Correcting mistakes of the past

The absence of special protection for the rights of children in the Constitution has been detrimental for many of the most vulnerable, writes Dr Aisling Parkes

IN RECENT times, successive governments have made repeated commitments to holding a children’s rights referendum.

This would allow the people of Ireland to decide whether or not we should protect the rights of the largest vulnerable group of people in the State by such a fundamental source of law.

It is anticipated that this commitment will finally come to fruition this coming autumn. What does it all actually mean however? Why do we need children’s rights to be specifically reflected in such an important source of law as the Constitution and why now?

Following a torrent of reports documenting the consistent and systematic abuse of children such as Ryan, Cloyne, Murphy and Ferns, the lack of protection for children’s rights has received unrivalled public attention. Indeed, each of these reports highlighted the lack of visibility for children in the legal system in times past.

In Feb 2010, a Joint Oireachtas Committee on the Constitutional Amendment for Children issued a report — Proposal for a Constitutional Amendment to Strengthen Children’s Rights.

As part of the process, the committee sought submissions from interested bodies and the public on their views on the issue. They had the opportunity to hear the views of a number of experts and bodies who specialise in areas of child protection, criminal law, psychology, children’s rights, child welfare, and other fields of direct relevance to the matters considered by the committee.

As a result of these discussions, the committee issued a proposed constitutional wording which included, amongst other things, two fundamental principles — the best interests principle and the voice of the child. What do these principles mean in reality however?

At present, the Constitution gives a special elevated status to the family based on marriage under Articles 41 and 42. Indeed, it is presumed that the best interests of marital children are served in the family by their parents.

However, we know from a litany of reports and cases such as the Roscommon case in recent years, that this unfortunately is not always the case. Decisions are made in a family environment which are not necessarily in the best interests of the children concerned and indeed, can even sometimes expose these children to situations of risk.

Furthermore, it is well accepted that there is a constitutional imbalance weighed heavily in favour of the rights of parents, which sometimes operates to the detriment of the interests of children. While the current position of parents under the Constitution would remain untouched, the proposed amendment would mean that the best interests of children would be viewed separately from the interests of parents on a case by case basis.

The voice of the child, or the right of the child to express views, is seen as a more controversial right. Currently this right does not exist in the Constitution. Unfortunately, there are some misconceptions concerning what the voice of the child actually means.

Does it mean that children will have a right to decide what time to go to bed at or, worse, sue their parents for not letting them make decisions concerning their lives? The simple answer to this is no.

A consideration of the views of the child means simply that they should be given the opportunity to have an input into decisions being made about their lives. It is not about giving the child the right to make the decision. Allowing children to have an input into matters affecting their lives, will not only allow for more informed decision-making but it will unmask cases of abuse before it’s too late.

Indeed, the absence of the voice of the child in matters concerning them has been proven time and time again to contribute to the continuation of situations of child abuse in the past where children were seen and not heard.

Some would argue that this is a difficult issue to address. However, there is no doubt that the absence of a special protection for children in the Constitution has resulted in detrimental consequences for children living in Ireland for generations.

In spite of the fact that we have a litany of reports over the past decade documenting what can happen where there is a failure to adequately protect children’s rights in the Constitution, do we really want to be responsible for exposing future generations of children to the same abuses of the past?

* Dr Aisling Parkes is a lecturer in law at University College Cork.