Home > Children's Rights Referendum Blog Carnival > O’Mahony on the Proposed Constitutional Amendment on Children – Education Aspects

O’Mahony on the Proposed Constitutional Amendment on Children – Education Aspects

You can learn more about Conor O’Mahony on our guest contributors page.

As part of the proposed constitutional amendment on children, the proposed new Article 42.2 proposes to enumerate, for the first time, a number of the rights of children, including “the right of the child to an education”. The proposal to include an explicit right of the child to education is welcome – indeed, it was recommended by the Constitution Review Group in 1996 – but in all probability, it changes little. The existence of such a right, correlative to the duty of the State under the existing Article 42.4 to provide for free primary education, was clearly reognised in Crowley v Ireland [1980] I.R. 102 and has never been questioned since. The new provision could potentially be interpreted as being broader, given that it refers to “an education” rather than merely to “primary education”. However, it is unlikely that the courts – and particularly the current Supreme Court – would interpret this as including a positive right to education at a level higher than primary, given that the corresponding duty of the State under the re-numbered Article 42.8 would still refer only to primary education. While the Oireachtas Committee Report states that the rights that are recognised in the proposed Article 42.2 are “designed to make a tangible difference to children’s rights”, there is no suggestion that there was any intention to take a step as significant as extending the right to free State education beyond primary level, and in the absence of such a clear intention, no court is likely to so interpret the provision.

One clear effect of inserting express recognition of “the right of the child to an education” is to copperfasten the finding of the Supreme Court in Sinnott v Minister for Education [2001] 2 I.R. 545 that the right to free primary education ends at age 18. This is because the phrasing of the right as being a “right of the child”, coupled with the position of this right within an Article entitled “Children”, reinforces the reasoning of the Supreme Court that “primary education” is directed towards children and that the provision as a whole is concerned with children. This amendment would seem to close off the possibility (slim as it is, admittedly) of any future court reinstating the reasoning of Barr J in the High Court in Sinnott that the current Article 42.4 makes no reference to any age limitation and that the term “primary education” should thus be interpreted by reference to need and not age. It would still (in theory) be possible to interpret the provision as applying to adults whose disabilities make them the functional equivalent of a child as they are still dependent on their parents; but again, this seems unlikely, as this was not in any way intended by the Oireachtas Committee, and the Supreme Court in Sinnott expressly rejected this argument.

The proposed new reference in Article 42.1.1° to cherishing all the children of the State equally would appear to do little in the educational context other than to restate, without addition, existing equality and non-discrimination guarantees contained in Articles 40.1 and 44.2 and fleshed out in the Equal Status Act 2000. The language of this proposed provision is obviously taken from the 1916 Proclamation of Independence, which gives the provision historical resonance, but also accounts for the rather unusual term “cherish”. It is unclear what exactly is encompassed by a constitutional duty to “cherish” all children equally – in all likelihood, nothing more than is encompassed by the existing guarantee in Article 40.1 not to discriminate arbitrarily against children, and specifically not to discriminate against them on grounds of their religious profession, belief or status. The text of the Report clearly indicates that the primary concern of the Oireachtas Committee in recommending the inclusion of this provision was to ensure that all children, including children of unmarried parents, were considered equal in the eyes of the Constitution, as the restriction of Article 41 to marital families had previously raised questions over the application of Article 42 to children born outside of marriage. There is no indication of any intention to reject the restrictive interpretations attaching to Articles 40.1 and 44.2 in the education context; broader equality concerns were not considered in any detail.

If education had really been a focus of the Oireachtas Committee Report, then the obvious angles for development would have been the inclusion of a right to an effective education and the right to equality of educational opportunity, as these aspects of the right to education are widely recognised by international law instruments such as the UNCRC and ECHR. Existing case law already provides some support for the former; the inclusion of recognition of the latter right was explicitly considered but rejected by the Constitution Review Group in 1996. Given that either right could be used so as to make positive claims on State resources, they were never going to feature in any proposals in the current climate. The child’s right to be heard could potentially have been directed towards the education setting rather than merely “judicial and administrative proceedings”, but its inclusion even in its current form remains an important step. In any event, the expansion or reinvention of educational rights under the Constitution was never part of the remit of this Committee. The key aspects of this particular proposal are directed towards the powers of the State to intervene to protect the best interests of children in cases where their parents are failing to do so, and the child’s right to protection and care and right to be heard. This is where the significance of the proposal lies; the inclusion of an express right to education is unlikely to be anything more than a footnote in an otherwise very important reform proposal.

  1. Tomboktu
    February 28, 2010 at 7:34 pm

    If I may, I come to the discussion about the potential that the reference to cherishing children may have with a point that is rather specific — and possibly too specific for a discussion of the broad themes that arise with a constitutional amendment. But I do this because I think the value or otherwise of a constitutional amendment will lie in the implications it has for specific points like the one I am interested in. I begin with setting out the specific issue before asking what implications an amendment may have for that issue.

    My starting point is a post of mine last October on cedarloungrevolution, about the Department of Education’s response to homophobic bullying in schools.

