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#126 2007-02-06 14:02:41Marie-Therese O’ Loughlin

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[IF]

If you can keep your head when all about you
Are losing theirs and blaming it on you,
If you can trust yourself when all men doubt you
But make allowance for their doubting too,
If you can wait and not be tired by waiting,
Or being lied about, don’t deal in lies,
Or being hated, don’t give way to hating,
And yet don’t look too good, nor talk too wise:
If you can dream–and not make dreams your master,
If you can think–and not make thoughts your aim;
If you can meet with Triumph and Disaster
And treat those two impostors just the same;
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to, broken,
And stoop and build ’em up with worn-out tools:

If you can make one heap of all your winnings
And risk it all on one turn of pitch-and-toss,
And lose, and start again at your beginnings
And never breath a word about your loss;
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on!”

If you can talk with crowds and keep your virtue,
Or walk with kings–nor lose the common touch,
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much,
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run,
Yours is the Earth and everything that’s in it,
And–which is more–you’ll be a Man, my son!

Rudyard Kipling

Temperatures outside are below zero,

I guess they must be below five degrees.
This to me is the real testing point of my protest.

It was minus eight degrees last year

and it was very tough.

I HAVE JUST GOTTEN OVER A FLU.

I MUST CONCENTRATE ALL MY ENERGIES ON KEEPING WARM AND NOT DWELL ON THE

PETTINESS OF HUMANS AND WHAT THEY CAN DO TO TRY TO BRING ONE DOWN.

My placard was torn asunder OFF THE DAIL RAILINGS by some devious characters,

however what these characters do not realise is that it is all recorded on camera.
I WAS IN THE THROES OF CHANGING IT AS IT SHOULD HAVE HAD MORNING

STAR AVE ON IT AS OPPOSED TO Morning STAR, which is in fact a man’s hostel.

the coin was phrased not all that glistens is Gold, well, neither is it in my case  – the Morning STAR.

Rudyard Kipling does it for me,

When I AM FINISHED ON THIS PROTEST,  I am determined TO DO STUDY AND AVAIL OF THE OPPORTUNITIES OUT THERE.

I HAVE SEEN BEAUTIFUL PEOPLE WHO WERE IN THE INSTITUTIONS GO UNDER BECAUSE THEY COULD NOT EXPRESS THEMSELVES.

BUT I HAVE ALSO SEEN THAT THEY WERE SUCKED UNDER BECAUSE OF THIS.

EDUCATION IS POWER, AND IT GIVES ONE A CONFIDENCE IN ONESSELF.

I am so weary of total strangers pulling me down AND NOT HAVING THE INTELLECTUAL SKILLS TO FIGHT THEM.

YOU TRY TO RISE ABOVE THE PARAPET AND THEY WILL PUSH YOU UNDER.

PEOPLE WILL PRETEND TO STAND BY YOU AND THE VERY SAME PEOPLE

WOULD NOT OFFER YOU A CUP OF TEA IF YOU WERE ON THE VERGE OF COLLAPSE.

I WOULD LOVE TO FINISH ON THIS PROTEST,

BUT THAT WONT HAPPEN DURING THE LIFETIME OF THIS GOVERNMENT.

IF YOU WANT TO GIVE YOUR SUPPORT

I would be grateful if you could

CONTACT EITHER MARY HANAFIN OR BERTIE AHERN.

THANKING YOU. Marie-Therese O’ Loughlin.

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Judge’s ruling from beyond the grave reeks of rank hypocrisy.
Thursday January 4th 2007

THERE is something wrong with Sean O’Leary’s valedictory message, published posthumously yesterday. (Supreme Court judges must show ‘spirit of independence’)

His overall pleadings – with the Supreme Court, the legal profession and the Irish public – concern those he describes as “morally undesirable or socially unacceptable”.

And he goes on to quote George Bernard Shaw’s description of “the undeserving poor” whose rights, Judge O’Leary says, have been denied.

Yet he says nothing at all about the people whose welfare he presided over in his last judicial appointment, that of chairman of the Residential Institutions Redress Board.

They, more than any other group in the care of the State during its whole history, belonged in the category for which he expresses such concern in his article.

They were the undeserving poor, criminalised for being that, or for being illegitimate, abandoned, or having inadequate parents.

