Conor O'Mahony

The literature on alternative care focuses overwhelmingly on formal, court-ordered placements; voluntary care placements are discussed less frequently. Least attention of all has been given to informal kinship care placements, where a child is cared for by relatives but is not formally in the legal care of state authorities. In Ireland, these placements, when facilitated by state authorities in lieu of a care order or voluntary care agreement, are known by professionals as ‘private family arrangements’. This article explores evidence which shows that the use of such arrangements is motivated partly by a concern for subsidiarity, and partly by necessity: they provide a source of placements in cases where regulatory requirements and a lack of resources would otherwise make the placement challenging or impossible. However, this strategy carries significant risks. Private family arrangements receive less support and oversight from state authorities than formal care placements, and famil...

Más de 30 años después de la promulgación de la Convención de las Naciones Unidas sobre los Derechos del Niño (CDN), es cada vez más frecuente que las constituciones nacionales incluyan disposiciones específicas sobre los derechos del niño. Esto es especialmente cierto en situaciones en las que un país adopta una constitución completamente nueva; pero, adicionalmente, muchos países han enmendado las constituciones existentes para añadir nuevas provisiones sobre los derechos de los niños. La protección constitucional de los derechos de los niños también es objeto de un nuevo cuerpo de literatura y debates académicos. Este ensayo explorará brevemente algunas de las lecciones que podrían ser beneficiosas para los países que están considerando la constitucionalizarían de los derechos de los niños. Comenzará exponiendo los argumentos a favor de incluir una disposición específica sobre los derechos de los niños en una constitución nacional. A continuación, analizará las experiencias compa...

A major challenge faced by courts called on to interpret rights provisions is how to adapt the interpretation of those provisions to changed circumstances and conditions in society. The nature of these challenges has led to deep disagreement in the United States over whether the U.S. Supreme Court should treat the U.S. Constitution as a living constitution. In contrast, the European Court of Human Rights (ECtHR) consistently takes the view that the European Convention on Human Rights (ECHR) is a living instrument and that its interpretation should evolve over time to reflect societal change.This settled position has allowed the ECtHR to develop a judicial methodology for assessing whether it is appropriate to engage in such evolutive interpretation in a given case (albeit not without some controversy about some of the reasoning employed). By comparison, judicial methodology of evolutive interpretation is less developed in the United States. Nonetheless, in a number of cases surround...

To what extent does the counter-majoritarian difficulty become less of a concern when a majoritarian response to an unpopular court decision is readily available? Scholars have long debated the potential threat posed to democracy by court decisions that strike down legislation by reference to vague rights provisions, but this debate has largely taken place within a paradigm that assumes the extreme difficulty of amending the U.S. Constitution to overrule a decision of which the people disapprove. Far less attention has been given to the question of whether courts—whether at the state level in the United States or at a national level elsewhere—might justifiably adopt a more active and aggressive posture toward rights protection in jurisdictions where the constitution is easier to amend, and where a majoritarian response is a more realistic prospect in the event of a genuinely counter-majoritarian court decision. This Article will explore this question through the lens of the case law...

It has long been recognised that the protection afforded to children’s rights by the Irish Constitution is inadequate. Although children are not completely unprotected by its provisions, the failure of the Constitution to recognise the independent rights of children has had the effect of rendering children’s rights invisible in a wide variety of areas. This problem has been exacerbated by the extent to which parents’ rights supercede those of their children, the superior position of the family based on marriage and the sometimes limited nature of the rights of children in and to education. After a long wait, the Government published its proposals to amend the Constitution to incorporate the rights of children in February 2007. This article explains the background to these proposals, discusses their merits and draws conclusions as to their likely impact if adopted.

In 1973, Louise O’Keeffe was, along with many other children at her school, repeatedly sexually abused by her school principal. While her abuser’s culpability was clear, the culpability of the Irish State for creating the conditions in which sexual abuse of children could take place unchecked became the subject of a protracted legal battle that culminated in the ruling of the Grand Chamber of the European Court of Human Rights in O’Keeffe v Ireland in January 2014. This article examines the background to this litigation and explores in detail the reasoning given by the Court for finding that Ireland had failed in its obligation to implement effective child protection measures in primary schools, as well as its obligation to provide an effective remedy to Louise O’Keeffe. The implications of the ruling for child protection across Council of Europe member states are also considered.

