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An Ethical Approach to Children Ed Carroll A paper to the Irish Social Policy Association Annual Conference Social and Economic Rights: Challenges and Opportunities for Social Policy Dublin City University 12th & 13th September 2002

Abstract Aims to address the change in lens through which governments must regard children, a change from protecting vulnerable children against a range of specified ills, to a holistic approach guaranteeing all rights for all children. It will examine how to nurture an ethical attitude to children in our policy, systems and services reflecting the emergence of, what Mary Robinson, has described as, “a new normative cluster”. The specific role that NGO’s have in x-raying progress and development on children’s rights in terms of values, and principles will be mapped out in three ways. Firstly, the arguments for and against the inclusion of social and economic rights in the Constitution arising from the Sinnott Supreme Court Judgement will be elaborated. Secondly, the United Nations Convention on the Rights of the Child (CRC) framework of core principles and human rights and the complementarity of intrinsic and extrinsic values will be explored. Finally, there will be an initial overview of the divergent policy theories at work in initiatives for children.

Introduction Thanks to the ISPA conference committee for the opportunity to present this paper. It is derived from a publication that I produced for the Irish Youth Foundation entitled The Well-Being of Children 1 in response to the launch of the National Children’s Strategy. 2 Today I want to begin with some questions that orient the theme of the conference to the challenges facing social policy in terms of children. How can children’s rights be made real and meaningful? How can an ethical attitude to children be rooted in the policy, systems and services of government? These questions open a field of enquiry in three directions. These are: children’s social and economic rights in the Constitution, children and a rights based approach, and children and policy theory. 1. Elucidating the argument for and against the inclusion of social and economic rights in the Constitution. I will begin now by recalling a case that concluded in the summer of last year. The case in question relates to a young autistic person, Jamie Sinnott, who had a long involvement with the structures and services of the Department of Education and Science. He argued that the Constitution guarantees his right to education and that this was compromised by the executive i.e. the Department of Education and Science. The High Court ruling of Judge Barr was appealed by the Department to the Supreme Court. It was Article 42.4 (the right to primary education), that had already been the focus of extensive jurisprudence, that was core to the Sinnott case, whereby individuals sought the implementation of this guarantee by the Courts. In July 2001 the Supreme Court overturned the High Court finding that primary education was based on need and not age. The Supreme Court ruled the obligation to provide Primary Education ended at eighteen years of age. In a series of reactions to the Sinnott Supreme Court judgement it is possible to elucidate the arguments for and against social and economic rights. Prof.Gerard Quinn 3 believed that many judges in the Sinnott Supreme Court voiced grave misgivings about the general enforceability of socio-economic rights against the State in terms of the separation of powers and allocation of resources doctrines. In an Irish Times article, Gerard Hogan,4 reacted to the Sinnott judgement by outlining the historical rationale behind resisting the inclusion of social and economic rights into the Constitution. DeValera’s drafting team agreed it was clear that many of these socio-economic fundamental rights guarantees could be invoked as to create very difficult situations. The drafting team then moved many of them into an entirely new clause, Article 45, which they headed Directive Principles of Social Policy. Hogan contends that these socio-economic guarantees were intended to be for the care of the Oireachtas exclusively and unlike all other constitutional rights were not to be made justiciable or cognisable by the courts. Interestingly enough he observed that the one exception was the free primary education provisions of Article 42.4, the only enforceable right in the Constitution. Focusing on the definition of education, Quinn contends it is fairly clear that education was defined very 1 E. Carroll (2002) The Well-Being of Children – Four Papers Exploring Conceptual, Ethical and Measurement Issues, Dublin: Irish Youth Foundation.

2 Government of Ireland (2000) Our Children – Their Lives: The National Children’s Strategy, Dublin: Stationary Office. 3 Prof. Gerard Quinn paper to the Department of Foreign Affairs Fourth Annual NGO Forum on Human Rights, 2001. 4 G. Hogan, Irish Times Saturday July 14th 2001

