Our meeting today is with the Children's Rights Alliance. Ms Maria Corbett and Ms Jillian van Turnhout will address the meeting. The group was before the committee previously but had a very unsatisfactory input because the session was truncated by frequent votes and so on, which happens on occasions. Who will speak first?
Constitutional Amendment: Discussion with Children’s Rights Alliance.
Ms Jillian van Turnhout
I will make the presentation. Good afternoon, Vice Chairman, Minister, Deputies and Senators. I would like to begin by expressing, on behalf of the Children's Rights Alliance, our appreciation for the invitation to present again to the committee. I will try to keep my opening remarks short to allow for questions.
We have already submitted detailed written positions addressing the full remit of the committee and in the precious time the committee has kindly afforded us today, we would like to demonstrate the reason we believe there is a need for constitutional reform to strengthen children's rights in Ireland.
Since we last presented, the committee has heard from a number of organisations and individuals and we have been struck by the fact that of the 11 public sessions, there has been little opportunity to discuss children's rights. The committee's questions have almost entirely focused on the narrower proposals on child protection as outlined in provision 5 of the 2007 Bill rather than on the wider children's rights amendment. These are only one part of the wider constitutional question under discussion. After all, the remit of the committee, as we understand it, is to examine text for a proposed amendment on children's rights and not the narrower proposition of a child protection amendment.
It is important to clarify our distinction between children's rights and child protection. To protect children and keep them safe we must establish a rigorous child protection system that includes adequate vetting procedures and expedient and effective child-focused criminal justice measures. That alone, however, will never fully protect children. If we are to succeed in that aim, we must also give children a voice and ensure that they have a respected position in society. To be protected from abuse, neglect and exploitation is a child's right — a fundamental human right. However, it is not possible to vindicate that right without creating a society that fully respects children.
The commitments given by the current Government, and the main Opposition parties, in their respective general election manifestos to place children's rights at the centre of our Constitution will inevitably strengthen child protection in this country. Child protection is part and parcel of the broader issue of children's rights. It has been, therefore, all the more disappointing that we now feel duty bound to address the recent media coverage of key politicians who stated that there are no compelling reasons to hold a referendum on children's rights. We beg to differ.
There are a number of critical and compelling reasons we need constitutional change and these fall into two broad categories, first, constitutional blocks and, second, bringing our Constitution into the 21st century.
I will deal first with constitutional blocks. When we ratified the UN Convention on the Rights of the Child in 1992, Ireland made a formal commitment to the international community, and indeed to the people of Ireland, that it is dedicated to the convention’s full implementation. With the Constitution as it stands, however, the State is unable to keep that commitment.
Where there has been no constitutional difficulty, I acknowledge Ireland has been successful in transferring some elements of the convention's provisions into our domestic law and policies. For example, the Children Act 2001 is underpinned by the principle that in youth justice matters, detention shall be a measure of last resort, thus reflecting Article 40 of the convention. However, where the Constitution takes a clear position on the family, the introduction of convention-compliant legislation and judicial decisions is impeded. I want to be very clear. Any suggestion that children's rights can be strengthened by legislation alone is erroneous.
Four of the convention's 41 substantive articles have been given an elevated status by the UN Committee on the Rights of the Child. These general principles are critical to its implementation. Yet, of these four general principles, two are constitutionally blocked, that is, the best interests of the child and non-discrimination. These blocks were clearly identified in the now well-documented "Baby Ann" case, where Mrs. Justice McGuinness was compelled to comment that, bearing in mind the terms of the UN Convention on the Rights of the Child and Brussels II bis., the form of the proceedings by which the Supreme Court made its judgment "should at the very least give pause for thought".
We believe that there are two options available to the committee. The first is to directly incorporate the convention into the Constitution, thereby binding the State to its principles and provisions. This would be similar to the constitutional amendments used for the Good Friday Agreement and the Maastricht treaty. Such an amendment would need to incorporate the convention as of a particular date, as it is a living document which can be amended by ratifying states. The second option is to incorporate key principles from the convention into the Constitution as express rights. In our eyes, the amendment should encapsulate the principles of the best interests of the child and non-discrimination and, in addition, the principles of the right of the child to be heard, the right to identity and certain socio-economic rights. Furthermore, the existing constitutional provision contained in Article 42.5 should be amended to ensure that when the State intervenes in family life, the means used is both appropriate and proportionate, and that it provides an equitable standard of protection for all children.
