From being “seen and not heard” to being ssshhhhh-ed and pacified?
The recent publication of the Independent Child Death Review Group highlighting the deaths of 196 children in care or known to the HSE during the period of 1st January 2000 to 30th April 2010 has once again brought the issue of children’s rights into public discourse. This comes in the wake of the publication of the much anticipated Draft Constitutional Amendments relating to children’s rights (published in 2010) and the Children First Bill 2012 and thus raises the question as to whether the proposed and much overdue child law reform adequately tackles the inadequacies of our current child laws.
It is widely acknowledged that Ireland is a late-comer to child law as a modern field of law and legal practice. Contrary to International standards set out in the United Nations Convention on the Rights of the Child (CRC), the Irish Legal System and Constitution could not be described as focused on meeting the needs and upholding the rights of children as individual rights holders. Although the Guardianship of Infants Act 1964 provides that the child’s welfare be the “first and paramount consideration”, the Irish Constitution arguably relegates the child to little more than a commodity of the family unit which remains premised upon the marital union. Furthermore, the child’s “welfare” is deemed to be best met within the marital family unit, in spite of 1 in 3 Irish children now being born outside of marriage and in spite of the 2006 Supreme Court decision in the “Baby Ann” case. This case arose out of an unmarried mother putting her child up for adoption in 2004. In the words of Mrs Justice McGuinness the decision was given with “reluctance and regret” as it resulted in “Baby Ann” being returned to her birth parents (who married on legal advice in 2005), in spite of having spent almost the first two years of her life with her adoptive parents. Mrs Justice McGuiness commented that her hands were effectively “tied by the Constitution” and that the decision was more reflective of the legal situation than of the child’s “best interests.” The decision fails to comply with the CRC provision [Article 3] which requires that the child’s “best interests” be the “primary consideration” in all matters affecting them. Contrary to the “Baby Ann” decision and indeed the 1937 Constitution, the CRC explicitly provides that the rights of the child are not subordinate to those of the family.
Referring again to the Guardianship of Infants Act 1964, the position remains that only the child’s mother has an automatic right to guardianship [section 6(4)], even in cases where the father’s name is on the birth certificate. The Act provides that fathers are only granted “joint-guardianship” where the mother agrees and should such agreement not be forthcoming, an application to the District Court is necessary for any father seeking joint-guardianship. While the 2007 decision of Mr Justice McKechnie was welcomed as a landmark case on the rights of unmarried fathers and indicates the existence of a judiciary that is both progressive and socially aware, the decision should be received with cautious enthusiasm considering that much of the judgment was specific to the facts of the case relating in particular to the previous marital-like relationship between the parents in question. Although from an international perspective the 2007 decision is deemed to be a step towards meeting the CRC [Article 9(3)] requirement that children separated from one parent, have a right to maintain regular relations and direct contact with that parent, except where contrary to the child’s best interests, it remains to be seen whether this case will set legal precedent. Rather than waiting for another “Baby Ann” case, where the testing of such legal principles could undoubtedly have tragic consequences, children’s rights advocates are calling on the Government to eradicate this possibility, not only through legislation, but through complete Constitutional reform.
The CRC remains the most comprehensive human rights instrument dealing exclusively with the rights of the child. Most notably and in addition to the above the CRC defines the child as any person below 18, expressly grants children the right to have their views given due weight in accordance with their age and understanding in all decisions made about them, grants them the right to representation in legal proceedings and affords them a right to privacy. Ratification of the CRC by the Irish government in 1992 indicated our commitment to uphold and guarantee the children’s rights enshrined within the text of the Convention. Regardless of this and although the main child protection legislation in Ireland post-dates ratification, Irish child laws have been criticised by bodies such as the UN Committee on the Rights of the Child, for failing to meet the minimum standards of children’s rights set out in the Convention. This above criticism has been too-oft voiced, in respect of Ireland’s comparatively low age of criminal responsibility.
Under the Criminal Justice Act 2006, the age of criminal responsibility was raised from 7 years to 12 years of age. While the CRC does not suggest a minimum age of criminal responsibility, we remain one of the lowest within mainland Europe. Although children below 12 cannot be charged with an offence and criminal proceedings cannot proceed against a child under 14 without the consent of the DPP, an exception is provided for under the 2006 Act which permits children of 10 or 11 to be charged with murder, manslaughter, rape or aggravated sexual assault, which will cast the reader’s mind back to the tragic case of Jamie Bolger in the UK jurisdiction. This is none other than contradictory to the remaining legislation affecting Irish children which is rooted in a paternalistic, welfare model which is at best outdated and at worst archaic from a modern child law perspective. The vast majority of this legislation and indeed our Constitution is couched in the language of the child’s “welfare” rather than “best interests” and little consideration in law is given to the child’s autonomy, capacity and right to be heard. Children are effectively invisible from areas of law which directly impact huge aspects of their life, both present and future. Where express provisions are made for children’s representation in legal proceedings, it is subject to limitations and caveats which defer to what is “practicable” and “appropriate” in the circumstances.
Contradictions within Irish child law are frequent and are evident not only in family and criminal law, but also in our laws on education. For example the Education Act 1998 focuses primarily on teachers, parents and patrons as being fundamental to education, yet does not directly address the rights or interests of pupils. Although the school leaving age is 16 years, children cannot appeal an Exclusion until they reach 18. Similarly and although children are often the subject matter of legal proceedings, they can only be granted a Guardian ad Litem where it is deemed to be in the interests of both justice and the child and often children’s access to the courts is hindered by the Rules of the Superior Courts which allow children to litigate via a next friend only, regardless of being 17 or 7 years of age. As previously mentioned children as young as 10 or 11 can be held criminally responsible for the most heinous of crimes and although entitled to a legal representative, relatively few legal professionals actually represent children and there is no specially trained panel of child lawyers in Ireland. The Irish legal system has not been sufficiently tailored to meet the needs of children and the possibility of alternative dispute resolution for children’s issues is too often sidelined by a civil and criminal process which does not enable children and young people to assert the participation rights afforded to them under International Law.
While the publication of the Independent Child Death Review Group may cause the Legislator to knee-jerk to the typically Irish solution of resolving merely the problems outlined therein, International Instruments such as the CRC, the Beijing Rules and the Council of Europe’s Guidelines on Child-friendly Justice emphasise the need to take children’s needs and rights into account in all areas of family, immigration, health, education and criminal law. While the Draft Constitutional Amendments are commendable and would bring us out of De Valera’s 1937 Ireland where children were seen and not heard, the public should not accept and be simply gracious for any reform, but should insist upon a comprehensive and penetrative reform and modernisation of all aspects deficient in current Irish Child Law.
Article by Marie Hynes, Trainee Solicitor
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19 July 2012