Katie Mannion is Legal Researcher at Campaign for Children, a public information campaign on children’s rights in Ireland. Campaign for Children is committed to an Ireland where children are recognised and respected as full individuals within society. During 2012, Campaign for Children organised seminars on children’s rights including a legal conference on Best Interests and the Voice of the Child. Currently Campaign for Children is leading the national campaign for a Yes vote in the children’s rights referendum together with Barnardos, ISPCC and the Children’s Rights Alliance.
Together with Barnardos, Children’s Rights Alliance and ISPCC , Campaign for Children is leading Yes for Children, a national campaign calling for a Yes vote in the children’s rights referendum. We believe this referendum is an historic opportunity to ensure that this and future generations of children in Ireland are better protected, respected and heard.
A clear statement in the Constitution of the rights of children as individuals will signify and solidify Ireland’s commitment to protecting and vindicating children’s rights. As far back as 1993, our Chair, Judge Catherine McGuinness called for constitutional amendment to include a statement of the constitutional rights of children. The Constitution is not only our basic law but also sets out the principles behind law and a framework for our society. Through voting ‘Yes’ on 10th November, we can be assured that the future drafters of legislation and future courts will be bound to consider the impact of their decisions on children.
As well as being a legal document, the Constitution is also a political document which sets out our values as a society. Whereas respect for the protection and participation rights of children and young people was not a common feature of discourse in the world of 1937, those rights are widely recognised and legally protected in 2012. Read today, the absence of a clear statement of children’s rights is a glaring omission. On 10th November, the Irish people have an opportunity to correct that omission and to declare that Ireland values children and is committed to respecting children’s rights.
Crucially, a ‘Yes’ vote will remove the constitutional block to considering a child’s best interests as paramount in key court decisions affecting the child’s life.
Listening to Children
A common feature of the 17 statutory reports on child abuse was that children were not listened to, or believed. At the moment, there are inconsistent court practices and inadequate systems in place for listening to children. We are accustomed to hearing children in criminal law and in child abduction cases. In public law matters, there is no mechanism for guaranteeing that the child’s views are taken into account; the appointment of a guardian ad litem is not mandatory. Barnardos estimate that only 35%-40% of children in care proceedings have a Guardian ad Litem appointed to them. In family law, the position of the child is most often unrepresented.
The constitutional amendment will recognise at the highest level that children’s views about their lives are valid, and that systems must be in place to hear those views.
Listening to children is the first step towards meeting their needs. Hearing what the child has to say is important in assisting a judge to have an overall view of the reality of the child’s life and to reach an informed decision about the child’s future. It also ensures that children are invested in the process, and in making the decisions that arise out of it work. It is the child, more than anyone else, who will have to live with what the court decides. It is the child, too, who best understands the reality of his or her day-to-day life. As remarked by a nine year old, “I remember when the court case was going on, I asked my mummy, ‘Why don’t they talk to me?’ because I was the one that they were fighting over.”
A constitutional imperative to introduce legislation to ascertain children’s views in court proceedings that dictate a child’s future is a statement of respect for children and a reason to vote Yes.
Campaign for Children is calling for a ‘Yes’ vote so that those children living in long-term State care who will never return to their birth families, have an opportunity of a stable, permanent home through adoption, if it is in the best child’s best interests. It is harrowing to hear of the children who feel they do not belong to the families with whom they have lived since they were a few weeks old, because they have not been adopted and have a different surname to their siblings. It makes no sense that parents cannot place their child voluntarily for adoption without a finding of failure against them, because they are married. As Wayne Dignam has explained, a Yes vote will mean anomalies in our adoption laws can be addressed, and for the small number of children this provision will impact, it could mean everything.
Campaign for Children is calling for a ‘Yes’ vote in recognition of the new, child-centred context for child protection which the amendment would introduce. Minister Fitzgerald has outlined that the amendment is intended to allow for family support and early intervention; proportionate intervention when a family is in need rather than in crisis. There have been too many reports of intervention coming too late for the child despite veins of knowledge that neglect or abuse was happening, often due to over-deference to the family. We are all familiar with the lost childhoods of Kelly Fitzgerald and Tracy Fay, the abuse in the Roscommon case, and the deaths of children described in the Shannon and Gibbons report. In many instances, if the child’s best interests had been the paramount consideration and if children had an opportunity to speak to an independent person with the confidence that their views would be taken seriously and communicated to the Judge, the outcome could have been very different.
We welcome the shift in focus from parental ‘failure’ to the impact of the failure on the child. If the amendment is passed, there will be a clear mandate to intervene to protect the child where the child’s safety or welfare is at risk, regardless of a child’s parents’ marital status.
- For greater child protection
- To prioritise children
- To make decisions in the child’s best interests
- To listen to children
 Children’s Research Centre, Trinity College Dublin (Diane Hogan, Ann Marie Halpenny and Sheila Greene), Children’s Experiences of Parental Separation, 2002.