I will examine in more detail the principle of the best interests of the child. This principle is only meaningful when children are recognised as individual rights holders and it is applied without discrimination of any kind. The courts interpret the legal status of individuals on the basis of the weight given to their rights under the Constitution. Since children, as individuals rather than members of a family, are not expressly stated in the Constitution, it is often not possible for the courts to take their rights into account. The inclusion of an explicit statement that children have rights and their best interests should be paramount would provide the courts with the power to balance a range of rights — the personal rights of parents, the rights of the child, the rights of the family and the rights of the State, as the guardian of the common good.
Under the current constitutional provisions of Articles 41 and 42, there is an automatic presumption that the best interests of the child lies within the marital family. Although we have provided for the best interests principle in both our private and public child care law, the Constitution takes precedence in judicial decisions concerning children of marital families and, therefore, blocks the application of the principle. Basically, we have a situation where children are not equal before the law; they are treated differently depending on the marital status of their parents.
I will briefly outline how this operates at a judicial level. The 2004 FN v. CO decision is an interesting case. Mr. Justice Finlay Geoghegan in the High Court decided that it was in the best interests of two teenage sisters, aged 13 and 14 years, that their maternal grandparents be awarded sole custody. The girls had been living with their maternal grandparents since the death of their mother in 1995, some nine years in all. The girls stated that they loved their father, who had separated from their mother prior to her death and was remarried and living in the UK, and they wished to maintain access with him. However, they regarded their grandparents as their de facto parents and Ireland as their home. If the marital father had challenged in the Supreme Court, this decision would likely have been overturned because the Supreme Court must make its decisions based solely on the Constitution. It would not have been able to take into account the factors that influenced the High Court, namely, the best interests of the children and their wishes.
At the legislative level, the application of the best interests principle has also been impeded by constitutional provisions. In the area of adoption, for example, children are treated differently depending on the marital status of their parents in two specific instances: first, it is virtually impossible for a child of a marital family to be adopted in circumstances where the child has been abandoned by his or her birth parents; and second, children of marital parents cannot voluntary be placed for adoption.
The Children's Rights Alliance believes that these children, approximately some 500 to 700, should be afforded the opportunity of a second chance to grow up as part of a family, where normal family events such as a holiday abroad will no longer require a social worker's sign off and where the child's future and his or her succession rights are clear.
The Constitution is not only our primary legal document but a declaration from which we can gauge the values of our society. It is a statement of our cultural identity and aspirations as a people. The Children's Rights Alliance's vision for modern Ireland is a society where childhood and children's participation is valued and respected.
Inserting children's rights into the Constitution would have enormous symbolic value that would subsequently translate into a shift in mindsets. Why do we need attitudinal change? We need it because we continue to build housing estates without play and recreation spaces. Furthermore, we need it because the HSE earlier this week announced that the two shelters for homeless boys in Dublin's city centre are to be relocated 15 miles outside the city in the grounds of St. Ita's Psychiatric Hospital in Portrane.
A change in mindsets should not be feared. Children's rights are not about driving a wedge between parents and their children. Parents and children are inextricably linked; one cannot be a parent without having a child. We forget too often that it is the parent who champions his or her child's rights. Inevitably, when children's rights are not acknowledged it places parents, particularly those who have a child with special needs or those who are struggling in their parenting role, under enormous pressure and stress.
During a recent hearing of the committee with the National Youth Council of Ireland, Deputy Enright asked about two viewpoints — parents first and children first. The vindication of children's rights does not require that they supersede the rights of parents or those of the State. Respecting children's rights is about seeing them as individuals in their own right — not making children more equal than others. It is about reminding society that children are humans too, that they have human rights that need to be acknowledged. Essentially, we're not calling for children first but children too. We want them to be included.
For the vast majority of families, the enhancement of children's rights and consequent improvement in services for children will support parenting and strengthen parents' rights; it will keep families together. In the small number of cases where a child is failed by his or her parents or a conflict arises between the wishes of parents and the best interests of the child, the State needs to play a role to protect the child's best interests. Neglect and abuse cases, custody battles, parental child abduction and adoption cases may be rare and played out in the media as a drama, but at their centre are vulnerable children who depend on the State to safeguard their rights and ultimately their futures.
Constitutional change is necessary and it is the only possible route to secure children's rights. Placing express rights in the Constitution is a powerful symbol that Ireland wants the best for its 1 million children and their families. Without constitutional reform, we cannot fully value children in our judicial decisions, in our laws and in society as a whole.
