We must not let lawyers destroy child rights issue

Tuesday November 7th 2006

THE decision to hold a constitutional referendum on the rights of children has, predictably, met with widespread support. But will it make any practical difference? If the proposal is largely a symbolic measure, it will be of no value. It has to be strong enough to have an impact.

We are not short of aspirations to help children in this country. Practical application is what is required.

And we must not allow lawyers to kill this new departure at birth.

The referendum proposal first emerged when the report of the Kilkenny Incest Case in 1993 pointed out that only unborn Irish children had explicit constitutional rights.

It has taken 13 years to get it seriously on the political agenda.

The convulsions that followed the statutory rape controversies about Mr A and Mr C last July ensured that resistance to the idea finally faded.

In proposing the referendum, Taoiseach Bertie Ahern placed the emphasis on protecting children from abuse.

There are currently about 5,000 children in the care of the Health Service Executive (HSE), many of whom taken into care via court action, due to abuse or neglect.

As someone who regularly gives evidence in such in camera cases, I know that these trials can last as long as an average murder trial and involve up to five or six times as many lawyers as social workers.

The interests of the child is supposed to be the only matter at issue but frequently the threat by lawyers acting on behalf of one or both parents of initiating a constitutional challenge in the High Court is enough to frighten a District Court judge into continuing with endless legal argument.

The proposed amendment has the potential to cut through this type of (very expensive) legal debate.

In the criminal area, the proposal offers hope that the criminal trial process, which grants copious constitutional rights to those accused of crimes against children, will reverse this imbalance.

For example, only about 5pc of cases of child sexual abuse are ever prosecuted. Even in the most serious of cases, the DPP will not lightly subject children to trials knowing that the system of trial is deliberately weighted against them.

The proposed amendment could radically change the present injustice.

However, to be effective the Government will also have to make good on other commitments.

The implementation of the recommendations of the Video Evidence Committee, whose report has been with the Department of Justice since 2003, is an essential first step.

Another way in which a positive constitutional statement of children's rights could impact would be in custody and access battles between estranged parents.

While, technically, all such Family Law cases are supposed to be governed by the over-arching principle of the best interests of the child, this is frequently not the case.

The Constitution gives explicit rights to parents, especially married ones.

It is very easy for the voices of the disputing parents and their lawyers to drown out the interests of children.

Needless to say all parties claim to be acting in the best interests of children, however, a study by the ESRI, based on the files of solicitors involved in Family Law disputes, found that the children were often "invisible" in these cases.

Likewise, in adoption disputes, judges will be freer to act in the interests of children and take less regard to the rights of parents, whether they are birth parents or adopters.

There is also the hope that many hundreds of children in long-term foster care, whose needs would be better served by being adopted, would be freed up for this.

At present, the constitutional status of married parents, in particular, makes it near impossible.

Opposition to the proposed amendment is likely to be limited but is most likely to come from two sources.

FIRSTLY, the ultra-conservative "pro-family" groups will see this move as an attack on the rights of parents.

The second source of resistance is likely to come from lawyers who represent those accused of crimes against children.

In 1992 when the Criminal Evidence Act first allowed the use of live "video-link" evidence from children in criminal trials, this was vehemently opposed by elements within the Bar Council.

The same can be expected on this occasion.

Of course, the wording of the amendment will be crucial.

It will have to be subtle enough to recognise that there are, at times, conflicting rights between children. For example, a 17 year old rapist and his 3 year old victim are both children.

The Constitution cannot protect them both equally.

Kieran McGrath is a child welfare consultant and

former editor of Irish Social Worker

? Irish Independent