    What that post on CLR points out is that the Department of Education commissioned two pieces of research which show that the problem of homophobic bullying is extensive, and that schools have done very little to respond to it. Two headline statistics: homophobic bullying was reported to occur in seventy-nine percent of schools, but ninety percent of schools’ bullying policies referred to homophobic bullying. Moreover — and the basis of my motivation for writing this comment in HRiI’s carnival — my post draws attention to a parliamentary question asked last October in which the Minister for Education said the school inspectors have “have not explicitly identified problems with homophobic bullying” in any of the whole school evaluations they conducted in 2008 and 2009, since the Department-funded research was published. (One wonders if they have implicitly identified it as a problem.)

    Not covered in my post on CLR were the Equal Status Acts and the work of the Equality Authority. The Equal Status Acts place a duty on those in charge of a school to prevent somebody at the school from being harassed because of their sexual orientation (section 11), and provides a mechanism for a victim to take action against a school if those in charge permit that harassment to happen.

    [Two asides:
    (a) There may be a distinction between ‘homophobic bullying’ and ‘harassment on the sexual orientation ground’, but I leave that to one side here as I think it would not be relevant to my underlying analysis.
    (b) I am unclear about the legal distinctions in the Equal Status Acts on the responsibility of a school. Section 11(2) says that a person who is responsible for a school (etc.) “shall not permit” it to happen, but section 11(3) talks about them having a defence if they can prove that they took steps “to prevent” it from happening.]

    The Equality Authority’s annual reports suggest that the Authority may have had at most two legal cases on this issue. The annual reports for 2002 and 2006 show that it had one case in each of those years under the Equal Status Acts involving a combination of “Education” (2002) or “Education – secondary” (2006) and sexual orientation. That figure of two is only an upper bound, and the text of the annual reports does not tell us if the cases concerned harassment or if they concerned discrimination or victimisation; so, the Authority might have had zero, one or two cases of homophobic bullying over the decade since homophobic bullying in schools became illegal. I can find one case on education and harassment on the sexual orientation ground in the Equality Tribunal’s (cumbersome) database of decisions, although that does not seem to be about a school. (The student was taking a computer applications course, and the staff are referred to as ‘tutors’.) I assume the Equality Tribunal’s Annual Mediation Reviews for 2006, 2007 and 2008 are typical, and they show that the maximum number of mediated cases in any of those years can be two (based on the combination the Act and ground).

    The Equality Authority’s annual reports do not tell us if the two cases on its books arise from section 67 or section 85 of the Employment Equality Act. [Despite the Act those sections appear in, they are relevant here: The Employment Equality Act was amended in 2000 to extend the scope of these two provisions to the Equal Status Act.] The first of these — section 67 — gives the Equality Authority power to assist somebody who requests it in taking a case. The second of these — section 85 — is potentially more important in the context of homophobic bullying in schools. That section allows the Equality Authority to take a case where an individual has not asked it to do that and “it is not reasonable to expect that person to” take a case to the Equality Tribunal.

    It is clear that a serious problem has not been addressed to any significant degree by two key state authorities roles of ensuring standards are observed by schools.

    That does not mean that nothing has happened. The Department of Education and Science has issued guidance to secondary school principals on lesbian, gay and bisexual students. And the National Educational Welfare Board’s statutory guidelines for schools on developing codes of behaviour refer to the Equal Status Acts and the prohibition on harassment. It is not clear to me, though, if the NEWB has a role in protecting a student who is the victim of homophobic bullying. Its remit in this area seems to be focused on ensuring schools have behaviour codes and that students who are disciplined for breaching them are treated properly. (Its primary remit is about non-attendance and early school leaving.) The Equality Authority has run a campaign on the problem in conjunction with BeLonG To (a lesbian and gay youth organisation) that used some pretty striking posters.

    Judy Walsh, of UCD’s School of Social Justice, led a team that did research for the Equality Authority and the Equality Commission for Northern Ireland on access to rights under equality law for lesbian and gay people. In it they state: “In a school context, LGB pupils are reluctant to report harassment out of fear that they may become a greater target for abuse and ostracism”. The researchers might also have noted that those pupils need to research the law, identify the bodies with roles, and make their minds up quickly — all when they are in a hostile environment — if they want to use the Equal Status Act: there is a two-month time limit in making the first step in taking a case. Walsh and her colleagues also report that members of the gay community recommend that homophobic bullying in schools is suitable for strategic litigation by the Equality Authority.

    All of which leads to my constitutional question: would a reference to cherishing all children equally provide a basis for action on this problem?

    If that phrase were in place today, could provide a basis for a former student to take a case because the state authorities — the inspectorate in the Department of Education and the Equality Authority — did too little (and, so far, too late) to tackle the problem? Could it be argued that a time limit of two months was a failure to cherish equally a fourteen or fifteen year old, who might not be able to get parental support, and who is in a situation where the power relations make access to legal rights difficult generally, never mind in the sensitive situation of something so personal as their sexual orientation?

  2. March 1, 2010 at 1:40 pm

    Tomboktu, I hope Connor will also have a chance to come to this discussion which is an important one but for now I think that it will depend to some extent on how the phrase would be interpreted. I suspect it would be seen as purely rhetorical and would not give rise to any enforceable rights or indeed be thought to hold a strike down power within it (similar to the ‘women’s role in the home’ provision). If, however, a different approach were taken then I don’t see why it couldn’t form the basis for a claim that the time limit under the Act is unconstitutionally short when it comes to children given all the obstacles you identify above. Or the court could say the two months don’t start to run until the child knew or ought to have known of the law and in interpreting the latter phrase could take the realities of the situation into account?

  1. February 26, 2010 at 3:01 pm

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