Irish Family Law
Irish Family Law
Discuss some of the key provisions and principles of the United Nations Convention on the Rights of the child. Include an example of Irish law or police that complies /does not comply with the States obligations under the convention.
This essay will look at some of the key provisions of the United Nations Convention on the Rights of the Child (UNCRC) and discuss Ireland’s progress in fulfilling their obligation under the UNCRC. The author will reflect briefly on the history of children’s rights in Ireland. The essay will consider what measures the state has taken to develop strategies and policies to improve the wellbeing of the children. Recent government initiatives will be explored will be explored to assess whether the UN Convention has been implemented into National Policy. The author will also consider the legal framework to gauge if Irish legislation as it stands today complies with the states obligations under the convention.
Attitudes towards children and their rights have changed dramatically in recent years; these changes have been slow to come about. Historically children were deemed the property of their parents and had no rights. In the late 1800’s, events abroad began to have an impact on attitudes if Ireland. The 1908 children’s act Britain and Ireland remained the main piece of legislation safeguarding children’s rights for almost one hundred years until the Irish Child Care Act 1991. The United Nations was set up in 1945 after the Second World War to promote peace and human rights. In 1989, it was decided that children needed a separate set of rights to ensure that children worldwide were nurtured, protected and allowed to enjoy childhood.
In 1990, Ireland signed the United Nations Convention on the Rights of the Child and ratified it in September 1992 thereby committing the state to implementing the UNCRC. The UNCRC is based on four core principles, the best interest of the child, the right to life survival and development, respect for the views of the child and non-discrimination. Article 3.1 of UNCRC states ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies the best interest of the child shall be a primary consideration’.
The Child Care Act 1991 is the legislative framework in Ireland for promoting the welfare of the child. This legislation deals primarily with the protection of children in emergencies, or in care. The Childcare Act 1991 Part II, places a statutory onus the HSE to promote the welfare of children in need of care and protection. The 1991 Act also gave the HSE more power to provide childcare and family support services and while doing so must have regard to the following: ‘It is generally in the best interest of the child to be brought up in his or her own family. Having regard to the rights and duties of the parents, the welfare of the child is the first and paramount consideration and that as far as is practicable, the wishes of the child should be considered” (Childcare Act 1991). Part II of The childcare act implements the principle of the best interest of the child in law.
The wording in part II of the childcare act would also appear to comply with Article 5 of the UNCRC requiring that ‘Governments respect the right of parents of provide for and care for their children’. Under the Irish Constitution, which is the fundamental law of the land, the family is based on the institution of marriage; only married parents have automatic rights to guardianship of their children. The rights of unmarried parents, in particular fathers are not considered under Irish law, consequently the rights of their children are being contravened. This is in contradiction with Article 18 of the UNCRC, which requires ‘State parties to recognise that both parties have equal responsibility for the care and development of their children. Article 7.1 states that the child …has the right to know and be cared for by his or her parents”, while Article 9 requires “state parties to ensure that a child will not be separated from his parents against their will…” UNCRC (1989).
Irish law makes it impossible for many children to realise these rights. In the case of unmarried parents, only the mother has automatic right to guardianship. The father must have the consent of the mother or pursue his rights to guardianship through the courts. Article 41 and 42 of the Constitution provides protection for the family unit based on marriage; it does not give individual rights and is more about protecting the institution of marriage than the family. The children of unmarried parents are not afforded the same protection under Article 41 and 42. Under the Irish Constitution as it currently stands, Ireland is not compliant with the UN convention. The constitution, in many cases, denies children of unmarried parents the right to be cared for by both parents. Article 3 .3 of the UN Convention calls for all ‘services and facilities responsible for the care and protection of children to conform to the standards established by competent authorities’. UNCRC (1989).
In 2006 The Child Care (Pre-School Services) Regulations 1996 were revised and replaced by the Child Care (pre-school Services) (No 2) Regulations. The 2006 regulations are more child centred and focus on the health, welfare and development of the child. These regulations are the regulatory framework within which all-early years services must operate in Ireland. Through a vigorous system of inspection, compliance with the pre-school regulations is monitored by the HSE to ensure that all Early Years services meet the minimum standards required by law. The Child Care (Pre School Services) Regulations implement the UN Convention in Irish Law.
Since Ireland ratified the UN Convention in 1992 there have been numerous changes in policy, showing the Irish Government’s commitment to implementing the UNCRC. In 1999, Children First National Guidelines for the Protection and Welfare of children was published by the Department of Health and Children. These guidelines highlight the importance of child welfare and are intended to provide a framework for all those who care for and work with children. Children First is based on the key principle that the best interest s of the child is paramount. These guidelines implement the best interest of the child and Article 19 of the UN Convention into National Policy. In 2006, the Committee on The Rights of The Child (CRC) recommended that Ireland review the Children First guidelines and consider putting them on a statutory basis CRC (2006). The guidelines were revised in 2011 to include new policy, legislation and organisation. at the time of the launch of the new guidelines in 2011, the government announced its intention to put the Children First Guidelines on statutory footing, it will then a legal requirement to report concerns regarding a threat a child’s welfare Nuig (2012).
