I welcome Ms Jillian van Turnhout, chief executive of the Children's Rights Alliance, who is suffering from a very bad cold. Very sensibly, she will keep her voice to answer questions. From the Children's Rights Alliance I also welcome Ms Maria Corbett, policy adviser and Ms Róisín Webb, legal policy officer. In the Gallery are Dr. Nóirín Hayes, the chairperson of the Children's Rights Alliance, Ms Margaret Burns, its deputy chairperson and Ms Carys Thomas, the communications director. Also present is Ms Ellen O'Malley Dunlop. A copy of the presentation will be made available to members after it has been delivered by Ms Corbett, who will speak in place of Ms van Turnhout who has lost her voice through laryngitis.
Constitutional Amendment: Discussion with Children’s Rights Alliance.
Ms Maria Corbett
Yes.
If the Chairman wishes she may tell Ms van Turnhout that if she wishes to gesture occasionally at us, she is welcome to do so.
Ms Maria Corbett
I thank the Chairman, the Minister of State, Deputies and Senators. I will begin by expressing, on behalf of the Children's Rights Alliance, our appreciation to the committee for the opportunity to make this presentation today. The Children's Rights Alliance brings together 80 non-governmental organisations concerned with the rights and needs of children in Ireland. We aim to improve the lives of all children under 18 years through securing the full implementation of the UN Convention on the Rights of the Child.
The Alliance believes strongly that the committee should consider the proposed amendment as a "children's rights" amendment and not, as it has been referred to in some quarters, as a "child protection" amendment. The right of a child to be protected is important. However, it is only one of the rights that children hold and which should be addressed by a constitutional amendment. In the interests of brevity we will confine our comments today to a number of key issues under each of the provisions. We welcome any questions members may have on any aspects of our written submission. I will aim to keep my comments short. However, it is difficult when the amendment has so many interesting aspects.
The Alliance believes that the amendment should go further than the 2007 Bill and recommends that it should include express rights for children which encapsulate the key principles of the UN Convention on the Rights of the Child. These express rights should include a non-discrimination provision, the right of the child to be heard, the right to identity and certain socio-economic rights. The amendment should also ensure that the best interests of the child are given paramount consideration in all actions concerning the child. Finally, the amendment should place an onus on the State to intervene in a positive way to support vulnerable children and families.
The need for a wide-ranging constitutional amendment on children was first discussed as long ago as 1976 during an Oireachtas debate. During recent years, we have seen a real momentum building around the need for constitutional change to strengthen children's rights, which culminated in the publication of the 2007 Bill and the establishment of this committee. While acknowledging that the task assigned to the committee is complex and onerous, this complexity should not be used as an excuse to paralyse the work of the committee. The alliance firmly believes that devising an amendment with cross-party support is achievable and necessary. The establishment of this committee offers us a golden opportunity to work together, an opportunity which must be seized.
Our written submission contains a number of principles which we consider should underlie the amendment. Key among these is full compliance with the UN Convention on the Rights of the Child. The need for constitutional reform is clear. The current provisions in the Constitution reflect the period in which it was written. The Ireland of 1937 was a place where it was commonly held that children should be seen and not heard. Children growing up in Ireland in the 21st century deserve a Constitution that respects and recognises them as individuals and puts their best interests at the centre of decisions.
The alliance believes that the wording of provision No.1 will do little to strengthen children's rights in the Constitution and should be revised. The extent to which children possess constitutional rights, particularly unenumerated rights, has been called into question by the Judiciary. We believe, therefore, that there is a need to directly insert into the Constitution express rights for children. The amendment should prohibit direct or indirect discrimination, of any kind, in all actions concerning children, whether by legislative, Executive, judicial or administrative authorities. This would give effect to Article 2 of the UN Convention on the Rights of the Child. In line with existing equality legislation, the provision should also cover the prohibition of discrimination based on membership of the Traveller community. Of particular importance is that the amendment should prohibit discrimination based on the marital status of a child's parent. As the committee is aware, a child born to married parents derives his or her rights from the provisions of Articles 41 and 42, whereas a child born to parents who are not married to one another derives his or her rights from the personal rights provision contained in Article 40.3.
