Photo: George Voronov
TN interviews the Minister for Children and Youth Affairs, Fine Gael TD Frances Fitzgerald, about November 10th’s Children’s Referendum. (Read the text of the proposed amendment here.)
Q. I would like to start with the background to the referendum. There has been a lot of commentary in the media recently associating it with the Kilkenny incest case of 19 years ago. Can you speak to how this referendum came about?
A. The backdrop is a sense of horror in this country about what has happened to vulnerable children in the past. There have been at least 17 reports, spanning decades, which have brought into sharp relief the issue of children’s rights: the Kilkenny incest case, the west of Ireland farmer case, the Ryan commission, the Cloyne, the Murphy, the Foyne. As well as the Church, the state itself was seen to fail – most recently in St Patrick’s. That’s the legacy.
People began to speak up about the services available to vulnerable children and ask are we protecting them properly? 19 years ago Catherine McGuinness [the judge in the Kilkenny incest case] said that we need to look at children specifically. Not just the family, but the rights of children as well. I think a lot of people came to agree with her.
The political system began to examine the issue in a series of ways. Brian Lenihan held the constitutional review group. The all-party committee which reported a few years ago, chaired by Mary O’Rourke, held 62 meetings and took lots of submissions. After asking the questions about what went wrong, what provisions already existed and how they were being used these came back with a clarity on the necessity of changing the constitution to reflect children’s needs.
After that committee made its series of recommendations, I came into office as the first Minister for Children and Youth Affairs. I took on this work as a priority and it was in the Programme for Government. I worked for a year-and-a-half with my own department and with the Attorney General to find a precise wording for an amendment that we could put to the people. We said that it had to name the rights of children clearly and identify them as rights holders of their own status.
Q. What additional powers do you see the amendment giving to social workers? Will they feel more empowered to intervene in cases where previously the primacy of the family unit under Irish law would have prevented this?
A. If you highlight something in your constitution and say this is really important then it creates a principle of special care and that’s a practical difference. That sharpens awareness and, ultimately, I think, has an effect at the court level.
But it also lends constitutional authority to protections that, at the moment, are only in legislation. We have had some dramatic cases where decisions have been made without any children present or anyone asking what is in their best interest. I don’t think you can do that again in, say, a custody decision and that is important.
Proportionality of response is important, too, though. It is about supporting families but, when necessary, intervening in a way that is not extreme. It does not mean that when you are dealing with families care will be the first consideration, but that there is a balanced approach.
It is also important to remember the need to balance rights, and that you cannot give rights to anyone in absolute terms, particularly for judges and social workers in these situations. The amendment recognises the rights of the child in its own right – this in itself is very important for ensuring balance and giving that constitutional authority. There have been serious questions – which have affected women’s rights as well, by the way – about whether the provisions outlined in Articles 41 and 42, the strength with which the family unit is protected, has subsumed the individual components within this and denied them their own rights.
If you make the child more visible in the constitution and you reflect that in the courts it is helping to make sure that the very best decision is being taken for the vulnerable child.
Q. Why did you decide to recognise in the fourth part of the amendment the views of the children themselves? It seems to give children a great deal more say than they would expect to have in other areas – like the running of their schools or the democratic process.
A. I think it is interesting to pose the question that way. It makes us ask: Are children and young people mini-adults or is childhood an important period in its own right? I think the improvements in psychology have allowed us to better understand the views of children. It is about encouraging them to be themselves, giving voice to them.
But just how far along the road are we in Ireland in relation to that? And I think we could all ask ourselves that in relation to our own families, or at school level. I think there is a development going on. We are coming from a society in the 1950s where it was definitely “[be] seen and not heard”. Now there is more autonomy and recognition of individuals. When you look at what young people are doing to tackle homophobic bullying, the voice they have around that now, it is fantastic to see the work they are doing.
But it largely depends on how institutions respond – and we know we are only so far along the road. I think this referendum will tell us a lot about where we are at. If we have very low turnout then I think it would be a negative step for a society that has embraced the rights of children.
Q. Do you worry that the lack of a “No” campaign, and the resultant lack of debate on the issues involved in the Children’s Referendum, will drive turnout down?
A. Well, we have gone for a Saturday. You are writing for a student newspaper and I say that this is a real challenge for young people. Student groups have always said that it isn’t fair to have it on a Wednesday, Thursday or Friday because they can’t go home. I see it as a democratic challenge to young people – are you going to get out and vote? This is a referendum about young people.
