Children's Rights
and the Family:
Myth and Reality

Ursula Kilkelly

Issue 385, vol.97, Spring 2008

The adoption of the Convention was endorsed around the world and it was quickly established as the most widely accepted instrument in international law. Ireland added its voice to the chorus in 1992, when it made a formal legal commitment accepting the Convention’s obligations and undertaking to implement its provisions.

Ireland has made some progress in this area in recent years, adopting the National Children’s Strategy [1], establishing the Ombudsman for Children and appointing a Minister for Children. But, according to the Committee on the Rights of the Child (the expert international body that monitors implementation of the Convention), Ireland continues to lag behind in many areas, notably in the prevalence of paternalistic attitudes to children and the failure to recognise the position of the child as an independent rights-holder [2]. This has been recognised by Irish experts also [3] who have noted that Ireland’s progress in realising children’s rights is hampered by the terms of the Constitution whose strong provision for the family (and silence on independent rights for children) has dictated the direction and nature of law, policy and practice in many areas. Although the influence of the constitutional framework can be witnessed in the daily decisions of teachers, health care professionals and others who work with and for children [4], it is most clearly illustrated by the handful of cases decided by the Supreme Court in this area. The purpose of this article is to consider the relationship between children’s rights and the family in the context of both Convention on the Rights of the Child and the Irish Constitution. It does so by introducing children’s rights generally and with reference to the family, before considering the implications of the current constitutional position, and proposals to bring it further into line with Ireland’s children’s rights obligations.

The Convention on the Rights of the Child: An Introduction

The Convention is a blueprint for the treatment of children in all areas of their lives and, accepted by 193 states worldwide, it reflects universal acceptance of best practice in relation to children. It is a comprehensive and detailed instrument that recognises children have rights in school, in the family and in society. The Convention makes provision for particularly vulnerable children, like refugee children, children without parental care, children in conflict with the law and those who have suffered abuse or exploitation, and it provides a minimum standard below which the treatment of all children must not fall. In this regard, it provides for the right to an adequate standard of living (art 27), the right to health and health care (art 24) and the right to education on the basis of equal opportunity (art 28).

The Convention’s General Principles

The Convention has four key provisions as fundamental guiding principles. These are the child’s right to life, survival and development (art 6), the child’s right to enjoy all rights without discrimination (art 2), the requirement that the best interests must be a primary consideration in all actions concerning the child, known as the ‘best interests principle’ (art 3), and the child’s right to express his/her views and have them given due weight in all matters affecting the child in accordance with the child’s age and maturity (art 12). These general principles inform all of the Convention’s provisions [5] and taken together, they embody the ethos of the Convention, which aims to affirm the status of children as rights-holders, as individuals worthy of respect for the children they are rather than the adults they will become, and as active rather than passive participants in decisions made about their lives. The importance of treating children as equals, taking a child-centred approach and listening to children, thus captures what the Convention, as a whole, is trying to achieve in bringing about a sea change in attitudes towards children.

Protection, Provision and Participation

A useful way to summarise the Convention’s other provisions is to categorise them according to the three Ps of Protection, Provision and Participation [6]. ‘Protection’ rights include the child’s right to protection from all forms of harm and abuse (Art 19) and to protection from sexual and commercial exploitation (Arts 32-36). This group also includes provisions that highlight the state’s duty to respond effectively to children who have suffered harm, including by ensuring they receive the necessary support and follow-up (Art 19, 39). These provisions require strong protection for children at risk and attempt to ensure that all children have the opportunity to enjoy a childhood without violence. In the view of the Committee on the Rights of the Child, the Convention also requires the abolition of the physical punishment of children [7].

