Oral Hearings

Family Issues: Presentations.

Tuesday, 26 April 2005

The Joint Committee met at 10.30 a.m.

MEMBERS PRESENT:
Deputy B. Andrews,
Senator C. Brady,*
Deputy J. Breen,
Senator J. Dardis,
Deputy S. Crowe,*
Senator M. Finucane,
Deputy C. Cuffe,
Senator J. Tuffy.
Deputy J. O’Sullivan,
Deputy P. Power,

*In the absence of Deputy A. Morgan and Senator B. Daly, respectively.

DEPUTY D. O’DONOVAN IN THE CHAIR.

The joint committee met in private session until 10.40 a.m.

Family Issues: Presentations.

Family Issues: Presentations.

Chairman: Before the joint committee first this morning is the Ombudsman for Children. I welcome Ms Emily Logan who will make the presentation, Ms Marianne Azema and Mr. Paul Bailey. Before we begin, I remind visitors that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

The joint committee has studied the written submission from the Ombudsman for Children. I now invite Ms Logan to give us a synopsis in approximately six to eight minutes following which we will have a question and answer session.

Ms Emily Logan: I thank the joint committee for affording me and my team the opportunity to present a brief synopsis of our view of the constitutional change required to protect the rights of children. I make this submission as Ireland’s Ombudsman for Children with a statutory mandate to promote children’s rights. The committee will be aware we launched our submission on 31 January 2005.

I would like to emphasise and acknowledge that most children in Ireland live in warm, loving and caring environments. Our submission is specifically directed at children living in vulnerable circumstances. We acknowledge the existence of three previous reports recommending constitutional change specifically recognising the rights of children: those on the Kilkenny incest investigation, 1993; the Constitution review group, 1996 and, the United Nations Committee on the Rights of the Child, 1998.

As Ombudsman for Children, I spend a great deal of time in direct contact with children. I meet them in many situations, including those in care and foster care. It is important to stress that what is most common among young children is their desire to be part of a family. However, this cannot happen due to the conflict between the constitutional parental right and the child’s desire to have a family. These children remain invisible and their voices are not heard. They are excluded from enjoying the stability and loving environment afforded to most children in Ireland. This is not only difficult for them but also cruel considering there are 2,000 children in long-term foster care.

I will now turn to what happened more than a decade ago in the case dealt with by the Kilkenny incest committee. That case involved a child and family who were left in a vulnerable and difficult position that continued for a long and protracted period of time which was totally unacceptable.

In terms of looking for guidance on rights, I ask where do we look. As Ombudsman for Children, in terms of my statutory mandate, I am pointed in the direction of the United Nations Convention on the Rights of the Child. However, that convention is not part of our domestic law. Essentially, the duality of our law means that international instruments are introduced in Ireland at a sub-constitutional level. While legislation can be introduced, the bottom line is that constitutionally parents have imprescriptible and inalienable rights which render the rights of children subordinate.

Some 12 years have passed since the Kilkenny incest committee recommended constitutional change. It is time that Ireland, as a society, acknowledged that children, too, are independent holders of rights. I urge the joint committee to consider the needs of vulnerable children for whom constitutional protection is an imperative.

Chairman: I thank Ms Logan for her succinct presentation. The Office of the Ombudsman for Children which has only been in existence for approximately one year is to be complimented on its very detailed written submission which deals with a great deal of case law and so on. It is obvious the Ombudsman supports the call for constitutional change to enhance the rights of children. However, she has not proposed any wording in that regard. How in her opinion should such an amendment be framed?

Ms Logan: I do not intend to propose the wording of an amendment for the joint committee. I have sought advice from my counterparts across Europe, of which there are 21, who look to the modern South African constitution which is based on common law. It is probably the most modern constitution, given that it embraces the spirit and ethos of children’s rights under the UN Convention on the Rights of the Child. I suggest that the committee look beyond the boundaries of Europe to places such as South Africa. I understand from my colleagues in Europe that Article 28 of the South African constitution is worthy of consideration.

