The Children's Referendum: The Time is now for Children’s Rights in our Constitution

Edel Quinn is a member of the Legal and Policy team at the Children’s Rights Alliance.  The Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland, by campaigning for the full implementation of the UN Convention on the Rights of the Child. It aims to improve the lives of all children under 18, through securing the necessary changes in Ireland’s laws, policies and services.

It may not feel like it, but we are living in privileged times.  In two weeks’ from now, on Saturday 10 November, we will be presented with an historic opportunity to amend our Constitution to strengthen the rights of the children of Ireland.  It was over 30 years ago that the first call to do so was made by then Senator and former President Mary Robinson.  This call was repeated by various official reports, such as the Kilkenny Incest Investigation Report in 1993, the Constitution Review Group in 1996 and that of the UN Committee on the Rights of the Child in 2006.  In spite of the 17 statutory reports detailing the abuse suffered by children in Ireland over the past four decades that flagged the Constitution as a problem, this is the first time that such an amendment will be put to the people.  The Children’s Referendum is possible today because of a unique set of circumstances: the achievement of a workable framework for the amendment, an amenable political environment, public awareness and will for change.

The Children’s Rights Alliance has been lobbying hard for constitutional change since its establishment in 1995.  Over the past seven years, the Alliance has made key interventions to the various Ministers as well as the Joint Committee on the Constitutional Amendment on Children to advocate for a comprehensive amendment.  We have previously made the case for reform on this blog and while the final amendment is not as strong as we would have liked, we believe it deserves our full backing.  The judiciary will ultimately decide on the real impact of the amendment, but among other things, it is likely that the amendment will mean:

  • The State recognises, under Article 42A.1, that all children have rights which it pledges to protect by law.  It enables the courts to identify and elaborate on these rights over time on a case by case basis.  This could potentially strengthen the protection of children in other areas if read with other laws.  Strengthening the rights of the child will bolster the hand of parents to champion the rights of their children and vindicate those rights through the courts.
  • Article 42A.2.1 modernises our framework in relation to child protection and encourages the State to intervene earlier in families that are struggling.  This is to offer them support and better protect the child before a situation escalates to crisis level.  The provision also has the effect of protecting the rights of families because it requires that any intervention by the State in families shall be “proportionate” and regulated by law.  It has the potential to support best practice by ensuring that, in all child care proceedings, a range of family supports and other supportive interventions should be fully explored and exhausted prior to taking a child into care. Proceedings to take a child into care should only be embarked upon as a measure of last resort.

 

  • The text of the amendment broadly reflects the language of the UN Convention on the Rights of the Child under Article 42A.4.1 (best interests principle) and Article 42A.4.2 (voice of the child).  It will be open to the judiciary to build on this by relying on the Convention in its interpretation of the amendment, in particular when identifying ‘natural and imprescriptible rights’ for children (Article 42A.1).

The amendment, taken as a whole, is likely to have a wider implications than its interpretation by the courts or its reflection in legislation.  We hope that, if passed, the amendment will be a clear directive to the judiciary and the Oireachtas from the people of Ireland, which will place an onus on the judicial and political systems to act to ensure that children are a priority in law, in court decisions, in budgets, in policy and in practice.  The Alliance has connected with organisations that have since come out in favour of the amendment, such as the Irish Countrywomen’s Association, ICTU and other unions.  Such organisations, some of which would not regularly take positions on referenda, are now debating and discussing issues of child protection and welfare as part of their order of business – an outcome we believe is likely to impact on broader societal attitudes to children’s rights in the future.

The Children’s Referendum is a significant starting point in addressing the gaps in protections for children.   If it is passed on 10 November, much work will remain to be done.  The Alliance will continue to work towards the following key aims:

  • The timely introduction of specific legislation to give effect to the constitutional provisions, in particular where the amendment places a mandatory obligation on the Oireachtas to legislate.  It should specify how the provisions on adoption (42A.2.2 and 42A.3), best interests (42A.4.1) and hearing the views of children (42A.4.2) will operate in practice.
  • A comprehensive Children’s Bill should be introduced as soon as possible after the Children’s Referendum to address outstanding gaps, not covered by the amendment. These include the child’s right to know his or her identity in a manner consistent with his or her best interests and a reform of the law on guardianship.
  • Provision should be made by the Minister for Justice and Equality to support the Judicial Studies Institute to instigate judicial education on the amendment.

The Alliance has developed an comprehensive analysis of the amendment as well as a short guide that is available on our website in Irish and in English.  These documents help explain why we see this as an essential first step towards creating a stronger basis for children’s rights in Ireland.  The Alliance is now working towards getting a high turnout on referendum day to send a clear message that the people of Ireland care about children’s rights.  We are supporting a Yes vote in the Children’s Referendum on Saturday 10 November because we believe that it is a crucial step towards making Ireland one of the best places in the world to be a child.

 

The Children's Referendum: The Time is now for Children’s Rights in our Constitution

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