A Constitutional Amendment on Children At Last?

RTE reports that Chairperson of the Oireachtas Committee on the Constitutional Amendment on Children has said the Committee is (finally) to recommend that a referendum on the rights of the child be held. According to the RTE report , Mary O’Rourke stated that a suggested wording for the referendum from children’s charity Barnardos is being legally examined by advisors to the committee. While a constitutional amendment is vital – and, indeed, long overdue – if the historical subordination of children and their rights in the constitutional framework is to be addressed, care must be taken that the wording put to referendum is rights-based and comprehensive.

Much hangs on the wording being considered by the Committee. Is the wording in question based on Barnardo’s submission to the Committee in which Barnardos expressed support for a statement of children’s rights in the Constitution which recognises the child as an individual with rights of their own, as well recommending that any wording put before the people contained key elements which mirrored the four general principles underlying the UN Convention on the Rights of the Child? (That is the non-discrimination principle, the best interests of the child, the right of the child to be heard and the child’s rights to life, survival and development). Or is the Committee considering previous wording presented by Barnardos in The Case for Constitutional Change (2007) which is much narrower in scope, focussing on the protection of the child’s ‘welfare’ rather than on the delineation of children’s rights?

Ensuring the effective protection of children is crucial. However, gaps in the legal framework and system relating to child protection or welfare are not the only challenges faced by children in contemporary Irish society. The weak draft amendment suggested by the Government in the Twenty-eighth Amendment to the Constitution Bill 2007 was largely motivated by a panic caused by the ‘CC’ and the ‘A’ decisions. The wording proposed at that stage singularly failed to accord adequate, holistic protection to children and their rights. It was founded very much on the notion of children as vulnerable, passive actors in need of paternalistic protection by parents and/or the state. It failed to reflect the reality of children as rights-bearers and as social actors with important contributions to make to law, policy-making and other decision-making processes.

It is crucial that any future proposed amendment should not repeat the same mistakes. While the Ryan Commission Report has served to spur the Committee on in its work, it is crucial that any amendment brought in response to that report should not focus exclusively on the protection of children – ensuring their participation and provision rights is equally important. The abuses described in the Ryan Commission Report were not just the outcome of a failure to protect children but also resulted from inadequate provision to poor children and their families and a failure to heed the voices of children both in the context of decisions to put them in care and in the context of abuse allegations.

A strong and comprehensive amendment will not transform the position of children in Ireland. Indeed, the question remains as to what real impact any constitutional amendment on children will have if Articles 41 and 42 of the Constiution are not subject to revision so as to render them more child-centric. However, such an amendment will constitute a significant societal statement of intent. It will establish a mandate – and an imperative – for the elected branches of government to adopt a truly child rights-based approach in law and policy. It will also provide the courts with a crucial tool for guaranteeing the rights of children in the cases that come before them. In contrast, a weak, piece-meal or overly narrow amendment will only serve to deepen the constitutional disadvantage currently experienced by children.

If there is to be a constitutional amendment, then it must be done right. It remains to be seen whether the Committee will rise to the challenge.