Key to prioritising children is listening to them

Children’s referendum is a chance to start taking children’s views seriously in Ireland, including in our legal system, writes Aoife Daly

WE HAVE yet to prioritise children’s views in our legal system and the constitutional referendum should provide impetus to change our approach in this regard.

There have been a series of reports on issues relating to the rights and well-being of children — most recently the Shannon/Gibbons report on deaths of children in care or known to the care system — which make for grim reading. A key conclusion of every report was that children were not heard on matters which affected them more than anybody else, and that this contributed to poorer outcomes for children’s safety.

We have made some improvements. We have an Ombudsman for Children, and we have started to consult children generally on developments affecting them. However, unacceptable gaps persist when legal decisions of enormous importance are being made about children.

A minority of children have a guardian ad litem (an independent professional) appointed to represent their interests and views in care cases. It is not possible to tell exactly how many children have a guardian ad litem appointed to them, as the figures are not collated.

In the majority of cases the child is left unrepresented, while the State and parents will always have representation. In family law cases, for example, where separated parents are in disagreement about where a child will live, there are practically no means by which judges can hear children’s views even where they wish to.

The (presumably) upcoming referendum on children’s rights should provide impetus to set about effecting the drastic improvements required in this area. Enshrining explicitly the principle of the best interests of the child in the Constitution will be a positive step, however this principle on its own is paternalistic and is unlikely to bring about the requisite shift in emphasis towards recognising the need and obligation to hear children in matters affecting them.

An explicit reference to hearing children should be included in the wording of the proposed amendment.

There are a variety of reasons why we need to include this provision in the Constitution, not least because Ireland has ratified the UN Convention on the Rights of the Child which requires that children are heard in all matters affecting them, with “the views of the child being given due weight in accordance with the age and maturity of the child”.

We are stuck with antiquated ideas that children cannot be trusted to give adequate opinions, but practice elsewhere demonstrates that we are increasingly isolated in this regard.

These examples include a number of states who have enshrined the right to be heard in their constitutions. For example, the constitution of Finland was amended in 1995 to include a provision that “children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development”.

The joint committee on the constitutional amendment on children recommended wording in 2010 which included reference to “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 inclusion of a reference to hearing children is certainly a step in the right direction. However, it is all too easy to “hear” children and subsequently override their reasonable views solely on the basis of childhood, without demonstrating how the decision was reached or how much weight the child’s views were given.

In addition to the constitutional amendment, it will be necessary to improve the legislation to better establish and standardise when and how children should be heard. In England and Wales there exists a presumption in favour of appointing children as parties in care cases and this is one of the most important legislative changes we need to make in this area.

The Council of Europe recently drafted comprehensive guidelines on child-friendly justice and the EU has commissioned a large-scale project examining the extent to which children are heard in legal proceedings. It is the ideal time to improve the position of children’s voices in our legal system.

If we do not, Ireland will continue to lag behind international standards and may find itself subject to a complaint that it is in violation of the UN Convention on the Rights of the Child when it comes to hearing children in the matters which affect them most.

* Aoife Daly is adjunct lecturer in the international law on children’s rights at the Irish Centre for Human Rights at NUI Galway