Amendment can advance children's position in State
OPINION:IT IS worth reminding ourselves at this time of the contemporary and positive news in relation to children in Ireland. As many jurisdictions are consumed by the global recession and Ireland faces its own challenges, we have cross-party political consensus on enhancing the position of children in our Constitution, with a proposed wording imminent.
The core principles of prioritising the best interests of children and respecting their views – central to this debate – are familiar to members of the Oireachtas and those working with and on behalf of children; indeed, the question of how to protect the welfare of children in Irish statute law is decades old.
As Ombudsman for Children I have a mandate, as part of the State’s infrastructure, to promote the rights and welfare of children living in Ireland.
Underpinning this is my statutory obligation to have regard to the best interests of the child and to respect the views of the child when investigating whether the actions of public bodies have adversely affected him or her.
After eight years of investigating the actions of civil and public administration, it has become abundantly clear to me that these core principles are not being respected systematically in Ireland. My annual reports to the Houses of the Oireachtas have highlighted this in areas across health, education and justice, ranging from school admissions to the treatment of children in care, to situations where children are deprived of their liberty.
Much of the debate about the Constitution is centred – quite rightly – on the impact that any proposed amendment could have on judicial proceedings. An important and often overlooked aspect of the debate, arguably much more likely to affect larger numbers of children and families, is decision-making by civil and public administration.
I believe that an amendment to the Constitution has the potential to have a significant effect on decision-making by public bodies and, consequently, have a positive impact on children’s lives. In making recommendations for change, dating back to January 2005, I have consistently sought the inclusion of the following principles in the Constitution.
I have recommended that any proposal should address the existing differential treatment of children of marital and non-marital families.
An issue that has been part of the debate about amending the Constitution from the start is the need to address the situation of children in long-term foster care who cannot be adopted by their foster families because their birth parents are married.
The aim of amending the Constitution to address this issue is to ensure that if a child cannot, for whatever reason, be returned to his/her birth family, the fact that the child’s parents are married will not be an obstacle to him/her getting a second chance with a new family.
I have sought to have the Constitution include the principle that in all actions concerning children – whether undertaken by judicial or administrative bodies – the best interests of the child shall be a primary consideration.
Time and again I have seen situations in which public bodies failed to consider the impact of their decisions on children, where they have neglected to take into account all the relevant considerations affecting the child in question, where they have not asked the right questions, with predictably negative consequences for children and families. Respecting the “best interests” principle is about making sure they ask the right questions at the right time.