Senator Dardis: I thank Ms Logan and her colleagues for attending this morning. Her views are important, given her statutory position and experience. From the cases with which she has dealt, have there been instances where she has not been in a position to adjudicate as she might wish as a result of constitutional constraints or due to a lack of specified protection for children under the Constitution?

Ms Logan: There have been cases outside the jurisdiction of the Office of Ombudsman for Children about which other agencies have expressed concern such as a family in a vulnerable position in which there has been a protracted response to a child’s vulnerability. We have not been able to investigate such a case because the issue of child protection per se comes within the jurisdiction of the health board rather than the Ombudsman for Children. However, other agencies representing children have brought similar cases to our attention to highlight such concerns.

Senator Dardis: Another issue which has arisen is that of the rights of natural parents, on which there is a spectrum of views, including the suggestion that the rights of natural parents should be paramount. Concern has also been expressed about the rights of a parent who becomes involved in a second stable relationship but who showed no interest in the upbringing of a child and the rights of a supportive stepfather or stepmother. Perhaps Ms Logan will give the joint committee her views on those issues.

Ms Logan: Six to eight cases brought to our attention highlighted children’s involvement in such decisions. However, such cases are dealt with by the courts and we cannot get involved. The bottom line is that children’s views have not been given paramountcy. As Article 41 gives an alienable right to parents, by and large, it is their views that are sought.

Deputy O’Sullivan: I welcome the delegation. I would like to tease out the issue of enumeration of rights under the UN Convention on the Rights of the Child dealt with by the Ombudsman for Children in her earlier submission to the joint committee. Other delegations which have appeared before it have suggested it would be better to provide general rights for children rather than to enumerate rights as is done in the UN Convention on the Rights of the Child. Perhaps Ms Logan will counter that argument, given her suggestion that rights should be enumerated. The details of what is contained in the UN convention are set out in the submission.

A child born within marriage cannot be adopted. Is there a specific provision that could be inserted in the Constitution, of which we need to advise the public, that would address the issue or could it be addressed by placing emphasis on the rights of children as individuals as opposed to members of a family?

Ms Logan: The issue of adoption could be addressed if we accepted and acknowledged that children were individual rights holders. Such an expression in the Constitution would address the issue.

On the first question of general enumerated rights, we are not suggesting the insertion of a list of 12 enumerated. There are 54 provisions included in the UN convention. We hope an expression and acknowledgement of children’s rights in the Constitution would deal with the issue. What we are looking for is an expression that acknowledges children are individual rights holders rather than just being members of a family where their rights are subordinate to those of their parents.

Deputy Andrews: Following on Deputy O’Sullivan’s last point, in many cases the Supreme Court has stated there are unenumerated rights for children in the Constitution and that it is up to the Legislature to enumerate them, implying that no constitutional change is necessary. Effectively, it is a matter for the Legislature to transpose the UN convention into Irish law.

As Senator Dardis stated, there is a spectrum of views on the issue of the special position of the family based on marriage. Does the existence of two legal forms of family - one based on marriage and one not - have implications for children, given that some cases might pick up on the nuances between a constitutional family based on marriage and a constitutional family not based on marriage? In other words, does Ms Logan have a view on the special position of the family based on marriage?

Ms Logan: I will deal with the Deputy’s first question on enumerated rights. The Constitution presents us with a hierarchy of rights. Article 40 speaks of unenumerated rights while Article 41 speaks of parental rights as being inalienable. In the courts Article 41 has always been taken ahead of Article 40. This has probably presented the biggest problem, although I am not a legal expert. I am aware of Deputy Andrews’ background and do not present myself as a technical expert.

Deputy Andrews: I can assure Ms Logan I am not a legal expert either.

Ms Logan: In the more recent PKU case in the north west with which the joint committee will be familiar in which the State did not intervene and the parents chose to object in court to an invasive test on their child, the court upheld the decision of the parents. What we are saying is that if we do not see constitutional protection for children, that situation will continue.

Deputy Andrews: In that case the Supreme Court stated there were unenumerated rights for children to which it would have given expression in its judgment had there been legislation in place. The case might have been decided differently.

Ms Logan: I understand legislative change would still not address the imprescriptible right of parents to make such a decision. One may introduce whatever legislation one likes but if the constitutional right of parents supersedes that of the child, they can object to something like this.

