How Ireland is doing in light of the Concluding Observations from the UN
Committee on the Rights of the Child
Over the last number of years, there has been a growing emphasis on the
rights of the child in this jurisdiction and rightly so. Children have
been put in the spotlight and the need for us to better protect them has
been widely championed by many, including myself. In this vein, Ireland
has introduced a number of significant developments in recent years to
ensure the promotion and protection of children’s rights. It cannot be
denied that many positive steps of a wide-ranging nature have been taken to
better safeguard one of the most vulnerable groups in our society.
Furthermore, there has been greater recognition in this jurisdiction of the
need to give a voice to those who often are not listened to.
In January of this year, the UN Committee on the Rights of the Child
reviewed Ireland’s progress regarding its child rights record. The
monitoring body for the Convention on the Rights of the Child carried out
this review following Ireland’s submission of its third and fourth periodic
report in 2013. The “Concluding Observations” of the Committee were
published in February 2016. They set out a detailed and comprehensive
assessment of our compliance with the wide-ranging obligations of the UN
Convention on the Rights of the Child. Today I will focus on how Ireland
is doing in light of these Observations, a topic that merits extensive
consideration and discussion.
Before proceeding to discuss the prominent gaps that have been emphasised
in our children’s rights regime by the Concluding Observations and prior to
highlighting the steps that I believe must be taken to ensure upcoming
reform and better compliance with our obligations under the Convention in
the future, I want to briefly outline some of the measures we have recently
taken to improve the lives of Irish children - progress which I note has
been appropriately commended by the UN Committee.
First and foremost, the Thirty-First Amendment of the Constitution
(Children) Act 2012 was signed into law in April, 2015. This
Constitutional Amendment expressly recognises the child as a rights holder
under our Constitution. It ensures that the best interests of Irish
children is the key consideration in all proceedings concerning them,
including adoption guardianship, custody and access proceedings. It
requires that in these specified cases, the wishes of any child capable of
forming his or her views be ascertained and given due weight, thereby
enabling children to be at the very centre of important cases that concern
them. In addition, as a result of the Children Referendum and
consequential Constitutional Amendment, the Irish State is able to protect
children more effectively in situations where children are failed by their
married parents in caring for them.
The Children and Family Relationships Act 2015 is a significant piece of
legislation which the Oireachtas has recently introduced to further improve
Ireland’s legal protection of its children. Its provisions were commenced
in part in January 2016 and they serve to modernise Ireland’s approach to
family law. Throughout this expansive statute, there is a clear emphasis
on catering for all types of families, including single parent families and
blended families. It focuses on creating new rights for children, whatever
their family situation and the voice of the child is similarly promoted
throughout.
These developments, along with institutional measures such as the
establishment of the Irish Human Rights and Equality Commission and the
Child and Family Agency, both in 2014, represent very significant
milestones for Ireland’s child rights regime and they serve to lay the
foundation for an Ireland where children can flourish.
While the UN Committee has recognised these positive moves made by the
State to prioritise the rights of its children, there remain gaps in
Ireland’s protection of its young people that need to be addressed. Put
simply – while a lot of progress has been made in recent years in this
regard, more remains to be done.
Turning now to consider the key areas that have caused concern in the
Committee’s Observations, I will first address the issue of ----
State compliance with human rights
While Ireland ratified the Convention on the Rights of the Child in 1992,
in its report the Committee noted that Ireland has not yet fully
incorporated the Convention into domestic law as required by Article 4
thereof. For the instrument to have force, enacting legislation will have
to be passed giving the Convention direct effect in Irish law. The current
position prevents rights holders from relying directly on the provisions of
the Convention before Irish courts. The Committee therefore reaffirmed its
previous recommendation that Ireland take, as a matter of priority, all
necessary measures to fully incorporate the Convention into domestic law.
The drafting and adoption of an all-encompassing piece of legislation is
therefore required from us in order to incorporate the Convention in Irish
law.
