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: The Time is now for Children’s Rights in our Constitution

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.

It may not feel like it, but we are living in privileged times.  In two weeks’ from now, on Saturday 10 November, we will be presented with an historic opportunity to amend our Constitution to strengthen the rights of the children of Ireland.  It was over 30 years ago that the first call to do so was made by then Senator and former President Mary Robinson.  This call was repeated by various official reports, such as the Kilkenny Incest Investigation Report in 1993, the Constitution Review Group in 1996 and that of the UN Committee on the Rights of the Child in 2006.  In spite of the 17 statutory reports detailing the abuse suffered by children in Ireland over the past four decades that flagged the Constitution as a problem, this is the first time that such an amendment will be put to the people.  The Children’s Referendum is possible today because of a unique set of circumstances: the achievement of a workable framework for the amendment, an amenable political environment, public awareness and will for change.

The Children’s Rights Alliance has been lobbying hard for constitutional change since its establishment in 1995.  Over the past seven years, the Alliance has made key interventions to the various Ministers as well as the Joint Committee on the Constitutional Amendment on Children to advocate for a comprehensive amendment.  We have previously made the case for reform on this blog and while the final amendment is not as strong as we would have liked, we believe it deserves our full backing.  The judiciary will ultimately Continue reading “The Children's Referendum: The Time is now for Children’s Rights in our Constitution”

The Children's Referendum: The Time is now for Children’s Rights in our Constitution

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

Legal Analysis of the Children's Referendum: Article 42A.1

Dr Conor O’Mahony is a lecturer in law in the Faculty of Law, University College Cork.

The proposed Article 42A.1 provides

The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

Its stated intention, in the words of the Minister for Children, Frances Fitzgerald, is to “provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children.” This opening gambit in the proposed Article on Children, while brief, contains a number of elements that merit close examination.

The first point to note is that the “natural and imprescriptible rights” of children are currently referenced in the Constitution (in Article 42.5, which will be deleted and replaced). In G v An Bord Uchtála [1980] I.R. 32, the Supreme Court made an initial stab at expanding on the content of these rights, but this task was never continued in any subsequent case law.

A limitation of the current framework is that Article 42.5 only mentions children’s rights indirectly as something that the State must have due regard for when intervening to supply the place of parents who have failed in their duties towards their children. The existing framework is premised on the concept of State subsidiarity in family affairs, and places the State under no direct obligation to protect the rights of children as long as parents are adequately performing their functions. The obligation is a default one that arises only in exceptional cases.

The amendment, if passed, will shift the Continue reading “Legal Analysis of the Children's Referendum: Article 42A.1”

Legal Analysis of the Children's Referendum: Article 42A.1

The Children's Referendum: Donnelly on the Referendum Process

Human Rights in Ireland welcomes guest contributor, Sonya Donnelly. Sonya is a practicing barrister who also lectures in Dublin Business School. She has spent the last year in Africa working as a project coordinator with Irish Rule of Law International on an access to justice project focusing on pre-trial detention in Malawian prisons.  She has written extensively on criminal justice issues and co-wrote a legal text for first year barristers, The Devil’s Handbook. In this post Sonya outlines the Referendum process as part of the Children’s Amendment Blog Carnival.

On Saturday, the 10th November 2012 you are being asked to vote in a referendum which concerns changes to the Constitution in respect of the rights of children.  On the page below, I will set out a short description of some of the key terms of relevance to the referendum process in order to give you a greater understanding of how this process will work.

What is the Constitution?

The Constitution is the fundamental legal document that sets out how Ireland should be governed. The Oireachtas cannot introduce laws in Ireland that are inconsistent with what is stated in the Constitution. Therefore it is sometimes necessary to change the Constitution and this is done by holding a referendum.

What is a referendum?

A referendum is a vote by the people of Ireland on a proposed amendment to the Constitution. A referendum gives the people the opportunity to express their opinion and vote for or against the proposed change. If a simple majority vote yes the amendment is approved and the appropriate words in the Constitution are removed and/or inserted. If a simple majority vote no then the Constitution remains unaffected.

What is the process for a referendum in Ireland?

In order to call a constitutional referendum, Continue reading “The Children's Referendum: Donnelly on the Referendum Process”

The Children's Referendum: Donnelly on the Referendum Process

UCC Event: 'Children’s Rights:The Proposed Constitutional Amendment'

The Faculty of Law, UCC, will be hosting an event on ‘Children’s Rights: The Proposed Constitutional Amendment’ on Thursday April 15.

Speakers will include:

The seminar will be chaired by Dr Ursula Kilkelly.

The event will run from 12.00-2.30 pm in Room LG 52, Cavanagh Pharmacy Building, College Road, Cork

A limited number of places are available, so please register your interest in attending by e-mailing conor.omahony@ucc.ie.

Legal Practitioners: 2 Hours of CPD points are available for attendance at this event.

