Quinn: Next Steps for Children's Rights in Ireland

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.

Next Steps:

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 Continue reading “Quinn: Next Steps for Children's Rights in Ireland”

Quinn: Next Steps for Children's Rights in Ireland

The Children's Referendum: The Result

With polls closed, and counting now complete, the Irish people have voted to amend the Irish constitution by inserting Article 42A into the constitution. There was an exceptionally low turnout, and a very strong no vote. In the end, the total Yes vote was: 57.4% (615,731 votes) to the No vote: 42.6% (445,863 votes). This was on a turnout of just 33.5%.

The analysis over the coming days will no doubt turn to a number of core issues: lack of interest/participation amongst the public at large despite a well funded, well oiled Yes campaign; the limited nature of the amendment and the emergence of issues that had little to do with what the actual referendum was about. Fundamental issues relating to trust and political apparatuses of the State, conduct of referendum campaign by government, civil society organisations and individuals will also need to be issues up for debate. In terms of ‘what next?’, it is now the duty of the Oireachtas to ensure that the issues of children, child protection and children’s rights remain on the agenda.

The Children's Referendum: The Result

The Children's Referendum November 10 2012

Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin

The last 24 hours, if nothing else, has focused the attention of the children’s referendum campaign, not (perish the thought) on the rights of children, but on how the government spent public monies to promote a a Yes vote. It is important to emphasise that the Supreme Court were not in any way expressing an opinion, good, bad or indifferent, to the proposal before the people tomorrow. Rather (and correctly in my view) sought to ensure that public money should not be spent by the government advocating one side in a referendum that would result in a change to the Irish constitution.A relatively lackluster campaign in all, assisted by a lackluster amendment, but one that nevertheless, in my view should be accepted.  The amendment should be accepted because:

 

  1. It will provide further constitutional recognition of the rights of the child, in harmony with the essential and important role of the family in the life of the child already recognised under the Irish Constitution;
  2. In exceptional cases will allow the State to intervene in a proportionate manner where the safety or welfare of a child is prejudically affected;
  3. Will allow the State to equalise adoption laws and allow any child to be placed for adoption;
  4. In proceedings relating to adoption, custody, access to a child, the best interests of the child will be the paramount consideration AND a child capable of forming a view on matters relating to adoption, custody and access, will have their views heard (not necessarily followed) in these proceedings.

A number of groups emerged throughout the campaign arguing for a No vote, Two Rights Now demanding that the government respect and protect certain rights already in the constitution before adopting another amendment. The Alliance of Parents Against the State argue that this amendment will provide unwarranted powers for the State to intervene in the family. Other arguments that have emerged relate to forced vaccination of children (a particular obsession amongst some elements of the No campaign), and being ‘forced’ to pass this referendum due to an interfering EU and UN (Quick, run kids, Ban Ki Moon and Manuel Barroso are coming to get you!)  There were also some worrying trends that emerged in the debate, in particular on the Vincent Browne and RTE Frontline debates.: A hostile attitude to any sort of state intervention whatsoever in the family. With arguments akin to something that has come to dominate US politics, some of those on the No side basically inferring that ‘child snatch panels’ would be established. The current legal regime for removing children from families will remain in place (see generally, Child Care Act 1991 (as amended)). The 1991 Act quite Continue reading “The Children's Referendum November 10 2012”

The Children's Referendum November 10 2012

The Children's Referendum: View from the Ombudsman for Children

Human Rights in Ireland is delighted to welcome this blog post by the Ombudsman for Children, Emily Logan. Emily Logan is Ireland’s first Ombudsman for Children and is here to make sure that the Government and other people who make decisions about young people really think about what is best for young people. This post forms part of the ongoing blog carnival on the Children’s Referendum.

Seeking constitutional change has been at the heart of my work as Ombudsman for Children since my Office’s first year of operation.  While I did not support the original twenty-eighth amendment, I have publicly supported the 31st amendment. As I outlined in my report to the Oireachtas on the 31st Amendment of the Constitution (Children) Bill, 2012, the central message of each submission I have made to the Government and to the Oireachtas on this issue has been the same: Ireland should enshrine key children’s rights principles in the Constitution in order to underpin a fundamental shift in our law, policy and practice regarding children. In particular, I called for the inclusion of specific principles set out in the UN Convention on the Rights of the Child (UNCRC) in any such amendment to the Constitution.

