Reforming criminal defences - the LRC recommendations on Defensive Force
The Report on Defences in Criminal Law
launched by the Law Reform Commission
(LRC) in December 2009 has received quite a bit of attention due to recommendations made in relation to the use of defensive force to protect the home. In particular, the LRC’s recommendation that there be no upper limit on the amount of force that can be legally used to defend the home has been criticised for being the equivalent of a “have a go charter”
by the Irish Council on Civil Liberties
However, while the ICCL is correct to be concerned about the scope of the LRC’s recommendations, it is perhaps not fair to dismiss the proposals in their entirety. Many of the recommendations regarding the use of lethal force in a home invasion context are sensible and a careful read of the relevant sections in chapter 2 of the Report shows that the LRC situated them within their recommendations for the defence of legitimate defence as a whole. Therefore while lethal force may be legally permitted to defend the home under section 3 of their proposed Criminal Law (Defences) Bill 2009 – proposals that the Minister for Justice has promised to table before the Oireachtas in 2010 in his speech
at the launch of the Report – the use of that force must meet to varying degrees the threshold, imminence, necessity and proportionality requirements that the LRC also recommended as integral to the definition of legitimate defence as a whole.
In order to understand the ambit of the LRC’s recommendations regarding lethal defensive force in the home, it is first necessary to examine the LRC’s recommendations regarding lethal defensive force generally. The primary reason that the LRC recommended that these four requirements be part of the general defence of legitimate defence was that under the law on defensive force as currently enshrined in Ireland either in legislative form (for non-fatal offences) or in common law (for cases in which lethal force is used), a vague standard of reasonableness is set. Under this reasonableness test, the degree of the threat faced/threshold, imminence, necessity and proportionality are merely factors which are taken into consideration in order to determine if the accused’s response was reasonable. This, the LRC, felt offended against the legality principle – the idea that citizens need clear guidance as to what they are legally permitted to do and, more importantly, not to do in given situations (paras 2.24-2.26). As such they recommended that lethal force should only be permitted where the threat faced reached a certain threshold (the accused must have faced death, serious injury, rape, aggravated sexual assault or false imprisonment by force), where the threat was imminent (a concept looser than that of immediacy which accordingly allows for the use of pre-emptive force), where the circumstances necessitated the use of force (i.e. safe retreat was not possible and that, if the situation was self-induced, that the response of the original victim was disproportionate) and that the use of force was not grossly disproportionate in light of the threat faced. These requirements are not alternatives. The LRC recommends that all four should be present before someone could lay claim to the defence of legitimate defence in a case involving lethal force.
Under this new definition of the defence the concept of reasonableness is not entirely abolished. In section 2(7) of the proposed Bill 2009, the LRC suggests that regard should be had by the trier of fact to the reasonableness of the accused’s beliefs in his/her determination that the threat was imminent, that the use of force was necessary and that the amount of force s/he used was proportionate. As such, the accused’s honest and reasonable perception of the extent of the threat s/he faced where s/he used lethal force is irrelevant – an entirely objective test applies to the threshold requirement. The implementation of an objective test for this criterion was justified by the LRC with reference to the legality principle (paras 2.44-2.46). Its exclusion from one of four requirements however is arguably inconsistent – the same factors that a jury will consider to determine whether the minimum threshold requirement was met will also arise in their consideration of whether the use of force was proportionate – and may make the application of the four requirements more difficult for jurors to apply.
The threshold, imminence, necessity and proportionality requirements are also relevant to the use of lethal defensive force within the home, although with some modifications. For example is it argued by the LRC that there should not be a safe retreat obligation imposed in a home invasion context given the special status of the home constitutionally (Articles 40.3 and 40.5), physically and emotionally. This recommendation to give legislative status to the Castle Doctrine is in effect the implementation of the Court of Criminal Appeal’s decision in People (DPP) v. Barnes. However there is no explanation offered for the jump from the LRC’s threshold recommendation in para. 2.84 that lethal defensive force may be used to protect “a person’s own safety, the safety of another or the safety of the person’s property” in the context of home invasion to the text proposed in section 3 of the 2009 Bill:
(2) Notwithstanding section 2(2), a person is justified in using lethal force in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person, but only in order to repel the threat of
(a) death or serious injury,
(b) rape or aggravated sexual assault,
(c) false imprisonment by force,
(d) entry to or occupation of the dwelling (including forcible entry or occupation) that is not authorised by or in accordance with law, or
(e) damage to or destruction of the dwelling.
