Five years ago, on November 10, 2012, the Irish electorate voted to include the 31st Amendment to the Irish Constitution. This amendment was ground-breaking because, for the first time, Irish society clearly had a chance to vote directly that children should have rights. Up to that point, the highest law of the land effectively made children second-class citizens. Adults and, more specifically, marital families enjoyed greater rights.
Historically, as a country we didn’t have a great track record on how we treat children. The Ryan Report, which investigated abuse in industrial schools from the 1930s onwards, painfully described how thousands of children were denied their most basic rights through neglect as well as both physical and sexual abuse. The findings showed how we ignored children and didn’t believe them when they told us they were being abused. The impact of that abuse followed them for decades.
Symbolically, we drew a line under these dark, dark days when the people of Ireland said ‘Yes’ to children on this day in 2012. In laying this important foundation stone, we pledged as a society to put children first. We promised to do our best for all children in Ireland and we promised to listen to them.
It had taken us a very long time as a country to get to that point. To give some context, when the Children’s Rights Alliance was founded in 1995, making the Irish Constitution a children’s constitution was actually one of our founding goals.
This was just after the publication of the Kilkenny Incest Investigation, chaired by Judge Catherine McGuinness. That report sent shockwaves across the country — a truly horrific case where a girl experienced 15 years of physical and sexual abuse at the hands of her father in her own home. And, if that wasn’t shocking enough, the investigation found that the family was well-known to child protection services. How could Ireland let something like this happen to a child? Or, more pertinently, how could we prevent it happening again or intervene earlier?
It was Judge McGuinness who noted at that time that our Constitution placed so much emphasis on the rights of the family that it “may have consciously or unconsciously interpreted as giving a high value to the rights of the parents over the rights of children”. Many felt the child had been left to wallow in abuse because the married family was considered sacrosanct and should not be tampered with. It was Judge McGuinness who called for a specific declaration of the rights of children.
But, unfortunately, it took more than 17 official reports documenting how we failed children for things to change. The Baby Ann case was also critical. Here, a two-year-old adopted child was returned to her biological parents after they wed despite the risk to her social and emotional development because of the constitutional preference for the married family. The ensuing public debate meant we finally reached a political tipping point where a referendum was possible.
Fast-forward to 2012, finally a referendum on children came to pass. Chaired by Judge Catherine McGuinness, the three big national children’s charities — the Children’s Rights Alliance, Barnardos, and the ISPCC — worked together on a civil society campaign to convince the Irish public to vote Yes in that referendum.
Some felt that the brand new Article 42A on ‘Children’ was limited in scope because it left the definition of the family intact. While this is true, the amendment did seek to provide balance to the child being protected by the State versus making sure that interference was proportionate.
Getting this balance right is, of course, the trick here and is not always easy. But this change would give the State a bit more clout to intervene in a case like Kilkenny and a child would be spared hellish abuse.
The amendment did other important things for children too. It placed a duty on the State to introduce legislation to listen to children’s voices in childcare and family law — life-changing legal cases for children such as foster care, divorce, or custody.
It also lifted the legal barriers so that children born into marriage who were in long-term foster care could be adopted. This would impact on hundreds of children and finally allow them to live in security with their loving families.
These changes were passed on November 10, 2012. Our campaign won and this was a landmark day for the children of Ireland.
To mark the five-year anniversary, this week we held a major national conference. We wanted to take stock and ask have children benefitted from the amendment.
Overall, there’s been lots of infrastructural change since 2012. A new national policy for children called Better Outcomes, Brighter Futures has been adopted. The Government set up a new child and family agency, Tusla, and launched a new Child Participation Strategy. Though it is still a work in progress, there are better systems to protect children and ensure that they can have their say.
In the legal sphere, how have judges in the courts interpreted the change? Are we seeing new laws reflecting this change for children? Are we better at listening to children and taking their views into account in the courts?
The legal system has a vital role to play in making constitutional change real. We can see in the courts that the amendment is beginning to be cited in cases. The Oireachtas has introduced legislation to give effect to children’s new constitutional rights. This includes new draft legislation to allow children to have their opinions heard through a guardian ad litem, a person who provides a child with an independent voice in court.
Constitutional change for children has been a good thing in many ways but it has not yet achieved everything we had hoped for. To be fair, legal change is incremental and does not happen overnight but there are still big gaps.
Are children able to express their views equally in child care proceedings or in family law cases such as custody, guardianship and access? They are not and we need to do more to listen to children’s views when important decisions are made about their lives.
The legal system is a very intimidating place for anyone and particularly so for children. Yet how many lawyers are trained to take instructions from children? Are judges sufficiently supported to have children participate in court proceedings? Courts need to be far more child-friendly.
Many families across Ireland rely on getting access to legal advice and remedies in very serious family law situations. We need to see this legal aid extended so more children and families can take cases when they need to. The Legal Aid Board provides an important service to families and they must be supported so they can continue their good work.
What else should we be doing to help bed down a society and a legal order where children’s rights are central? How do we make sure that the promise to fulfil children’s rights infiltrates down to every single child? How can the Constitution help children who experience poverty, social exclusion and homelessness? Do we need other legal reform to address these issues?
Most of the answers here are not rocket science. Meaningful change must be supported by meaningful resources in a recovering economy. The next five years will show if we actually meant it when we voted Yes.
- Tanya Ward is chief executive of the Children’s Rights Alliance