The Minister for Children, Frances Fitzgerald announced this week that a long promised referendum on children’s rights would be held by the end of this year, likely to follow the recommendations put to the last government in 2010. If the referendum succeeds it would represent an unprecedented recognition of children’s rights in Ireland, giving them independent legal standing and protection in our Constitution. Those campaigning for this referendum regard the potential changes as a matter of urgency to protect the most vulnerable children in Ireland. It is a starting point to counter a historical marathon of failings and silence towards the legal rights of children. However, there is opposition in the form of those who view any change to existing laws regarding children as a dilution of parental rights and the rights to a private family life. These views are nothing but a smokescreen to misinform the public as to the extent of consistent failings towards children in Ireland and a throwback to our conservative Catholic past. It is important to remember when the referendum does finally happen; its purpose is the protection of children, and not the undermining of the family.
Most young adults enter university unscathed by the horrors of abuse and neglect; safe in the knowledge they have a support system comprised of both a loving family and state protection that begins at birth. However, not many of us know that before we reached eighteen, in the eyes of the law, the state, that beloved constitution, we remained largely invisible and our rights were far from concrete.
As it stands today the Constitution fails to recognise a child as an independent legal person. This is the document we regard as the heart of the Irish people. There is no provision for the active promotion of child welfare, no reference to a need to promote the best interests of the child and any reference to a child’s right is done through an attachment to their parent’s rights.
In cases of long term care, fostering, adoption and health, the case has been consistent: the rights of children are subject to a reference to the rights of their marital parents or families and to a policy of state non-interference. In other words when it comes down to either protecting the child or protecting the family, the family will always win out.
It is a farce to restrict familial interference when it is a fact that most abuse and neglect of children occurs overwhelmingly in the family home: 86% of the abuse of children is done by either a family member or someone known to the family, 55% of the abuse of girls is carried out by a family member, compared to a third of the abuse of boys. The highly publisised Roscommon and Mayo incest cases again highlight the fact that children who are known to the protection services are being failed purely because of the way child protection is approached in Ireland.
There can be no airbrushing of the situation: children are already at the bottom of a pretty big pile in terms of state protection, and even more so if they have gay parents, are homeless, if their parents are unmarried, or single, if they are an immigrant, or disabled, and in a worst case scenario; if a parent wishes to make a decision which may not be in the best interests of the well-being of a child, it is viewed as their right to be wrong.
Aside from the silence of the Constitution, the catalogue of failings towards children as a societal group makes for some pretty grim reading. Ireland has been guilty of shocking abuses against the seeds of its future in the past: The systemic abuse of children revealed in the Ferns Report, Murphy Report, the Ryan Report and more recent Cloyne reports will forever remain as the black mark on the Irish nation. As a people, we had to accept these abuses as our reality and play the silent witness no more. The inevitable questions of How and Why were quickly replaced with the promises of ‘Never Again’. Talking about and confronting child abuse was uncomfortable and we believed these abuses were a product of our deferential past, with no place in the new modern Ireland.
But the mistakes of the past have not been rectified.
Vulnerable, mentally ill and at risk children and young adults continue to be placed in mental institutions and adult prisons because there are no facilities for housing. This is contrary to just about every international Convention, Protocol and natural right that exists.
At the start of this month, a report by the Garda Inspectorate into the investigation of sexual offences against children was made public. The findings sound hauntingly familiar. The report found record keeping so poor that 65% of sex crimes against children were not noted. Many complaints failed to be recorded as criminal offences. The HSE and The Gardai were criticised for their lack of cooperation in cases. According to Barnardos, only one in ten cases of abuse have led to a conviction to date. Looking at this from the perspective that it is extremely rare for a child to actually report an incident together with the findings that complaints are being ignored, we can see these convictions represent only a handful of people. More worrying is that the government has had this report for fourteen months and has been accused of failing to provide updates on its recommendations. In light of such an appalling history of enabling the abuse of children, inactivity and bureaucracy cannot be an excuse for any risk of harm to the weakest in society any longer.
We also rank at the bottom of the EU states in terms of a coherent system of combating child sex trafficking, with successive governments reluctant to face the extent of the child sex trade in Ireland. But the problem is there. The figures point to a massive hole in the protection of vulnerable children, with most trafficked children being those not in the care of their parents or more commonly, immigrant underage females. Since 2000, over 500 children have gone missing from State care, and 90% remain missing. Where did they go? The fact of the matter is that many were trafficked. There can be no denial of the lack of drive to tackle the problem; children continue to be placed in privately run hostels, targeted by traffickers, we have failed to ratify the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child pornography and we have a consistently poor conviction rate for child traffickers.
While I may be critical of what I see as a blatant unwillingness to actively promote, recognise or protect children’s rights in Ireland, worse still is a recent qualification by the government of the type of children entitled to certain rights. Last year a new Act came into force that gave significant legal recognition to gay and/or cohabiting couples the kind of which had never existed before in Ireland. Whilst many regarded the measures as a much-needed tug into the present, what is most glaring is the active exclusion of children from protection in this act. For example, if a child of married parents loses their home due to the action of one of their parents, this is deemed worthy of compensation in the eyes of the law. A child of civil partners is not. Again, the act does not stipulate a legal requirement for maintenance by the joint parenting of a child by civil partners, as it does per married couples. And so the law is abundantly clear, as a child of a civil partnership: you are not equally valuable in the eyes of the law. This is not a new concept. For years the courts have resisted placing single parent families on the same level of protection as married families. Think what you may about the idea of civil partnership, unmarried parents and gay parents but the fact of the matter is, we do not choose our parents. To have a system that qualifies a child’s entitlement to protection, and as a result places them at a significant legal disadvantage reflects a society too cowardly to shake off the shadows of its conservative past.
Clearly we are failing the future of our country. The promise to take the step of including a specific mention of children’s rights in the Constitution is crucial not only to ensure aspects of the UN convention on the Rights of the Child and European Convention on Human Rights are enshrined into Irish law and society, but also to finally close the book on our continuing history of enabling child abuse and neglect. This referendum is a stepping-stone to counterbalance the significant invisibility of the child in Irish society, and must succeed to finally give a voice to ensure the laws and rules of our supposed civilised society apply to all children without qualification or exception.