In November 2012, the Irish electorate approved a new provision in the Constitution dedicated to children’s rights. The popular portrayal of the referendum campaign was that it was largely uncontroversial, albeit with a sting in the tail. However, this over-simplifies the reality of a political struggle that was vigorously contested for almost a decade before the actual referendum campaign. While the idea of a children’s rights amendment was never far from the political agenda during this period, the political appetite for ambitious reform ebbed and flowed. The campaign itself was successful in passing the amendment, but the outcome was nonetheless seen as a disappointing one. This paper will explore two questions regarding the genesis and evolution of the children amendment, from initial public consultations through to the referendum campaign. First, what were the political forces that sought to influence the wording of the amendment, and which side had more reason to be pleased with the final product? Second, what were the factors that caused the referendum campaign to play out in such an unsatisfactory way for the Government?

Although its precise normative content is famously elusive, the role that is played by the principle of human dignity in international human rights law is relatively clear: it is consistently stated to be the principle from which the human rights of the individual derive. However, in the realm of national constitutional law, the principle can sometimes be used in a rather more haphazard fashion, such that it can be difficult to pin down even its role in the constitutional order, not to mention its normative content. Ireland is a case in point. The Irish Constitution of 1937 was one of the earliest to invoke human dignity as a foundational principle, but case law interpreting and applying that principle has cast dignity in a variety of roles, and as a result has failed to develop in a coherent fashion. This paper will examine the various guises in which human dignity has appeared in Irish constitutional case law,and consider which examples demonstrate the added value that human dignity can bring to constitutional adjudication.

In 1973, Louise O’Keeffe was, along with many other children at her school, repeatedly sexually abused by her school principal. While her abuser’s culpability was clear, the culpability of the Irish State for creating the conditions in which sexual abuse of children could take place unchecked became the subject of a protracted legal battle that culminated in the ruling of the Grand Chamber of the European Court of Human Rights in O’Keeffe v Ireland in January 2014. This article examines the background to this litigation and explores in detail the reasoning given by the Court for finding that Ireland had failed in its obligation to implement effective child protection measures in primary schools, as well as its obligation to provide an effective remedy to Louise O’Keeffe. The implications of the ruling for child protection across Council of Europe member states are also considered.

To what extent does the counter-majoritarian difficulty become less of a concern when a majoritarian response to an unpopular court decision is readily available? Scholars have long debated the potential threat posed to democracy by court decisions that strike down legislation by reference to vague rights provisions, but this debate has largely taken place within a paradigm that assumes the extreme difficulty of amending the U.S. Constitution to overrule a decision of which the people disapprove. Far less attention has been given to the question of whether courts—whether at the state level in the United States or at a national level elsewhere—might justifiably adopt a more active and aggressive posture toward rights protection in jurisdictions where the constitution is easier to amend, and where a majoritarian response is a more realistic prospect in the event of a genuinely counter-majoritarian court decision. This Article will explore this question through the lens of the case law preceding and following the enactment of Proposition 8, which constitutionally prohibited same-sex
marriage in California. The Proposition 8 cases are particularly suited to this task because they involve the resolution of one of the foremost constitutional rights controversies of our time in two very different systems: the U.S. federal system, where the Constitution is extremely difficult to amend, and California, where the constitution is extremely easy to amend. Drawing on the work of Alexander Bickel, this Article argues that as a constitution becomes easier to amend but still exhibits a reasonable level of entrenchment, some of the key arguments for judicial restraint in the interpretation of constitutional rights become less
compelling. However, when an issue is the subject of intense political controversy and it is unclear whether a decision will be accepted by the people, a point is reached where extreme ease of amendment is itself a reason to favor judicial restraint.

