Children’s Rights and Marriage Equality

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Human Rights in Ireland welcomes this guest post on the marriage equality referendum and children’s rights from Prof. Ursula Kilkelly. Ursula is Dean of UCC School of Law and an international expert in rights of the child.

Debate on the proposed constitutional amendment introducing marriage equality into Irish law has been dominated by its potential impact on children. Claims have been made that children have a right to a mother and a father which will be violated by granting same sex couples the right to marry. It has been argued that the extension of marriage to same sex couples will redefine the family under the Constitution with consequences for children’s interests and rights, especially in the creation of families through surrogacy, donor assisted human reproduction (DAHR) and adoption. This post responds to these assertions while arguing that in fact the adoption of marriage equality will strengthen children’s rights in Ireland.

Marriage grants no right to have children, regardless of gender or sexual orientation, and confers no entitlement to create a family through adoption, surrogacy or DAHR. Indeed, family law matters concerning children are determined by what is in the best interests of the child and this will not change with marriage equality. Adoption law requires that the welfare of the child is the paramount consideration and Irish law was recently strengthened so that the child’s best interests are paramount in guardianship, custody and access matters. In addition, the Children and Family Relationships Act 2015 requires the courts to have regard to a range of factors or circumstances relevant to the child and his/her family when making decisions in this area, in a measure that will mean an even greater focus on the child’s interests in such decision-making. Although the 2015 Act includes some measures designed to protect information as to the child’s identity when born through DAHR, comprehensive legislation governing surrogacy and assisted reproduction is long overdue. This is clearly necessary to protect the rights of all children born in this way, whether their parents are married or unmarried, heterosexual or same sex couples. Despite its importance, the need for a comprehensive regulatory and legislative regime for surrogacy and D/AHR exists independently of any constitutional proposal for marriage equality.

International human rights law recognises the importance of parents to children and their development. However, no right to a mother and a father has been recognised either by International or by Irish law. Rather, what international law protects is a child’s right to respect for family life and family relationships. This is particularly evident from the case-law of the European Court of Human Rights given effect in Irish law in the European Convention on Human Rights Act 2003. This makes clear that family life – the existence of close personal ties which can be based on biological and/or social relationships – is worthy of legal protection under Article 8 of the European Convention on Human Rights.

The Convention on the Rights of the Child (CRC)– adopted by Ireland and 192 other states – reflects the importance of the family to children noting in its Preamble that a child ‘should grow up in a family environment, in an atmosphere of happiness, love and understanding’. The CRC refers interchangeably to ‘parents’ and ‘legal guardians’ and makes no reference to ‘marriage’ or ‘married parents’; it does not mention ‘fathers’ at all and refers to ‘mothers’ only in the context of pre and postnatal care. Importantly, the terms ‘family’ and ‘family environment’ are repeatedly mentioned throughout the Convention and, in provisions like Article 5, the CRC adopts an inclusive approach to the family, incorporating a range of family forms including the extended family community. The CRC acknowledges that some children cannot be cared for by their birth or biological parents for a multitude of legitimate reasons (which have nothing to do with the children themselves) and it is implicit in the Convention that no one particular family type can fulfil children’s needs.

The CRC recognises the right of the child as far as possible to know and be cared for by his/her parents, while also providing for the right of the child to maintain contact with them. However, the CRC cannot be used to assert that every child has an absolute right to be raised by his/her birth, biological or genetic parents. Again, the emphasis here is on providing protection for the child’s family relationships, rather than entitling the child to be reared only by his/her biological mother and father. The child’s right to identity (of which genetic identity is just one part) although important, is distinct and separate from the question of who provides the child with family care. What is important to children’s well-being – and frequently to children themselves – is not simply who their biological or birth parents are, but the quality of the care, support and security that they receive in their families in the here and now. Research increasingly shows that the quality of children’s relationships with their carers is what affects children’s lives and life chances.

