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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.

Reasonable Suspicion for Arrest and Evidence at Trial: Supreme Court Excludes Consideration of Exclusionary Rule

January 19, 2010 2 comments

Yesterday, the Irish Supreme Court issued its judgment in the much anticipated case of DPP (Walsh) v Cash. The 7-judge court neatly side-stepped any indepth examination or reconsideration of the exclusionary rule, which it was thought that this case might produce. Although defence counsel sought to rely on that rule, the Supreme Court held that it was inapplicable on the facts and focused instead on the distinction between material which is required to ground a legal arrest and material which is presented as evidence at trial.

To briefly recap on the facts of this case, which was previously discussed on this blog here: the appellant, John Cash, was charged in relation to a burglary which occurred in July 2003 (at which time he was a minor).  Fingerprints had been taken at the scene of the burglary (referred to in the Supreme Court judgment as “Prints 2”) and these were found to match fingerprints reviously taken from Mr. Cash which were held in the Garda Technical Bureau (“Prints 1”). On the basis of this match, Mr. Cash was arrested and he thereafter consented to provide a new set of fingerprints (“Prints 3”). The prosecution had been unable to clearly state the legal position of Prints 1; whether they had been taken with consent or otherwise and whether or not they ought to have been destroyed following the passage of some time and the fact that no proceedings had been instituted.

Read more…

On this Day: First for Irish Divorce

January 17, 2010 1 comment

On January 17, 1997, Barron J in the High Court granted Ireland’s first divorce decree (prior to the formal introduction of the Family Law (Divorce) Act 1996), 14 months after the people had voted, by a slim majority, in favour of the 15th Amendment to the Constitution (The Irish Times remembers ‘the count’ here and Carol Coulter provides analysis here).  The applicant in R.C. v. C.C., a seriously ill man, had been separated from his wife for several years and sought to regularise his new relationship before his death. This open-access article by Christine James provides a tight discussion of the history of divorce law in Ireland.

Divorce had been banned under the Irish constitution since 1937. An attempt to permit divorce by constitutional amendment had failed in 1986, and though the 1995 attempt succeeded, it was vociferously resisted by conservative and religious groups so that the gap between ‘yes’ and ‘no’ was exceptionally small. As this article by Jenny Burley and Francis Regan notes, although the ‘no’ campaign insisted that the introduction of divorce would ‘open the floodgates’ – that marriage breakdown figures would rise dramatically – this has not come to pass.

Public education and migration: the patronage system under scrutiny

January 13, 2010 Leave a comment

As the Irish Independent reported yesterday, the OECD “has proposed that the Government set up new state-run primary schools to better cater for the new multi-ethnic pupil population.” In its review of migrant education in Ireland, published in December 2009, the organisation observed: “the Irish authorities should consider creating net new capacity and re-deploying existing capacity through this channel [of multidenominational schools].” Furthermore, it notes: “a new model of primary school patronage, under the VEC structure, catering for children of all beliefs and none, reflecting the increasing diversity in this area, is currently in operation in two locations in Dublin.”

The system of educational patronage, through which the public education function in Ireland has historically been delegated to bodies owned by, and operated according to the ethos of the religious denominations prevailing in particular areas, has been the subject or renewed contestation since the publication of the Ryan and Murphy reports in particular. Although the State remains formally neutral in law between different religious denominations, most notably in the Education Act 1998, which gives legislative status to school “patrons” – to whom boards of management are accountable for the upholding of the ethos or “characteristic spirit” of schools – Ireland nonetheless has a de facto hegemony of Catholic-ethos schools, with parents in many areas of the State having little choice but to avail of these. For recent commentary on the patronage system from the standpoint of the republican premise of non-domination, see Tom Hickey’s recent post on this site.

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The Offence of Blasphemy and Constitutional Change

January 3, 2010 10 comments

On New Year’s Day the Defamation Act 2009 came into force, including the controversial s. 36 provision relating to the offence of blasphemy. This has been greeted with much publicity and attention in the international media and by an attempt on www.blasphemy.ie to intentionally contravene the provision. Indeed, today’s Sunday Times reports that the founder of Atheist Ireland, Michael Nugent, intends to send a copy of the 25 allegedly blasphemous quotes published on the site in order to try to provoke prosecution. As reported yesterday, however, my view is that this is unlikely to ‘succeed’. Quite apart from the debates around the appropriateness of such a law in a democratic society, it is important to note that the offence has been constructed in such a tight manner that, it seems to be, to be extremely difficult to commit the offence—either intentionally or accidentally. Indeed, the attempt on www.blasphemy.ie would tend to further back up this view. Read more…

On This Day

December 29, 2009 Leave a comment

These are special days in the history of Irish constitutional rights. On December 29, 1937 the Irish Constitution came into force, having been passed by a national plebiscite in July. The picture shows Eamon De Valera, architect of the new Constitution and then President of the Executive Council, standing with members of his cabinet at Government Buildings during the inauguration of the new Constitution. On December 28, 1960, the Oireachtas passed the Health (Fluoridation of Water Supplies) Act, 1960, which required local authorities to fluoridate public water supplies to reduce childhood tooth decay. Mrs. Gladys Ryan had a strong objection to the the fluoridation scheme and challenged the constitutionality of the 1960 Act. Her case; Ryan v AG [1965] IR 294, marks the origin of the doctrine of unenumerated rights in Irish constitutional law.

If you feel like celebrating these milestones, why not raise a glass of fizzy pop to the five young Ryans, whose parents – the case report tells us – ‘did not encourage their children to eat sweets, lollipops or ice cream, and [only permitted them] soft drinks… on Christmas Day.’