The Committee also recommended that Ireland to take whatever steps it can
to improve state compliance with its human rights obligations. In this
regard, my 2014 report to the Parliamentary Assembly of the Council of
Europe on Improving Co-operation between National Human Rights Institutions
and Parliament in addressing Equality and Non-Discrimination Issues may be
instructive. I recommended efficient cooperation between National Human
Rights Institutions and Parliament as they both share a common
responsibility to promote and guarantee the respect for equality, human
rights and non-discrimination.
Using Ireland as a case study, I made a number of proposals that aimed to
strengthen parliamentary oversight of the Executive’s work. One of said
proposals involved the establishment of a Sub-Committee on Human Rights and
Equality within the Justice Committee. Its proposed powers included the
ability to review and scrutinise legislation for any human rights issues
and report back to the Dáil regarding same. Such a Sub-Committee has since
been successfully established, with its role being to ensure any new
legislation that is drafted complies with our human rights obligations.
This follows the increasing international trend for parliamentary
committees to take a pro-active role in oversight of human rights
obligations. It is worth noting, however, that the Irish Human Rights and
Equality Commission (IHREC) has called, in its December 2015 report to the
UN Committee on Ireland’s third and fourth periodic reports, for the
expansion of the remit of the Sub-committee. The IHREC is of the view that
the Sub-Committee’s remit should be expanded to allow it to review any
matter with an underlying human rights component. I believe the idea of
such expansion warrants further consideration and I will endeavour to
explore the IHREC’s recommendations in this regard.
Moving on to discuss the matter of ----
Child poverty
While Ireland’s successful exit from the IMF financial bailout was welcomed
by the Committee, concern was raised in relation to the issue of child
poverty within our shores. In essence, the Committee urged Ireland to
employ a child rights approach in the formulation of the State budget by
implementing a tracking system for the allocation and use of resources for
children throughout the budget at all levels of government. Addressing the
reductions in budget allocations for Traveller and Roma children, the
Committee also recommended that specific budgetary lines be defined for
Traveller and Roma children and for those children with disabilities. These
budgetary recommendations made by the Committee have been similarly
discussed by Ireland’s Special Rapporteur on Child Protection, Dr. Geoffrey
Shannon, in his Seventh Report to the government. He called for the
explicit consideration by the government of the impact on children of
budgetary measures, commenting that many States publish ‘children’s
budgets’ annually and this should happen in Ireland. I believe that further
consideration for these proposals is warranted in light of the Committee’s
Concluding Observations; as taking such steps would undoubtedly have the
effect of making the budget process more transparent and accountable for
children.
It is worth emphasising at this point that Ireland is known for its
excellent work at international level regarding its commitment to
eliminating child poverty through human rights-based approaches. We are
striving to achieve the Sustainable Development Goals by 2030 and we are at
the forefront of this international initiative designed to tackle some of
the key social problems across the globe. It is clear, however, that
Ireland needs to do more to replicate these efforts domestically by
ensuring human rights-based approaches in budgetary and other decisions at
home. We do not want to succeed abroad where we fail at home.
It is worrying that the 2015 Concluding Observations of the Committee on
Economic, Social and Cultural Rights demonstrated concern at the number of
people in our country living in consistent poverty or at risk of poverty,
particularly among children. One practical initiative that I would propose
carrying out in order to reduce child poverty would be to conduct
children’s rights audits/analysis to ensure that austerity measures which
are in place or are sought to be introduced do not disproportionately
affect children. This is an appropriate action to take to prevent or
minimise the impact of any austerity measures on our children.
The Committee on the Rights of the Child similarly pointed to the
significant increase in the number of children living in consistent poverty
in Ireland as a matter of deep concern and particularly emphasised how such
poverty tends to disproportionately affect children from Traveller, Roma
and refugee backgrounds, as well as those children who live in
single-parent households. Reports of families affected by homelessness
being faced with significant delays in accessing social housing and often
having to live in inappropriate, temporary or emergency accommodations was
also a matter of serious concern for the Committee.
