Children's amendment a modest but good proposal
She also referred to the Supreme Court case in 2001 in which the State successfully appealed a High Court decision requiring it to provide education for her son, Jamie, who has autism, beyond the age of 18.
Sinnott argued that whereas the Constitution provided adequate protection for children with special needs, the State built its case on the provisions of the UN convention, which were now to be confirmed by the proposed amendment.
However, this is not reflected in the actual decision of the Supreme Court, which came to its decision firmly on the basis of the education provisions of the Constitution.
The background to the introduction of the amendment is sadly all too well known: decades of societal and legal ignorance or wilful blindness to those in industrial schools and laundries, coupled with a depressing amount of child physical and sexual abuse. No amount of laws, constitutional or otherwise, can prevent all forms of neglect or abuse of children at the hands of those who should be caring for them, or from predatory strangers. Even if funding was increased to State and administrative agencies whose role is to protect children, this would not offer a cast-iron protection of children against all forms of abuse.
It would be wise that those advocating a Yes vote do not overstate the potential impact of this amendment. It will not, of itself, deal with significant issues relating to the funding and administration of child and family welfare services offered by the State.
It does not provide for the best interests of the child or for the views of the child to be considered, in matters outside general child welfare/protection disputes. In areas of social welfare, housing, transport, educational provision and so on, there will be no obligation upon State/administrative agencies to have regard to the best interests of the child or the voice of the child.
Indeed, if one looks back at the key complaints that children or their parents have made to the children’s ombudsman, many relate to public authorities not taking into consideration the rights and/or voice of the child in disputes that affect the family.
So, while this amendment should be passed, it is not the panacea to cure all ills. Given the recession, the task of the Oireachtas, in terms of resources for child and family services is proving ever more difficult.
While the amendment will address particular issues relating to children, it does not reflect a genuine understanding of the voice, the rights, and the inherent dignity of all children. For now, these issues must be addressed by the political system. So while I will be voting Yes, I also regret that a more transformative and less cautious amendment will not be before us on November 10th.
Dr Liam Thornton is a lecturer in law and director of clinical legal education at the UCD school of law and an author at the group academic blog Human Rights in Ireland. With Prof Aoife Nolan (Nottingham), he is organising a blog carnival on the children’s amendment at humanrights.ie