International Child Rights in National Constitutions: Good Sense or Nonsense for Ireland?

Abstract

This paper explores how international child rights have empowered Ireland's institutions and actors to advocate for the incorporation of child rights into the national constitution. Moreover, the constitution and child rights hold more than legal significance, influencing political, economic, social and interpersonal spheres in a country. Consequently, constitutional child rights should improve respect of and the general situation of children. As part of the research process some children were consulted, and their contributions are incorporated throughout the paper.

Keywords:

• international child rights
• constitution
• Ireland

Acknowledgements

The author is grateful to University College Dublin for the EWI Marie Curie Transfer-of-Knowledge Fellowship in Child Rights (2009–2010) during which this research was carried out. She warmly thanks the valuable contributors to the research process and her University College Dublin colleagues for their support. Special gratitude is extended to focus group participants for their input and to Gearoidín O'Dwyer at Newpark Comprehensive School for her outstanding efforts. In addition, the reviewers' insightful comments are much appreciated and helped improve the manuscript.

Notes

1 An earlier version of this paper was presented as an Equality Studies Public Lecture, University College Dublin, 18 February 2010.

2 See, for example, Simmons (2009).

3 For example, see objections of The Netherlands to the reservations of Malaysia, Qatar and Singapore, which outline: ‘the common interest of States that treaties … should be respected, as to object and purpose, by all parties.’ UN (1999) Reservations, Declarations, and Objections Relating to the Convention on the Rights of the Child, CRC/C./2/Rev.8, p. 66.

4 See examples: Alston (1999); and Neuman (2003).

5 See examples: Tobin (2005); and UNICEF Innocenti Research Centre (2007a).

6 The courts have interpreted this provision, notably in Re Ó Láighléis [1960] IR 93 (SC), and concluded in favour of firm dualism, confirmed by the Supreme Court in McD v. L [2010] 2 IR 199 (SC).

7 McCrystal v. The Minister for Children and Youth Affairs & Ors [2012] IEHC 419.

8 North Western Health Board v. HW and CW [2001] IESC 90, [2001] 3 IR 622.

9 [2006] IESC 60.

10 This case involved a child under the age of 10 contesting her illegitimate status along with her parents due to her father's inability legally to dissolve his marriage to another woman due to constitutional prohibition (Article 41.3.2) after the Irish Supreme Court decided an illegitimate child cannot inherit. The European Court found that, owing to the absence of a legal regime for illegitimate children, the state failed to respect her family life, violating ECHR Article 8 for the girl and her parents; judgment of 27 November 1986, 6/1985/92/139.

11 Government of RSA and others v. Grootboom and others – CCT11/00 2001 (1) SA 46 (CC) 4 October 2000.

12 F. Moore on behalf of J. P. Moore v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education et al. 2012 SCC 61.

13 [1980] IR 32.

14 [1985] IR 32.

15 Children are only identified in Articles: 14, education; 24, child rights (protection, best interests and parental contact); 32, prohibition of child labour and protection of working youth; and 33, protection of family life.

16 The UN adopted the Optional Protocol to the CRC on a communications procedure on 19 December 2011, and as of 2 August 2013 it has been signed by 37 states, ratified or acceded to by six states but is not yet in force. It will enter into force after ratification or accession by 10 states' parties (Article 19(1)); UN (2013) Treaty Collection: ‘Chapter IV: Human Rights, 11.d Optional Protocol to the CRC on a communications procedure’, available at: treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-d&chapter=4&lang=en (accessed 2 August 2013).

17 See example: Kilkelly et al. (2008).

18 See details in Collins and Pearson (2011). Ireland (2012a); Ireland, Office of the Minister for Children and Youth Affairs (2006); Ireland (2000); OOC, available at: http://www.oco.ie/; and Children's Rights Alliance, available at: http://www.childrensrights.ie.

19 For example, see: UN (2000) Emerging Issues for Children in the Twenty-first century, A/AC.256/3BE/ICEF/2000/13, pp. 12–16; UN (1999) The Future Global Agenda for Children, E/ICEF/1999/10, pp. 6–7.

20 Ireland (1998) Education Act, 1998, Number 51 of 1998, Article 27 about school councils.

21 It is planned to merge the IHRC with the Equality Authority, which may have significance for child rights in future. Ireland, Joint Committee on Justice, Defence and Equality (2012) Heads of Irish Human Rights and Equality Commission Bill 2012, available at: www.justice.ie/en/JELR/20120605HeadsOfIHRECBill.pdf/Files/20120605HeadsOfIHRECBill.pdf (accessed 19 December 2012).

22 This goal involves researching and addressing inter alia children involved in prostitution and trafficking, and considering and supporting delivery of their economic, social and cultural rights and ensuring access to adjudicated justice (Irish Human Rights Commission, 2007: 26).

23 For instance, Article 1 outlines measures are ‘necessary to give effect to the provisions of this Charter’; Organisation of African States/African Union, Charter on the Rights and Welfare of the Child, adopted July 1990, entered into force 29 October 1999, OAU Doc. CAB/LEG/TSG/Rev.1.

24 Article 4, World Declaration on Education for All (1990), affirms focus ‘on actual learning acquisition and outcome …’, cited in Chinapah (1997: 1).

25 See as examples: Simon (2000); and Hafen and Hafen (1996).

26 For example, during its mandate, the Joint Committee on Constitutional Amendment received only 173 written submissions, 366 pro forma submissions, 15 letters from the public and six oral submissions (Ireland, Joint Committee of the Oireachtas, 2008b).