Motion: Direct Provision

The Minister of State is welcome to the House. I avail of the opportunity to welcome to the Visitors Gallery Dr. Bryan McMahon, chairman of the working group which is to report to the Government on improvements to the protection process, including direct provision accommodation and support for asylum seekers.

I am pleased that the last motion to be debated during Private Members’ business in the 24th Seanad looks at the living conditions of children and young people in the direct provision system. Our group has used its time to consider this issue and I have spoken about it at every available opportunity, including in numerous Adjournment debates and debates on legislation, in an effort to bring the plight of children to the fore. This is the critical issue of our time. In fact, Dietrich Bonhoeffer has said the test of the morality of a society is what it does for its children. I fear our failures and the treatment of children in the direct provision system will be the subject of a Ryan report in the future, but we have an opportunity to make changes now. All too often we look back in shock at what happened in the past and say how desperate it was, but what we do now with that knowledge is on what we should be judged.

My entry point to the issue of direct provision is from a children’s rights perspective. My perspective has been informed by my previous work in the Children’s Rights Alliance, the recommendations of the Government appointed special rapporteur on child protection, Professor Geoffrey Shannon, the concerns raised consistently by advocacy groups, my visits to two direct provision asylum centres as an independent Member of the Seanad and the recommendations of the working group. It has taken me a long time to wade through the mire that is the political discourse on the direct provision system. I have struggled to understand the distinction drawn – I still do not agree with it – between children cared for by the State, as children in the direct provision system are described, and children in the care of the State as those in foster care and other care systems are described. I have argued strenuously that children are children, irrespective of their status, and that it is stretching credulity to claim that children in the direct provision system are in the care of their parents in circumstances where their autonomy to make even basic decisions about their children’s care, for example, on what and when to eat, is so limited as to render it absent.

The direct provision system is detrimental to the welfare and development of asylum seekers and, in particular, the 1,225 children residing in direct provision accommodation throughout Ireland. There is a plethora of difficulties, including the dubious legality of the direct provision system, the lack of an independent complaints mechanism for residents, the absence of independent inspection of centres in which children reside, the decision by Ireland to opt out of the EU directive to allow asylum seekers to enter the workforce if their applications have not been processed after one year and the fact that there are no prospects post-secondary education for young asylum seekers. It is like hitting the pause button for an uncertain and, doubtless, lengthy period.

I appreciate that we have made some moves, but for most of the children, there is this cliff, the fettering and erosion of normal family dynamics and functioning, the lack of autonomous decision-making and the negative impact on the mental health of adults and children in the direct provision system. The ultimate failure lies in the length of time people remain in the system waiting to have their claims processed. I note the efforts the Government has made to reduce the length of time involved through the International Protection Act 2015 by introducing a single procedure to deal with international protection applications, but the reality is that the average length of stay is four years. However, a significant number have remained within the system for five to ten years. Some 55% have been on the waiting list for more than five years. I ask the Minister of State to think of all the things we have achieved in the past five years when he is on the election trail. There are people who have been in the direct provision system for that period of time. What a substantial loss of time it has been for the individuals, families and, particularly, children who have spent their entire childhood in direct provision centres. They are waiting for their lives to resume.

I was saddened to read in the final report on the child care law reporting project by Dr. Carol Coulter and her team, presented in November 2015, that children born in 2007 were still in the direct provision system. The only time they spent outside it was when they were placed in foster care while their mother received treatment for a mental illness.

There are more than 17 recommendations in the report of the working group which are specific to children and young people. I take the opportunity to thank the Children’s Rights Alliance and its member organisations for ensuring the unique vulnerability of children in the direct provision system was not lost in the process. I will cover briefly the first of those recommendations that we have cited in the motion. My colleague, Senator Fiach Mac Conghail, will speak to the others.

There is a need for child-friendly materials containing relevant legal information. The reality for all of us in full health is that the system is very legalistic; as it can be intimidating, people need support, particularly children who are unaccompanied and seeking guidance on how to pass through the system and for what they need to apply. We need to ensure the material is in a language they can understand in order that they can appreciate the ramifications of the decisions they will take.

The remit of the Office of the Ombudsman for Children should be extended to include complaints about services provided, transfer decisions and so on. Ireland ratified the third optional protocol to the UN Convention on the Rights of the Child which involves a communication procedure. It allows individual children, groups of children and their representatives, including those in the direct provision system, to submit a complaint to the UN Committee on the Rights of the Child about specific violations of their rights under the UN Convention on the Rights of the Child. I had the privilege of attending the hearing on Ireland before the UN Committee on the Rights of the Child. The question was rightly asked how Ireland had in place a system that allowed children in the direct provision system to make a complaint to the UN Committee on the Rights of the Child but yet they had no right to make it to the Ombudsman for Children. How can this be the case? Technically, the recommendation that the remit of the Ombudsman for Children be extended is supported in the Child and Family Agency Act 2013 which in section 69 includes a provision on the referral of complaints to the Office of the Ombudsman for Children. Technically, it requires nothing more than a ministerial order or a statutory instrument similar to the one made in 2012 when the decision was made to extend the remit of the Ombudsman for Children to receive complaints from children in prison. It is a question of political will. It is absurd that one can report to a UN body based in Geneva but not to the Ombudsman for Children. I know that the Ombudsman for Children is ready and willing to receive these complaints and wants to be there for all children in Ireland.

The lack of an independent complaints mechanism is completely out of step with the jurisdiction conferred on the office of ombudsman across the Continent. In November 2014, in CA and TA – a minor – v.the Minister for Justice and Equality, the Minister for Social Protection, the Attorney General and Ireland, Mr. Justice Colm Mac Eochaigh found that the RIA’s complaint procedure was deficient, not sufficiently independent, owing to the fact that it was the final arbiter in the process and that some elements of its house rules were unlawful. I do not care what anybody says, I trust the system, yet I would not be comfortable in making a complaint to those who I perceive as being part of the asylum system. We need to develop a welfare strategy and ensure all children have a named social worker based within the Child and Family Agency, not within the system in which a decision will be made on an application. I have argued for the application of the HIQA national standard for the protection and welfare of children, for the involvement of the Health Service Executive’s child and family services, particularly where a referral is made by the child and family services unit in the RIA to the HSE of a child. It is shocking that there is still no independent inspection regime or national standards for direct provision centres, given that we know that there is a significantly higher referral rate for child protection and welfare cases from direct provision centre than among the general population. In one in four cases at least one parent is from an ethnic minority or an asylum seeker or Traveller. I implore the Minister of State to be cognisant of the consistent findings in child care law reporting projects that social exclusion, poverty, isolation, mental health issues and disability are common features of mothers and fathers facing court proceedings and the acknowledgement that minority groups, including asylum seekers, are particularly vulnerable.

My colleague, Senator Fiach Mac Conghail, will speak in greater detail about the issues related to the weekly allowance. There is also the issue of those seeking jobs.Ireland and Lithuania are the only two EU member states that apply a blanket prohibition on asylum seekers entering employment or setting up a business in the state. In conclusion, I wish to quote the words of Bill Frelick, the refugee programme director at Human Rights Watch. He said: “Ireland should recognise work not only as a source of dignity, but as providing a livelihood that is integral to sustaining asylum seekers in the pursuit of their right to seek asylum.”

………………..

