Grandchild case shows it is now too easy for State to interfere with families
Published 03/06/2016 | 02:30
All over the country, children are being looked after full-time by their grandparents. This happens when the parents of the child are not in a position, for whatever reason, to be the child's primary carers. The grandparents, in many cases, do not become the legal guardians of their grandchild but they do become their grandchild's de facto parents. The arrangement is informal and flexible.
If the State had its way, grandparents would rarely be the primary carers of grandchildren, let alone their foster parents or guardians. This is because the State, in this case the Child and Family Agency -Tusla - has a rule which says that you should not become the carer of a child if there is more than a 40-year age gap between you and the child.
Thanks to Independent TD Mattie McGrath, this rule came to public attention last week when it emerged that Tusla removed a nine-year-old boy from his grandparents last October. He had been with them for the last four years. One of the reasons given was that the grandparents, who are in their sixties, are too old to look after their grandchild.
It makes sense to have some kind of an age gap rule. If your child was being placed for adoption outside the family and the choice was between a couple in their thirties and a couple in their fifties or sixties, you would opt for the younger couple, assuming they were fit parents in every other way.
The 40-year rule is too strict, though. Many parents are more than 40 years older than their children, especially with people starting families later now than they once did. If the 40-year rule was to be strictly applied, then children up and down the country would have to be removed from their parents.
The grandparents in this case, however, are more like 60 years older than their grandson. That's a big age gap but if it was an overwhelming consideration, then all those other children in the care of their grandparents would also have to be removed by the State and placed with other carers - and that would invite a huge backlash.
Why would it invite a huge backlash? Two reasons. The first is that the public would object to a grandchild being removed from the people they love and have bonded with. The second is that the grandparents are the child's flesh and blood and the natural ties still matter to people.
This is why programmes like 'Who Do You Think You Are?' are so popular and it is why adopted children often go looking for their natural parents, especially the mother.
The importance we give to the natural ties is despite the passing of the marriage referendum last year. That, and all the legal changes associated with it, enormously downgraded the importance of the natural ties. When those of us on the No side pointed this out, we were told, 'all a child needs is love'.
That was the only way to justify giving two men or two women the same right to have children as a man and a woman. If 'all a child needs is love', then why should it matter that two men or two women can't both be the natural parents of a child? In what way can the natural ties be said to matter once we've gone down this road?
However, this didn't stop former Labour leader Joan Burton (pictured right) stressing the importance of the natural ties when commenting on this case last week.
She said: "We must not end up in a situation where stability or access to biological family is being restricted because of inflexibility or a lack of common-sense decision making."
The boy in this case ended up with his grandparents because his mother and father felt they couldn't cope for various reasons. His father seems to have turned to Tusla as well as his own parents for help. His parents were glad to help.
The mystery to me is why Tusla felt it had the right to remove this boy from his grandparents in the first place. The boy's teachers and doctors vouched for the fact that he was safe and well with them. More importantly, if his parents are happy for him to be raised by his grandparents, then who is Tusla to contradict this without an overwhelmingly good reason?
The Constitution, even after the children's rights referendum of 2012, says that the State can only take the place of the parents when the parents "fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected".
Given that the child's father committed his son to the care of his grandparents, can it really be said that the parents had failed in their duties so badly it demanded State intervention?
Tusla will say it is acting in the boy's "best interests" as required by the law. But teachers and doctors have said the boy was doing fine where he was. Surely the courts should, therefore, give the grandparents the benefit of the doubt?
In the years leading up to the children's rights referendum, we were told again and again that it was too hard, legally speaking, for the State to intervene in families on behalf of children.
I voted in favour of that referendum but warned, along with a handful of other people, that it can also become too easy for the State to intervene in families. This case seems to amply demonstrate that.
The law, therefore, needs to altered again to strike the right balance between the rights of families and the excessive power of the State. That, or the courts need to interpret the law more strictly and more in favour of families.