Irish Times Opinion piece – Children’s rights must be at heart of major decisions

It is five years ago this month, in November 2006, when the late Brian Lenihan invited me to meet with him to discuss children’s rights in advance of drafting what was to become the Twenty Eighth Amendment of the Constitution Bill, 2007. It was clear he was going to attempt to achieve consensus and hold a referendum in advance of the general election in 2007. The support of the Ombudsman for Children for the amendment was important to him.

What ensued politically was, in my view, detrimental to the advancement of children’s rights in this country – the de-coupling of the issue of child protection from the general children’s rights debate.

For 7 years as Ombudsman for Children, I have watched politicians domestically and internationally speak out about child protection and the need to strengthen legal measures to protect children from sexual predators. However child protection is a politically popular theme, a safe area that will always garner public support.

Much of the commentary on the need for constitutional change has quite rightly focused on the limitations of unremunerated rights under the Constitution in the context of judicial decision-making.

However, the area in which I perceive an amendment to the Constitution as having a greater potential impact is decision-making in the civil and public service. There are many children whose lives are unaffected by decisions of the courts; there are none that are unaffected by the decisions of public bodies of some sort, be they Government Departments, local authorities, health service providers or schools.

Changing the Constitution has the potential to facilitate a change in the culture towards children across the full range of public administration. It is important that we get the message right in the primary legal document in the State. Unlike in other countries where a written Constitution can be an abstract document, our Constitution has a real impact on every day decision-making in Ireland. It reflects who we are as a society, what we value and how we operate. The rules and principles it contains define our cultural values about children, our legal framework and they also provide direction to decision makers of every level in public life.

Culture and attitude matter; if there is one lesson that we should learn from Ireland’s failure to protect children in the past, it is that violations of children’s rights occur against a background of ideas and preconceptions that shape the thought and actions of individuals and organisations. Moreover, acts or omissions do not have to be egregious to have an adverse effect on children and one should not underestimate the capacity of careless administration and decision-making – as distinct from wilful neglect or intentional harm – to have a serious impact on a child’s life.

My Office published an audit of a number of key investigations earlier this year, including cases relating to housing for children with special needs, supports for foster carers, local authority decisions regarding tenancy, educational supports for children with special needs and the death of a child in care. The findings of this audit echoed a point that has become abundantly clear to me in looking at the thousands of complaints made to my Office since its establishment: there is often no systematic attempt to consider or analyse the impact of decision-making on children in the way that other matters such as financial resources, staffing and industrial relations issues are considered. In many instances, the child at the centre of a decision-making process is effectively invisible and there is little awareness of how quickly harm can be done to children through inaction. Moreover, there is no systematic attempt to consider the views of children at the heart of that process; their voices are not heard.

Cultural change within organisations involved in public administration is about altering mental habits and the basic questions that are asked when framing policy or delivering services. With respect to children, what I would like to see is that any public body with responsibility for decision-making that affects children should be obliged to consider and have due regard to the impact that the decision will have on children and to consider to hear children’s views in matters affecting them, with due regard to the child’s age and maturity.

The concern has already been expressed by civil servants across three Departments – health, justice, and education – on the ‘unintended consequences’ of such an amendment. Most worrying was the apprehension about having to consider the best interests of children.

So, a process is in place to develop yet another proposal to amend the constitution. While Minister Shatter informed the Human Rights Council on October 6th that this would take place in spring of 2012, I doubt very much if the government have any appetite for this referendum so soon. I expect, once again that children’s rights will be kicked into touch, at least until late 2012, or until the time is right, the question is right for who?

Children and families deserve no less.

• 23 November 2011
• Type: Statement