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expansively by Chief Justice O'Dalaigh in Ryan v Attorney General. In that case the Chief Justice focused on the function rather than the longevity of education. In May 1993 Justice O’Hanlon had dismissed a State claim that severely handicapped children were ‘not educatable’ and that the State therefore had no obligation to provide education for them. The case had been taken on behalf of Paul O’Donoghue. Justice O’Hanlon ruled that Article 42 of the Constitution directed the state to provide appropriate education for all children. He also specified the form this education should take in terms of pupil-teacher ratios, early intervention and continuity of education. In its appeal to this ruling of the High Court the State sought clarification from the Supreme Court on the grounds of the ‘separation of powers’. It wanted to challenge the rights of the courts to dictate Department of Education and Science policy in relation to the education of the handicapped. The Supreme Court would not accept this argument and the State withdrew its action. In the Sinnott High Court case there was a further development of the 1993 ruling. The High Court ruled that there was no age limit for receipt of primary education. The States appeal to the Supreme Court was based on the need for legal clarity on the parameters of the Sinnott ruling. In the end the Supreme Court ruled that primary education relates to the teaching of children only and that adults have no constitutional right to primary education. To a certain extent that Supreme Court ruling on the Sinnott Case - with the apparent exception of Chief Justice Keane - has capped that trajectory of reasoning by holding that primary education ends at age 18. Education within international law embraces basic learning for all: only part of which revolves around notions of primary education. Herein lies the question whether existing constitutional text is adequate to enable meeting of our outstanding international legal obligations? Following the Sinnott judgement, Hogan reasoned that the court, while simultaneously stressing the wide nature of its powers to protect constitutional rights, indicated some unease with court orders which effectively usurped the role of democratically accountable politicians. In addition he believed that the Sinnott judgement does not prevent the Oireachtas or the Government from fulfilling its (non-enforceable) constitutional obligation in Article 45.6 to safeguard with special care ‘the economic interests of the weaker sections of the community’, including the infirm, the widow, the orphan and the aged’. Furthermore Quinn suggested that these issues will come back to the court and that the war of ideas on mandatory orders has just begun. “Most importantly”, he suggests, “no matter how negative the Supreme Court decision is (or is portrayed) it places absolutely no obstacle in the way of appropriate legislation. The perverse beauty of this conservative decision is that it de-legalises an issue and creates political space for the politicization of an issue.”5 Whatever the outcome from the Sinnott case the implication, according to Hogan, of the judgement is that it confronts Irish society precisely with the notion of conferring enforceable, constitutional rights that would create a further significant transfer of power from the elected branches of government to an unelected judiciary. In a contrasting analysis Prof William Binchy’s Sunday Times article6 suggested that “their lordships were far too reluctant to analyse the doctrine of the separation of powers.” He acknowledged that this constitutional doctrine is designed to avoid the tyranny which almost inevitably follows from concentrating all power of state in one individual or institution. The case raises the fundamental question of the proper remit of the judiciary? Citing a 1989 case, the O’Reilly family, travellers who lived in an unofficial site in Limerick, argued that their dreadful conditions, with no toilet facilities, running water or refuse collection, amounted to a breach of their constitutional rights to dignity and freedom as human beings. But Judge Costello held that the courts had no role, because the claim involved the question of ‘distributive justice’, making it a matter for the legislature and its executive, whose power it was how to raise money and spend it. Any claim that the principles of distributive justice had been violated should, he said, be advanced in Leinster House rather than the Four Courts. The Sinnott case according to Binchy followed this interpretation. Even in the face of a constitutional guarantee which without any ambiguity commits the state to spending enough money to deliver primary education, the court regarded it as heresy to make an order requiring the executive or legislature to comply with such a commitment. Binchy warns of a backlash from this judgement against progress exemplified in the work of Judge Kelly who has attempted to give substance to the constitutional protection of young people who come in contact with state institutions. Binchy contends that Sinnott judgement interpretation is based on a misunderstanding of the proper remit of the judiciary in a modern constitutional order. Specifically, he contends that in flinching at the prospect of enforcing socio-economic rights, the court is out of harmony with the contemporary international human rights culture. Binchy’s position finds some resonance with the orientation of the UNCRC. In particular the manner in which the CRC sought to avoid following the traditional dichotomy between civil and political rights and social and economic rights is crucial. Binchy believes that the judgement is failing to recognise the radical nature of the human rights philosophy and analysis which underlies the Irish constitution which is based on human dignity, interpersonal responsibilities and the solidarity of family and social life. Binchy concludes that these values will atrophy if the courts do not nurture them. 5 Quinn, op. cit. pp 10. 6 W. Binchy, Sunday Times, 22 July 2001

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I would contend that the case for the inclusion of social and economic rights in the Constitution is essential to any child-centred strategy, particularly for those children who are marginalised. Stated succinctly, the inclusion of these rights will give the weakest children in our society access to the law and justice. 7 A key consideration will be whether there is a middle way between stating socio-economic rights in a totally openended manner and thus creating an ‘appalling vista’ or excluding them from the Constitution altogether? It is reasonable to question the courts right to decide on the allocation of resources and its implication in terms of taxation and accountability. It is also reasonable to be concerned that a democratic deficit may result in any transfer of decisions on major issues of resourcing from a Government elected to represent the people. However, I would suggest that on the specific issue of social and economic rights Ireland is out of joint with our responsibilities under UNCRC and other treatises. The principle of the universality, interdependence, indivisibility and inter-relation of all human rights (i.e. civil, political, social and economic) underpins the UNCRC. This principle argues that the enjoyment of civil and political rights is not effective if economic, social and cultural rights are not equally protected. Therefore the question arises: what is the proper remit of the judiciary in a modern constitutional order? It would be troubling that the separation of powers, and resources doctrine caused a hesitation to nurture the type of human rights approaches found in earlier judgements. 2. Children and a rights based approach We move on now to my second theme where I will examine in more detail what we mean by ‘rights’ and explore the conceptual framework forming the basis for all human rights work. Accordingly, it is worth stating briefly what significance the UN itself places on its work. Implicitly, the UN asserts that human rights do not constitute an option, they are not open to a free and arbitrary interpretation. Also, human rights are not neutral. They stand for clear values and they require commitment to make them work; a commitment to act and promote actions to ensure their realisation; a commitment to express concern, voice criticism and foster change.8The UN asserts that the CRC makes provision for a new ethical attitude towards children which is based, no longer on meeting children’s needs, but on the recognition and realisation of their human rights as a question of entitlement. 9 Entitlement implies benefiting from the action of others - the State, the society, and the family - for the rights of the child to become a reality, to be experienced and practiced. It further implies the recognition of the increasing capacity of children to exercise their rights by participation in policy, systems and services, and to make valid claims for their observance and respect. The UN believes that the development of national targets remain important tools to mobilize action and resources for children, to improve well-being and achieve tangible results in a particular time frame. This can only be considered within the broader context of a long-term process of the universal realisation of the human rights of all children. In addition, the CRC does not establish any categorization or hierarchy of rights. The Committee on the Rights of the Child has often stressed, all the rights are interrelated and each of them is equally fundamental. The Committee on the Rights of the Child is charged with examining progress made by State Parties in achieving the realisation of the obligations set out in the Convention. It has grouped the rights set forth in the CRC into eight major thematic areas. 10 These themes are underpinned by four general principles 1. 2. 3. 4.

Non-discrimination Best interests of the child Survival and development Respect for the views of the child (right to participation).