They were judged morally undesirable. They were regarded as socially unacceptable.

Sean O’Leary implemented and presided over the secretive, prejudicial and deeply flawed legislation governing the Redress Board of which he was chairman until his untimely death.

He implemented the law as it was – despite its serious defects.

In as far as it is possible to assess from the few cases where the details have become known to me during the past years of its operation, dating from well before O’Leary’s own appointment – the general view clearly is that he was parsimonious and restrictive in what he did.

Known awards given out by the Redress Board for personal injury have been at a level unacceptably below what an open court system would have awarded.

The scale of payments set against any free and open-court judgment or agreed settlement, has been repeatedly revealed as derisory.

It is extremely difficult to make the comparisons, even if we had constructed a fair and open form of assessment of claims before the Board.

Much of the abuse that happened in residential institutions was carried out in circumstances of imprisonment, secrecy, and the exercise of unfettered and unchallenged power.

It was quite wrong of the State to set up a compensation machinery that was equally secretive and covert, open to no cross-checking by the legislature or the judiciary, and to do this in supposed exculpation of its own neglect.

It was far worse to establish a pattern of compensation amounts that was at an unacceptably lower level of payment than would have been the outcome in open court.

And it was wrong of the State not to structure the hearings so as to achieve fair recompense rather than the self-serving level of awards that have been the sad reality for those abused men and women brave enough to bring their anguish before the noble judge.

For him to remain silent on this aspect of judicial balance and fairness – which is the main case he levels against other courts and judges – while coming out so strongly in supposed support of the ‘undeserving poor’ elsewhere in our system, is nothing short of hypocritical.

I knew Sean O’Leary over a number of years, well before his appointment, and, both professionally and privately, discussed legal issues with him.

In his last appointment I raised with him the issue of the secrecy of the Redress Board and requested a briefing on why it had to be so.

This was declined, on legal grounds which I was unable to query with the judge, since he refused communication on any terms.

I did, however, query them with other senior and distinguished lawyers.

The response was simple and straightforward. The State had copper-fastened all the legislation dealing with institutional abuse by the religious orders in the industrial schools and reformatories.

The State had done so in ways that were regarded by legal experts as unjust and pejorative to the interests of the plaintiffs while at the same time being protective of the interests of the defendants.

This is how the Redress Board is now widely viewed, and the same applies to the Commission on Child Abuse.

In both of these bodies, carefully constructed in their operation by laws which the Oireachtas passed in good, if flawed faith, judges dictate the secrecy or otherwise of hearings.

They refuse to answer questions about their actions. They administer – in the case of the Redress Board – settlements that cannot be appealed or made public. And Sean O’Leary was in charge of part of this.

IT IS painful to call him hypocritical, in writing about other judicial circumstances, when he completely ignores his own performance as a judge.

It is doubly so to do so after his recent death. Yet his career closed in what should have been a humanitarian concern for the most extreme cases of what George Bernard Shaw called ‘the undeserving poor’.

And Sean O’Leary – in so far as he can be judged on the indifferent information that has come out – did so with little compassion and even less fairness than he calls for in other courts and before other judges.

As a definition of hypocrisy I can think of no better example.
© Irish Independent

#129 2007-02-16 13:13:31 Marie-Therese O’ LoughliRe: From the CrookedLawyers.com Guestbook {2}

Government warned not to rush referendum on child protection.

Former Supreme Court judge Catherine McGuinness has warned against the Government rushing into a referendum on child protection in the months leading up to the general election.

“I agree that the important thing is to get it right rather than rushed before the general election. At the same time, I don’t want to see it move off into the middle distance,” she said.

Mrs Justice McGuinness, who was speaking at the launch of a children’s rights policy document by children’s charity Barnardos, emphasised the importance of ensuring that the Oireachtas and the public have time to fully debate and understand the effect of the proposed amendments.

The Government is due to publish the wording of the proposed referendum on child protection and children’s rights next Monday amid increasing signs that the plebiscite will be delayed until after the election.

Both Fine Gael and Labour have sent strong signals that there is not sufficient time to debate the manner.

Barnardos chief executive Fergus Finlay expressed concern about holding the referendum on the same day as the general election.