We know that for various reasons marriage often (although clearly not always) provides the stability that children need to develop and grow with confidence. Its legal protections set it apart from other forms of relationship recognition and registration, including civil partnership which in Ireland ignores children altogether. Civil marriage is an important commitment, undertaken by those who desire formal, public endorsement of their relationship and it confers important legal protections to the parties. While it has been deemed legitimate in certain circumstances to treat a married couple different from an unmarried couple, it is not permissible to discriminate against children on the basis of their parents’ marital status. Although the unjust concept of ‘illegitimacy’ has been abolished, children in non-marital families – including but not limited to children whose parents are a same sex couple – continue to experience inferior treatment under the law. Although the Children and Family Relationships Act 2015 makes it easier for guardians to be appointed to children in such situations, it remains the case that their relationship with their parents does not attract the same legal protection as children born to married parents. It follows therefore that rather than undermine children’s interests and rights, the adoption of marriage equality would represent further progress to equalise the position of all children. In particular, it would offer children the benefit of the legal protections that marriage affords regardless of whether it preceded or succeeded their arrival into the relationship. For children, none of these things matter.

Despite the changing nature of the Irish family, we continue to idolise marriage as if it were the only family form in existence and the only way to provide children with the love and security that they need. The irony is that notwithstanding the pledge of the Irish Constitution, Ireland has never fulfilled its promise to protect the family and our dismal record in the protection of the rights of children is known worldwide. If Ireland were a truly child-friendly state we would ensure by law that all children are entitled without discrimination to respect for their family relationships. We would put in place a legal regime that respects and protects children equally regardless of their different circumstances and the diversity of their families and that protects children’s rights regardless of how they were conceived and to whom. And we would permit those who wish to do so to marry and separately, set the bar high for everyone – regardless of gender or sexual orientation – with the legal responsibility to support, protect and nurture children.

Children’s Rights and Marriage Equality

Update: Ireland ratifies UN complaints mechanism for children

Ireland has ratified the Third Optional Protocol to the UN Convention on the Rights of the Child, which establishes a quasi-judicial complaints mechanism for children and their advocates to the UN Committee’s on the Rights of the Child.

Minister for Foreign Affairs and Trade, Mr. Charlie Flanagan, signed and ratified the Protocol at the 69th General Assembly of the United Nations in New York yesterday, 24 September 2014.

This follows a commitment last week by the Minister for Children and Youth Affairs, Dr. James Reilly, to ratify the Protocol.

Update: Ireland ratifies UN complaints mechanism for children

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.

Taking stock of Ireland’s international human rights reporting obligations

Ireland is often lauded for its human rights and development work abroad and has included human rights and accountability as a priority area for action in its new international development policy. When it comes to human rights at home, how is Ireland’s record tracked against its international human rights commitments and to what extent does the State engage with the monitoring system it has signed up to?

Where Ireland’s international human rights obligations come from
Over the past 70 years, the international community, through the UN, has agreed on nine core United Nations international human rights treaties and nine Optional Protocols, which are open to ratification and domestic implementation by all States. These treaties cover:

On ratifying these treaties, States commit to partaking in a review process, whereby their compliance with and implementation of the treaties is monitored on a periodic basis by UN committees, called treaty bodies.  Though nominated by his or her own State, a committee member sits on a treaty body as an independent expert. Two such committees have benefited from the expertise of Irish members: current Chief Human Rights Commissioner for Northern Ireland, Michael O’Flaherty who sat on the UN Human Rights Committee and the Head of Applied Social Studies at NUI Maynooth, Anastasia Crickley, who was recently re-elected to the UN Committee against Racial Discrimination.

The treaty bodies engage with States on their compliance with the treaties in both written format and through dialogue and make recommendations to each State (called Concluding Observations) as to how to further the full implementation of the relevant convention at national level. Each State submits a common core document which outlines the basic legal, economic, social and human rights infrastructure of the State as well as demographic and other basic information. Ireland’s common core document is currently in draft and is expected to be submitted to the OHCHR by the end of the summer.

Placing an international spotlight on national issues can be an important means of highlighting a violation of human rights. A good example of this is 2011 review of Ireland by the UN Committee against Torture which recommended that the Irish State conduct an investigation into the abuses at the Magdalene laundries. This international condemnation, together with a hard-fought campaign, helped to put the issue on the political agenda back home. NGOs have an important place within the system and have the opportunity to submit alternative reports and make representations to the treaty bodies. This allows the treaty bodies to receive an additional perspective to that of the State on the situation in a given country as well as highlighting issues that have not been addressed in a State Report. NGOs play a key role in educating the public about their human rights as well as disseminating the recommendations of the treaty bodies in their countries.

