Committee’s proposals for a children’s rights amendment
Minister for Children Barry Andrews came to the Seanad chamber last night in order to discuss the Final Report of the Joint Committee on the Constitutional Amendment on Children. This was my contribution to the debate.
I welcome the Minister of State on the occasion of the publication of this extremely important report which is founded on a high level of consensus across the political divide. I endorse the comments of my colleagues regarding the input of all parties into the report. In particular, I commend the Minister of State on his consistent engagement and regular attendance at committee meetings. The commitment shown by Senators in the committee’s deliberations was exemplary and undermines any argument that might be made for abolishing this Chamber.
This issue is characterised by complexity and, often, the presumption of disagreement even where it does not exist. People assumed on the basis of history that certain things cannot be changed but when we began to examine in detail what words actually mean, it was funny how quickly we were able to progress towards agreement. The Minister of State clearly outlined the achievements made in terms of the proposed wording. If this amendment is implemented, we would have a Constitution which protected children as the holders of autonomous rights. It would be a misnomer to say we are putting children’s rights into the Constitution for the first time but we want to ensure they have rights in and of themselves and not just mediated through their membership of families.
The Minister of State has regular dealings with all the organisations engaged with children’s rights and advocacy, including the Children’s Rights Alliance and Barnardos. These organisations offered significant support to the committee and in some cases made multiple submissions. Their universal welcome for the outcome of our deliberations is in itself a measure of the extent to which progress has been made in the course of our work.
In regard to Senator O’Toole’s remarks, it would be more accurate to say the committee proposes to revise Article 42 rather than insert a completely new article because some of the existing wording is retained. This may give rise to confusion in some quarters during the debate. The provisions dealing with primary, physical, moral and intellectual education which are already in the Constitution are simply lifted into this new proposal. The committee debated whether we should unpick the provisions on education or include a right to secondary education. Several colleagues even argued for the inclusion of a right to third level education. However, members did not feel the terms of reference of the committee extended that far and I believe we reached the correct conclusion. The Bill published in 2007 delineated to a considerable extent the work of the committee. A major debate remains to be had, not least in the context of the Constitution, regarding the right to education but it was not within our remit to make proposals in regard to the sections we lifted from Article 42. We have not dropped the word “physical” because the provision in question was simply left unchanged.
Senator Mullen made the rhetorical point that the State does not have the right to occupy the high ground all the time because it cannot always be relied upon to be the best agent for vindicating the rights of children. He makes a fair point when he puts it that way. Our proposal does nothing to change the basic presumption that a child’s welfare is best served within his or her family but we cannot ignore the fact that, unfortunately, the family is not always the safest place for children. We have seen terrible examples in recent years, culminating in the reports we all have read. The 1937 Constitution itself provides a basis for intervention on the part of the State, albeit in exceptional circumstances.
I doubt if Senator Mullen or anyone else would say that there ought never be a basis for the intervention of the State. That seems to me an absurd suggestion and one that could not be justified. The question is when, how and under what circumstances and controls this ought to be permitted to occur. That is simply what we were wrestling with.
I was not sure initially about the notion of proportionality and that it would be the basis upon which intervention would take place but I found myself convinced that it is a useful concept to consider. I cannot say what proportionality would mean to a court but to me it would mean that intervention would take place only when it is necessary and only in so far as is necessary. It is not something that happens very easily or automatically. It is something that is required to occur under particular circumstances. A test of proportionality is the appropriate one. I hope those who might have problems with this proposal would discover that they do not have as many problems when they read it and that they might agree that proportionate intervention is the right way to proceed.
I listened to what Senator Mullen had to say on the question of cherishing all the children of the State equally. We know that the phrase comes from the Proclamation and, as the Minister of State pointed out, the signatories and those who wrote it were not talking about children in the sense in which we are talking about them. They were talking about something much more political in the sense of people of different traditions and backgrounds and that irrespective of one’s background or religion one would still be cherished by the State. That was a declaration of intent and a hugely resonant and important one historically for Irish people. We are familiar with the phrase. There is no problem with that kind of phraseology being drawn on in this report. In a sense that proposal is a proclamation as well, that the State should cherish all the children of the State equally.
