Children s Rights - Whose right? A review of child policy development in Ireland. Nóirín Hayes - PDF

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Children s Rights - Whose right? A review of child policy development in Ireland By Nóirín Hayes 1 Introduction Background Aim of Paper...13 Making Children Visible: International Perspectives

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Children s Rights - Whose right? A review of child policy development in Ireland By Nóirín Hayes 1 Introduction Background Aim of Paper...13 Making Children Visible: International Perspectives and Influences Background The UN Convention on the Rights of the Child The Convention as an Agent for Action Children, Policy and Europe Summary...31 Contemporary Irish childhood Background Childhood in Ireland Giving Voice to Children Summary...42 Policy Development and Children in Ireland Background Children and the Irish Constitution: Children and the Family: Children and the Law Children and the Church Children and Education Summary...58 Tracking Children in Irish Policy Development Background Children and the National Agreements The National Children s Strategy Measuring Achievement- the Structures Measuring Achievement the Actions Summary...74 Childcare: A Policy Illustration Background Childcare and Gender Equity Childcare and Educational Disadvantage Summary...83 From Rhetoric to Action: Recommendations for Implementation Background From Welfare to Rights The Impact of the Convention on Irish Child Policy Moving Forward Strengthening Government Structures for Children...94 The National Children s Office Promoting and Protecting Children s Rights Participation of Children in Policy Making Conclusion ABBREVIATIONS: BIC CORI CRA CRG CSO D.I.T. ESRI EU GAL ICT ISPCC NCAC NCO NCS NDP NESC NESF NGO NRC NYCI PCW PESP PNR PPF SMI UN UNCRC Best Interests of the Child Conference of Religious of Ireland Children s Rights Alliance Constitutional Review Group Central Statistics Office Dublin Institute of Technology Economic and Social Research Institute European Union Guardian ad Litem Information and Communication Technology Irish Society for the Prevention of Cruelty to Children National Children s Advisory Council National Children s Office National Children s Strategy National Development Plan National Economic and Social Council National Economic and Social Forum Non-governmental Organisation National Research Council (US) National Youth Council of Ireland Programme for Competitiveness and Work Programme for Economic and Social Progress Programme for National Recovery Programme for Prosperity and Fairness Strategy Management Initiative United Nations United Nations Convention on the Rights of the Child 3 UNICEF USSS United Nations Children s Fund (originally United Nations International Children s Emergency Fund) Union of Secondary School Students 4 Executive summary The last decade has seen an increase in policy development relating to children and childhood in Ireland. Taking the United Nations Convention on the Rights of the Child (UNCRC) as a framework, this Blue Paper asserts that both children and Irish society would benefit if policy development for children were to move from the current welfare-based model towards a rights-based model. Such a shift would recognise children as a discrete social unit to be considered as parallel to, rather than embedded within, the family unit. In 1992 the Irish Government ratified the Convention. The Convention offers a valuable framework within which to develop, monitor and evaluate policy for children. This paper is not advocating the uncritical acceptance of rights as a mechanism for the development of policy for children. Rather it presents an argument for considering the UNCRC as an organisational framework to foreground children s issues and to highlight the unique nature of children s needs and rights. The Convention can act as a mirror against which the duties and obligations of adults and of the State and their response to these obligations can be reflected. Policy debate in the field of disability has identified a government trend to polarise rights and duties in Ireland. An example is the revoked Disability Bill, 2002 which has been criticised by a number of groups for not being rights-based. In the discussions and debates on the Bill, governmental responses presented the view that there were two ways to address disability and the role of the State. One was a duty-based response and the other a rights-based response. The Bill was characterised by government as dutybased. This paper argues particularly in the context of policy development for children that polarising duties or obligations in opposition to rights is a fruitless exercise as it creates a context of conflict between parties. Policy that is constructed in the spirit of balance between rights and obligations is more likely to generate integrated responses that are sensitive to individual needs and rights in the context of capacity of the State to respond. Balancing rights and obligations in policy development and associated legislation would reflect the partnership approach to policy planning that has been characterised as so central to our economic success. 5 The argument is made for a rights-based approach to policy development that would respect children as a specific social group, that would recognise the complex and diverse nature of children and that would consider all children as the primary focus and target as necessary. In addition it is argued that a rights-based approach would ensure, proactively, that the best interests of the child are taken as paramount in all matters relating to them. It would facilitate the participation of children, according to their age and maturity, in matters affecting them within their families and society. Such an approach to child policy development would reflect the Convention by explicitly incorporating the Convention, by mapping targets to specific articles within the Convention and by creating monitoring mechanisms matched to the international mechanisms that exist for the Convention. In arguing this case, the paper reviews the position of children in contemporary Irish society. It finds that ideologically childhood is seen as belonging within the family but that empirically, childhood is becoming more managed and controlled by institutions outside the family. It suggests that Irish society should review its approach to children as individuals, and to children within the family, in the light of the social and economic changes that have occurred so rapidly over the last two decades. Irish policy development is reviewed in relation to its sensitivity to, and impact on, children and childhood. Taking the major institutions of society, it reviews children