While the Children's Rights Alliance is acutely aware that the drafting and passage of an amendment on children's rights is a complex and politically thorny issue, we strongly believe that the more than 1 million children in Ireland represent, for us, more than 1 million reasons to hold a children's rights referendum. How many more generations of children will grow up before politicians vindicate their rights? This is not a theoretical exercise. We believe it will have the potential to have a real and positive impact on the lives of all children and their families now and in the future.
I reiterate our willingness, as the Children's Rights Alliance, to work as a resource to the committee and with all parties in whatever way we can to assist the committee in its work. Ms Corbett and I look forward to participating in the question and answer session and we thank the committee members for their time and attention to this issue.
I thank Ms van Turnhout for a full statement of the organisation's position. Before proceeding to the question and answer session, I point out that members of the committee have absolute privilege but that same privilege does not apply to witnesses appearing before it. Members are reminded, in accordance with best parliamentary practice, that they should not comment on, criticise or make charges against any person outside the House or an official, by name or in such a way as to make him or her identifiable.
The meeting is now open for questions. I call Deputy Howlin.
I am mindful of the times that are in it. To make charges against individuals under privilege seems to be a safe thing to do, safer than other courses of action. I apologise for my little indulgence. It is timely and important that we focus on the net issue of establishing how we will meet our commitment to improving the rights of children explicitly in the Constitution. We have spent an inordinate amount of time on a thorny and difficult but important issue which we are trying to bring to a conclusion. However, this issue is separate.
I wish to tease out a few matters. First, with regard to the published Bill, the alliance's commentary was that it would not add a new children's rights dimension to the Constitution and that an explicit vindication of children's rights was required. I do not know if there is a form of words we could examine, other than adding that the State acknowledges and affirms the rights and instructs their vindication. The alliance states in its submission that the best interests of children should be provided for by an explicit statement. By and large, most of us agree with this. However, there are a number of players or actors and, as the alliance acknowledges in its submission, the inclusion of an explicit statement that children have rights and that their best interests should be paramount would provide the courts with the power to balance a range of rights — the personal rights of parents, the rights of the child, the rights of the family and the rights of the State. That would involve a rebalancing. However, there is a difficulty. There would be immediate consensus that we want the rights of children to be vindicated, but the question is who is best placed to assert these rights in general circumstances. The child might be of an age to have an input and play an important role, but, on the other hand, he or she might be an infant. In that circumstance the level of rights of the family to vindicate or assert the child's rights or of the State or another to do so must be determined. That is the fine balancing with which we must come to terms.
I have two questions for the alliance. Is there a form of words it wishes to present to the committee? With regard to the rebalancing of rights, I have looked at the concise guide document provided by the alliance. Given some of the submissions the committee has received, I can imagine that a chapter entitled, "State intervention in family life", would certainly draw plenty of interesting commentary. How, in practical terms, does the alliance envisage the rights being exercised, by whom and in what circumstances?
Deputy Howlin has said much of what I wished to say. Ultimately, this comes down to finding the right balance without upsetting the rights of the family. That is what mainly concerns us. It would be helpful if the alliance had suggestions to make in that regard. We would examine them carefully. We agree with everything Ms van Turnhout said. Obviously, we wish to promote and protect the rights of the child but inserting it in the Constitution means it can be interpreted in different ways. One has no sooner put a clause together than one discovers it has interpretations one had never intended and practical difficulties one had never envisaged. The alliance has pointed to the difficulties and problems it envisages, which is very helpful. It is up to us to find that balance or make progress on achieving a balance. Any suggestions in that regard from the alliance would be helpful.
Ms Jillian van Turnhout
The alliance has not produced a wording and does not intend to. Unfortunately, we do not have legal teams. It is a small organisation and our strength is our membership who feed into the work of the Children's Rights Alliance. I understand the difficulty of finding a form of words to deal with these issues. The UN convention looks at the growing capacity of a child and contains a wording to ensure his or her rights. Regardless of what is inserted in the Constitution, we hope there would be a children's rights Bill that would elaborate and clearly articulate that growing capacity of the child.