On the Deputy’s second question, we have not made a submission on the definition of “family” but I ask the joint committee to consider and acknowledge that one third of children in Ireland are born outside of what is described as the constitutional family. It is normal for the children I meet to have one parent, two parents or grand parents acting as parents. Their perception of family is very different from our adult and old patriarchal view of the constitutional family. We probably need to respond to this and acknowledge that this is the reality in Irish society.

Deputy P. Power: I thank Ms Logan for her presentation and wish her well in her new position. We are teasing out the necessity for an express provision in the Constitution respecting and guaranteeing the rights of children. Ms Logan and a number of other groups have requested the insertion of a specific article on the rights of children in the Constitution. Ms Logan has made the case for this in her written and oral presentations. In her written presentation she states legislation can be introduced but that the bottom line is that under Article 41 of the Constitution parents have imprescriptible and inalienable rights which render the rights of children subordinate. We are trying to tease this matter out but I do not see how that assertion can be made from any reading of Article 41 which states: “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. Where is stated in Article 41 that there is “a hierarchy of rights” or that parents have imprescriptible and inalienable rights? The wording of the article states otherwise. This case has been made to us on a number of occasions and I am wondering why we should recommend the insertion of a provision in the Constitution. Leaving aside the Kilkenny and PKU cases which we have examined, can Ms Logan, in her capacity as Ombudsman for Children, give specific examples with which her office has dealt which have created a constitutional difficulty for the way in which she carries out her functions or deals with cases before her?

Ms Logan: First, I will deal with the question on constitutional barriers. I cite the example that health boards are governed by statute and, more specifically, in terms of child protection, by the Constitution. The threshold for State intervention in respect of vulnerable children is high relative to that in other countries. The cases I am describing are ones which have been brought to us but because the issue of child protection is outside our jurisdiction we have not been able to pursue their investigation. However, I am aware of a number of cases involving children in foster care where in one case the child concerned wants something to happen in his or her life but because the parents of origin have inalienable rights and an opinion on what should happen, the child’s view is not taken into account because the view of parents is given paramountcy under the Constitution.

The second case concerns child protection, a vulnerable child in a protracted situation where the health board felt it could not intervene because it involved a family not unlike the one involved in the Kilkenny case. Even though the Deputy asked me not to refer to that case, it is a case that mirrors some of the circumstances in which the girl in question in that case found herself where health board officials find themselves unable to intervene at a time when they feel it would be appropriate to do so because of the parents’ wishes. The Deputy is looking quizzically at me. Obviously, I have not clarified the matter for him.

Deputy P. Power: Where is it stated in Article 41 that parents have rights which are superior to those of children? That is what we are trying to tease out.

Ms Logan: I refer the Deputy to the statement of Mrs. Justice McGuinness at the Kilkenny incest investigation committee in which she suggested the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to those of children. To this day we still see examples in the courts where parents’ rights are given a higher value than those of children. Children are seen as part of a family rather than as individuals.

Deputy P. Power: Is there an example Ms Logan can cite in support?

Ms Logan: If the details relating to the PKU and Kilkenny incest cases are not adequate, I can inform the Deputy that there are cases coming to the attention of our office but, due to the restriction regarding child protection, I cannot provide specific information in respect of them. The issues surrounding child protection are probably the most important but, constitutionally, these fall outside my jurisdiction. I cannot provide the committee with a specific example.

Deputy Cuffe: I congratulate Ms Logan on her appointment as Ombudsman for Children. She stated that recommendations were made 12 years ago in respect of constitutional recognition. It is time these were progressed. She also insinuated that the former health boards appeared to be frustrated with regard to the handling of particular cases involving foster care. Has the new Health Service Executive, formally or informally, put it to the Ombudsman that there needs to be change in this area? Is it possible for the executive to seek changes through the Ombudsman’s office? Is there a forum for communication between the Ombudsman and the management of the executive to allow them to voice the concerns that have obtained for 12 years?