A major challenge faced by courts called on to interpret rights provisions is how to adapt the interpretation of those provisions to changed circumstances and conditions in society. The nature of these challenges has led to deep disagreement in the US over whether the US Supreme Court should treat the US Constitution as a living constitution. In contrast, the European Court of Human Rights consistently takes the view that the European Convention on Human Rights is a living instrument and that its interpretation should evolve over time to reflect societal change. This settled position has allowed the Court to develop a judicial methodology for assessing whether it is appropriate to engage in such evolutive interpretation in a given case (albeit not without some controversy about some of the reasoning employed). By comparison, judicial methodology of evolutive interpretation is less developed in the US. Nonetheless, in a number of cases surrounding the death penalty and substantive due process in particular, the US Supreme Court has employed strikingly similar reasoning to the European Court of Human Rights, and this case law provides fertile ground for comparative analysis. This paper will compare and contrast the judicial methodology employed by the European Court of Human Rights and the US Supreme Court when engaging in evolutive interpretation of rights provisions. It will be argued that there is much common ground between the two approaches, and that a comparison between the two sheds light on how to resolve difficult questions concerning how states are counted in consensus analysis; the appropriateness of reliance on foreign and international law; and the question of whether evolutive interpretation is a one-way process where rights can be expanded but not restricted.

The Child Care Act 1991 has now been in operation for 20 years, during which time the number of children in care has doubled, and a number of reports have documented Ireland's unfortunate history with respect to child protection. However, in spite of this, little is known about what happens in the District Court proceedings that determine whether and how the State intervenes to protect children who are suspected victims of abuse or neglect. Existing literature focuses predominantly on the legal framework governing these proceedings; there is no reliable empirical data which can be used to lend transparency to the proceedings, to foster consistency as between judges and court venues, and to inform debates on reform. This paper conducts a review of the existing literature with a view to generating research questions that will inform an empirical study to be undertaken by the authors.

Human dignity has been the foundational principle of choice of both international human rights law and domestic constitutional rights provisions since the end of the Second World War. However, in spite of widespread international agreement on the importance of the principle, there is a significant degree of confusion regarding what it demands of law makers and adjudicators, and considerable inconsistency in its formulation and application in domestic constitutional law. This paper will argue that much of this confusion stems from loose usage of the term by judges and commentators. The discussion will focus on two characterizations of human dignity frequently seen in domestic constitutional law which cannot be logically reconciled with its role in international human rights law: the idea of a right to dignity, and the related confusion between the concept of dignity and the right to personal autonomy. It will be argued that a move away from these characterizations of dignity would render the principle a more workable and useful tool as a foundational principle of constitutional rights.

While the concept of de facto family life has been a feature of the jurisprudence of the European Court of Human Rights for over three decades, Irish law has always had a somewhat uneasy relationship with the concept. At a constitutional level, Irish law clearly places the marital family on a pedestal and excludes non-marital families from recognition. However, case law in the 1990s showed a willingness by the courts to indirectly recognise de facto families when applying legislation on guardianship, custody and access. Two recent High Court decisions, concerning international child abduction and the rights of a lesbian couple as against a sperm donor, saw a more radical approach adopted, but an appeal from one of these saw the Supreme Court decisively reject the concept of the de facto family. This paper will examine the boundaries of the definition of family life under Article 8 of the ECHR and assess whether Irish law, which provides limited recognition to non-traditional families, can be reconciled with Convention obligations.

The Irish courts have long operated on the basis that the Constitution is a living document to be interpreted in light of changing standards and conditions in society. As Irish society has changed dramatically in recent years, the courts have been presented with difficult questions regarding whether the degree of change justifies reinterpreting a constitutional provision. This has led some members of the judiciary to have reservations about the democratic legitimacy of such reinterpretations, and to doubt their own institutional competence to accurately reflect views in society. Accordingly, in two recent cases regarding same sex marriage and frozen embryos, the courts have chosen to defer to the legislative position as reflective of the will of society instead of exercising an independent judgment. This article critically assesses judicial deference as a method of reflecting societal change in constitutional interpretation, and argues that while it is superficially appealing, it is ultimately problematic. In this light, alternative methods of facilitating the evolution of constitutional principles will be considered.

Due to the historical arrangement between Church and State, the Irish State has always discharged its duty to provide for free primary education exclusively through the provision of funding to privately owned and managed schools. Consequently, in O’Keeffe v. Hickey, where awoman sued the State in respect of sex abuse she suffered when in school, the Supreme Court held that on ordinary tort law principles of vicarious liability, primary school teachers are employed by the individual school and not by the State. Consequently, the State bears no liability for torts committed by teachers in the course of their employment. Moreover, the court expressed doubt as to whether such abuse could be considered to occur within the course of employment for the purposes of vicarious liability. This article examines this case from the perspective of the obligations of the State under the Irish Constitution and the European Convention on Human Rights. It argues that viewed globally, these obligations do not allow the State to insulate itself from liability for what occurs in state-funded primary schools; on the contrary, in cases of systemic failure to protect children from sex abuse, there are compelling legal grounds to impose liability on the State.