The offending sub-section is 3(2)(d). Not only is this text broader than the LRC’s recommendation in para. 2.84 but it is also possibly unconstitutional in its range. The extension of the right to use lethal force in a case where the burglar simply enters the property is at odds with the LRC’s statement in para. 2.83 that “[b]y putting these safeguards in place … the constitutional rights to life of both the householder and the burglar or intruder are given protection to an appropriate level, as identified … in the Barnes case … .” However Hamilton J in Barnes was very clear that killing a burglar simply because he was a burglar would be contrary to Article 40.3.1 (the burglar’s right to life). He held: “… a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burglar.” Section 3(2)(d) clearly offends against this constitutional consideration. It is thought that it was this aspect of the Bill 2009 that the ICCL was referring to when it noted that the Bill would be “unlikely to pass constitutional muster.”
Labels: Criminal Law, Criminal Law (Defences) Bill 2009, defences, defensive force, ICCL, Law Reform Commission, People (DPP) v Barnes
20th Anniversary of the UN Convention on the Rights of the Child
This blog was contributed by Aekje Teeuwen, Legal Consultant based in Phnom Penh, Cambodia
A juvenile defendant, aged 17 was arrested, charged with robbery and placed in pre-trial detention for two months and 26 days. The court of first instance sentenced the defendant for five years in prison. The defendant appealed this decision and waited in custody for two years and ten months for his appeal trial. Although, the lawyer was present during appeal trial, the defendant was tried in absentia. The appeal court reduced the sentence to three years and six months.
As of today, a total number of 851 minors, between 14 and 18 years of age, of whom 826 are male and 25 female, are detained in Cambodian prisons. In many cases these children are denied their basic legal rights, resulting in excessive periods held in pre-trial detention, as well as prolonged detention during the appeal process. Further, a lack of legal representation and being tried in absentia compounds the denial of their basic rights.
In Cambodia there are no children’s courts nor Judges and Prosecutors specialized in the area of juvenile justice and the application of the rights of the child. As a result, children are often subjected to the same judicial procedures and processes as adults. The extreme vulnerability of these children is further exacerbated as a result of them not being housed in separate sections of the prison to the adults, as well as inadequate food, healthcare and access to educational & rehabilitation programs.
During 2007, a Cambodian non-governmental organization called The Center for Social Development
(CSD) monitored 22 appeal trials in which 26 juveniles were involved. 61.5 % of the juvenile defendants were held in custody pending appeal trial. Of these 61.5 %,
12.5 % of juvenile defendants waited in custody less than one year (8 months). 56.25 % of the defendants waited for more than one year and 31.25 % of the juvenile defendants had to wait more than two years. In the beginning of 2008, a case was monitored in which a juvenile defendant waited for four years and three months before an appeal trial date was set.
It is outlined in the Cambodian Criminal Procedure Code
Article 387 that the Court of Appeal must decide the appeal trial date within a reasonable period of time. Despite this excessive periods of time pass before appeals are heard. These excessive 'waiting-periods' for appeal trial are a great cause for concern, in particular in cases where the defendant is in custody and/or which involve children and considers waiting for years for an appeal trial 'beyond a reasonable time'. Also it does not comply with article 37 of the UN Convention on the Rights of the Child
, which stipulates that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. This issue has been specifically highlighted in this article because up to this date there is very little attention given to this particular matter in Cambodia.
In addition, it was noted that amongst the 26 juvenile defendants 23 % did not have access to defense counsel during their appeal trial. As well, 65 % were tried in their absence. It is clearly outlined in national and international laws that every citizen has the right to be tried in his presence and enjoys the right to judicial counsel. The UNCRC recognizes the importance of a child’s access to legal representation in Article 37 (d): “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance”.
We are celebrating the 20th anniversary of the UN Convention on the Rights of the Child. This is a great opportunity to promote and highlight the rights concerning children in conflict with the law throughout the whole criminal process, from the commencement of the judicial proceedings until final judgment is rendered. Therefore, it is urged to the Government of Cambodia
, in accordance with the UNCRC to which Cambodia has made a solemn commitment in 1992 to uphold, to act in the best interests of Cambodian children, and to specifically require Judges and Court officials to fast-track juvenile appeals and to give them the highest priority and to ensure the shortest possible period of time prior to adjudication.
