Rights-based approach to child law

In today’s Irish Times Dr Ursula Kilkelly explores the increasing impact of international law on Ireland’s family law. The sources of international law in this area not only include the seminal Convention on the Rights of the Child, but also law emerging from the Hague Convention on Private International Law and from Europe (Council of Europe and the European Union). As Dr Kilkelly notes

Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.

She goes on to highlight that the more recent significant development in this area is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. Importantly, the Charter requires that the best interest of the child is a primary consideration in all actions concerning children. It also expects that children’s views be taken into account in matters that concern them. It is clear that in this area the Charter reflects the approach of the CRC and is as a result likely to of major importance in Irish domestic law.

Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms…. Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.

Ultimately, whilst Dr Kilkelly notes that

[T]he complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.

She also concludes that there are many positive opportunities that will flow from these fast changing developments:

For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.

COE Human Rights Report on Ireland Released

As part of his visit to Ireland last November, COE Commissioner for Human Rights Thomas Hammarberg visited the Centre for Criminal Justice and Human Rights and met with members to discuss and highlight issues of particular concern. This visit is mentioned in his Report which was released yesterday. The Report makes a total of 34 Recommendations, which are listed below. The Government of Ireland’s response to these recommendations is included as an Appendix.

National system for protecting human rights

– Ratify Protocol No. 12 to the European Convention on Human Rights and the Convention on Action against Trafficking in Human Beings.
– Adjust the legal aid scheme to the extent that it reflects actual cost of living standards.
– Review the mandates of the different human rights complaints bodies with a view to optimising their effectiveness and independence as well as closing current protection gaps, with particular reference to the remits of the Ombudsman and the Ombudsman for Children.
– Provide comprehensive and comparative information to the public on the mandates and functions of different complaints mechanisms.
– Facilitate the interaction of authorities with civil society representatives at all levels to ensure that their experience and expertise can benefit policy formulation and implementation.
– Conduct a base-line study to assess the extent to which human rights are integrated into education and training, so that further needs can be identified and addressed for ensuring that human rights awareness reaches all walks of society.
– Develop a national action plan on human rights as an inclusive process for continuously improving human rights in Ireland.

Children’s rights

– Implement the National Action Plan for Social Inclusion 2007-2016 so as to significantly reduce the number of children experiencing consistent poverty.
– Use the opportunity of the proposed constitutional amendment to incorporate the best interests of the child as a general principle in the Irish Constitution, in line with the UN Convention on the Rights of the Child.
– Prohibit corporal punishment of children in a comprehensive way.
– Provide for professional care in the accommodation facilities for separated children and assign a guardian ad litem to each separated child.
– Address the increasing demand for choice within the educational system, in particular with regard to cultural and religious diversity.
– Provide adequately resourced separate facilities and services for minor psychiatric patients, and make early intervention at a local level possible for such children.

Juvenile justice

– Ensure full implementation of the Children Act 2001 and its sentencing principles, for example, by providing guidance and specific training to the judiciary.
– Develop further the system of alternative sanctions for juvenile delinquents and ensure adequate funding for the system across the country.
– Review the current system of Anti-Social Behaviour Orders so that it does not lead to an increased use of detention and ensure its independent monitoring.
– Apply the Children Detention School model when the detention of juvenile offenders is deemed a necessary measure and discontinue the imprisonment of children in adult facilities.

Non-discrimination and women’s rights

– Review the resource needs of the Equality Tribunal to minimise its backlog of cases.
– Clarify the scope of legal abortions through statutory law in line with domestic jurisprudence and provide for adequate services for carrying out such abortions in Ireland.
– Change the law on birth registration in such a way that transgender persons can obtain a birth certificate reflecting their actual gender.
– Provide the National Office for the Prevention of Domestic, Sexual and Gender-based Violence with adequate resources for the effective fulfilment of its broad mandate while, in particular, ensuring effective support for women victims of violence through services supplied by both state and civil society operators.

Measures against racism and xenophobia

– Monitor the implementation of the National Action Plan against Racism and the local anti-racism and diversity plans in close cooperation with civil society and ethnic and cultural minority representatives, while preparing new action plans to succeed the current ones.
– Improve data collection on racist and xenophobic incidents.
– Provide for the racist motivation of a crime to be considered as an aggravating circumstance in Irish criminal law.

