Archive
HSE Dublin North East Region and complaints of child abuse
Yesterday’s Sunday Tribune reports that from 2006-2008, the HSE‘s Dublin North East Region received 33 complaints of physical or sexual abuse from children in foster care, none of which resulted in criminal prosecutions. The article states:
In two of the most serious instances, the Director of Public Prosecutions (DPP) opted not to pursue a criminal case despite HSE and garda investigations into the complaints and the removal of one of the foster couples concerned from the HSE’s fostering register.
At least seven other allegations of physical or sexual abuse were also noted as “confirmed” following investigation by the HSE’s own childcare experts. But none led to a criminal prosecution or conviction.
While of course there is no way of knowing whether any of these allegations were well founded, the figures highlight the importance of a thorough and sensitive investigation in the prosecution of child abuse. Children in care (the vast majority of whom are in foster care) have already suffered through neglect, abandonment and/or physical or sexual abuse. The Gardai and HSE social workers play a critical role in interviewing the child and empowering him or her to provide a statement that can ground a prosecution. Due to the secretive nature of the offending, prosecutions for child abuse, particularly child sexual abuse, often pivot on the complainant’s account of events. The importance of gaining a detailed statement from the child cannot be underestimated; it will form the basis on which the DPP will decide whether or not to charge the suspect, it will form the notice of evidence to the accused on the Book of Evidence and, if the matter proceeds to trial, it is the statement around which the examination and cross-examination of the child will centre.
The crucial nature of the initial statement was recognised as far back as 1992, in section 16(1)(b) of the Criminal Evidence Act. That section provides for the videotaping of a child’s statement and the subsequent playing of that videotape at the trial. Inexplicably, however, given the probative advantages (from both a defence and a prosecutorial perspective) to be gained from having the child’s statement on record from day one, the section was not commenced until October 2008. While some members of the gardai and the HSE social workers have been trained to carry out videotaped interviews (see Úna Ní Raiftearaigh, S.C.’s excellent article in the Bar Review last November), the exact figures are far from clear. Furthermore, not every child in foster care has a social worker assigned to him or her directly – for example, only 40% of children who are fostered by their relatives are currently assigned a social worker (see the Health Information Quality Report into Children in Care , about which I blogged here), making the issue of reporting even more difficult for these children. If Irish society is serious about tackling the sexual abuse of children, it is essential that the authorities facilitate courageous children who seek to engage with the criminal justice system. A first step would be the development of a coherent policy on collaboration between the HSE and the Gardaí on investigating and interviewing children in care who report abuse. As well as addressing the psychological and communication difficulties facing child complainants in abuse cases, the policy might also deal with the gathering of independent material and other corroborative evidence.
(See here for Nicola Carr’s blog about children in care and the proposed Constitutional Amendment on Children’s Rights as part of last Friday’s Children’s Rights Referendum blog carnival.)
Blog Carnival on the Proposed Child Rights Constitutional Amendment (Expressions of Interest)
On Friday 26 February, Human Rights in Ireland will host a mini Blog Carnival on the draft wording for a constitutional amendment on the child set out in the final report of the Oireachtas Committee on the Constitutional Amendment on Children.
Postings could take a number of different forms, including:
– Analyses of the draft wording in terms of its capacity to address current shortcomings in children’s rights protection under the constitutional framework. Topics of particular interest would include the implications of the draft wording for the realisation of children’s rights in areas such as child protection, adoption/guardianship, child poverty, refugee children, children in care and children in custody.
– Issues surrounding a forthcoming referendum on the draft wording. What forms are the various campaigns around any such referendum likely to take? What obstacles exist with regard to advancing or improving the wording as it stands? What factors will influence the ultimate outcome of such a referendum?
As well as relying on the in-house expertise of Human Rights in Ireland bloggers, those in the human rights, community, voluntary and other related sectors are invited to submit proposals for commentary that they may wish to make on the budget. Blog posts should be between 400-1,000 words (max).