In many ways, having an international consensus on what is essentially the lowest common denominator of human rights, consolidated into international law, is nothing short of a remarkable feat. Many of the treaties entered into force decades ago and while the system is not without its problems, and represents many compromises, one cannot help but wonder whether similar attempts to find consensus on such agreements would be successful today.

The treaty body system today – reform on the way?
After three years of consultations, the UN High Commissioner for Human Rights, Navi Pillay, has proposed amendments in an effort to strengthen the treaty body system. The process of reform is politically charged – some see it as a means of necessarily improving a system built for earlier times while many see it as a useful opportunity to put manners on the treaty bodies themselves. Among the key issues faced by the system is that with 10 separate treaty bodies (including the Sub-Committee on Prevention of Torture, each has different procedures and reporting structures, leaving many States feeling overburdened by their duties to report. States that have ratified a large number of treaties, such as Ireland, feel the heavy burden of having to report to the various treaty bodies well as other fora such as the UN Human Rights Council’s Universal Periodic Review Process and regional bodies such as the Council of Europe’s Committee for the Prevention of Torture. These have a major impact on the timeliness and quality of reports.

From the perspective of the committees, because of the large number of States involved, and the proliferation of treaties and optional protocols, they faced challenges in their capacity to deal with reviewing States in a timely manner, particularly as they generally meet just a handful of times each year. For example, all but three of the 193 UN Member States have ratified the UN Committee on the Rights of the Child, who not only monitor the implementation of the UN Convention on the Rights of the Child but also two Optional Protocols to the Convention relating to the sale of children and children in armed conflict. A third Optional Protocol, providing for a complaints mechanism under the Convention opened for signature February 2012 and will enter into force, also coming under that Committee’s remit, once it has been ratified by ten countries. In order to get through the high number of reports it receives, the Committee has taken the approach of dividing itself to sit in dual chamber.

There is the prospect of a resolution between States on a number of basic reform proposals put forward by the High Commissioner. These include the use of new technologies such as webcasting of public meetings and translation costs. Other suggestions have been less well-received such as the High Commissioner’s proposal to adopt a calendar to coordinate the reporting obligations of the States across the treaty bodies to ensure they are evenly spread out and adding a degree of predictability to the process. The issue of the costs of reform has also not garnered agreement. Other proposals from the High Commissioner include increased consistency in the jurisprudence of the treaty bodies in individual communications; more simplified and aligned reporting with a focused set of questions by the treaty bodies on particular areas of concern rather than the traditional practice of reviewing each article under the convention in question, and capacity building for state parties in their reporting duties. The extent to which these and other proposals for reform become a reality depends on the deals struck at the negotiating table.

Until then, the show must go on
In the meantime, the reporting process continues. Having ratified six of the treaties, Ireland has undertaken to report to the various treaty bodies on a periodic basis. The State has not ratified the convention relating to people who have disappeared (signed but not ratified), migrant workers (neither signed nor ratified) or the disabled. With regard to the latter, while the State has signed but not yet ratified the treaty, a commitment has been made to do so. The Department of Justice and Equality is leading the way on drafting the necessary legislation to give effect to its provisions.

UN International Covenant on Civil and Political Rights (ICCPR)
The ICCPR was ratified in December 1989 and Ireland has thrice been reviewed by the UN Human Rights Committee in 1993, 2000 and 2008. The State has been involved in a follow-up process with the Committee since 2009 on the issues of the availability of non-denominational education at primary level, conditions in prisons and counter-terrorism measures. While the Committee was satisfied with responses received in relation to the first two issues, it found the State’s response in relation to counter-terrorism measures to be incomplete and requested further information on this issue to be included in the State’s fourth Report, submitted in July 2012. Ireland will be reviewed under the ICCPR in July 2014.