He said the issue of children’s rights would get drowned out by other pressing matters in the middle of an election campaign, ensuring the referendum would be one of the “least debated” constitutional amendments.

“It may well be that the right and appropriate thing to do now is to publish the results of the Government’s deliberations in the form of a Bill, to then set about establishing the maximum degree of debate and participation, but to wait until after the election to secure the enactment of the Bill and the holding of a referendum.”

He said this debate needed to take account of the broader picture of children’s lives in Ireland. Barnardos’ policy document on children’s rights points out that one in nine children lives in consistent poverty, which includes inadequate nutrition, heating and clothing.

Such poorer children have a much higher chance of leaving school early, with severe numeracy and literacy problems. It also cites an ESRI study which shows that among the world’s richest countries, there are only four nations with a higher rate of child poverty than in Ireland.

Mr Finlay said: “We need to give children a place and a voice in the development of public policy as a whole, and not just in relation to very particular areas.

“We cannot address the issue of child poverty through the Constitution, but neither can we address it if those responsible for health, education, housing and family incomes policies are not fully alive to the rights and needs of children.

“Natural and imprescriptible rights might not mean a lot when they are first published.

They must come to mean more through public debate and understanding.”

Mrs Justice McGuinness said she welcomed the Government’s planned referendum, and said the need for children’s rights, independent from their parents, was vital.

Such an idea might be difficult for those in happily married families to understand, but was important for children living in less-privileged settings. Also speaking at the launch, UCC law lecturer Dr Ursula Kilkelly said Ireland now had an unprecedented opportunity to lead the way internationally in the field of children’s rights protection.

“Much can be learned from international experience and from the Convention on the Rights of the Child about how best to protect and promote children’s rights, now and in the future. Are we willing to learn these lessons?” – Carl O’Brien, Social Affairs Correspondent, 2007 The Irish Times
The wording of the amendment.

The amendment for a referendum on children’s rights contains seven substantive provisions covering the rights of children.

Under these provisions, the State will:

Acknowledge the natural and imprescriptible rights of all children

Restate the existing protection of children and parents enshrined in the Constitution

Allow for the adoption of children who have been in care for a substantial period of time

Ensure all children will be eligible for voluntary adoption  Ensure the best interests of children will be secured in any court proceedings relating to adoption, guardianship, custody or access

New laws to allow for the collection and exchange of soft information relating to the endangerment, sexual exploitation or sexual abuse of children

New laws to create offences of absolute or strict liability in respect of offences, including non-sexual offences, against children
Children’s referendum – Vulnerable must not be betrayed.

Over the last two decades a stark light has been belatedly shone into the unwelcoming, debauched corners of our society.

The sexual and physical abuse of children; the abuse of those — especially women — who did not conform to a lifestyle advocated by an insular, insecure and conservative society; tax evasion; planning irregularities and golden-circle favouritism were all brought to light.

However, discovery did not always mean we could cope legislatively or emotionally with the magnitude of the betrayals revealed. We established tribunals; we were regretful and we were shamed.

Yesterday the Government moved to give meaningful expression to that regret when Taoiseach Bertie Ahern announced a series of measures intended to “value and defend childhood to an extent never before attempted”.

In a cyber world where tentacles of every kind can reach a child’s bedroom such an agenda cannot be pursued too vigorously.

Neither can it be allowed to become a puffy tug o’ war between political factions no matter how anxious they are for an advantage at the hustings; there is too much at stake.

The announcement over last weekend by Bishop Robert Brom of San Diego that his diocese is considering declaring bankruptcy to avoid going to court on more than 140 cases alleging sexual abuse by priests vividly underlines the international scale of the problem in protecting children.

The proposals, if passed by referendum on a date yet to be finalised — it may or may not be before the General Election — will allow for the use of “soft information” about suspected child abusers.

This is to be commended as it cannot be right to have to put suspicions to one side when the welfare of a child is at stake. The proposals will not in any way invalidate the long-cherished principle of innocent until proven guilty but will allow for a responsible expression of concern.

The current situation, where an enforced silence is the predator’s best ally, cannot continue in a Europe without borders, in a world where the internet cannot be controlled.

