Ireland to ratify complaints mechanism under UN Convention on the Rights of the Child.

On 17 September 2014, the new Minister for Children and Youth Affairs, Dr. James Reilly, announced that Ireland would sign and ratify the Third Optional Protocol to the UN Convention on the Rights of the Child (UNCRC). This will allow children and young people an international route by which to vindicate their rights where this has not been possible through state agencies or the courts at domestic level.

The Third Optional Protocol to the UNCRC establishes a communications procedure or, in effect, a complaints mechanism.  This is a quasi-judicial mechanism that allows children and their advocates (parents, guardians etc.) to submit a complaint to the UN Committee on the Rights of the Child, a group of 18 international children’s rights experts. Complaints must relate to specific violations of rights under the UNCRC and its first two optional protocols, if ratified. Violations must be ongoing when the Protocol is ratified or occur after ratification in order to be admissible under the procedure.

Because the original text of the UNCRC did not include a communications procedure, a new Optional Protocol is required in order to facilitate its establishment. Ireland ratified similar communications procedures under Optional Protocols to the International Covenant on Civil and Political Rights in 1989 and the Convention on the Elimination of Discrimination against Women in 2000. In 2011, the State committed to ratifying the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which also establishes a complaints procedure. This has yet to happen.

As with other similar regional or international mechanisms, a complaint under the new mechanism can only be made after domestic remedies have been exhausted. In Ireland, there are, of course, a variety of existing legal and quasi-legal remedies open to children and families when their rights are violated such as taking a case through the courts, the Equality Tribunal or the Ombudsman for Children’s office.

Unlike complaints taken to the European Court of Human Rights, decisions by the Committee are non-binding on States. However, by ratifying the Optional Protocol, States commit themselves to follow the decisions and provide redress to victims. There is also provision for the facilitation of friendly settlements, if parties to the communication find an agreeable solution between them.

The Protocol provides for three separate procedures:

  •  The Individual Communications Procedure allows individuals, groups of children and their representatives to bring complaints in respect of alleged violations of rights under the UNCRC and its Optional Protocols.
  •  The Inquiry Procedure provides for any person or organisation to submit information to the UN Committee on the Rights of the Child alleging grave or systematic children’s rights violations under the UNCRC by a State. If the Committee receives reliable information indicating that grave or systematic children’s rights violations have occurred, it can decide to conduct an inquiry. The inquiry procedure is an “opt-out” mechanism, meaning that States can chose not to be subject to the inquiry procedure when they ratify the Optional Protocol.
  • The Inter-State Communications Procedure allows the Committee to receive and consider communications from a State against another State that is not fulfilling its obligations under the UNCRC. The inter-state communications procedure is an optional mechanism and both States must have ratified the Optional Protocol in order for it to be invoked.

Complaints have been taken against Ireland under similar international complaints mechanisms, under the UN International Covenant on Civil and Political Rights for example. In 1998, in the case of Kavanagh v Ireland, the UN Human Rights Committee found that Ireland had breached the applicant’s rights under Article 26 of the Covenant (equality before the law). The Committee found that the State failed to provide him with a reasonable and objective justification for its denial of his right to a trial by jury by trying him before the Special Criminal Court. He was again before the Committee in 2002 claiming a violation under Article 2(3) of the Covenant for the State’s failure to provide him with an effective remedy but this was deemed inadmissible.

Ireland will be the twelfth State to ratify the Protocol after Albania, Belgium, Bolivia, Costa Rica, Gabon, Germany, Montenegro, Portugal, Slovakia, Spain and Thailand. It entered into force on 14 April 2014 after its tenth ratification.

The UNCRC has two other Optional Protocols – First Optional Protocol on the Involvement of Children in Armed Conflict was signed by Ireland on 7 September 2000 and ratified on 18 November 2002) and the Second Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography  was Signed by Ireland on 7 September 2000 but it has not yet been ratified.

Now that this commitment has been made, signature and ratification of the Optional Protocol should happen simultaneously and without delay, in order to open up this important new avenue of redress for children in Ireland who have been unable to receive an effective remedy at home as quickly as possible.

Ireland to ratify complaints mechanism under UN Convention on the Rights of the Child.