Ireland has ratified the two optional protocols to the ICCPR relating to a complaints mechanism to the Committee and the abolition of the death penalty. One case has been taken against the State through this complaints mechanism, Kavanagh v Ireland in 1998 and again in 2002.

UN International Covenant on Economic, Social and Cultural Rights (ICESCR)
Ratified jointly with the ICCPR in 1989, Ireland has submitted two reports to the Committee on Economic, Social and Cultural Rights, in 1997 and 2002. The State’s Third Periodic Report, due in 2007, was only recently submitted and somewhat arbitrarily covers the period up to the end of 2010. NGOs have been encouraging the State to submit an update in advance of the review to cover the intervening period. The Third Report is unlikely to be reviewed before 2015 due to the Committee’s backlog. Ireland has signed but not yet ratified the Optional Protocol on a communications procedure for complaints to the Committee.

UN Convention on the Rights of the Child (UNCRC)
Ratified by Ireland in September 1992, the State has twice been reviewed by the UN Committee on the Rights of the Child in 1998 and 2006. Now four years overdue, the State is due to submit its Consolidated Third and Fourth Reports this summer. The date of the review itself will be set once the Report is received by the Committee’s Secretariat and is expected to be in 2015-2016. The Committee also oversees the implementation of the three optional protocols to the Convention. Ireland has ratified the Optional Protocol on children in armed conflict and has been reviewed under this agreement once in February 2008. The State has signed the Optional Protocol relating to the sale of children. It is currently reviewing its position relating to the latest Optional Protocol on a communications procedure to the Committee which opened for signature in February 2012 and will enter into force once it has been ratified by ten countries – six countries have ratified or acceded to date. Work is being done behind the scenes to make the necessary legislative and other arrangements to ratify both.

UN Convention on the Elimination of All Forms of Racial Discrimination (UNCERD)
The UNCERD was ratified in 2000 and Ireland has been reviewed twice by the Committee on the Elimination of Racial Discrimination in 2005 and 2011. The State’s next report to the Committee is due in January 2014. The State partook in the follow-up procedure with the Committee by May 2012 on four issues arising under the Concluding Observations:

  • Reduction of financial resources for human rights institutions
  • Recognition of Travellers as an ethnic group
  • Improving certain pieces of legislation such as that relating to immigration
  • Incorporation of the treaty into domestic law under our dualist system.

The NGO Alliance against Racism has produced a monitoring tool of indicators to help track the implementation of the Committee’s recommendations annually in the period leading up to the next review.

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)
The UNCAT was ratified by Ireland in April 2002 and the State submitted its first report in 2005, four years overdue. Ireland was reviewed for the first time by the Committee against Torture in March 2011 and is scheduled to submit its Second Periodic Report in June 2015. The Committee requested follow-up information from the State within a year on:

  • Reduction of financial resources for human rights institutions
  • Follow-up to the Ryan Report on child abuse including implementation of the recommendations, investigations of all reported cases of abuse and redress.
  • Investigation into the Magdelene Laundries
  • Expedition of legislation banning Female Genital Mutilation.

Ireland has signed but not yet ratified the Optional Protocol to UNCAT which establishes the Sub-Committee against Torture. Unique among the treaty bodies, the Sub-Committee has a preventative role and conducts regular visits to States to engage with authorities on torture prevention.

UN Convention on the Elimination of Discrimination Against Women (UNCEDAW)
Ratified by Ireland in 1985, the State has been reviewed under UNCEDAW three times, having submitted reports in 1987, 1997 and 2005. The State’s next periodic Report was due back in 2007. Ireland ratified the Optional Protocol on a communications procedure for complaints to CEDAW in 2000.