With regard to the State and the family, the alliance believes it is important that we move from a model where we wait for failure in a system towards one where we could bring the pendulum back a little and allow the State to make a proportionate and appropriate response. Rather than waiting for families to fail, which leads families to believe the big hand of the State is coming in to intervene in family life, we should compel the State to support families at a much earlier stage in order that they can succeed. We should provide resources at community level and work with families. For me, this is a child welfare approach versus a child protection approach. Instead of waiting for things to fail, we should intervene at an earlier level with a proportionate and appropriate response. We envisage the word "proportionate" in a wording and have written a paper on a proportionate and appropriate response, which I can circulate to the committee. That is how we can address this issue.
Regarding parents and children, I addressed this matter in my opening statement. The alliance has been on a learning curve. For that reason, in fact, last December it held a conference for parents. We advertised nationwide and parents travelled to participate. Senator White also attended. It clearly demonstrated that parents' and children's rights were inextricably linked and that we should not always back away as if they were quite separate from each other. It is parents' pester power that goes to the school to demand an education for their children and it is they who go to the courts to have their children's rights vindicated. It is parents who try to secure appropriate health care for their children.
Parents' and children's rights are inextricably linked. We must face this and not be so concerned that by giving children rights we will in some way undermine the role of parenting. I am convinced that in giving children's rights we actually support parents in their extremely important role. The UN Convention on the Rights of the Child clearly states the best place for a child is in the family. The State should do everything it can to support that statement.
Ms Maria Corbett
The two issues are linked in terms of how one balances the State intervening in family life. The mechanism to do this is the best interests of the child. That is the reason we focused on it so much in our presentation.
Who is to determine the matter?
Ms Maria Corbett
In some of the cases we have examined or given as examples it was within the court setting. Obviously, it goes into the courts in those conflict situations, for example, a conflict about custody. The UN Convention on the Rights of the Child does not define what should constitute the best interests of the child. However, it provides a guide in the various articles. The "best interests" phrase is included in Article 3 and six other articles. Much work has been done internationally on what constitutes the best interests of the child. Ultimately, it is something that is left back at societal level and will need to be determined by the courts or an administrative decision.
Regrettably, I must leave the meeting early. I join my colleagues in welcoming Mrs. van Turnhout and Ms Corbett back to the committee. This matter is still in safe hands, given that they are still at the helm. Well done. Some of us are still here too.
I hesitate to interrupt the Deputy but we will invite him back in three years.
I thank the Deputy.
The Children's Rights Alliance would prefer to see explicit rights enshrined in the Constitution. That is preferable to an enabling provision that would incorporate the UN Convention on the Rights of the Child, as it stands, at a certain date. Will the CRA representatives clarify that that is their position? Is it the case that in their submission they have commended to the committee the South African approach — the enshrining of specific explicit rights within the constitution — as best practice, as they see it? Have they noted the committee's deliberations that that formula — I am not speaking out of school in terms of everyone's opinion here — has not found strong favour within the committee. In the view of some, that approach or style would not necessarily sit comfortably within the 1937 Constitution. Having said that, I very much welcome the CRA's contribution and the refocusing of the committee's deliberations on the rights of children, rather than where we have been for a considerable period of time. I am among a number who have expressed the same view over the period.
I am seeking clarification of a couple of matters. In its submission the CRA states there is a need to reform the definition of "family" in recognition of the reality as regards family make-up in Irish society today. Does its representatives have any views as to how the definition can be developed and brought forward? Do they wish to cite and refer us to best practice? Given the CRA's research and exploration of other jurisdictional practices, is there a formula to which it can refer the committee regarding the introduction of a guardian ad litem system for advocacy on behalf of children in court?
The delegates have made no statement on the age of consent that I have noted. As this is an issue of continued interest for my party and not a closed debate just yet, I am interested to know if, since its submission in January, there have been further deliberations within the CRA. Has it arrived at a position that its representatives would like to share with the committee at this point?
Ms Jillian van Turnhout
The Deputy has posed a comprehensive list of questions. I will try to be succinct and if I am not clear, he can revert to me.
Regarding incorporation of the UN convention, we have given it as one option. We will put it forward as such but imagine Ireland would not take that option and may move to a second one. Obviously, I will advocate incorporation of the convention, but we may look to other models.