There has been a thoughtful and interesting debate on the scope of the amendment among other contributors to this blog. A question that has been discussed in some detail is whether the wording of the amendment should have gone further to incorporate more fully the principles of the UN Convention on the Rights of the Child.  A recurring theme of my submissions to the Government and the Oireachtas on previous proposals to amend the Constitution was the need to avoid limiting the scope of children’s rights principles derived from the UNCRC in any such amendment. In my work as Ombudsman for Children I am statutorily obliged to have regard to the best interests of children in addition to respecting their views. As a result, I have consistently highlighted the particular importance of the best interests principle and respect for the views of the child not only as a theoretical aspiration but as principles I believe can make a genuine difference for children.

It is clear that a more maximal approach to incorporation could have Continue reading “The Children's Referendum: View from the Ombudsman for Children”

The Children's Referendum: View from the Ombudsman for Children

Minister Frances Fitzgerald: The Children's Referendum on 10 November 2012

Frances Fitzgerald is the Minister for Children and a T.D. for Dublin Mid-West.

Protecting children. Removing inequalities in adoption. Supporting families. Recognising children in their own right.  These have been my four guiding principles leading up to the Children’s Referendum on 10 November.

The proposed change to the Constitution is the one of the most significant changes that has been made to the Fundamental Rights section of the constitution since its enactment in 1937. If Article 42A is approved by the people in forthcoming referendum, the Constitution will have a new and dedicated article that sets out rights of a one of the most vulnerable groups in society, who are in greatest need of support and protection and to whom we as a society and a State have allowed considerable harm to be done in the past.

The significance of this amendment cannot be overstated. It will right a legal wrong, the continued discrimination by our constitution between children of married and unmarried parents; it will update and clarify the law around the role of the state in the protection of children suffering abuse in their family; and it is an essential step to make right a cultural wrong, the failure to adequately respect and protect children in Ireland. It will be a signal to our judiciary, to our government, to our legislators and policy makers, a signal to every agent of the state working with children that we as a society want to ascribe a new value to children and childhood in Ireland.

The insertion of Article 42A, a new, dedicated constitutional article titled “Children” will separate and make explicit the rights of children in the Irish Constitution. The referendum wording is the result of very intensive work in recent months and the contributions of so many dedicated people over more than a decade. All have informed and shaped a proposal which I believe will make a real difference. At the core of this long debate has been one question – why shouldn’t children have express rights in the Constitution?

For the vast majority of children in Ireland, life is as it should be within a happy, loving and caring home where they are valued and nurtured. The referendum is about all children, but it is particularly for those “exceptional cases” – that is, for those children most vulnerable and at risk.

How does this proposed change to the Constitution help protect children? Above all, it places at the highest legal level our national determination to ensure the safety of children. The focus is on the child and the impact of a parental failure on the child’s safety and welfare. It sets out when and how proportionate intervention by the state should occur if necessary.

How does it improve inequalities in adoption? Currently, some children can never be adopted, no matter how much it is in their best interest. Firstly, the amendment would change the current situation to allow married parents to voluntarily place their child for adoption.  Secondly, the test to allow a child to be adopted in long term foster care to be adopted will be changed so it will not be so difficult to meet. I have published draft legislation on adoption which makes very clear the safeguards that will apply in these situations.

How does the proposal support families? My priority has been to ensure balance between the unique role of the family and the rights of children themselves. It outlines in clear terms the proportionate action the State may take in Continue reading “Minister Frances Fitzgerald: The Children's Referendum on 10 November 2012”

Minister Frances Fitzgerald: The Children's Referendum on 10 November 2012

The Children's Referendum: The Constitutional Amendment will not Create a truly Child Centred Legal System

Dr Maebh Harding is a senior lecturer in the School of Law, University of Portsmouth

In order to have a truly child centred legal system in Ireland two questions need to be answered. How should the best interests of children be ascertained? And, to what extent should the court give effect to constitutional rights that conflict with these best interests? What is in an individual child’s best interest will differ from case to case. The court  should consider all the evidence presented to the court including evidence from social workers, and child psychiatrists. For example, in a particular case the child might have formed a strong attachment to his grandparents who have been caring for him on a day to day basis and are well equipped to continue to do so. Moving the child back to parental custody would cause medium term trauma to the child.