I thank, in particular, Senator Fiach Mac Conghail who worked with me on this issue, on which we have been at one. I also thank Senators Brian Ó Domhnaill, Martin Conway, David Norris, Marie Moloney, Trevor Ó Clochartaigh and Ivana Bacik. It is great that the House is united on the issue.
Senator Trevor Ó Clochartaigh is correct to ask what we have achieved. For me, what is most depressing is that we can unite on an issue, but the question is whether we can really bring things forward. Senator Fiach Mac Conghail is correct – as we have the working group’s report, we do not need to have long discussions; we need to move to its implementation. I would like to see the progress reports of high level groups published in order that the process is transparent.
I have listened to the debate on the importance of cooking facilities for families. There is the issue of costs because people need materials in order to be able to cook. We can have that debate, but I will go home tonight and decide the time at which I want to eat and what I will eat. I do not have to depend on a service that provides for me to eat at a specific time. How many of us eat at the same time every day? That alone is institutionalisation. Friends have told me how difficult they find it when they are in hospital for one week. I cannot imagine what it is like to be in a direct provision system.
On the issue of tenders, why are we allowing people to profit from the misery of others? I have a fundamental problem with this. Why is the State not providing the service? Why do we not ask an NGO to do it? There are some really excellent NGOs working in this area. I am thinking of Crosscare, but I am sure there are others. I have seen first-hand the work they do.
On the remit of the Ombudsman for Children, I believe it could be done by statutory instrument or ministerial order. It is, therefore, an issue of political will. If one goes back to the debate in the Houses of the Oireachtas on the Ombudsman for Children Act 2002, this issue was raised. Would we leave an especially vulnerable group of children and young people outside the scope of the Ombudsman for Children’s investigatory remit? In response the former Minister Mary Hanafin said, “The children of asylum seekers and refugees will have access to the Ombudsman for Children in the same way as every other child in Ireland.” That is what the Houses were told. The only thing excluded is the administration of the law, that is, the procedures for defining and determining whether a person is entitled to a particular status. She also explained:
If, however, there are problems in relation to delays, the provision of accommodation, nutrition, housing, etc, those issues are covered. This provision is only to ensure there is not a duplication of the actual process of the administration of the law.
Why does the Ombudsman for Children not have a remit to look at the application? We live on an island, but we really are an island as far as the rest of Europe is concerned because children in other countries can go to their ombudsman for children. It is enshrined in the Constitution that all children are equal, yet now we say we will interpret it slightly differently and that children in direct provision centres do not have the same rights. The Ombudsman for Children and Mr. Peter Tyndall made a joint submission to the working group which clearly explained the benefits, from their involvement in the direct provision system, that their experience could bring and the ease with which they could move into that space if allowed to do so.
The Minister of State has talked about the additional resources that would be needed. It makes me more fearful because it means that he believes there would be lots of complaints and resources needed. What is happening if we know that we will need all of these additional resources? We would need some resources. He goes on to say it is also important to recall that the working group looked specifically at the possibility of setting up a separate complaints procedure but rejected the idea in favour of extending the remit in order that the established offices could take on this role. It is welcome that the Minister for Justice and Equality will meet the Ombudsman for Children next Wednesday. I hope we will move on this issue because it is about giving people hope.
I explain that my job is about nudging. When one is in a direct provision system, it is difficult to understand the nuances in things moving forward and progressing. People need hope and we need to see some big changes. We need to see an increase in the amount of money given to those in direct provision centres in line with the working group’s report. Although a figure of 60% makes for a good news day, it has not risen in 15 years. The people concerned cannot afford to do the normal things children do. I want to be happy that we are moving forward and have a great report, but we are not doing enough. I hope that when the House comes back, Senators will again unite and push firmly for change.
I thank the cross-party group and all Senators who have united on this issue. In particular, I thank the working group’s members, the secretariat, the different Departments that have come together on the issue and, in particular, Dr. Bryan McMahon. We now need to stop the discussion and begin implementation. We need to ensure hope for all citizens and that children are children first and foremost.

Joint Committee Questions to the Minister of Children and Youth Affairs

Question 10 (Senator Jillian Van Turnhout)

Can the Minister give his considered view on the recommendations in the Report of the Joint Committee on Health and Children on the General Scheme of the Adoption (Information and Tracing) Bill 2015?

My Department is examining the Report on the Pre-Legislative Scrutiny of the General Scheme and Heads of the Adoption (Information and Tracing) Bill 2015, recently published by the Joint Committee on Health and Children.

I would to thank the Chairman of the Joint Committee on Health and Children, Jerry Buttimer TD, and members of the Committee for their work in producing the Report without delay. I know that a considerable amount of work has gone into this Report and it is being studied in detail as we continue the preparation of the legislation.

The Report has made key recommendations as follows:

  • That the definition of ‘compelling reasons’ be further clarified and more tightly defined in the Bill.
  • In cases where non-disclosure is sought citing ‘compelling reasons’, this should be supported by medical evidence.
  • that consideration should be given to excluding the Statutory Declaration provision from the Bill. This could possibly be replaced by an alternative provision where the applicant is required to attend one preparatory session to discuss and explore the issues concerning privacy and respect, before the Birth Certificate is released.
  • that consideration should be given to reducing the lead-in to a much shorter time period, and to holding a shorter, more intense information / awareness campaign over a six-month period, to include engagement with social media and a wide range of community groups who can help to raise awareness about the new Register.
  • in the case of the illegally adopted, that consideration should be given to establishing a dedicated unit to actively investigate those cases.  
  • that a review of service requirements arising from the Bill is undertaken.   

All the recommendations of the Committee will be fully considered with a view to incorporating the Committee’s views where appropriate and subject to legal advice.

The Committee also recommended that I give consideration to issues highlighted during the pre-legislative scrutiny process in relation to step-parent adoption. I am addressing this matter in the context of the Adoption (Amendment) Bill.

Question 11 (Senator Jillian Van Turnhout)

Can the Minister provide an update on the progress by the Child and Family Agency of a national seven day, 24-hour social work service for children and families at risk?

Tusla, the Child and Family Agency provides a range of services aimed at addressing emergency situations in the area of child welfare and protection. In the main, these emergency situations arise out of hours.

I am pleased to inform the Committee Members that Tusla commenced the new Emergency Out-of-Hours Social Work Service last month. The key objective of the service is to co-operate with and support An Garda Síochána in the execution of their duties and responsibilities under the Child Care Act, 1991 and the Refugee Act, 1996.

Prior to this new development Tusla provided, in an emergency situation, for residential and foster care placements for children under Section 12(3) of the Child Care Act, 1991 and placements for children referred under Section 8.5 of the Refugee Act, 1996;

The additional service now available allows the Garda Síochána to contact a national emergency social work out-of-hours phone service for general advice or consultation. This on-call service will be staffed by social workers operating from the Out-of-Hours services in Dublin, supported by on-call social workers in different parts of the country. 

The social workers are currently employed by Tusla in its children’s services.

I welcome this new development. Up to now, under the Emergency Place of Safety Service, An Garda Síochána could access an emergency placement for children found to be at risk out of hours, but they did not have access to a social worker regarding the case or particular circumstances. In these circumstances, a child deemed to be at risk by An Garda Síochana was placed in a family setting until the following working day, when the local social work service would assume responsibility for the case.

Tusla and An Garda Síochána are the key agencies empowered by law to protect and promote the welfare of children and they have separate yet complementary roles. Mutual understanding and cooperation is essential in ensuring that these roles are carried out effectively and in a child-centred manner.

The aim of the Emergency Out-of-Hours Social Work Service is to ensure that the disruption and upset to which children may be exposed in emergency situations is minimised and the rights of parents and guardians are respected. The introduction of the Emergency Out-of-Hours Social Work Service assists in maximising inter-agency co-operation and promoting the safety and welfare of children.

Question 12 (Senator Jillian van Turnhout)

Can the Minister advise if he plans to legislate to vindicate children’s constitutional rights; including enacting legislation to satisfy Article 42A provisions on the best interests of the child, views of the child, and adoption.  And if he plans to carry out an audit of laws, judicial and administrative practices and policies to identify gaps in the implementation of the best interests principle and to address these gaps without delay?

At the time the wording of the then proposed thirty-first amendment of the Constitution was published by the Government, there was a commitment to bring forward important amendments in adoption law. In order to fully inform consideration by the people of the constitutional change being put forward for their decision, the Government published the General Scheme of a proposed Adoption (Amendment) Bill 2012 which would flow from implementation of the change. With the thirty-first amendment now standing as part of the Constitution, in the form of the new Article 42A, my Department is progressing the promised Adoption (Amendment) Bill, in which the best interests of the child are a paramount consideration, for consideration by the Oireachtas.

The Constitutional amendment was the subject of consultation with Government departments to ensure their compliance with the provisions therein. While the amendment has set a standard that must be observed, there is nothing to constrain measures being taken in the public legislative or administrative domain that exceed the standard set. The impact of the amendment, and the willingness of the Government to foster a child-centred approach, are to be seen in provisions relating to the views and best interests of children in certain legislation enacted or introduced since the referendum, such as the Child and Family Agency Act 2013, the Children and Family Relationships Act 2015 and the Children First Act 2015.

The on-going implementation of Better Outcomes, Brighter Futures: the National Policy Framework for Children and Young People 2014-2020, is demonstrably rooted in the values and principles that the Constitutional amendment represents. The implementation of Better Outcomes, Brighter Futures is a ‘whole-of-Government’ commitment which is being driven with involvement by non-Governmental interests in the sector.

The policy framework relates to five specified outcomes for children and young people, which include that they will be connected, respected and contributing to their world. A major commitment by my Department in that regard is to greatly enhance the basis, and opportunity, for participation by young people in decisions that impact on them.  To that end, I published the first National Strategy on Children and Young People’s Participation in Decision-Making 2015-2020 which is a constituent strategy of Better Outcomes, Brighter Futures. The Participation Strategy specifies a number of commitments to be delivered by various public bodies.  In my Department’s case this includes a commitment to bring about a major development by way of the establishment of a Children and Young People’s Participation Hub to become a centre of excellence on children and young people’s participation.  

