Yes could be a real game-changer
On Saturday voters will decide whether children’s rights are to be inserted into the Constitution. After a lacklustre campaign – characterised by rhetoric from the Yes campaign and misinformation from the No side – the people will have a single vote on four key issues.
We will vote on a statement recognising the rights of the child, a change to the threshold for State intervention in the family where the welfare of the child is affected, a duty to pass laws to make adoption available to all children, and another to make the best interests of the child paramount and the child’s views heard in certain judicial proceedings.
Much of the debate has focused on the threshold for State intervention and, to a lesser extent, the adoption issue. There is little to quibble with here: these are sensible if modest changes that have the potential to improve some children’s lives.
Somewhat more ambitious claims have been made that the amendment will, if supported, ensure that children are at the heart of judicial decision-making and that their voices will be heard in all matters that affect them. Rather less attention has been given to the fact that the amendment merely requires the Oireachtas to legislate to make these things happen. In my view this has either already happened or could be achieved without constitutional change.
But that is not to say that the change, if approved, would be worthless. In other countries constitutional protection of children’s rights has been linked to the creation of a children’s rights culture that can have positive effects on the way services are provided to children and the extent to which children enjoy their rights in practice.
It can lead to legislation that advances the rights of children in the areas of health, education, child protection, youth justice and immigration, for example. By investing in education and training, decision-making across children’s lives can be more effectively informed by regard for their rights and their views.
Holding the State to account
Skilled advocates and lawyers can use the Constitution to ensure the legal system works for children by holding the State to account and providing an effective remedy to children whose rights are ignored or violated. In my view there is a single provision in the proposed amendment that holds genuine promise in this respect. In article 42A.1 the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate these rights.
This clause has the potential to fundamentally change the relationship between the State and children, by stating in constitutional language that children are rights-holders and the State is duty bound to protect those rights.
Acknowledging and affirming the rights of children states the obvious – children have rights as human beings. The game-changer is that the Constitution will, if the amendment is passed, state that upholding those rights is the State’s responsibility, rather than something that falls within the private confines of the family.
Thus, where other parts of the proposed wording are disappointing in that they are limited to judicial proceedings, and to the family law setting, article 42A.1 offers the potential of constitutional protection for a wider array of children’s rights. It could, if the courts so decide, explicitly recognise the child’s right to health, to identity, to protection from all forms of exploitation, to play and to know and be cared for by one’s parents.
The fact that article 42A.1 uses the language of article 40.3.1 of the Constitution – the personal rights provision – should keep lawyers and judges on familiar ground. It will permit advocates to argue for an expansive approach, drawing on well established UN and European law and the examples of other jurisdictions. It will enable the courts to develop children’s rights law for the Irish legal context and, through its application, to protect those rights from attack from any source.
I have encountered people disappointed by the lack of ambition in this amendment and by the failure to take the opportunity to place children’s rights on a solid constitutional footing, thereby actively challenging the near absolute authority of the family which can, in extreme cases, be so damaging for children.
As an international children’s rights scholar, aware of developments in other countries, I share this disappointment. But I am buoyed by the fact that article 42A.1 represents genuine promise in its unequivocal statement that children are rights-holders and the State is the ultimate duty-bearer.
In my view, this part of the proposal has the potential to reshape Ireland’s relationship with children: to ensure that the State is held to account for its treatment of children both in terms of what it does and what it does not do.
This alone gives me cause to hope that with a continued emphasis on reforming how the law treats children, Ireland can, in time, be proud of its record on children’s rights on the international stage.
Prof Ursula Kilkelly is dean of the faculty of law at University College Cork, director of UCC’s child law clinic and author of Children’s Rights in Ireland: Law, Policy and Practice