It is apparently all our own fault that children are now going to be torn apart in court during cross-examination. In galloping the Criminal Law (Sexual Offences) Act, 2006 through the Oireachtas, the tone of the Minister for Justice was decidedly petulant, writes Mary Raftery
What has transpired - namely the exposure of already traumatised children to the further abuse of cross-examination - is not what the public wanted. That this should be the upshot of a frenzied few weeks in the Dáil and at the courts is a dismal reflection on both.
Despite the self-serving pronouncements of Michael McDowell, it is not necessary to have children brutalised by the courts.
It is generally a matter for each judge to ensure that the cross-examination of anyone, and particularly of vulnerable children, should not exceed reasonable limits. The question obviously arises as to how those limits should be defined. In this area, judges at present have little to guide them.
The Constitution is clear about the right of an accused person to a fair trial (including the right to examine his accuser). However, it is essentially silent on the rights of children. Consequently, in adjudicating on the balance of rights in this area, the absence of constitutional protection for the welfare of the child will invariably mean that the rights of the adult (in this case, a person accused of child rape) will take clear precedence.
What is required as a matter of urgency is that this balance should be redressed. To do so requires the introduction of an amendment to the Constitution enshrining the paramount importance of children's welfare.
This view is expressed strongly by constitutional lawyer Geoffrey Shannon, who has produced a number of reports on the area. Just yesterday, he addressed a session of the UN Committee on the Rights of the Child. This committee is currently examining how Ireland is facing up to its responsibilities on children's rights. It also heard a submission from Children's Ombudsman Emily Logan.
"What happened last week on statutory rape makes the argument for an urgent constitutional amendment on child protection even more compelling," Geoffrey Shannon told me yesterday. "If you allow rigorous cross-examination of children, it means that they will be re-victimised. The current Supreme Court has veered away from enumerating the rights of the child, holding that this is the responsibility of government. In this context, the only way forward is through proper constitutional protection for children."
Geoffrey Shannon acknowledges some advances have been made, particularly by Minister of State for Children Brian Lenihan. However, on the constitutional front, it does not appear anyone in the Dáil is all that interested.
The issue first came to prominence 13 years ago in the report on the Kilkenny incest case by Catherine McGuinness, now a Supreme Court judge. She recommended the Constitution be amended to include "a specific and overt declaration of the rights of born children".
This was followed in 1996 by the report of the government-appointed Constitution Review Group. In probably the most detailed consideration of the issue either before or since, it pointed directly to the lack of constitutional protection for children.
It recommended that the Constitution be amended, and suggested a specific wording, taken from the UN Convention on the Rights of the Child: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of paramount consideration." A decade (and several more reports) later, nothing has happened. Even worse, the All-Party Oireachtas Committee on the Constitution has now substantially rowed back on the recommendations made 10 years previously.
Reporting last January, this committee agreed that a constitutional amendment was required but suggested a different and considerably weaker wording: "In all cases where the welfare of the child so requires, regard shall be had to the best interests of that child." There is a yawning legal chasm between a provision which makes the best interests of the child of "paramount consideration", and a vague statement that "regard shall be had" to them.
Geoffrey Shannon was horrified by this change in attitude by the Oireachtas. It is a matter which he raised yesterday at the UN hearings. "I would despair if this is the collected wisdom of all the parties in the Dáil," he told me. "It's deeply disappointing that they should be going backwards, particularly after all the tribunals and inquiries we have had into child abuse. How many more will we need before we finally put in place proper constitutional protection for children?"
Perhaps all of those concerned and committed citizens who rang radio programmes and gathered to protest last week might turn their attention in a concrete way to campaign for a referendum to amend the Constitution.