While an audit of the kind referred to in the question is not planned at this time, emerging developments in the legislative and policy domains indicate that possible change is already underway and more is in prospect.

Press Statement: Children First Bill: Calls time on physical punishment of children

Press Statement 11 November 2015

Children First Bill: Calls time on physical punishment of children

***FOR IMMEDIATE RELEASE***

Today, Wednesday 11 November 2015, An Taoiseach Enda Kenny and the Minister for Children and Youth Affairs, Dr James Reilly TD, heralded the final stages of the Children First Bill through the Dáil, thus concluding its passage through the Oireachtas. Independent Senator and children’s rights advocate, Jillian van Turnhout warmly welcomes the completion of the Children First Bill, which effectively calls time on the physical punishment of children.

She said “there must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland. The Children First Act will put child welfare and protection on a statutory footing.  It will solidify good intentions. As part of this legislation I brought forward an amendment to abolish the archaic common law defence of “reasonable chastisement” and finally vanquish it to the realms of history.”

“The defence of “reasonable chastisement” is not an Irish invention; it came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world.  In this action being taken today, the Government is putting children first and providing leadership that will hopefully give confidence to other countries across the globe, including our nearest neighbours, to protect children from violence.”

“Why as a society do we accept that we even have to debate whether it is okay to hit someone? Let alone when that someone is smaller than us and probably doesn’t understand why they are being hit?”
“I fully agree with Minister Reilly that the abolition of the defence of reasonable chastisement is a tangible and practical manifestation of children’s rights and I am very proud of the role I have played in securing it.”

-ENDS-

Notes for the Editor:
Children First Bill, Report Stage, 21 October 2015:jillianvanturnhout.ie/childrenfirstreportstage
Children First Bill, Committee Stage, 23 September 2015:  jillianvanturnhout.ie/children-first-bill-corporal-punishment

For More Information, Please Contact:
Senator Jillian van Turnhout,
Leader of the Independent Group (Taoiseach’s Nominees)
Phone: 01 6183375
Mobile: 0872333784
e-mail: jillian.vanturnhout@oireachtas.ie

 

Press Statement: Senator van Turnhout welcomes abolition of defence of reasonable chastisement

Press Statement 21 October 2015
Senator van Turnhout welcomes abolition of defence of reasonable chastisement

***FOR IMMEDIATE RELEASE***

The archaic common law defence “reasonable chastisement” of children finally vanquished to the realms of history

“Whether it is slapping or tapping, shoving or pushing, hitting or beating, the invisible line between “reasonable chastisement” and simply physical violence against children has finally been removed.”

“I was appointed to the Seanad by An Taoiseach Enda Kenny back in 2011 on the basis of my children’s rights work. One of the first objectives I set for my tenure was for Ireland to repeal the defence of reasonable chastisement. On 23 September 2015, I tabled an amendment to the Children First Bill to this effect. Following an anxious wait until today, an historic day for children’s rights in Ireland and for me personally, through a joint amendment with Government we have successfully amended the Children First Bill to secure the abolition of the defence of reasonable chastisement.”

“There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.”

-ENDS-

Notes for the Editor:

Children First Bill, Report Stage, 21 October 2015: jillianvanturnhout.ie/childrenfirstreportstage

Children First Bill, Committee Stage, 23 September 2015:  jillianvanturnhout.ie/children-first-bill-corporal-punishment

For More Information, Please Contact:                                                                

Senator Jillian van Turnhout,                                                                                                 Leader of the Independent Group (Taoiseach’s Nominees)                                                   Phone: 01 6183375                                                                                                                   e-mail: jillian.vanturnhout@oireachtas.ie

 

Children First Bill, Report Stage: Corporal Punishment

Children First Report Stage with Minister for Children and Youth Affairs, James Reilly TD, Wednesday 21 October 2015

Speech by Senator Jillian van Turnhout
Video of speech: youtu.be/BxrkLOl16jA
Video of full debate: youtube.com/watch?v=VqixbeSPUEw

Minister, you are always welcome to the Seanad but I have to admit that today you are particularly welcome.

One of the first objectives I set when I became a member of the Seanad in 2011 was for Ireland to repeal the defence of reasonable chastisement. When the Seanad took Committee Stage of the Children First Bill on 23 September I tabled an amendment, with thanks to the expert help of Dr Fergus Ryan, to the same purpose as the amendment before us today.   You said “If I have my way we will have this defence of “reasonable chastisement” removed from the Statute Book.”

And here we are today. Minister, I am extremely aware and thankful for all the work done by you personally, by officials and advisors across Government cooperating and working together to bring about the amendment tabled here before us. I would like to extend my particular thanks to the officials of the Department of Children and Youth Affairs. I would also like to thank my Assistant and Researcher Amy McArdle, for all her work and support. I was also heartened at Committee Stage to receive cross party and independents’ support. Thank you.

On 23 September I cited a number of international and national experts and I don’t intend to repeat myself today but ask that my words at Committee Stage be included in any documenting of how Ireland brought about the abolition of the defence of reasonable chastisement. Over the years there have been notable voices to the fore calling for the Ireland to take this step.

Of special note I must thank:

  • the Children’s Rights Alliance, in particular Tanya Ward and Maria Corbett who have been steadfast in their support and in ensuring the support of a wide range of children and youth organisations;
  • the ISPCC, driven by the experience of children calling into their ChildLine service, have always prioritised ending a culture of violence against children in Ireland.
  • the Special Rapporteur on Child Protection, Professor Geoffrey Shannon who has, through his reports, repeatedly called on us as legislators to repeal the defence of reasonable chastisement.

For the global leadership they have provided at an International level I want to thank :

  • Marta Santos Pais, Special Representative of the Secretary General on Violence against Children;
  • Peter Newell of the Global Initiative to End All Corporal Punishment of Children;
  • and Ireland’s academics who have shone a light on Ireland’s international obligations, in particular Prof Ursula Kilkelly, UCC.

I also must thank Jenny and Michael Hassett, my Mum and Dad. Since 23 September I have had a lot of time to reflect and probe why I am so passionate about this issue. It is of course rooted in my own childhood. My memories brought me back to a particular primary school teacher who would on occasion whack someone in our class across the ears with a ruler. I remember telling my Mum and she said that if I was ever hit I was to stand up calmly, walk out of the class, go to the office of the school secretary and ask for my parents to be called to come and collect me. I was lucky. My parents were ‘ahead of their time’, they respected me as an independent rights holder. Thanks Mum for being here today to share this momentous occasion.

Why do we as a society accept that we even debate if and when it is okay to hit someone? Let alone when that someone is smaller than us and probably doesn’t understand why they are being hit? Very often when we discuss the issue of corporal punishment, violence against children or so called ‘slapping’ you can almost feel an invisible line appear in people’s heads about their tolerance level. They say, “you know I am only talking about a tap not a thump, a slap not a belt, a smack not a whack”. And of course this issue is wrapped up in how we were raised – all too often the knee-jerk reaction “it never did me any harm” is heard. I would add “it never did you any good either”!

This invisible line is extremely subjective and it leaves children vulnerable. When someone hits a child it is not from a rational place. The decision is made in a heightened emotional state, when we are stressed, when we are tired and let’s face it least able to engage sound and reasoned judgement.   The invisible line gets blurred. In extreme cases it gets rubbed out completely.One way or the other, the existence of the invisible line means children are all too often exposed to an escalation of violence.

The excuse “I got a terrible fright when she ran out on the road and so I just hit her to show how wrong it is” is used in relation to children. We all get frights in our life but my first reaction is not to hit someone – so why do we culturally accept that it is okay when it is a child? A caller to the Last Word on TodayFM summed it up by saying “my Grandmother has Alzheimer’s and she is as likely to walk out into traffic or harm herself. Should I use that as a reason to slap her?”

Of course I understand the importance of supporting parents in the vital role they play in their child’s life.   We need to ensure parents have access to supports and resources when they need them. We know that the majority of parents in Ireland already believe that we have a ban on corporal punishment. However, I know that some parents are anxious about this change in the law and I would like to reassure them that we all want the best for their children, for the children of Ireland. To this end, I would like to take this moment to thank Laura Haugh of Mummy pages for their unequivocal support of this amendment.

