Dr Conor Oâ€™Mahony, CCJHR, UCC
For over two decades now, there has been a steady and growing body of expert opinion in Ireland calling for the constitutionalisation of childrenâ€™s rights in general and the welfare principle under Article 3 of the UNCRC in particular. In 1993, the author of the Kilkenny Incest Investigation Report, Mrs Justice Catherine McGuinness, stated that the effect of Supreme Court jurisprudence on the interplay between Article 41 of the Irish Constitution and the statutory welfare principle is to â€œrender it constitutionally impermissible to regard the welfare of the child as the first and paramount consideration in any dispute as to its upbringing or custody between parents and third parties such as health boards without first bringing into consideration the constitutional rights of the family.â€ In 1996, the Report of the Constitution Review Group specifically recommended the explicit statement of the welfare principle in the text of the Constitution, along the lines of Article 3(1) of the UNCRC. This call was echoed by the Childrenâ€™s Rights Alliance in a report published the following year, and welcomed in 1998 by the UN Committee on the Rights of the Child , who recommended that the Irish Government take all appropriate measures to accelerate the implementation of the recommendations of the Constitution Review Group. Numerous reports and academic publications have continued to campaign for this reform.
This backdrop would suggest that there was broad agreement on the need to constitutionalise Article 3 of the UNCRC. However, the reform proposals that ultimately emerged from the All-Party Oireachtas Committee on the Constitution Tenth Progress Report: The Family in 2006 and the Twenty-eighth Amendment of the Constitution Bill are significantly weaker than the wording of Article 3 (see Kilkelly & Oâ€™Mahony, â€œThe Proposed Childrenâ€™s Rights Amendment: Running to Stand Still?â€  2 Irish Journal of Family Law 19). The timeline of developments on this issue shows that political momentum and opinion, having agreed with the views of experts and academic commentators for a significant period of time, has more recently shifted away from a sincere commitment to ensure that childrenâ€™s rights should be the subject of genuinely stronger constitutional protection. Something along the way has clearly caused the politicians, particularly in the two main political parties, to get cold feet.
The weak wording currently being proposed can be traced in part to some of the public submissions received by the All-Party Oireachtas Committee on the Constitution when preparing their Tenth Progress Report: The Family. The invitation for submissions put the question to the public: â€œDoes the Constitution need to be changed in view of the UN Convention on the Rights of the Child?â€ 22 of the submissions reproduced in the appendices were in favour of enhancing the constitutional protection for childrenâ€™s rights, generally by amending the Constitution to include a provision along the lines of Article 3 of the UNCRC. These submissions came from a variety of sources. Submissions from State agencies included the Irish Human Rights Commission, the Ombudsman for Children, the Adoption Board, the Heath Services Executive and the Department of Social and Family Affairs. Several of the political parties, including the Labour Party, were represented, as were organisations and charities working with children and youths such as the ISPCC, Barnardos, the National Youth Federation and the Irish Foster Care Association. The professional body for solicitors, the Law Society, also made a submission in favour of such an amendment, as did the main Protestant denomination, the Church of Ireland.
Set against this is a selection of 27 submissions which stridently opposed the constitutionalisation of childrenâ€™s rights, or any part of the UNCRC, or any attempt to alter the balance of rights as between the family unit and individual members of the family. When the source of these submissions is examined, it can be seen that there is a striking degree of overlap in terms of the people and groups represented by them. 10 of the submissions which were reproduced on this side of the debate came from organisations expressly identified as religiously based. Three of these were from Catholic organisations: one from the Conference of the Religious of Ireland, an umbrella organisation representing 138 Catholic congregations in Ireland, as well as separate submissions from two other Catholic organisations. Three of the submissions opposing change that were reproduced in the Report were from Baptist organisations; two were from groups describing themselves as â€œChristianâ€, and one was from an Islamic organisation. Of the remaining 17, 12 of the organisations identified as either pro-family, pro-life or both. The motivations of these groups can almost exclusively be identified, expressly or by implication, as being religious in nature, and this impression of overlap gains strength by the use of almost identical and quite distinctive language in a number of the submissions.
