The Children's Referendum and the Convention on the Rights of the Child

Dr Ciara Smyth is a lecturer in law in NUI Galway.

This post considers the proposed constitutional amendment from the point of view of the Convention on the Rights of the Child (CRC) which Ireland ratified in 1992, asking the question that all children seem to ask on long journeys: are we there yet?

The CRC contains some 41 substantive articles which are distilled into four ‘general principles’.  The first is the principle of non-discrimination.  The second is the principle that in all actions concerning children, the best interests of the child must be a primary consideration.  The third is the right to life, survival and development which goes beyond the right to life in general human rights law to include a right to develop, to flourish or to thrive.  The final general principle is the right of the child to be heard and have his/her views considered in decisions affecting him/her.

The Committee on the Rights of the Child – the UN body that monitors the CRC – considers that constitutional recognition of the general principles of the convention can be helpful in implementing the rights in the CRC at the national level.

So the question arises as to whether the proposed constitutional amendment does indeed reflect the general principles of the CRC.

The first paragraph of proposed Article 42A is a broad statement of principle affirming the inalienable and imprescriptible rights of all children and committing the state to defend and vindicate those rights.  The wide personal scope of this paragraph which, by all accounts was hard won, is a strong endorsement of the general principle of non-discrimination.

Paragraph 2 of proposed Article 42A sets the threshold for state intervention in child- protection cases.  Paragraph 3 is an enabling provision allowing for legislation regarding adoption in cases of sustained parental failure as well as voluntary adoption.

These two provisions remove the distinction that currently exists in Irish constitutional law between children of marital and non-marital families – a distinction that makes it very difficult to intervene to protect children of marital families and virtually impossible to secure the adoption of children of marital families.  As such, these provisions give further effect to the principle of non-discrimination.  They also constitute an affirmation of the right to life, survival and development.

However, there is no conception in paragraphs 2 and 3 that the state might be the locus of harm.  Although an explicit provision on this would be desirable, it can be argued that the obligation on the state to vindicate the rights of the child in paragraph 1 implies that children must be protected against harm while in the care of the state.

Paragraph 4 is noteworthy because is lays down the principle of the best interests of the child and the right of the child to be heard.  Indeed paragraph 4 establishes a more robust version of the best interests principle than is contained in the CRC – requiring the best interests of the child to be the paramount consideration, as opposed to simply a primary consideration.

However, whereas the CRC envisages the two principles as applying to all decisions concerning children, paragraph 4 restricts the material scope of the two principles to proceedings brought by the state in child protection and adoption, guardianship, custody or access cases.  Consequently, the principles do not apply to other proceedings brought by the state (e.g. criminal proceedings such as we might yet see emerging from the recent report on St. Patrick’s institution) or, indeed, to proceedings brought against the state (e.g. judicial review proceedings in asylum cases).

This is lamentable although, again, possibly compensated for by the broad scope of paragraph 1.

Therefore, the proposed amendment can be regarded as a somewhat hesitant reflection of the four general principles of the CRC.  Nevertheless, it signals an important paradigm shift away from viewing children hardly at all, to viewing them as active subjects of rights, which is what the CRC is all about.  If the amendment passes, the logical next step would be to fully incorporate the CRC into Irish law.

So in answer to the question, are we there yet?  No, but the journey has begun.

The Children's Referendum and the Convention on the Rights of the Child

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