The 1916 Proclamation of the Irish Republic promised to cherish all children of the nation equally. Historians continue to debate whether the word “children” should be ascribed a literal or figurative meaning; whether it referred merely to children or to citizens in general. Whichever is favoured, over the last century, children in Ireland have evolved from second-class citizens to near stand-alone rights holders.
International developments
The concept of children as rights holders rather than parental quasi-property is relatively recent. Despite early historical precedents (such as, interestingly, the Gaelic Irish system of fosterage and maintenance), children's rights were often insufficiently legally recognized. This began to change during the 19th century, as the Factory Acts began to tackle horrific child labour problems in Britain, and various cases in the United States dealt with issues of children's rights (a notable example being the Fletcher case of 1869, dealing with child abuse).
The 1924 Declaration of children’s rights by the League of Nations demonstrated an appetite for setting international norms, but this was complicated by the League’s weaknesses in terms of enforcement, standardisation and prestige. The most momentous changes on an international scale occurred in the years after the Second World War. The 1959 United Nations Declaration on the Rights of the Child called for the safeguarding of “special protection” as well as “opportunities and facilities, by law and by other means”, for healthy and normal physical, mental, moral, spiritual, and social development “in conditions of freedom and dignity”. The “best interests” principle was, crucially, identified as the “paramount consideration”.
This was followed by the 1989 United Nations Convention on the Rights of the Child (UNCRC), a document which laid out a framework intended to ensure participation by children in decisions affecting them; protection of children against discrimination and all forms of neglect and exploitation; prevention of harm to them; and provision of assistance to children for their basic needs.
The European Union
Since Ireland joined the EU in 1973 there has been an increasing intertwining of national and European law through the evolution of the jurisprudence of the European Court of Human Rights (ECHR) as well as various legal instruments that Ireland is subject to.
The Council of Europe has also had a significant impact on child and family law, primarily through the European Convention on Human Rights (ECHR), but also through a range of specialist human rights conventions such as the European Convention on the Exercise of Children’s Rights, which was designed to supplement the participation rights outlined in Article 12 of the UNCRC, and the European Convention on Contact with Children.
Under Article 8 of the ECHR, states are required to respect private and family life, a right frequently argued in cases involving children at European and national level. The European Union Charter of Fundamental Rights is also significant, since the coming into effect of the Lisbon Treaty.
Article 24 of the Charter stipulates that children are to have the right to such necessary care and protection to ensure their well-being as well as guaranteeing the right of children to participate in proceedings affecting them in line with their age and maturity. All public and private institutions are also obliged, in any action relating to a child, to regard the welfare of that child as a primary consideration.
Developments in private international law include the Hague Conference on Private International Law which has produced three significant conventions relating to child abduction (1980), adoption (1993) and parental responsibility and measures for the protection of children (1996) all of which are in force in Ireland. In practice, these Conventions mean that court procedures for dealing with issues of child abduction, adoption and parental responsibility that have an international element are more streamlined and efficient.
The international focus on the child as a rights holder can be traced through the various legal instruments relating to children enacted at an international level. The most relevant of these is the UNCRC which is supplemented by three optional protocols and 17 General Comments.
The constitution
Until recently, the child law landscape in Ireland was dominated by a tendency towards privileging the family unit rather than the family member, the collective rather than the individual, and the parent rather than the child. In the latter years of the 20th century, however, the focus of judicial concern began to shift towards the child. More recent judgments, however, saw the courts electing to leave the work of articulating (and thereby helping to defend) children's rights to the legislature. This necessitated a focus on legislative and constitutional change, which was indeed pursued.
2012 was a very important year for children’s rights in Ireland as it marked the passing of the children’s rights referendum which introduced a new Article 42A into the Irish Constitution (that amendment has not yet become law as it is subject to a challenge in the courts). That article reconfigures the position of the child under the Constitution.
For the first time, the child’s rights are set out in a stand-alone provision and the “natural and imprescriptible rights of the child” already in the Constitution are set down at the outset of Article 42A as opposed to featuring as a tangential caveat to the principle that the State should intervene only in exceptional cases. The new Article 42A represents a refocusing of emphasis in the Constitution that seeks to place children at the centre of decisions relating to their upbringing and general welfare.
Legislative developments
Many inquiries have been conducted into the sometimes systemic, sometimes targeted abuse of children. These comprised detailed investigations into egregious child protection failures and outlined recommendations to avoid such tragedies recurring. The inquiries acted as a catalyst for change in the form of more robust legislation and the establishment of the Office of the Ombudsman for Children.
The Ombudsman for Children’s Office, founded 10 years ago this year, has played a central role in advancing the interests and welfare of children.
It is an important and necessary watchdog of children’s affairs which can investigate complaints about how the State is providing services for or making decisions about children.
Certain pieces of legislation enacted in Ireland over the last number of years have profoundly affected the lives of children in this country. For example, the Status of Children Act, 1987, abolished the concept of illegitimacy which had, prior to that Act, applied to all children born out of wedlock. The Child Care Act, 1991, provided a statutory basis for the State to intervene, in certain limited and defined situations, where parents have failed in their duty towards their children.
The appointment in 2011 of Ireland’s first Minister for Children and Youth Affairs over a nascent Department of Children and Youth Affairs was a firm statement that children’s rights were to be at the forefront of decision-making and public policy. In January of this year the newly constituted Child and Family Agency (CFA) came into operation. The establishment of an agency dedicated to children and families heralds a new approach in the State’s support for children and families.
Future developments
Major legislative changes are in the pipeline with regard to Irish child and family law. For example, the Children and Family Relationships Bill, 2014, aims to provide legal certainty for all families, whatever their official status. The new framework that will be implemented following the passage of this Bill will not only radically overhaul many existing rules, it will create new rights for parents, both biological and social, and, most critically, for children. As a result, it represents an important milestone on the road to recognition of children as rights holders.
In conclusion, there have been strident developments in Ireland and internationally over the last number of decades in the area of child protection and children’s rights.
The promulgation of laws or the ratification of international conventions promoting children’s rights are positive steps. However, many challenges remain that must be identified and resolved before we can say that we live in a society where our children’s rights are fully vindicated.
Dr Geoffrey Shannon is the Special Rapporteur on Child Protection.
