Cherishing the nation’s children equally? No, it’s worse than ever

JUST what are the natural and imprescriptible rights of a child? According to our constitution, every Irish child has them. But nowhere in the Constitution is there any attempt to spell out what they are.

We know what the rights attached to property ownership are, for instance (and they have been extensively spelled out over the years), but we haven’t a clue what the rights attaching to childhood might be.

Maybe that’s the reason why no minister, no lawyer and no judge referred to the rights of children in all of last week’s horrible unfolding events.

And maybe that’s the reason why the events of last week confirmed once again why of all the intricate web of relationships that underpin a democracy, the most poisonous by far is the relationship between the practice of law and the practice of politics.

In the various debates that took place in Dáil Éireann last week, Enda Kenny, Pat Rabbitte and Brendan Howlin again and again emphasised the child protection issues that were at the heart of the public’s concern.

On the Government side only Brian Lenihan, Minister for Children, seemed to be listening and conscious of the need to keep the rights of children alive in the debate.

The rest of them, so proud so often of trumpeting their republicanism, were so intent on self-justification that none of the damage they were doing occurred to them at all.

I found myself wondering as I listened to the debate how could it be that they had so completely forgotten their military parade of a few short weeks ago.

Remember that? The 90th anniversary of the Proclamation of Independence?

Cherishing the children of the nation equally?

If they remembered it at all, how could they agree to publish and enact a law that will make things worse for children? And will do so well into the future. Not a stop-gap, not a necessary short-term measure, but a legal definition of how things are to be from now on.

So, what are the natural and imprescriptible rights of a child? I think most of us would agree that they must include the right to be free from sexual abuse or exploitation. In my own day-to-day work in Barnardos, we use a campaign slogan that says ‘every childhood lasts a lifetime’. There are a great many things in the life of a child that last forever, and most of them are good for children.

Nothing, though, leaves a deeper scar or causes more damage, than the sexual abuse of a child.

We can often admire the resilience of someone who has survived childhood abuse. Sometimes what we are really admiring is the quality of scar tissue that prevents the wound from constantly reopening.

But surely, if we sat down to write out even the most minimal set of rights for a child, we would include the right not to be bullied, terrorised or traumatised?

Yet our Government of republicans has just passed a law that, in the name of protecting children, will allow them to be virtually tortured in the courtrooms of the land.

In the words of the Minister for Justice himself, young girls “who are the victims of sexual predators will be challenged on their clothes, make-up and sobriety, on their presence at pubs, discos and other venues for adults, on what they said, how they appeared and acted… or boasted about their experience… on all these issues their truthfulness will be rigorously tested by skilled lawyers acting for perpetrators…”

It sounded a bit as if Michael McDowell was describing the ruthless skill and efficiency of jackals tearing dead animals apart. And remember, this is all going to happen to girls who have committed no crime, but have instead been the victims of a traumatising and life-changing crime themselves.

If they agree to be witnesses for the State in a case against their attacker, their reputation and their innocence will be torn apart by a “skilled lawyer”. They will be raped twice.

The message that is being sent out here is very clear and it will resonate. We have heard all sorts of talk over the past couple of weeks about the double jeopardy that convicted rapists would face if they were charged with some other offence after being released on foot of the Supreme Court judgment.

Double jeopardy, it seems, should only be applied to victims.

WOULD this outcome have been the result if the Government had taken a more proactive, measured approach? More to the point, would this outcome be possible if children had a constitutional right to be protected from this kind of trauma, or indeed any kind of rights at all?

Take the right of representation in court, for instance. Most of us assume that children have an automatic right to be represented when they are involved in legal proceedings. Not so.

A child has the right to be represented when he or she is a defendant in a criminal trial. In some other cases, where the interests of a child can be affected by the outcome, the child’s interests can be represented if the judge decides they should be (in Barnardos we do a lot of that work). But there is no provision in law for a child to be represented if she is a witness in a case of rape. Why not? Our adversarial legal system is built around a simple proposition. The truth is whatever the judge or jury believes.

Therefore the truth is whatever a defenceless witness can be forced to say. If a jury can be persuaded that the 14-year- old girl in the witness box led the silly old, innocent and harmless middle-aged man on, that will be the truth. And in their unending and highly virtuous search for the truth, that’s what the lawyers will try to get her to say.

And she will have no one to stand beside her in court, to shout enough when enough has been reached, to insist that her character, her reputation, her childhood all matter.

Why not? It cannot be beyond the ingenuity of the politicians to devise a system that will do justice while protecting children, that will establish truth without tearing innocent lives apart, that will punish the guilty without destroying childhood.

If it’s not beyond ingenuity, is it beyond their caring? There’s no doubt about the bottom line here. We need to change the constitution. We need a national conversation about what childhood means. We need to agree among ourselves, once and for all, that the interests of our children, all our children and every child in Ireland, must come first. And then we need to underpin that conversation in our fundamental law.

The last couple of weeks have seen a national awakening to the rights of children. Our Government has responded to that awakening by passing a law that will set the rights of children back. Only by finally spelling out the rights of children can we undo that damage. Over the last few weeks, inexplicable failures of communication, that we were once promised could never happen again, happened.

At least now let’s ensure, through this new national awareness and anger, that our children will never be betrayed again.