Ms Logan: My office celebrated the first anniversary of its establishment yesterday. We have just reached the point of developing relationships with those involved in the Health Service Executive and sharing with them an understanding of our brief and remit. In terms of my office’s long-term strategy, I would like to develop relationships with the executive in order that it will understand that we provide an independent voice for children. The health executive is an advocate for children in vulnerable situations. Individual social workers have contacted us about particular children. I hope those working for the executive will view us as collaborators in respect of the long-term progression of children’s rights. We will be running workshops for these people in June in order to explain our role and indicate how they can utilise our service.

Deputy Cuffe: That clarifies the position. I am sure much of the office’s work will be explaining to other agencies its remit.

Ms Logan: While the complaints and redress functions are well understood, the position is not the same in respect of the advocacy function. As the latter is new, we do not expect people to understand it. We have much work to do in terms of communicating this to professionals. We receive many telephone calls from professionals working in the health services and in education. Many teachers and principals bring to our attention cases involving children in vulnerable situations.

I want to emphasise the issue of family. One concern expressed to me about our submission is that by somehow giving children rights, one is implying a diminution in the parents’ rights to rear children or decide what happens in the family. NUI Galway recently carried out significant research wherein children determined the indicators of well-being for themselves. Number one on the list was the family. The family, therefore, is of paramount importance to children. I cannot overestimate the importance of the work of our office in being pro-family and pro-family values. Our attendance at the committee is not intended to undermine parental authority or autonomy. We are here to support children who want to be part of the family.

Deputy Cuffe: That will give great reassurance to the many individuals who voiced concern about this. The Ombudsman’s submission states that children want nothing more than to be part of a family. Giving voice to this is very important in terms of reassuring those individuals who made submissions on this issue.

Chairman: The Ombudsman advocates improvement and clarity in the Constitution in respect of the rights of the child. Some members have asked if this can be dealt with simply by legislation. Most submissions to the committee, approximately 75%, advocate no change to the Constitution. Difficulties can emerge regarding referenda, with some groups wanting to retain the imprescriptible rights of parents. The reality is that the people most in need of this protection in rights do not have the vote. This issue arose when we examined constitutional property rights. It was claimed that if a law was introduced, it would not diminish a person’s right to own property. That was successfully tested in the courts in respect of the Planning Act 2001. Is the fear on the part of those working in the Health Service Executive justified? Would more forward-thinking legislation, which could be challenged in the courts, to protect and enhance the rights of children be a better alternative?

Ms Logan: I am here in my capacity to be an independent voice for children. My views do not represent those of any members of the executive. We see ourselves as monitors who are charged with ensuring that people who provide services for children are accountable and responsible.

Legislative change would be a much easier option. I would not be sitting here if I thought legislative change could change matters for children. Ireland unreservedly signed up to the UN Convention on the Rights of the Child in 1992. This has made little or no difference in the absence of any constitutional change or recognition for children. My office is most concerned with those children in the minority groups, namely, the vulnerable children about whom people never hear. I would not have attended the committee unless I believed that constitutional, not legislative, change is required.

Chairman: The Ombudsman has made that clear. I thank her for her contribution. She is the honest broker as far as children are concerned. The committee will take her views on board when it is compiling its report in the coming months.

Ms Logan: I thank the committee and wish it well in its deliberations.

Sitting suspended at 11.10 a.m. and resumed at 11.15 a.m.

Chairman: : The next item on the agenda is the presentation by the Human Rights Commission represented by Dr. Maurice Manning, president, Ms Suzanne Egan, commissioner, and Dr. Alpha Connelly, chief executive officer. I welcome the delegation, particularly our former colleague, Dr. Manning. It is nice to have him back.

I remind visitors that while members of the joint committee have absolute privilege, this same privilege does not apply to witnesses appearing before the committee. We have already received the commission’s submission. I invite the delegation to make a synopsis, lasting approximately six to eight minutes, to highlight its main points. After that, we will have questions and answers.

Dr. Maurice Manning: I thank the Chairman and members for the invitation to appear before the committee. The bulk of our presentation will be conveyed by my colleagues, Dr. Connelly and Ms Egan. I will say a few words about the Human Rights Commission to give a context to our submission.