I would also like to point to an excellent book for any parents who are anxious, developed by a leading advocate in this area, Paul Gilligan. His book “Raising Emotionally Healthy Children” is a great resource that provides lots of advice and support.

By abolishing the defence of reasonable chastisement we are giving life to the Children’s Amendment in our Constitution, Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights. We know that corporal punishment:

  1. Can cause serious harm to children;
  2. Teaches children that violence is an acceptable way of solving conflicts;
  3. Is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;
  4. Makes it more difficult to protect children from severe abuse if some forms of violence are legitimate.

With this amendment today we are ensuring that all citizens are equal in the eyes of the law.

This ancient defence of “reasonable chastisement” is not an Irish invention; it came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world. In England, Wales and Northern Ireland the “reasonable punishment” defence still allows parents and some other carers to justify common assault on children; in Scotland there is another variation – the defence of “justifiable assault”.

In this action being taken today, the Government is putting children first and providing leadership that will hopefully give confidence to the Government at Westminster, the devolved UK administrations and other countries across the globe to discard these archaic and disreputable defences and give full respect to children’s dignity.

We will be the 20th EU Member State to effectively ban corporal punishment in our jurisdiction and in doing so I hope the remaining European Governments will follow. Irish law is being brought into step with parents, children’s rights advocates and international best practice.  With this amendment we have a way to unite and agree that all citizens are equal.

There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.

 

Amendment

In page 5, line 12, to delete “and to provide for related matters.” and substitute the following:

“to provide for the abolition of the common law defence of reasonable chastisement and, for that purpose, to amend the Non-Fatal Offences Against the Person Act 1997; and to provide for related matters.”.

—Government & Senator Jillian van Turnhout.

In page 20, after line 21, to insert the following:

“PART 5

MISCELLANEOUS

Abolition of defence of reasonable chastisement

The Non-Fatal Offences Against the Person Act 1997 is amended by the insertion of the following section after section 24:

“24A. (1) The common law defence of reasonable chastisement is abolished.

(2) Subsection (1) shall not apply in respect of proceedings brought against a person for an offence consisting in whole or in part of any act done by the person before the commencement of section 28 of the Children First Act 2015, whether those proceedings were brought before, on or after such commencement.

(3) This section shall not affect the operation of section 24.”.”.

—Government & Senator Jillian van Turnhout.

Children First Bill, Committee Stage: Corporal Punishment of Children

Children First Committee Stage with the Minister for Children and Youth Affairs, James Reilly TD, Wednesday 23 Sept 2015

Video of my speech: youtube.com/watch?v=fbYCdc1F2hE

Proposed Amendment to ban the corporal punishment of children.

“28. The Non-Fatal Offences Against the Person Act 1997 is amended by the substitution for section 24 of the following – 

“Abolition of common law rules in respect of immunity from criminal liability for punishing a child.

  1. Any rule of law under which any person is immune from criminal liability in respect of physical chastisement of a child, whether the person is a parent or guardian of the child, a person with custody of the child either temporarily or indefinitely, a teacher, or a person in loco parentis in respect of the child either temporarily or indefinitely, is hereby abolished.””

I would like to begin by acknowledging and thanking Peter Newell of Global Initiative to End All Corporal Punishment of Children, which promotes the universal prohibition and elimination of corporal punishment.

In November 2012, the people of Ireland voted to enshrine the protection of children as individual rights holders into the Irish Constitution.  Following a defeated Supreme Court appeal, it was signed into law on 28 April 2015.  Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

What I am proposing in this amendment is to ensure that all citizens are equal in the eyes of the law.

Why do we still believe it is acceptable for corporal punishment to be in our laws?

What is corporal punishment? The Committee on the Rights of the Child defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading.

Adults have a talent for inventing euphemisms to make them feel more comfortable while they inflict pain and humiliation, such as spanking or smacking. The truth is that, for a child, all of this is violence, and if it were directed at an adult it would constitute criminal assault.

Minister, I am very conscious that often people believe this issue is a judgement on how they were raised.  I would like to take this opportunity to welcome my mother Jenny to the gallery and she will concur that I was raised with the “you’re not too old for the wooden spoon” ringing in my ears.  Thankfully she never used it – indeed only in Ireland is the wooden spoon not seen solely as a kitchen utensil but as a weapon.   Times have moved on and our understanding of the effects of corporal punishment on children has increased.

There are many other good reasons to ban corporal punishment:

  1. It can cause serious harm to children;
  2. It teaches children that violence is an acceptable way of solving conflicts;
  3. It is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;
  4. It is more difficult to protect children from severe abuse if some forms of violence are legitimate.

In tandem Minister, we must provide parents with sufficient support in bringing up their children, including through educating parents about good parenting skills.

Minister, 46 states, including 28 in the wider Europe, have prohibited all corporal punishment including in the family and another 51 states have clearly and publicly committed to achieve a full ban.

Ireland has been found to be in violation of the European Social Charter (by the Council of Europe’s European Committee of Social Rights) by failing to ban all corporal punishment against children. However, I hope the Government will find itself in a position to accept this amendment because it is the right thing to do.  We must uphold and protect Children’s Rights.

Mr. Janusz Korczak, a Polish-Jewish paediatrician, educationalist and children’s author, wrote in his 1925 book The Child’s Right to Respect: “In what extraordinary circumstances would one dare to push, hit or tug an adult? And yet it is considered so routine and harmless to give a child a tap or stinging smack or to grab it by the arm. The feeling of powerlessness creates respect for power. Not only adults but anyone who is older and stronger can cruelly demonstrate their displeasure, back up their words with force, demand obedience and abuse the child without being punished. We set an example that fosters contempt for the weak. This is bad parenting and sets a bad precedent.”

Sweden brought in their laws in 1979 – now 36 years ago. In a publication to mark the 30 years since Sweden’s abolition of corporal punishment their then Minister Maria Larsson wrote: “When violence is used against children, their confidence in the adult world is damaged. And there is good reason to believe that if this violence is exercised by the child’s own parent, or by someone else close to them, the damage is greater.”

Since 2006, the EU has emphasised the promotion and protection of children’s rights as a priority issue. The European Parliament, in a 2009 resolution on the situation of fundamental rights across the EU 2004-2008, called for a total ban on corporal punishment in all Member States. Again in November 2014, the Parliament adopted a resolution calling on Member States to uphold their obligations and combat any form of violence against children  “including by formally prohibiting and sanctioning corporal punishment against children”.

Recently, our Permanent Representative to the United Nations in New York, David Donoghue, said that Ireland had a central role in achieving sustainable development as co-facilitators of the UN negotiations together with Kenya on “Transforming our world: the 2030 Agenda for Sustainable Development”.

I note SDG 16 to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels and particularly SDG 16.2 therein to end abuse, exploitation, trafficking and all forms of violence against and torture of children.

Minister, colleagues, children’s rights experts and advocates in Ireland concur.

Tanya Ward, Chief Executive, Children’s Rights Alliance:

“The Children’s Rights Alliance unites over a 100 organisation working with children and their families across the country. Since our establishment in 1995 we have repeatedly called for the removal from Irish law of the defence of reasonable chastisement of children.

Research is clear that corporal punishment has no benefits and carries causes children physical and psychological harm and can lead to short and long-term effects on their safety, health and development. There is no justification for corporal punishment and it is clearly at odds with Article 42A of the Constitution which “recognises and affirms the […] rights of all children” and commits to protect and vindicate those rights by its laws. Children have an absolute right to be protected from harm and abuse under the UN Convention on the Rights of the Child which Ireland ratified in 1992, there are no exceptions.

This coming January, Ireland’s progress on children’s rights will be examined by the UN Committee on the Rights of the Child, the Committee has criticised Ireland’s position on corporal punishment in 1998 and 2006 and are likely to do so again in 2016. The Children’s Rights Alliance has been leading the civil society engagement with the UN Committee and has prioritised corporal punishment as a key concern. There is no reason to delay, Ireland has a moral and legal duty to protection children from corporal punishment.”

Grainia Long, Chief Executive, ISPCC:

“As the national child protection charity, the ISPCC has long supported a ban on physical punishment of children.  Through our national listening service, Childline, we hear on a daily basis the impact of violence towards children.  Last year we responded to nearly 37,000 contacts from children regarding abuse or welfare, and many were from children who were anxious, traumatised and scared in their own home, due to violence.

We strongly support the amendment to remove the defence of reasonable chastisement, and believes that it meets the spirit and intent of the Children First legislation.  Whatever the circumstance, there is no reason why the law should permit a defence of hurt or violence towards a child.  Far too often, the debate centres on the needs or preferences of parents, rather than the rights of the child.  The recent change to our constitution following the Children’s Referendum requires us to think very differently and put children at the heart of our considerations.  Seanad members therefore have a long overdue and timely opportunity to place in law the right of a child to be safe in their own home, and we hope this opportunity will be grasped, in the best interests of children.”