While the law in England and Wales has gradually begun to recognise the autonomous legal interests of children, the provisions governing the special educational needs statementing proces have not followed this trend. In spite of the obvious importance of allowing the child to contribute to the various stages of this process, such as assessments, drafting and reviewing of statements, choice of school and appeals, the law almost invariably makes strong statutory provision for the protection of parental participation and preference while only indirectly protecting the interests of the child through the non-binding Code of Practice. This failure to make adequate provision for the child's participation rights risks jeopardising the child's best interests, and is arguably in breach of Articles 3 and 12 of the UN Convention on the Rights of the Child 1989 (UNCRC).

In the UK, with its constitutional tradition of parliamentary sovereignty, the question of how rights are best protected has long been a topic of heated discussion. By contrast, in Ireland, the presence since 1937 of a written Constitution containing an extensive justiciable Bill of Rights has created a more settled notion in that jurisdiction of how rights should be protected. However, recent difficulties arising from the enforcement of one of those justiciable rights – the right to education – have led to some debate amongst judicial and academic members of the legal community regarding the exact role to be played by a written constitution in the protection of rights, and of the position to be occupied within such a document by a resource-dependent right such as the right to education. The purpose of this paper is to consider the role of constitutional provisions and of legislation in the protection of the right to education, focusing on the context in which that right is most frequently breached – children with special educational needs. In considering this topic, reference will be made to the contrasting experience of the UK and Ireland, whereby in the UK, there is no positive entrenched constitutional right to education, but there has long been a detailed legislative framework for special educational needs, while in Ireland there is a well established and highly developed justiciable constitutional right to education, but detailed legislation was not enacted in this field in mid-2004. Through this, it is hoped that conclusions can be drawn as to the relative significance of a constitutional right and of a legislative framework in making adequate legal provision for the protection of the right to education of children with special educational needs.

It has long been recognised that the protection afforded to children’s rights by the Irish Constitution is inadequate. Although children are not completely unprotected by its provisions, the failure of the Constitution to recognise the independent rights of children has had the effect of rendering children’s rights invisible in a wide variety of areas. This problem has been exacerbated by the extent to which parents’ rights supercede those of their children, the superior position of the family based on marriage and the sometimes limited nature of the rights of children in and to education. After a long wait, the Government published its proposals to amend the Constitution to incorporate the rights of children in February 2007. This article explains the background to these proposals, discusses their merits and draws conclusions as to their likely impact if adopted. Attention is focused on the proposed amendments relating to child welfare; the discussion excludes the issue of child protection, which is beyond the scope of this article.

Ever since the journalistic and academic furore which surrounded the High Court and Supreme Court decisions in Sinnott v Minister for Education, the law relating to special educational needs has become an extremely high-profile issue. The decision in Sinnott has been followed by a number of similarly significant decisions and the enactment of new legislation, which in turn has generated even further comment and debate. The latest event in what is rapidly becoming a legal saga was the decision of the High Court in O’Carolan v Minister for Education, which concerned the educational provision to be made for a 14-year-old profoundly autistic boy. At the time, the decision was denounced by Kathy Sinnott MEP as “a black day” for persons with special educational needs as a whole, and the outcome of the case was met with an equally hostile reaction from other disability support groups. On first reading, it might seem that this portrayal of the decision as a further restriction of the constitutional right to education was misleading, since the case had seemed to turn on a mere conflict of evidence (and indeed this was undoubtedly the main point at issue between the parties). However, closer examination reveals that there are perhaps grounds on which one of the more legalistic points of constitutional interpretation involved might be called into question.

