In a report to be launched by the Taoiseach next week, an All-Party Oireachtas Committee will recommend that the Constitution be amended to 'improve the constitutional rights of the child'. Geoffrey Shannon explains why constitutional change is necessary to safeguard the welfare of children.
One of the founding documents of the State, the Proclamation of Easter 1916, promised to cherish all the children of the nation equally. Equality of treatment, however, can hardly be said to characterise the treatment of children in Ireland today.
At the moment, some children are vulnerable to having second-best choices made for them due to the absence of a provision in the Constitution protecting their interests.
The current constitutional position in Ireland embodies a "seen but not heard" approach to children.
The superior nature of parental rights in Irish child custody, separation and divorce proceedings is in marked contrast to the relative invisibility of children in such proceedings.
Often in these proceedings, where neither adult seems incontestably correct, parents seem locked in a power struggle with the other, using the child as a weapon and trophy while ignoring his or her needs.
Apart from a right to education, children have no defined rights under the Constitution. Our fundamental law fails to recognise the child as a legal person and lacks a child focus.
Under the Constitution, parents have rights that cannot be lost by the passage of time. By contrast, child rights are inferior to parental rights.
Indeed, our Constitution insists on preserving rights in married parents in circumstances where those rights have been constantly abused or, even more absurd, where the parents have displayed little interest in the exercise of those rights.
The only manner in which the State can interfere in family life with a view to protecting the rights and interests of the child is through the mechanism in Article 42.5 of the Constitution which provides:
"In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the state, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."
This provision can only be invoked in exceptional circumstances, which affect child-protection work and policy-making. The wording of Article 42.5 of the Constitution also deprives some children of the stability and security of a second family.
The judicial trend is to veer away from enumerating children's rights by holding that the government is responsible for articulating the rights of children.
A number of recent decisions of the Supreme Court have placed clear limitations on the courts' power to order the State to meet its legal obligations to children.
These Supreme Court decisions concern the children in society who are most in need: children who are dependent on the State for their welfare, education, health and citizenship. Such children now inhabit a legal twilight zone.
If the State fails to protect the rights of individual children and the Supreme Court refuses to step in as guardian of the Constitution (save in exceptional circumstances), to uphold such rights, on whom does this duty now fall?
Given the recent developments at Supreme Court level, the time is now ripe to place the child at the centre of the Constitution. Without a fundamental overhaul of the current constitutional position, the rights of children in Ireland will never be truly recognised, nor will Ireland live up to its international obligations.
The rights of children should be taken seriously. Despite protestations to the contrary, the law in the area of child rights in Ireland still falls far short of our international obligations, including the requirements of the United Nations Convention on the Rights of the Child 1989 .
In Ireland, in spite of a period of sustained economic growth since the early 1990s, 8 per cent of children are living in "consistent poverty" while 24 per cent are living in "relative income poverty".
This current high level of child poverty sits uneasily with the fundamental right of the child under the convention "to a standard of living adequate for the child's physical, mental, spiritual, moral and social development".
Poverty in childhood can prevent children from reaching their full potential development, negatively affecting their health, education and life chances.
The signing and ratification of international instruments is only a beginning: it is a signal of a commitment to the recognition of children's rights, which requires implementation in practice.
Ireland must now reflect in its fundamental law the series of explicit rights which the Convention on the Rights of the Child protects so that every child in this country has equal and adequate protection according to the terms of the convention.
Over the past decade, particularly since the broadcasting of the RTÉ series States of Fear and the publication last year of the Ferns report, a picture has emerged as to how Ireland has failed to protect children from exploitation, neglect and abuse.
Yet, as a country that sees itself as pro-family, we continue to fail to address the rights of children adequately in our Constitution.
In 1993, the Kilkenny Incest Investigation Committee recommended that consideration be given by the Government to the amendment of Articles 41 and 42 of the Constitution so as to include a statement of the constitutional rights of children.
In 1996, the Report of the Constitution Review Group indicated the need to ". . .put into the Constitution an express obligation to treat the best interests of the child as a paramount consideration in any actions relating to children".
The All-Party Oireachtas Committee on the Constitution, in a report to be launched by the Taoiseach next Tuesday, recommends that a new clause be inserted in Article 41 of the Constitution dealing with the rights of children.
A decade after the Kilkenny investigation and the report of the Constitution Review Group, and eight years after the recommendations of the Committee on the Rights of the Child, there has been no constitutional referendum to safeguard and promote the rights of children in Ireland.
Childhood is for a brief period and does not stand still, which makes the delay in acting on the recommendations of various expert groups unacceptable. We should not forget that a generation of children have grown up during the detailed consideration of whether or not to amend the Constitution.
The present constitutional position of children's rights in Ireland is beset with a number of uncertainties.
Therefore the Constitution should now be amended to contain a specific declaration on the rights of children to ensure that the right of children to have their welfare protected is given the paramount status it deserves.
We need to put children at the centre of the Constitution, which will necessitate discarding the shackles of the Irish adult-centred past. Only then will we be in a position to demonstrate that we are a country that really does cherish all the children of the nation equally.
Geoffrey Shannon is a solicitor and author of the recently published Child Law (Thomson Round Hall, 2005). He is the Irish expert on the Commission on European Family Law and is the editor of The Irish Journal of Family Law