 Laura Haugh, mum-in-residence / spokesperson for MummyPages.ie :

“MummyPages.ie is Ireland’s largest online parenting community, and our members wholeheartedly support the campaign to repeal the defence of reasonable chastisement by parents and childminders (up to 3 children) in Irish law.

Slapping another person, and especially a vulnerable child is wrong in all circumstances. Firstly, allowing slapping by a caregiver to a child under the term ‘reasonable chastisement’, is legalising physical violence to another person and a form of child abuse. It demonstrates that it’s ok for a person to hit another person and indeed that it’s ok for a bigger or stronger person to hit a smaller or weaker person. This kind of behaviour can lead to intense abuse in the home for the child that does not learn quickly from the ‘reasonable chastisement’ and it is at complete odds with what is acceptable in today’s adult society or indeed the school playground.

Initially the child is hurt by the physical action and emotional breakdown of trust between parent and child that they forget what they have done wrong. What you want in effective discipline is for the child to understand what they have done wrong, and the consequences of their actions to others. You want the child to feel remorse but ultimately to still believe that they are a person of value, slapping does not promote this.

The main principle in promoting desirable behaviour is for the child to feel good and therefore be good. This is why regular positive affirmations of good behaviour is a much more effective tool to maintain this type of behaviour than anything else.

It is now well researched that when responding to an incident with a child that requires discipline; tuning into the child to understand exactly why they misbehaved, helping them to realise how their behaviour might affect others, and consistent follow-through with age appropriate consequences is much more effective than physical chastisement, no matter how ‘reasonable’ it is perceived.”

Minister, I am conscious of the comments made in February this year by Pope Francis.

For me it was encouraging to see the response by both the Vatican and indeed at national level.

I wish to cite from the letter written by Mary McAleese to the Irish Times, which noted that the Vatican was a signatory to the UN Convention on the Rights of the Child and that the relevant Treaty Monitoring Body, the Committee on the Rights of the Child, wants all corporal punishment of children to be banned.

She added “In submissions to that Committee last year, the Vatican said it did not promote corporal punishment, citing “respect for the inviolability of physical life and the integrity of the person…”.

The Vatican responded by appointing Peter Saunders, Founder of the National Association for People Abused in Childhood, UK, to the The Papal Commission for the protection of minors and was asked to lead on the Commission’s non-violence against children working group.

I contacted Peter Saunders earlier today and he advised me that the members of the working group are unanimous in their position that violence or reasonable chastisement of children is never justifiable.

Irish abuse survivor Marie Collins is also a member The Papal Commission for the protection of minors.   In discussions with both Marie Collins and Peter Saunders they are extremely supportive of Ireland updating its laws to bring into effect a ban on corporal punishment in Ireland.

Marta Santos Pais, Special Representative of the Secretary General on Violence against Children, advocates that corporal punishment can be prevented “[b]y supporting caregivers in the use of non-violent child rearing practices; by promoting advocacy and social mobilisation to safeguard children’s dignity and physical integrity; by reforming laws to introduce a clear ban of all forms of violence including corporal punishment, we can make a real difference in the life of children, all children, everywhere and at all times,”

Irish law is now out of step with parents, children’s rights advocates and international best practice.  With this amendment we have a way to unite and agree that all citizens are equal.

 

Gender Recognition Bill 2014: Report and Final Stages 15 July 2015

As always, the Minister of State is welcome to the House. I thank the Tánaiste for her commitment to the issue of gender recognition and thank the Minister of State for the energetic and robust debates we have had here in the Chamber and outside. I join other Members in welcoming the distinguished guests who have joined us here today, in particular Dr Lydia Foy and Michael Farrell. As I look at each face in the Visitors’ Gallery and think of the journey I have been on, I note that I did not know the majority of these people a few years ago, but now I feel I know them as friends. They have had to share their life stories with me for me to understand what we are debating here today and see the importance of today. That says a great deal. I have met some really amazing and brilliant people.

As the Minister of State knows, I have met many parents and children directly affected by this issue. While I am really happy today and recognise that is a great day, it is a bittersweet moment for me. It brings me back to my childhood when teams were being picked. There is a team getting on the human rights bus that is going. They are the adults and they are going to get it but the children did not get picked. That feeling of children being left out in the cold…yet again… makes it very difficult for me again today that we did not do anything for children, even though we had that opportunity. As we meet today, young people organised by TENI are meeting on the issue. BelongTo has a group of children meeting on this very issue. It is not that these children do not exist; they do. The Minister of State and I have met the parents and we know the real issues they face.

I will not go back over and rehearse every issue, but there have been developments since we debated the issue in the House in February. The calls I have made were informed and very much supported by organisations such as TENI and BeLonG To but also by the ISPCC, Children’s Rights Alliance, NYCI, SpunOut, Epic, Amnesty and the USI, just to name a few. Indeed, at its parliamentary assembly, the Council of Europe issued a resolution on discrimination against transgender people in Europe and said we needed to ensure that the best interests of the child are a primary consideration in all decisions concerning children. This is on transgender people; I am not picking something out of place. Indeed, since we have been debating the matter, Malta has passed gender identity, gender expression and sex characteristics legislation which ensures that children are free to live as they wish and are only required at the age of 14 to provide a gender for their birth certificate. In Norway, the Government has proposed legislation for pre-legislative scrutiny, not some independent Senator, to look at gender recognition from age seven. I welcome the commitment the Minister of State made in February to have the roundtable among education partners and I welcome the fact that one meeting has happened, but it is only one meeting. No education partners have been contacted on the issue of transgender children. We will face September again and there will be children who cannot live as they wish and go to the schools they wish to attend because they are being actively blocked.

Much has been made of the marriage equality referendum, which was a joyous and tremendous day, but there was also the children’s referendum which took two years for the Supreme Court to clear. That is the lens we also need to be looking at. We need to ensure that our legislation is also looking at that lens. The Government’s national policy framework for children and young people, Better Outcomes, Brighter Futures, is a whole-of-government document, not just one relating to the Department of Children and Youth Affairs. It very clearly sets out that the development of laws, policies and services should take into account the needs, rights and best interests of children and young people. It says that efforts should be made to involve children and young people in policy and decision-making processes. While that is Government policy, we saw in this process that children were excluded from the debate at the pre-legislative scrutiny stage. I have gone over my notes to confirm that. There was no good reason for it. I have gone back over the e-mails and the Acting Clerk of the Dáil has confirmed that they should have been allowed to give testimony at those committee hearings, but were not. We did not allow their voices to be heard, and we should not have done that. Other committees allow children to appear before them.
As I said, the best interests of the child should be our paramount consideration, taking account of the views of the child and the evolving capacity of the child. I proposed an interim gender recognition certificate where everybody is ad idem, that is, the parents, the child and an independent person, be that the Minister, a general practitioner or a court. Obviously, that was not successful. It was brought forward again in the Dáil. That led me to read the debates in the Dáil on Second and Report Stages, in particular. It was noticeable that Members of all parties and none raised the issue of children and the importance of including children in the Gender Recognition Bill. There was one exception, the Labour Party. Its Members did not, so perhaps it is Labour Party policy. I do not understand. I have read through all of the transcripts and no Member from the Labour Party raised this issue. I am still at a loss. The European Region of the International Lesbian and Gay Association gave really compelling testimony before the 29th Human Rights Council. Obviously, it welcomed what we are doing in Ireland but also noted that there was no process for legal recognition of minors under 16 years of age. These children exist and they deserve protection. A parent of a six year old trans girl said: “I just want to keep this child alive. I have a happy child now, why end up with a dead child? It’s important that she gets documents that reflect her gender.”

The difficulty for me, to which I have not received a satisfactory answer, is relevant to the court case S. v. An Bord Uchtála in 2009.  The case involved an intersex child born abroad, who had been registered as female at birth. The judge made an order to allow an amendment of the register of foreign adoptions so that the child’s paperwork would reflect his gender of rearing as a boy and enable him to be enrolled in the local boy’s school. The difficulty is that because this Bill excludes children, are we saying to the courts that we do not want them to interfere or do anything on children? We are closing the door on this. As a legislator, I believe we are sending a clear message to children that we will not talk about gender recognition. That is a problem for me. I am also worried about one of the amendments from the Dáil regarding passports. Again, I have dealt with some cases where children have got their gender changed, not on their birth certificate but on their passport. This amendment will not allow that to happen. Even more children have been squeezed out of this. There are four to five children a year who will not now be able to get a passport in the gender they wish because we have tightened the knot again and really made sure that children are firmly outside the room when it comes to gender recognition.