The granting of mandatory injunctions compelling the State to provide educational services has been a highly controversial and much litigated issue in recent years. There had always been a general acceptance that the courts should refrain from granting such injunctions and confine themselves instead to declaratory relief, on the assumption that the State would respond to any such declaration.  However, the failure of the State to respond in an appropriate manner in a succession of cases led the High Court to break with tradition and grant mandatory injunctions in both DB v Minister for Justice and TD v Minister for Education.  This was appealed to the Supreme Court, who seemed to close the door on this particular remedy in their landmark decision by holding that mandatory injunctions of this nature amounted to a breach of the separation of powers as they dealt with matters of policy and distributive justice. This article in concerned with the effect of the recent decision of the High Court in Cronin v Minister for Education;  this case has arguably put a new slant on the Supreme Court decision in TD which, if correct, may potentially have far-reaching consequences. The approach adopted by Laffoy J. could, if followed, serve to limit much of the damage which was caused by the highly restrictive Supreme Court decision; additionally, the High Court decision further highlights the illogical nature of some aspects of the reasoning of the majority of the Supreme Court in TD.

In England & Wales, children whose special educational needs have not been met have a number of options when considering how best to obtain redress for this failure.  However, in a recent novel development, claims for negligence for educational malpractice have been successfully brought against Local Education Authorities (LEAs) and their employees. Traditionally, the courts in England & Wales have been reluctant, on grounds of public policy, to entertain claims against public authorities for negligence in the course of carrying out a statutory duty. However, a number of recent high-profile decisions have brought about a reversal of this trend in the context of special educational needs, while also contemplating extending the principle to other areas of education law. This has raised the spectre of the negligence claim for education professionals generally, which is unquestionably a highly significant development. In light of the recent spate of education litigation in Ireland,  it is probably only a matter of time before someone attempts to bring such a case on this side of the Irish Sea. More often than not, the law of negligence in Ireland tends to follow developments in England & Wales; however, on this particular issue, a number of differences between the two legal systems and educational frameworks make it less clear whether this will happen. The aim of this article is to set out the background to the developments in England & Wales, and to consider how the principles established there might transfer to Ireland.

In cases concerning a breach of the right to education in Ireland, there are three types of relief which the plaintiff may seek to claim: damages, declaratory relief and injunctive relief (usually in the form of an order for mandamus compelling the Minister for Education to provide a certain type of education). The award of damages and declaratory relief are relatively straightforward matters; however, close analysis reveals that they are often insufficient to remedy a breach of the right to education. The inadequacy of these more traditional remedies has recently led to the granting of injunctive relief against the State by the High Court, raising the question of whether or not it is legitimate for a court to dictate matters of policy to the Executive. The separation of powers has therefore become extremely relevant to the ostensibly unrelated area of the right to education, rearing its head in a succession of cases. The purpose of this article is to discuss the manner in which the courts have dealt with this issue. As will become apparent, two conflicting strands of jurisprudence have emerged. It will be argued that the recent Supreme Court have, in spite of their detailed consideration of the issue, failed to satisfactorily resolve this complicated and controversial point of law. An alternative approach is required if the right to education is to be fully justiciable; it will be argued that a well developed and constitutionally justified alternative already exists.

Unenumerated rights were once the heartbeat of the Irish Constitution. To anyone who has studied for a law degree in Ireland, the decisions in famous unenumerated rights cases such as Ryan, McGee and Norris stand out among the countless judgments that they encountered in lectures, textbooks and articles. In recent years, however, the doctrine has played an increasingly peripheral role. While some well-established unenumerated rights are applied almost as if they were expressly contained in the constitutional text, no new rights have been recognised by the Supreme Court for over two decades (or, since its establishment, by the Court of Appeal). Aside from a few High Court judgments of limited significance, the general approach of the courts has been to avoid either recognising new rights or developing or extending the scope of rights previously recognised. More than one obituary has been written for the doctrine.

But have the reports of its demise been greatly (or, at least, somewhat) exaggerated? This paper will examine that question by reference to the recent Supreme Court decision in NHV v. Minister for Justice, in which the statutory prohibition on asylum applicants seeking or taking up employment pending the determination of their application was found to be an unconstitutional violation of the unenumerated right to work. The decision was notable for bucking the recent trend of judicial disengagement from unenumerated rights; it developed and asserted a comparatively under-developed right, and contained some interesting analysis of the sources which could be used to ground and interpret that right. This brief discussion will explore how the discussion of the ‘human personality’ and ‘human dignity’ fits in with classic case law from the 1960s and 1970s as well as with more contemporary jurisprudence, and consider the potential offered by this decision for future argumentation and adjudication based on unenumerated rights.