These overarching principles are a guiding reference for the implementation of the CRC and they constitute decisive criteria to assess the progress made in that process. 

Non-discrimination (article 2): In the light of this principle, the realisation of the rights recognised by the CRC, cannot be nullified or hindered by any distinction, exclusion, restriction or preference based on any ground, including gender, race, colour, language, religion, national or ethnic origin, disability or birth. For this reason, the disaggregation of data by gender, age group, geographic or ethnic origin becomes of special relevance. It could be argued that this principle is the basis of a case for the inclusion of social and economic rights in the Constitution because of the requirement not simply to defend violations but for positive and affirmative action to ensure the rights of all children.

7 Cf. Recommendation No. R (93) 1 of the Committee of Ministers to Member States regarding Effective Access to the Law and to Justice for the Very Poor: Explanatory Report, Strasbourg, Council of Europe, 1993, par 5 cited in ICJP (1998) Re-Righting the Constitution, Dublin: ICJP.

8 For a useful description of the twin roles of promotion and protecting children’s rights and the institutional arrangements to enable the effective working of these roles in four countries see M. Cousins (1996) Seen and Heard: Promoting and Protecting Children’s Rights in Ireland, Dublin: CRA.

9 This concept of an ethical attitude towards is grounded in a perspective articulated by M. Santos Pais (1999) op. cit. pp 5-6. 10 These eight thematic areas are: 1. General measures of implementation (articles 4, 42 and 44 para. 6); 2. Definition of the child (article 1); 3. General principles (articles 2, 3, 6, 12); 4. Civil rights and freedoms (articles 7, 8, 13, 14,15, 16, 17, 37 a); 5. Family environment and alternative care (articles 5, 9, 10, 11, 18, 19, 20, 21, 25, 27 para. 4, 39); 6. Basic health and welfare (articles 6, 23, 24, 26,27 paras. 1 to 3); 7. Education, leisure and culture activities (articles28, 29, 31); 8. Special protection measures (22, 30, 32, 33, 34,35, 36, 37, 38, 39, 40).

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Best interests of the child (article 3): This principle indicates that in all decisions affecting children, in the implementation of all rights set forth in the CRC, the best interests of the child should be given primary consideration. The principle applies to actions undertaken by the State, by courts of law, administrative authorities, legislative bodies, private social welfare institutions and even within the family. The principle focuses on finding the best solution for the child, and it becomes vital in decisions concerning conflicts of interest between the child and others, or between different conflicting rights of the child. Thus it is important to stress that regardless of the level of economic development of any State, it is always necessary to give children “first call” on available resources and allocate them to the maximum extent to ensure the realisation of their economic, social and cultural rights. In reality, the principles of the best interests of the child and first call for children play an essential role, even in periods of severe resource constraints.

Survival and development (article 6): With this principle, the CRC envisages child development as a holistic concept. Thus, the enhancement of the child’s health and nutrition must be associated with his or her spiritual, moral and social development, where the child’s personality, talents and abilities are promoted to their fullest potential in a manner that is compatible with the dignity of the human person.

Respect for the views of the child (article 12): This principle affirms, very strongly, the value of the child as a fully-fledged person having the right to access information and freely express views in all matters affecting him or her, having those views respected and given due weight. It indicates the right of the child to access and participate in decision-making processes affecting his or her life and influence decisions taken on his or her behalf within the family, in the school or in the community. For this reason, this principle is often presented as a right of the child to participation. 11

An insight emerging from these principles is the need to complement actions seeking to ‘police’ rights and tackle violations with proactive measures that ‘enable’ rights to be guaranteed and fulfilled for all. For instance the CRC mentions the State’s obligation to “respect and ensure” the rights of the child. It also addresses the obligation to protect (art. 19 “to protect from all forms of (...) violence, injury or abuse”; art. 33 “to protect from the illicit use of narcotic drugs”); to provide and assist (art. 22 para. 2 “to provide (...) cooperation in any efforts by the UN (...) to assist such a child”); and to secure (art. 27 para. 4 “to secure the recovery of maintenance for the child”). These broad expressions encompass the complementary nature of the State’s obligations. These obligations are also portrayed in other human rights treatises and documents. Article 2 of the International Covenant on Civil and Political Rights (ICCPR ) addresses the obligation to ‘respect and ensure”; article 2 of the International Covenant on Economic, Social and Cultural Rights refers to the obligation to guarantee; the Maastricht Guidelines on violations of economic, social and cultural rights, formulated in 1997, consider the obligations to respect, protect and fulfill. Intrinsic and Instrumental Issues Since rights are at the core of the UN’s work, and the CRC, it is worth focusing at this point on the nature of human rights particularly in terms of intrinsic and instrumental values. 12 One of the achievements of the UN Declaration on Human Rights (HRC), agreed in 1948, was the wide agreement among the signatories about how the fundamental rights of all people can be guaranteed. Then, as today, there has been a blurring of the basis on which these rights have been constituted. 13 The analysis contained in the HRC only arrives at a point of agreement on a common language of citizenship in a nation and in the unity of nations. However, the question of human rights requires a consideration about who the human person is and what is the nature of personhood that guarantees human dignity? This question opens an area of investigation that is wider than the scope of this paper.14 11 An insightful study into how children can be consulted is K. McCauley & M. Brattman (2002) Hearing Young Voices, Dublin: Open Your Eyes to Child Poverty Initiative

12 For an informative presentation on these intrinsic and instrumental issues and their relationship to child well-being see S. Klasen (2000) Social Exclusion, Children and Measurement Issues, Paris: Centre for Educational Research and Innovation and Social Exclusion and (1998) Children in OECD Countries: Some Conceptual Issues, Paris: OECD. See also E. Carroll (2001) Lifelong Learning in the Arts: Policies and Practices in Ireland, London: CITY University (unpublished PhD thesis).