The legal content is open to debate but it seems to me that the rest of the proposal which deals with actual specific rights being accorded to children for the first time, such as the right to be heard, the right to have one’s welfare regarded as a paramount consideration, and all the specific rights set out in the amendment, are the terms the courts will be required to consider if there is a necessity to analyse what we are proposing if the people were to adopt it. That overarching proclamation of cherishing all the children of the State equally is an appropriate one. Even if it is just simply rhetorical in that kind of historical sense, it is one that will resonate with people. I see no reason we would not consider putting that into our Constitution in this particular context.
The Minister referred to Ursula Kilkelly’s response. It is the only academic response I have seen in the past week or ten days to this proposed amendment. It is fair to say it is a positive one on her part. She is someone who has a track record in analysing the performance of the Government and the State on the nature and appropriateness of laws relating to children. The way I read it, she has given a strong endorsement of the work that has been done by the committee. I find that gratifying, not because I am looking to academics to tell us whether we are performing well but because she is someone who has analysed this incredibly complex area and found that the wording comes up strongly from any analysis done on it.
She makes the point that the committee neatly sidestepped the issue of Article 41 by replacing the reference to the family in Article 42 with a reference to parents. Senator Mullen was critical of the wording on that basis also. However, he fairly acknowledged that he believed that the continuation in being of Article 41, untouched by the work of the committee, should give a considerable degree of comfort to those who, like him, take the view that there ought to be no change in that regard at all. We might be criticised in other quarters for not having addressed Article 41.
The test in regard to proportionality is an important advance. We have noted in the course of our work that a test of abandonment, which is essentially what is in place at the moment, has been interpreted by the courts in an onerous sense. By that I mean that abandonment has been interpreted as meaning, essentially, that the abandonment of the child is likely to continue up to the age of 18 and that it has no way of being repaired or temporarily abated. That test is too onerous. What we have done is navigated the complexities of the issue and come forward with a set of proposals that will win widespread agreement across the community. I certainly hope it will.
If the past ten days is anything to go by in terms of criticisms of what we have done, the arguments have not been particularly compelling. Senator Cannon referred to one such criticism by John Waters that the proposal could be reduced to a sense in which all parents of the State would now be equal in terms of the likelihood or possibility of their children being snatched from them. That is so absurd in the context of this debate as to be ignorant of the issues that are being dealt with here. I hope the debate does take place at a higher level than that. I think it will and that the contribution we have made in the committee in the past two years will go a long way towards leading that discussion and, I hope, bringing about a much better state of affairs constitutionally for the children of the State and of the nation.
John Waters, opinion and analysis 19.02.10, has outlined his view on the proposed referendum on children’s rights. Mr. Waters is entitled to his view and the debate in relation to the proposed changes should be carried out in an open and inclusive manner, my declared interest is that I am a qualified social worker, currently working as a researcher with children and families and I am a citizen with a genuine concern for the well being of children and young people. I am not wearing, and never have worn, a cloak of secrecy, I have merely respected the confidentiality of the people I have worked with. It is not with Mr. Waters’ opinion that I am concerned but with his deeply flawed analysis. Mr. Waters’ analysis contains some accurate points, designed to draw in the reader predisposed to reasonable argument and to provide a credible, even authoritative, foundation. As is regularly the case with Mr. Water’s these accurate points are then carefully knitted with numerous erroneous points often coupled with vital omissions to form a completely inaccurate but seemingly credible and authoritative analysis.
In his analysis he raises two issues that are undoubtedly in need of reform and of general interest in society. These issues are father’s rights and transparency of the courts system. I agree with Mr. Waters’ substantive opinion on both these issues. Whilst both issues impinge on the debate on children’s rights they do not belong in an analysis of the proposed new wording for the Constitution per se. The internationally accepted human rights standard of gender equality needs to be enshrined in the Constitution rather the current qualified version of equality including ‘social function’ as a basis for differential treatment. A more robust right to equal treatment should, as true equality does, have various benefits for both sexes in varying contexts as well as for other groups in society including ethnic minorities, people with disabilities and indeed children. Secondly reform of the courts system to allow for greater scrutiny and transparency in family law and child care proceedings should indeed be welcomed. This need for reform is more relevant to the current debate in terms of a child’s rights to fair proceedings than in the way it was introduced by Mr. Waters but it is not relevant to an analysis on the proposed referendum but rather a separate debate on the courts system.
