The kids are all right? The case for constitutional reform.

We are delighted to welcome this guest post from Edel Quinn. Edel 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.

The referendum on a constitutional amendment on children’s rights is just around the corner.  Holding the referendum on Saturday 10 November 2012 is a welcome development and will allow young people in particular the opportunity to travel home to vote and ensure that children do not miss out on a day of school.  With the wording of the proposed amendment and accompanying adoption legislation expected to be published later today, in this post we explore the key issues at the heart of the debate and the potential impact of change.  One of the founding objectives of the Children’s Rights Alliance when it was established 17 years ago was to seek an amendment to the Constitution of Ireland to strengthen the rights of children.  The Alliance has engaged in extensive advocacy on this issue in particular over the last six years since the publication of its second shadow report on Ireland to the UN Committee on the Rights of the Child in 2006.

It’s been over thirty years since the then Senator Mary Robinson first expressed the need for constitutional change for children.  In the intervening period, a series of official reports have made the case for strengthening children’s rights at constitutional level.  These include the Kilkenny Incest Report in 1993, the Constitutional Review Group in 1996   and the Joint Oireachtas Committee on the Constitutional Amendment on Children in 2010, as well as international authorities such as the UN Committee on the Rights of the Child in 1998 and again in 2006  and the European Commissioner for Human Rights in 2007 and more recently in 2011.  As evidenced by the marches in support of victims of child abuse, the public appetite of the people for change is also clear.

 

Why do we need a constitutional amendment to strengthen the rights of children?

  • The Constitution is almost silent on express rights for children that are different from, and additional to, those of adults.  Articles 41 and 42 form a constitutional hierarchy where the married family, bestowed as it is with “inalienable and imprescriptible rights”, resides at the top. Children have few autonomous rights under the Constitution; their rights, in many instances, arise as a result of their membership of a marital family, as defined in constitutional case law.  In addition to the rights that they share with adults under Articles 40 to 44 of the Constitution, children have just two specific rights – the right to education under Article 42.4 and the right to be protected in circumstances of parental failure of their duties towards their children under Article 42.5.  While further rights have been afforded to children through judicial interpretation, this has been limited in recent years with judgments such as the TD case reflecting the reluctance of the Supreme Court to expand the list of unenumerated rights for children.  Without express and individual rights in the Constitution, children and their families are denied an effective remedy in the courts through which they can vindicate these rights and challenge failures to fulfil them.

 

  • The lack of recognition of the individual rights of the child has led to some poor judicial decisions for children.  Unlike cases involving children of unmarried parents, in cases involving children of marital families, due to the constitutional presumption in favour of the family under Article 41, no independent investigation can be undertaken as to the child’s best interests in the court’s decision-making unless the exceptional circumstances outlined below prevail.  A key example here is the Baby Ann case.

 

  • Article 42.5 provides that the State is to intervene to protect a child in “exceptional circumstances” where the parents have failed in their duties for physical or moral reasons.  The Supreme Court has interpreted Articles 41 and 42 to mean that there is a constitutional presumption that the child’s interests are best served within the marital family unless there are compelling reasons to the contrary. This steep threshold for state intervention in the family means that short of a total failure of the parent’s duties, effectively amounting to a risk to the life of the child, it can be very difficult for the State to intervene to support children and families.

 

  • Listening to the views of the child, such as through a Guardian ad Litem, is a principle that is widely accepted as going hand in hand with the principle of the best interests of the child and the protection of children from abuse.  The absence of a mechanism to have the voices of victims heard and believed is a recurring theme in a number of abuse reports including for example, the Ryan Report.

 

  • The Constitution allows discrimination to persist between children based on the marital status of their parents with the strength of the rights afforded to children reliant on whether their parents are married or unmarried.  The Baby Ann case is also a relevant example here.  The rigid judicial interpretation of Articles 41 and 42 have impinged upon the effective operation of our child protection, care and adoption systems.

 

  • Hundreds of children whose parents are unable or unwilling to care for them, are not eligible for adoption by their foster families and are denied a second chance at a stable family life due in part to the provisions of the Constitution.  Based on the constitutional autonomy to the married family under Article 41, the provisions of the Adoption Act 2010 make it virtually impossible for children to be adopted because the criteria are inoperably stringent, meaning that, in practice, very few children of married parents have been adopted.  This is just one example of why legislation alone cannot strengthen the rights of children.

 

As the referendum campaign heats up, it will be important to keep in mind that constitutional change alone is no panacea to the problems facing vulnerable children in Ireland.  As the fundamental law of the State, an amendment to the Constitution to strengthen children’s rights is the foundation stone that will underpin a range of measures being put in place to better support children and their families and to ensure that children are better protected.

The impact of the amendment will depend on factors such as the strength of the wording that is put to the people on 10 November and if that is passed, the follow-up legislation that is enacted to give effect to the principles in the wording, judicial interpretation, the allocation of resources and the education and training of key stakeholders such as lawyers and the judiciary.  At a minimum, the express and individual rights for children at constitutional level will reflect the value we place on our children in our society and ensuring that they are the focus of budgetary, political, administrative, legislative and other decisions affecting them.

Making children visible in the Constitution will help to foster a new legal landscape for children in Ireland.  The findings of the various reports on abuse, including the recent Child Death Report,  demonstrate a litany of shocking failures in relation to children and their families.  We need a new approach that reflects the value we place on children as a society.  The Constitution, as the fundamental law of the State must help rather than hinder children in their journey towards adulthood.

The kids are all right? The case for constitutional reform.

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