13 John Dunn argues that this blurring has been evident in all three manifestations of liberal political theory. The first is pluralism espoused in the writings of John Rawls (1973) in his seminal work A Theory of Justice and Robert Nozick’s (1975) Anarchy, State and Utopia. The second is individualism set out in a work by Robert Paul Wolff (1976) In Defence of Anarchism. The third, which is elicited from the broad body of work of John Stuart Mill and is exemplified in the works of Joseph Schumpter (1943) Captialism, Socialism and Democracy and Robert A. Dahl (1956) A Preface to Democratic Theory. Dunn contends that a common strain in all these works is the absence of a coherent foundation for an ethical theory based in the nature of the human person. See J. Dunn (2000) Western Political Theory in the Face of the Future, Cambridge University Press especially pp 29-56. For a summary of debate on the nature of the human person see M.A. Glendon (2001) A World Made New: Eleanor Roosevelt and the Univeral Declaration of Human Rights,New York: Random Press.

14 See E. G. Cassidy Ed. (2000) Prosperity with a Purpose: What Purpose? Dublin: Veritas esp. 8-9. He states that “it is one of the achievements of liberal democracy that it has been able to create a culture that can cope with competing positions on the common good. Liberal democracy was the first political experiment that was not only designed to respect the values of freedom and equity, but primarily sought to promote tolerance and to accommodate a pluralism of values and ideas.” Cassidy also highlights a problem that can arise “in its desire to accommodate competing and perhaps even incompatible positions on the common good, liberalism can foster…a cultural silence with respect to fundamental values.”

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A rights based approach attempts to complement the intrinsic and instrumental values involved in child issues. If non well-being is a violation of rights, by implication a society that tolerates it is intrinsically deficient as it fails to grant basic rights to its children. The intrinsic good argument comes alive particularly when placed in front of the global challenge facing the CRC. This is instanced in the humanitarian crisis that is evident in the use of child soldiers in Uganda, the street children in Brazil, child slavery in West Africa, children in orphanages in Central and Eastern Europe and child trafficking for prostitution from East to West. From an intrinsic good argument human rights are neither abstract nor some remote set of aspirational principles. They have a tangible meaning and a relevance to everyday life; they need to be practiced and experienced. They have clear implications for what needs to be done towards their effective realisation, and the way this needs to be achieved with the active and free participation of all stakeholders. As ever the challenge is in the detail i.e. in the application of the goal to a concrete political context. Simply stated, it is the intrinsic manner in which rights are embedded into the policy, systems and services that sets the challenge to treat children as subjects and not objects of initiatives. In a complementary manner there are instrumental arguments for child development. Klasen, 15 referring to socially excluded children, identified several types of instrumental reasons that complement the approach taken by the intrinsic good argument. Firstly, socially excluded children may grow up to be adults that are similarly suffering from social exclusion. Thus, combating social exclusion among children can help combat social exclusion as adults. Secondly, socially excluded children may, because of their exclusion, suffer from deficiencies in other important areas of well-being, such as the ability to be healthy, well-educated, adequately housed, or wellnourished. It may also have larger societal implications e.g. due to the positive externalities of health and education. In addition, poverty and social exclusion may have close empirical relations to other social problems that threaten the stability and prosperity of society at large such as crime, violence, social pathologies, societal divisions, racism, xenophobia, etc. In Ireland we have still to find a holistic way of capturing the life and condition of children. While the intrinsic and instrumental approach to the rights of the child have a very different emphasis both are necessary. The intrinsic arguments rise and fall with the acceptance of a common understanding and concern to make authentic the four CRC principles for all children. The instrumental considerations rise and fall with the veracity of the linkages postulated e.g. a relationship between poor health and poverty, which is largely an empirical question. It is within an approach that can accommodate both intrinsic and extrinsic issues that we can begin to speak of a new ethical attitude to children. This attitude has recently emerged in the UN’s statements as a call for an universal ethical attitude 16 to children. The distinctiveness of this insight is how it transcends the narrow focus on an area of social, political, economic or cultural life by embracing larger concerns with promoting a universal ethical society. Essentially the notion of a universal ethical viewpoint is part and parcel of the shared conviction and vision that underpins the CRC. This vision may articulate itself in a variety of ways. Essentially, the understanding is based on three developmental issues namely that (1) the child be assisted in its individual and collective journey to hope, fulfillment and meaning, (2) the child be empowered by all policy, systems and services to grow and develop to its full capacity, and (3) children at risk be given a special priority. The intrinsic viewpoint sees human rights as more than an “attachment” one adds to development. An entitlement imposes a general responsibility on everyone, including the State, to respect those rights and to abstain from any action that restricts their enjoyment or violate them. It is clear from the CRC that the rights of children are not simply another priority that one adds to national development plans but they should be intrinsic to them. Human development, in a rights based approach, is only meaningful and sustainable when it is designed to ensure the realisation of the dignity of the human person. The concept of human development is much broader that the conventional theories of economic development. Economic growth models deal with expanding GNP rather than enhancing the dignity of human lives. Human resource development treats human beings primarily as an input in the production process – a means rather than an end. Welfare approaches look at human beings as beneficiaries and not as agents of change in the development process. The basic-needs approach focuses on providing material goods and services to deprived population groups rather than on enlarging human choices in all fields. Human development goes beyond these approaches and analyses all issues in society – whether economic growth, trade, employment,