In line with Article 12 of the UN Convention on the Rights of the Child, the amendment should provide for the right of every child to be heard in matters that affect him or her and to have his or her views given due weight, in accordance with age and maturity. The right to be heard is critical to the development of a societal approach to respecting the rights of the child. In particular, children should have the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly or through a representative.
In line with the UN Convention and the findings of the Constitution Review Group, the amendment should provide for the right of every child to have his or her identity protected and to know his or her parents, as far as is practical. All children should enjoy the right to identity, regardless of the marital status of their parents, the manner in which they were conceived, or whether they were placed in State care or adopted.
The alliance believes that inserting express socioeconomic rights into the Constitution is possible and realistic. Such rights can be inserted using the language and norms of international human rights law, which would strike a balance between the role of the Executive to formulate laws, policies and determine public expenditure, and the role of the courts in ensuring that constitutional rights are upheld. Inserting socioeconomic rights for children into the Constitution, subject to the principles of progressive realisation and the concept of the maximum extent of available resources, will allow the Judiciary to assess whether there has been effective use of available resources. Furthermore, this would address an issue often raised by the Judiciary in the context of the separation of powers, namely, that the Judiciary does not have democratic legitimacy to adjudicate on the implementation of these rights.
Even if no other group can claim socioeconomic rights that are enforceable, the special and dependent position of children in society justifies this particular treatment. The alliance believes that a number of specific socioeconomic rights should be included in the amendment, such as survival and development rights, the right to health and to an adequate standard of living, as well as rights for children with disabilities and the right to education.
With regard to provision No. 2.1, which governs the threshold for State intervention, the alliance recommends that a new constitutional provision be included. This would place a positive duty on the State to support vulnerable children and their families. Furthermore, the alliance recommends that the existing threshold for State intervention in family life be recalibrated by including the term "proportionate", to ensure that when the State intervenes in family life, the means used by it would be both appropriate and proportionate. This would also support best practice where proceedings to take a child into care should only be embarked upon as a measure of last resort.
Within a recalibrated Article 42.5, the phrase "natural and prescriptable" should be deleted so that the wording simply refers to the rights of the child. In addition, the phrase "with the best interests of the child as a paramount consideration" should be inserted to ensure that this is the central component in considering whether there has been a failure on the part of the parents. This would also ensure that the amendment, in creating an equitable standard of protection for all children, does not lower the intervention threshold for non-marital families. Consideration should be given to redrafting the phrase "for physical or moral reasons" with regard to parental failure, although the provision should continue to guard against intervention solely on the grounds of poverty.
The alliance supports provision No. 2.2, which allows for the introduction of legislation to permit the adoption of any child, from either a marital or non-marital family, where there has been a failure on the part of the parents in respect of their duty towards the child. The heads of a Bill should be published in advance, providing for criteria as to what constitutes a failure on the part of the parents in respect of their child, including a minimum period of time and a provision that an adoption can only occur where it is in the best interests of the child.
The alliance also supports provision No. 3, which allows for the introduction of legislation to permit the voluntary placement for adoption of a child of marital parents. Again, we recommend that the heads of a Bill should be published in advance, specifying that such adoptions would be subject to the consent of both parents and made only where the adoption is considered to be in the best interests of the child. We recommend that in provisions Nos. 2.2 and 3, the words "provision may be made" should be replaced with "provision shall be made". This would ensure there is a constitutional requirement for the legislation to be introduced.
Provision No. 4 relates to the best interests of the child. The alliance recommends that the amendment provides that the best interests of the child be the paramount consideration in all actions concerning children, whether by legislative, judicial or administrative authorities. This provision must be inserted in the form of a direct constitutional principle or right as opposed to merely providing the Oireachtas with the authority to enact legislation on the issue.
The alliance believes that in a conflict between the interests of the family or the State and the interests of the child, the courts should be able to balance the interests of all parties, but should give paramount consideration to the child's best interests. This requirement should not be restricted based on the marital status of the child's parents. The insertion of a best interests principle, coupled with the inclusion of express rights for children and a non-discrimination guarantee, would act as a guide to the courts in how to balance competing rights in any conflict between the interests of the family or the State and the interests of the child. However, consideration must be given to whether the existing Article 41, with its focus on the family based on marriage, would continue to present an obstacle to ensuring that the courts can give paramount consideration to the best interests of the child, including children from marital families.
