It's almost 20 years since Judge Catherine McGuinness in finalising the Report of the Kilkenny Incest Investigation (1993) recommended that a specific clause be inserted into the Irish Constitution which would give children certain prescribed rights. She believed that the failings in the Kilkenny Incest Case in part could be attributed to the lack of protection for the rights of the child in the Constitution. This view was subsequently reinforced by the Constitution Review Group who noted that the rights of the family unit enshrined in Article 41.1 could be interpreted as being detrimental to the rights of the individuals within the family unit.
Despite the passage of 20 years and numerous other child abuse inquiries such as The Kelly Fitzgerald Report & The Ferns Report, successive governments have failed to follow through on their promise to address this issue.
Today the Minister for Children Frances Fitzgerald published the wording for the Thirty-First Amendment of the Constitution. A constitutional referendum on the Amendment will take place on Saturday 10th November 2012.
Since the publication of the proposed wording there has been a broad welcome across the political and social spectrum that the government has managed to achieve what it set out to do, to give children a prominence in the Constiution which would afford them certain rights that would ensure in child welfare proceedings that the best interests of the child is paramount.
That said there has certainly been a lot of confusion about what exactly it means for children in real terms. If you were hoping for a legal analysis of the Amendment then you've stumbled onto the wrong blog...oops.
Article 42A
2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
The above section refers specifically to the protection and welfare of children. The responsibility for investigating child abuse/neglect allegations falls to the State's Child Protection Social Workers who are employed exclusively by the HSE throughout the country.
Social workers are professionally qualified to carry out assessments & investigations. Where a child is deemed to be of significant risk of harm or neglect a social worker may apply to the courts for a Supervision or Care Order in order to supervise (in the home) or remove the child from the family home and place them in foster care/residential care. The presiding judge in the Children's Court or local district court may grant a Supervision/Care Order if s/he deems that it is in the best interests of the child.
The Child Care Act 1991, The Children's Act 2001, The Criminal Justice Act 2006 and The Child Care (Amendment) Act 2011 are the statutory instruments that cover the safety and welfare of children. Without these pieces of legislation the state could not act to remove children from their homes.
Social workers as well as all other child care professionals including public health nurses, psychologists, speech and language therapists etc who are involved in working with children are obliged to operate within the Children First Guidelines (2009). This is a 128 page comprehensive document that details how to identify and report child abuse and neglect. It is in effect the Child Protection Bible.
There is no need for the Constitutional Amendment to specify what "exceptional cases" means, it is already adequately identified in the Children First Guidelines and is given statutory powers in the relevant children's legislation.
What the Amendment does, is to grant children the right to be protected from harm where the family has failed regardless of the marital status of the parents. The family unit cannot be given rights that supplant the best interests of the child where there is a risk of neglect and/or harm.
During the investigation of the Roscommon Child Care Case (2010) claims emerged that a Catholic right-wing organisation had helped the family to secure a High Court Injunction to prevent the HSE from taking the children into care. The rights of the family unit to remain intact superseded the rights of the children to be placed in a safe and caring environment. Once the Amendment has passed that can no longer happen.
Article 42A
2.2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
The above section requires that legal provision by statute be made for the adoption of some children in long-term care where the biological family have failed in their duty of care towards these children. This will give many children a secure family environment and a sense of belonging that those who have been abused and rejected by their family of origin crave. It will also help to avoid situations where children find themselves being moved from one foster/residential placement to another.
Article 42A
4.2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
Children as far as is possible given their age and maturity will be consulted for their opinion in cases relating to their care. This gives children a voice but it will be weighed in the context of all the available information and professional recommendations. So even if parents attempt to influence an outcome by coaching the child, it will not be considered in isolation.
While the government in general and Minister Fitzgerald in particular are to be congratulated for finally introducing a referendum on the rights of children in this country, there will have to be a further commitment of resources to ensure that each individual child who finds themselves in the care of the state is granted the best possible altenative family environment along with the necessary supports.
Despite the passage of 20 years and numerous other child abuse inquiries such as The Kelly Fitzgerald Report & The Ferns Report, successive governments have failed to follow through on their promise to address this issue.
Today the Minister for Children Frances Fitzgerald published the wording for the Thirty-First Amendment of the Constitution. A constitutional referendum on the Amendment will take place on Saturday 10th November 2012.
Since the publication of the proposed wording there has been a broad welcome across the political and social spectrum that the government has managed to achieve what it set out to do, to give children a prominence in the Constiution which would afford them certain rights that would ensure in child welfare proceedings that the best interests of the child is paramount.
That said there has certainly been a lot of confusion about what exactly it means for children in real terms. If you were hoping for a legal analysis of the Amendment then you've stumbled onto the wrong blog...oops.
Article 42A
2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
The above section refers specifically to the protection and welfare of children. The responsibility for investigating child abuse/neglect allegations falls to the State's Child Protection Social Workers who are employed exclusively by the HSE throughout the country.
Social workers are professionally qualified to carry out assessments & investigations. Where a child is deemed to be of significant risk of harm or neglect a social worker may apply to the courts for a Supervision or Care Order in order to supervise (in the home) or remove the child from the family home and place them in foster care/residential care. The presiding judge in the Children's Court or local district court may grant a Supervision/Care Order if s/he deems that it is in the best interests of the child.
The Child Care Act 1991, The Children's Act 2001, The Criminal Justice Act 2006 and The Child Care (Amendment) Act 2011 are the statutory instruments that cover the safety and welfare of children. Without these pieces of legislation the state could not act to remove children from their homes.
Social workers as well as all other child care professionals including public health nurses, psychologists, speech and language therapists etc who are involved in working with children are obliged to operate within the Children First Guidelines (2009). This is a 128 page comprehensive document that details how to identify and report child abuse and neglect. It is in effect the Child Protection Bible.
There is no need for the Constitutional Amendment to specify what "exceptional cases" means, it is already adequately identified in the Children First Guidelines and is given statutory powers in the relevant children's legislation.
What the Amendment does, is to grant children the right to be protected from harm where the family has failed regardless of the marital status of the parents. The family unit cannot be given rights that supplant the best interests of the child where there is a risk of neglect and/or harm.
During the investigation of the Roscommon Child Care Case (2010) claims emerged that a Catholic right-wing organisation had helped the family to secure a High Court Injunction to prevent the HSE from taking the children into care. The rights of the family unit to remain intact superseded the rights of the children to be placed in a safe and caring environment. Once the Amendment has passed that can no longer happen.
Article 42A
2.2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
The above section requires that legal provision by statute be made for the adoption of some children in long-term care where the biological family have failed in their duty of care towards these children. This will give many children a secure family environment and a sense of belonging that those who have been abused and rejected by their family of origin crave. It will also help to avoid situations where children find themselves being moved from one foster/residential placement to another.
Article 42A
4.2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
Children as far as is possible given their age and maturity will be consulted for their opinion in cases relating to their care. This gives children a voice but it will be weighed in the context of all the available information and professional recommendations. So even if parents attempt to influence an outcome by coaching the child, it will not be considered in isolation.
While the government in general and Minister Fitzgerald in particular are to be congratulated for finally introducing a referendum on the rights of children in this country, there will have to be a further commitment of resources to ensure that each individual child who finds themselves in the care of the state is granted the best possible altenative family environment along with the necessary supports.