15 Klasen (2000) op. cit. pp 7-9. 16 M.S. Pais (1999) A Human Rights Conceptual Framework for UNICEF, International Child Development Centre, Florence, Italy. Pais specifically articulates the notion of an ethical attitude to children in Section II.5 A New Ethical Attitude towards Children. See also a speech given by Mary Robinson to the Michael Smurfit Business School on Friday 18 th January 2002. Finally for a broader perspective on the ‘ethical’ theme see: P. G. Lauren (2001) The Evolution of International Human Rights: Visions Seen, Penn: University of Pennsylvania Press and J. Glover (2001) A Moral History of the Twentieth Century, London: Jonathan Cape

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political freedom or cultural values – from the perspective of people. 17 Thus a person centred approach is key to the conceptual framework underpinning the CRC. 18 The universality of the human rights of children as envisaged by the CRC stresses the importance of the human rights of every child. It is essential to go beyond good averages or a high rate of progress. Their fulfillment is not a design feature but the engine room of an ethical society. The CRC presents a deeper, wider and more systemic framework founded on the ethical imperative of human rights. The ramification of applying this framework is not simply about changing the policy, systems and services but internalising a radical shift of mind 19 in the culture of State provision. A rights based approach gives us a framework in which to set policy, systems and services in the context of the rights of children. It has “changed the lens through which governments must regard children, a change from protecting vulnerable children against a range of specified ills, to a holistic approach guaranteeing all rights for all children”. 20 3. Policy Theory and Initiatives for Children

I have arrived now at the final theme focusing on creating new approaches that can appraise and judge progress by government in relation to policy, systems, and services for children. What is attempted here is embryonic and may usefully add to a wider circle of exchange. The work of government can and does impact positively on children. Of specific interest is to examine the policy theory adopted by selected government departments. A policy theory is the explicit or more often implicit set of postulated casual connections between policies and desirable outcomes. The following

classification is adapted from work undertaken by the US Rockefeller Institute of Government. 21 The purpose of the classification exercise is to bring clarity to the services that are provided, in what sequence, to which persons, and to what apparent ends. Furthermore, the analysis may help us to understand what exactly the systems are organised to do and what they do not seem to be doing at all. The three policy theories are (1) family structure, (2) resource and (3) environmental.

contends that children benefit from being born only to families who are able to care for them. It is underpinned by an assumption that children require responsible fatherhood and motherhood. The National Family Support Initiative (NFSI) of the Department of Social and Family Affairs (DOSFA) may be primarily though not exclusively located within this theory. This theory is supported by the research tradition of family specific studies and is illustrated quite well by a short aside from a study by Kieran McKeown and John Sweeney. 22 This research found 1. The family structure theory

evidence that echoes the type of concerns found in a family structure theory. These are: that children are happier having regular and secure communication with each of their parents; that children's self-identity and social skills develop better through observation of, and interaction with, father and mother; that 17 This understanding is outlined in detail in the United Nations (1995) Human Development Report 1995, New York: UN, pp 11-12.

18 M.S. Pais (1999) op. cit. pp 5-25. A idea of a personalistic norm in human rights constantly needs to be nurtured among signatories of the CRC. This raises the need for further investigation that is not within the scope of this paper. For instance, it would be useful to have an historical expose of the way that democratic institutions and government have related to the individual, the society, and other nations vis a vis a rights based approach. See J. Dunn (2000) Western Political Theory in the Face of the Future, UK: Cambridge University Press.

19 The idea of a ‘shift of mind’ is a central tenet of organisation and system change literature. At the core of systems development is the ability to change and convert its capacity so as to create its future. B. Lonergan states that conversion is about walking a different path, becoming aware of a different horizon and moving towards that horizon in B. Lonergan (1958) Insight: a study of human understanding, London: Darton, Longman and Todd. See also P. Drucker (1996) Managing the Non Profit Organisation: Principles and Practices especially pp 223-224, London: Harper Collins and P. Senge (1990) The Fifth Discipline: The Art and Practice of the Learning Organisation, Century Business.

20 Quote from Professor Partha Dasgupta, Frank Ramsey Professor of Economics at the University of Cambridge and Fellow of St. John’s College.

21 This type of mapping exercise is based on a conceptual inquiry into public policy developed by T. Gais of the Rockefeller Institute of Government and C. M. Johnson of Williams College. It was outlined in Welfare Reform, Management Systems and Policy Theories of Child Well-Being, presented at “For Better and For Worse: State Welfare Reform and the Well-Being of LowIncome Families and Children,” conference sponsored by the Joint Center for Poverty Research, in Washington, DC, on September 16, 1999. See also R. P. Nathan and T.L. Gais, (1999) Implementing the Personal Responsibility Act of 1996: A First Look, Albany, N.Y:The Rockefeller Institute of Government, especially pp. 39-42. See also C. King and D. O’Shea, Texas Field Research Report, State Capacity Study(Albany, N.Y.: Rockefeller Institute of Government, 1998) and D.C. McCool (1995) Public Policy Theories, Models and Concepts, Univ. of Utah.

22 K. McKeown & J. Sweeney

(2001) Family Well-Being and Family Policy: A Review of Research on Benefits and Costs: Dublin: Government Publications 6


children are better supervised when two parents share the responsibility; and that children are likely to have parents who enjoy better physical and mental health when their parents are not separated.

contends that children benefit from the increased resources obtained as caregivers enter and progress in the workforce. The National Development Plan (NDP) 2000-06 is implicitly located in this theory because it attempts to underpin a dynamic competitive environment for growth. The reasoning behind this theory is summarised by the following statement: the best child well-being, anti poverty, social exclusion, strategy is access to the labour market, which in turn is dependent on an economic climate of growth and competitiveness. 2. The resource theory