In a unusually unambiguous and welcome declaration Mr Ahern yesterday outlined a simple determination: “A clear and unbendable rule — that those who sexually abuse children will be punished. No exceptions; no loopholes; no excuses.” He cannot have been any more direct.

Let us hope he is equally determined as society will not contemplate another betrayal of the vulnerable.

And is it too much to hope that this newfound directness may be applied to other areas of social and legislative evolution?

That this directness may in time help us fulfill our obligations to those in our care.

Taoiseach to forge ahead with children’s rights Bill.

The Government is determined to get legislation for its proposed referendum on children’s rights passed before the Oireachtas is dissolved, despite major concerns among Fine Gael, Labour and the Greens.

Announcing the wording for the 28th Amendment to the Constitution Bill yesterday, Taoiseach Bertie Ahern said he was committed to putting the referendum to the people “whether before the general election, or in the autumn”.

Regardless of whether the referendum is held before the Dail is dissolved, the Government is determined that the Dail and Seanad will pass the legislation necessary to order a referendum to be held within 90 days. “I will be looking for Dail time.

I don’t have the appetite for further interminable debate.

We need to progress this,” Minister of State for Children Brian Lenihan told The Irish Times last night.

If passed, the referendum would improve the rights of children under the Constitution, but it would not undermine the traditional protections enjoyed by the family, the Government insists.

The wording was greeted cautiously, but positively last night by children’s rights organisations, such as Barnardos, the Children’s Rights Alliance and the Irish Society for the Prevention of Cruelty to Children.

The State would be given the right to deal with cases of neglect or abuse of children of a married couple, just as it can intervene currently in non-marital families. However, the grounds justifying intervention will not change, Mr Lenihan said. “It will be neither easier nor more difficult for a child to be taken into care,” he said.

Children in long-term care will be eligible for adoption under legislation that will be introduced within 18 months, if the voters accept the referendum.

The amendment would also ease restrictions on the circumstances in which children can be adopted. For example, it will allow for children of married couples to be adopted, which is not the case at present.

The referendum, first promised last November by the Taoiseach, also provides for the courts to “endeavour to secure the best interests of the child” in adoption, guardianship, custody, or access cases.

In another change, State agencies would be able to share so-called “soft” information about suspected paedophiles, which they cannot do now because it interferes with a person’s constitutional rights.

This would allow for information on suspected paedophiles to be shared among relevant bodies even in cases where a conviction has not been secured.

The Ferns inquiry report and last year’s Oireachtas Committee on Child Protection have both insisted that such information must be gathered and shared.

The referendum would also provide for the introduction of a strict liability offence for adults who have sex with children.

This would remove the defence of “honest mistake” available to adults and introduce a zone of absolute protection, below which it would be automatically criminal to have sex with a child.

The age at which this zone of protection comes into force will be left for the Oireachtas to decide. “As a community, we need to send out a strong message to would-be sexual predators that there can be no defence for their actions,” said Mr Lenihan.

Demanding time to study the wording, Fine Gael said the legislation had to be “closely examined, particularly in terms of their effects, both intended and unforeseen”.

The Government, said Fine Gael TD Jim O’Keeffe, could have concentrated on strengthening powers to act against sexual predators where there was already all-party agreement. Labour Senator Derek McDowell said he did not see how “a debate on all the issues raised can be held and concluded” before the Dail ends and “there is no reason why it should be”.

The Government, he said, had failed to set out “in explicit form” the rights of the child in our Constitution, rather than simply restating that they possess “natural and imprescriptible rights”.

The Taoiseach said the Government had opted for “global protection that will be expounded on, and developed by, the Oireachtas over time”.

Mark Hennessy, Political Correspondent, 2007 The Irish Times.

All parties want to be seen taking children’s side.

Analysis:

Taoiseach Bertie Ahern has pushed efforts to produce a wording for a children rights’ referendum for months, often to the bemusement of some of his Cabinet colleagues.

In Government Buildings, the subject is known as “a T issue”, and one that doubters keep quiet about given Ahern’s known interest.

Yesterday, children’s rights groups lined up in Government Buildings to express their general support for the wording.

Some quibbles exist, some believe it does not go far enough, but all in all, they are ready to accept it.

