Landy on the Children’s Rights Referendum
In response to an article written by Mr. John Waters, (Irish Times, Feb. 19 2010), guest contributor Fergal Landy takes a different view. It is of utmost importance that Mr. Waters article is read before Fergal’s contribution. This article can be accessed here.
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.