and the family, children and the church, and children and education. The constitutional and legal position of children is outlined. While the language of policy and legislation has changed, the underpinning values, conceptualising children as passive and dependent, have largely remained the same. The review suggests that a protectionist welfare approach continues to dominate policy development in Ireland. This approach characterises children as dependents in need of protection and/or problems in need of solutions. Children are seen as the responsibility of their parents with the State offering only limited support to parents in their parenting role. While this may afford some support to certain children and families it shows limited recognition of children as a group with rights of equal value to those of adults. Children are an invisible entity in much policy-making. They are affected by the 6 outcomes of policies that are developed to meet the needs and rights of others, such as women, employers and trade unions. In 2000 the Irish National Children s Strategy (NCS) was published. The Strategy is an important policy statement for children in Ireland. It is presented as child-centred and identifies the participation of children as a central theme for the implementation of the strategy. While it is not a rights-based strategy, it does mark the beginning of a shift towards considering rights in policy development and implementation by strongly reflecting the Convention. All policy impacts, to a greater or lesser extent, on children. In the light of changes in Irish society that have impacted on the family and childhood and, given the fact that Ireland has ratified the Convention without reservation, it is proposed that an explicit rights-based approach to policy should be developed through leadership and discussion, to acknowledge and address the rights and needs of contemporary Irish children. To make any serious advance towards a rights-based approach to policy and practice a three-pronged, parallel action is proposed. The three areas identified for change and development are governance; the protection and promotion of children s rights; and the participation of children in matters affecting them. To progress the move towards a rights-based policy approach, a number of specific recommendations are made. Governance: A senior Minister without portfolio who, for a fixed period, would lead on particular cross-cutting issues should be appointed. This Minister would be responsible for overcoming the difficulties associated with budgets, planning and cross-departmental responsibilities and would, in the first instance, take over the implementation and development of the systems and structures necessary for progressing the Children s Strategy and strengthening children s rights. The Minister should report directly to the Cabinet Committee on Children. The brief of the National Children s Office (NCO) should be strengthened. It should develop indicators and procedures derived from the Convention to assess the impact of policy decisions on children for use by all government departments. It should develop mechanisms, across all departments, for the systematic collection and 7 analysis of data on children. The NCO should place a report, annually, before the Oireachtais in the form of a report for approval. Finally, the remit of the NCO should be widened to include proactive links with international developments in the area of children, children s rights and policy-making. The protection and promotion of children s rights: An Office of Ombudsman for Children should be established. A Bill to allow for the establishment of an Office of Ombudsman for Children was published in February 2002 and passed in April The Bill states that the Office will be independent and will report to the Oireachtas. It identifies two main functions for the Office. The first is to promote the rights and welfare of children. The second function of the Office is to examine and investigate complaints against public bodies, schools and voluntary hospitals. While the passage of the Bill is a positive move on behalf of children s rights it does have some limitations. In particular the Bill fails to expressly acknowledge the responsibility of the Office to protect children s rights as well as to promote them. The UN Committee on the Rights of the Child in its report on the Irish National Report was critical of the failure to provide a mechanism for the promotion and protection of children s rights. With amendments the Bill could ensure that all children including refugees, asylum-seekers and children in detention - would have access to the Ombudsman for Children and that the Ombudsman would be fully independent and empowered to promote and protect the rights of children. Participation of children in policy making: An Advisory, or Reference Group of children should be established - by children with the assistance of adults - with direct links to the National Economic and Social Council (NESC) and the National Economic and Social Forum (NESF). Mechanisms should be developed to give children a direct voice in future national partnership agreements, and the government should allocate funding to research and evaluate mechanisms to enhance the real participation of children in matters affecting them at local, regional and national level. Finally, it is recommended that the Education Act be amended to allow for the establishment of student councils at both primary and secondary level and that the role of these councils be strengthened. A proactive education for citizenship and 8 rights education should become part of the national curriculum at both primary and secondary level and training programmes on the UNCRC should be developed and incorporated into the education and training of those working with and for children. This paper argues the case for a re-evaluation of the place of children in Irish policy-making and recommends a move from the reactive welfare model of child policy to a pro-active rights-based model. Such a move is necessary to ensure that the status and rights of children are given due regard in modern Ireland. The UNCRC is presented as a framework within which such a move could be planned, implemented and evaluated. To effect such a move a parallel action plan is proposed so that the government, society in general and children in particular are all active participants in the process. 