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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