Regarding provision No. 5.1 on the use of soft information, the alliance welcomes the introduction of legislation to permit the collection and exchange of soft information, with the aim of creating a comprehensive child protection system. If this requires a constitutional amendment, the text of the constitutional provision should also respect the individual's right to fair procedure. The heads of a Bill should be published in advance, providing for balanced and proportionate legislation for the collection and exchange of soft information.
With regard to provisions Nos. 5.2 and 5.3, the alliance strongly endorses the need to put in place as robust a child protection system as possible to protect children against all abusive or exploitative sexual activity. We believe that no child under 18 should be prosecuted for an offence of strict or absolute liability. Furthermore, the alliance believes that the proposed provision on strict or absolute liability should be examined closely to ensure it is the most appropriate response to the prosecution of offences of sexual exploitation of children. In particular, the alliance calls for the recommendations made in November 2006 by the Joint Committee on Child Protection in regard to the criminal trial process to be fully implemented as a matter of priority.
The alliance is keen to develop and build a cross-party approach to the work of this committee. We are mindful of the enormous task that looms before its members in terms of the amount of reading and thinking expected of them and the difficult decisions they will be required to make. As a result, we would like to take this opportunity to put the alliance forward as a resource to the committee. We would be happy to meet members informally or to provide background reading or research should that be required. I thank members for their time and attention and look forward to participating in the questions and answers session.
I thank Ms Corbett for her lucid presentation. We welcome the generosity of spirit she showed with regard to helping us in our deliberations. We are aware of the work carried out by the Children's Rights Alliance and the groups with which it works.
I thank the Children's Rights Alliance for meeting us. Its submission is one of the most wide ranging of any we have received thus far and I congratulate the alliance on the thought and work put into it. I appreciate this opportunity to tease out some of the issues it raises.
If I could describe the submission in simple terms, which one cannot do in this context, I would note an anxiety to devise a children's rights amendment that reflects the protections given to children in the United Nations Convention on the Rights of the Child, to which this State has been a signatory since 1992. There is no unique way of dealing with constitutional amendments because a variety of wording can achieve similar results. A sentence was included somewhere in the submission, although not mentioned this evening, to the effect that if we cannot do it in this particular detailed way we should just incorporate the UN convention into the Constitution. There is a limit to the length of any particular article which can be inserted into the Constitution. What thought has the alliance given to a provision in the Constitution which would acknowledge and recognise on behalf of the State the United Nations Convention on the Rights of the Child and require the State to vindicate and protect those rights by way of a direct and simple measure? I do not suggest that would resolve all the issues but it is worth considering. We would still need to consider the Bill in more detail by taking the different headings and dealing expressly with the welfare of the child as the first and paramount consideration in guardianship, custody disputes, etc., and adoption issues would need to be addressed specifically, due to the way our law operates. However, it would be a succinct and direct way of addressing some of the issues raised by alliance.
The amendment being considered by the committee envisages that all of Article 42 would remain intact and that we would tackle Article 42.5 to produce a new article incorporating some of the thought processes and additional provisions. Has the alliance considered the difficulties created by Article 42.1, which confers specific rights on the family as opposed to parents? That article will have to be addressed if a workable children's rights amendment is to be devised. I am concerned that if we deal with it in a vacuum rather than considering the interaction with articles which would otherwise remain unchanged, which is the case at present for the Bill, we may not achieve the intended outcome or ensure equality of rights between children born within marital families and those born outside such families.
We live in an increasingly complex era. Has the alliance considered the application of rights to circumstances in which children are born as a result of sperm donations, IVF and other reproductive mechanisms? Difficulties could arise in the Constitution in respect of defining "parents". Last July's Supreme Court judgment only dealt with interim procedures for an area in which it has not yet been involved to any great extent. One of the jobs of this committee is ensuring that unforeseen consequences are addressed in the amendments we include in legislation. We have to be conscious of the newer methods of reproduction and their implications for children's and parents' rights.
