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.
Saturday, 12 November 2012 was an historic day for children in this country. The people of Ireland voted in favour of the 31st amendment to the Constitution to strengthen the rights of children in the Irish Constitution. While the Children’s Referendum was passed by a modest majority of 58% to 42%, the Children’s Rights Alliance remains optimistic about the potential of the amendment for progressing children’s rights in the State.
Of course, the amendment alone is not going to address all of the gaps in the protection of children’s rights in Ireland today: much work remains to be done. Our attention now shifts towards actively lobbying for key actions to bring the amendment to life, and ensure that it truly makes a difference to the lives of children in Ireland.
1. Timely introduction of specific legislation to give effect to the constitutional provisions. The new article employs a novel, though not unprecedented, approach to a number of the rights provided therein. Some provisions are not constitutional directives but enabling provisions, placing a mandatory obligation on the State to legislate on aspects of adoption (Articles 42A.2.2 and 42A.3), best interests of the child (Article 42A.4.1) and hearing the views of the child (Article 42A.4.2). The wording adopts the imperative “shall” in terms of provision being made in law for these rights. The Alliance will be lobbying for the timely enactment of such legislation and for the strongest legislative provision to be made in these areas.
2. The amendment sets down a legal minimum standard. The Judiciary, when interpreting the amendment and the Oireachtas, when legislating, should build upon this standard. For example, when drafting legislation as directed by Article 42A.4, we call on the Oireachtas to legislate for a broader set of circumstances, including that:
- the best interests of the child will be the paramount consideration in child care and child protection proceedings brought by a child or third party against the State and in associated administrative proceedings
- the best interests of the child will be a primary consideration in any judicial and administrative decisions concerning the child, not covered by the amendment
- the views of the child should be considered in any judicial and administrative proceedings that have a direct impact on the child.
3. Aside from the general statement of the rights of children, the amendment largely focuses on child protection, adoption and family law. There are a range of rights, not covered in the amendment, where gaps in legislative protection exist. These include the child’s right to know his or her identity and reform of the law on guardianship. The Alliance will be campaigning for the introduction of a comprehensive Children’s Bill to address these outstanding gaps.
4. Another key area is the need for support by the Minister for Justice and Equality to the Judicial Studies Institute to instigate judicial studies on the meaning and impact of the amendment. The Alliance will be advocating that the Judiciary and Oireachtas rely on the principles and provisions of the UN Convention on the Rights of the Child in its interpretation of the amendment, in particular when identifying ‘natural and imprescriptible rights’ for children under Article 42.A.1.
5. The impact of the amendment will be determined not only by the Judiciary and the Oireachtas but also by the budgetary decisions of the Executive. For example, to fully uphold Article 42A.2.1 (child protection), adequate resources will be needed to ensure that the new Child and Family Support Agency can fulfil its duty to protect children and support struggling families.
6. Lastly, while Article 42A.2.1 expressly applies to children, regardless of the marital status of their parents, it does not address the broader right to equality and non-discrimination for both adults and children under the Constitution. Reform of the existing constitutional provision under Article 40.1 should be considered and addressed by the Constitutional Convention which is currently meeting to review aspects of the Constitution.
We understand that the amendment is scheduled to be signed into law by the President of Ireland thirty days after the official notice was given, on 13 December 2012. Judgment in the Supreme Court case in which the Court found that parts of the Government’s referendum information materials and advertisements breached the McKenna principles is expected on 11 December 2012. Its full impact on this debate remains to be seen.
The amendment was the first step towards strengthening the protection of children’s rights but it will prove to be a toothless one without these follow-up measures required to see it through to fruition. We look forward to continuing the journey to making children’s rights a reality in Ireland.