Those interested are asked to contact me at aoife.nolan@qub.ac.uk (before noon 24 February 2010) so that a full Blog Programme can be ready to upload on 26 February.
The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective
After over 2 years, 62 meetings and numerous milestones highlighting the precarious position of children’s rights in Irish society including the publication of the Ryan and the Murphy reports, the Oireachtas Committee on the Constitutional Amendment on Children has at long last issued its third and final report.
The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.
Having deliberated on the proposed Article 42(A).1–4 set out in Twenty-eighth Amendment to the Constitution Bill 2007, the Committee recommended ‘an alternative approach’. According to the Report:
The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.
Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.Children
Article 42
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.
4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.
5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.
6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.
7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
In doing so, the Committee highlighted that
It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.
There is much to be welcomed in the draft amendment, albeit that it still evidences some serious shortcomings in ensuring holistic protection to the rights of the child. In addition, there are a wide range of perspectives from which the proposed text could be considered. This blog entry, however, will focus on whether, if adopted, the Committee’s proposed wording would bring Ireland into compliance with its voluntarily assumed international human rights law obligations under the UN Convention on the Rights of the Child. Read more…
Confusion over the IBC/05 Scheme
From the Immigrant Council of Ireland blog comes news about applications for renewal of residence permits under the IBC/05 scheme. We blogged about the position of Irish-born children of migrants to Ireland here and you can find out more about the experiences of families under the scheme in this report.
The ICI will closely monitor any fall-out from the confusion around the process for renewing residence permits for the parents of Irish citizen children. About 17,000 people have this type of residence permit (IBC), which are due for renewal this year.
In December, the Irish Naturalisation and Immigration Service (INIS) advertised the process for renewing IBC residence permits, stating that people could do so by presenting at the Garda National Immigration Bureau (GNIB) or their local immigration office, with the relevant documents, fee etc. But people who followed the directions set out in the advertisements have been told by the GNIB that it is unable to renew their permits without further direction from INIS. INIS has indicated a second announcement about the renewal process will be made on www.inis.gov.ieand in national newspapers soon. In the meantime, many affected migrants have not been able to renew their residence permits.
This apparent breakdown in coordination between two parts of the Department of Justice has very serious ramifications, not least the fact that when a person’s current permit expires and is not renewed, they become undocumented. This could have implications for a person’s employment security and possibly on citizenship applications, as well creating enormous stress and confusion. The ICI has been in contact with both INIS and the GNIB in an attempt to have the situation addressed.
Call for Ban on FGM in Ireland
According to a report in the Irish Times, a number of participants at an event held by the National Steering Committee on Female Genital Mutilation to mark International Day of Zero Tolerance to FGM called for a stepping up of the campaign for a new law banning the practice of FGM in Ireland.
During the event, serious concerns were expressed about whether the current legal framework in Ireland served as an effective tool for addressing the practise of FGM. While Government advice has indicated that female genital mutilation constitutes an offence under assault laws, speakers at the seminar said distinct legislation was needed.
According to the Irish Times report, a spokesman for Minister for Health Mary Harney said: “The question of introducing specific legislation to ban female genital mutilation remains under review. However, we cannot be specific on a timeframe for this review at this stage.”
The Irish Steering Committee came together in early 2008 to develop the Plan of Action to address Female Genital Mutilation, which was finalised in late 2008. The report is a valuable source of information on the practise of FGM in Ireland and elsewhere. The document highlights that ‘a proactive and coordinated response is required to prevent the establishment of the practice [of FGM] in Ireland and to provide care for women and girls living in Ireland who have already undergone FGM in their country of origin’. It identifies a number of strategies ‘as being essential to addressing FGM in Ireland and in other countries through Irish development policies’, focusing on actions under 5 strategy headings: legal, asylum, health, community and development aid. From a legal perspective, the report quotes earlier research carried out by the Women’s Health Council which, amongst other things, highlighted the shortcomings and the inappropriateness of existing legislation in terms of prosecuting FGM. Read more…
Civil Partnership Bill, Second Stage….Of Tatchell, MacLiammoir, Fathers and Left-Wing Extremist Feminism
Gilligan and Zappone
On Wednesday the second stage debate on the Civil Partnership Bill continued in the Dail (see an explanation of the Irish legislative process here). The Bill has now passed the second stage and has been referred to the Select Committee on Justice, Equality and Women’s Rights. An archive of the customary liveblog (and very entertaining it is too) is here.