But it will also be a test for the public at large. The issue of how much debate affects voter turnout is preoccupying me at the moment. I think it is an interesting commentary on our society. If there is a lot of agreement, and people aren’t tearing strips off one another, then you get less coverage. It does say something about democratic participation that it is so strongly linked to the conflict model of politics. That is especially the case in the media.
Q. Did you expect larger opposition to changes related to the marital family? And do you feel that this is a movement away from the strong emphasis placed by Bunreacht na hÉireann on the marital family?
A. Some of the groups out there are frightening people about this. I read John Waters in the Irish Times describing this as against “principles that the blood of our grandparents flowed in the streets to defend”. There are others saying that this is the end of the family unit. It is complete nonsense.
This is about the child. Whether the child is from a marital or non-marital family, you have got to treat all children equally. And this is the first time under the constitution that this will be the case. I think Irish society has gotten to a point where it is ready to say, irrespective of the marital status of the parents, if a child is at risk of physical or sexual abuse we need to protect them.
We have 1,500 situations where we confirm every year that children are being abused or seriously neglected, we have 30,000 cases referred to child and family services. This is what it is about. It is above any ideological concerns about family shape.
Q. There is a broader context in which this referendum is happening. The most recent figures from the Central Statistics Office showed that, in 2010, 96,000 children lived in consistent poverty while 205,000 lived at risk of poverty. There have been very significant cuts since then. If you go to the JobBridge website today you’ll see a request for what amounts to two Special Needs Assistants; those would be interns filling in for positions cut by this government. Around 85% of Ireland’s children are educated in primary school classes larger than the EU21 average. Is there a dissonance between the language of protecting vulnerable children which surrounds this referendum and the reality of a government that is placing increasing numbers in vulnerable positions?
A. First of all, putting what we are suggesting into the constitution is really important. On its own it is just one part of doing the best for children and families. Irrespective of the other challenges we should do this. It puts more focus on children, it strengthens children’s rights and fixes anomalies in our law. It doesn’t deal with stopping child poverty or a lot of other issues you have raised but it is a very important foundation.
I don’t believe there is a dissonance from the point of view of the government because we are doing our very best to protect the vulnerable. I take the points you make but in response I would have to ask you, why are some very hard decisions having to be taken? I want to protect the budgets as far as possible in relation to children but you have to go back to the overall economic situation. We are a country in a bailout and we have to balance the budget to get out of this economic crisis. It is an extraordinarily difficult economic situation that has affected the whole country.
But we are focusing on trying to find solutions to our economic problems, and jobs in particular. Because the best way for children to escape poverty is for parents to have a job. We have had a lot of success in foreign investment and the export sector. The local economy is slower. But this is what we have to do to deal with the issues you are talking about – fix the economy.
Q. Could more be done within the current economic situation to protect children and ensure that they aren’t forced into poverty?
A. I am the Minister for Children and Youth Affairs. Of course I would say that you have to “childproof” your budget. But there is a certain value system in this country and children weren’t at the centre of it, let’s be honest. If we put young people at the centre of the economic value system, for example, we would have universal childcare from 0-5 years of age. This is something you don’t correct overnight.
It is important to make sure we emphasise children and child protection. But the other side of that coin, in fairness to the government, is that I got an extra €13million last year to make sure that all of the children from three to four could get the ECE scheme. I got an increase in my budget last year – only 2%, but it is an increase. I got money for the education and welfare service, we recently got €50million to take 16- and 17-year-olds out of St Patrick’s. Before I had ever seen the report on St Patrick’s, I had taken 16-year-olds out of there, and we are taking 17-year-olds out now. We are going to close it down.
Reform is an important theme of this government, though, and it is not all about spending more money. In the SNA system this was the case. Every mother who has a child with special needs wants an SNA for their child and I understand that. But in terms of how many we can provide we have got to ask if we are doing the very best. Is this the right resource at the right time?
I look forward to economic growth, when we can deal with issues of child poverty more effectively. But the calls for this referendum, for these changes, have persisted through good times and bad. The issues in this case transcend the economic cycle.
Voting for the Children’s Referendum will take place on Saturday, November 10th. Polls will open at 9am and close at 10pm. Students can check their eligibility to vote and find their local polling station by entering their name and address into checktheregister.ie. Impartial information about the constitutional changes proposed in the referendum can be found on the Referendum Commission’s website at referendum2012.ie.