The rights of children. Hokey-Cokey Pancakes.

The Irish Times
URSULA KILKELLY
Thursday, February 18, 2010

A brave new model for the rights of Irish children

ANALYSIS : The proposed changes to the Constitution would force the State to give deserved priority of place to children in all decisions that might affect them

IRELAND has come late to children’s rights. The inadequate provision for children’s rights in the Constitution and the knock-on effect is well-documented.

Numerous reports have detailed the extent to which children’s rights have been ignored and underplayed. The Ryan report documented the appalling abuse and neglect of children in State institutions over several decades, and others have detailed the failure of those in authority to prioritise children’s right to protection, listen to them and to speak up on their behalf.

Litigation has demonstrated the impact on children’s lives of the absence from the Constitution of express protection for the rights of children and revealed, in cases like the adoption of Baby Ann, the absence of a framework to ensure that decisions about children take their interests into account. The lack of express protection for children’s individual rights, combined with the exceptional deference shown to the marital family, has led to the rights of children being overshadowed in law, policy and decision-making generally.

Reform has been recommended over the years by a range of authorities including Mrs Justice Catherine McGuinness in her capacity as chairwoman of the Kilkenny Incest Inquiry in 1993 and the Constitution Review Group in 1996.

Ireland’s signature of the United Nations Convention on the Rights of the Child almost 20 years ago led to several initiatives to bring Irish law and practice into line with children’s rights principles. Yet Ireland has been criticised for failing to take a rights-based approach to policies and practices affecting children. Bodies such as the United Nations Committee on the Rights of the Child have urged Ireland to undertake meaningful constitutional reform. The Government responded in 2007 by publishing proposals to amend the Constitution.
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Hoofdredactioneel Comment

The proposed children’s rights amendment to the Constitution would herald a major improvement on the present protection afforded to children, and the publication of the wording is long overdue. It was first recommended by the 1993 Kilkenny incest inquiry report and has featured a number of times since in official reports.

This amendment is about much more than intervening in families or in situations where children are being abused, like the unfortunate case this week. It is a positive statement of the rights of children as individuals to have their welfare regarded as a primary consideration and the responsibility of their parents, as the primary protectors of their welfare, to provide for them.

This is the intent of the proposed new Article 42 of the Constitution, to be entitled Children, replacing and incorporating much of the existing Article 42, entitled Education. The old Article set a very high threshold for intervention in the marital family, requiring the family to “fail” for “physical or moral reasons”.

Heretofore, the children of a marital family were not, except in the most highly exceptional circumstances, available for adoption. The threshold for intervening to protect the welfare of children in a non-marital family was lower than in a marital family. This distinction will be abolished if the amendment is passed, and the children of married parents who cannot care for them will have the right to be adopted. All children will have an equal right to have the State supplement the place of their parents where they fail in their responsibility.

Fears were expressed during the Oireachtas Committee on the Constitutional Amendment’s two years of deliberations that, by lowering the threshold for intervention, an amendment could leave parents with unorthodox or marginal views at the mercy of State intervention, or allow the State to take children into care for trivial reasons. These concerns are met by the proposed wording, which states that State intervention shall be “by proportionate means, as shall be regulated by law.” The emphasis is on supporting families in their responsibilities to their children, and the removal of children from their parents will be a last resort.

The committee received many submissions urging the amendment of Article 41 of the Constitution, which declares that the Family, based on marriage, has “inalienable and imprescriptible rights, antecedent and superior to all positive law.” This, combined with the very exceptional circumstances in which the State could intervene in the marital family, was seen as inhibiting the protection of children. The committee decided not to propose any amendment to Article 41, because this might cause concern among parents that their rights were being reduced. There is an ambiguity as to how Article 42 will be read in conjunction with Article 41.

This is a complex question, both legally and socially. The Government must now decide whether to accept the new wording and put it to the people. There are those who hold the view that the rights of children are already recognised within the Constitution but have yet to be enumerated. There is a need for a public debate.