Ms Maria Corbett
We need to explore further the issue of children born through assisted human reproduction, although we touched on it in terms of the right to identity. At present, there is no legislation governing the issue and we are concerned that the committee which met on assisted human reproduction recommended that children should be entitled to information on their identity after turning 18 years of age. Although that right is not exercised before adulthood, collection and storage of data would need to start from birth. That issue has not been addressed and, while some work is required on a legislative level, we are keen to raise it within a constitutional debate.
We may revert to the committee on the broader issue of defining "family" and "parent". Our recommendation under provision No. 1 needs to be framed in a manner that is inclusive of all children regardless of family formation or whether they are adopted. The provision needs to be broad enough to capture the various potential categories.
In terms of the interaction with other provisions, the 2007 wording for the amendment reveals that provisions Nos. 1 and 4 interact, as do provisions Nos. 2.1 and 4. How they sit with existing constitutional provisions must therefore be considered. We have highlighted Article 41 as an issue in respect of the protection of the institution of marriage but the committee has given us more food for thought. It is a concern for us as to how the interactions will play out. The difficulty with constitutional provisions is that we may not know the full impact of an amendment until it has been considered in the courts. Our response is that there is a call for leadership and the committee should aim to put in the highest standard of rights possible having considered the various possible interactions with other provisions. There is a sense that we will never know the full outcome but we must take that brave step, put forward the wording and take it from there.
I would be concerned if we deal with what we have in isolation from Article 42.1 in particular because there is an interaction between Articles 42.1 and 42.5 in how the courts interpret it. This committee will have to examine Article 42.1 in the context of the proposal ultimately to go to the referendum on children's rights. If we do not, nobody will be sure of the impact of the rest of it. There is a direct correlation between those two sub-articles of the Constitution.
Ms Róisín Webb
The Children's Rights Alliance has been conscious of focusing on the rights of the child and we do not want to see the debate move completely from the rights of the child to the marital family and everything that debate would entail. While we are aware of the interaction with Articles 41 and 42.1 and the problems that presents, some of the measures we have suggested would have the effect that children's rights would be given greater weight in the balancing of the rights of the child versus the marital family. These include putting the rights of the child as a paramount consideration, having a non-discrimination clause that would include discrimination on grounds of the marital status of one's parents and enshrining some specific, express rights for children. We hope this would have the effect of seeing the child as an individual as opposed to viewing the rights of the child in the context of the marital family. We are aware that, as Ms Corbett said, we cannot foresee how the Articles will interact. A non-discrimination clause would go in with the same status as other constitutional provisions but we cannot foresee how that will be interpreted in judicial decisions. We understand and echo the concerns and agree that consideration needs to be given to this issue. However, we hope it will not take the spotlight off the rights of the child and turn it into a different debate. We have been anxious to focus our efforts on that. I do not know if that answers the Deputy's question.
I raise it because Article 42.1 refers to the rights of the family as inalienable in the context of the education of children. The concept of education is broad and includes social and religious matters. It uses the welfare definition of section 3 of the Guardianship of Infants Act 1964. That inalienability is attached to the family based on marriage. If we amend Article 42.5 with a new children's rights amendment we may discover that we have changed nothing if we do not do something about Article 42.1. There is a specific interaction and relevance. I raise it because the Children's Rights Alliance may want to give further consideration to it and if it has observations on it, return to the committee.
Ms Róisín Webb
I might address Deputy Shatter's question on the incorporation of the convention. We have given much thought to this although it is a short piece in our submission. I should bring the committee's attention to the Human Rights Commission's document on this. In 2006 it made a submission on the rights of the child in which it comprehensively addresses the issue of incorporating the convention. The nature of the document and the rights contained in the convention do not allow for it to be directly incorporated into our Constitution. It would need to be done by way of an express provision that would incorporate the convention as of the particular date because the convention is a live document and can be amended. Any amendments to it would require Oireachtas consideration as to whether we would further amend the Constitution to include them. We would need to introduce a UN Convention on the Rights of the Child Act and that would be more complex than the European Convention on Human Rights because the convention would need to be translated into a domestic context. That would be an onerous task.
