Ombudsman: Amendment makes State more accountable

FOR Children’s Ombudsman Emily Logan, the children’s rights referendum has been quite a while in coming.

Her office was established in 2004 and her first submission to the Oireachtas in January of the following year stated that the Constitution needed to be strengthened, and that there was a clear need to enhance the rights of children. The following year then-Taoiseach Bertie Ahern announced that a referendum would be held and then… well, not a lot.

Now that referendum day looms, she says that while the proposed amendment could have been stronger — “of course it could have been stronger” — she feels the carefully drafted wording means it will improve the lot of children in a number of ways, some of which may not be apparent right now.

The dexterity of the wording means that in her view, there is a balance struck between article 41 of the Constitution, which relates to the family and “recognises the family as the natural and primary unit group of society”, and the new proposed amendment strengthening the rights of the child. She also believes that this balancing act may explain the relative lack of vehement opposition to the referendum. As she points out, one of the signatories to the UN Convention on the Rights of the Child, which is seen as the gold standard internationally, was the Holy See.

“When people say there may not be the opposition that people anticipated, a lot of that may be down to the fact that they have retained the primacy of the family, in line with the UN Convention of the Rights of the Child,” she says. “I think what has been missing is looking at the suggested amendment in its totality.

“Some of this is speculative,” she says, arguing that two judges can interpret instruments of laws in different ways. “At the end of the day it is up to the judges to see how they will interpret it.

“There is no need for families to be concerned,” she says, adding that instead it is only in “extreme, circumscribed” situations where the State will need to step in. “Instead it means that it is more child-focused.

“In the past the focus was only on why the parents failed. Now the focus has shifted to the effects on the child. It is about the process, how they get to their judicial conclusions, the process by which people make those decisions [in court]. It doesn’t change the power of the State.”

She believes the key aspect of any role played by the State in cases involving children is proportionality. Referring to the catalogue of reports that have shown how children have been abused, mistreated or neglected, she argues that often it was the case that there had been inaction, followed then by a disproportionate response.

In some of those cases, earlier intervention may have eased those problems which later became crises, and that intervention could take the more benign form of family supports, parenting classes, or life skills courses.

She would like the State to be more proactive about looking after the interests of children in those cases. “Proportionate means ‘no more than is necessary’. It can be as simple as parental support or workshops.”

A yes vote would also require changes to adoption legislation and altering the Adoption Bill 2010. As it currently stands, this would mean that children in long term foster care but whose parents are married would be able to be adopted, although she does not believe there will be a flood of such cases due to the changes being proposed.

For example, currently for a child wishing to be adopted in such circumstances parental failure would have to be proven for a period of 12 months, whereas under the proposed changes that period would be extended to three years. In addition, the child would have to be in a placement with their foster family for a continuous period of 18 months prior to the High Court application being made. That currently stands at 12 months. So on the one hand it appears to make these adoptions harder to achieve, but on the other hand, greater weight could be attached to the views of the child, and whereas previously there needed to be the prospect of continuing failure on the part of the parts until the child is 18, that age ceiling has now been removed.

All this is an accompaniment to the amendment being voted on this coming Saturday, and Emily Logan asserts that in reality, the real effects of the proposed change will only become clear if it is passed and it is used in court.

She says she would not have supported the proposed amendment had it not included provision for the views of the child to be heard, and for any action to consider the best interests of the child.

“It shifts the way you make a decision from the old idea of welfare, that adults know best, to ‘let’s ask this young person if they are capable of making a view, why don’t we ask them?’ It helps you as an adult to make a more informed decision if you hear that child’s view.”

She does not believe that the age at which a child is viewed as being capable of expressing a firm view should be set in stone. “In my view we should not be using chronological age as the determinant. We shouldn’t say because you’re seven you have a view, and because you’re four you don’t.” To illustrate her point she refers to the youngest client dealt with by her office, who was just four when she expressed firm views about the disability issues that were affecting her.

One argument expressed by some in the debate over the proposed amendment is that it will amount to very little in practical terms unless adequate resources are provided — particularly in childcare proceedings, such as a recent case in the Children’s Court in which Judge Ann Ryan said nothing would change after the referendum as she criticised the lack of places available for a teenage girl with drug issues. According to Logan: “You can say that about all legislation, all policies, every scheme. You could say that for everything.”

What of the argument that the State has shown itself in the past to be a bad parent? “There is nothing in this that alters the power of the State,” she says. “For me it reorders the Constitution to make for a more accountable State.” For her the child would ideally want to stay with their parents but in a small number of cases children will need to be in state care, which can mean different things — in Ireland the vast majority of the 6,000-plus children in care are in foster care, with around 500 in residential settings.

She also believes that in any legislation being drafted the possible impact of those changes on children will have to be considered, adding: “Our hope is we will be using these provisions every time they are drafting new laws we will be able to say ‘how does this affect children?’

“I personally would have liked, and I argued for, it to have included administrative proceedings but of course administrative proceedings cost.” She says she is also the only one of the 40 ombudsmen around the continent “where we are talking about extending children’s rights”.

“Almost every issue that we deal with are politically adjacent,” she says. “When I started eight years ago it was quite difficult to generate debate on children’s issues. The public psyche has changed considerably.”

After years of waiting, she now thinks that, if passed, this amendment will not be the culmination of those years, but instead a starting point.