State under obligation since 1992 on rights amendment


LEGAL OPINION:What is also clearly lacking is an obligation on the State to keep the rights of children in mind when it is drafting its laws and policies

IN RECENT WEEKS, much debate has centred on why we should or should not vote for the proposed constitutional amendment on children’s rights on November 10th next. While many have come out in support of the proposed wording, others have criticised it as going too far or not going far enough. Much of the attention has been dedicated to the pros and cons of integrating a specific provision dedicated to the rights of children into one of our primary sources of law. However, there has been little or no mention of the fact that the Irish State is actually under a legally binding obligation to incorporate children’s rights into domestic law dating back as far as 1992.

The UN Convention on the Rights of the Child 1989 (CRC) is the most highly ratified of the UN international human rights treaties with 193 states parties, reflecting the importance placed by countries all over the world on children. Only two countries have failed to ratify this agreement to date – Somalia, because it has no Government in place to ratify, and the United States.

In 1992, Ireland ratified this international agreement, indicating its intention to wholly incorporate the provisions of this agreement into its domestic law. As a result, the State has been under a legally binding obligation to incorporate this international agreement into its domestic law including through the Irish Constitution.

However, 20 years on we are still toying with the idea of having a specific provision dedicated to the most vulnerable group in society in our constitutional framework. As recently as 2006, Ireland presented its second report to the monitoring body for the implementation of the Convention in Geneva – the UN Committee on the Rights of the Child. Following its consideration of the Irish report on implementation, the committee strongly encouraged Ireland to incorporate the CRC into its domestic law.

The UN Convention on the Rights of the Child 1989, which marked a global watershed in children’s rights, sets out minimum benchmark standards according to which all children should be treated all over the world, including in Ireland.

At the heart of the convention lie four general guiding principles – the principle of non-discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right of the child to be heard in all matters affecting him or her, with due weight being afforded their views in accordance with age and maturity (Article 12).

Each of these principles or aspects of them is apparent in the new proposed wording. For example, the principle of non-discrimination as well as the right to life, survival and development (the latter being natural rights) is reflected in the State recognising and affirming the natural and imprescriptible rights of all children. The best interests principle appears a couple of times in the proposed amendment in the context of adoption and in relation to guardianship, custody and access.

Interestingly, in 2006 the UN committee recommended that Ireland “strengthen its efforts to ensure, including through constitutional provisions, that children have the right to express their views in all matters affecting them and to have those views given due weight in particular in families, schools and other educational institutions, the health sector and in communities”.

It is unfortunate therefore that the wording in the proposed amendment limits the expression of views of children to judicial proceedings in cases concerning adoption, guardianship, custody and access, representing a much more restricted recognition of the voice of the child than what has been suggested at international level.

What is also clearly lacking is an obligation on the State to keep the rights of children in mind when it is drafting its laws and policies.

While it is clear that the wording is not perfect, what it does do is raise the profile of children’s rights, making children more visible at all levels of Irish society. As evidenced by a litany of reports documenting abuse and neglect of the nation’s children over the past couple of decades, the State has failed its children in the past. It is absolutely imperative that we as a society take stock of these reports and ensure that the State adheres to its international legal obligations from this point on.

Dr AISLING PARKESis lecturer in child and family law, University College Cork