References were made throughout the debate to two Bills which preceded the present government’s efforts; the Norris Civil Partnership Bill of 2004 and the Labour Party’s ill-fated Civil Unions Bill of 2006 (notable for its provision for children’s rights and for adoption).
Some highlights of the debate (I am confining myself to comments which introduced new points or made old points in an important way. We have blogged the second stage already here and here )included:
A Threat to Marriage?
Beverley Flynn (FF) emphasised the special protection afforded to marriage under the Constitution. This was a theme taken up by Brian Hayes (and by many his FG colleagues) who, unusually (perhaps almost uniquely) for this debate, actually discussed and demonstrated some understanding of the applicable law: One of the myths that has been circulated is that the Bill will downgrade the position of marriage. I wish to refute that assertion because I do not believe marriage will be downgraded at all. The clear protection afforded to marriage under Article 40 of the Constitution is absolute. That protection can be changed only on foot of a referendum and it cannot be altered by an Act of Parliament. That was made abundantly clear in the remarks of Ms Justice Dunne in the High Court in the case taken by Dr. Zappone and Dr. Gilligan, in which they attempted to have recognised a marriage of their union in Canada in Irish domestic law. It is worth putting on the record what Ms Justice Dunne said in that case, which, I understand, is still under appeal in the Supreme Court. She said: I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple… The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage… Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. In no way will the passage of this Bill downgrade or undermine marriage because absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum. It is the people who will decide whether that definition of marriage as expressed in Bunreacht na hÉireann can change. I reject the notion that in some way the Bill downgrades marriage because absolute and fundamental constitutional protection is given to marriage in Articles 40 and 41.
It is interesting to note that the Minister for Justice in his response referred to two ways in which the Bill bears the marks of the government’s desire to protect the institution of marriage. First, he discussed the balance to be struck between a past spouse and a current co-habitant: I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General’s advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant. Second he distinguished between the relief available on marriage breakdown and that sought to be made available when cohabiting relationships end: The Bill’s redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.
Children’s Rights Alliance Report Card 2010
On Monday, the Children’s Rights Alliance launched its annual ‘report card‘. The report card examines whether the Government has honoured the promises it has made to children living in Ireland. These commitments are found in Social Partnership Agreement, Towards 2016; the Programme for Government 2007-2012 and the Renewed Programme for Government, 2009; the National Action Plan for Social Inclusion 2007-2016, and the Ryan Report Implementation Plan, 2009. The executive summary of the report is here and the full report is here. The Alliance awarded the government a ‘D-‘ grade overall.
The Alliance says:
In Ireland, we believe that we value children, but the startling evidence shows otherwise. Of the 29 commitments, 7 have made progress or shown improvement, 9 have remained static or cannot yet be monitored, and a further 13 are lagging seriously behind. In times of crisis and emergency, it is only natural that we would expect children to come first, but the evidence shows the opposite is true, on some issues the Government is putting its head in the sand.
In a similar vein, this article in yesterday’s Irish Times partly attributed the rise in the number of children taken into care last year to the economic downturn.
Civil Partnership Bill, 2nd Stage Debate (1) – Practical Points
Labour's Ruairi Quinn speaking yesterday in the Dail.
On Thursday, the second stage debate on the Civil Partnership Bill picked up where it left off on December 3rd. The Adoption Bill was debated (see our guest post from Brid Nic Suibhne here) on the same day.
You can read the liveblog of the Civil Partnership Bill debate, including my contributions to it here. We blogged the beginning of the second stage here.