‘Provision’ refers to the child’s rights to have his/her basic needs fulfilled including the right to identity (Art 8), education (Arts 28 and 29), play (Art 31 health care (Art 24) and social security (Art 26). It also includes those provisions which make special provision for the rights of children with disabilities (Art 23), migrant children and those from minority groups (Arts 22, 30) and children without parental care (Art 20, 40). The final category of ‘Participation’ rights includes the child’s right to be heard (Art 12), to access information (Art 17), including about his/her rights (Art 42), as well as the rights to freedom of expression (Art 13), religion (Art 14) and association (Art 15). These provisions recognise children’s capacity to participate in decision-making that concerns them and aim to empower children, to give them a voice and to promote their constructive involvement in decision-making that affects them. ‘Participation’ rights also aim to prepare children for full active citizenship and their exercise is thus an essential part of preparing for the move from childhood to adulthood, where these rights are taken for granted.

The Convention and the Family

As the consensus around these issues demonstrates, these rights are not especially controversial and few would dispute the importance of ensuring that they are fully vindicated against the State. Where some might have difficulty is with respect to the exercise of children’s rights in the family. Talk of children’s rights in this context is sometimes seen as a threat to the rights of parents, an attempt to undermine their authority or to seek to interfere on a greater scale with the integrity of the family. Visions emerge of children ‘divorcing’ their parents and being emancipated to live independently of those who seek to control them, or of the state regularly substituting its authority for that of parents. However, these positions misunderstand the meaning of children’s rights and their role and importance in the family context. In particular, the Convention occasionally suffers from the misconception that it is anti-family, and that children’s rights per se involve the zero sum game of taking rights from adults [8]. However, nothing in the text of its provisions supports these conclusions. In fact, the importance of the family to the child and of the child to the family is emphasised throughout the Convention. From the outset, the family is recognised as the fundamental unit of society and the child’s need to grow up in a safe family environment is recognised. The importance of the family to children is also expressed, with a strong emphasis on the important role that parents play in guiding and influencing their children in the exercise of their rights and every aspect of their lives. Frequent references are made to parents, legal guardians and extended family with a role in the child’s life and the rights of parents are given explicit recognition. Specific provision is made for the child’s right to know and be reared by his/her parents (Art 7), the right to enjoy regular and direct contact with parents following family separation (art 9) and the right to be provided with alternative, family-based care, including adoption, where children are deprived of their family environment. (arts 20, 21). Special provision is made for children who find themselves living in different countries from their parents, and applications for family reunification must be handled in a humane, positive and expeditious manner (art 10).

The balance between parents’ and children’s rights is delicately struck in Article 5, which contains the principle of evolving capacity. Here, the Convention recognises the rights and duties of parents to provide appropriate direction to their children in the exercise of their rights. However, this is to be done in a manner consistent with the child’s evolving capacities, neatly demonstrating the gradual way in which parents’ role in the protection of their children’s rights transfers to the children themselves as they mature and develop to take on this role for themselves. This principle not only recognises the importance of parents providing support and guidance to young people in the exercise of their rights, but also deals with the reality that very young children are not in a position to exercise their rights for themselves. In this way, Article 5 creates a bridge for children to cross with the help of their parents to bring them from early childhood, where parents can be expected to take all the decisions about their life and wellbeing, to adolescence, where young people on the verge of adulthood can expect to take the majority of those decisions themselves. The role of the parents is explicitly recognised throughout this process as an important one of guide, adviser and supporter and the position of the child is one of moving ever closer to full capacity.

The Convention is also clear that the State has a duty to support the family and parents in their child-rearing role. Article 18 is unequivocal that parents have the primary responsibility for the upbringing and development of their child, but it is explicit that the State has a duty to support parents through the provision of financial and other supports, and the development of children’s facilities and services. Overall, the Convention is unequivocal about the importance of the family to the child, about the important role that parents play in the child’s family life, and that the State has a duty to act in a positive manner to support, maintain and if necessary reinstate the family relationship.

It is clear, therefore, that the Convention and children’s rights are entirely consistent with respect for the family and the role of parents in their children’s lives. There is consistency too between the Convention and the Irish Constitution in relation to the importance of the family to society and to the child. Where difficulties appear in the constitutional framework, however, is with regard to the near absolute autonomy that parents enjoy as against the State, and the impact that this can have on the lives of their children, particularly in the absence of express constitutional rights for children. This will now be explored.

