CCJHR Seminar - Children's rights: The Proposed Constitutional Amendment
The Centre for Criminal Justice and Human Rights
is pleased to announce the following seminar:
Children’s Rights: The Proposed Constitutional Amendment
Thursday April 15, 12.00-2.30 pm
Room LG 52
Cavanagh Pharmacy Building
The seminar will be chaired by Dr Ursula Kilkelly.
Light refreshments will be provided.
A limited number of places are available, so please register your interest in attending by e-mailing email@example.com.
2 Hours of CPD points are available for attendance at this event.
Labels: children's rights, Children's rights amendment, Emily Logan, Irish Constitution
Constitutional Amendment on Children
On February 16th 2010, the Joint Committee on the Constitutional Amendment on Children
issued its unanimously agreed final report
setting out its recommendations and the accompanying rationale for constitutional change. The report comes against the backdrop of the numerous reports
which have documented that inadequate constitutional provision for children’s rights has had a negative effect on their treatment in law, policy and practice. The absence of a framework to ensure that decisions about children take their interests into account has led to their rights being ignored and underplayed in decisions about them. Ireland has also been subjected to international criticism for failing to recognise that children are independent rights-holders. In order to address these problems, it is vital that the opportunity is grasped to undertake meaningful constitutional reform in this area. To that extent, the proposals do not disappoint and to date they have received the universal support of those working with and for children.
There are two pivotal constitutional provisions
concerning children. The first – Article 41 –recognises the Family as the natural primary and fundamental unit group of society and pledges to guard with special care the institution of Marriage on which the Family is founded. This provision is untouched by these recommendations, and this is in line with the fact that families are crucially important to children. The proposals address themselves to the second relevant constitutional provision - Article 42. The proposals for the new Article 42 are lengthy and somewhat complex but they have a number of very important elements. First, under the new Article 42.1.2 the State recognises the rights of all children and undertakes as far as practicable to protect and vindicate their rights. This makes clear that the state has a duty to vindicate the rights of the child. Second, the provision proposes to incorporate as a constitutional principle the right of children to have their welfare regarded as a primary consideration, a provision which is strengthened by a requirement in Article 42.1.3 that the welfare and best interests of the child must be the first and paramount consideration ‘in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child’. Third, and most important, the proposals express the state’s duty to recognise and vindicate the rights of ‘all children as individuals’. These rights include the right of the child to care and protection, the right of the child to education and the right of the child’s voice to be heard in any proceedings affecting the child having regard to the child’s age and maturity. The replication of the wording of the Convention on the Rights of the Child
throughout is particularly important here and it will enable Ireland to learn from and contribute to the interpretation and understanding of these widely accepted international principles. The final provision of note is the replacement for the much criticised Article 42.5. The proposal here suggests a wording that will require the state to support families rather than pitting parents who have ‘failed in their duties towards their children’ against the state. Any intervention in the family must be proportionate, provided for by law, and ensure equal treatment of all children regardless of their parents’ marital status.
Although the fate of these proposals is far from clear, evidently, they offer much food for thought. What emerges overall however is they reflect a new paradigm for the treatment of children and a redrawing of the responsibilities of the state and parents in this regard. The recognition of the rights of children as individuals, to have their voices heard and to have decisions taken in their interests, are minimum requirements if Ireland is to meet its obligations under the Convention on the Rights of the Child. In the Irish context, however, they reflect that a bold step forward is required to ensure that the treatment of children in the Ireland of the future is an improvement on our woeful past.
Labels: Children's rights amendment, Convention on the Rights of the Child, Dr Ursula Kilkelly
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
The UNCRC and the Politics of Children’s Rights Reform in Ireland
Dr Conor O’Mahony, CCJHR, UCC
For over two decades now, there has been a steady and growing body of expert opinion in Ireland calling for the constitutionalisation of children’s rights in general and the welfare principle under Article 3 of the UNCRC
in particular. In 1993, the author of the Kilkenny Incest Investigation Report, Mrs Justice Catherine McGuinness, stated that the effect of Supreme Court jurisprudence on the interplay between Article 41 of the Irish Constitution and the statutory welfare principle is to “render it constitutionally impermissible to regard the welfare of the child as the first and paramount consideration in any dispute as to its upbringing or custody between parents and third parties such as health boards without first bringing into consideration the constitutional rights of the family.” In 1996, the Report of the Constitution Review Group
specifically recommended the explicit statement of the welfare principle in the text of the Constitution, along the lines of Article 3(1) of the UNCRC. This call was echoed by the Children’s Rights Alliance
in a report
published the following year, and welcomed in 1998
by the UN Committee on the Rights of the Child , who recommended that the Irish Government take all appropriate measures to accelerate the implementation of the recommendations of the Constitution Review Group. Numerous reports and academic publications have continued to campaign for this reform.
This backdrop would suggest that there was broad agreement on the need to constitutionalise Article 3 of the UNCRC. However, the reform proposals that ultimately emerged from the All-Party Oireachtas Committee on the Constitution Tenth Progress Report: The Family in 2006 and the Twenty-eighth Amendment of the Constitution Bill are significantly weaker than the wording of Article 3 (see Kilkelly & O’Mahony, “The Proposed Children’s Rights Amendment: Running to Stand Still?”  2 Irish Journal of Family Law 19). The timeline of developments on this issue shows that political momentum and opinion, having agreed with the views of experts and academic commentators for a significant period of time, has more recently shifted away from a sincere commitment to ensure that children’s rights should be the subject of genuinely stronger constitutional protection. Something along the way has clearly caused the politicians, particularly in the two main political parties, to get cold feet.
