Speech by Emily Logan at event hosted by the Irish Women Lawyers Association

Moving to a culture of respect for children in Ireland

Introduction

This is indeed an opportune time to be talking about building a culture of respect for children in Ireland. Seeking Constitutional change has been at the heart of my work as Ombudsman for Children since my first year in Office. The proposed amendment to insert a new provision in the Constitution aims, according to the Minister for Children and Youth Affairs, to draw a line in the sand with respect to the state’s treatment of children and to put in place the building blocks on which such a culture of respect for children and their rights can be built. Few query that the intention to create a culture of respect for children in Ireland is an important and laudable goal. The question is, however, how this can be achieved. In this respect, there is no scientific formula that can be applied to ensure that the correct steps are taken to achieve a culture of respect for children. There is no fail-safe way to determine with certainty that if we take certain measures, children will have better lives. But there are measures – both legal and non-legal – that can be adopted that will promote the likelihood of this outcome.

Introducing Children’s Rights

Before talking about how to create a culture of respect for children, it is first important to outline what I mean by children’s rights. In general, children’s rights are drawn from international law in the form of the UN Convention on the Rights of the Child, which was adopted unanimously by the United Nations in 1989. Ireland ratified this treaty in 1992, twenty years ago. The CRC enjoys enormous consensus as a matter of international law and some argue that this gives children’s rights a ‘super status’ beyond their legal significance. The genesis of children’s rights dates back to the 1924 Declaration of the Rights of the Child. The Declaration placed the responsibility for rights with ‘men and women of all nations.’ The Convention was ground breaking because it recognised that children are worthy of respect as human beings, not as the property or appendages of others, not as mini-adults, or citizens in the making, but as real human beings with real human rights. The Convention embodies this principle – which was roundly endorsed by states who ratified it in greater numbers than any other treaty – by acknowledging, as the Preamble says, that children are as entitled to human dignity and respect as any member of the human family. The second significant element of the Convention was that it recognised that the state was the duty bearer, in other words that the state held the obligation to vindicate and protect the rights of children. This will not sound strange to those of you who are familiar with human rights law – which rests on the foundation of the citizen’s rights being vindicated by the state – but for those who work in child and family law – who know the reality of children’s lives – you may well appreciate this as a shift in thinking. In short, the CRC recognises that children are rights –holders and the state – not parents or carers – are the ultimate duty bearer. Of course, in reality many children will need support and assistance to exercise their rights and in many cases, children’s carers will be the ones to protect their rights. The contribution of children’s rights, however, is to recognise that regardless of whether children are fortunate enough – and it is luck sometimes – to have carers to protect, uphold and support them to exercise their rights – the state must provide the safety net by ensuring that those rights are protected. The complexity of children’s rights is undoubtedly that there are three parties in the relationship – children, parents or carers and the state – and all three of these are essential if the potential of children’s rights to protect and advance children’s interests is to be fully realised.

Under the Convention children have rights that are often divided into three categories: Protection rights concern children’s right to be protected from all forms of harm, from abuse and neglect and from exploitation including economic and sexual exploitation. Provision rights include those rights that cater for children’s basic needs – health, education, a decent standard of living, play and leisure rights. And finally Participation rights are concerned with children’s status as individuals with a contribution to make to the world around them, these are about children are active agents, with evolving capacity and a right to a say. They include the right to be heard in matters that affect them, the right to information and to express and communicate their ideas and thoughts. The Convention has four general or guiding principles:

Article 6 is the right to life, survival and development – this right is the basic right that every child must enjoy if they are able to enjoy their other rights;

Article 2 acknowledges that children have the right to enjoy their rights equally and without discrimination;

Article 3 sets out that in all actions concerning children, the best interest of the child must be a primary consideration. Under the Convention this must apply to administrative and judicial decision-making in all areas of children’s lives;

Article 12 contains the right of the child to be heard, and to have his/her views taken into account in all actions affecting the child, in line with the child’s age and maturity. Article 12 also recognises the right of the child to representation to ensure that his/her views are given adequate consideration by decision-makers.

Implementing Rights – Legal Measures

Article 4 of the Convention makes it explicit that states must undertake ‘all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention’. There is therefore an unequivocal duty on Ireland, having ratified the CRC, to take all appropriate measures to implement the Convention. However, the Government (like governments everywhere) enjoys huge discretion as to what measures are to be taken and various factors will determine how effective these measures are in implementing children’s rights: attitudes and expectations to name just two.

However, research has started to shed light on which measures are most likely to produce the desirable effect of creating a children’s rights culture, or, in other words, to implement the Convention effectively. This map or pathway was charted by the Committee on the Rights of the Child in its General Comment adopted in 2003 on General Measures of Implementation, designed to help states to implement the Convention. In short, the Committee identified that legal and non-legal measures need to be taken to advance respect for children’s rights at a national level.

1. Legal Measures

The Committee on the Rights of the Child has highlighted the legal and indeed constitutional measures that it believes are necessary to ensure that children enjoy all their rights. The Committee has welcomed the inclusion in national constitutions of sections on the rights of the child, which reflect key principles in the Convention and which help to underline the key message of the Convention that children alongside adults are holders of human rights. However, it has noted that this inclusion does not automatically ensure respect for the rights of children and that the full implementation of these rights, including, additional legislative and other measures may be necessary.

