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Children's Rights and the Family United Nations UNESCO Chair in Education for Pluralism, Educational, Scientific and Human Rights and Democracy Cultural Organization UNESCO Chair in Children, Youth and Civic Engagement children’s rights and the family. A Commentary on the Proposed Constitutional Referendum on Children’s Rights in Ireland. 2 the children and youth programme. The Children and Youth Programme (CYP) retain academic independence; and to ensure the is an independent, academic collaboration voice of children and youth is present. The between the two UNESCO Chairs in Ireland objectives of the Programme are: at the University of Ulster and National University of Ireland, Galway. Using a 1. to focus on a topical issue considered to affect the well-being of children and youth; p multidisciplinary framework the Programme will draw upon the knowledge and expertise 2. to examine the impact of selected policy and of researchers from a wide range of practice interventions on human rights and disciplines on issues affecting children well-being; and youth. 3. to gain an understanding of the processes of This Commentary is part of a series of implementation; outputs and reports addressing the well-being of children and youth in Ireland and Northern 4. to share learning that will enable duty holders Ireland. It corresponds with three key to better meet their commitments to children’s UNESCO aims: to strengthen awareness rights and improved well-being; of human rights; to act as a catalyst for 5. to share learning that will enable rights regional and national action in human rights; holders to claim their rights. and to foster co-operation with a range of stakeholders and networks working with, or The Children and Youth Programme will work with on behalf of, children and youth. key stakeholders to ensure that this knowledge The term ‘children and young people’, as used in enhances efforts in Ireland and Northern Ireland this Commentary, includes all those under the to realise children’s rights and promote children’s age of 18. 1 well-being. The Children and Youth Programme takes a The authors are responsible for the choice rights-based approach towards policy and presentation of views contained in this development and implementation, working report and for opinions expressed therein, according to the other principles of the which are not necessarily those of UNESCO Programme: to have an all-island focus; to and do not commit the Organisation. Authors: Danielle Kennan and Celia Keenaghan Peer Reviewers: Paddy Kelly, Children’s Law Centre and Anne Egan, School 1 The term for the most part excludes youth, a population of Law, NUI Galway. group central to the CYP and defined by the United Nations as persons between the ages of 15 and 24. The focus on children and young people in the Commentary reflects the February 2012 age range corresponding to the definition of a child in the United Nations Convention on the Rights of the Child (UNCRC) and the age range covered by the two national children’s strategies in Ireland and Northern Ireland. 3 Perofessofr PataDolan acnd Profeessor Ala.n Smith prAs the two UNESCO Chairs on the island of Ireland we welcome the commitment by the Minister for Children and Youth Affairs, Frances Fitzgerald TD, to hold a referendum on the Rights of the Child in Ireland in 2012 and we look forward to engaging positively in the debate to come over the next number of months. We believe that this commentary will act as a helpful stimulus to that debate and , in particular, on the issue of children’s rights and their interplay with the family. The referendum is an important opportunity to strengthen children’s rights in Ireland and we hope that all parties approach the campaign in an open and honest way, making arguments based on evidence, and always with the best interests of children as the primary motivating concern. This is the basis on which we hope to proceed. As members of the UNESCO International education network, UNESCO Chair holders are encouraged to act as ‘bridge builders’ by establishing and sustaining dynamic links between the academic world, civil society, local communities and policy makers. That is why we have come together to launch The Children and Youth Programme, a new academic, independent collaboration which aims to engage with policy makers and stakeholders on both sides of the border on a number of key issues relating to children and youth. We strongly believe that incorporating a stronger commitment to children’s rights in the constitution would build a stronger culture of children’s rights in Irish society and is in keeping with international obligations. We are also clear that it poses no threat to the rights of others in society. We hope to show that it is an approach underpinned by clear and consistent obligations that will cherish all children equally. We want to be clear from the outset that the rights and well -being of children, parents and society are inextricably linked. Our perspective is simple, what is good for children is good for their parents and ultimately to the benefit of civic society. 2012 can be a defining year for children and young people in Ireland . And it needs to be – the best legacy that we can leave the next generation is a commitment that their rights are protected and enhanced, that they have some certainty in an increasingly uncertain world. Professor Pat Dolan is the UNESCO Chair in Children, Youth and Civic Engagement at the National University of Ireland, Galway . Professor Alan Smith is the UNESCO Chair in Education for Pluralism, Human Rights and Democracy at the University of Ulster. United Nations UNESCO Chair in Education for Pluralism, Educational, Scientific and Human Rights and Democracy Cultural Organization UNESCO Chair in Children, Youth and Civic Engagement 4 s entary aim This comm e te to a mor to contribu debate, informed of n the topic focusing o he ights and t “children's r 1. Introduction the family. Constitution. The close of 2011 marked another year without a For example, referendum being put to the people to decide on the Supreme Court found that, “the child has whether to strengthen the protection of children’s the right to be fed and to live, to be reared rights in the Irish Constitution. A commitment has and educated, to have the opportunity of been made by the Minister for Children and Youth working and of realising his or her full ” 4 Affairs, Frances Fitzgerald TD, to hold the personality and dignity as a human being.” referendum in 2012 (Joint Committee on Health Other case law has established a child’s right and Children, 2012 ), although the final wording of to be reared with due regard to his or her 5 the proposed Constitutional amendment has not welfare . In the case of FN and CO the court yet been published. Nevertheless, previous interpreted Article 40.3.1 to include the right of developments provide a good indication of the the child, who is of an appropriate age and direction that this proposed amendment will take maturity, to have his or her wishes taken into (see Joint Committee on the Constitutional account by a court when making a decision 6 Amendment on Children, 2010 ). UNESCO has a regarding matters of guardianship or custody. constitutional mandate to contribute to the However, in more recent years, it is noted that promotion of all human rights 2 and an identified the courts are reluctant to expressly recognise output of the Children and Youth Programme children’s rights under Article 40.3 (CYP), a collaboration between the two UNESCO independent of their parents (Shannon, 2010 Chairs on the island of Ireland, is to provide pp. 9 -11 ; Kilkelly, 2008b p. 65 ). This is responsive commentaries on issues that arise in illustrated in the case N v Health Service 7 each jurisdiction related to the rights and well- Executive (the Baby Ann Case ) . The being of children and youth. 3 In the lead up to the Supreme Court, overturning the decision of proposed referendum this commentary aims to the High Court, ruled that the child known as contribute to a more informed debate , focusing on baby Ann should be returned to the custody of the topic of children’s rights and the family. The her natural parents who were now married. commentary will examine the inter-play between The High Court had found that it was in the the rights of the child and the family , in the best interests of baby Ann to remain in the context of the current Constitutional provisions, custody of her prospective adoptive parents distilling key messages regarding the potential due to the high level of attachment that Ann change to the present status quo and consider its had developed with her adoptive parents and implications for children’s and parental rights. factors which suggested that the transfer of custody could cause Ann emotional and 8 2. The Irish Constitution and psychological harm. However, the Supreme Children’s Rights Court’s interpretation of the Constitution precluded it from taking a decision which gave The Irish Constitution currently provides some consideration to the child’s rights independent protection to children’s rights in Articles 40-42. of her parents and making a decision which took into consideration the best interests of • Article 40.3.1 recognises the “personal rights baby Ann. Instead the decision was grounded of the citizen”. The courts in interpreting this in the strong Constitutional position of respect provision have accepted that children have for the integrity of the marital family certain personal rights not expressly stated in (cf .Kilkelly, 2008b ).
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