The Department of Justice, Equality and Law Reform (DOJELR) Equal Opportunities Childcare Programme (EOCP) 2000-2006 can be located within the resource theory classification. While the publicity material states that childcare consider the rights and needs of the child it can be argued that the operation of the programme is primarily concerned with overcoming the obstacles to parents entering the workforce. Childcare was identified as a priority within the NDP and the EOCP will concentrate on maintaining service provision, stimulating the establishment of new services and bring about an improvement in the quality of childcare services. 23 The types of funding

available is capital in nature. Schemes receiving support include those for selfemployed childcare providers, for community-based and not-for-profit organisations, as well as staffing grants for community-based and not-for-profit organisations. Funding will also be available for national voluntary childcare organisations, local childcare provider networks, local childcare training models, and support for innovative projects. Area Development Management will work on behalf of the DOJELR in the delivery of the EOCP. ADM is quasi-autonomous nongovernmental organisation designated to support integrated local economic and social development. In relation to childcare, the DOJELR has given ADM a set of roles and responsibilities related to providing technical assistance.

is concerned with affecting the environment in which children are raised. The theory maintains that children reap psychological and sociological benefit from being part of a family in which the head of the household works. The key to this theory is the transformation of the child's upbringing and well-being. The Department of Health and Children (DOHC) National Children's Strategy fits broadly within an environmental theory classification. The vision of the NCS is that children will be respected as young citizens with a valued contribution to make and a voice of their own. In particular the strategy seeks to create an environment where all children are cherished and supported by family and the wider society. Where the conditions for their potential to be realised prevail, children can truly enjoy their childhood. 3. The environment theory

These then are a brief description of the three policy theories outlined in the context of initiatives for children. I should acknowledge that a comparative instrument such as this fails to reflect and appreciate the diverse historical, cultural and legislative factors that have created our systems and services. Also it seems to me that a wider and more vigorous application of this classification will be required before it can it can become an effective tool of analysis in children’s rights work. However, for the purposes of this paper I think there is value in selecting four initiatives for examination. Figure One: Assessing The Child Focus of Initiatives will illustrate the value of articulating the dominant policy theory underlying an initiative because it enables us to map out and make explicit things that are too infrequently expressed. The gathering of information has

been undertaken through telephone conversations with personnel 24 within each department or relevant 23

See DOSCFA (1999) The National Community Development Programme, Dublin: DOSCFA. See also EOCP 2000-2006, DOJELR and Childcare Funding in Ireland, Dublin: DOJELR. 24 Among the personnel who have been helpful in providing information the author would like to acknowledge: Brendan Walker and Jeanette Young in the DOSCFA; Eve McKay and Margaret Healy in the DOES; and Catherine Grace in the DOJELR. Notwithstanding the help of these individuals any factual or other errors contained in this analysis remains the responsibility of

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agency. In addition, information was sourced from publicity material and research reports. The mapping consists of 1. Department of Education and Science, Educational Disadvantage Initiatives 2. Department of Education and Science, Youth Affairs Services 3. Department of Justice, Equality and Law Reform, National Equal Opportunities Childcare Programme 4. Department of Community, Rural and Gaeltacht Affairs Community Development Programme.

the author.

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Figure One Assessing the Child Focus of Initiatives Policy Vision

Policy Theory

Educational Disadvantage (DOES) (246.33m/2000-02) To provide an appropriate educational response to educational disadvantage, social exclusion and poverty and give children every opportunity for social integration Youth Affairs (DOES) (22.86m/2000) A programme of activity that is designed for the purpose of providing developmental and educational training so as to assist the personal and social development of young people which (a) requires the voluntary participation of young persons and (b) is complementary to academic and vocational training [Youth Work Act makes clear that young children are not envisaged within the scope of this work} Childcare Programme (DOJELR thru ADM) (437m 2001-06)

Environmental Emphasis on a range of initiatives that will improve the environment for specific target group suggests the environmental theory is operating at the programme level

8-15 Initiative whereby local consortia plan and deliver services Stay in School Initiative whereby school plans are developed New programme whereby new teachers will be appointed

Environmental Emphasis on a range of programmes that will improve the personal and social development suggests the environmental theory to some extent.

Delivery of generic youth work to young people in out of school settings

To enable parents to avail of education, training and work Community Development Programme (15m per annum) Positive change in society in favour of those who benefit least in the society.

Sample Outcomes/Outputs

Special Projects Scheme for projects working with young people who are disadvantaged Information centres providing a resource for young people

Resource Improving the quality of childcare; increasing the number of facilities and places; introducing a co-ordinated approach to childcare are the three key objectives that sit within a resource theory. Environmental Community development approach that has a clear anti–poverty, anti-exclusion focus working in a community context. The environmental theory is implicit to some extent.

Capital grants for new services and increasing the number of places available Staffing grants for training and support Childcare networks 130 Community Dev. Projects working with local communities to reduce poverty and exclusion Development of new plan for the programme

Figure 1 has outlined a sample of initiatives of government across three headings – policy vision, policy theory and outcomes/outputs. The heading, policy vision was extrapolated, in most cases, from explanatory literature about the initiative. It is interesting that there is no apparent coherence or consistency evident in the policy visions that characterise the various initiatives. Specifically, a child focus is only explicit in the vision of Youth Work Services. While children are not the primary target of other initiatives, there is an expectation that children may benefit to a greater or lesser degree from each because of the emphasis on specific groups such as teachers or the community.

reflects mechanisms primarily concerned with the internal functioning of departments. This has its roots within the historical reliance of government departments on clearly identifiable and distinct remits to avoid duplication of effort and ensure cost effectiveness. One reason that can be put forward for such a diversity of policy visions is that it

The strategic management and administration of each initiative lies within respective departments. Where this is not the case responsibilities are transferred, normally through the enactment of legislation, to newly established agencies. In some cases, technical assistance and co-ordination roles may be given to quasiautonomous non governmental organisations. The classification also sought to assign a policy theory to each initiative. It is essentially a subjective judgement based on establishing a link between the focus of the initiative and the theory descriptors provided above. Among the initiatives where apportion was ambiguous is the DOCRGA Community Development Programme and the DOES Youth Work Services. There are a number of reasons why this might be the case. First, there was a distinctive influence brought to bear by NGO’s (community development and youth work organisations respectively) to the conception, design and delivery of these initiatives. Traditionally this has given the initiatives a rare degree of complementarity between their bottom up (community led) and top down (state led) features. Second, both these initiatives have explicitly placed great emphasis on the empowerment of the person who is the subject of its work. Therefore value has been given to the child as the subject of the work and not simply the object or beneficiary of outputs/outcomes. In the case of the Community Development Programme this was evidenced in the priority given to poverty and inclusion work in the action plans of projects.

