I thank the members for the opportunity to address the committee this morning. I propose to address two key questions relating to the relationship between the incorporation of the Convention on the Rights of the Child and Article 42A of the Irish Constitution. My key points will be that incorporation offers an opportunity to mitigate the quite narrow and limited focus of Article 42A and that Articles 41 and 42 of the Constitution, relating to the rights of the family and parents, do not present any barrier to incorporation.
On the first point, committee members will recall the 2012 referendum that led to the enactment of Article 42A. The rationale expressed for the amendment during the referendum campaign related to making a clear statement of the value of children as independent rights-holders, putting children at the centre of decision-making and protecting vulnerable children. These are very lofty motivations but they deflected from the fact that Article 42A was in fact a very modest and limited reform. Its main concrete impact was to make it easier for children in long-term foster care to be placed for adoption without the consent of their parents. It has acted as a catalyst for some change in the law governing the duty on courts to ascertain the views of children in certain cases.
Beyond that, the experience since Article 42A came into effect has been that very little has changed. Challenges in sectors such as child protection, education, healthcare and immigration are just as acute as they were in 2012. In some sectors, particularly homelessness, they are significantly more acute. Legislative reform related to children's rights has been slow and often unambitious. The courts have not made any decisions based on Article 42A that would indicate a meaningful new constitutional position on children's rights.
When Article 42A is compared to the text of the Convention on the Rights of the Child, the differences are quite stark. Article 42A does not define what rights children have. If one compares this to the Convention on the Rights of the Child, one will see it is made up of 41 articles and several optional protocols that detail the rights children have, many of which are not protected by the Constitution. Even for those parts of Article 42A that do replicate aspects of the Convention on the Rights of the Child, such as the best interest principle and the right of children to be heard, the language of Article 42A is much narrower than the Convention on the Rights of the Child, applying only to specified court proceedings rather than to all matters concerning children, which is the language of the Convention on the Rights of the Child.
The wording of Article 42A does very little to follow through on the commitment to children's rights that motivated its enactment. It has not stimulated ambitious legislative reform on children's rights and where laws and policies fail to respect children's rights, the restricted wording of Article 42A means that constitutional litigation is highly unlikely to force positive change.
Incorporating the CRC into Irish law has the potential to reach the places where Article 42A cannot. It would provide child-specific legal recognition of a wide range of rights, many of which are not currently protected by the Constitution, such as the rights to healthcare and housing, disability rights, protections for unaccompanied migrant children, and the rights to protection from economic exploitation and protection for child victims. A more detailed list is provided in my separate briefing document.
My second point is simply to head off at the pass any potential claim that incorporation of the CRC might face a constitutional impediment. In Ireland, proposed reforms are often ruled out by Governments on the basis that some constitutional barrier would prevent them. In anticipation of the possibility of any such claim being made with respect to the incorporation of the CRC, I want to pre-empt those claims and place on the record my considered view that no inconsistency arises as between the Constitution and the CRC.
The obvious basis for any such claim in this instance would arise from Articles 41 and 42 of the Constitution, which recognise the rights of the family and of parents to make decisions regarding the education and upbringing of their children. There can sometimes be a lazy stereotype that children's rights and parents' rights are a zero-sum game, that you cannot grant more rights to children without taking away from the rights of parents. However, this overlooks the fact that, for the most part, the rights of children and of parents are not actually in tension with one another. Parents are normally the ones who advocate most strongly for the rights of their children to be vindicated by the State. In a huge range of cases, granting stronger rights to children will in fact strengthen the hands of their parents when seeking better education, healthcare or housing for their children.
The CRC itself specifically recognises and protects the role of parents in the exercise of children's rights. The preamble to the CRC uses language strikingly similar to Article 41 of the Constitution when it describes the family as "the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children". This is bolstered by Article 5 of the CRC, which requires states to "respect the responsibilities, rights and duties of parents ... to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the [CRC]." Children's rights scholars therefore agree that the CRC places considerable emphasis on the importance of the family and of the role of parents, and that it was never intended that the CRC would undermine the family unit in any way.
The Constitution, likewise, recognises the rights of children but it presumes that those rights are normally best protected by their parents within the family. However, it also sets limits to this presumption and provides for intervening in family life to protect the rights of children. Heightening the legal obligations on the State to vindicate children's rights through incorporating the CRC will provide families with better remedies in cases where the State fails to do so. It will not undermine the constitutional position of parents and the family, for the simple reason that the CRC is based on the same premise as the Constitution, namely, that in the vast majority of cases, parents are best placed to make decisions for their children.
Many thanks for inviting me to speak to the committee. I am very happy to answer any questions members might have.