In Irish law, children’s interests are currently protected by constitutional rights to welfare under Article 42 and Article 40.3 (identified in cases such as G v An Bord Uchtála and Nicolaou v An Bord Uchtála) and the requirement under section 3 of the Guardianship of Infants Act, that the court must make the child’s welfare the first and paramount concern in cases involving the child’s upbringing.  In spite of these legislative and constitutional protections for children, the court must also give effect Continue reading “The Children's Referendum: The Constitutional Amendment will not Create a truly Child Centred Legal System”

The Children's Referendum: The Constitutional Amendment will not Create a truly Child Centred Legal System

The Children's Referendum: Little to Write Home About

Gareth Noble is a partner in KOD Lyons Solicitors and heads their Child Law Department, representing children in courts and in care. Gareth has extensive experience in Judicial Review and has represented many adults before the Residential Institutions Redress Board.

The Children’s Referendum is a missed opportunity to deliver real change across a range of vital areas.

Rarely has such an important issue facing the Irish people in a referendum seen such little debate. This may reflect the fact that the government has managed to publish a wording that appears to satisfy traditionalist concerns previously expressed by figures on the right such as David Quinn or Senator Ronan Mullan. On the other hand many of those in the NGO sector appeared to have endorsed the referendum even before the wording had been published, reflecting their well meaning and frustrated attempts to force successive governments into holding a children’s rights poll. Government attempts therefore to quell opposition from any potentially tricky source appears to have been an unqualified success.

There are many elements of the proposal which are of merit. Article 42A.2.1 provides for a balanced approach to the question of state intervention in family life in a way that is proportionate and only in circumstances where the safety and welfare of a child is ‘likely to be prejudicially affected’. This sensible approach protects the child in need and yet makes redundant the false argument that these changes were designed to allow unfettered state intervention in family life.

In practical terms the effect of this amendment on children born to married Continue reading “The Children's Referendum: Little to Write Home About”

The Children's Referendum: Little to Write Home About

The Children's Referendum: Why is Campaign for Children calling for a Yes vote in the Referendum?

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.

Why?

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 Continue reading “The Children's Referendum: Why is Campaign for Children calling for a Yes vote in the Referendum?”

The Children's Referendum: Why is Campaign for Children calling for a Yes vote in the Referendum?

Legal Analysis of the Children's Referendum: Article 42A Conclusion

Aoife Nolan is Professor of International Human Rights Law in University of Nottingham. Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. Aoife and Liam are organising Human Rights in Ireland’s contribution to the debate on Article 42A, the Children’s Amendment.

It is important that clear, accessible and intelligible information on the proposed Children’s referendum wording is available. We hope that for those not fully clear on the purpose or wording of Article 42A, that the series of blog posts today provides you with a better understanding of the constitutional amendment on children. The decision is ultimately up to Irish citizens as to whether they choose to accept this amendment to the Irish Constitution. Our only task now, is to thank each of the contributors for their blog posts, which are hyper-linked below for easy reference.

Conor O’Mahony on Article 42A.1

Eoin Daly on Article 42A.2.1

Liam Thornton on Article 42A.2.2

Fergus Ryan on Article 42A.3

Ursula Kilkelly on Article 42A.4.1

Aisling Parkes on Article 42A.4.2

Sean O’Conaill on Article 42A and the Irish wording

On Friday, 26th October 2012, Human Rights in Ireland will be providing a platform for a variety of contributors to give their views on the Children’s referendum and Article 42A.

Legal Analysis of the Children's Referendum: Article 42A Conclusion

Legal Analysis of the Children's Referendum: Article 42A.4.2

Dr Aisling Parkes is a lecturer in law in the Faculty of Law, University College Cork.

Proposed Article 42A.4.2 provides:

Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1 (all proceedings brought by the State…for the purpose of preventing the safety and welfare of any child from being prejudicially affected; adoption; guardianship or custody of, or access to any child) of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

Ireland has been under a legally binding obligation to incorporate the principle of respect for the views of the child into Irish law since 1992, when it formally ratified the UN Convention on the Rights of the Child 1989 (CRC). Indeed, in 2006, the UN Committee on the Rights of the Child specifically recommended that Ireland “strengthen its efforts to ensure, including through constitutional provisions, that children have the right to express their views in all matters affecting them and to have those views given due weight in all matters affecting them”.

While the proposed amendment will not give constitutional status Continue reading “Legal Analysis of the Children's Referendum: Article 42A.4.2”

Legal Analysis of the Children's Referendum: Article 42A.4.2