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There are two challenges arising from the mapping exercise that I would like to highlight by way of conclusion to this paper. These relate to the internal capacity and external capability of each department. To illustrate both I will present an example that I think shows how precarious the task of working from a children’s rights perspective is, and the way it can be undermined due to internal inconsistency of departments/agencies. The case in point is DOJELR National Childcare Strategy, which is administered by Area Development Management. It seems to me that the problem is symptomatic of a critical issue that can be readily applied to many other initiatives. ADM’s published mission is to support integrated local economic and social development through managing programmes targeted at countering disadvantage and exclusion; equality; and promoting reconciliation. This mission statement is clearly descriptive of the work-in-hand. ADM has four programme areas and managers. These are (1) The Local Development and Social Inclusion Programme (2) The RAPID Programme (3) The Childcare Programme and (4) The Peace and Reconciliation Programme. Some year ago, I was co-ordinator of the Network of After School Supports (NASS) 25. This network was established in response to the mushrooming development of homework clubs and after school activity groups around the country. Many of these groups were comprised of children between the ages of twelve and sixteen years. Through a measure in the local development and social inclusion programme, ADM supported the network at an important developmental stage of its formation. Today, responsibility for after schools programmes has moved, within ADM, from Local Development/Social Inclusion to the Childcare Programme. The reason for this change was essentially a decision of government but it has two implications that I would now like to draw out. Firstly, there is an implicit priority given to growth aims in the operation of the programme. The target group of the DOJELR/ADM Childcare Programme is parents but the dominant policy theory at work, outlined in Figure 1, is within a resource theory classification. The inherent danger of a resource theory operating in an area concerned with children is the dominance it may give to growth aims ahead of social aims. Of course, e ach of

the theories used in the classification - family structure, resource, and environmental – are influenced and respond in quite different ways to growth and social aims. Growth aims address and prioritise those conditions that can effect continued economic growth e.g. productivity and competitiveness. The dominance of growth aims in childcare can be argued on the basis that it seeks to overcome the barriers to participation of parents in the work place. However, I would suggest that for this initiative to take on a child perspective would require it to be complemented by explicit social aims. 26 Otherwise, it is unlikely that it can effectively champion children in after school and homework clubs in a manner that can really effect impact on the mainstream and create a multiplier effect.

The argument for greater complementarity of growth and social aims is also advocated at an international level. The predominance of growth aims has traditionally been associated within policies of international agencies like the OECD and the World Bank. However, social aims have become an ever-increasing driving force behind human rights and development work. Social growth has predominated for instance in the UN's 1985 Summit on Social Development that was a catalyst for the National Anti Poverty Strategy. At an EU level, the widening of concerns from tackling unemployment to social inclusion is reflected in Article 137 of the Amsterdam Treaty. Secondly, there is the capability question that arises in the context of interdepartmental work. A way, in which remedial action could be instituted, in the context of ADM, is through greater integration of the childcare programme with the local development and social inclusion programme. However, are these programmes capable of working in this manner? At a wider, level what is the capacity of the DOJELR or the DOES to work in an integrated manner that benefits children? Questions such as these need to be unequivocally addressed by any group advocating an ethical approach to children because it goes to the heart of the problematic distance between aspiration and action. I would contend that we do not have evidence to answer these questions. My analysis provides, albeit precursory evidence that the effectiveness of specific initiatives is far from clear because of their low capacity to act as cross cutting measures. By cross cutting measures is meant programmes that involve various layers of government working to address the entitlements of children. Specifically, we need to learn more about the internal 25 NASS is an independent network that is provided with technical support by the National Youth Federation. 26 There is a growing base of research exploring, among other things, the need for complementarity between social and growth aims. In the US, work has been undertaken on a ‘Genuine Progress Indicator’ and ‘Index of Social Health’. See Conference of Religious in Ireland (1996) Progress, Values and Public Policy, Dublin: CORI and Scott et al (1996) Formulating Environmental and Social Indicators for Sustainable Development, Dublin: ESRI;