For reasons of space, there will be 2 posts about yesterday’s debate. On will focus on some important arguments made about the operation of the Bill. The second will flag up a line of rhetoric which developed in the course of the debate about the proper place of religion in the republic.
A ‘Mere’ Two Years Later, the Committee on the Constitutional Amendment on the Rights of the Child Finally Comes Up with Wording
A previous entry on this blog stated that if there is to be a constitutional amendment on the rights of the child, then it must be done right. The same piece questioned whether the Oireachtas Committee on the Constitutional Amendment on Children would be up to the challenge. Next week, after over a two-year wait, we will find out.
The Irish Times has reported that a rewrite of Article 42 of the Constitution, entitled Education, is to be proposed by the Committee. In contrast to the approach adopted in the Twenty-eighth Amendment to the Constitution Bill 2007 (which was initiated by the Government in February 2007), the Committee is proposing a new Article 42 rather than simply the addition of a paragraph to the article. While this seems likely to be a positive development given the often-cited shortcomings of the current Article 42 in terms of children’s rights protection, a final judgment cannot be reached until the full wording of the proposed amendment is available.
Notably, the Committee has apparently agreed not to propose any amendment to Article 41, which critics have frequrently blamed for serving as an obstacle to the realisation of children’s rights. This will be a serious disappointment to those, including the Ombudsman for Children, who have argued that such an amendment is necessary if children are to be afforded proper protection under the Constitution. The failure of the Committee to tackle Article 41 is unsurprising, however, given the long-standing stance of the government on the ‘untouchability’ of this issue. For instance, in 2006, at the outset of the previous consultation process to agree the goverment’s formulation of wording for a constitutional amendment, the then-Minister for Children made it clear to participants that a change to Article 41 – in particular, the interpretation of “family” as being based on marriage – was not under consideration.
A fuller analysis of the proposed wording will be be posted on this blog once that wording is available. In the meantime, the submissions made by the Committee can be found here, while the interim reports of the Committee are available here.
Never Miss A Post.
Campaigns we Support
Human Rights in Ireland 
Yet Another Delay to the Children’s Rights Constitutional Amendment?
According to the Irish Times, the proposed wording for a referendum on children’s rights has been unanimously agreed by the all-party Oireachtas Committee on the Constitutional Amendment on Children, which will launch its final report tomorrow.
Previous entries on this blog have highlighted the long delay in the Committee producing its final report, potential shortcomings in the Committee’s approach and the failure of the Committee to proactively seek direct input from young people themselves.
The Final Report is very much to be welcomed – even if only in terms of drawing line under the protracted and apparently tortuous considerations of the Committee. However, the government’s failure to establish a definite date by which the draft wording will be put to the electorate (or even a date by which a decision will be taken as to whether or not the wording will be put to the electorate) is not.
The same Irish Times report quotes statements of Mary Hanafin on RTE’s The Week in Politics that:
She went on to make it clear that the government did not envisage that any referendum on the proposed amendment would take place before the autumn.
It is striking, however, that another participant on the programme, Alex White, TD – who is a member of the Oireachtas Committee on the Constitutional Amendment on Children – intervened to say that the Committee’s report would be launched “this Tuesday” (16 February) and so “it’ll be ready to move on”.
Given that the Committee has had over two years to work on its report, as well as the fact that it can be assumed that the government is familiar both with the Comittee’s discussions and the proposed wording due to the All-Party nature of the Committee, it seems inexcusable that there should be a significant delay in putting the wording to referendum. This is particularly so given the repeated statements on the part of the Government (for instance, in its Implementation Plan in Response to the Ryan Report) that a constitution on a children’s rights amendment would go ahead once the Committee’s work would be completed. In light of the delay in addressing the wholly inadequate framework of the protection of children’s rights under the Constitution on the part of the Committee and – indeed – the Government, it is crucial that the response to the Committee’s report be prompt and concrete.