Monday, 7 December 2009

Rights-based approach to child law

In today's Irish Times Dr Ursula Kilkelly explores the increasing impact of international law on Ireland's family law. The sources of international law in this area not only include the seminal Convention on the Rights of the Child, but also law emerging from the Hague Convention on Private International Law and from Europe (Council of Europe and the European Union). As Dr Kilkelly notes
Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.
She goes on to highlight that the more recent significant development in this area is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. Importantly, the Charter requires that the best interest of the child is a primary consideration in all actions concerning children. It also expects that children’s views be taken into account in matters that concern them. It is clear that in this area the Charter reflects the approach of the CRC and is as a result likely to of major importance in Irish domestic law.
Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms.... Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.

Ultimately, whilst Dr Kilkelly notes that
[T]he complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.

She also concludes that there are many positive opportunities that will flow from these fast changing developments:
For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.

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