Children’s Referendum : A Legal and Policy Overview September 2012 The Children’s Rights Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland, by campaigning for the full implementation of the UN Convention on the Rights of the Child. We aim to improve the lives of all children under 18, through securing the necessary changes in Ireland’s laws, policies and services. Membership The Alliance was formally established in March 1995. Many of its member organisations are prominent in the children’s sector – working directly with children on a daily basis across the country. The Alliance’s policies, projects and activities are developed through ongoing collaboration and consultation with its member organisations. Vision Ireland will be one of the best places in the world to be a child. Mission To realise the rights of children in Ireland through securing the full implementation of the UN Convention on the Rights of the Child. September 2012 ©2012 Children’s Rights Alliance – Republic of Ireland Limited The Children’s Rights Alliance is a registered charity – CHY No. 11541 This is an in-house publication. For any enquiries or to obtain additional copies of this paper, please contact: Children’s Rights Alliance 31 Molesworth Street Dublin 2 Tel: +353.1.662 9400 Fax: +353.1.662 9355 Email: [email protected] Website:www.childrensrights.ie www.youtube.com/user/cradub www.facebook.com/childrensrightsalliance www.twitter.com/ChildRightsIRL Contents 1. Introduction ..................................................................................................................................... 1 2. Children’s Rights ............................................................................................................................... 1 2.1 The UN Convention on the Rights of the Child ............................................................................. 1 2.2 Children’s Rights and the Rights of the Family ............................................................................. 2 2.3 Children’s Rights and Child Protection ......................................................................................... 2 3. Children’s Rights in the Constitution................................................................................................ 3 3.1 What is the Constitution and why is it important? ...................................................................... 3 3.2 What constitutional rights do children have at present? ............................................................. 3 3.3 What are unenumerated rights? .................................................................................................. 3 3.4 Which constitutional rights do families have in relation to their children? ................................. 4 3.5 Do all children enjoy the same constitutional rights? .................................................................. 5 3.6 What countries give rights to children in their Constitution? ...................................................... 5 4. The Amendment .............................................................................................................................. 6 4.1 Key Milestones in the History of the Amendment ....................................................................... 6 4.2 Reports Calling for Constitutional Reform .................................................................................... 7 4.3 How the Constitution is Amended ................................................................................................ 7 5. Why Constitutional Reform is Needed............................................................................................. 9 5.1 Best Interests as a Tool for Decision-Making ............................................................................... 9 5.2 Protecting Children and Supporting Families ............................................................................. 11 5.3 Listening to the Views of Children .............................................................................................. 12 5.4: Reform our Adoption Laws ........................................................................................................ 13 Appendix 1: Articles 41 and 42 of the Constitution of Ireland, 1937 .............................................. 14 Appendix 2: Joint Committee on the Constitutional Amendment on Children Wording 2010 ...... 16 Appendix 3: Information on the Standards in Public Office Commission ....................................... 17 Appendix 4: Extracts of Global Constitutional Provisions on Children ........................................... 19 Appendix 5: Key Documents on the Constitutional Amendment on Children ............................... 21 Appendix 6: Member Organisations of the Children’s Rights Alliance ........................................... 22 1. Introduction The Children’s Rights Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland, by campaigning for the full implementation of the UN Convention on the Rights of the Child. We aim to improve the lives of all children under 18 years, through securing the necessary changes in Ireland’s laws, policies and services. One of its founding objectives of the Alliance upon its establishment in 1995 was to seek an amendment to the Constitution of Ireland to strengthen the rights of children. Since we were established we have engaged in extensive advocacy on this issue, in particular during the past seven years. The purpose of this Paper is to raise awareness among the Alliance member organisations and parliamentarians of the need for constitutional reform for children and to provide a legal and policy overview of the likely components of the amendment to be put before the People this autumn. 2. Children’s Rights Children's rights are human rights for all children and young people under 18 years of age. They are child-specific and take into account the vulnerable situation of children, in that they are largely dependent on adults for their care and are often powerless to vindicate their own rights. Children’s rights in Ireland flow from a number of sources, primarily: • The Constitution of Ireland • The European Convention of Human Rights • The Charter of Fundamental Rights of the European Union • The UN Convention on the Rights of the Child and other international human rights treaties • Relevant legislation 2.1 The UN Convention on the Rights of the Child In 1989 the UN General Assembly adopted the Convention on the Rights of the Child in recognition of the specific rights and vulnerabilities of children and to promote greater protection of children around the world. Ireland, which ratified the Convention in 1992, is among 193 States that have ratified the Convention. By doing so, Ireland committed itself to promote, protect and fulfil the rights of children as outlined in the articles of the Convention. With just the US, Somalia and South Sudan yet to ratify the Convention, it is the most widely-accepted human rights treaty in the world. Every five years, the progress of each State in implementing the Convention is examined by the UN Committee on the Rights of the Child. The Convention provides benchmarks or signposts that help States make better decisions and achieve more successful outcomes for children and their families. There are four principles which underpin the implementation of all other rights contained in the Convention: • Protection against discrimination (Article 2) – which includes discrimination against a child on the basis of the child’s parentage • The best interests of the child (Article 3) – the State is required to ensure that in all matters affecting a child, the best interests of that child are a primary consideration 1 Children’s Referendum: A Legal and Policy Overview. September 2012. • The right to survival and development (Article 6) – the State is required to ensure the child’s survival and development to the greatest extent possible • Listening to the child (Article 12) – that in decisions affecting them, the views of the child are considered Other key rights contained in the Convention include the rights to: • protection from abuse and neglect (Article 19) • health and health services (Article 24) • be adopted (Article 21) • an adequate standard of living (Article 27) • education (Article 28 and 29) • play, rest and leisure (Article 31) 2.2 Children’s Rights and the Rights of the Family Parents and families are central to a child’s life. The rights of parents and children are inextricably linked. In most cases, a child’s rights are vindicated by his or her parents. Strengthening rights for children in the Constitution will help empower parents to ensure that the State upholds their children’s rights and takes decisions that are in the child’s best interests. A children’s rights perspective recognises that children are individuals and are not the property or possession of an adult. The UN Convention on the Rights of the Child clearly sets out the relationship between children’s rights and the child’s family. The UN Convention on the Rights of the Child: • explicitly recognises the family as the “fundamental group of society and the natural environment for the growth and wellbeing of…children” (Preamble) • acknowledges that parents have the “primary responsibility” for their child’s upbringing and development (Article 18) • affirms that the family itself requires protection