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working of inter-departmental initiatives and mechanisms. A study of this kind would assess the capacity of the lead department to effectively integrate and coordinate its own inner functions and to mainstream the learning arising from specific interventions. The focus of the research question is clearly on the capability and capacity of departments that participate in cross-cutting policy issues and initiatives to radically champion children’s voices ahead of other concerns. This type of investigation is a novel area of conceptual enquiry in Ireland27 and would make real a children’s rights approach that can mobilise a much wider series of actors into making Ireland a place truly fit for children. Summary This paper began by outlining the case for the inclusion of social and economic rights in the Irish Constitution. The examination has centred on the need to find a middle way between stating socio-economic rights in a totally open-ended manner or excluding them from the Constitution altogether. The framework of core principles and human rights in the CRC was also described. An approach that accommodates both intrinsic and instrumental value of children’s rights was elucidated. Any attempt to interpret the CRC needs to overtly acknowledge human rights as an entitlement borne of a new ethical attitude to children. Being guided by a human rights approach, the reality for all children must be assessed; areas requiring priority interventions identified; advocacy opportunities considered; situations that are insufficiently understood and studied; and partnerships widened to enhance the social support for the cause of children. Finally a brief sketch of policy theories was undertaking and a three-fold classification used that usefully helps us to critique the level of coherence and consistency between initiatives for children. The rationale for examining these initiatives is based on the belief that children’s rights are subject to the criticism of indetermination. In practice there is a picture emerging from this analysis of the ‘not yet’ holistic nature of a rights based approach. It may be that we need to honestly acknowledge that we do not yet have the right handle on how to address the issue of children’s rights. It is for this reason that we need to create visible criteria by which initiatives are working effectively for children. The rudimentary classification and template used by this paper might become, with wider application, a truly useful instrument. It does produce some initial clarity on these initiatives that has allowed us to identify lacunae particularly in terms of research into cross cutting measures of government departments. In conclusion, the value of this paper is that it has put together information that is readily available, in an original manner thus enabling new insights to emerge. Nevertheless, insights by their nature need to be checked and applied in a more rigorous manner, than has been possible in this paper, to the reality from which they have emerged. Such application must meaningfully involve a process of dialogue with all stakeholders in initiatives for children before they can be said to be useful. The prize is worth the effort because it will enable learning to be translated that radically changes the situation of children in Ireland. Failure to meet the challenge will reinforce the indictment that in Ireland we have less success at translating learning from initiatives into what happens in mainstream practice by the big statutory organisations and small-scale initiatives remain just – small scale.” 28 Thank you.

27 For an interesting example of a government capacity study see: T. Gais, et al (2001) Implementation of the Personal Responsibilities Act of 1996, New York: Rockefeller Institute of Government. Richard Nathan is principle investigator of the State Capacity study. For a specific study relating to children see: R. Nathan and T. Gais, Welform Reform Management Systems and their implication for children in Ohio State Law Journal, Fall 1999.

28 Adapted from a quote by E. Fitzgerald, The Challenge of Hardcore Unemployment in the Jobs Boom, in E. Cassidy (Ed.) (2000) op. cit. pp 97 – 107.

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King C. and O’Shea, D. (1998) Texas Field Research Report, State Capacity Study, Albany: N.Y. and Rockefeller Institute of Government. Klasen S. (2000) Social Exclusion, Children and Measurement Issues, Paris: Centre for Educational Research and Innovation ………….(1998) Children in OECD Countries: Some Conceptual Issues, Paris: OECD. Lauren P.G. (2001) The Evolution of International Human Rights: Visions Seen, Penn: University of Pennsylvania Press. B. Lonergan,(1958) Insight: a study of human understanding, London: Darton, Longman and Todd. McCauley K & M. Brattman (2002) Hearing Young Voices, Dublin: Open Your Eyes to Child Poverty Initiative McCool D. (1995) Public Policy Theories, Models and Concepts, Univ. of Utah.

(2001) Family Well-Being and Family Policy: A Review of Research on Benefits and Costs: Dublin: Government Publications McKeown K. and J. Sweeney

Nathan R.P. and T.L. Gais,(1999) Implementing the Personal Responsibility Act of 1996: A First Look, Albany, N.Y:The Rockefeller Institute of Government. National Children’s Office (2001) National Report on Follow-Up to the World Summit for Children 1990-1999, Dublin: Government Publications. Pais M.S. (1999) A Human Rights Conceptual Framework for UNICEF, New York:UNICEF. Ronayne T. (1992) Participation in Youth Service Provision during the Transition from School to the Labour Market: Gaps in Provision and the Policy Issues Arising, Summary Report, Dublin: WRC Social and Economic Consultants Limited. Senge P. (1990) The Fifth Discipline: The Art and Practice of the Learning Organisation, Century Business. Scott et al (1996) Formulating Environmental and Social Indicators for Sustainable Development, Dublin: ESRI. Social Exclusion Unit (2001) Preventing Social Exclusion, London:HMSO. Sweeney J. (forthcoming) Ending Child Poverty in Rich Countries, Dublin: Children’s Rights Alliance. United Nations (1995) Human Development Report 1995, New York: UN. UN Committee on the Rights of Children (1998) Concluding Observations on the Report submitted by Ireland under Article 44 of the CRC, UNICEF. UN Children's Fund (UNICEF) (2001) A Decade of Transition, Milan: Innocenti Research Centre. Walsh J. (1999) The Eye of the Storm: Ten Years on the Front Line of New Future. Article Nathan R. and T. Gais, Welform Reform Management Systems and their implication for children in Ohio State Law Journal, Fall 1999. Websites Children’s Rights Alliance, Ireland: www.childrensrights.ie Annie E. Casey Foundation and Casey Connects Reports: www.aecf.org/connects Annie E. Casey Kids Count Reports: www.aecf.org/kidscount/he2001 Changing Minds/Council of Europe: www.eurochild.gla.ac.uk Centre for Europe’s Children: www.eurochild.gla.ac.uk and www.childfocus.org Children’s Rights Information Network: www.crin.org Childwatch International www.childwatch.uio.no European Network of Ombudsmen for Children: www.ombudsnet.org International Clearninghouse on Child, Youth and Family Policies: www.childpolicyintl.org Nelson A. Rockefeller Institute of Government: http://rockinst.org The Child, Youth and Family Newsletter: www.childtrends.org The Urban Institute, Child Trends: http://newfederalism.urban.org Unicef, Innocenti Research Centre: www.unicef-icds.org US Research Centres: www.childpolicy.org

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See also: www.welfareinfo.org/childhoodindicators.htm,www.un.org,www.nzdl.org/cgi-bin/library

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An ethical approach to children (ed carroll)