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Posts Tagged ‘Children and the Law’

de Londras on Reflection, Rapidity and a Children’s Rights Referendum

February 26, 2010 1 comment

You can learn more about Fiona de Londras on our regular contributors page

The proposed children’s rights amendment to the Constitution offers much material for discussion in terms of scope, substance and process and these questions are considered in the other contributions to this blog carnival. My intention in this contribution is to take a step back and consider the importance of having a reflective, reasoned and open period of debate on the wording of the proposals before progressing to a formal constitutional referendum. The risk, after a long period of committee-based consideration and consultation such as that which has taken place around these proposals (even if that consultation was somewhat limited in various ways), is that the wording as proposed would be presumptively considered to be the final wording for the referendum. In such circumstances the debate would likely be dominated by somewhat polemic and positional viewpoints on the value and risks of separately enshrined children’s rights and away from the important question of what kind of language and constitutionalist value relating to children we as a people want to enshrine in the Bunreacht.

This danger is exacerbated in the context of children’s rights in Ireland by the particular social context in which the proposed wording has emerged. The recent past has brought to public attention the neglect and abuse suffered by children in Ireland at the hands of institutions to whom their care was entrusted, particularly institutions run by religious orders. The scale and extremity of the abuse and neglect that has been exposed has put the vulnerabilities experienced by children into sharp relief. In addition, the position of children who are being cared for within the family has also been brought into public consciousness in cases and controversies surrounding matters such as parental refusal for blood transfusions, medical treatment, access and guardianship, legal protection for the child’s relationship with unmarried fathers and so on. Read more…

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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.

Call for Ban on FGM in Ireland

February 5, 2010 3 comments

According to a report in the Irish Times, a number of participants at an event held by the National Steering Committee on Female Genital Mutilation to mark International Day of Zero Tolerance to FGM called for a stepping up of the campaign for a new law banning the practice of FGM in Ireland.

During the event, serious concerns were expressed about whether the current legal framework in Ireland served as an effective tool for addressing the practise of FGM. While Government advice has indicated that female genital mutilation constitutes an offence under assault laws, speakers at the seminar said distinct legislation was needed.

According to the Irish Times report, a spokesman for Minister for Health Mary Harney said: “The question of introducing specific legislation to ban female genital mutilation remains under review. However, we cannot be specific on a timeframe for this review at this stage.”

The Irish Steering Committee came together in early 2008 to develop the Plan of Action to address Female Genital Mutilation, which was finalised in late 2008. The report is a valuable source of information on the practise of FGM in Ireland and elsewhere. The document highlights that ‘a proactive and coordinated response is required to prevent the establishment of the practice [of FGM] in Ireland and to provide care for women and girls living in Ireland who have already undergone FGM in their country of origin’. It identifies a number of strategies ‘as being essential to addressing FGM in Ireland and in other countries through Irish development policies’, focusing on actions under 5 strategy headings: legal, asylum, health, community and development aid. From a legal perspective, the report quotes earlier research carried out by the Women’s Health Council which, amongst other things, highlighted the shortcomings and the inappropriateness of existing legislation in terms of prosecuting FGM. Read more…

Children’s Rights Alliance Report Card 2010

January 26, 2010 1 comment

On Monday, the Children’s Rights Alliance launched its annual ‘report card‘. The report card examines whether the Government has honoured the promises it has made to children living in Ireland. These commitments are found in Social Partnership Agreement, Towards 2016; the Programme for Government 2007-2012 and the Renewed Programme for Government, 2009; the National Action Plan for Social Inclusion 2007-2016, and the Ryan Report Implementation Plan, 2009. The executive summary of the report is here and the full report is here. The Alliance awarded the government a ‘D-‘ grade overall.

The Alliance says:

In Ireland, we believe that we value children, but the startling evidence shows otherwise. Of the 29 commitments, 7 have made progress or shown improvement, 9 have remained static or cannot yet be monitored, and a further 13 are lagging seriously behind. In times of crisis and emergency, it is only natural that we would expect children to come first, but the evidence shows the opposite is true, on some issues the Government is putting its head in the sand.

In a similar vein, this article in yesterday’s Irish Times partly attributed the rise in the number of children taken into care last year to the economic downturn.

A ‘Mere’ Two Years Later, the Committee on the Constitutional Amendment on the Rights of the Child Finally Comes Up with Wording

January 21, 2010 4 comments

A previous entry on this blog stated that if there is to be a constitutional amendment on the rights of the child, then it must be done right. The same piece questioned whether the Oireachtas Committee on the Constitutional Amendment on Children would be up to the challenge. Next week, after over a two-year wait, we will find out.

The Irish Times has reported that a rewrite of Article 42 of the Constitution, entitled Education, is to be proposed by the Committee. In contrast to the approach adopted in the Twenty-eighth Amendment to the Constitution Bill 2007 (which was initiated by the Government in February 2007), the Committee is proposing a new Article 42 rather than simply the addition of a paragraph to the article. While this seems likely to be a positive development given the often-cited shortcomings of the current Article 42 in terms of children’s rights protection, a final judgment cannot be reached until the full wording of the proposed amendment is available.

Notably, the Committee has apparently agreed not to propose any amendment to Article 41, which critics have frequrently blamed for serving as an obstacle to the realisation of children’s rights. This will be a serious disappointment to those, including the Ombudsman for Children, who have argued that such an amendment is necessary if children are to be afforded proper protection under the Constitution. The failure of the Committee to tackle Article 41 is unsurprising, however, given the long-standing stance of the government on the ‘untouchability’ of this issue. For instance, in 2006, at the outset of the previous consultation process to agree the goverment’s formulation of wording for a constitutional amendment, the then-Minister for Children made it clear to participants that a change to Article 41 – in particular, the interpretation of “family” as being based on marriage – was not under consideration.

A fuller analysis of the proposed wording will be be posted on this blog once that wording is available. In the meantime, the submissions made by the Committee can be found here, while the interim reports of the Committee are available here.