I, however, can point to the determined effort being made by this
government to address the homeless and housing crisis that prevails at
present. The “Rebuilding Ireland” Action Plan for Housing and
Homelessness, launched in July, commits to supplying an additional 47,000
social housing units by the conclusion of the plan. It seeks to ensure
that by mid-2017, hotels and B&Bs are only used as emergency accommodation
for families “in limited circumstances”; it seeks to provide 1,500 units of
‘rapid build’ housing by end of 2018; and aims to guarantee sufficient
emergency beds nationally. These measures will hopefully succeed in
tackling the prevailing issue of child poverty and reduce the unacceptable
reality that more than 2,000 children are living in emergency homeless
accommodation across Ireland today. This plan aims to drastically reduce
that shocking figure. In the implementation of this Action Plan, I will
recommend that satisfactory consultation with Travellers and Roma take
place to ensure culturally appropriate accommodation should be prioritised.
In addition, while there is now a plan in place to counter homelessness, my
aim shall be to take further steps to introduce a more general anti-poverty
action plan forthwith.
In line with the overarching aim of reducing child poverty in this country,
we must have particular regard to those children living in Direct
Provision. I have previously expressed concern for these children,
particularly as teenage siblings of opposite genders often may be required
to share one room. Some have described the Direct Provision living
situation as creating an unnatural family environment which is not
conducive to positive child development. This is not something that should
continue. I support the recommendations made by both the Irish Human
Rights and Equality Commission and the Working Group on the Protection
Process including Direct Provision and Supports for Asylum Seekers (2015) –
that existing families should be transferred from Direct Provision Centres
into self-catering apartments and new families not be placed in such
Centres at all. Steps will have to be taken to ensure that the situation
relating to families in Direct Provision improves in accordance with these
proposals.
Following on from my consideration of children in poverty in Ireland, a
theme which consistently appears throughout the Committee’s Observations is
concern for ----
Children in minority groups
The Committee, in its Concluding Observations, made a number of remarks
demonstrating its concern over structural discrimination against Traveller
and Roma families, particularly regarding their access to education, health
and an adequate standard of living. Ireland is criticised for not
recognising Travellers and Roma as ethnic minority groups, resulting in a
lack of adequate data to form the basis for targeted support programmes and
measures. In particular, the number of Traveller households without access
to adequate water and sanitation facilities is emphasised, as well as the
reduction in the provision of funding for accommodation for Traveller
children and families.
It is recommended, therefore, that Ireland undertake comprehensive measures
to address this structural discrimination – including giving consideration
to legally recognising Traveller and Roma as ethnic groups. The Committee
recommended that sites where these groups reside are equipped with adequate
water and sanitation facilities; that the funding allocated for housing
facilities which address Traveller and Roma needs be increased; and that
meaningful consultation take place with these groups in the State’s
implementation of its National Traveller and Roma Integration Strategy. In
addition, the Committee recommended a follow-up to the National Action Plan
against Racism in order to tackle discrimination against Traveller and Roma
groups in our country. The establishment of a comprehensive and high level
plan to combat the stigmatisation and social exclusion of Roma and
Traveller children would go a long way toward vindicating the principal of
non-discrimination protected in the Convention.
With regard to those children with disabilities, a number of Observations
were made by the Committee. It expressed its concern that there is no
comprehensive strategy in place in this jurisdiction for the inclusion of
children with disabilities in mainstream education and encouragement of
their autonomy. It recommended that a strategy be introduced for their
inclusion. Of particular relevance to the education of children with
disabilities are the lasting effects of the recession, which hit the needs
of children with disabilities particularly hard by cuts to benefits,
education and other measures of social provision. Such cuts caused
significant strain for the families of children with disabilities;
increased the risk of children requiring institutionalization; and reduced
the numbers of special needs assistants available in our schools. To ensure
that children do not suffer disproportionately from any budget cuts that
may be made, again it is recommended that children be explicitly considered
in the next budget. I will emphasise to the government its duty under the
Convention to explicitly consider children, in particular those children
with disabilities, in the next budget.