Pleasing such groups is no mean feat. For months, observers have speculated on his interest in the subject, while supporters point back to the 1999 apology Ahern gave to child abuse victims as a sign of his commitment.

As always, though, with the Taoiseach, his motivation is probably more complicated than first appears.

Clearly, he is interested in the subject. However, a referendum campaign just months from the election – with him on the side of children – would not have been bad politics.

If nothing else, it would have ensured that children’s welfare would have been the focus of media and political attention for several weeks, rather than any more toxic political subject. Even as it is, it has achieved some of the latter objective.

And it may have further life, as the Government and the Opposition spar about the timing of the referendum. Furthermore, it could occupy some space during the general election campaign if it were held on the same day.

Bertie Ahern, however, is not keen for it to be held on the same day.

The Opposition, which desperately wants to keep the focus on services, services, services over the last five years, is even less so.

So far, it is clear that Fine Gael, Labour and the Greens do not want to touch the referendum with a barge pole, while Sinn Féin wants a “Yes” vote, with reservations.

The Opposition complains that insufficient consultation has taken place, arguing that the final wording only appeared yesterday.

Fine Gael argues that up to now the Government has only put forward statements of principles in a series of briefing documents. “The Constitution is about wording.

You can’t go and get a legal opinion on something until you have the final wording,” said Fine Gael TD Jim O’Keeffe. In truth, the Opposition has grounds for complaint.

The age of consent was well thrashed out before the Oireachtas Committee on Child Protection last year. However, the other issues contained in the referendum have not been so well debated.

Given that Mr Ahern has gone so far as to produce a wording, one reasonably well received by interest groups, the Opposition must now proceed carefully to ensure that he does not win politically, whatever about the referendum ballot box.

Though the public may have little interest in travelling to polling booths on the issue, no political party will want to be seen as deliberately obstructive.

The lobby groups are now interested parties. Though some feel it does not go far enough, all of them want a referendum to be held – barring the discovery of a legal minefield.

“If the referendum is not held before the election, it will not be held until after the summer – and that’s if Fianna Fail is re-elected.

“If the Opposition gets in, the delay will be even longer given the time that it will take new ministers to read themselves into their new postings,”
said one advocate. 2007 The Irish Times.

FG says it will not be rushed into decision.

Fine Gael last night insisted it would not be rushed into deciding its attitude towards the Government’s proposed children’s referendum, despite the Government’s pressure for a speedy answer.

“This is an extremely complex legal area and the issues concerned need to be closely examined, particularly in terms of their effects, both intended and unforeseen,” said Fine Gael TD Jim O’Keeffe.

He said he would now seek “definitive” constitutional advice from lawyers.

“Our lawyers have said, not unreasonably, that they were not in a position to give an opinion on wording until they had seen the wording,” he said.

“The Government has chosen to paint this referendum on the very broad canvas of children’s rights, and suggests debating complicated issues in a very short time frame, instead of focusing on issues that have all-party agreement and consensus, such as the zone of absolute protection, as proposed by Enda Kenny,” he said.

Labour Senator Derek McDowell welcomed the publication of the wording, but said some of its contents were “disappointing and raised questions that are as yet unanswered”.

Declining to give Labour’s final position on the wording, Mr McDowell said he did not believe “even with whole-hearted co-operation from the parties in the Oireachtas [ that] the proposals can be fully and adequately debated by politicians, interest groups and the general public within the strict time frame proposed by Government.”

The Government, he said, had initially promised it was going to set out “in explicit form the rights of the child in our Constitution”, but that ambition appears “to have been significantly diluted”.

“Instead what is proposed is a form of words where, although the State ‘acknowledges and affirms’ the natural and imprescriptible rights of all children, those rights are nowhere spelled out. Even more disappointingly, there is to be no follow-up commitment by the State – as there is with existing and comparable constitutional provisions – to vindicate those unspecified rights.

What leaps out at a preliminary reading is that so many of its provisions are enabling rather than mandatory.

“In other words, the drafters use the word ‘may’ every time rather than ‘shall’.

“There are aspects of this package that seem to me to be cautious to the point of timidity.

I do not see how a debate on all the issues raised can be held and concluded before the dissolution of this Dáil. And, given the importance of the subject matter, there is no reason why it should be,” said Mr McDowell.