The proposed Constitutional Amendment on the Child has previously been written about on this blog here, here and here . It was the subject of a recent HRinI blog carnival.

UCC Event: 'Children’s Rights:The Proposed Constitutional Amendment'

Constitutional Revolution II: The Dangers of Piecemeal Reform

Last year Fiona asked if constitutional revolution in Ireland was nigh: Fine Gael were proposing several constitutional amendments; an amendment on Children’s Rights was in the works; and the Bill of Rights debate in Northern Ireland had reignited the question of an All-Ireland Charter of Rights. Now, the Children’s Rights amendment has been published (see Our Symposium) and the Bill of Rights debate continues but is mired in the malaise of British politics (see Colin Harvey here and myself here). Today Fine Gael announced the publication of a new document, New Politics, which calls for a ‘Constitution Day’ within one year of their taking office in Government Buildings to allow the public to consider five new constitutional amendments.

These are:

– the abolition of the Seanad;

– a new “list” system for selecting 15 TDs;

– new constitutional recognition given to four Dáil committees;

– reduction of the President’s term of office from seven years to five;

– the introduction of a public petition mechanism for the Dáil.

Continue reading “Constitutional Revolution II: The Dangers of Piecemeal Reform”

Constitutional Revolution II: The Dangers of Piecemeal Reform

Ryan on Family Law and the Children's Rights Amendment

You can learn more about Fergus Ryan on our guest contributors page.

Waiting for family law reform is a bit like waiting for a bus. You linger forlornly for what seems likes an eternity, stoically weathering the elements. Then, just as you are about to give up, along comes a bus — and two more buses directly behind it.

In the past year, the Republic of Ireland has seen three major proposals for family law reform. The Civil Partnership Bill 2009, which is currently before the Dáil, promises a substantial new civil status for registered same-sex couples, with additional protective measures for cohabiting couples, same-sex and opposite-sex. The Law Reform Commission consultation paper, The Legal Aspects of Family Relationships, provisionally recommends some long overdue reforms to the law as it relates to guardianship, custody and access.

There is much to be welcomed also in the proposed constitutional amendment on children. For one, the proposed new Article 42 will apply to all children, and not just those born within marriage. The proposed amendment contains, in particular, a ground-breaking assertion that “[t]he State shall cherish all the children of the State equally.” This will banish, one hopes, the spectre of O’B v S, [1984] IR 316, a Supreme Court decision that affirmed the constitutional validity of measures that discriminate against non-marital children. The Court concluded that the constitutional preference for marriage trumped the child’s right to equality. This constitutional amendment would arguably reverse that stance. Continue reading “Ryan on Family Law and the Children's Rights Amendment”

Ryan on Family Law and the Children's Rights Amendment

Kilkelly on 'Best Interests' and the Proposed Constitutional Amendment

You can learn more about Ursula Kilkelly on our guest contributors page.

The report of the Joint Oireachtas Committee on the amendment to the Irish Constitution includes a proposal to include what is commonly known as the ‘best interests principle’ into the new Article 42 in two forms. The first form appears in Article 42.1.2° which recognizes the rights of all children and specifies that this includes the right ‘to have their welfare regarded as a primary consideration’. Although this provision refers to ‘welfare’ rather than ‘best interests’ and so could be said to be narrower (and arguably more paternalistic) in nature it otherwise mirrors the standard set out in Article 3 of the Convention on the Rights of the Child (CRC). Although the latter has been criticised for not requiring that the child’s interests are paramount, its strength is that it has wide application, potentially applying to all areas of state decision-making that affect children. Including this principle here, therefore, should require the state to ensure that regard is had to the child’s welfare in areas like budgetary decision-making, planning, immigration and criminal justice. Continue reading “Kilkelly on 'Best Interests' and the Proposed Constitutional Amendment”

Kilkelly on 'Best Interests' and the Proposed Constitutional Amendment

van Turnhout on 'The Time is Ripe for Children's Rights Referendum'

You can learn more about Jillian van Turnhout on our guest contributors page.

The vision of the Children’s Rights Alliance is that Ireland will be one of the best places in the world to be a child. On 16 February 2010, the Joint Committee on the Constitutional Amendment on Children moved us that bit closer towards securing this vision, when it published its Final Report. Crucially, the Report includes all-party agreement on a proposed wording for a constitutional amendment to strengthen children’s rights and this, in itself, is a significant step forward.

A major stumbling block to realising our vision has always been the Irish Constitution – the fundamental law of the country. Written in 1937, at a time when children were ‘seen and not heard’ and where, for example, it was the norm for teachers to physically chastise children and for children to be seen as mere possessions of adults, it has become very outdated. A litany of reports, court cases, and inquiries, have, over the years, also highlighted the need for constitutional change for children. Continue reading “van Turnhout on 'The Time is Ripe for Children's Rights Referendum'”

van Turnhout on 'The Time is Ripe for Children's Rights Referendum'