Check Against Delivery Barnardos Conference on ‘Children’s Rights and the Constitution’ - Address by Mr Brian Lenihan, T.D. Minister for Children
6 November, 2006
Introduction
I am delighted to be here to address the Barnardos Conference on ‘Children’s Rights and the Constitution’. As a leading children’s charity, Barnardos are engaged in the provision of services right across this country. This leads to an understandable focus on the needs and rights of children.
Indeed it is opportune that you should be having your conference on this important subject here today given the Taoiseach’s announcement last Friday that a referendum on children’s rights should take place. There has been a universal welcome for that announcement among the organisations who work for the welfare of children, all of whom are represented here in this audience. We need your valuable energies, your considerable expertise and your proven commitment to be brought to bear on the issues to be addressed in the debate that is about to begin: how should we amend the constitution and what should be the content of any referendum we put to the people.
Many of you in this room will know that I have for long held the view that there is a need for a referendum on the place of children in the constitution. The Taoiseach has shown a great interest in this issue in the last year whenever I have raised it with him. He is very open to constitutional change in this area. I am delighted with his announcement last Friday. Incidentally, I believe that the establishment of the Office of the Minister for Children and my attendance as its political head, at the Cabinet table had no small part to play in that announcement. Those changes, which we introduced just under a year ago, have focussed minds on children’s issues in a manner unprecedented in this country which will be of lasting benefit to all our children into the future.
Let us trace the development of the argument for constitutional change on children in this country. The need for such change was first voiced by Judge Catherine McGuinness. Her Report on the Kilkenny Incest Investigation found that ‘the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children’.
The matter was then addressed by the Constitution Review Group which reported in 1996. The Constitution Review Group agreed that the current constitutional position was deficient in several significant respects. It recommended that the Constitution be amended to include the welfare principle and to provide an express guarantee of certain other children’s rights deriving from the United Nations Convention on the Rights of the Child. Indeed, the UN Committee on the Rights of the Child in examining Ireland’s first Report on the implementation of the Convention in 1998 stated ‘that Ireland’s approach to the rights of the child appears to be somewhat fragmented’.
The Committee further reiterated the need for constitutional change having outlined its concern that Ireland’s ‘welfare practices and policies do not adequately reflect the child rights-based approach enshrined in the Convention’. It urged the accelerated enactment of the Constitution Review Group’s recommended reforms.
In their magisterial work on the constitution, Hogan and Whyte have claimed that the Constitution has ‘engendered a judicial approach which tends to emphasise the rights of the adults, on some occasions to the detriment of the rights of the child’, remarking on how ‘this approach has … led to decisions which arguably did not best serve the welfare of the child’.
The 1997 to 2002 Programme for Government contained a commitment that the issue of a constitutional referendum on children’s rights be referred to an all-party Committee on the Constitution. That Committee reported last Spring. In their report the All Party Committee recommended that a new section should be inserted in Article 41 dealing with the rights of children as follows:
All children, irrespective of birth, gender, race or religion, are equal before the law. In all cases, where the welfare of the child so requires, regard shall be had to the best interests of that child.
As I have pointed out on several occasions, the recommendations of the Committee have not found favour among those who have been concerned with this issue.
It was in this context that I undertook in my Office an article by article review of the constitution to examine how it impacts on children. An amount of work has been done on this review by the Attorney General and myself. The purpose of this exercise is to identify where the constitution requires to be made more child friendly. I have now asked Geoffrey Shannon, who is one of the special rapporteurs on children, to assist me in completing this article by article review.
I would like to restate why the Taoiseach has indicated that a referendum should be held. It is an essential first step in creating a new culture of respect for the rights of the child.
The fundamental law of our land, the Constitution, should reflect our commitment to value and protect childhood. Provision must be made in our Constitution for children to be protected from maltreatment, neglect or abuse. The Constitution must require that in appropriate circumstances, the welfare of the child should be the paramount consideration. There is a need to set out in explicit form the rights of the child in our Constitution.
The issues raised by the Taoiseach focus on Articles 40, 41 and 42 of the constitution. Our constitution strikes balances between personal rights, the status of the family, the rights and duties of parents, and the powers of the State as guardian of the common good. Constitutional change is now proposed to include children in this equation.
The distinct status of the child is somewhat understated in our constitution. This reflected contemporary attitudes in 1937. It has meant that the courts have been required to develop constitutional norms in this area without clear guidance from the people who are, after all, the ultimate legislators. The courts deserve clear guidance from us.
The recent decision by the Supreme Court in the C case caused considerable public disquiet. The DPP has acknowledged that although a referendum would be necessary to return the law to a state where a man could not claim ignorance of a girl’s age, such a course might be worth considering if there were to be changes to the constitution to protect the rights of children. These matters are under consideration by the Oireachtas Committee on Child Protection. The Government does not wish to pre-empt the conclusions of the Committee
The Taoiseach has asked me to initiate a process of consultation and discussion with the other Dáil parties and with all relevant interest groups in the coming weeks. We aim to achieve a consensus on the wording of an appropriate constitutional amendment. Our priority is to find a wording for our constitution that will reflect the desire of the Irish people to establish robust safeguards for the rights and liberties of all the children of our nation.
The power to change our constitution rests with the people alone. Time and again the people of Ireland have demonstrated their strong attachment to our constitution. We should not underestimate the huge onus that rests on all of us who seek to strengthen the position of the child in the constitution. The burden of persuasion in any referendum is a heavy one. It is all the greater when the proposal relates to the delicate and intimate relationship that exists between child, parent, family and the state. Despite the broad and generous welcome extended to the proposal made by the Taoiseach, do not underestimate the task before us.
To conclude, I want to thank Barnardos for organising a conference whose timing is most appropriate. I want to thank Mr Fergus Finlay, Chief Executive for inviting me to speak here today and I look forward to a successful and stimulating conference.