9 Acknowledgements The research for this Blue Paper was carried out during my period as Visiting Research Fellow at the Policy Institute, Trinity College, Dublin. My thanks to the Dublin Institute of Technology for allowing me to take up the position. I gratefully acknowledge the financial support and serene environment provided by the Institute during my time there. In particular I would like to thank the Senior Research Officer, Úna Nic Giolla Choille and her successor Orla Lane, for their encouragement, assistance and organisational skills. I would also like to thank my research colleagues for contributing to the pleasant working atmosphere. I spoke to many people in the field during my work on this project. I would like to thank every one of them for their interest and their contributions. I am indebted to those who read the manuscript in its many stages for their thoughtful comments. I am particularly grateful to my daughter and personal editor Clare Brady. The views expressed, and any errors, are mine alone. Nóirín Hayes Dublin Institute of Technology 10 Children s future is the present 1 1 Introduction 1.1 Background Contemporary Ireland is reviewing itself. Whether it is a function of our recent economic success and associated security; our success on the world stage in fields as diverse as popular music, business, politics, literature and poetry; our reputation as the young/fun place of Europe or simply the nature of fin de siecle, the media is awash with letters, articles and debates about where Ireland is heading in the 21st century; whether we are an economy or a society; how we can save what is perceived as the best of old Ireland in the new; whether we can define what was the best of the old, or whether, indeed, such a best ever really existed. Questions have been raised in these debates about the degree to which we cherish children in Ireland and whether we ever really did. There is an unprecedented level of media discussion about the relationship between the State and the family, in particular with respect to child-rearing. It is an exciting and interesting time to consider Ireland and Irish society s treatment of children. The unintended consequences of policy, practice and progress can first become evident in the quality of life, and the behaviour, of children. Children and their well-being can be taken as a barometer for the health of a society (Council of Europe, 1996a). Children represent almost one-third of the population of Ireland. They represent the future of Ireland but are dependent on the present for experiences that will enhance that future. Children are a vulnerable social group. They are spoken on behalf of but rarely have an opportunity to speak for themselves. It is the very nature 1 This quote is taken from the final page of Corsaro, W.A. (1997) The Sociology of Childhood (London:Pine Forge Press/Sage Publications) 11 of childhood, that nature which warrants cherishing, protection and support, that deprives children of the means to assert themselves and argue for their rights. Estimates vary, but it is conservative to suggest that 25 per cent of Irish children live in poverty (Nolan, 2000). There has been a visible increase in the number of homeless children and children living in hostels and Bed and Breakfast facilities in Irish cities and towns (Focus Ireland, 2000; Ireland, 2001b). There is an unacceptable level of illiteracy and early school-leaving in Ireland (Lynch, 1998; Archer, 2001). Leisure and recreational facilities for children are limited, for example Webb (1997) found that 46 per cent of local authorities do not, as a matter of policy, provide playground facilities. Ireland ratified the UNCRC in This Convention details the special rights of children including the right to participate in a democracy in ways that reflect their age and maturity. The Convention affirms the primacy of the family and does not propose rights for children at the expense of others. It does, however, aim to enhance the position of children in society by drawing attention to the particular nature of children s rights and society s obligations to children in this regard. In the document Re-righting the Constitution (1998), the Irish Commission for Justice and Peace note that rights are moral claims before they are legal entitlements and the position regarding the Constitutional rights of children in Ireland is the subject of some debate (CRG, 1996). A central concern of advocates for children s rights is that the rights given to the family as a unit may create a situation where the individual rights of the child are not explicitly taken into account. This can result in children experiencing an indifference to, and a lack of respect for, their opinions on issues that directly affect them. While this may be more evident as a concern when considering the older child it is nonetheless relevant for younger children and reflects an underlying conceptualisation of all children as less deserving of consideration than the adult members of a family unit. Respecting the rights of children does not give them the right to make unilateral decisions at odds with those of the family but it does give them a right to be explicitly considered and consulted in matters affecting them. The Convention highlights the special nature of children s rights and challenges societies to strive for a balance, across all ages, with respect to rights and obligations. 12 1.2 Aim of paper This paper considers the position of children in contemporary Irish society and reflects on how Irish policy-making has responded to changing needs. It reviews policy development and, in particular, explores the impact of the Convention. It outlines the value of the Convention as a framework for policy development and evaluation and questions whether Irish policy makers have embraced a rights-based approach in relation to children. In Ireland the primary responsibility for children is viewed as the private realm of families. Historically the family has been a separate and complementary institution to the State and, unless children are at risk or posing a serious problem, the State does not intervene. This complementarity is evident in legislation and policy and has led to the formation of a number of pressure groups that speak on behalf of the rights of families with respect to their children. As society becomes more complex, however, there is increased interdependency across institutions. This results in increased expectations of and demands on the State to provide for the well-being of all its population. At the same time, individuals reject overly intrusive intervention by the State into private affairs. Van Hoof (1984) suggests that these new circumstances pose a dilemma for prioritising rights qua rights, particularly economic, social and cultural rights. He contends that this dilemma is best resolved by locating the argument for rights within the context of obligations and identifies four layers of state obligation to its population. These are an obligation to respect rights; an obligation to prot
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