Friday, 19 February 2010

Constitutional Amendment on Children

This blog post was contributed by Dr Ursula Kilkelly, Co-Director of the CCJHR.
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.

Read more at http://www.irishtimes.com/newspaper/opinion/2010/0218/1224264713713.html

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Monday, 14 December 2009

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.

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Monday, 7 December 2009

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.

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Tuesday, 1 December 2009

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 [2005] 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 [2002] 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 [2008] 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 [2004] 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 [2009] 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 Acta 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.

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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.

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Friday, 20 November 2009

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?” [2007] 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, Barnardos, 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.

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Thursday, 19 November 2009

Celebrating 20 years of the Convention on the Rights of the Child

The 20th November 2009 marks the 20th anniversary of the Convention on the Rights of the Child. To celebrate this fact we at the CCJHR blog will be posting a number of contributions from people both here at UCC and around the world highlighting issues, noting country situations and generally discussing the position of children's rights today.

To start the celebration I am posting a link to a lovely short film marking the 20th anniversary produced by ChildFund Australia and VIAfilm:

http://www.youtube.com/watch?v=OWG-DpcT7qw

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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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