As other organisations have done many years ago, the Children's Rights Alliance has stated the South African constitution is a good model, but we have also examined other constitutions. We must realise that different constitutions suit different settings and have different realities. We have read the transcripts of the joint committee in great detail; therefore, we appreciate its deliberations to date. We have done our homework, so to speak. For example, we have examined the Spanish constitution which states children shall enjoy the protection provided for in the international agreements safeguarding their rights. That is a weaker statement, but it does refer to such agreements. However, Spain does not have that constitutional block, whereby children, depending on the marital status of the family, are not given the same rights; therefore, there is a difficulty. We have looked at the constitutions in Poland, Portugal and Finland also. On 28 September Ecuador undertook major constitutional reforms to mention children's rights throughout its constitution, not just within one article. I have examined many other references to children in the constitutions of many other countries and would have no difficulty in sharing the references with the committee. The problem is that when one examines all of these constitutions, they do not deal with the reality that Ireland faces of starting with a current text. While we may examine models and take certain forms of wording, the Children's Rights Alliance does not state, "You can take this from this constitution and immediately put it into the Irish Constitution and everything will work." Unfortunately, that is not the position, which is why we focused our presentation on where we felt the Constitution blocked the best interests of the child and non-discrimination. We need to address these matters with whatever form of wording is necessary.
The Children's Rights Alliance has deliberately not taken a definite position on the definition of "family". The moment we do this the debate will start off about the family and yet again children will be forgotten. For that purposeful reason we want to keep it focused on children's rights. Now is the time to look at that part of the Constitution; perhaps there will be other occasions on which to consider the definition of "family".
I will ask Ms Corbett to deal with the guardian ad litem issue. I can then revert to the age of consent issue.
Ms Maria Corbett
In addition to what Ms van Turnhout said, we are seeing the definition of "family" from the child's perspective. We are clear that we need a non-discrimination clause in order that court decisions may be made without the ground of the marital status of the child's parents being a factor.
The Deputy asked whether we were looking for express rights or enabling provisions in order that the Oireachtas could legislate. As regards the child's best interests and non-discrimination, such provisions should be made at a constitutional level. They should be expressed explicitly and included in the Constitution in order that they would be at the same level as the other constitutional provisions that allow the courts, when examining an issue or a case, to have in mind the best interests of the child, non-discrimination and the existing provisions in Articles 41 and 42. In that way, they would all have the same constitutional standing. That is an important position for us.
The guardian ad litem concept is one of the mechanisms whereby children can have their voices heard, as envisaged in Article 12 of the UN convention. This can be instrumental in defining the best interests of the child. I was asked how one could define the best interests of the child. The child’s voice is part of how the decision is made — not that they would have the ability to decide it themselves, but that their wishes would be taken into account and one would have an understanding from the child’s perspective as part of the decision-making process. We have the guardian ad litem service in public law but there are difficulties with it and there is no statutory definition as to how a guardian operates. A committee is examining the issue and we are hopeful there will be a positive outcome.
As regards private law, we have a statutory provision in the Children Act 1997, but it has never been brought into force. Therefore, even as teenagers, children who are involved in contentious divorce or access cases, with proceedings before a court, are not entitled to have their voices heard. In the FN case to which we referred, concerning two teenage girls aged 13 and 14 years, the court cleverly allowed them to have their wishes included in the hearing in order that they could be part of the decision.
Ms Jillian van Turnhout
The Children's Rights Alliance does not have a position on the age of consent issue. We do not think it is necessarily a good role for us to play because we actually need to go back to the question we are trying to answer. The alliance strongly believes children have a right to be protected from all forms of abuse. Like everybody else, we want a rigorous child protection system which can deal effectively and quickly with those who abuse children and which does not increase the trauma of the child victim. The difficulty for the alliance is that within our membership there are differences, as there are within the committee, on whether legislative or constitutional change is needed. While the talking continues, we have not done anything to protect children further. The alliance is not convinced that the lack of a constitutional amendment is blocking progress. With the greatest respect, we suggest the process of drafting legislation should commence. That would clearly signpost if there was a constitutional block and what needed to be done. We believe that it is a complex area.
Including the issue of strict liability?
Ms Jillian van Turnhout
Strict liability, the age of consent and the surrounding issues. It is an extremely complex area. It is extremely nuanced. It needs to be teased out in legislation. By doing this, perhaps then we can see if there is a constitutional block.
We have consulted widely, as we know the committee members have as parties, individuals and a committee. We have got different interpretations of strict and absolute liability, as no doubt the committee has. That is why we see the need to start without delay to look at legislation and then to signpost. We appreciate that the committee's deliberations have been going on for some time but we have not moved any further on this question either. I suppose that is where our position is and that is why we feel we would like, as I stated today, to talk about children's rights.
