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Archive for the ‘Children and the Law’ Category

Catholic Church and Accountability

March 20, 2010 3 comments

Today the Pope has issued his pastoral letter on child sex abuse in Ireland. A lengthy letter (full version published here), it will take time to fully digest and analyse, and indeed this analysis could perhaps focus on numerous different aspects of the letter. In this blog entry I wish to focus on just one issue arising from the letter: accountability. In particular, it is possible through this letter to consider how the Pope appears to believe he and the Vatican connect to current problems in Ireland.

Despite what many may have wished for (the letter being promised since 13 December 2009) this letter does not accept any blame or accountability for the current scandal in Ireland. Instead we see an allocation of blame directly on the priests who offended and some senior members of the Church in Ireland who made leadership mistakes. The fault lies in Ireland, not in the Vatican. The word ‘we’ is nowhere to be seen in the discussions of the Church, the fault, the apology. Read more…

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Children and the Criminal Justice System

March 13, 2010 4 comments

The return of Jon Venables, one of the men (then boys) convicted of the murder of Jamie Bulger has sparked a fresh debate on how we respond to children who commit crimes and what we expect the criminal justice system to achieve in such cases.

Today the Ministry of Justice in the UK has announced that it has rejected calls to raise the age of criminal responsibility from ten to twelve. Scotland is in the process of amending its legislation to raise the age of responsibility from eight to twelve. Ireland made similar moves in 2001 under the Childrens Act, however in serious cases (murder, manslaughter, rape or aggravated assault) ten or eleven year olds can be prosecuted. Read more…

HSE Reports on Deaths in State Care: Why Publication Matters

March 4, 2010 8 comments

Yesterday and today there has been a great deal of commentary in Ireland on the tragic situations in which children and young people die in the care of the state. This intense commentary and discussion emerged from the publication by Alan Shatter TD of a report emanating from the HSE on the death of Tracey Fay who died when she was 18 years old and in the care of the state (RTE News coverage). Unfortunately, Tracey Fay is not the only minor to have died in state care or in relation to whom the HSE’s report has not been released either to the public or, it appears, to the families of the deceased. While this brings up multiple questions of about the responsibility of the state to protect those in its care, it also raises interseting questions about investigation and reporting in cases of death that I want to broach in this post. Read more…

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)

February 22, 2010 Leave a comment

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

February 16, 2010 10 comments

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…

Yet Another Delay to the Children’s Rights Constitutional Amendment?

February 15, 2010 2 comments

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:

We would anticipate with the election for the lord mayor of Dublin, the two byelections, in Donegal and Dublin South and possibly also at least one constitutional referendum … We have also promised in the programme for Government that there would be a constitutional referendum on a court of civil appeal. So all of those should probably take place, if they are to take place, around the same time and that certainly won’t be until the back end of the year. [Italics added]

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.