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: Explanation and Analysis

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.

The Children’s Referendum is only 11 days away. This post is directed as those who may not have given much thought to the issues addressed in this referendum and who are looking for a primer on the changes to be introduced to the Irish Constitution. As  well as some discussion and analysis of the proposed constitutional amendment, this post will provide you with links to authoritative commentary and discussion on the Children’s Referendum here on the Human Rights in Ireland Blog.

What is a Referendum?

See Sonya Donnelly’s post here that discusses the referendum process.

What are we being asked to decide?

The wording of the proposed constitutional amendment is here. You can also find a discussion and analysis on each of the proposed article insertions into the constitution: Article 42A.1, Article 42A.2.1, Article 42A.2.2, Article 42A.3, Article 42A.4.1 and Article 42A.4.2. You can also find some comment on the Irish wording of Article 42A.

Some thoughts on the Children’s Referendum

Over the last number of weeks, Human Rights in Ireland has hosted a number of posts that have discussed the limits and potential of this proposed Article 42A. Here are these analysis pieces:

Yvonne Daly on St Patrick’s Institution and the Children’s Referendum.

Aoife Nolan providing some background context and thoughts on the Children’s Referendum.

Liam Thornton examined the Oireachtas debates leading up to putting  the amendment before the people. You can also read Liam’s opinion piece in the Irish Times on the Children’s Referendum.

Katie Mannion on behalf of Continue reading “The Children's Referendum: Explanation and Analysis”

The Children's Referendum: Explanation and Analysis

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 Continue reading “The Children's Referendum and the Convention on the Rights of the Child”

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

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: Child Protection and Welfare

Dr Nicola Carr, Lecturer, School of Sociology, Social Policy and Social Work and Chair of EPIC [EPIC (formerly IAYPIC) is an independent association that works throughout the Republic of Ireland, with and for children and young people who are currently living in care or who have had an experience of living in care.]

The need for constitutional reform is brought particularly sharply to the fore when considering children and young people for whom there are child protection and welfare concerns and/or who have been placed in care. Some of the most cogent arguments about the need for such reforms have been made in the context of inquiries into failings of the systems for care and protection. The Report of the Kilkenny Incest Investigation (1993) which examined the failure of the state to intervene in the context of long-standing inter-familial abuse identified that the ‘very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children.’ (1993:96).  The circumstances explored in the Kilkenny case pre-dated the introduction of the Child Care Act, 1991 which sets out the current statutory framework for child protection and welfare, that said, the publication of the Kilkenny Report is credited with speeding up the enactment and resourcing of this legislation.

The Child Care Act, 1991 provides the main legislative framework allowing the State to intervene in respect of a child who ‘requires care and protection’. The Act includes orders (Emergency Care Order, Interim Care Order and Care Order) allowing the placement of a child in alternative care. Any such order must be granted by the District Court, and obviously can be subject to legal challenge. Part V of the Child Care Act, 1991 states that in any Continue reading “The Children's Referendum: Child Protection and Welfare”

The Children's Referendum: Child Protection and Welfare

The Children's Referendum: Comment and Analysis

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.

To date, Human Rights in Ireland has considered in detail the Children’s amendment:

Over the next number of weeks, starting today, Human Rights in Ireland will host guest posts regarding the Children’s Amendment.

The Children's Referendum: Comment and Analysis

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: Some Perspectives on the Irish Wording

Seán Ó Conaill is a lecturer in law in the Faculty of Law, University College Cork.

On each occasion in Ireland when it is proposed to have a referendum to amend the Constitution, the Bill which grounds this process is required to give the text of the proposed amendment in English and in Irish. The Irish text is necessitated by the special status the Irish language enjoys as the first official language, the national language and indeed the authoritative text of the Constitution in the case of conflict.

The fact that the Irish texts prevails in the case of conflict between the two texts is well established and it is submitted in many instances justified given the more careful drafting process used for the Irish text in 1937. What was perhaps not envisaged however was the position with regards to amendments the wording of which tend to be agreed and finalised in English and subsequently translated to Irish. This presents the added complication of the Irish translation of the English text being the authoritative version in the case of a Court finding that there is a conflict between the texts. I have argued elsewhere that Ireland would benefit greatly from the introduction of co-drafting which would not only improve the quality of the Irish text, but as experience from Wales and Canada has shown, significantly improves the quality of the English text too. As things stand however the Irish text Continue reading “Legal Analysis of the Children's Referendum: Some Perspectives on the Irish Wording”

Legal Analysis of the Children's Referendum: Some Perspectives on the Irish Wording