In addition, Ireland needs to take steps to ratify the UN Convention on the
Rights of Persons with Disabilities. Though Ireland was amongst the first
to sign the UN Convention on the Rights of People with Disabilities, it has
yet to ratify it. This Convention includes Article 16, which relates to the
rights of people with disabilities to “freedom from exploitation, violence
and abuse”. Article 16 requires that states must take all appropriate
measures, including legislative, administrative, social and educational
measures, to protect persons with disabilities from all forms of violence
and abuse. Such measures should be “age-sensitive” and should include
information and education for people with disabilities and care-givers.
States are required to have in place effective legislation and policies to
prevent abuse and deal with the aftermath of same, should it occur. Each
country is required to report regularly to the monitoring body of the UN
Convention on the Rights of People with Disabilities. This, therefore,
ensures a particular focus on the issue of the treatment of people with
disabilities, and would require the gathering of data and the examination
of relevant laws and policies. Without doubt, such actions would advance
the situation of Irish children with disabilities, and give greater
consideration to the issue of violence against this group. I therefore will
strive to ensure that Ireland ratifies this Convention immediately.
Turning now to the area of adoption law, the Committee discussed its
concerns regarding Ireland’s protection of a child’s -----
Right to identity
With regard to Irish adoption law and Ireland’s obligations towards adopted
children under the Convention, a number of comments were emphasised by the
Committee. It mentioned its concern at the lack of a comprehensive legal
framework which ensures that children who have been adopted have access to
information regarding their origins and services for family tracing.
Recommendations were made, therefore, that we incorporate such provisions
on information disclosure, family tracing and post-adoption support
measures into the Adoption Act 2010.
I can already point to developments in line with the Committee’s
recommendations which are in the pipeline. The Heads and General Scheme of
the Adoption (Information and Tracing) Bill were published last year after
on-going efforts for many years to make strides in this area of adoption
law. It proposes a statutory basis for the provision of information
related to adoption and it will be both prospective and retrospective. The
Bill will give an adopted person aged 18 years or over a statutory
entitlement to the information required to apply for his or her birth
certificate, following a request to the Child and Family Agency. This
right extends to those persons who were adopted prior to the commencement
of the Bill. It is my belief that the Bill, when enacted, will vindicate
an adopted child’s right to identity and once passed by Dáil Eireann, it
will quell any future concerns of the Committee regarding Ireland’s
approach to this area of adoption law. Prompt publication of the Bill and
its enactment are called for by the Irish Human Rights and Equality
Commission and I undertake to do what I can to ensure the speedy progress
of this Bill.
A further issue which was explored in the Committee’s Concluding
Observations was Ireland’s ---
Respect for the views of the child.
The right of the child to participate and be heard in proceedings
concerning them is a fundamental principle of international children’s
rights law and is enshrined in Article 12 of the UN Convention on the
Rights of the Child. Article 12 requires State Parties to assure to the
child who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the views of the
child being given due weight in accordance with the age and maturity of the
child. The right to be informed of matters affecting a child is a
component of the right to be heard.
As I mentioned earlier, the Constitutional Amendment following the Children
Referendum in 2012 remedied the old lacuna whereby Bunreacht na h-Eireann
failed to contain any detailed provision relating to children. Article
42A.4 rectifies that position. It provides that in all proceedings brought
by the State for the purpose of preventing the safety and welfare of any
child from being prejudicially affected, or concerning the adoption,
guardianship or custody of, or access to, any child, the views of a child
capable of forming his or her views be ascertained and given due weight.
Its explicit inclusion in our Constitution ensures a greater level of
regard be given to children’s rights in all matters, particularly in the
legal arena. It also ensures greater conformity with the Convention, which
requires that children’s rights be included in domestic law.