Finally, this is an issue not only for Cambodia, but for all judicial systems throughout the world to comply with their national and international laws and conventions regarding the rights of the child, and to always take into account and respect the particularly special position children hold in our societies.
Labels: Cambodia, Convention on the Rights of the Child, juvenile justice
JILIR - Call for submissions
The Journal of International Law and International Relations
has issued a call for submissions
from scholars of International Law and International Relations. The deadline for submissions is January 23, 2010.
The journal is a joint venture of the University of Toronto Faculty of Law
and the Munk Centre for International Studies
, the JILIR is a peer-reviewed scholarly journal that publishes articles on the wide variety of topics located in the intellectual space jointly occupied by International Law and International Relations.
Submissions should be sent via e-mail to email@example.com
as attachments in Microsoft Word or Rich Text format, preferably with footnoted citations. The author's full contact information (name, institutional affiliation, mailing address, telephone number(s), and e-mail address) should be included in the body of the e-mail.
Labels: call for papers, International law, International relations, JILIR, University of Toronto
Murphy Report: Can a failure to protect be prosecuted?
The following is a discussion of whether it is possible to prosecute those who failed to intervene in cases of child abuse in the Catholic Archdiocese of Dublin. The material was first published in the November Edition of Firstlaw's Criminal Law Online Service.
The Report of the Murphy Commission
of Investigation into the Catholic Archdiocese of Dublin has understandably given rise to a huge level of public concern. The Report covers the period between 1975 and 2004 and essentially deals with two separate issues:
- An examination of the handling of sexual abuse complaints in the Archdiocese itself;
- Detailing the individual claims of abuse as against 46 individual Priests.
The nature of the individual incidents of abuse outlined in the Report is deeply shocking. Many of the incidents have themselves given rise to criminal prosecutions and convictions in respect of particular complainants. However, the publication of the Report quickly gave rise to calls, particularly from victims groups, for a criminal investigation in respect of those parts of the Report which appeared to outline an unwillingness on the part of the Church authorities and/or State institutions to investigate complaints and prosecute them. This part of the Report gives rise to some very interesting questions in relation to the applicability of the Criminal Law in terms of the relationship between the Church and individual priests against whom complaints were made, and also the relationship between the Church and outside organisations and in particular An Garda Síochána.
The hunger for prosecutions in respect of what has been described as a "cover up" is entirely understandable and in that regard the flames have been fanned to an extent by the immediate reaction of the Minister for Justice who was reported as saying
"No Government can guarantee that in the future there won't be evil people who will do evil things, but the era where evil people could do so under the cover of the cloth, facilitated and shielded from the consequences by their authorities, while the lives of children were ruined by such cruelty is over for good. The bottom line is this: - a collar will protect no criminal."
In so far as these remarks refer to individual perpetrators of abuse the remarks are uncontroversial; undoubtedly prosecutions for abusive activity have been brought and, having regard to the way in which ‘delay jurisprudence’ has developed in this jurisdiction, prosecutions may still be brought in the future notwithstanding the antiquity of any given allegation.
However, the remarks of the Minister, and those of victims’ group One in Four fed into a wider public desire to see senior church figures punished for failures in the management of complaints and the management of priests against whom complaints had been made. What many members of the public now seem to want to know is whether representatives of the Church itself, who abused no one, but who may have known of abuse can be prosecuted for their failures identified in the Report. It must be said that while putting the avoidance of scandal above the welfare of children was a shocking policy choice it is difficult to see in practical terms how criminal prosecutions would be sustainable in relation to that.
There has been much comment on the kinds of laws that may or may not have been breached and which could give rise to prosecution. Reckless endangerment of children has been mentioned in this context. However, this offence was created by the Criminal Justice Act 2006 and involves a situation where a person having authority or control over a child or abuser intentionally or recklessly endangers a child by causing or permitting that child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse or fails to take reasonable steps to protect the child from such a risk while knowing that the child is in such a situation is guilty of an offence. While this would have undoubted applicability in circumstances where individuals known to have abused children were moved to other posts where access to children was unhindered, it is not an offence which has any retrospective application and in the context of the time period which the Murphy Commission was dealing is probably of little or no relevance.