The Irish Constitutional Position

It is, perhaps, well known that the Irish Constitution (notably Articles 41 and 42) contains strong protection for the family, meaning the family based on marriage, recognising it as an institution with inalienable and imprescriptible rights. In addition, the courts have recognised, through case-law, that children have the right to belong to a family, to have that family protected, to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education [9]. While these rights are clearly important, two concerns arise here: the first is the failure on the part of the State to fully vindicate these rights for children and their families. For instance, full implementation of a child’s right to a family would require that adequate family support be available to help families in difficulty, would ensure family-based care for children who find themselves without parental care and would provide that any measures designed to help vulnerable children would focus on the family rather than on the individual (child or parent) in need.

Similarly, vindication of the child’s right to a family and indeed the family’s rights more generally would ensure that unmarried fathers be supported to have a meaningful social as well as legal relationship with their children, would actively promote and support the involvement of all parents and extended family in their children’s lives and would ensure that non-discriminatory legal provision was in place to protect and promote the child’s relationship with his/her parents, regardless of their marital status. None of these propositions are anti-family or interfere in any way with its authority, yet they are also central to fulfilling the rights of children to, and in the family [10].

The second problem with the current constitutional provision is the balance, or rather the lack of balance that it strikes between the rights of parents and the rights of children [11]. In particular, the constitutional position of the family works to emphasise the rights of parents and gives them a higher value than the rights of children. This is compounded by the inadequate provision for children’s rights in the Constitution and the fact that existing provision is linked inextricably to the family, meaning that children are not recognised as having rights of their own. Parents’ rights, commensurate with the rights of the family, have been interpreted in almost absolute form and in a manner that has excluded giving due weight to the rights of the child where conflict exists. This position has its origins in Article 42.5 of the Constitution, which provides that the State must endeavour to supply the place of parents who have failed in their physical and moral duty towards their child, but only ‘in exceptional circumstances’. According to the Supreme Court, this operates as a presumption that the welfare of the child is to be found within the family (based on marriage) unless there are compelling reasons to the contrary [12]. This is a high threshold for State intervention in the family, which has made it difficult to ensure that children at risk are adequately protected. More importantly, this has prevented decisions being made on the merits of the case with the interests of the children being the primary factor [13]. Together, then, the constitutional emphasis on the family has led to the rights of children being ignored or underplayed in favour of the rights of parents.

Two examples illustrate the problem here: the first, known as the PKU case, was a Supreme Court case from 2001 concerning a dispute between the Health Board and the parents of a new-born who refused to give their consent to have the heel-prick test carried out [14]. The Health Board believed the test was strongly in the child’s interests, but the parents disagreed, believing it caused harm to the child. The Supreme Court held that, as unreasonable as the decision of the child’s parents was, it was one that they were entitled to make under the Constitution. The overwhelming benefits to the child of having the test done were thus a secondary consideration to the State’s duty to respect the integrity of the family in the circumstances of the case. A key issue in this case was that the Oireachtas had not made the PKU test mandatory and the Court was reluctant to do this by case law. This notwithstanding, one of the judgment’s notable features was the absence of any real consideration for the rights of the child. While the Court might have reached the same conclusion were it required to give weight to the child’s right to health and development, such a judgment would have resulted in clear recognition that the rights of the person at the centre of the case, who incidentally enjoyed no independent representation of his interests before the court, were also worthy of respect. It is also arguable that such a decision would have been child-centred and based on the merits of the case, rather than a deferral to a default position of respect for the rights of the parents, whose views in this case were described by the Court as ‘irrational’.

