Why is the Government dragging it’s feet over a referendum on children’s rights?
The Taoiseach’s comments on the issue of the proposed children’s rights referendum, which may yet not take place at all, will come as no surprise to any person who has followed the issue since his predecessor, Bertie Ahern first agreed that the children of this state needed their rights enshrined in the constitution as far back as 1997. Recently, during Taoiseach’s Questions, the Fianna Fáil leader said:
“We may have a referendum. It is a matter that is receiving attention and is being dealt with on an inter-departmental basis…..it is subject to Cabinet and committee discussions but there are issues arising in regard to it that are being looked at, such as the possible unforeseen consequences of some of the wording and how that might result in legislative changes or have financial implications. That all has to be examined so we can come forward with wording that meets the requirements of the situation and can be properly implemented, if agreed to, and subsequently ratified by the people.”
Essentially what the Taoiseach is referring to here are the discussions between the Office of the Minister for Children and Youth Affairs, the Department of Justice and Law Reform and the Attorney General; the issue arising being that if the wording proposed in the Final Report of the Joint Oireachtas Committee was passed in a referendum, the Department of Justice are not sure if they would still be able to deport children.
This is because the wording may be interpreted to mean that all children in Ireland regardless of citizenship status had a right to remain in the state if deporting them would mean it would be detrimental to their welfare.
Presumably the Attorney General is now drafting a proposed Article that will say children have rights without the bother of actually having to give them rights, and will ensure the Department of Justice can still deport children.
The “financial implications” that the Taoiseach referred to are contained in the subsection in the proposed Article 42 put forward by the Committee (on page 111 of the Final Report).
2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i. the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii. the right of the child to an education;
iii. the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.
The fact is that vindicating the right of a child to protection, care and welfare, education, and possibly legal representation in the form of Guardian Ad Litems in legal proceedings, would all cost money. Money which the government does not want to pay. The government may not oppose allowing children to have rights, but it certainly does not want to have to pay for it.
The publication of the Joint Oireachtas Committee Report presented an important opportunity to strengthen children’s rights but which is going to be disregarded for something that is not even minimally acceptable in terms of upholding children’s rights. The Joint Committee’s proposed article was the minimum. Except for the usual suspects in the anti-choice lobby, who made submissions against giving children constitutional rights as individuals beyond those they are afforded as members of a family unit, nearly everybody is agreed that children’s rights need to be given constitutional standing. There are legal obstacles affecting the child protection system. Children of marital families remain in long-term foster care or residential care with no prospect of ever being adopted, and with the threat of being moved from their current residence always looming over them. If Constitutional change were to be enacted, the State could be given sufficient legal power to intervene on behalf of all children at risk regardless of their parents’ marital status and cases such as the Roscommon Incest Case would not be allowed to happen.
Furthermore, if children are given a constitutional right to protection of their welfare, it stands to reason that the Government and the Health Service Executive would be compelled to resource and train social workers to the highest standards. The obstacles affecting child protection are not only legal, very often they are resource based.
A right to sufficient care from the State would prevent the HSE from allowing children to enter the care system, and have only two meetings with a social worker who they won’t see again for the next five years. That is, if they are allocated a social worker in the first place.
It would prevent the HSE from forcing unaccompanied minors seeking asylum to live in hostel accommodation where they regularly go missing. Sometimes they turn up dead. There are more than 20 reports on the deaths of children in care awaiting publication by the HSE.
The report in the death of Tracey Fay was only made public because Deputy Alan Shatter published it on his website. The HSE refused to acknowledge it even existed until this happened. Every time they were asked in parliamentary questions by Deputy Caoimhghín Ó Caolain, they stated that the information was “difficult to collate”. Reports with recommendations gather dust, and are never implemented.
Despite the publication of the Ryan Report and much handwringing by those in Government and cries that it would “never happen again”, the HSE still will not give a straight answer when asked if all of their employees who work with children have been vetted. Instead they consistently give the stock response that it is HSE policy to vet their employees. The Health Service Executive has mastered the art of responding to questions without actually answering them. Crisis management is the guiding tool in HSE children’s policy and they don’t even follow their own recommendations.
The Government and the HSE knew long before the deaths of Daniel McAnespie, Michelle Bray and Tracey Fay that the child protection system is completely broken. A referendum giving children rights could kickstart the HSE in to giving the child protection system the massive overhaul it needs.
It took over 60 meetings of the Committee to reach cross-party consensus on the wording of a proposed amendment. The Committee produced three reports, and the Fianna Fáil, Fine Gael and Labour Party all received legal advice paid for with public funds by the Committee.
The new Article 42 that the Committee agreed was not perfect. It was the best form of consensus that the Fianna Fáil and Fine Gael members of the Committee, Sinn Féin and the Labour Party could reach. Fianna Fáil and Fine Gael were always very clear that they were merely the party representatives on the Committee and any views they endorsed were not necessarily done so on behalf of their respective parties. Take from that what you will. Paul Gogarty is listed as the Green Party representative on the Committee but they never made any submissions on how the referendum should take place and what form the wording should take. He never attended the meetings of the Committee. Despite the TDs caveats about membership, all of the parties welcomed and endorsed the report.
It is disappointing now that Brian Cowen has backtracked on the commitment to a referendum. The Government has been promising it will happen for the past 13 years, so it isn’t surprising. If we are to learn anything from the Ryan and Murphy reports it is that children were not listened to. If anything is to change there needs to be a referendum. In December 2009, Minister for Children Barry Andrew announced that €3 million had been allocated to finance the referendum. The money is there. The political will is not.
Photo of Minister of Children Barry Andrews and Mary O’Rourke Chairwoman of the constitutional amendment committee at the publication of the proposed new article 42 on Feb 16th 2010 is courtesy of the Irish Times.