With respect to which legislative provisions are required, the Committee has welcomed the emergence of consolidated children’s statutes – where the law sets out all the rights and entitlements of children in one place – and has highlighted that this serves to emphasize the Convention’s principles. In addition, it has stressed that all relevant “sectoral” laws (on education, health, justice and so on) must also reflect consistently the principles and standards of the Convention. This is a specific recommendation that the Convention’s core provisions be incorporated explicitly into our national laws, not just on family law or child protection matters, but in all relevant areas. To date, however, we have made little progress in this area. Although the principles in articles 3 and 12 can be found in the Child Care Act 1991, for example, they are not represented in the Education Act 1998. Moreover, references to these principles that are set out in the Children Act 1991 (on youth justice) are confined only to specific aspects of the process (eg sentencing by courts under section 96) and do not apply as general principles to the treatment of children by all relevant state agencies like the Probation Service, Detention Schools etc. In other countries, consolidated children’s statutes appear to be emerging as a trend in legislative reform.[1] A 2008 UNICEF report indicated that an estimated 69 States Parties to the CRC have enacted consolidated children’s statutes; Ireland clearly has some way to go.

2. Non-Legal Measures

It is clear, however, that even in countries with near perfect laws (and they do exist – eg Norway), children do not always enjoy their rights and in this regard a range of non-legal measures are required to ensure that those rights set out in our laws are properly enforced and implemented. To deal first with enforcement, it is clear that accountability is key to the protection and advancement of children’s rights and this is my core function as Ombudsman for Children. My office has a range of responsibilities which are focused on holding the state to account for the protection and promotion of children’s rights. Of course there is the traditional and well understood function of independent complaints handling of any Ombudsman’s Office. However what has been interesting for me is the increasing value attached in terms of positive outcomes for children in the utilisation of our section 7 functions to consult directly with children. An example of this is our work in St. Patrick’s Institution – we consulted with 35 16 and 17 year olds about their experience. This has resulted in the Minister issuing a warrant since 1st May to prohibit the detention of 16 year olds, an extension to the remit of our Office to include St. Patrick’s and an accelerated transition of the 17 year olds out of St. Patrick’s.

Enforcement of children’s rights also comes about through the judicial and legal systems and this is where the first part of the proposed amendment has real potential to bite. Under Article 42A the state recognises and affirms the natural and imprescriptible rights of the child and commits itself by its laws to vindicate and protect those rights. Although it will be open to the courts to articulate and enumerate what these rights are, there is no doubt that this provision could, if used, be a powerful weapon for those seeking to advocate and advance the rights of children through the legal system. As a quasi-judicial institution the Ombudsman for Children’s Office operates between civil society and the Courts. As a result of our investigatory experience I personally favoured an approach that would have placed obligations not just on the legislature and judiciary but also on other organs of the State involved in civil and public administration.

The Committee on the Rights of the Child has highlighted that ‘for rights to have meaning, effective remedies must be available to redress violations’. Children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. In Ireland, children continue to need a ‘next friend’ to initiate legal action and this poses problems where children do not have such a person to support their pursuit of a judicial remedy. The Committee on the Rights of the Child has highlighted that States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance. These rights were recently expanded in the Council of Europe’s Guidelines on Child-friendly Justice (2010) which have drawn a clear picture of what an accessible, rights-compliant justice system looks like. In particular, the Guidelines recommend training for all legal professionals, highlight the importance of ensuring accessible information and procedures are available to children and they recommend that a multi-disciplinary approach be adopted in all children’s cases whether the child is a victim, accused or a witness. Major work is underway in the Council of Europe and in the EU to make these Guidelines a reality.

According to the Committee on the Rights of the Child, the development of a children’s rights perspective throughout Government, parliament and the judiciary is required for effective implementation of the whole Convention. In addition to getting the constitutional and legislative framework right, therefore, effective respect for children’s rights requires the establishment of coordinating and monitoring bodies, comprehensive data collection, awareness-raising and training and the development and implementation of appropriate policies, services and programmes. These so called non-legal or soft measures are hugely important in the advancement of children’s rights and the development of a culture of respect for children. Training is arguably the single most important contribution that can be made towards the development of a culture of respect for children: imagine how practice would change if everyone who works with and for children was specially trained not only in children’s rights but in child development and psychology? Imagine the impact of generating a clear understanding of children’s lives among professionals in the legal system or what a difference it would make if lawyers and judges were all fully trained in communicating with children and in child advocacy? Imagine the impact too of a specialist group of child lawyers, trained in child law and children’s rights and dedicated to providing quality representation to children and young people? It is surprising, perhaps, that we have not yet taken this step in Ireland and that legal education for those who choose such a specialist profession is still so relatively under-developed in this jurisdiction when it is so well advanced in others. And how long more can we wait for a specialist judiciary, with dedicated child or youth courts operating in line with children’s rights standards and the principles of child-friendly justice?

Conclusion

Clearly everyone has a role to play in creating a culture of respect for children and their rights. No single measure will create this culture, but taken together a range of steps including both legal and non-legal measures are essential. These must begin, in any country, with ensuring that what is in place is a solid constitutional footing for children’s rights; what should then follow is a clear legislative basis for children’s rights – in all areas of their lives – underpinning decision-making in both administrative and judicial matters and circumscribing the exercise of discretion by those who work with and for children. Accessible complaints mechanisms and effective remedies for holding the state to account will support the effective implementation of legislation. While sticks may work – and are sometimes essential – there is also a role for more positive steps to be taken to create a culture of respect for children’s rights: training and public education will ultimately build consensus about how children should be treated and establish, beyond doubt, the expectation that nothing less will do. Only when this change of attitude takes place will the culture have firmly taken hold.

[1] UNICEF (2008) Global Perspectives on Consolidated Children’s Rights Statutes, Legislative Reform Initiative Paper Series. Division of Policy and Practice, New York.

• 1 Samhna 2012
• Cineál: Óraid