I join others in welcoming the Children's Rights Alliance again to the committee and to compliment its members on the clarity and quality of the material and documentation with which they have furnished members.
Deputy Ó Caoláin asked about the convention and the delegates touched on the different options as they see them. They touched on the two options they thought were available to the committee. The first was incorporation of the convention and the second was to incorporate certain principles from the convention as expressed rights, etc. In fairness, they stated, and we must respect this, that the wording is a matter for us, not for them. I suppose it is a matter for the Oireachtas, ultimately, but for this committee to advise as best it can. I will not press the delegates for their own wording, therefore, because I am aware they do not have one to propose to us.
What do the delegates say about the wording contained in the Twenty-eighth Amendment of the Constitution Bill 2007, which provides as follows: "The State acknowledges and affirms the natural and imprescriptible rights of all children." It then goes on to cite the various other proposed provisions. Do they have a view on the adequacy or otherwise of that draft that is before us?
On the issue of the potential conflict of rights the delegates raised in the presentation and which Deputies Howlin and Ó Caoláin raised with them, I can understand their reluctance to countenance or at least over-emphasise conflict in rights, in other words, that they are inclined to say it need not be a conflict. They made the point that we forget too often that it is the parent who champions their child's rights. They made that point many times, and I understand it.
However, the issue does arise in these deliberations because it must arise. Otherwise the insertion of a provision into the Constitution potentially would be meaningless. I am not saying it is only meaningful in so far as it presents conflicts, etc., but even in the FN case the delegates mentioned, they explored the possibility that the case could have been decided differently. They said that the State's intervention should be proportionate, the use of which word I have sympathy with. Of course it should be proportionate and I think we all agree it should be. The problem is what the proportions should be. That is the difficulty. Inevitably, is it not the case that we will come up against cases where conflict or potential conflict arises and there is no point in us shirking that? In fairness, the delegates made the point that had that case gone to the Supreme Court, there would have been a certain block to that court deciding in a particular way. It is a rebalancing of rights and, therefore, there is potential conflict.
It also would not be adequate for us to state we only want to concentrate on children and do not want to talk about the family. We will not be able to have this debate without talking about the family because the constitutional provisions on the family are clear. It would be nice if we could carve a little area of debate around children's rights only and say none of the other issues matters. That will not be possible and we must confront that at some point. This is the time to confront it.
I will be uncharacteristically brief. I welcome the Children's Rights Alliance back again. I apologise for the fact that I must leave here at 5.55 p.m. because I have a commitment I must keep.
I have two comments to make arising from what was said. Would the Children's Rights Alliance agree with the view that there is a difficulty in providing for a children's rights amendment to the Constitution which includes addressing some of the adoption issues that were raised if we do not also look at Article 41 of the Constitution and the reference to parental rights being "inalienable and imprescriptible", especially that the inalienability concept of parental rights is inconsistent with a children's rights amendment of the nature envisaged? Indeed, it could even be suggested that the adoption provisions contained in the Government Bill are irreconcilable with Article 41 of the Constitution and would create considerable problems in their implementation, application and interpretation.
I am quite happy if the delegates' response on the second question is simply that they do not want to go there. I will disagree with them on one issue and raise a question about it. We in this committee have discussed at length the issues of absolute and strict liability. I believe there is an urgent necessity to reinstate an offence of statutory rape to protect young teenagers. It requires a law of absolute liability, in particular for those under 15 years. My understanding of all the advice given by the legal adviser to this committee is that one cannot have a law of absolute liability without a constitutional referendum.
I do not see how one can go about drafting the legislation and then work out whether we need a constitutional referendum. What this committee must do is agree the principles of the legislation we want to see enacted and then determine whether we can enact that legislation with or without a constitutional referendum. If the answer is we cannot, quite clearly one needs a constitutional referendum and perhaps the publication of the principles of the legislation in advance so that people understand what it means. I disagree with the delegates by saying that whereas I want us to hasten to reinstate the offence of statutory rape, I do not believe we can simply prepare legislation in a vacuum without a decision being made whether a referendum is to take place or not.
I have a couple of questions and comments. Some of my questions have already been asked and I will not ask them again.
I thank the delegates for coming along and echo the words of my colleagues on the comprehensive nature of the submissions and the documentation the delegates have given the committee. Clearly, a considerable amount of work, thinking and research has gone into it.