Having included reasonable analysis of two issues that do not actually belong in the analysis of this issue in the first place Mr. Waters’ then includes numerous inaccuracies. He states that the proposed referendum would reduce parent to “caretaker child minders acting on behalf of the State”. Considering it is proposed to leave Article 41 of the Constitution as it is, recognizing the Family as the natural, primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law and guaranteeing to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State, it does not take a constitutional lawyer to ascertain that Mr. Waters’ contention is blatantly incorrect, these are strong constitutional rights by any standard and constitute a stronger formulation of family rights than the child rights currently proposed for inclusion in Article 42. He further contends that as there is no reference to intervention as a last resort the State would have a free hand to interfere in any family on any basis or none and without criteria, this despite the obvious strength of Article 41 partially outlined above. He also ignores the fact that current legislation does outline criteria and process in this area and that such legislation is, and any future legislation will be, interpreted in the light of the rights of the Family in Article 41. Whilst acknowledging that children need to be protected he argues that children mainly need to be protected from the Sate rather than from their families. This is factually incorrect, whilst fully acknowledging the horrendous abuse of children in institutional care in this country, the fact remains that instances of familial abuse were and are far greater in number, a fact borne out fully by SAVI and other reports. Also alternative care standards have been greatly improved and are subject to independent inspection. I wholeheartedly agree that the vast majority of children are safe and well cared for by their families and that supporting families is the best way to keep children safe, this principle has always informed my own approach to working with children and families. The rebuttable presumption that a child is ordinarily best cared for by their parents remains fully ingrained in Irish law both in legislation and by virtue of Article 41.
Mr. Waters criticises the introduction of the best interest of the child principle to the Constitution. It should be made clear that once again the natural presumption in law is that the best interests of the child are served by their family, it is only when there is a dispute that this principle is applied by the Courts. There are legitimate criticisms of this principle and if the referendum goes ahead and is passed its application as a constitutional principle could be problematic. However this principle is already enshrined in Irish law in legislation and as a country we subscribe to the principle through our ratification of the United Nations Convention on the Rights of the Child along with every other country in the UN bar the U.S and Somalia. How the best interests of the child are determined and who oversees this decision has always been the difficulty with our use of the concept in our legal system but this must be separately addressed. The fact that the principle has the potential to orient a decision in favour of children is a distinct improvement on where we are now. Also the best interests principle as a constitutional principle would be interpreted in the light of the robust family rights in Article 41 and potentially in the light of the views of the child, having regard to their age and maturity, as the child’s right to be heard is included in the new wording.
Mr. Waters concludes with two points. First he claims that the Constitution as it currently stands adequately provides for the rights of children and he refers to Mr Justice Adrian Hardiman for support. That is one view, there is plenty opinion to the contrary including the well documented views of former Justice Catherine Mc Guinness and it is a view that seems very tenuous in the light of numerous reports of enquiries into cases of child harm and death in this country. Secondly he argues that the proposed wording by the Oireachtas committee fails to address the fact that children whose parents have never been married to one another have lesser rights than other children. In fact the current anomaly in Irish law is the opposite, the children of married parents have lesser rights when there is a direct clash between the rights of the parent and the child by virtue of the family rights in Article 41.
The proposed wording represents an opportunity to clarify and strengthen the rights of all children, to recalibrate the balancing that occurs where the rights of children clash directly with the rights of parents and to bring us into line with the United Nations Convention on the Rights of the Child which our elected government chose to ratify on our behalf in 1992. Most importantly this reform will give greater credence to the concept of children’s own agency as competent citizens and equal actors in any intervention or proceeding concerning them. The related but distinct issue of equality should be dealt with where it belongs under Article 40 on the personal rights of the citizen, inclusive of children’s equality rights as citizens. The combination of the newly prescribed child rights, if put to the people and passed, with the existing strong family rights in the Constitution will provide a much improved constitutional framework for current legislation, policy and practice that is already increasingly geared towards protecting children by supporting them, their families and their communities.
Fergal Landy,
Researcher,
Child and Family Research Centre,
NUI Galway
[email protected]