Risk and reflexivity in the development of Irish child protection law and policy, 1919-2017

This thesis examines the development of the Irish child protection system up until the present day. It argues that child protection law and policy has continually reconstructed children, and the risks that they face. In particular, it posits that there has been a radical revision of social and legal thinking about children owing to the reflexive nature of late modernity. In essence, the thesis argues that child protection work has come to be characterised by a new discursive practice. This new approach draws on high levels of legal regulation and recognition that such work takes place in a risk society. Historical literature on the conceptualisation of children within child protection has tended to adopt a binary approach, whereby children are seen as either a threat or as a victim. Additionally, the last twenty years have seen occasional attempts to analyse Irish social policy in the context of the transition from simple to late modernity. However, these studies have not considered the role played by law in significant detail, as most have been considered from a historical or sociological perspective. The result of this is that one of the main factors influencing how children lived, and the risks they faced, has been ignored in writing about childhood. Additionally, child law has also only recently developed as an area of study in its own right within legal research. This thesis therefore aims to contribute to the existing literature by assessing the historical development of legal rules governing child protection practice in light of sociological theory. Drawing on both legal and sociological literature, the thesis seeks to argue the binary approach to childhood rooted the victim/threat duality is incomplete, and that a greater role need to be afforded to the conceptualisation of children as agents. I argue that this binary should be replaced by a more complex understanding of how children were thought about by law and by social policy under the conditions of simple modernity. I argue that children were first regarded as objects of discipline, subjected to rigid systems of control. Latterly, they were regarded as objects of concern, whereby they were recognised as having interests that required protection, but were simultaneously denied any level of agency. The final stage in the transformation of social and legal thinking about children in Ireland was the transition of children from object to subject. With the movement from simple to late modernity came an outbreak of child protection scandals, focused on the lack of intervention by the social services in abusive families, and on abuse in community organisations, most especially by the Roman Catholic Church. These scandals occurred against a backdrop of a radical realignment of social relations whereby traditional sites of institutional power were challenged and traditional social and familial hierarchies problematized. This thesis claims that child protection scandals were an intrinsic part of these social and cultural changes, which created the conditions whereby the socio-political construction of children could be revisited. Children now came to be recognised as rights-bearing subjects of the law, not only morally deserving or worthy, but capable of exercising agency in a meaningful sense. As children increasingly came to be recognised as having interests (and later on as having rights) the concerns of child protection law changed to focus more on the risks faced by children. Under conditions of simple modernity, children were recognised as being vulnerable to dangers, but these were frequently deemed to be “moral dangers” leading to the disciplining of children themselves and their families, and to attempts to eliminate risk through severe punishment. As reflexivity took hold, however, the understanding of these risks changed, with traditionally respected authority figures now regarded as the prime sources of risk. Risk has gradually, therefore, come to play a dominant role in legislation affecting children, and the attempted elimination of risk has yielded to the management and assessment of risk as a primary aim of child protection law and social work. The thesis draws on a wide range of primary and secondary sources including legislation, case law and official reports and media reports of child protection inquiries. It also utilises insights developed through an extensive examination of parliamentary debates on child protection matters. These materials are assessed through the lens of critical discourse analysis in order to explore in an original fashion the relationship between law, social policy and social theory as they effect child protection. In doing so, it makes a contribution to both social policy and legal literature about children. While the thesis utilises Irish sources, its claims about the reconstruction of children and child protection could be applied in other societies that have undergone the transition to reflexive modernity