In the course of Mrs. van Turnhout's presentation, she mentioned that between 500 and 700 children are currently without the opportunity for adoption. These are children whose parents are married and thereby they are not eligible as such to be considered for adoption under the Constitution. I wonder are those figures correct. From where did they get that figure?
There was talk from people who attended the committee previously of there being children in such circumstances and that perhaps we could look at making a case for adoption through the provisions of the Child Care Act. Is that a possibility? If not, our guests are saying that they would like a constitutional amendment to be made in order that these children might be adopted. Does the wording before us specifically address that point? Is it adequate? Are our guests in a position to agree with that wording?
Our guests stated earlier that it is important for people to understand that while we are seeking to enshrine the rights of children in the Constitution, this should not be seen as a dilution or diminution of the rights of the family and that a balance must be struck. Have they undertaken research or conducted a survey, or are they aware if anyone else has done so, among parents regarding their perception of children's rights and their views on whether a constitutional amendment relating to those rights should be introduced?
On strict and absolute liability, our guests' submission appears to state that a constitutional amendment is not necessary but that they would like either the existing legislation to be strengthened or new legislation, which would create new offences for crimes against children, to be introduced. Am I correct in that interpretation? The submission indicates that it is really important that there should be a non-discrimination clause in order that all children might have the same constitutional standing. Does the section on the proposed wording before the committee deal adequately with that matter or should it be altered?
Ms Jillian van Turnhout
I will do my best to answer the questions that have been posed. No doubt Ms Corbett will be in a position to ably assist me.
The alliance made a submission in respect of the wording. We went through the proposed wording and tried to clearly indicate our position on it. However, we also tried to seize the opportunity and use our presentation today to engage in fresh consideration of a particular approach that might be taken. Anything we say supplements and builds on that.
As Senator Alex White stated, we have put forward two options. The first relates to the incorporation of the convention and the second to express rights. I appreciate what the Senator said and his comments will be reflected in the feelings of members of the alliance.
We view the word "proportionate" in the context of Article 42.5 and the threshold of intervention. Rather than waiting for failure, which is currently where the threshold lies, we are of the view that there should be a proportionate response. The State should not wait for a family to fail and then be obliged to remove a child from that family. We should, rather, move towards making families work. A proportionate and appropriate response would be for the State to become involved earlier. As opposed to waiting for families to fail, the State should intervene at an earlier stage.
The example I would provide in this regard is that of the public health nurse. This is a positive model of State involvement whereby families with newborn children are given access to public health nurses to allow them to cope with the new situation in which they find themselves. As a result, the State becomes part of family life in a very supportive way. This is the basis of the alliance's use of the word "proportionate".
Conflicts of rights will occur. That is why we have so many court cases and also why there are so many battles ongoing. We want to ensure that a child is part of the equation. We do not necessarily believe that his or her rights will supersede all other rights. There will be times when we feel they should be of paramount concern because the child is at the centre. In such circumstances a court should, where appropriate, take that into account. If included in the Constitution, the principle of the best interests of the child could enable the courts to examine the likely effects of decisions on children.
Children may not be directly before the courts in, for example, separation hearings but there will be a major impact on them as a result of the decisions handed down. At present, the courts dealing with separation hearings almost treat the question of which parent gets the child as one of entitlement rather than considering what would be best for that child. I accept that one party will not be satisfied with the outcome. However, we need to give our courts this enabling tool in order that they might use it when making decisions. There will be difficulties but it is important that children are part of the equation. They are currently invisible when it comes to decisions being made.
Deputy Shatter referred to adoption issues. We have provided a commentary on the wording in that regard. This is an extremely difficult matter. As a result of the status of the marital family in the Constitution, this sort of gazumps other rights. It is difficult to find a wording without taking into consideration the wording relating to the family. I agree that we cannot necessarily ignore it. However, we must consider whether Ireland is ready to examine the definition of the family and debate the matter in full. I do not know the answer and this issue is more in the hands of members than it is in mine.
In a debate that took place in the Seanad in 1976, Mary Robinson, who was then a Senator, indicated that the Constitution needed to be changed to strengthen children's rights. During the past ten years, I am sure all the members present spoke about children's rights to some degree. We continue to discuss those rights while generations of children are growing up. The Children's Rights Alliance is of the view that we need to change the Constitution in order that children's rights are included.
