Call for papers – ISCL annual conference 2011

The ISCL Annual Conference will take place on 29-30 April 2011 in University College Dublin School of Law. The Society is therefore seeking proposals particular those which place Irish law (in either part of Ireland) in a comparative dimension. however,  the conference is also open to comparative analyses from other legal systems. Any topic in comparative law or legal systems may be proposed: private or public law, criminal law and criminal justice, legal education, legal history, etc. Papers on European or international law will also be considered.

The society is looking for short proposals of around 250 words which should be sent to by 21st February 2011.

Child Law Clinic launched by UCC Law Faculty

Dr Ursula Kilkelly, Faculty of Law, UCC

A new initiative at the Law Faculty at University College Cork hopes to lead the way in using the law to bring about reform in child law and policy. The Child Law Clinic was developed with partners at the University of Pennsylvania and Temple University in Philadelphia where, like many US law schools, clinical education forms an integral part of the student experience. The aim of the Child Law Clinic at Cork is to give students experience working on practical legal issues affecting children, and ‘real’ cases about to or already being litigated in the courts. It puts the considerable research expertise and experience of graduate law students and Law Faculty members at the disposal of legal professionals and thereby aims to improve the quality of litigation in children’s cases.

There is relatively little public interest law practised in Ireland and even less in children’s cases. Yet there are many aspects of child law and policy worthy of challenge and strategic litigation can play an influential role in bringing about improvements in the way in which children are treated. As organisations like the Children’s Law Centre in Belfast and Juvenile Law Centre in Philadelphia show, initiating legal action can focus attention on a particular legal issue and bring about change on behalf of individual or groups of children. In some cases, this can have a wider and more immediate effect than reform brought about through traditional campaigning and lobbying activities. Juvenile Law Centre for example has introduced amicus curiae briefs in multiple cases involving children at both state and federal levels in the US and has played a crucial role in the US Supreme Court decisions to find unconstitutional the eligibility of children for the sentences of the death penalty and life without parole in non-homicide cases. They also play an important role in the monitoring of courts’ treatment of children and were at the centre of the exposure of corruption in the so-called ‘Cash for Kids’ scandal in Luzerne County (see earlier CCJHR blog entry). JLC also undertakes appellate work challenging decisions of significance to children and it is here that the Child Law Clinic at UCC hopes to make an impact. It hopes also to focus public attention on the ‘big picture’ issues of child law and policy, and support lawyers to co-ordinate their efforts in the representation of individual children, to the benefit of all children.

High Court Makes Order to Protect Child against Parental Religious Views

Dr Conor O’Mahony, Faculty of Law, UCC

Over the Christmas holidays – 2.30 am on the morning of December 27 to be precise – Mr Justice Hogan of the High Court granted an order authorising the administration of a blood transfusion to a 4 month old baby against the religiously-based objections of his Jehovah’s Witness parents. This is not the first time that this has occurred, but what makes it particularly noteworthy is that it is the first time that an emergency order of this kind has been followed by a written judgment, which Hogan J issued on January 12. The case raises important issues with respect to both Article 44 of the Constitution, which protects freedom of religion, and Articles 41 and 42 of the Constitution, which protect family autonomy and delineate the power of the State to intervene in family affairs so as to protect children whose welfare is at risk. In light of the long-awaited referendum on children, this judgment is most topical.

Article 42.5 permits State intervention in “exceptional cases” where parents fail in their duties for physical or moral reasons. Previous case law – namely the Baby Ann case in 2006 – has stressed that “physical” reasons involve matters outside of the parent’s control, while “moral” reasons involve culpability or blameworthiness on the part of the parents. Hogan J was careful to point out that in this case, the parents were wholesome and upright, and deeply concerned for their child’s welfare, but steadfast in their religious belief. Accordingly, he agreed with an earlier judgment in which Bermingham J had commented that the use of the word “failure” is somewhat unfortunate in Article 42.5, since the parents at all times felt that they were acting conscientiously in accordance with their religious views. This is an interesting observation in light of the fact that the proposed amendment (as of February 2010 – but publication of an amended version is pending) to Article 42.5, while removing the words “exceptional” and “duty”, retains the concept of failure in responsibility.

Nonetheless, in spite of the conundrum this issue presents, Hogan J ruled that “[t]he 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.” Relying on the standard set down in the PKU case in 2001 that State intervention would be justifiable where there is an imminent threat of death or serious injury, Hogan J ruled that the religious freedom of the parents, and their autonomy as a constitutionally protected family, gave way to the need to protect the life of the child:

“The State has a vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life. This interest can prevail even in the face of express and fundamental constitutional rights. … Given that Article 40.3.2 commits the State to protecting by its laws as best it may the life and person of every citizen, it is incontestable but that this Court is given a jurisdiction (and, indeed, a duty) to override the religious objections of the parents where adherence to these beliefs this would threaten the life and general welfare of their child.”

This is a significant and welcome decision insofar as it finally clarifies this point in the form of a written judgment. The PKU case had not involved religious objections (and the risk to the child was not found to be serious enough to justify intervention), and the last major written judgment on the issue of Jehovah’s witnesses and blood transfusions, Fitzpatrick v K in 2008, was decided on grounds of lack of capacity rather than religious freedom. Citing that decision, Hogan J remarked obiter that a properly informed adult with full capacity would be free to refuse medical treatment for religious or other reasons. Since the age of consent for medical treatment is 16 in accordance with section 23 of the Non-Fatal Offences Against the Person Act 1997, one of the obvious questions that arises from this case is how the court would decide a case in which a mature teenager of 16 or 17 wished to refuse a blood transfusion on religious grounds or otherwise. Such a case could give rise to a variety of interesting issues depending on whether the parents supported the decision, and whether they were married and thus entitled to rely on the protection offered by Article 41 of the Constitution to the marital family.