On the specific issue of the UNCRC, many of the submissions display a lack of basic understanding of the Convention. The Society for the Protection of the Unborn Child (Northern Ireland) state in their submission that â€œ[t]he Constitution offers greater protection of childrenâ€™s rights than the CRC, since the Constitution explicitly recognises the right to life before birth… As the Constitution already provides stronger protection of the rights of children than the CRC, no amendment is necessary. [A253]â€ While it is true that the Irish Constitution provides stronger protection than the UNCRC for the unborn child, no reasonable interpretation of the Constitution â€“ with its one vague reference to the â€œnatural and imprescriptible right of the childâ€ and its overwhelmingly parent- and family-orientated jurisprudence â€“ could possibly construe it as providing stronger protection for the born child than the comprehensive scheme of rights set out in the UNCRC.
Such a lack of understanding, along with a healthy degree of suspicion and even outright hostility, is displayed in many of the comments made regarding the UNCRC. Descriptions of the Convention range from â€œblandâ€ and â€œflawedâ€ at the kind end of the spectrum, to the view that it â€œlacks moral credibilityâ€, is â€œcontrary to the best interests of the childâ€ and has given rise to â€œoutrageousâ€ and â€œperverseâ€ interpretations at the less kind end. The Muintir na nÃ‰ireann submission (which, in spite of the grandiose name of the organization, was written in the first person) stated: â€œI donâ€™t think any views of the UN should be entertained with regard to the rights of the child while it actively promotes abortion as a means of birth control in third world countries. [A195]â€ The Christian Womenâ€™s Federation submission states that â€œ[w]hile the Convention contains some good principles, we do not require to be told by international bodies how to bring up children. [A41]â€ The European Life Network stated that the UNCRC
has the potential to cause a range of problems, including to â€œforbid home schooling of children by parentsâ€ and â€œgive children a â€˜right to privacyâ€™, which in practice gives children the legal right to tell parents not to interfere in their lives (and even make certain areas of their home off-limits to parents) [A63]â€. Since these points are not in any way clearly stated in the Convention, and the Irish Constitution expressly protects the right of parents to educate their children at home, not to mention their property rights, it seems fair to describe this submission as far-fetched in the extreme.
What can be gathered from the submissions reproduced in the appendices to the All Party Oireachtas Committeeâ€™s Tenth Progress Report: The Family is that there is a well-organised and vocal lobby who are opposed to any attempt to strengthen the constitutional protection for childrenâ€™s rights and best interests in Ireland by constitutionalising Article 3 of the UNCRC. The nature of the sources of the submissions and the content of some of them make it possible to question just how large this lobby is, given the degree of overlap between the submissions and the relatively small number of people represented by some of the organisations involved. It is perhaps also possible to question how well informed some elements of it are. Nonetheless, the lobby is not insignificant, and is certainly sincere in its views. The consequence of this is that the two main political parties, who cannot afford to alienate groups who identify themselves as religious, pro-family or pro-life, prefer to avoid the prospect of engaging in a very public and potentially bitter debate with voters that they wish to court.
As against this, the parties are also faced with an overwhelming body of expert opinion regarding the correct course of action, and â€“ as the submissions made in favour of reform demonstrate â€“ this side of the argument also enjoys significant support. Therefore the Oireachtas is trying to be seen to be responding to the calls for reform by putting forward an amendment; but, as the main parties are running scared of a vocal lobby opposing reform, the wording of the amendment currently being put forward is disappointingly weak and in its latest form changes nothing. In this sense, the Oireachtas is caught between two stools and risks satisfying neither party. A principled stance on the part of the Oireachtas is what is required at this crucial juncture: if an amendment is to be put to the people, then surely it should be one that offers a genuine prospect of change. This can only be achieved through putting forward an amendment that would genuinely address the imbalance between the rights of the child and the rights of parents and the family unit, through the constitutionalisation of the welfare principle in terms similar to Article 3 of the UNCRC.