Amendment can advance children's position in State
IT IS worth reminding ourselves at this time of the contemporary and positive news in relation to children in Ireland. As many jurisdictions are consumed by the global recession and Ireland faces its own challenges, we have cross-party political consensus on enhancing the position of children in our Constitution, with a proposed wording imminent.
The core principles of prioritising the best interests of children and respecting their views – central to this debate – are familiar to members of the Oireachtas and those working with and on behalf of children; indeed, the question of how to protect the welfare of children in Irish statute law is decades old.
As Ombudsman for Children I have a mandate, as part of the State’s infrastructure, to promote the rights and welfare of children living in Ireland.
Underpinning this is my statutory obligation to have regard to the best interests of the child and to respect the views of the child when investigating whether the actions of public bodies have adversely affected him or her.
After eight years of investigating the actions of civil and public administration, it has become abundantly clear to me that these core principles are not being respected systematically in Ireland. My annual reports to the Houses of the Oireachtas have highlighted this in areas across health, education and justice, ranging from school admissions to the treatment of children in care, to situations where children are deprived of their liberty.
Much of the debate about the Constitution is centred – quite rightly – on the impact that any proposed amendment could have on judicial proceedings. An important and often overlooked aspect of the debate, arguably much more likely to affect larger numbers of children and families, is decision-making by civil and public administration.
I believe that an amendment to the Constitution has the potential to have a significant effect on decision-making by public bodies and, consequently, have a positive impact on children’s lives. In making recommendations for change, dating back to January 2005, I have consistently sought the inclusion of the following principles in the Constitution.
I have recommended that any proposal should address the existing differential treatment of children of marital and non-marital families.
An issue that has been part of the debate about amending the Constitution from the start is the need to address the situation of children in long-term foster care who cannot be adopted by their foster families because their birth parents are married.
The aim of amending the Constitution to address this issue is to ensure that if a child cannot, for whatever reason, be returned to his/her birth family, the fact that the child’s parents are married will not be an obstacle to him/her getting a second chance with a new family.
I have sought to have the Constitution include the principle that in all actions concerning children – whether undertaken by judicial or administrative bodies – the best interests of the child shall be a primary consideration.
Time and again I have seen situations in which public bodies failed to consider the impact of their decisions on children, where they have neglected to take into account all the relevant considerations affecting the child in question, where they have not asked the right questions, with predictably negative consequences for children and families. Respecting the “best interests” principle is about making sure they ask the right questions at the right time.
I also recommended the inclusion of an obligation to respect the views of the child, in accordance with their age and maturity. Children vary so greatly in their capacity that we need to hear what they have to say first before making the assumption that they are incapable of expressing a view.
This is not about a radical form of autonomy for children, nor is it about putting them into a difficult position by having to express their view if they would rather not do so. What the principle requires is that we respect the dignity of children by affording them an opportunity to express their views, without placing responsibilities on them inappropriately.
A child’s views are not always systematically in line with their best interests. In a case examined by my office some years ago, concerns were brought to my office’s attention by a young person in care who expressed the view that he was unhappy with the placement provided for him.
After examining the complaint, my office found that the public body demonstrated that its actions were sound and that the professionals had acted in the child’s best interests by finding a placement that could provide for a vital therapeutic intervention to address his complex behavioural needs.
This did not invalidate the young person’s view, nor did it diminish the importance of giving him the opportunity to express it.
A final provision that I have recommended for inclusion in the Constitution is that there should be a duty on the State to support families in a proportionate manner. This reflects the fact that in most cases examined by my office, it was a lack of action on the part of the State rather than excessive action that has proven problematic.
I have never been a proponent of an over-interventionist State and would rather see the State offer a family support proportionate to need.
My office has never examined a case involving a conflict between parents’ rights and children’s rights. And if there is one thing that has become confirmed by the eight years of this office’s operation, it is that parents are by far the strongest and most tenacious advocates for children.
Building a new culture of respect for children in Ireland will take time and effort. While amending the Constitution alone cannot achieve that goal, it can certainly alter the legal and policy landscape such that the cultural change we need can take place.
Our laws, policy and practice include examples of good practice; they also include striking examples of failing to observe children’s rights principles. In light of this inconsistency, it would be a powerful and strong affirmation to enshrine those principles in the most important legal document in the land.
Holding a referendum on children’s rights provides Ireland with the chance to be a leader on children’s rights globally. I hope that we make the best of this opportunity.
13 September 2012