A second case of note is that known as ‘Baby Ann’ [15] which involved the placement of a child for adoption and her parents’ efforts to have their daughter returned following a change of heart. In September 2006, the High Court found there to be compelling reasons why Ann’s welfare was not best served by returning her to her natural parents - she had become highly attached to her adoptive parents with whom she had lived for almost two years and other factors suggested that transfer of custody could not successfully be undertaken without causing her emotional and psychological harm. However, in November 2006, the Supreme Court reversed this decision, holding that the parents had not failed in their duty to their child – placing her for adoption did not constitute such failure – and finding no compelling reasons existed for displacing the presumption that Ann was best raised in their care. It was clear, overall, that the constitutional position of the family, based on marriage, made it virtually impossible for baby Ann to be adopted regardless of the benefits of that decision for baby Ann herself. While it is difficult to say with certainty whether the Supreme Court would have reached the same conclusion were it required to give due consideration to the rights of baby Ann as part of its decision-making process, it would nonetheless have resulted in a judgment that at least recognised that the child involved also had rights that are worthy of consideration. Of note here, of course, are the child’s right to know and be raised by her natural parents, but also relevant is the child’s right to have decisions taken that are consistent with her best interests. In this way, the Baby Ann case makes clear that the current constitutional provision involves the operation of a strong presumption in favour of respect for the integrity of the marital family as opposed to any decision based on the merits of what is in the individual child’s interests. Accordingly, these cases illustrate that children are silent in the Constitution, and, especially where their parents’ rights are involved, their rights are largely ignored.

The Way Forward?

These problems are not new and the need for reform has been recognised for some time. Their complexity means that there is no quick fix and any change must be very carefully thought-out and considered. The Government appears finally to have some interest in amending the Constitution in this area and proposals are currently before an All-Party Oireachtas Committee. Without pre-empting this process, it is inescapable that the current proposals for constitutional amendment are ad hoc and offer little hope that the root and branch reform required is going to be undertaken at this time [16]. The decision to place the new provision into Article 42, which deals with the family and education, rather than Article 40, which deals with personal rights, will ensure that it is limited to these areas of the child’s life and will not have broader influence. In terms of substance, the proposal to inset a statement ‘acknowledging’ the rights of the child is similarly unlikely to add any real value to the current position given that the courts have already made similar statements to this effect. Other proposals, like that to enable children born to married parents to be adopted, are worthwhile, but they are not statements of principle and as a result will affect only a small number of children. Overall, the proposals will not ensure that all decisions made concerning children will be determined by their best interests; nor will they promote the necessary change in attitudes towards children required to ensure the development of genuinely child-focused law and policy in all areas that affect children, including the family.

As to what ought to happen, it was highlighted above that in 1992 Ireland signed up to the Convention on the Rights of the Child and undertook to realise Convention rights for all children. The Committee on the Rights of the Child has urged Ireland to give further effect to the Convention in Irish law and to incorporate its general principles into the Constitution. Accordingly, we should look to the Convention when seeking to identify a set of core principles and values that should inform law, policy and practice in relation to the treatment of our children. In this regard, an important starting point would be to insert into the Constitution an unequivocal statement of children’s rights in the form of a general commitment – like the general one in Article 40.3 – that the State has a duty to respect and vindicate the rights of the child. This would highlight our commitment to ensuring that the rights of children be promoted and protected thereby drawing a line under the past where this clearly was not the case. In addition, consideration should be given to establishing as a constitutional principle that all actions concerning children should regard the best interests of the child as a primary consideration. These provisions taken together would provide the courts with a way of taking the interests and rights of the child into account in individual cases and would have the added value of promoting a more child-centred approach among decision-makers – from government to local practitioners – having a clear knock-on effect on the way children are treated.

Of course, a more far-reaching proposition would be to follow those countries that have given constitutional expression to the right of the child to be heard in decisions made about them. This would serve to ensure not only that children’s voices are heard and taken into account in line with their age and maturity, but it would also, more generally, raise the profile of children and ensure that they are treated as individuals in their own right. It would provide strong support for a child-focused approach to decision-making, and minimise further the risk of children’s rights being ignored or underplayed. Finally, to ensure that all children enjoy the equal benefit of their rights, it is important to assert in the Constitution the principle that children should not suffer any discrimination in the enjoyment of their rights. This would not only promote equal access to services, including education, it would also prevent the adoption of policies and measures that discriminate against children including on the grounds of disadvantage, disability, illness, family status, religion or nationality.

