Human rights compliant decision-making in child protection: Lessons for Ireland from a comparative socio-legal case study analysis of Ireland, England and Germany

Corbett, Maria
Children have a right to be protected from harm and the State is obliged to take measures to vindicate that right. The State may intervene in family life by restricting parental rights, removing a child into care or placing the child for adoption. These are significant powers afforded to the State to make life changing decisions on behalf of children. This research is grounded in child rights theory but also adopts the lens of the capabilities approach and social model to contextualise the interaction between the State and families. In so doing it seeks to incorporate a focus on the child’s right to protection from harm and the child’s right to family life, and ensure that there is not an egregious breach of parental rights. This study seeks to assess whether child protection decision-making is human rights compliant. Following a mapping of international human rights norms and standards, a framework is developed against which to assess compliance. A particular focus is placed on the obligation that decision-making be both in the child’s best interests and proportionate. This framework is then utilised to assess and compare how three jurisdictions – Ireland, England and Germany – are respecting human rights law. Significant differences arise in how States seek to meet their obligations in relation to preventing a child removal, the judicial intervention employed, the measures in place to promote family reunification and the participation of the child in decision-making. Tobin’s work on rights-based approaches is applied to categorise the approach reflected in national law. Irish law best fits the rhetorical approach, English law a selective approach and German law a substantive rights approach. The study concludes by proposing recommendations for the development of human rights law and measures to promote greater human rights compliance within child protection decision-making in Ireland.
NUI Galway
Publisher DOI
Attribution-NonCommercial-NoDerivs 3.0 Ireland