Situation of Travellers

– Work closely with Travellers when preparing, implementing and monitoring policies and programmes designed for the Travellers.
– Promote the participation of Travellers in political decision-making at local and national level.
– Ensure that Travellers are effectively protected against discrimination and racism under national and international law.

Treatment of migrants and asylum-seekers

– Ensure that the right to remain in Ireland during the procedure is granted to asylum-seekers who appeal asylum decisions which raise questions in relation to Article 3 of the European Convention on Human Rights.
– Reconsider the provision in the proposed Immigration, Residence and Protection Bill which would direct costs for so called “frivolous and vexatious” proceedings to the legal counsel of the applicant.
– Provide family accommodation to families with children seeking asylum in Ireland.
– Introduce temporary work permits for asylum-seekers.
– Introduce statutory provisions regulating family reunification for all groups of people.
– Implement the principle of the best interests of the child in decisions within the field of immigration and refugee law related to children.

Fight against terrorism: extraordinary renditions

– Review the current inspection and monitoring arrangements in Ireland with a view to ensuring that effective and independent investigations are carried out into any serious allegation of extraordinary renditions

Plenary Session 2: Thomas Hammarberg – Youth justice based on child rights norms

Commissioner Hammarberg (Council of Europe Commissioner for Human Rights) opened his address by highlighting the fact that east is starting to look west as many countries’ systems have failed from a human rights perspective and also from a recidivism perspective. He gave some examples of countries to the east of Europe that have criminal justice systems that are far from desirable; where there is disproportionate imprisonment of ethnic minorities and difficulties within youth detention centres. Having highlighted a number of problems being experienced in the east of Europe, he then went on to focus the remainder of his presentation at Ireland and the UK

The Commissioner noted that he had just arrived from inspecting detention centres in England and a report is due out in 2008. Previous reports have criticised the UK for the large numbers of young people in detention; a situation that Hammarberg noted has yet to be addressed. He also noted in particular the use of restraints in youth detention centres and the ongoing debate as to what types of restraints are permissible. This is an issue that Mr. Hammarberg believes there is a striking focus on in the UK, perhaps more so than in other countries. He then went to note that as the UK is seen by other countries as an important role model, it is imperative that it would bring its system in line with international standards. He referred to the unanimity between academics and practitioners over how the English system ought to operate, but also that media and public opinion may make it difficult to make these changes from a political perspective.

Commissioner Hammarberg then moved on to consider the age of criminal responsibility, which he noted was too low in both the UK and Ireland (in spite of the fact that there is no actual age specified in the international standards). He went on to say that too many young people are being brought into the system and labelled as criminals when in fact they are victims of their background. There are many more detained who should be in special units to tackle their mental issues. He referred briefly to his recent examination of the Irish youth justice system although he could not go into much detail as the report is due out at the end of April. There will be a number of recommendations in the report.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

17th General Report of the Council for the Prevention of Torture (CPT)

The European Committee for the Prevention of Torture, Inhuman and Degrading Treatment and Punishment (COE) last week released its 17th Report on its General Activities in which secret detentions of suspected terrorists are a primary concern. The right to be free from arbitrary detention, which includes a right to challenge the lawfulness of detention, is provided for in Article 5 of the European Convention on Human Rights as well as in all other major international human rights treaties.

The Inter-American Court of Human Rights has held that the right to challenge the lawfulness of one’s detention is a non-derogable right because of the risk posed to people held in detention, including the risk of being subjected to torture (Advisory Opinion on Habeas Corpus in Emergency Situations). The European Court of Human Rights has not to date expressly held that Article 5 rights have a similar non-derogable character, but the focus on detention in this report might suggest an attitudinal shift within the COE to that position. The following passage from the Preface of the Report is particularly interesting and echoes the UN Committee on Torture’s conclusion last year that incommunicado detention in itself might be considered torture or inhuman and degrading treatment:

It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.

Secret detention can certainly be considered to amount in itself to a form of ill-reatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails – the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer – inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.