Despite this positive Constitutional Amendment, the Committee noted that
there are some aspects of Irish law and policy which require strengthening
in order for the provisions of the Convention on the Rights of the Child to
be fully complied with. Notably, there are other areas outside of
proceedings in which children should be heard. Local authorities and
national planners, for instance, regularly make decisions which may ignore
the views and interests of children. In particular, the views of separated
children and those living in families in Direct Provision are rarely taken
into account, despite the fact that decisions concerning their residence in
Ireland and their dispersal across the country can have profound
consequences for them. The Ombudsman for Children argues that the impact
of civil and public administrative decision-making on the lives of children
is rarely considered by the bodies concerned.
In this regard, I believe that we politicians need to do more to hear
children’s views and to facilitate their engagement and participation in
local and national political processes. Innovative practices, such as the
Children’s City Council in Croatia, where children communicate with the
mayor and give views on budgetary matters, should be looked to for guidance
and used to provide inspiration for the introduction of similar programmes
in our country. In addition, we should consider the potential use of
online tools as one way of helping children to communicate with elected
representatives.
In Ireland, the voice of children and young people who live in poverty has
still not yet been adequately heard. The views of children living in such
situations are important to ascertain. This was aptly demonstrated in a
Council of Europe report which was commissioned in 2015 to establish the
most important rights issues for children in Europe in order to feed these
views into the Council of Europe’s next Strategy for the Rights of the
Child, 2016-2019. Child poverty and austerity is one theme considered in
this report. Children report that poverty is a very important issue for
them. They showed concern about the impact of the current economic climate
on themselves and their families and reported rights limitations due to
financial constraints. Poverty was reported by children as causing a
strain on family relationships, resulting in a lack of parental time due to
long working hours and risking family breakdown. They call for financial
support (such as free school meals) and advice services for those who are
struggling.
Given the current homeless crisis, I believe it is imperative that in
Ireland we recognise the importance of hearing from children and young
people who have experience of living in conditions which are consistently
poor or are at risk of poverty. Their voices, recounting their experiences
and circumstances, will serve to amplify the narrative of the absolute
importance of eradicating poverty. I think that hearing from children in
these situations will also highlight the scale of the impact poverty has on
the lives of our children, something which may people are not aware of.
The Committee, in its Concluding Observations, welcomed Ireland’s
legislative developments which have recognised the right of a child to have
his or her views heard. In particular, the Children and Family
Relationships Act 2015 was cited by the Committee. In this Act, there is a
positive obligation on a court in guardianship, custody and access
proceedings to take into account the child’s wishes as it thinks
appropriate and practicable, having regard to the age and understanding of
the child. The court, therefore, is required to have regard to the views
of the child that are ascertainable and section 32 of the Act empowers the
court to appoint an expert to ascertain these views. Where the expert
finds that the child is capable of forming his or her own views on the
matters that are at issue, the expert must ascertain these views and put
them before the court in a report. This provision in particular vindicates
the right of the child to be heard in court proceedings and effectively
introduces a new mechanism by which the voice of the child may be heard.
The Committee, however, criticised the fact that under the 2015 Act,
parents must bear the costs of an expert where appointed. Instead, it
advised that provisions should be introduced into the Act to cover the cost
of such an expert.
I must admit that the 2015 Act does not address the problem of the costs
associated with expert reports and it is simply provides that the parties
shall bear the costs in such proportions as the court directs. In this
regard, therefore, I will ensure that consideration will be given to
establishing alternative methods of funding these reports as many families
may be simply unable to discharge the fees involved. Legal aid clients in
particular will struggle to pay for a report and particular regard will
have be given for their financial support. Measures dealing with the cost
of expert reports will serve to improve the effective implementation of
this legislation, thereby vindicating the right of the child to be heard in
legal proceedings concerning them.
In conclusion, I wish to emphasise that much time will be spent analysing
and assessing all of the recommendations made by the UN Committee in its
Concluding Observations, not limited to those key issues which I have
addressed today. Steps will be taken as soon as possible to ensure Ireland
improves its compliance with the provisions of the Convention on the Rights
of the Child. What is clear from the Committee’s report, however, is that
while a huge amount of progress has been made by our small country
regarding children’s rights in recent times, there remains a significant
amount to do to better protect our children.