Though there is a legal challenge to the referendum result in the works, the constitutional amendment concerning the rights of children stands and the Children’s Rights Alliance argues that scandals in other countries are a reminder of work to be done here in Ireland.
HOURS AFTER THE Children’s Referendum result was announced, the Australian Prime Minister, Julia Gillard, launched a national inquiry into institutional responses to the sexual abuse of children.
It has been reported that this came on foot of growing political pressure in Australia, as the police accused the Catholic Church of silencing child victims and attempting to conceal evidence.
Meanwhile, across the Irish Sea, there is a scandal of epic proportions crushing UK institutions. The Jimmy Savile scandal has exposed a gap between legislation and implementation that is more like a gulf, with hundreds – including Mr Savile’s employers – not reporting alleged sexual abuse by the BBC DJ until after his death.
Many were not shocked when the scandal broke. Many had been approached by children and young people who were brave enough to speak out. What is shocking is that nobody listened to them. Questions are now being asked about how to make amends, particularly to those victims who came forward as children, but were not believed.
Ireland has, of course, had its own child abuse scandals in recent years. The Children’s Referendum was part of the Government’s response to the litany of child protection reports over the past four decades, which clearly demonstrated what happens when we as a nation do not listen to our children.
Many of these reports recommended constitutional reform.
A central feature of the children’s amendment is a provision on listening to the views of children and making decisions in their best interests. To my mind, the successful passage of the Children’s Referendum indicates the beginnings of a culture shift in the way we value children and their opinions, here in Ireland.
Listening to children and making decisions in their best interests are fundamental principles of the UN Convention on the Rights of the Child, ratified by Ireland in 1992. Without these building blocks, efforts to safeguard children are on shaky ground.
We now have in place a constitutional guarantee that a child’s voice will be heard in key court decisions affecting their lives, in child protection, care and adoption cases and family law cases on guardianship, custody and access. This is vitally important.
But the story does not end there. The constitutional amendment places an onus on the Oireachtas to put flesh on the bones of the constitutional provision. The Oireachtas must legislate in this area – a failure to do so will be a constitutional breach.
There are real problems to overcome. The present postcode lottery system – where a child may be heard subject only to the judge’s discretion – is now untenable and must be rectified.
The path ahead is not yet clear and requires careful consideration. TDs and Senators could legislate to guarantee the appointment of a Guardian ad Litem, whose role, as an independent court professional, would be to listen to the views of the child, present them to court and provide their own assessment of what is in the child’s best interests.
Statutory guidance on the role and functions of a Guardian ad Litem will be needed to ensure consistency and high quality. Other options include specialist children’s judges who speak to the child directly or an adaptation of the unique Scottish model of Children’s Hearings with involves active engagement by the local community.
Not listened to
It should be remembered, however, that a child may not want to speak up, for example in the midst of a bitter divorce. And this amendment will not force him or her to do so. However, it is important that a child does have the right to be heard, if they so wish, in court cases affecting them.
The Constitution guarantees that any child “capable of forming his or her own views” should have their views “ascertained and given due weight having regard to the age and maturity of the child”.
It’s interesting to note that the amendment includes no age criteria and focuses on the child’s ability to ‘form’ rather than ‘express’ their views, implying that a young child or a child with a disability must be supported to have their views ascertained and conveyed to the court.
In my opinion, the amendment is an important first step in creating an environment where listening to children becomes the norm. The principle of listening to the views of the child is widely accepted as going hand-in-hand with making child-centred decisions and better protecting children.
It is a sobering lesson that, over the decades and across state borders, a common thread running through the various child abuse scandals is that children were not respected and their voices were not listened to. A change is clearly needed.
As the Jimmy Savile scandal continues to rock the UK and the Australian Government starts to get to grips with the biggest child abuse inquiry in its history, Ireland has started to turn a corner away from its shameful past.
I believe the Children’s Referendum symbolises the lessons we have learned and how far we have come. We will now have new laws to protect children, support families, reduce inequalities in adoption, recognise children in their own right and, importantly, listen to their views.
Let’s hope it is the beginning of a brighter future.
Maria Corbett is the Deputy Chief Executive of the Children’s Rights Alliance, a coalition of over 100 organisations working to secure the rights of children in Ireland.