I warmly welcome the announcement last week of the date for the Children’s Referendum, Saturday 10th November 2012, and publication of the proposed wording of a new Article 42 A in the Constitution, titled Children.
These developments mark another hugely significant step in the progress this Government has made in advancing the agenda of the safety, welfare, protection and rights of children since the General Election in February 2011.
An excellent starting point at that time was the appointment of Frances Fitzgerald TD as our first ever Minister for Children and Youth Affairs with full executive powers. In a speech I gave to the Fine Gael National Conference in March 2010 I said that ‘A new Department of Children, with a Minister who knows what he or she is doing, is a must for any new Government interested in seriously addressing the current broken system’ so I was very happy to see Minister Fitzgerald’s appointment when the new Government was formed.
In that same speech in March 2010 I also supported the many calls that had been made for the State’s child protection guidelines, Children First, to be put on a statutory basis. Thankfully progress has also made in this regard with the publication of the Children First Bill in May of this year. The Bill is not perfect and will hopefully be enhanced during this Dáil term, particularly around the area of compliance.
With the publication of the Ferns, Ryan, Murphy and Cloyne Reports members of the public were understandably repulsed at the extent to which the sexual abuse of so many children had been covered up by members of the Catholic Hierarchy and were shocked to learn that such acts of concealment, despite their horrific consequences, were not criminal offences. Thanks to the recent passing of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act such concealment of the abuse of children would be treated very differently in the future if it were repeated, by anyone.
Another significant piece of legislation currently going through the Oireachtas is the National Vetting Bureau Bill which aims to put the vetting of people working with children on a statutory basis and, for the first time, will allow soft information to be disclosed by the Gardai to some potential employers.
These changes, at governmental, ministerial and legislative level, are the context into which the proposed new Article 42 A is brought. This is why it always amazes me to hear opponents to this proposed amendment say that on its own it’s not going to bring about so many of the changes that are necessary to enhance children’s rights and protection in this country. Most people, who have a genuine interest in this agenda, already know that Article 42 A is not on its own.
The wording for Article 42 A is as follows:
PROPOSED NEW ARTICLE 42A
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2.1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2.2° Provision shall 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 duty towards the child and where the best interests of the child so require.
3.Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4.1° Provision shall be made by law that in the resolution of all proceedings-
i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
4.2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
I welcome this wording and support it insofar as it goes. When studying it I was particularly mindful of the United Nations Convention on the Rights of the Child. The United Nations Convention on the Rights of the Child (UNCRC) is a comprehensive agreement on the rights of children, adopted by the United Nations over twenty years ago. Ireland ratified the UNCRC in 1992.
In Section 1 of the proposed Article 42 A above The State recognises and affirms the natural and imprescriptible rights of all children. For me the word ‘all’ is very important here and its inclusivity reflects Article 2 of the UNCRC which states that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.
In Section 2 1° above it is to be welcomed that the State shall, by proportionate means, endeavour to supply the place of the parents in such exceptional cases as where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. I think it is wise that the term exceptional circumstances has been defined within the Section.
Sections 2 2° and 3 facilitate the introduction of legislation which will allow for the adoption of a child where it is in the child’s best interest, regardless of the marital status of the child’s parents. Section 3 also facilitates legislation allowing for the voluntary placing of any child for adoption. These Sections properly reflect Article 21 of UNCRC which states that ‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration’.
Section 4 facilitates legislation allowing that in the resolution of all proceedings brought by the State for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
This Section is where the problems are with the wording of this new Article 42 A. Firstly the best interests of the child are only required to be the paramount consideration where the proceedings have been brought by the State. What about proceedings brought against the State? Or between other parties? Secondly what happened to Section 2 (iii) of Article 42 as was proposed by the Joint Oireachtas Committee on Health and Children in February 2010 which spoke of ‘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’?
The right of a child to have their best interests as the paramount consideration in administrative proceedings affecting them is completely missing from the new Article 42 A which we are all due to vote on on 10th November next and this is, in my opinion, a significant shortfall.
The need for this right to be expressed in our Constitution has been plain for all to see for many years but was particularly well documented in A Children’s Rights Analysis of Investigations by Dr Ursula Kilkelly, Senior Lecturer, Faculty of Law, University College Cork which was commissioned by the Ombudsman for Children Emily Logan and published in April 2011.
This Analysis considered a variety of investigation statements undertaken by the Office of the Children’s Ombudsman from a children’s rights perspective and revealed that with few exceptions there was a lack of awareness about the impact of public administrative decision-making on the lives and rights of children and their families. The 10 investigation statements, chosen by the Office of the Ombudsman for Children for consideration were:
1. Failure to provide appropriate housing in the case of a child with a disability.
2. Provision of school transport for 23 children.
3. The refusal by a County Council to grant tenancy of a local authority dwelling.
4. The delay in a suitable placement being made available to a young person by the
5. Eligibility for Concessionary School Transport of a Child with Special Needs.
6. Inability by a child with autism to avail of home tuition under the July provision
scheme for 2003-2005.
7. The Administrative Actions of the Department of Education and Science with
respect to an application for a home tuition grant made by a child with Autism.
8. Investigation into HSE provision for a mother and her baby, both in the care of
9. Appropriate care for a young person who died in HSE care.
10. Provision of supports and therapeutic services and care for a child with special needs in foster care.
In her foreward to the publication Emily Logan stated that decision-making that affected children directly and sometimes indirectly was not informed by its impact on the children concerned; nor was it informed by children’s rights principles. She went on to say that the parameters of the child’s best interests and the child’s right to be heard were not used to guide administrative actions or decision-making to any great extent if at all. The procedures, and in some cases those applying them, were not aware of or sensitive to the needs or rights of children or their families.
The Ombudsman wrote that ‘Other considerations appeared to dominate over ensuring that the rights and interests of individual children are met. In this respect, the individual children appeared to be largely invisible in the decision-making process. There are examples of an excessively bureaucratic approach to public decision-making, and often a disconnect between administrative decision-makers and those affected by those decisions’.
Hard to understand why the need to have the best interests of children as the paramount consideration in administrative proceedings which affect them was not included in this proposed new Article 42 A. The UNCRC also references this matter in at least two Articles.
Article 3 states that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Article 12 states that:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
I really do hope that a way is found over the next few weeks to facilitate a change to the proposed wording to reflect the need to have the best interests of children as the paramount consideration in administrative proceedings which affect them included.
I do support everything in this proposed wording of a new Article 42 A in the Constitution, titled Children, and I will certainly be voting YES, but there is room for improvement.
23 September 2012