Identifying and Filling Gaps: Supporting Separated Children

Samantha Arnold, Children’s and Young Persons’ Officer at the Irish Refugee Council and is organiser of today’s blog carnival, which forms part of Human Rights in Ireland’s blog contributions to Human Rights Week 2012.

There have been several calls for the introduction of an independent system for guardianship in Ireland at the international, European Union and domestic levels.  These have included: the UN Committee on the Rights of the Child; The UN High Commissioner for Refugees; The Council of Europe Convention on Action against Trafficking in Human Beings; Parliamentary Assembly of the Council of Europe; European Network of Ombudspersons for Children; The European Commission; and the National Children’s Strategy in Ireland.   In addition, the Irish Refugee Council, working together with other children’s rights organisations, has long campaigned for independent guardianship for separated children.

Currently under Section 4 & 5 of the Child Care Act 1991, under which separated children are taken into care by the HSE, there is no provision for legal guardianship.  Under Section 4 of the Act, the parent or former legal guardian of the separated child retains guardianship (rights) of the child in the country of origin.  Section 5 of the Act, is used in cases of homelessness; again there is no provision for a legal guardian.  The Child Care Act was, however, amended in 2011.   Under Section 17 of that Act a legal guardian is defined as a representative appointed through the District Courts.  When the HSE utilise Sections 4 & 5 of the Child Care Act 1991 and do not provide a legal guardian for separated children through the district court (as is currently the case for most separated children), the HSE may be in breach of their obligations under the Act as amended. Moreover, social workers acting as legal guardian may run afoul of the law as they have never been given authority to be the legal guardian through the district courts.

Practically speaking, most separated children that the Irish Refugee Council supports have no legal guardian looking after their best interests in relation to their general care and immigration needs. It may thus be asserted that in line with current practise, not only is the care of separated children not equitable, but the lack of legal guardianship and appropriate care assessments means separated children are not receiving the most basic care and support that is required by law.

In February 2011, the Irish Refugee Council launched the Irish National Report Continue reading “Identifying and Filling Gaps: Supporting Separated Children”

Identifying and Filling Gaps: Supporting Separated Children

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

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

The kids are all right? The case for constitutional reform.

We are delighted to welcome this guest post from Edel Quinn. Edel 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.

The referendum on a constitutional amendment on children’s rights is just around the corner.  Holding the referendum on Saturday 10 November 2012 is a welcome development and will allow young people in particular the opportunity to travel home to vote and ensure that children do not miss out on a day of school.  With the wording of the proposed amendment and accompanying adoption legislation expected to be published later today, in this post we explore the key issues at the heart of the debate and the potential impact of change.  One of the founding objectives of the Children’s Rights Alliance when it was established 17 years ago was to seek an amendment to the Constitution of Ireland to strengthen the rights of children.  The Alliance has engaged in extensive advocacy on this issue in particular over the last six years since the publication of its second shadow report on Ireland to the UN Committee on the Rights of the Child in 2006.

Continue reading “The kids are all right? The case for constitutional reform.”

The kids are all right? The case for constitutional reform.

Drislane on Child Detention, International Law and Ireland

Human Rights in Ireland is delighted to welcome this guest post from Siobhan Drislane, Law Reform Commission. This post is published in Siobhan’s personal capacity and may not necessarily reflect the views of the Law Reform Commission.

One of the core concerns of the law relating to juvenile justice, and indeed child law as a whole, is that of detention. Firstly, it is a well established principle that detention of a child should only be used as a measure of last resort. This principle has been expressly identified by:

  • Rule 13.1 (in the context of detention pending trial) and Rule 19 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) 1985
  • Article 8 of the United Nations Convention of the Rights of the Child 1990
  • Rules 1 and 2 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990.

Furthermore, all of the above provisions specify that detention of a child should last for the minimum period appropriate.

In the Irish context the Children Act 2001, per section 96(2), states that “a period of detention should be imposed only as a measure of last resort”. This statement expressly mirrors the position set out in international instruments. Additionally, section 143(1) of the 2001 Act states that a court “shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child”. Continue reading “Drislane on Child Detention, International Law and Ireland”

Drislane on Child Detention, International Law and Ireland