The weak wording currently being proposed can be traced in part to some of the public submissions received by the All-Party Oireachtas Committee on the Constitution when preparing their Tenth Progress Report: The Family
. The invitation for submissions put the question to the public: “Does the Constitution need to be changed in view of the UN Convention on the Rights of the Child?” 22 of the submissions reproduced in the appendices were in favour of enhancing the constitutional protection for children’s rights, generally by amending the Constitution to include a provision along the lines of Article 3 of the UNCRC. These submissions came from a variety of sources. Submissions from State agencies included the Irish Human Rights Commission
, the Ombudsman for Children
, the Adoption Board
, the Heath Services Executive
and the Department of Social and Family Affairs
. Several of the political parties, including the Labour Party
, were represented, as were organisations and charities working with children and youths such as the ISPCC
, the National Youth Federation and the Irish Foster Care Association
. The professional body for solicitors, the Law Society
, also made a submission in favour of such an amendment, as did the main Protestant denomination, the Church of Ireland
Set against this is a selection of 27 submissions which stridently opposed the constitutionalisation of children’s rights, or any part of the UNCRC, or any attempt to alter the balance of rights as between the family unit and individual members of the family. When the source of these submissions is examined, it can be seen that there is a striking degree of overlap in terms of the people and groups represented by them. 10 of the submissions which were reproduced on this side of the debate came from organisations expressly identified as religiously based. Three of these were from Catholic organisations: one from the Conference of the Religious of Ireland
, an umbrella organisation representing 138 Catholic congregations in Ireland, as well as separate submissions from two other Catholic organisations. Three of the submissions opposing change that were reproduced in the Report were from Baptist organisations; two were from groups describing themselves as “Christian”, and one was from an Islamic organisation. Of the remaining 17, 12 of the organisations identified as either pro-family, pro-life or both. The motivations of these groups can almost exclusively be identified, expressly or by implication, as being religious in nature, and this impression of overlap gains strength by the use of almost identical and quite distinctive language in a number of the submissions.
On the specific issue of the UNCRC, many of the submissions display a lack of basic understanding of the Convention. The Society for the Protection of the Unborn Child
(Northern Ireland) state in their submission that “[t]he Constitution offers greater protection of children’s rights than the CRC, since the Constitution explicitly recognises the right to life before birth... As the Constitution already provides stronger protection of the rights of children than the CRC, no amendment is necessary. [A253]” While it is true that the Irish Constitution provides stronger protection than the UNCRC for the unborn child, no reasonable interpretation of the Constitution – with its one vague reference to the “natural and imprescriptible right of the child” and its overwhelmingly parent- and family-orientated jurisprudence – could possibly construe it as providing stronger protection for the born child than the comprehensive scheme of rights set out in the UNCRC.
Such a lack of understanding, along with a healthy degree of suspicion and even outright hostility, is displayed in many of the comments made regarding the UNCRC. Descriptions of the Convention range from “bland” and “flawed” at the kind end of the spectrum, to the view that it “lacks moral credibility”, is “contrary to the best interests of the child” and has given rise to “outrageous” and “perverse” interpretations at the less kind end. The Muintir na nÉireann submission (which, in spite of the grandiose name of the organization, was written in the first person) stated: “I don’t think any views of the UN should be entertained with regard to the rights of the child while it actively promotes abortion as a means of birth control in third world countries. [A195]” The Christian Women’s Federation submission states that “[w]hile the Convention contains some good principles, we do not require to be told by international bodies how to bring up children. [A41]” The European Life Network stated that the UNCRC has the potential to cause a range of problems, including to “forbid home schooling of children by parents” and “give children a ‘right to privacy’, which in practice gives children the legal right to tell parents not to interfere in their lives (and even make certain areas of their home off-limits to parents) [A63]”. Since these points are not in any way clearly stated in the Convention, and the Irish Constitution expressly protects the right of parents to educate their children at home, not to mention their property rights, it seems fair to describe this submission as far-fetched in the extreme.
What can be gathered from the submissions reproduced in the appendices to the All Party Oireachtas Committee’s Tenth Progress Report: The Family is that there is a well-organised and vocal lobby who are opposed to any attempt to strengthen the constitutional protection for children’s rights and best interests in Ireland by constitutionalising Article 3 of the UNCRC. The nature of the sources of the submissions and the content of some of them make it possible to question just how large this lobby is, given the degree of overlap between the submissions and the relatively small number of people represented by some of the organisations involved. It is perhaps also possible to question how well informed some elements of it are. Nonetheless, the lobby is not insignificant, and is certainly sincere in its views. The consequence of this is that the two main political parties, who cannot afford to alienate groups who identify themselves as religious, pro-family or pro-life, prefer to avoid the prospect of engaging in a very public and potentially bitter debate with voters that they wish to court.
As against this, the parties are also faced with an overwhelming body of expert opinion regarding the correct course of action, and – as the submissions made in favour of reform demonstrate – this side of the argument also enjoys significant support. Therefore the Oireachtas is trying to be seen to be responding to the calls for reform by putting forward an amendment; but, as the main parties are running scared of a vocal lobby opposing reform, the wording of the amendment currently being put forward is disappointingly weak and in its latest form changes nothing. In this sense, the Oireachtas is caught between two stools and risks satisfying neither party. A principled stance on the part of the Oireachtas is what is required at this crucial juncture: if an amendment is to be put to the people, then surely it should be one that offers a genuine prospect of change. This can only be achieved through putting forward an amendment that would genuinely address the imbalance between the rights of the child and the rights of parents and the family unit, through the constitutionalisation of the welfare principle in terms similar to Article 3 of the UNCRC.
Labels: children's rights, Children's Rights Alliance, Children's rights amendment, Conor O'Mahony, constitutionalism, Convention on the Rights of the Child, Irish Constitution