In conclusion, the Minister for Children and Youth Affairs wrote to the Tánaiste and Minister for Social Protection and proposed written amendments. I appreciate that she did not feel she was in a position to accept those amendments. Is the Minister saying that this is now under the remit of the Minister for Children and Youth Affairs? If it is, I will table amendments to the Children First Bill. This must be made clear because I do not wish to be told when we debate the Children First Bill that it should have been done in the Gender Recognition Bill or that it should be done by the Minister for Social Protection. Will the Minister clearly state whether this is in the remit of the Minister for Children and Youth Affairs? When will the meeting with the education partners take place? I am not asking for an exact date, but a timeframe for when it will take place.

One of the proposals sent by the Minister for Children and Youth Affairs was that we would explicitly state that children and young people would be included in the strategic review. Will the Minister give a firm commitment on that? I do not wish to be told two years hence: “Children are not in the Bill so how can one strategically review children if they are not in the Bill?” I wish to be told clearly that this issue will not be left behind. It is a joyous day for adults, but there are children whom I have met and to whom we have said: “Go sit in the corner; we are not ready to deal with this yet.” In fact, we have slammed the door.

 

2 July 2015: Quarterly Meeting of the Joint Committee on Health and Children and the Minister for Children and Youth Affairs, James Reilly TD

Question submitted in advance by Senator Jillian van Turnhout:

Given the new Article 42A of the Constitution of Ireland, will the Minister now conduct a law audit relevant to children to determine where gaps exist in full implementation of the United Nations Convention on the Rights of the Child and bring in a comprehensive Children’s Rights Bill.

 Article 42A provides an enhanced general visibility for the rights of children under the Constitution.  More generally, the new standard has the capacity to influence the approach to legislation beyond what is required by the letter of the new constitutional provision. The interpretation of the existing statute law is now subject to the new constitutional requirements and this will, no doubt, be reflected in jurisprudence in both public and private law in the years to come.

At the time the wording of the then proposed thirty-first amendment of the Constitution was published by the Government, there was a commitment to bring forward important amendments in adoption law. In order to fully inform consideration by the people of the constitutional change being put forward for their decision, the Government published the General Scheme of a proposed Adoption (Amendment) Bill 2012 which would flow from implementation of the change. With the thirty-first amendment now standing as part of the Constitution, in the form of the new Article 42A, my Department will proceed with arrangements to submit the promised Adoption (Amendment) Bill for consideration by the Oireachtas.

Specifically the amendment sets certain standards relating to determining the views and best interests of children in specified proceedings which both comprehend existing provisions and require that all future legislation must comply in the areas concerned.  The Government has also provided potent examples of this in the inclusion of provisions relating to the views and best interests of the child in the Child and Family Agency Act 2013 and the Children and Family Relationships Act 2015.

My Department has a number of other proposed legislative initiatives in train that aim to promote the rights and welfare of children.  These include the Children First Bill, 2014 to strengthen fundamental aspects of the child protection system which is currently before the Oireachtas; the Child Care Act (Amendment) Bill, to strengthen the legislative provisions for aftercare which is currently being drafted; and   work is continuing on the Heads of Bill for the Adoption (Information and Tracing) Bill.  I also mention in a separate reply to Senator Van Turnhout, that my Department is working on policy proposals for significant statutory reform of provisions relating to Guardians ad litem under the Child Care Act 1991.

I note that there is a major and wide-ranging initiative underway to advance the rights of children on a cross-government basis.  I refer to the on-going implementation of Better Outcomes, Brighter Futures: the National Policy Framework for Children and Young People 2014-2020, which is demonstrably rooted in the values and principles of the United Nations Convention on the Rights of the Child.  These values and principles will continue to guide the implementation and monitoring of Better Outcomes, Brighter Futures.

This universal strategy, covering all aspects of children’s lives, is a challenging and highly-focused whole-of-government undertaking.  Delivery of the 163 commitments set out in the strategy will result in better outcomes for children right across the spectrum of State inter-actions with the child and his or her parents and family. Along with the legislative programme, these are the mechanisms by which the implementation of the UN Convention on the Rights of the Child is being advanced.

A further important underlying process relevant to the question raised concerns the examination of Ireland by the United Nations Committee on the Rights of the Child which is scheduled to take place next January.  This provides a basis for engagement between my Department and other Departments of Government, preparatory to the meeting with the Committee, on issues it will raise regarding the State’s discharge of Ireland’s obligations as a party to the Convention.

Children and Family Relationships Bill 2015: Second Stage

I welcome the Minister and her officials to the House. I thank her for the consultation in advance of the debate and the opportunity for pre-legislative hearings on the general scheme of the Bill in committee. My colleague, Senator Katherine Zappone, was very active in the committee on that issue.

As a person who has advocated for children’s rights for many years and has the privilege of being a voice in the legislative process, this feels like a really important day, and I believe it is. The Children and Family Relationships Bill will bring about essential and long overdue reform, modernisation and legal clarity to many aspects of family law, particularly to diverse parenting situations and diverse family forms. When I say overdue, that is not a criticism of the Government. I commend the Minister, Deputy Frances Fitzgerald, her predecessor, Deputy Alan Shatter, and the officials in the Department of Justice and Equality on their courage and expertise in drafting the Bill and bringing it before the Houses. It is an indictment rather of many previous Governments that it has taken us all until now in 2015 to introduce what will be the greatest reform of child and family law for a generation and finally to put children at the heart of family law. It is the first major reform of guardianship laws since the 1960s. I read an article by Colette Browne in the Irish Independentin February in which she noted that 3% of births in the 1960s were to an unmarried mother. I looked at figures in preparation for today’s debate solely in regard to these areas as married families can break down and issues can happen. Figures which I received from the Children’s Rights Alliance show that 308,000 children are living with 186,000 lone parents, 104,000 children are living with 60,000 unmarried cohabiting couples, 43,000 children are living with 29,000 lone fathers, and there are 230 same-sex couples with children. I want us all to have a perspective on the figures and to understand that these are many of the children we are talking about in debating the legislation.

As indicated by the figures, an increasing number of children live in diverse parenting situations and diverse family forms other than the traditional model of a household headed by married parents. I could use all my time to outline the areas I think will significantly contribute to children’s lives and their positive outcomes. For me the Bill is very much based on children’s rights. It is based on the best interests of the child being the paramount consideration and ensures issues such as continuity of care, right to identity, and the voice of the child are all becoming normalised and part of the legislative process. That is welcome.

I will use my time to indicate the areas where I think we could go further. For example, the Bill does not include definitions of guardianship, custody and access which would be essential to reduce the level of family conflict that may take place when relationships break down and to avoid the existing confusion among the public, professionals and the Judiciary. I understand the options about guardianships and the different levels of guardianship, but will it be difficult for the public to understand which levels of guardianship one person has vis-à-vis another? In future Bills, perhaps we should be look at the Law Reform Commission report of 2010 which examined the legal aspects of family relationships. It suggested new terms such as parental responsibility, day-to-day care and contact rather than the word “access”. These are much more child-friendly terms and state the roles the adult would play in the child’s life. However, I recognise and support the Bill as a monumental step in the right direction and the foundation from which child and family law can continue to be developed and bolstered to meet the needs of our ever-evolving society.

Given the breadth of the Bill, it is disappointing that the debate around it has been limited to a few narrow strands, albeit challenging and emotive issues by nouveauchildren’s rights proponents, whose premise I do not always agree is children’s rights centred. I am especially saddened by the talk of a hierarchy of family structures or some sort of Olympics of family structures meeting gold a medal standard where we now have silver and bronze who do not even get to compete. I am conscious that there are children who will listen to parts of the debate. I am not suggesting that they would be tuning in to the Seanad, although they come and visit us regularly, but I am concerned that in some way we are putting affirmation on one sort of family form or another. There are many different reasons for different family forms. We do not need to look too far beyond our families to understand the different types and diverse types of families in which children are living.
On Committee Stage I will be looking at section 63 which deals with the best interests of the child, particularly in relation to the Guardianship of Infants Act 1964. It provides a new and detailed definition in Irish law of the best interests of the child. The factors and circumstances enumerated thereunder are not exhaustive, and therefore the court will be capable of looking beyond them in making a determination concerning the child. The Bill will allow the courts to consider the physical, emotional, psychological, educational and social needs of the child, including his or her need for stability, having regard to age and stage of development. That is welcome.