In 1997, the Irish Government made a commitment that a National Childcare Strategy would be developed and an expert working group on Childcare was charged with developing that strategy. Despite Ireland’s commitment to the UN Convention, prior to this there was no national policy on children. The National Children’s Strategy 2000-2010 set three National Goals: to listen to children, think more about what children need and act for children in a holistic sense National Children’s Strategy Our Children-Their Lives (2000). Finally, Ireland was moving towards implementing the UN Convention into National Policy. For the first time children were asked about what they thought they needed and what they would like see happen for them in the future in Ireland.
This fulfilled the states obligation under Article 12 of the UN Convention, which requires that ‘State Parties shall assure to the child who is capable of forming his or her own view 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’ UNCRC (1989). Two thousand five hundred children were involved in these consultations; their responses identified a need for more play and recreation opportunities National Children’s Strategy (2000). In response to these consultations and to honour the states commitment to the UN Convention Article 31 which requires state parties ‘to recognise the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child’ the government launched Ready, Steady, Play! A National Play Policy in 2004. The objectives of the National Play Policy were to give children a voice, to raise awareness of the importance of play and to improve and maximise the quality and safety of play areas particularly in disadvantaged areas National Play Policy (2004-2008).
In 2009 Síolta, the National Quality Framework and Aistear the Early Childhood Curriculum Framework were rolled out. Síolta looks at quality provision and underpins the child’s right to have a voice, recommending that ‘each child has opportunities to make choices, is enabled to make decisions and has his /her choices and decisions respected’ CECDE (1999). Aistear promotes partnerships with parents and play NCCA (2009). Together with Regulation 5 of the Child Care (Pre School Services) (No.2) Regulations 2006 Síolta and Aistear use the Whole Child Perspective to ensure the holistic development of the child while implementing the UN Convention into practice on a daily basis.
It is evident that the Irish State is committed to implementing the UN Convention into Irish Law. The legislation introduced in recent years goes some way towards implementing children’s rights into law. In this authors opinion the main obstruction to Ireland’s compliance under the convention is the Irish constitution in its present form. All legislation is subject to the Constitution; therefore, any legislation introduced around child protection or welfare must be compatible with the Constitution. In 2006, the Committee on the rights of the child recommended that Ireland ‘takes further action to incorporate the Convention into domestic law’ CRC (2006).
It is this author’s opinion that changes will have to be made to the constitution to separate the rights of the child from those of the family. Many of the policies such as The National Childcare Strategy, The National Play Policy and Children First all underpin the right of the child as outlined in UN Convention. However these policies take the form of guidelines or frameworks, they are not part of the legislation. Following the recommendations of the CRC (2006), it is hoped that the Children First Guidelines will be put on a statutory footing ensuring mandatory reporting of child neglect and abuse. This would help safeguard future generations of Irish children from neglect and abuse.
•Centre for Early Childhood Development and Education (2006) Síolta The National framework for Quality in Early Childhood Care and Education. Dublin: Centre for Early Childhood Development and Education. •Child Care Act 1991
•Department of Children and Youth Affairs (2011) Children First: National Guidelines for the Protection and Welfare of Children, Government Publication: Dublin Available at:
http://WWW.dcya.gov.ie/documents/child_welfare_protection/children First.pdf •Ireland, Government of (1937) Bunreacht Na hÉireann, Constitution of Ireland. Dublin: Stationery Office. •Ireland, Government of (2000) National children’s Strategy, Dublin: The Stationery Office. •Ireland, Government of (2006) Child Care Pre-School Services NO 2 Regulations 2006 and child Care Pre-School Services No 2 Amendment Regulations 2006. Dublin: The Stationary Office. •National Council for Curriculum and Assessment, (2004) Aistear the Early Childhood Curriculum Framework. Dublin: National Council for Curriculum and Assessment. •National Play Policy (2004) Ready Steady Play! [Online]. Available at: http/www.dcya.gov.ie/documents/publications (Accessed 20 January 2012). •Nui Galway (2011) Quality Awareness in Early Learning, Galway: Nui Galway. •Nui Galway (2012) The Child and Family in Irish Law, Galway: Nui Galway.
•UN committee on the rights of the Child (CRC) (2006) UN Committee on the Rights of the Child: Concluding Observations, Ireland, 29 September 2006, [Online] Available at: http:www.childrensrights.ie/resourcse.un-com (Accessed: 14 January 2012. •United Nations (1989) Convention of the Rights of the Child [Online].Available at: http//wwwcirp.org/library/ethics/UN-Convention/(Accessed: 17 January 2011)
Subject: Human rights,
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 29 November 2016
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