Conclusion

This article set out to discuss children’s rights in the context of the family, with reference both to possible myths about the Convention on the Rights of the Child and to the reality of current constitutional provision. While the cases highlighted may be rare, there should be no misunderstanding about the relevance of the Constitution to children’s daily lives in the family and outside. Similarly, it is important to recognise the depth of the relationship between children’s rights and the family and the fact these are mutually dependent rather than mutually exclusive concepts. Thus, the view that children’s rights are in themselves anti-family is to misunderstand the role that rights can play in protecting the child within the family and promoting the role the family must play in both supporting children to exercise their rights and as a children’s right in itself. At the same time, the rejection of children’s rights in the family is to take an idyllic view of childhood, one where the interests of parents and children always coincide. While this is normally the case, Ireland has seen more than its share of cases where the presumption that children were safe in their families has had catastrophic effects on the children involved. That is not to argue for the diminution of the importance of family integrity or an increase in the level of State interference in the family. Rather, it is to consider a rebalanced model of constitutional provision which adds children’s rights to the mix and recognises that a children’s rights approach to children’s issues has greater potential to unlock better treatment for children, greater access to services and better support for families than an approach that seeks purely to protect the family from the interference of the State.

Ursula Kelly is Senior Lecturer in the Faculty of Law, University College Cork.

Notes: 

[1]     National Children’s Office, Our Children Their Lives A National Children’s Strategy, Department of Health and Children, 2000.

[2]     Committee on the Rights of the Child, Concluding Observations: Ireland CRC/C/15/Add.85 (1998) and Committee on the Rights of the Child, Concluding Observations: Ireland CRC/C/IRL/CO/2 (2006).

[3]     See, for example, Eastern Health Board, Kilkenny Incest Investigation: Report presented to Mr Brendan Howlin, TD, Minister for Health (Dublin: Stationery Office, 1993) and Report of the Constitution Review Group (Dublin: Stationery Office, 1996).

[4]     See generally Kilkelly, Obstacles to the Exercise of Children’s Rights in Ireland (Dublin: Ombudsman for Children, 2007).

[5]     Committee on the Rights of the Child, Reporting Guidelines, CRC/C/5 at para 13.

[6]     Hammarberg, ‘The UN Convention on the Rights of the Child – and How to Make it Work’ (1990) 12 Human Rights Quarterly 97.

[7]     Committee on the Rights of the Child, General Comment No 8 The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment CRC/C/GC/8 (2006). See also the United Nations Secretary General’s Study on Violence against Children at www.violencestudy.org, paras 26 and 30-37.

[8]     See Kilbourne, ‘The Wayward Americans - why the USA has not ratified the United Nations Convention on the Rights of the Child’ (1998) 10 Child and Family Law Quarterly 243.

[9]     In Re JH [1985] IR 375.

[10]    See further Kilkelly, op.cit.

[11]    O’Mahony, ‘Children, Parents and Education Rights: A Constitutional Imbalance’ (2004) 3 Irish Journal of Family Law 3.

[12]    In Re JH [1985] 375.

[13]    See Carolan, ‘The Constitutional Consequences of Reform: Best Interests after the Amendment’ (2007) 3 Irish Journal of Family Law 9.

[14]    North Western Heath Board v HW and CW [2001] 3 IR 622.

[15]    N and Others v Health Services Executive [2006] IESC 60.

[16]    See Carolan, above, and Kilkelly and O’Mahony, ‘The Proposed Children's Rights Amendment: Running to Stand Still?’ (2007) 2 Irish Journal of Family Law 19.

Bibliography

Marshall and Parvis,

Honouring Children. The human rights of the child in Christian perspective (Edinburgh: Saint Andrew Press, 2004).

Carolan,

‘The Constitutional Consequences of Reform: Best Interests after the Amendment’ 3 (2007) Irish Journal of Family Law 9.

Fortin,

Children’s Rights and the Developing Law, 2^nd Ed (London: LexisNexis Butterworths, 2003).

Kilkelly and O’Mahony,

‘The Proposed Children's Rights Amendment: Running to Stand Still?’ 2, (2007), Irish Journal of Family Law 19.