As has been mentioned, Dr. Geoffrey Shannon, special rapporteur on child protection, suggests that in tandem with this welcome legislative development, structural reform also needs to take place, namely, we need to establish a distinct and separate system of family courts. I am aware that is a commitment in the programme for Government to provide a fair and effective forum to vindicate the rights of children and families.

The Child Care Act 1991 is silent on the qualifications, roles and duties of guardians ad litem. A properly funded guardian ad litemagency in Ireland is long overdue. We have a blueprint for this in the Children Acts Advisory Board report of 2009 which gives a voice to children’s wishes, feelings and interests. I hope that as we progress the Bill, we can ensure the voice of the child is certain and guaranteed.

An issue that has been raised with me by Barnardos is the court welfare service. This service would provide a crucial link between the family and the Judiciary, offering services such as mediation, undertaking assessments of the child’s welfare and best interests, ascertaining their view through a child view expert, guardians ad litemand conducting family risk assessments. It would ensure judges received up-to-date holistic information on each case to help them in making their decision. The service would also provide, where appropriate, support such as child contact centres to assist the children in highly contentious and acrimonious splits.Perhaps we should look at other systems in operation, such as the Children and Family Court Advisory and Support Service in the UK.

I will move on to the issue of the right to identity, which my colleague Senator Power has raised. When I see all our colleagues raising the issue of right to identity, I wish many of them had been here when we were debating the Adoption (Information and Tracing) Bill, but we will wait and see. I am concerned that people are misrepresenting and misconstruing the principle underlying a child’s right to identity to fit their own agenda. They are talking about the child’s right to identity from the mother’s and father’s perspectives, rather than from the child’s perspective. This Bill approaches the issue from the child’s perspective, based on children’s rights. We had a good debate in the Seanad on the Civil Registration (Amendment) Bill, during which I tabled an amendment on the child’s right to identity. Hopefully, as we evolve in our thinking, we can assert this right to identity more and more. The focus of these groups is often selective, to further an ideological end, rather than a genuine concern for the vindication of the child’s right to his or her identity. This is the crux of our continuous failure on the issue of a child’s right to identity. Historically and culturally, we have constructed a hierarchy of rights, a veil of secrecy, to deny children the right to their identity. What the Minister is putting forward in this Bill and in the Bill on assisted human reproduction is to be welcomed. There are groups that wish we would go further or that we would allow for anonymous donation. The Minister has struck the right balance. I have sympathy with the position of Senator Power in that I would like to see the right to identity here. We have a history of not acknowledging it, but this is a welcome start. The transition period the Minister has proposed is fair and pragmatic. I would prefer that a child have a right to his or her identity, but I am willing to accept what the Minister is putting forward as a strong change, with a focus on children’s rights and ensuring they have their right to identity.

I also want to raise the issue of unmarried fathers. I am worried that we still have a long way to go on this issue. We often feed into the negative stereotypes of unmarried fathers as feckless, irresponsible flakes. It is all too easy for us to do this. Worse still, the justification for not granting automatic guardianship rights to fathers appears to have been conflated with concerns about domestic and sexual violence. These heinous crimes can happen in any type of family, not just unmarried ones. It is wrong, prejudicial and discriminatory to link it exclusively to unmarried parents. The law should presume that the majority of unmarried parents are responsible and reasonable. Where they are not, this should be addressed through relevant legislation. The solution is not to penalise the majority. Colette Browne, in her article on the Children and Family Relationships Bill, says that it compounds our unfair treatment of unmarried parents. She says that currently unmarried fathers have zero legal rights over their children, which means that:
[…] if your partner is away and your child falls ill, you cannot authorise medical treatment. It means that if your relationship breaks up and your partner decides to move abroad with your child, you are powerless to stop her. It also means that you have no automatic right to custody or access to your child. By law, the mother is entitled to sole custody of the child if the father has not been made a guardian. Imagine a worst-case scenario in which your partner dies and you are left alone to care for your child.
How can we make it more natural and how can we ensure that guardianship rights are there?

I have much more to say, but one of the issues I want to raise relates to statutory declarations. All of us have lost precious documents. For example, I lost my driving licence years ago. We are talking about a piece of paper. If one loses it, it is gone and one’s rights are extinguished. I welcome the Minister’s suggestion of piloting a repository. I wonder if we need to do more than that. I acknowledge what she is saying – that she does not want to make it compulsory and add another hurdle – but we have to find a way in which those statutory declarations can be lodged.

I want to be absolutely clear, so that there is no misunderstanding, in saying that I wholeheartedly welcome this Bill. I support it and I will do everything I can do ensure it is brought into law. Its potential is manifold, but at its heart it is about children’s rights. I thank the Minister for bringing the Bill to the House.

Gender Recognition Bill 2014: Committee Stage 3 February 2015

Progression of the Gender Recognition Bill 2014 can be followed here

I move amendment No. 2:

In page 5, between lines 21 and 22, to insert the following:“ “child” means a person under the age of 18 years;”.

 I welcome our visitors to the Visitors’ Gallery and I congratulate Senator Zappone. I did not speak on that amendment because I intend to say a great deal on this substantive point. I do not plan to speak on other matters, but this is an issue that is very close to my heart. I thank my colleagues Senators Mac Conghail and Zappone for supporting me in the grouping of amendments I tabled. I see that colleagues have similar intentions with the amendments they have put forward. I also thank the Minister for engaging with us.

 

 

Children’s rights:

I will outline the reason for this amendment. I do not intend to push it to a vote today but I intend to press it, or a similar wording of it, to a vote on Report Stage as I am very passionate about this issue.

The rationale behind the amendments I have tabled derives from what will be Article 42A.1 of the Constitution, depending on the Supreme Court judgment, which states: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

In my Irish Mirror column yesterday I spoke about Ireland’s shocking record in respect of the treatment, welfare and well-being of children in Ireland, especially vulnerable children whose vulnerability we appear to compound systematically.

I noted the significance of the successful passage of the children’s rights referendum on 10 November 2012, which sought to incorporate into Irish constitutional law the principles that children have rights as individual human beings, independent of adults and that their best interests and opinions are vital when important decisions are being made about their lives. The Irish people have spoken out and spoken up for children.

To my great frustration, these principles, which Ireland is already bound to respect under the UN Convention on the Rights of the Child, have not yet taken constitutional effect because we are still awaiting a final decision from the Supreme Court on the legal challenge to the referendum. I am very aware of the pressure and backlog of cases at the Supreme Court but part of me wonders why, after 26 months of delay, we do not have a public outcry. Despite a systemic change of mind set in recent years, we still have a long way to go to fully embrace the urgency of children’s rights.

It is very clear to me, having actively engaged at all levels of the consultation and debate around the wording of the constitutional amendment, that it was the intention of the Legislature and of the people in passing the referendum to enshrine children’s rights in the Constitution so that their rights will be safeguarded and vindicated in all future legislation.

The aforementioned UN convention, which Ireland ratified in 1992, sets out an integrated and holistic approach to the rights of children and is internationally accepted as the model of implementation at domestic level.

As far as I am concerned, in the drafting of any Bill which impacts on children’s lives, it is now incumbent on us as legislators to ensure that the best interests of the child are the paramount consideration, the views of the child are heard when key decisions are being made about the child’s life and that the evolving capacity of the child is facilitated.

I believe that this Bill, specifically section 11 as currently drafted, fails to safeguard and vindicate children’s rights in accordance with international law and the constitutional imperatives. In fact, the rights of children under the age of 16 are not even open to consideration.

I will refer now to amendments Nos. 15 and 17.

Gender recognition is an established human right to which children, as individual rights holders, should be entitled.

 

The development of gender identity in children:

In preparing for this debate today, I have looked for commentary or evidence about the age at which gender identity develops and was struck by the real dearth of research into transgender children. In fact, there is no incidence or prevalence data from Ireland or the UK on the number of transgender young people under 18. Of the research that was available, I noted that some paediatric specialists put the age of gender identity in children, whether transgender or not, at two or three. Other research cites gender identity development as occurring between three and five years of age.

Elizabeth Reilly et al published a very interesting piece of qualitative research on the issue which solicited the views of transgender adults about the needs of gender-variant children and their parents in the Journal of Sex and Marital Therapy – the peer-reviewed scientific journal published by Routledge – in 2013.

The researchers found that 94% of transgender adults had identified their gender before the age of 18, some 48% had identified their gender between zero and five years of age, while 44% had identified their gender between the age of six and 14.Only 2% identified their gender between 13 and 18 and only 2% after the age of 18, while 4% of the respondents did not reply. That is a pretty good indication of what period of a child’s life is important in terms of gender identification and goes to the essence of what we are talking about here.