Green Party TD Ciaran Cuffe said not enough time is left for a “lengthy and full” debate on the referendum’s wording before the general election, while it would not “properly enshrine children’s rights in the Constitution”.

“There are a number of positive elements in this package which I welcome, including allowing for the collection of ‘soft information’ on those who pose a risk to children, and the creation of offences of absolute or strict liability for offences against children.”

Despite expectations, it did not detail the “explicit rights” enjoyed by a child: “From the outset, we were promised that this amendment would provide for these rights but it seems that somewhere along the line the Government has diluted this promise.

It is also disappointing that the proposed wording has failed to incorporate the language of the UN Convention on the Rights of the Child,” he said, adding that he agreed with the call by the Ombudsman for Children, Emily Logan, for more time for debate.

However, Sinn Fein MEP Mary Lou McDonald said all parties should work to ensure the referendum is held soon.

“The bulk of the Government’s proposals amount to progress for children, albeit limited, and for that reason Sinn Feiin will support their introduction.” 2007 The Irish Times.

Defer this referendum.

It is critically important that constitutional changes proposed by the Government concerning the protection of children are meticulously examined and their implications for future legal rights are comprehensively assessed. Reform in the area of family law is rare.

Politicians are reluctant to interfere with the very bedrock of society because of possible, unintended consequences.

But recent controversial court decisions and a growing public awareness of the needs and rights of children have compelled the Government to take action.

That is fine. What the Government is proposing, however, is a fundamental change in the rights of children versus families in the Constitution and it is advancing a provision that would enable the detailed changes to be made by the Oireachtas, not the people.

This is a complex proposal with consequences that should be the subject of public debate. The debate should not be portrayed in a black and white fashion at this time in the election cycle.

The rights of children – and families – are too important. Ireland has the highest proportion of young people within the EU, with more than one million children.

The Government presides over one of the highest child poverty rates in Europe and the most expensive childcare system. Primary education is inadequate; medical services deficient.

These challenging issues should not be obscured by a debate on limited constitutional change.

There are some welcome and positive elements in what the Government proposes to do. Minister of State for Children Brian Lenihan should be complimented on his diligence.

But the complexity of this area of competing family rights is so great that the constitutional and legal implications of what is being proposed should be fully explored through public debate before a referendum date is set.

The proposed changes respond to Supreme Court judgments involving sexual offences against young persons and adoption.

It is intended to ensure that in cases of statutory rape, children cannot be cross-examined in court on the issue of consent.

All children will be treated equally in future, irrespective of the marital status of their parents. Difficulties surrounding the adoption of children in long-term care will be swept away.

And provision will be made for the exchange of “soft information” concerning individuals who have unsupervised access to children. In addition, laws protecting children up to 18 years of age may be made in areas involving both sexual and non-sexual offences.

The Opposition parties have expressed general agreement with what has been proposed.

Some believe the reforms do not go far enough. Others have reservations about the specific provisions.

All agree, however, that a referendum should not be rushed and that insufficient time remains for a thorough debate before the Dail is dissolved. They are correct.

There is no need now to rush into a referendum which can be held in the autumn. 2007 The Irish Times

Last edited by Marie-Therese O’ Loughlin (2007-02-21 06:00:56)

 #130 2007-02-16 13:18:16 Marie-Therese O’ Loughlin
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Ahern rules out Referendum before Easter.

Taoiseach Bertie Ahern ruled out holding the Government’s proposed referendum on children’s rights before Easter.

“It is not possible to hold the referendum before Easter because of the number of days that remain.

Even if we all agreed next week to pass the referendum Bill in the Houses, we could not hold the referendum by Easter.

“Mr Ahern said the Bill was being drafted and would be published next week. Meanwhile, Minister of State for Children Brian Lenihan was awaiting the Opposition’s response to his second briefing document.

“As I have said all along, if we can achieve all-party agreement on this matter, I believe we should hold a referendum,” he said. Fine Gael leader Enda Kenny said Mr Lenihan’s level of briefing had not been as extensive as was being portrayed. Mr Ahern said that he appreciated that the briefing documents did not contain the wording that was finalised on Tuesday.

“A significant amount of debate and consideration took place on the issue, involving the Attorney General and eminent constitutional counsel in this area.