There are nonetheless numerous options available to the DPP should he wish to pursue criminal prosecutions including the possibility of conspiracy, the common law offence of perverting the course of justice and the common law offence of misconduct in public office. It would however require some ingenuity to pursue a case for the first two offences. It is difficult to see how conspiracy in a strict legal sense (an agreement to do an unlawful act or a lawful act by an unlawful means) could be proven in relation to decisions to move priests from particular locations or in relation to the failure to pass on information in relation to allegations to relevant authorities. The Law in this area has always sought to distinguish between a coincidence of actions and agreement and does not seek to punish those combining coincidentally towards achieving shared goals.
The common law offence of perverting the course of public justice requires an act or course of conduct which has a tendency to, and is intended to, pervert the course of public justice. It does appear in general terms that a positive act is required and that inaction would be insufficient to constitute the offence. This offence could perhaps be made out where there was evidence to establish that the commission of an offence had been concealed and again is possibly made out where there is evidence to establish a conspiracy to obstruct An Garda Síochána. Putting the Police on a false trail might be a classic example of that.
It seems that a failure to prosecute itself could not constitute the offence of perverting the course of public justice unless one was able to establish that the failure to prosecute was itself as a result of a corrupt inducement or of a reward or some other benefit. This would seem to be a necessary follow on from the fact that the decision to prosecute is itself a discretionary one vested in either the Director of Public Prosecutions and/or An Garda Siochana depending on the nature of the offence alleged.
The option with the strongest chance of success is the common law offence of misconduct in a public office which was expanded in the English case of R. v. Dytham  QB 722 to bring a prosecution against a police officer for failing to fulfil his obligations as an officer of justice to intervene in a savage beating that resulted in the death of one of the parties. The Lord Chief Justice in the Court of Appeal in Dytham made clear that the neglect of duty must be wilful and not merely inadvertent, and further that it must be culpable being without reasonable excuse or justification. The level of culpability had to be 'of such degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.'
Dytham was approved obiter by Mr. Justice Carney in the case of DPP v. Bartley (13 June 1997, unreported), High Court. The accused in this case was convicted of incest. However Justice Carney took the opportunity provided by the case to note that if a member of the Gardaí receives a credible complaint of a felony they are obliged to investigate it. The complainant in this case had approached the Gardaí when she was 12 ½ years old to complain about her stepbrother’s inappropriate behaviour. Her complaint was not taken seriously and she endured a further 25 years of sexual abuse.
The offence of misconduct in public office could potentially be utilised beyond the Gardaí to pursue members of the Gardai who failed to act on information they received and potentially could be further expanded to prosecute Church officials who, by virtue of their position as heads of school boards, etc. held public office.
Despite the clear applicability of this offence, the prosecution of the substantive offences themselves has caused great difficulty for both complainants and accused having regard to the time frame of the activities complained of. It would seem unlikely that prosecutions in relation to institutional failures from that same time period would have a realistic prospect of success.
Labels: child abuse, misconduct in public office, Murphy Report, reckless endangerment
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.
Labels: Convention on the Rights of the Child, Council of Europe, Dr Ursula Kilkelly, ECHR, family law, International law, Lisbon Treaty
Using the CRC to protect the child’s rights in youth crime in England and Wales
This blog post was contributed by Dr Kathryn Hollingsworth, Senior Lecturer in Public Law at King's College London
The UN Convention on the Rights of the Child is not domestically enforceable in England and Wales, but its profile – and the profile of children’s rights generally - has been raised in recent years thanks to the campaigning efforts of NGOs such as the Children’s Rights Alliance for England
, the Howard League for Penal Reform
, and UNICEF
. On 19th November 2009 a private member’s bill
, The Children’s Rights Bill 2009
, had its first reading in the House of Lords. The Bill, if passed, will have the effect of incorporating the UN Convention on the Rights of the Child
into UK domestic law, using procedures which mirror those set out in the Human Rights Act 1998
by which the European Convention on Human Rights
was ‘brought home’ to the UK.
The chances of the Children’s Rights Bill making its way onto the statute book are slim. But that does not mean that the CRC has no place in English law. In the last five years, the judiciary in England and Wales have increasingly drawn on the CRC in order to interpret the rights of children in domestic law. Lady (previously Baroness) Hale
and Lord Justice Munby have been particularly instrumental in this regard. This has had an important and positive impact on the protection of children’s rights, especially in the youth crime context.