There was a time in Ireland, during the last century, when it was widely believed that people did not become aware of their sexual orientation until they reached adulthood. It was commonly believed that this was something a person decided or determined but thankfully, we are more enlightened as a society now and more understanding of the reality. When it comes to gender recognition, however, we are still back in the last century and that way of thinking. I would like us to understand that it is actually at an earlier age that one’s gender identity is realised and understood. We need to accepted that fact.

 

The exclusion of children under 16 years from the Bill:

That is why I have an issue with this Bill, which actively excludes children under 16 from its provisions for making an application for a gender recognition certificate. It denies outright any consideration of their best interests in the context of their personal circumstances. I believe that this runs contrary to the best interest of the child principle.

A good example of how this outright denial has serious implications for the transgender and intersex child is seen in the S v. Bord Uchtála case of 2009.

That case involved an intersex child, born abroad, who had been registered as female at birth, was subject to a foreign adoption order and brought to Ireland to live. Upon examination by medical experts in Ireland and the United States, it was concluded that the child would most likely identify as a male and the decision was taken by the adoptive parents to raise the child as a boy. The parents sought an amendment of the register of foreign adoptions so that the child’s paperwork would reflect his gender of rearing and so that he could be registered at the local boy’s school. The Adoption Board refused the application on the basis that it did not believe it had the authority to grant this request. On judicial review in the High Court, Mr. Justice Sheehan granted the request but the difficulty is that this was an ex tempore judgment and not a precedent.

I am concerned that a different judge, even in similar circumstances, might feel that he or she lacked the authority to grant such an order, given the discourse on this issue. In fact, I am worried that by introducing this legislation and being deliberately silent on children under 16, we are sending a clear message to the courts that they should never grant such an order. I will be seeking advice on this because a judge in a future case, similar to the one to which I referred, may find it extremely difficult to make a similar order.

In the aforementioned case, those involved – both the parents and the child – agreed with the order. With this legislation, we are saying, “We know best. Go to a girl’s school”. We would be telling a young boy to go to a girl’s school because we know best what is good for him and what is in his best interests. I believe that the best interests of that child were served by allowing him to be identified with the gender of his preference, with which his parents concurred.

 

International precedent:

Argentina

In terms of international precedent, in October 2013 the Argentinian authorities granted a female identification card and amended birth certificate to a transgender six year old Luna, formerly Manuel, under that country’s ground-breaking gender identity law which allows people to change their name and sex without approval from either a doctor or a judge.

Under Argentinian gender identity law, individuals have the right to the recognition of their gender identity. Individuals are also legally entitled to the free development of their person according to their gender identity and to be treated according to that identity, particularly to be identified in that way in the documents proving their identity, including the first name, image and sex recorded there.

According to the law, gender identity is understood as the internal and individual way in which a gender is perceived by persons that can correspond, or not, to the gender assigned at birth including the personal experience of the body. This can involve modifying bodily appearance or functions but it can also include other expressions of gender, such as dress, ways of speaking and gestures.

 

 

Malta
I have heard this legislation before us described as progressive but as I speak, similar legislation is being debated in Malta which definitely is progressive. That legislation takes into consideration the lived life which is what we should be aspiring to here.

The Gender Identity Bill, which is today having its second reading in Malta’s Parliament and is expected to pass with cross-party support, proposes to change its civil rights legislation by removing the requirement that a child be given a gender at birth.

The Bill states: “The persons exercising parental authority over the minor, or the tutor of the minor whose gender has not been declared at birth, shall, before the minor attains the age of 14, by means of a public deed, declare the gender of the minor”.

I thought that perhaps Malta would not face the same issues as we do in the context of single sex schools but I discovered that the majority of State-run secondary schools there are also single sex. Malta is able to deal with this issue and ensure that it acts in the best interest of the child.

 

Access to education in the child’s preferred gender:

I am particularly concerned about the mechanisms we need to have in place to minimise the challenges currently faced by transsexual and intersex children in Ireland.

Examples of challenges are the segregated nature of our educational system and the requirement that parents must submit birth certificates for registration. Education, on which there is an amendment tabled, is a specific area to be considered but there are other settings in which children experience challenges. We may find a work-around.

 

Efforts being made in other jurisdictions:

In preparing for this debate, I was looking for examples.

 

California

In California in January 2014, Assembly Bill 1266, or the school Success and Opportunity Act, came into effect for K-12 students, who are between four and 19 years old, in the public school system.

The law inserted the following provision into the existing legislation: “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

In response to the new provision, Masen Davis, executive director of the Transgender Law Center in San Francisco, stated: “Now, every transgender student in California will be able to get up in the morning knowing that when they go to school as their authentic self they will have the same fair chance at success as their classmates.”

 

Compounding vulnerability:

Transsexual and intersex children are inherently vulnerable because of their age and lack of legal protection. We have an opportunity to lessen this vulnerability but instead we choose to turn a blind eye or put up an artificial barrier, despite the fact that evidence suggests, and adults have said, that it is in children’s younger years that their gender identity is developed.

I am thinking of the six year old child who has clearly articulated his preferred gender and which has been fully embraced by his parents, friends, extended family and community. Is this young child, a boy, really going to be forced to go through a girls’ school wearing a girl’s uniform and using the wrong name and pronouns to gain access to the education available in his locality? That is what we are doing to children in these circumstances.

Are we really preparing to stand over legislation that in the case of the boy in question would cause unnecessary distress, embarrassment and humiliation, and potentially serious psychological harm, for ten years before he is eligible to apply to have his gender identity recognised?

Legislation that fails to listen to the voice of children or consider their best interests is not legislation I want to stand over.

Where a child has clearly articulated views regarding his or her preferred gender, or where the child has an intersex condition that might merit a change in gender and legal recognition, he or she should be facilitated in achieving this end, especially where all parties agree.

 

We do not even have a system where all parties can agree. In the amendments we have tabled, we have sought to find ways in which all parties can agree and, where they do not, where disagreement can be dealt with.

 

Issues around consent:

According to the Bill as currently drafted, 16 and 17 year olds will need an order from the court allowing them to apply to the Minister for a gender recognition certificate. The amendment I have tabled puts the best interest of the child front and centre in the court’s consideration, which is where it should be. I do not believe it should be a matter for any medical practitioner or psychologist. We should allow cases to be dealt with in court to ensure the child’s rights are upheld and protected.

The amendment is to secure the consent of the person referred to in subsection (4)(a) since the current drafting means the court has no authority to override the non-consent of an individual.

We need to have the measure I propose because we need to adhere to the principle of the best interest of the child. We do this with other types of legislation, such as adoption legislation.For me, the current provisions fly in the face of the requirement to ensure in our laws that the child’s best interest should determine the process.

Furthermore, the fact that the process for achieving gender recognition is open only to 16 and 17 year olds on consent does not make sense to me. Under the Non-Fatal Offences against the Person Act 1997, 16 and 17 year old children can choose, if they wish, to seek medical services as part of a medical transition process in their own right. They have full consent to go through the medical processes, yet the Bill requires parental consent to apply for a gender recognition certificate. The thinking is that children can undergo any medical procedure they wish but, to get the piece of paper, we need to protect them and involve their parents. It just does not add up.

I am genuinely concerned about the absence of a provision ensuring the best interest of the child. When the general scheme of the legislation was made available, the Ombudsman for Children advised that, if we had this process, an “illogical situation would arise in which the State would countenance a young person receiving the relevant medical treatment on the strength of his or her own consent, yet that consent would be insufficient to obtain legal recognition of the young person’s preferred gender and the outcome of that treatment”.

I hope the constitutional amendment will come into effect shortly. In any case, we have an obligation, having ratified the UN Convention on the Rights of the Child, to ensure we have the best interest of the child at the heart of all our legislation.

That we are silent about those aged 16 and below would not allow for the court case I spoke of or any other court cases in which a judge could use his or her discretion. As legislators, we cannot stand over that. We need to go back to the drawing board and consider the best interest of the child and find a mechanism on which everyone can agree, allowing children to live their lives as they desire.

Can you imagine trying to live your life as another person with a different identity? One might regard oneself as a “she” but be called “he” and be expected to conform by wearing certain clothing. We know clothing is a big issue for young people in schools. Are we really to deny their voice, best interests and what we now know about children, that is, that they have an evolving capacity and are able to make these decisions? We can find a structure that safeguards them and regards their best interest as paramount.

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The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”