We have to do an Irish translation and this will take a few days. The deputy will be aware that is crucial in a constitutional referendum.

“He added that the best way of dealing with the matter was for the Government to put its full proposals into the public domain.

When Mr Kenny suggested that Mr Ahern did not wish to have the issue politicised for whatever reason, Mr Ahern replied: “No, I do not.

That would be the worst of all worlds.” Joe Higgins (Socialist Party, Dublin West) said time was of the essence and the Government was “like a patient facing the end and in denial and in a panic about several issues that it had not dealt with and had to cram in.

Michael O’Regan, 2007 The Irish Times

Print Version Add to Clippings Children’s groups welcome wording but urge speed.

The wording for the proposed referendum on the rights and protection for children has received a broad but cautious welcome.

Whilst most children’s rights groups welcomed the wording of the referendum, they were split on the issue of the appropriate consultation period for members of the public and the timing of the poll.

Rape Crisis Network Ireland (RCNI), the national forum of rape crisis centres, welcomed the wording but said there was an “undeniable urgency” in passing the referendum and pressed the Government to name a date for the poll.

Cliona Saidlear, RCNI policy coordinator, said: “The RCNI are firmly of the belief that, given the will, there is sufficient time for the public to become fully informed for a referendum to be held before the general election.”

The Children’s Rights Alliance also offered its support for the amendment. “The publication today brings us closer to our goal of securing constitutional change that will make a real and positive difference to all children in Ireland,” said Jillian van Turnhout, its chief executive.

Barnardos, Ireland’s leading children’s charity, conceded that the referendum may not be held before the general election, but urged all political parties to commit to an autumn referendum prior to the dissolution of the Dail.

Chief executive Fergus Finlay said that if it were a choice between “doing it fast and doing it right, we should do it right”.

The ISPCC, which has fought to remove any constitutional blocks to the compiling and appropriate dissemination of ‘soft’ child protection information, said that it would be seeking legal opinion regarding the full implications of the wording. Dearbhail McDonald

Many have grown up since need for reform recognised.

Yesterday, the Government published a bill containing an amendment for a referendum on children’s rights.

The amendment establishes a new Children’s Article in the Constitution and contains seven substantive provisions covering children’s rights, child protection, the best interests of children in certain court proceedings and the protection of children in the criminal justice system.

Does this mark a new beginning for children in Ireland?

Let us look at what is being proposed.

The first provision gives more explicit expression to the constitutional rights of children and guarantees such rights apply to all children, irrespective of the marital status of their parents.

The second provision restates the existing Article 42.5 of the Constitution, which defines the threshold for State intervention in family life on behalf of a child.

The only change being made here is that this provision will now apply to any child and to all parents.

This provision will ensure a uniform standard of protection for all children, irrespective of their parents’ marital status.

The third and fourth provisions address roadblocks within the care and adoption system which currently deny children growing up in long-term care the opportunity through adoption of a ‘second chance’ to enjoy stability and security.

A number of children who are in long-term care grow up with little or no contact with their birth parents. Currently, it is very difficult for such children, if born to married parents, to be adopted.

These children often find themselves trapped in a legal limbo between intervention and adoption; they have been removed from the care of their parents for protection of their welfare, but cannot be adopted. Under the third provision, the Oireachtas will be enabled to legislate for the adoption of any child who has been in care for a substantial period of time and where it is deemed to be in the child’s best interests.

The fourth provision will address the current situation whereby a married couple cannot voluntarily place their child for adoption: it will ensure all children, from married and non-married couples, are eligible to be voluntarily placed for adoption.

The fifth provision will enable the introduction of legislation to provide that the best interests of the child shall be secured in any court proceedings concerning the adoption, guardianship or custody of, or access to, any child.

Conflicting court judgments have raised concerns about the ability to apply the ‘best interests of a child principle’ to a dispute between parents and a third party who has custody of the child.

The sixth provision will permit legislation to be introduced that will provide for the use of ‘soft information’ in the vetting of persons who have unsupervised access to children and vulnerable adults.

‘Soft information’ is information that has come to the attention of the State authorities (for example, the HSE or garda) which indicates a concern about the suitability of a person to have unsupervised access to children – for example, an allegation of abuse – but which falls short of a relevant conviction.

