Gareth Noble is a partner in KOD Lyons Solicitors and heads their Child Law Department, representing children in courts and in care. Gareth has extensive experience in Judicial Review and has represented many adults before the Residential Institutions Redress Board.
The Children’s Referendum is a missed opportunity to deliver real change across a range of vital areas.
Rarely has such an important issue facing the Irish people in a referendum seen such little debate. This may reflect the fact that the government has managed to publish a wording that appears to satisfy traditionalist concerns previously expressed by figures on the right such as David Quinn or Senator Ronan Mullan. On the other hand many of those in the NGO sector appeared to have endorsed the referendum even before the wording had been published, reflecting their well meaning and frustrated attempts to force successive governments into holding a children’s rights poll. Government attempts therefore to quell opposition from any potentially tricky source appears to have been an unqualified success.
There are many elements of the proposal which are of merit. Article 42A.2.1 provides for a balanced approach to the question of state intervention in family life in a way that is proportionate and only in circumstances where the safety and welfare of a child is ‘likely to be prejudicially affected’. This sensible approach protects the child in need and yet makes redundant the false argument that these changes were designed to allow unfettered state intervention in family life.
In practical terms the effect of this amendment on children born to married parents in long term foster placements cannot be underestimated. Such children, often in the care of foster parents since a very young age, were never afforded a second chance with a new family who loved and cherished them in a way that was denied to them by their birth parents. This amendment has the potential to remedy that hugely unjust situation by providing for the equalisation of adoption laws.
Aside from the adoption area however, there is very little in this amendment which will bring real change to the children and parents I meet and represent on a daily basis. There is surely a strange lack of logic and vision between professing to give children certain rights with one hand whilst taking away children’s rights and services with the other. If you are a parent of a special needs child who requires round the clock care and attention this referendum on children’s rights achieves nothing. If you are a child in need of extra educational supports this debate is irrelevant to those needs. If you are a homeless child presenting at a garda station for shelter and having to go through the appalling out of hours service this referendum does nothing for you. If you are a child trying to rely on our disgraceful mental health service for minors, no protection is given in this amendment to the constitution. If you are a child prisoner in St Patrick’s Institution on twenty three hour lock up without a reason, no reliance can be placed on the new provisions. If you are a child in the care of the State, perhaps all your life, and having reached eighteen years told ‘you’re on your own’, where does the Constitution afford you protection in terms of proper aftercare?
Indeed there has been a subtle shift in the course of this debate from talking about the Children’s Rights referendum to the current position where we talk in terms of the Children’s Referendum. This is because whilst this referendum may be about children, it’s not really about many of their rights. The much trumpeted right of the child’s voice to be heard in proceedings is a limited right under the new proposals and is in contravention of the requirements of the UN Convention on the Rights of the Child.
In my view we are either serious about giving a child a direct voice in issues that affect and concern them or we are not. Yes campaigners have yet to give a credible explanation as to why the right to be heard in all judicial and administrative proceedings have been diluted. We are left in a situation where for example Irish born children with non national parents do not have the same right as their peers. Children’s voices in the immigration system will continue to be silenced.
Against the backdrop of an appalling list of injustices against children, so graphically highlighted in a number of recent reports, wasn’t this referendum the golden opportunity to create the strongest possible constitutional response to demonstrate that the State were offering our young people a new guarantee? It’s a referendum which lacks ideas, vision and backbone. We often tell our children not to be bold and yet it is precisely what the government should have been. Bold enough to stand up for children and deliver real constitutional change which in turn would make a real difference to the lives of all our young people.