In response to an article written by Mr. John Waters, (Irish Times, Feb. 19 2010), guest contributor Fergal Landy takes a different view. It is of utmost importance that Mr. Waters article is read before Fergal’s contribution. This article can be accessed here.
John Waters, opinion and analysis 19.02.10, has outlined his view on the proposed referendum on children’s rights. Mr. Waters is entitled to his view and the debate in relation to the proposed changes should be carried out in an open and inclusive manner, my declared interest is that I am a qualified social worker, currently working as a researcher with children and families and I am a citizen with a genuine concern for the well being of children and young people. I am not wearing, and never have worn, a cloak of secrecy, I have merely respected the confidentiality of the people I have worked with. It is not with Mr. Waters’ opinion that I am concerned but with his deeply flawed analysis. Mr. Waters’ analysis contains some accurate points, designed to draw in the reader predisposed to reasonable argument and to provide a credible, even authoritative, foundation. As is regularly the case with Mr. Water’s these accurate points are then carefully knitted with numerous erroneous points often coupled with vital omissions to form a completely inaccurate but seemingly credible and authoritative analysis. Read more…
The Faculty of Law, UCC, will be hosting an event on ‘Children’s Rights: The Proposed Constitutional Amendment’ on Thursday April 15.
Speakers will include:
- Emily Logan, Ombudsman for Children;
- Dr Conor O’Mahony, Lecturer in Constitutional Law, University College Cork;
- Rosemary Horgan, Family Law Solicitor, Ronan Daly Jermyn & Co.
The seminar will be chaired by Dr Ursula Kilkelly.
The event will run from 12.00-2.30 pm in Room LG 52, Cavanagh Pharmacy Building, College Road, Cork
A limited number of places are available, so please register your interest in attending by e-mailing email@example.com.
Legal Practitioners: 2 Hours of CPD points are available for attendance at this event.
You can learn more about Fergus Ryan on our guest contributors page.
Waiting for family law reform is a bit like waiting for a bus. You linger forlornly for what seems likes an eternity, stoically weathering the elements. Then, just as you are about to give up, along comes a bus — and two more buses directly behind it.
In the past year, the Republic of Ireland has seen three major proposals for family law reform. The Civil Partnership Bill 2009, which is currently before the Dáil, promises a substantial new civil status for registered same-sex couples, with additional protective measures for cohabiting couples, same-sex and opposite-sex. The Law Reform Commission consultation paper, The Legal Aspects of Family Relationships, provisionally recommends some long overdue reforms to the law as it relates to guardianship, custody and access.
There is much to be welcomed also in the proposed constitutional amendment on children. For one, the proposed new Article 42 will apply to all children, and not just those born within marriage. The proposed amendment contains, in particular, a ground-breaking assertion that “[t]he State shall cherish all the children of the State equally.” This will banish, one hopes, the spectre of O’B v S,  IR 316, a Supreme Court decision that affirmed the constitutional validity of measures that discriminate against non-marital children. The Court concluded that the constitutional preference for marriage trumped the child’s right to equality. This constitutional amendment would arguably reverse that stance. Read more…
You can learn more about Ursula Kilkelly on our guest contributors page.
The report of the Joint Oireachtas Committee on the amendment to the Irish Constitution includes a proposal to include what is commonly known as the ‘best interests principle’ into the new Article 42 in two forms. The first form appears in Article 42.1.2° which recognizes the rights of all children and specifies that this includes the right ‘to have their welfare regarded as a primary consideration’. Although this provision refers to ‘welfare’ rather than ‘best interests’ and so could be said to be narrower (and arguably more paternalistic) in nature it otherwise mirrors the standard set out in Article 3 of the Convention on the Rights of the Child (CRC). Although the latter has been criticised for not requiring that the child’s interests are paramount, its strength is that it has wide application, potentially applying to all areas of state decision-making that affect children. Including this principle here, therefore, should require the state to ensure that regard is had to the child’s welfare in areas like budgetary decision-making, planning, immigration and criminal justice. Read more…
You can learn more about Jillian van Turnhout on our guest contributors page.
The vision of the Children’s Rights Alliance is that Ireland will be one of the best places in the world to be a child. On 16 February 2010, the Joint Committee on the Constitutional Amendment on Children moved us that bit closer towards securing this vision, when it published its Final Report. Crucially, the Report includes all-party agreement on a proposed wording for a constitutional amendment to strengthen children’s rights and this, in itself, is a significant step forward.
A major stumbling block to realising our vision has always been the Irish Constitution – the fundamental law of the country. Written in 1937, at a time when children were ‘seen and not heard’ and where, for example, it was the norm for teachers to physically chastise children and for children to be seen as mere possessions of adults, it has become very outdated. A litany of reports, court cases, and inquiries, have, over the years, also highlighted the need for constitutional change for children. Read more…
You can learn more about Conor O’Mahony on our guest contributors page.
As part of the proposed constitutional amendment on children, the proposed new Article 42.2 proposes to enumerate, for the first time, a number of the rights of children, including “the right of the child to an education”. The proposal to include an explicit right of the child to education is welcome – indeed, it was recommended by the Constitution Review Group in 1996 – but in all probability, it changes little. The existence of such a right, correlative to the duty of the State under the existing Article 42.4 to provide for free primary education, was clearly reognised in Crowley v Ireland  I.R. 102 and has never been questioned since. The new provision could potentially be interpreted as being broader, given that it refers to “an education” rather than merely to “primary education”. However, it is unlikely that the courts – and particularly the current Supreme Court – would interpret this as including a positive right to education at a level higher than primary, given that the corresponding duty of the State under the re-numbered Article 42.8 would still refer only to primary education. While the Oireachtas Committee Report states that the rights that are recognised in the proposed Article 42.2 are “designed to make a tangible difference to children’s rights”, there is no suggestion that there was any intention to take a step as significant as extending the right to free State education beyond primary level, and in the absence of such a clear intention, no court is likely to so interpret the provision. Read more…
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. Read more…