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STRENGTHENING THE RIGHTS OF CHILDREN published in the Irish Times 29 September 2006

I dealt recently with a high profile freedom of information (FOI) case where there was serious conflict within a family and where the respective legal rights of a parent and a child were at odds. At issue was the right of a father under the FOI Act to see the hospital records of his daughter. The parents had separated some years before the mother died and, following her death, their two children lived with an aunt and uncle who were appointed joint guardians by the court. The father was granted access to the children, on a supervised basis only, by the court. In 2002 my predecessor dealt with an appeal from the father who had been refused access to his daughter's records by the hospital. The FOI legislation provides that a parent will be given access to a child's records where to do so is in the best interests of the child. My Office's decision was to affirm the refusal of the records. A primary consideration in that decision was the fact that the other guardians of the child, with whom she lived and who were therefore her primary carers, objected and claimed that giving the father the records would not be in the child's best interests. In the absence of agreement between the guardians, my Office took the view then that the father should show why granting the request would serve his daughter's best interests. When he was judged not to have done this, my Office rejected his appeal.

The father appealed to the High Court which, in January 2004, ruled in his favour. The Court (in N McK and the Information Commissioner) found that my Office had erred in law in so far as it had applied a test requiring the father to provide tangible evidence that release of his daughter's records to him would serve her best interests. The Court found that the father "enjoys the parental primacy ... and the presumption that he has the welfare of his child at heart in the absence of evidence to the contrary". The Court found that my Office had failed to recognise this Constitutional presumption in favour of parents when acting in relation to their children. It directed that I decide the case in favour of granting the father access to the records.

The High Court relied heavily on North Western Health Board v HW where the Supreme Court found in favour of parents who had refused to allow their child to undergo a diagnostic test proven to reduce the incidence of a serious childhood illness. Interestingly, The Irish Times (28/9/06) reports that this judgment is expected to attract specific adverse comment from the UN Committee on the Rights of the Child when it reports on Ireland's compliance with the UN Convention on the Rights of the Child.

I was puzzled as to why it had found that the father should be presumed to be acting in the best interests of the child in a situation where the other guardian had objected to his getting the records and contended that this would not be in the child's best interests. I accepted that the opposition of one guardian is not sufficient to decide the matter. . However, I found it unusual that the Court appeared to take no account of the presumption that the other guardian was also acting in the best interests of the child in opposing release. In these circumstances, it is hard to see that the "parental primacy" presumption should have favoured either of the guardians. On the basis of the procedures then being followed by my Office, we did not seek to establish the views of the child in circumstances where the father had not presented any evidence that provision of the records to him would be in his child's best interests. What concerned me in particular was that the High Court had now ordered the release of the records to the father without reference to the rights of the child and without taking account of her views or those of the other guardian. In these circumstances, I decided to appeal to the Supreme Court.

In January 2006 the Supreme Court affirmed the substantive judgment of the High Court but, crucially, varied it on the matter of the decision to be made by me. It returned the case to me with an order to conduct the appeal "in accordance with the correct test and in the light of all of the circumstances". While the Supreme Court upheld the principle that the father must be presumed to be acting in the best interests of his child, its approach did allow for the taking into account of the views of the child. Unfortunately, I was no clearer as to how to reconcile an apparent constitutional paradox: how can both parents simultaneously be presumed to be acting in the best interests of the child when they disagree fundamentally on an issue? Is it that the Constitution has yet to address the status of individual family members in a post-divorce/separation Ireland? It clearly speaks more to the "intact" family, than to individual family members living apart from each other.

In the new appeal, following the Supreme Court's decision, I ascertained and took account of the views of the child. Clearly, I welcome the fact that the child's views could be taken into account. This does reflect some recognition of the child having rights. In the event, my findings of fact led me to decide that release of the hospital records to her father would not be in her best interests. My decision has not been appealed to the High Court.

The wider issue, which I think this case illustrates, is the lack of balance as between the rights of parents and the rights of children in our Constitution. While the FOI legislation provides for decisions regarding access to children's records being made on the basis of a best interests test, the Supreme Court's ruling is that there is a presumption that a parent having access to a child's hospital records is in her best interests. While the presumption may be rebutted, the child concerned (or the other guardian) is not starting from a level playing field. As matters stand, it seems to me that there is an on-going, unresolved confusion regarding the extent to which the "best interests" principle actually applies. The High Court's ruling last June in the "Baby Ann" adoption case is a good example: while the High Court appears to have decided the issue on the basis of the best interests of the child, it remains to be seen how the Supreme Court will deal with the matter.

The need for Constitutional amendment in this area has been flagged by many reputable authorities as far back as 1980 in a commentary by Niav O'Daly and Séamus Ó Cinnéide, published as a supplement to the 1980 Report of the Task Force on Child Care Services. They observed that, while for most children this Constitutional confusion is of no consequence, it is of real consequence in that small number of cases "affecting the interests of children where there is real and serious conflict which cannot be resolved within the family". In such cases, they observed, "the children's rights must be considered separately and, in some cases, given greater emphasis than the rights of the parents or the family as a whole". The solution they suggested, in order to ensure the welfare of children, was the addition to the Constitution of a clear and unambiguous definition of "the natural and imprescriptible rights of the child" and giving precedence to the rights of the child where this is necessary to ensure her interests.

I think it is important that the debate about children's rights should not become polarised. There is the danger that strengthening the position of children may be seen in some quarters as an attack, in particular, on the position of fathers. I know from my work both as Ombudsman and Information Commissioner that fathers can sometimes be the innocent victims of unfounded, or sometimes even malicious, allegations; and that, even when allegations prove unfounded, their relationship with their children can be seriously undermined. Fortunately, those advocating change in the Constitutional rights of children recognise the need to find a formula which clarifies and strengthens the position of children while not undermining the status and authority of the family or of either parent.

Emily O'Reilly, Information Commissioner & Ombudsman

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