In its document, the Human Rights Commission preferred enshrining the key principles of the convention directly into the Constitution, which is the option we have developed in our submission. However we have put forward the alternative of examining an express provision followed by legislation that would incorporate the convention. That would have to be read as compatible with our domestic law but if it were similar to the European Convention on Human Rights Act, where there was conflict it would be at a sub-constitutional level and therefore it would be the less preferable option for us.
I thank Ms Webb. Perhaps the Children's Rights Alliance could reflect on it and we may discuss it further. It is complicated in the submission.
I join Deputy Shatter in welcoming the delegates and I thank them for their presentation. A short time before the delegates entered we were teasing out the issue of protection and rights and making that point. The committee is faced with making a decision on how to proceed. Will the Children's Rights Alliance share its perspective on this with the committee? There is a view in the committee and externally that in light of the recent CC case there is urgency to address child protection from sexual abuse. I outlined several other abuses to which children, sadly, are continually subjected, including physical and emotional abuse, neglect, abandonment and cruelty. The list is extensive.
While we want to address protection, the project we have is to address the enshrining of rights in the Constitution. What would be the Children's Rights Alliance's view if the committee decided to decouple the area of absolute or strict liability in respect of sexual offences against or in connection with children from the rest? The word "decouple" was previously used in the context of the common agriculture policy and it arises in this case. Do the delegates share my concerns? The Taoiseach has reflected these concerns on a number of occasions, including last week, that not proceeding with the whole package would mean an indeterminate deferral of addressing the substantive body of work we have been entrusted to undertake. Those are my concerns, shared by others, and I am anxious to know how the Children's Rights Alliance feels about it.
Ms Maria Corbett
I will give an initial brief response. The Children's Rights Alliance would like to see one amendment on children's rights.
Would that be a composite amendment?
Ms Maria Corbett
Yes. There is a need for this amendment. It should not be put on the long finger. However we must consider it and get it right. Within that balance there is an urgency to strengthen our Constitution to ensure children's rights are visible.
The alliance is currently exploring the issue of an offence's strict and absolute liability. Ms Webb could further elaborate on our thinking.
Deputy Ó Caoláin's question asked what position the alliance would take on decoupling. It is an odd word for us to use, but the question has been answered very clearly. The alliance would want one comprehensive children's amendment.
Ms Maria Corbett
Yes.
Although the alliance wants it to be comprehensive, it does not want the process to last forever. We do not want a hasty amendment.
Ms Róisín Webb
There is the issue of whether the Oireachtas should push forward with a child protection amendment. I can address that issue as we have a view of that with regard to strict and absolute liability. That is a complex area which needs much consideration. We would have a number of concerns and there are broader issues that need to be considered.
We began considering this from the point of view--
I am sorry to interrupt but there is about to be a vote on the Finance Bill 2008 in the Dáil.
Surely the Deputy will not vote against us?
There will be a division. This is a valuable discussion so how will we deal with it?
Yes, and the Senators will have to vote also.
That debate is finished.
They will not have to vote, the debate is adjourned.
It was an all-party motion.
Thank you.
We will all have to leave. It will not be possible to reconvene this evening, and we have been here since 5 p.m.
I do not think so. We are sorry we kept the delegation waiting outside. We are all paid to vote as it is one of our purposes.
I suggest the committee considers responding positively to the offer made by the Children's Rights Alliance in its concluding address. I know myself and other Deputies would very much welcome the opportunity for further engagement collectively and individually over the period ahead.
Okay.
Could we add our voices to say it has been an excellent contribution.
Yes, it was excellent.
It was very stimulating.
I am on the Chairman's list to tease out a few points. We may have an opportunity to meet with the alliance again rather than simply leaving the meeting as it is.
Yes. It is not our wish that the group's contribution be truncated.
Other Deputies wanted to not only compliment the group but tease out some very significant issues.
By the time the group is invited in again, a decision may have been made on whether to have a composite or decoupled amendment.
I thank the delegation. We should attend to the vote in the Dáil.
The joint committee adjourned at 7.05 p.m. until 5 p.m. on Wednesday, 13 February 2008.