On adoption, children in marital families cannot be adopted. There is a clear constitutional block on that. We have all the legal opinion on this matter and we now need to find a clear way to deal with it. The alliance has concerns with regard to certain words in the current provision. For example, the word "may" is not strong enough and should be replaced with "shall". We have provided details in this regard. The eventual wording will determine our response. An explicit and detailed wording was used in the 2007 legislation. However, perhaps a more concise wording, which could be included in a new Bill, might be arrived at. If a referendum where held, the people would be in a position to know what would be the proposed wording and what would be its effect. I have no doubt that Ms Corbett will comment further on that matter.
On strict and absolute liability, the Children's Rights Alliance is not convinced. However, the alliance has over 80 member organisations and different members have different views, particularly when one considers the various categories of children with which they work and the diverse realities with which they must contend. We believe there is an opportunity for reform. Let us not take 1935 as our starting point. Why not take the opportunity to consider whether the defence included in the 2006 Act might be tightened. This could be done by means of the defence of honest belief, which would allow judgments to be made objectively and not subjectively and ensure that an accused person honestly and reasonably believed that a child had reached the relevant age. We could amend the law in order that this defence would not succeed where the defendant was reckless as to whether the complainant had reached the relevant age and introduce a due diligence clause so that an accused person must prove that he or she took reasonable steps to ascertain the age of the child.
Everyone is aware of the figures that indicate the number of people who abuse children and who are known to those children and their families. More than 90% of the children know the adult involved. Ascertaining the age is very clear in these cases. The legal and evidential burden of proof should be placed on the accused in order that the Act explicitly places the burden of proving the defence on the accused. We also believe there needs to be reforms to protect children when giving evidence in the criminal trial process and we point to the recommendations of the 2006 joint committee on child protection in this area. We need to examine how to prosecute when the person is in authority. The alliance also believes we need to create an offence of child sexual abuse and codify and reform sexual offences generally. We need to create a statutory definition of "consent" and the "capacity to consent".
Our concerns relate to the criminalising of peer relationships and the fact that it is not gender neutral regarding under 18s affected by the offence. We should not rely on the discretion of the Director of Public Prosecutions in any legislation put forward. The DPP is before the committee next week but no Legislature would advise that a discretionary principle be built in.
I refer to Senator Corrigan's questions. We obtained the 500 to 700 figure from the Irish Foster Care Association because we wanted to form a picture. When people have a figure, it helps crystallise in their minds the need for action. The alliance has put forward its response on the wording to date. I have answered the other questions, except the one on research. Barnardos, one of our member organisations, conducted research on the questions the Senator raised in 2007. I will request a copy and forward it to committee members.
Ms Maria Corbett
The Senator stated the adoption provisions could be dealt with through the Child Care Act 1991. I am not familiar with that line of thinking. Although the Adoption Act 1988 was constitutionally tested, it has been used in some cases but very rarely. It has not been the solution it was hoped to be.
Does the alliance feel the wording is adequate?
Ms Maria Corbett
We felt both provisions on adoption were adequate, except for the need to place the obligation on the Oireachtas as a constitutional requirement rather than an enabling provision and, therefore, to change "may" to "shall". We are happy with them otherwise.
We have a number of other recommendations relating to the legislation in practice.
What about the non-discrimination clause and the constitutional standing?
Ms Maria Corbett
The provisions attempt to broaden the rights to all children, for example, the entitlement to be placed for adoption and Article 42.5o to apply to all children. They are not strong enough. We need a separate, explicit recognition in a non-discrimination clause or equality provision. Although we acknowledge they are important where they are addressed, overall there is a need for something. The interplay between Articles 41 and 42 will depend on judicial interpretation. We are trying to make sure a stronger provision relating to that issue is included.
Ms Jillian van Turnhout
We appreciate the complex work before the committee and we offer the services of the Children's Rights Alliance. However, we need to move forward on this issue. We continue to promise children in Ireland and the public a children's rights amendment and a referendum. All political parties in their manifestoes in May 2007 committed to a referendum. Politicians talk about people becoming disenfranchised and I urge them to keep their promises or as one child said to me, "We're counting on you".
I thank Ms van Turnhout and Ms Corbett for their interesting presentation. We know where the alliance stands and they have enriched our discussion. The committee's work is coming to a conclusion and we will be in a position to make a recommendation to Government before too long. I am not sure whether it will be a unanimous recommendation but the ball will be in the Government's court after that.
At the next meeting, our legal advisers will come back with a discussion paper based on the four political party papers for our consideration.
The joint committee adjourned at 6.05 p.m. until 5 p.m. on Wednesday, 15 October 2008.