Carr on the Constitutional Amendment and Children in Care

You can learn more about Nicola Carr on our guest contributors page.

The case for an amendment to the Irish Constitution to specifically enumerate the rights of children has been well set out by a range of commentators over a period of time. The issues pertaining to children in care or those on the ‘edges of care’ (that is those children who may be eligible for placement in care on the grounds of protection or welfare), have been a touchstone in these debates.

It has been argued that the balance between the ‘inalienable and imprescritible rights’ of the family, as set out in Article 41.1, and the power of the State to intervene in ‘exceptional circumstances’ where the parents in the said family have been deemed to have ‘failed’ in their duty as set out in Article 42.5, has been too strongly skewed towards the rights of the (marital) family. It has also been criticised for setting the threshold for State intervention too high. In the Report of the Kilkenny Incest Inquiry (1993) Justice Catherine McGuinness identified that the status of the martial family within the Irish Constitution was one of the barriers to State intervention in cases such as that described in the Inquiry Report – where a range of services had failed to successfully intervene in a case of longstanding abuse. Justice McGuinness therefore recommended that consideration be given to strengthening the rights of children by way of a Constitutional amendment.

Recent Stories in Children’s Rights

We are still awaiting a draft version of the proposed children’s rights amendment to the Constitution. Aoife blogged about the proposal here. The government serves children very badly, as the Children’s Rights Alliance reminded us last week.  In the fortnight since the announcement was made that the draft constitutional amendment was on the brink of publication  a number of important stories touching on children’s rights in Ireland have broken.

• Fine Gael provides a very good summary of the outstanding issues in the child protection system here .
• The Examiner reports on the serious consequences for children with learning difficulties of the budget-driven withdrawal of support teachers here.
• Last year was the worst year since 2006 for migrant children disappearing from State care. Fine Gael’s response is here and you can read the Irish Times report on the same issue here . The HSE on Monday said that  ‘it has been unsubstantiated that any of the children who go missing from HSE care have been trafficked’. However, the Children’s Rights Alliance provides this statement in which it convincingly argues that  ‘it is a matter of public record that children, who have disappeared from HSE care, have subsequently been ‘found’ in situations where they were being exploited by traffickers. ‘

Implementation of the Ryan Report and Protection of Children in Care

Following the publication of the Report of the Commission to Inquire into Child Abuse (“the Ryan Report”) in May, Irish society has had to confront the appalling history of abuse, both sexual and physical in State-run institutions. The Ryan Report’s finding (Executive Summary at p. 21) that child abuse was endemic in Irish industrial schools for boys is shocking and difficult to grasp in its magnitude. The publication of the much anticipated Report of the Commission of Investigation into the Dublin Archdiocese (about which Pádraig posted here), will almost certainly compound the public sense of anger and frustration that the most vulnerable in society were victimised in the most horrific ways. In this climate of justified anger and shock, it is important to remember that the welfare of the children who are currently in State care is of paramount importance.

In this context, the recent publication of the Health Information Quality Authority National Children in Care Inspection Report is an urgent and timely reminder of the need for better policies and safeguards for the protection of children in State care. The Report reviews the findings of 38 inspections carried out by the Authority in 2008 of children’s residential care centres operated by the HSE and of foster care services operated in a HSE region.