A spotlight has been shone on the state of child welfare in Ireland with the recent re-emergence of the mother and baby homes scandal and so it is now prudent to ask, what is the current attitude of the Irish State towards children’s welfare? Rather ironically this is an issue that has not seen much legal discussion with many textbooks now severely outdated, this is perhaps reflective of the disinterest of the executive and legislature.
Looking back over the last few decades we have what appears to be significant commitment to reform in this area with the ratification of the United Nations Convention on the Rights of the Child (CRC), as well as the passing of the constitutional referendum on the rights of the child in 2012. Additionally, there is legislation governing this area, namely the Childcare (Amendment) Act 2013. Yet with all of these legal mechanisms Ireland is still falling below the international standard when it comes to securing children’s rights. Let’s now turn to each of these mechanisms to examine why this is the case.
Beginning with the constitutional amendment creating children’s rights under Art. 42aº. Article 42a.4 gives the government power to enact legislation that is deemed to be in the best interests of the child, yet it does so in language that is significantly weaker than existing legislation as well as international standards such as those set out by the CRC. As well as this any such legislation is subject to the presumption of constitutionality, a presumption that is very difficult to rebut. In failing to tackle this issue of the rebuttal threshold the article has contributed to one of the largest barriers to the realisation of children’s rights. To top this all off, Art. 42a.1 mentions the natural rights of the child but fails in expressing what these rights actually amount to.
Ireland’s commitment to the CRC was examined in January of 2016. Prior to this examination, the Irish Human Rights and Equality Commission prepared a report detailing the numerous failings by the State in vindicating the rights of the child. The Commission begins by emphasising how the State is informed by the Convention but not driven by it. Criticisms of Article 42a such as its omission of criminal or health matters, its lack of reference to the Convention and its fundamental failure in promoting the general principles of the Convention are recorded.
The Commission also notes that Ireland has fallen short in areas such as asylum and direct provision, with the system being described as ‘state-sanctioned poverty’ and ‘not conducive to the child’s positive development’ by Special Rapporteur for Children, Dr. Geoffrey Shannon. The Commission, in their 2014 Policy Statement, recommended that existing families were moved from DP to self-catering accommodation and that no new families were to be placed in these centres, yet the government is still failing to adhere to this recommendation seven-years on.
With the enactment of the 2013 legislation, the Family Support Agency and the National Educational Welfare Board have been subject to dissolution and relevant functions of the HSE have been transferred to a new body, the Child and Family Agency (TUSLA). The HSE had been notoriously ill-equipped to handle functions of child welfare, as had been lamented by Kelly J in the DH case 21 years ago, yet it took another decade before any change was implemented. It remains to be seen whether TUSLA will be better positioned in carrying out this child welfare and protection service and so the Commission did recommend the close examination of budgetary concerns in its report to avoid falling into the same situation faced by the HSE.
What is clear from this brief examination of child welfare law in Ireland is that the State is still failing its children. The constitutional amendment of 2012 allowed Ireland the to enshrine the CRC into law. It gave Ireland the opportunity to attempt to rectify atrocities of the past and to become an international leader in the area of children’s rights. Ireland instead decided to fill the Constitution with vacuous provisions that did little to alter the existing state of children’s rights, amounting to nothing that was not already better covered by legislation. Ireland wasted its opportunity.
Louise Kennedy – Law Reporter