The leading decision is R (on the application of R) v Durham Constabulary  UKHL 51
, where Baroness Hale made it clear that the CRC must be used to interpret the meaning of the child’s enforceable rights under the ECHR. The case concerned the system of diversion in England and Wales and specifically the question of whether the absence of a requirement for a child to consent to a reprimand or warning constituted a breach of the child’s Article 6
ECHR right. Baroness Hale drew on Article 40(3)(b) and 40(4) CRC
, as well as the Beijing Rules
and the Riyadh Guidelines
, and expressed her ‘grave doubts’ as to whether the system of diversion in England and Wales complied with the CRC (because of its rigidity and because it propels the child more quickly through the criminal justice system). Crucially, however, Baroness Hale pointed out that the lack of a requirement to gain the child’s consent before being issued with a final warning did not breach the child’s enforceable rights under the ECHR.
Despite the unfavourable outcome for the child in this case, Baroness Hale’s dicta is permeating through into other cases. One area of youth crime where the child’s CRC rights are of particular importance is where the child is detained in a custodial institution. Here the CRC can be used to emphasise the child’s status as child – the need to care for the child as a child rather than as a ‘prisoner’. Article 3 CRC
can be especially useful here. For example, Mr Justice Munby (as he was then) drew on the CRC in his landmark judgment in R (on the application of Howard League) v Secretary of State for the Home Department  EWHC 2497
. In particular, the child-specific obligations such as Article 3 CRC imposed ‘on the Prison Service positive obligations to take reasonable and appropriate measures’ designed to ensure that children in YOIs are treated with humanity and with respect for their dignity, and that they are not subjected to torture or inhuman or degrading treatment. In particular, when balancing the interests of the child against the wider interests of the community and other inmates, Mr Justice Munby argued that regard should be had to the inherent vulnerability of children in a YOI, and also to the principle that the best interests of the child should be a primary consideration. This approach was followed very recently by the Court of Appeal in R (C) v Secretary of State for Justice
 UKCA Civ 882, a judicial review case brought to challenge the regulations which allowed restraint to be used in Secure Training Centres for the purposes of good behaviour and discipline. In this case, the application was successful and the regulations were quashed for breaching Articles 3 and 8 ECHR, both of which were interpreted by taking account of the CRC.
These are just a handful of cases where the CRC has been used successfully to protect the child’s rights in the prison context. But, the Convention has certainly not proved to be a panacea. Even where it is used by the judiciary as an interpretative tool, it can only extend as far as the child’s rights in domestic law or under the ECHR allow. For example, in R (on the application of DT) v Secretary of State for the Home Department
 EWHC 13 a girl was being moved from a Local Authority Secure Children’s Home into an adult female prison because of shortage of space. The judge held that an apparent breach of Article 37(c)
CRC was irrelevant here (not least because the UK had derogated from that provision but nonetheless it is not directly enforceable) but that the girls’ article 8 ECHR rights were engaged, and the content of these rights could be interpreted in light of the CRC – though only Article 3 because of the derogation from Article 37(c). Although the judge agreed that her Article 8(1) rights were engaged when she was transferred to an adult prison, the restriction was deemed justifiable under Article 8(2) ECHR. More recently in R (on the application of London Secure Services) v Youth Justice Board
 EWHC 2347, a JR challenge was brought against the Youth Justice Board for its decision not to re-commission 28 beds in local authority secure homes (the preferred type of institution from a children’s rights perspective for children detained in the secure estate). The challenge was not successful despite Mr Justice Forbes claiming to take into account the child’s rights under the CRC in determining the content of the relevant ECHR rights.
There appears to be only so much the judiciary can do to protect the child’s CRC rights in youth crime. But, although limited, the willingness of the judiciary to draw on the CRC to interpret the meaning of a child’s rights is particularly crucial given the Conservative Party’s pledge to repeal the Human Rights Act
a if they are elected in 2010. If this happens, the rights under the ECHR will no longer be domestically enforceable and the judgements of the European Court of Human Rights will presumably decline in relevance to rights protection in England and Wales. This could have serious implications for children in trouble with the law for three reasons: firstly because the Tory’s motivation for replacing the HRA in part comes from the fears that the Human Rights Act is a ‘criminal’s charter’ – it may be the rights of ‘criminals’ which are thus most restricted in any new bill. Secondly, the ECHR has been an invaluable tool in protecting the rights of children detained in custodial institutions. And thirdly, the justification Lady Hale gave for interpreting the child’s ECHR rights in light of the CRC in the Durham Constabulary case was that this is the approach taken by the European Court of Human Rights.