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Comment by: Wednesday
Oct 20th 2010 at 08:10
Yes, god forbid we should allow foreign children to stay in this country when deporting them might, you know, violate their human rights.
The moral bankruptcy of this country is sickening.
Comment by: Hanora Brennan
Oct 24th 2010 at 11:10
Since when did this country, society or the religious ever care for children? Look at the thousands that fled its shores on their release from the Magdalene Laundries, Institutions and Reformatory Schools. This govt. like all of its predecessors will do absolutely zilch for children until an incident that becomes an international issue is raised. That is how pro-active this country is. We lack all moral fibre. And btw, I didn’t notice the Ryan report on the CORI website. Is this an oversight?
Comment by: Tomboktu
Nov 2nd 2010 at 22:11
I think the decision to postpone points to something else that is wrong with Ireland: the lack of substance in the form of democracy. We don’t even have rule by the elected representatives of the people.
You report that an Oireachtas committee deliberated over a long period on the wording. When they eventually came up with a wording, civil servants stepped in and briefed the minister and the unusual model of a democratic process was set aside.
First question: why did the committee come up with wording that had unintended consequences? How much respect does it show to the democratic process that the officials — the ‘permanent government’ — did not adequately brief the politicians on these issues during their deliberations? Is it that they sit in private, shielded from accountability to the public and feel no need to deal with the Oireachtas, other than in showcase tokenistic ways? (Dermot Cole, Assistant Secretary at the Department of Community, Equality and Gaeltacht Affairs and formerly of the Department of Justice, said at a conference his Department held last month, civil servants are responsible to their minister. He was attacking a remark about the culture of the civil service, saying that its shortcomings lie at the feet of the ministers, but it reveals also that he, at least, does not see any responsibility to the democratic process beyond that.)
Second question: why, now that a problem has been identified, is a new wording being drafted behind closed doors, in the Attorney General’s office, far from prying, democratic, eyes? Why has the government not sent the wording back to the Committee, with a memo on the problem and asked them to reword taking account of that concern?
Democracy as tokenistic procedure — TDs and lobby fodder, not deliberating, thinking, democratically selected representatives of the people. God forbid they might actually be allowed that kind of role.
Comment by: Stephanie Lord
Nov 2nd 2010 at 23:11
Tomboktu,
You raise some very valid points in your comments, and a lot of which I am in complete agreement with.
I don’t believe that the committee came up with wording that had unintended consequences. I would say that the opposition members at least, knew very well what they were doing. The unintended consequences came from Government. While I would not say that what they came up with during their deliberations was anywhere near perfect (or defend the entire process used), it was the best form of consensus that they could come up with amongst representatives of political parties with such differing views on how children’s constitutional rights should take form. They came up with the wording in the Final Report and this was then taken away to Cabinet and presumably the Office of the Attorney General. I would expect that a great number of permanent civil servants gave their views on it after publication. These civil servants would not have briefed the Committee members during the committee lifetime – in committee sittings anyway.
Some of the meetings were in public session and are available on the Oireachtas record. Many of the meetings were held in private session, which meant the only attendees were the TDs, Senators, their advisers, the legal advisers to the Committee, a few Oireachtas staff, and civil servants from Barry Andrew’s office. Some of the issues that they dealt with during the committee were of a very sensitive nature and warranted a certain amount of privacy (particular child abuse cases that emerged during that timeframe). I suppose the members would argue that the privacy was needed in order to thrash out the issue to try and reach consensus which may not have been done had it been in full public view. I don’t think this is an argument to have such a high level of Committee meetings in private (or arguably any at all for that matter) but that was the way that Committee worked.
Another view could be that Barry Andrews is so far out of his depth in his post as Minister for Children that it just would not do for the Government to have allowed each meeting to have been witnessed publicly.
All of that aside, you have a very valid point about the culture of the senior civil service, and their views of democracy.
As for your second question regarding the wording being drafted behind closed doors; you could speculate that either the Government never had any real intention of going with the wording they came up with, or they were banking on them coming up with something far more conservative than they arrived at. I doubt the Government would have had the nerve to ask the Committee to reconvene to come up with a more acceptable proposal – after all, that was the minimum level that they could, as a group, reach agreement on. Each representative from the opposition parties endorsed the proposal, and from a political perspective it would be difficult for them to accept a lesser version I would expect.
As well as that there is a cost issue. The lifetime of the Committee was extended on multiple occasions at considerable costs; both Fine Gael and Labour received funding to employ barristers as their advisers on the Committee work, and the Committee itself had two barristers as legal advisers who drafted the report. Paul Gogarty as the sole Green Party representative did not attend the meetings so was clearly in no need of legal advice. Caoimhghín Ó Caolain was the Sinn Féin representative and took legal advice from a Sinn Féin adviser which was not funded by the Oireachtas.
What it comes down to is the Government convened an all-party committee to draft a wording and they didn’t like what they got. The outcome of what happened with this report, and its rejection by the Government is just one aspect of their lack of recognition of democracy (others being the failure to hold by-elections, and multiple referenda on the same issue and so on). Either way you look at it, this whole procedure amounted to a tokenistic gesture from the Government, and a very expensive one at that.
Comment by: michelle kenny
Jan 14th 2011 at 17:01
This amendement is a scam it will allow the government and corrupt institutions to remove children from the family home so they can be forced adoptions, they did the same in england 10 yrs ago and the child snatching by the state is out of control, this is about destroying the family unit make no doubts about it, when care is 10 imes more dangerous than the family home we have a serious bloody problem, the government cares nothing about our kids, Barry andrews has said it is too expensive to look into rape of our kids by the church, and barnados chief said he wants thousands more kids in care, they are corrupt people, we need to protect our kids from the state , end of!