The Draft Constitutional Amendment on the Child: Blog Carnival

Today on Human Rights in Ireland we are delighted to 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.

As one Carnival contributor highlights, the proposed amendment ‘offers much material for discussion in terms of scope, substance and process’. On the day upon which the Committee’s report was released, I wrote a piece analysing the draft wording from the perspective of the compliance of such with Ireland’s obligations under the UN Convention on the Rights of the Child. The contributions to today’s Carnival continue, and contribute significantly to, the widespread discussion and debate initiated by the publication of the Committee’s Final Report. Focussing on key questions related to the protection of children’s rights in Ireland, each commentator provides their perspective on issues arising from the proposed constitutional amendment wording.

• Fergus Ryan of DIT addresses the implications of the proposed constitutional amendment in terms of family law reform.
• Ursula Kilkelly of UCC considers the issue of the ‘best interests’ principle, which is explicitly included in the draft wording.
• The Children’s Rights Alliance sets out its response to the Committee’s proposed amendment, arguing that the time is ripe for constitutional change on children’s rights.
• Conor O’Mahony of UCC looks at the education-related implications of the draft wording.
• Nicola Carr of QUB discusses the proposed amendment in terms of the rights of children in care.
• Finally, Fiona de Londras of UCD and (of course) HRinI writes about the importance of a reflective and careful debate and the dangers of unquestioningly accepting the proposed wording

As always, comments are very welcome.

Ryan on Family Law and the Children’s Rights Amendment

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, [1984] 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.

Kilkelly on ‘Best Interests’ and the Proposed Constitutional Amendment

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.

van Turnhout on ‘The Time is Ripe for Children’s Rights Referendum’

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.

O’Mahony on the Proposed Constitutional Amendment on Children – Education Aspects

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 [1980] 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.

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.

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

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.

The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective

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.