It is crucial that the CRC is seen as an over-arching and consistent presence that is founded in the UK’s ratification of the Treaty and not in the decisions of the European Court of Human Rights. If so, the English judiciary can continue to interpret a child’s rights in light of the CRC, regardless of the source of those rights – whether it be the ECHR or a domestic bill of rights. Clearly, the reach of such an approach will depend on the particular bill of rights in force but at the least it should help to ensure that the progress made in the interpretation and enforcement of the child’s rights in area of youth crime in the last 5 years is not lost, even if the Human Rights Act is.
Labels: Aricle 8 ECHR, Article 3 ECHR, children's rights, Convention on the Rights of the Child, ECHR, UK juvenile justice
Ireland and the CRC at 20
This blog post was contributed by Dr Ursula Kilkelly, Co-Director of the CCJHR.
On 20 November 1989 the General Assembly of the United Nations unanimously adopted the Convention on the Rights of the Child. The Convention thus reached its 20th anniversary last month with reviews as to its impact taking place around the world. In Ireland, a party to the Convention since 1992, the Convention’s birthday has also been celebrated. Much progress has been achieved in the implementation of Convention provisions since ratification and many of the reforms can be traced back to the recommendations of the UN Committee on the Rights of the Child, which has reviewed Ireland’s progress in this regard on two occasions – in 1998 and 2006. After a slow start, Ireland adopted the National Children’s Strategy in 2000, established the Office of Ombudsman for Children in 2002 and put in place a longitudinal study on children to better understand children’s lives. Structural reform has seen the appointment of a super-junior Minister for Children and Youth Affairs, with a seat at the cabinet table, and the establishment of a government department dedicated to children’s issues – the Office of the Minister for Children and Youth Affairs. Additional strides in the advancement of children’s issues include the adoption of the National Play Strategy and in youth justice, the adoption of the Children Act 2001, the National Youth Justice Strategy and the establishment of the Irish Youth Justice Service. Many of the advances in the reduction of child poverty, the improvement of special needs education and the modernisation of the youth justice system were possible due to the allocation of increased resources to these areas. The severe economic conditions will undoubtedly see many of these investments rolled back. This is when the legal commitments in the Convention to take all measures to secure all rights to children become especially important.
On the negative side of the balance sheet, there are still many outstanding areas where the Convention has clearly had no or little impact. There is no 24 hour social work service for children at risk and no strategy to combat violence against children; children struggle to access any mental health services; they are rarely heard when the courts decide matters that affect them in family law and criminal proceedings, and there are many especially vulnerable groups of children – separated children, Traveller children and children who are homeless – who struggle to enjoy even the most basic of human rights. These barriers include a lack of investment, a failure to provide dedicated supports and services for children and a general invisibility of children in the making of law and policy. As research for the Ombudsman for Children showed in 2007, there are still many significant barriers in the way of children realising their Convention rights in Irish law, policy and practice.
More generally, the question still remains as to whether the Government and indeed Irish society have really engaged with the idea that individual children are autonomous rights-holders. Given that two decades have passed since the Convention was adopted, can we say with confidence that we take children’s rights seriously? In this regard, the Committee on the Rights of the Child recently reiterated its criticism that Irish law and policy does not reflect the rights-based approach set out in the Convention; nor are children heard in decisions that affect them. Critical to the development of a children’s rights culture is the integration into law and policy of the Convention’s guiding principles – the best interests principle, non-discrimination and the child’s right to be heard. Yet, notwithstanding the recommendations of numerous bodies, and the commitment of former Taoiseach Bertie Ahern over two years ago to put the child at the heart of the Irish Constitution, proposals for meaningful constitutional reform are still outstanding. This, above all else, is a very worrying sign that regardless of our international commitments and daily reminders of the appalling treatment that children received in our name, the Government is not willing to take the ultimate step to ensure that children’s rights will no longer be ignored or underplayed.
Labels: children's rights, Children's rights amendment, Committee on the Rights of the Child, Convention on the Rights of the Child, Ombudsman for Children