While the State engages to varying degrees with the numerous treaty bodies, fundamental challenges remain for these interactions to have a meaningful impact for people on the ground struggling to exercise their rights:

  • The failure of the State to fully incorporate the provisions of human rights treaties into national law means that their provisions are not binding at national level or justiciable in Irish courts. This means that a child who is denied his or her right to access education in Ireland for example, cannot rely on the right to education under Article 28 of the UN Convention on the Rights of the Child in the courts.
  • State reports from Ireland do not provide the treaty bodies with a rights-based analysis of the situation at home. They tend to provide a compilation of activities, plans and strategies that exist rather than a comprehensive review of the impact of these activities, plans or strategies on the Convention rights of those affected by them.
  • A lack of up-do-date, disaggregated data and information presents not only the treaty bodies with difficulties in assessing the situation with regard to a particular right but also the State in its own assessment and planning.
  • Finally, without a commitment to the implementation of the various rights to which the State has committed itself, the treaty monitoring system itself is of limited value to vulnerable groups such as Travellers, asylum seekers and children, whose rights it was created to protect.
Taking stock of Ireland’s international human rights reporting obligations

Juvenile Justice, The 8th Amendment and The US Federal Courts

Jurist reports today that the ACLU is suing Michigan over life sentences for juveniles, alleging that such measures constitute a violation of the Eighth Amendment. The lawsuit was filed in the U.S. District Court for the Eastern District of Michigan against the Governor of Michigan, the Director of the Michigan Department of Corrections and the Chair of the Michigan Parole Board.

According to the ACLU press release,

The lawsuit charges that a Michigan sentencing scheme that denies the now-adult plaintiffs an opportunity for parole and a fair hearing to demonstrate their growth, maturity and rehabilitation constitutes cruel and unusual punishment and violates their constitutional rights.

The ACLU highlights that Michigan law requires that children as young as 14 who are charged with certain felonies be tried as adults and, if convicted, Continue reading “Juvenile Justice, The 8th Amendment and The US Federal Courts”

Juvenile Justice, The 8th Amendment and The US Federal Courts

SCS on Children's Rights: Lewsley on Child Protection

HRinI is delighted to present this post by Patricia Lewsley, Northern Ireland Commissioner for Children and Young People as part of our SCS on Children’s Rights. Find out more about Patricia on our Guest Contributors page.

I am delighted to be taking part in this event on children’s rights in Ireland to share my thoughts on how we can best protect children and young people. As Northern Ireland Commissioner for Children and Young People, it is my job to safeguard and promote the rights and best interests of children and young people in Northern Ireland, and to help them challenge and change the world they live in. It is my responsibility to monitor and scrutinise the extent to which government realises children’s rights in Northern Ireland. And it is my duty to keep under review the adequacy and effectiveness of law, practice and services in meeting the needs of children and young people.

Continue reading “SCS on Children's Rights: Lewsley on Child Protection”

SCS on Children's Rights: Lewsley on Child Protection

Council of Europe Commissioner for Human Rights Viewpoint on UNCRC

The Council of Europe  Commissioner for Human Rights Thomas Hammerberg (at left) has published a new ‘viewpoint’ on the UN Convention on the Rights of the Child. In it, the Commissioner argues that systematic and concrete actions are required if the rights of the child are to be realised.

The Commissioner begins by noting that a rights-based approach to children’s issues is incompatible with a political mindset which trivialises children’s concerns and refuses to acknowledge them as rights-bearing subjects:

Although children make up a large section of the population and constitute the future of society (in more ways than one), their concerns are seldom given top priority in politics. Ministers responsible for children’s affairs tend to be junior and stand outside the inner circle of power. When political issues are divided into “soft” and “hard”, those relating to children are dealt with as “soft-soft”. Often these issues are seen as non-political and sometimes simply trivial. The image of politicians on the campaign trail kissing babies has become symbolic of this trivialisation.

Gestures are not enough to meet the requirements of the Convention – what is needed is serious political discussion and real change. Improvement in the status of and conditions for children is of course the very purpose of the Convention. With ratification, a state has committed itself to respect the principles and provisions of the Convention and to transform them into reality for all children.

One possible reason for the delay in implementing the Convention could be the decision-makers’ lack of understanding or acceptance of the obligations arising from it. They may not always have made the distinction between charity and a rights-based approach.

Children in need, just like persons with disabilities, have long been the favourite “objects” of charity. They have been given support, not as a matter of right, but because people have felt pity for them. This is one of the attitudes that the Convention challenges.

You can read the rest of this excellent ‘viewpoint’ in full here

 

 

Council of Europe Commissioner for Human Rights Viewpoint on UNCRC