Wednesday, 17 June 2009

Report of the Commission to Inquire into Child Abuse

The following blog was first published as an editorial in the May edition of First Law's Criminal Law Online Service. Members of the CCJHR are amongst the editors of this monthly newletter which features current issues, case updates and article in the area of criminal law.

The immediate furore following the publication of the Ryan Report centred on the nature and extent of the appalling abuse combined with the lack of proportionate financial contribution by the offending religious orders. At least it seems that this is now being addressed with the members of CORI reluctantly moving from their original stance of refusing to reopen the agreement it entered into with Government in 2002. As a result the religious congregations have now agreed to an independent audit of their assets followed by the payment of a “substantial contribution to a trust”.

There are multiple aspects of this Report which detail processes and procedures that are fundamentally inconsistent with any civilised society. The children, who became the victims in this disgraceful episode of Irish history, were treated by the State as people without rights. How could the provisions of the Constitution be completely ignored by those in authority? What is the point in having such grandiose provisions like Article 40 “[a]ll citizens shall, as human persons, be held equal before the law”? Surely, children fall within the ambit of this provision? What is most distressing is that these vulnerable children were not afforded the rights and protections that accused persons and prisoners were and are in terms of due process etc. even though they were prisoners in all but name. Many would argue having read the Report that the children in the offending institutions were not treated as “human persons” either by the religious orders or by the State. The injustices suffered by the children, both physical and mental, are beyond what normal people can comprehend, yet the State was a willing participant in failing to protect its own citizens through neglect and wanton disregard of the Constitution.

After World War II the world had a glimpse of how humans could behave when left in a position of absolute power, yet the Irish State permitted religious institutions continue to have unabated power over children, some as young as four, in their charge. Similarities have been drawn with the concentration camps under Nazi Germany in the wake of this Report. While the scale of what happened in Europe is beyond comparison, the common factors are: absolute power over their charges; total lack of respect for human value and intentional acts of violence with sole purpose of inflicting pain on their victims.

The findings of the Report give renewed emphasis to calls for a children’s rights amendment to the Constitution that requires that the child’s best interests inform decision-making in all areas concerning children and that recognition be given to the right of the child to be heard in all matters affecting the child. Unfortunately the Constitutional Amendment Bill published in 2007 does not adequately address these issues. Much criticised by children’s groups and experts, the proposed amendment largely replicates the current constitutional position which prioritises the rights of parents over children. It may formally acknowledge the rights of children but it does little to actually vindicate them.

Fundamental change needs to be made in relation to policy as well as the Constitution. The Ryan Report calls for both “debate and reflection” in the aftermath of its publications, and clearly reflection on how all aspects of policy in relation to children is essential to ensure that no child in Ireland can ever be treated in a similar way in the future. Some very practical action must be taken by the Government to legislate on the National Guidelines on Child Protection, to strengthen the system of child protection, and to significantly improve the systems protecting vulnerable children such as those in St Patricks Institution.

Ireland is a signatory to the Convention on the Rights of the Child yet the Commission to Inquire into Child Abuse, in its Recommendation No.5, states that childcare policy in the country “should be child-centred” and that “the needs of the child should be paramount”. Such approaches are fundamental under the Convention. However the sad fact is that Ireland has thus far failed to incorporate such a significant convention into domestic law and the country continues to lack a child rights-based approach in its policies and practice.

With regard to the financial issue, although it is only correct that CORI contribute more to the compensation fund it is also essential that the State fully own up to and apologise for their part in the effective incarceration without rights of so many vulnerable children. The State’s recent actions in fighting Louise O’Keeffe to the Supreme Court on costs in her case over a claim of sexual abuse by a lay teacher in her school places question marks over their willingness to accept responsibility in such cases.

The final unresolved issue is the question of the identity of the abusers, whether the clergy are willing to disclose them, and whether they should face prosecution as many will be of advanced age. The wrong message could be sent to current and future abusers by failing to prosecute on grounds of age. Although we published an article in a previous issue of this newsletter discussing some of the difficulties that historic claims of child sexual abuse can raise, it is clear that sweeping these abuses under the carpet is not an appropriate way forward. The promise of anonymity offered to those who testified to the Ryan Commission was necessary in bringing the scale of the abuses to light. An independent investigation by the gardaí to bring those abusers to justice is now essential.

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