The remit of the commission is to promote and protect human rights and the Human Rights Commission Act lays down 11 or 12 ways in which we are expected to do this. Human rights, as defined in the legislation, are those enshrined in the Constitution and various international agreements to which Ireland is party.

The Human Rights Commission is a small body which has not been long in existence. In practice, this means that much of our work is concentrated on examining proposals for legislation to determine whether they are human rights compliant. Representatives of the commission appeared before various committees of the Houses for this purpose on a number of occasions. The commission also comments on proposals for legislation and examines individual grievances. These are just some of the activities in which we have been engaged.

The Human Rights Commission works actively with other human rights institutions worldwide. The key areas on which we concentrate are disability, racism, immigration, economic and social rights and gender, although the list is not exhaustive.

The Human Rights Commission, as part of its ongoing work, has not examined the Constitution specifically to determine if it breaches human rights because this would be difficult and it does not form part of our remit. However, in the course of its other work, the commission has made certain key points about issues relevant to the joint committee’s examination and we intend to discuss these today. I ask my colleague, Ms Suzanne Egan, to briefly discuss the international aspect of human rights in the Constitution.

Ms Suzanne Egan: The Human Rights Commission considers it important to draw the attention of the joint committee to the fact that under its enabling legislation, the commission is specifically mandated to promote and protect not only the rights and freedoms conferred on or guaranteed to persons by the Constitution but also the rights, liberties and freedoms conferred on or guaranteed to persons by any international agreements, treaties or conventions to which the State is party. Among the range of international agreements to which the State is party, which are of relevance to the joint committee’s deliberations, are the European Convention on Human Rights, which was incorporated into the domestic law of the State by the European Convention on Human Rights Act 2003, the European Social Charter, the UN International Covenant on Civil and Political Rights, the UN International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Elimination of All Forms of Discrimination against Women - about which my colleague, Dr. Connelly, will speak specifically - and the UN Convention on the Rights of the Child.

While certain of these instruments have not yet been incorporated into the domestic law of the State, they are nonetheless binding on the State as a matter of international law. The Human Rights Commission, therefore, urges the joint committee to take account of these standards in formulating its proposals as regards the family. These standards, and the jurisprudence which has been developed under them, provide a rich source of human rights protection which could well illuminate the joint committee’s deliberations on the family.

Dr. Alpha Connelly: I am most pleased to have the opportunity to address the joint committee on the subject of family rights in the Constitution. Members may be aware that I was a member of the constitution review group which reported to Government in 1996 on areas of the Constitution in respect of which it believed change was desirable or necessary. That is where I first met Mr. Jim O’Donnell whose prose was excellent until the lawyers on the group, including me, got their hands on it. The review group made a number of recommendations for constitutional change in respect of the family. The report provides a baseline for the All-Party Oireachtas Committee on the Constitution in its consideration of this matter.

I am addressing the committee today on behalf of the Irish Human Rights Commission. The commission’s perspective on this subject is human rights-based and, as such, it accords with that adopted in the Constitution. I will speak to members about Article 41, headed “The Family”, and other issues under consideration by the committee which are included in the section of the Constitution that deals with fundamental rights. The perspective brought to bear on this subject by the Constitution is human rights-based.

It is instructive to consider how other countries view the family in human rights terms, particularly in the context of those international groupings of states, such as the United Nations and the Council of Europe, of which Ireland is a member. It is worth remembering that the Constitution was enacted in 1937 and that although it has been amended on a number of occasions, some of its provisions still bear a strong imprint of that time. Article 41 bears such an imprint.

Intergovernmental organisations such as the United Nations and the Council of Europe, a large part of the work of which is concerned with human rights matters, did not exist in 1937. Ireland joined these organisations in the mid-1940s or early 1950s and has participated in the drafting and evolution of internationally recognised human rights standards for more than half a century. It is worth remembering that international concern for human rights is, in historical terms, fairly recent.

Ireland is party to all core United Nations human rights treaties with one exception, namely, the International Convention on the Protection of All Migrant Workers and Members of Their Families. The commission has urged the Government to become party to that treaty. Ireland is also party to several Council of Europe human rights treaties, most notably the European Convention on Human Rights, many of the provisions of which were given effect in Irish law at the end of 2003.

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