IRELAND: National Laws

Summary: General overview of Ireland's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Ratified treaties, including the Convention on the Rights of the Child, are not directly applicable and hence do not automatically form a part of the national laws of Ireland.  Rather, these treaties must be incorporated via legislation to create enforceable rights.  The CRC has not yet been directly incorporated into Irish law, and hence is not enforceable in national courts.  Nonetheless, courts can and have looked to the CRC in interpreting Constititonal law and domestic legislation.

Constitution: Articles 40 to 44 contain a number of rights provisions that apply regardless of age, but the Constitution also includes a small number of provisions that make specific reference to the rights of children, though they are not generally children's rights provisions:

• Art. 41(3)2°(iii): requires courts to consider the provision for children in granting a dissolution of marriage
• Art. 42(1): creates a right and duty for parents to provide for the religious, moral, intellectual, physical and social education of their children
• Art. 42(3)1° and 2°: require the State to ensure that children receive a minimum level of moral, intellectual and social education, though it is not permitted to oblige parents to send their children to schools established by the State, or a type of school designated by the State, where to do so would be in violation of parents' conscience
• Art. 42(5): requires the State to endeavour to take the place of parents with regards to children's education where the parents have failed in their duties
• Art. 44(2)4°: prohibits the State from discriminating against schools on the basis of their religious denomination, and asserts the right of children to attend a school without religious instruction at that school
• Art. 45(4)2°: requires the State to endeavour to ensure that the tender age of children is not abused, and that they are not forced by economic necessity to enter avocations unsuited to their sex, age or strength

Legislation: the Children Act is the source of a great deal of legislation relevant to children, but relevant provisions can be found in a number of Acts. Relevant legislation includes, but is by no means limited to:

• The Children Act 2001
• The Child Care Act 1991
• The Child Trafficking and Pornography Act 1998
• The Status of Children Act 1987
• The Ombudsman for Children Act 2002
• The Adoption Act 1952 (amended 1998)
• The Protection of Young Persons (Employment) Act 1996
• The Equal Status Act and the Education (Welfare) Act 2000
• The Education for Persons with Special Needs Act 2004
• The Civil Registration Act 2004

Legal Research:
On its official website, the Irish Parliament publishes its enacted legislation (http://acts.oireachtas.ie/) and bills (http://www.oireachtas.ie/ViewDoc.asp?DocId=-1&CatID=59&m=b) in English and Irish. The British and Irish Legal Information Institute publishes Irish legislation in English (http://www.bailii.org/ie/legis/num_act/), and the Irish Legal Information Initiative also publishes a range of legal resources in English (http://www.ucc.ie/law/irlii/index.php). The amended Constitution is available in English and Irish through the website of the Supreme Court (http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/HomeGA?OpenPage). In addition, the GlobaLex project at New York University has published a guide to legal research in Ireland (http://www.nyulawglobal.org/Globalex/Ireland1.htm), and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/ireland.php) and the World Legal Information Institute (http://www.worldlii.org/ie/) provide links to a selection of legal and governmental resources.

Case Law
CRC jurisprudence
Please contact CRIN if you are aware of any national cases that reference the Convention on the Rights of the Child.

Case law research
The Supreme Court of Ireland publishes its decisions in English (http://www.supremecourt.ie/Judgments.nsf/frmSCJudgmentsByYear?OpenForm&l=en), and decisions of the Supreme Court (http://www.bailii.org/ie/cases/IESC/), the Criminal Court of Appeal (http://www.bailii.org/ie/cases/IECCA/) and the High Court (http://www.bailii.org/ie/cases/IEHC/) are available in English though the website of the British and Irish Legal Information Institute.

Compliance with the CRC
In its 2006 Concluding Observations, the Committee on the Rights of the Child welcomed developments of the national legal framework, but expressed concern about the slow pace of enactment of specific provisions, particularly parts of the Children's Acts of 1997 and 2001. The Committee also expressed regret that the Convention had not been incorporated into domestic law.

In depth analysis
In its Concluding Observations of 2006, the Committee on the Rights of the Child highlighted several areas of Irish law which it considered to fall short of the principles and provisions of the Convention on the Rights of the Child. The Committee was broadly critical of the national provision for health care for children and the provision for children with disabilities, noting the inadequacy of the legal framework in both instances. The Committee urged the State to adopt inclusive legislation in both areas to ensure that the health care needs of children and the specific needs of children with disabilities are appropriately addressed by national legislation.

With regards to adoption, particularly inter-country adoption, the Committee considered that national law did not meet international standards. Specifically, the Committee noted that the best interests of the child were not given sufficient consideration during the adoption process and that despite attempts at reform, the relevant legislative review had been slow. The Committee recommended that the State "expedite its efforts to enact and implement the legislative reforms, ensure that all relevant legislation is in conformity with international standards and that the best interests of the child are a primary consideration".

Several aspects of the juvenile justice system also emerged from the Observations as containing incompatibilities with the Convention. The Committee noted that the provisions of the Children Act 2001, which sought to raise the minimum age of criminal responsibility to 12 with a rebuttable presumption that children would not be held criminally responsible for 14, had not entered into force. The Committee was also critical of the provisions of the Criminal Justice Act 2006, which lowered the minimum age of criminal responsibility to 10 for serious offences. The Committee also raised concerns over Anti-Social Behaviour Orders, which it feared could serve to draw children into contact with the criminal justice system.

Current legal reform projects
The government has expressed its intention to hold a referendum in 2012 on amending the Constitution to include child rights protections.