford views due weight.
In 2014, The Child and Family Agency was established to reform
child protection in Ireland and oversee the provision of foster care.147 The
kinderrechteausschuss-englisch,property=pdf,bereich=bmfsfj,sprache=de,rwb=true.pdf>
(visited 12 August 2014). The placement of German children into foreign care was heavily
criticised in this report.
140 Department of Children and Youth Affairs, Listen to our voices! Hearing Children and
Young People Living in the Care of the State (Government Publications, 2011), at 2.
141 Ibid.
142 Ibid., at 86.
143 Ibid.
144 Ibid.
145 Ibid.
146 Ibid.
147 Child and Family Agency Act, 2013.
Trinity College Law Review [Vol 19
174
Agency proposes to introduce a Strategy for child participation which would
ensure “that every time a decision is taken, which directly affects a child or
young person or children and young people collectively, their views are
taken into consideration in the decision making process.”148 This would be
a welcome improvement for children’s rights in Ireland and it is hoped that
the guide to effective participation would ensure consistency and
compliance with Article 12 CRC for children in care. For the Agency to
operate successfully, however, State resources and funding is required and
the current shortage of social workers working in the HSE must be
addressed.149
According to recent figures, there are more than 9,000 cases of
children at risk waiting for a social worker to be appointed to their case.150
The head of services of the Irish Foster Care Association commented
“unless the Child and Family Agency is fully resourced to ensure that all
child protection and fostering teams have the full complement of social
workers and support staff required, these children and young people will not
receive the services which they are entitled to.”151 In discussing children’s
rights in care, it is acknowledged that there are barriers which must be
overcome in order to comply with Ireland’s obligations imposed by the
CRC.152 The importance of overcoming such obstacles is validated by the
proven value of listening to children and the long-lasting benefits that
participation can have for children in care. Article 12 CRC gives children
an express right to engage in all matters relating to them and to have these
views afforded due weight by the adult decision-maker.153 The very nature
of participation refers to a cooperative process which should be constructive
and interactive in order to improve the lives of all children. In theory,
meaningful participation involves encouraging children to participate from
beginning to end; in practice this means that from the moment the decision
is made to take a child into care, the child should be placed at the heart of
the process and this requires her to engage fully in all decision-making
affecting her.
148 The Child and Family Agency, Participation Resources
community-support/resources-to-support-the-participation-of-children-and-young-people-in-
deci/> (visited 8 September 2014).
149 Cashmore, note 68, at 843.
150 Carl O’Brien, “Thousands of children at risk await social workers” The Irish Times, 5
September 2014.
151 Ibid.
152 Child and Family Agency, National Review Panel Reports on the Deaths of Four Children
153 CRC, Article 12(1).
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