Irish Courts have duty to override religious objections of parents to protect welfare of children

The judgment of Mr. Justice Gerard Hogan in Temple Street v. D & Anor, published yesterday, makes for dramatic reading. It is not often that a sitting of the High Court occurs in the private residence of a judge at 1 a.m., but it is not the first time that the Irish medical profession has made emergency court applications when treating Jehovah’s Witnesses.

In this case, concerning Baby AB, the medical evidence presented to Hogan J. was that a blood transfusion “was clinically necessary and urgent and all possible alternatives had been exhausted.” Hogan J., referring to issues of religious belief, stated:

A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which [the Constitution] pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette:

“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”

It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2) [2008] IEHC 104, [2009] 2 I.R. 7.

However, the person at issue (AB) was a minor and Hogan J. relied on Article 42.5 of the Constitution to grant an order allowing the blood transfusion to take place. Article 42.5 provides:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

This requires a failure in moral duty on the part of parents, so the conclusion is that adherence to a particular religious belief may, in so far as the State or society is concerned, constitute such a failure. Hogan J. said that:

the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.

He concluded that the Court has “a jurisdiction (and, indeed, a duty) to override the religious objections of the parents”.

The judgment is likely to be of interest to opponents of greater recognition of the rights of the child in the Constitution, particularly those who fear greater State opportunities to override the rights of parents.

For more, see the Human Rights in Ireland blog and the Irish Times.

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One thought on “Irish Courts have duty to override religious objections of parents to protect welfare of children

  1. The Iona Institute are not “Opponents” of Children’s Rights, neither are people who are opposed to changing Article 42 of the Constitution.

    Many people object to removing the rights of parents so that the State decides “Best Interests”. Childrenren are autonomous beings, they need boundaries and rules in order to learn.

    I oppose the 28 th Amendment because there is not ONE single right clearly defined in any of the previous drafts. I don’t believe that parents should abrogate their responsibility and duty to parent their children to the State.

    The State have the worst possible record of child abuse and neglect. The “Outcomes” for children of the State are dismal, children are far better of with parents, even the supposedly “bad” ones. A study by Joseph Doyle at MIT over a 12 year period with a sampling size of 15,000 children, the most exhaustive study of it’s kind proves that the State is the worst possible parent. The Outcomes for children of Foster “Care” and Adoption have been studied since 1947 and all point to the same conclusion, children are always better off with parents or extended family if parents are incapable.

    I would love to see all children guaranteed the right to an education, even the Special Needs Children who have suffered so many cutbacks for the last decade to the point that many receive little or no education, despite their right supposedly guaranteed under Article 40.

    I would love to see all children have the right to health care, even the 25 or so children a year whose parents you see on TV or in the media begging the Irish Public for funds to take their child, often to 3rd World Countries to have life-saving operations when the HSE has handed down a death sentence to them.

    The objection of many people boils down to “who decides?” and most people, at least those who have actually read the drafts, are not willing to give up the right to decide their best interests. What passes for a Child “Protection” System in this country is a joke or at least would be if so many children weren’t dying, ending up in jail, or leading chaotic lives.

    Courts have always over-ridden stupid decisions by parents, particularly blood transfusions, too bad they cant get the HSE to pay for life-saving operations to send children outside Ireland for treatment, or speed up waiting lists for children in pain.

    All the altruism and meaninless waffle and declarations that “we love children” wont fix the incompetence in the Health “Care” System or the Foster “Care” System. Changing Article 42 will just make incompetent people any more accountable. It’s about time someone actually measured “Best Interests” because the “Outcomes” proves they are not even paying attention.

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