A 1998 High Court case has raised doubts about the constitutionality of legislation allowing for exchange of ‘soft information’ between relevant agencies.

In England, Ian Huntley’s conviction for the murder of Holly Wells and Jessica Chapman led to introduction of legislation allowing use of ‘soft information’ in vetting persons being recruited to work with children and vulnerable adults.

The collection and exchange of such will need to be regulated to ensure only those with a need to know have access to the information, and to ensure it is accurate.

The seventh provision will allow for introduction of legislation to create a zone of absolute or strict protection in relation to a child under 18.

In the area of sexual offences, this provision will enable the law to be restored to the position which existed before the Supreme Court decision in the CC case in May 2006.

This judgment required a change in law which has had the effect that a child in a statutory rape case can now be rigorously tested by skilled lawyers with a view to creating reasonable doubt as to the child’s consent.

By removing the defence of honest mistake in relation to age, the proposed amendment will ensure the issue of consent cannot be raised and consequent cross-examination of children in such cases will not be permitted.

The amendment respects the current constitutional position of the family, founded in marriage, as the basic unit of our society.

It does not significantly distort the existing constitutional provisions, and hence fears that this proposal will undermine the family are unfounded.

I believe the amendment is to be welcomed. The changes being proposed relate to issues that can be resolved only by constitutional change – they are necessary and require a referendum.

I hope that other changes to improve the lives of children, such as legislative reform, investment of resources and attitudinal change will flow from this referendum.

Childhood does not stand still. An entire generation of children has grown up since we first recognised the need for constitutional reform. We must learn from past controversies and act now to ensure children are protected and respected.

Geoffrey Shannon is a solicitor and author of Child Law (Thomson Round Hall, 2005). In 2006 he was appointed as a Special Rapporteur for Child Protection.

Wording row hits plans for child rights referendum.

Taoiseach Bertie Ahern’s hopes for a pre-election referendum on children’s rights appeared all but scuppered last night as the wording for the constitutional amendment drew fire from the opposition.

Children’s charities demanded that party politics be kept out of the debate as they insisted momentum towards the historic reform must not be lost.

Delays in finalising the wording and a mixed response to the proposed text make it highly unlikely the vote can be held before the General Election” despite many children’s rights groups declaring the constitutional move “momentous,”

Revealing the wording, Mr Ahern said the amendment would be a “watershed” in Irish life as he acknowledged the State may have failed to properly protect children in the past. “We will value and defend childhood to an extent never before attempted.

Those who sexually abuse children will be punished. No exceptions, no loopholes, no excuses,” he said. The seven-point constitutional change affirms the “natural and imprescriptible” rights of all children as it restates existing protection of parents.

The new article 42A(5) allows the State to remove the “honest belief” defence of a person claiming they did not realise the true age of a child they had sex with.

It also introduces a “one of absolute protection”under which it would be automatically criminal to have sex with a child.

The proposed changes will be offered in a single “take it or leave it” yes or no vote and will put the best interests of children at the heart of any court case on adoption, guardianship, custody or access.

Child protection agencies will also be allowed to collect and exchange “soft information” on those suspected of committing sexual abuse.

Children’s Minister Brian Lenihan said the contentious age of consent issue had been deliberately avoided and would be sorted out by the Dail after the election.

Fine Gael spokesman on justice Jim O’Keeffe accused the Taoiseach of failing to ensure consensus.

“The Government has chosen to paint this referendum on the very broad canvass of children”s rights, and suggests debating complicated issues in a very short timeframe, instead of focusing on issues that have all-party agreement and consensus,” he said.

Labour Senator Derek McDowell said he was “disappointed” by some aspects of the amendment which he found “vague and timid”.

By Shaun Connolly, Political Correspondent

Plebiscite would ‘improve’ rights of children.

The proposed children’s referendum would improve the rights enjoyed by children under the Constitution but safeguard the position of the family, the Government has insisted.

Publishing the referendum wording yesterday, Taoiseach Bertie Ahern said it had achieved a “remarkable and commendable” balance. “All of these elements will protect the rights of children.

None of them will undermine the role of parents or the constitutional safeguards for the family,” he said. If accepted, the wording would guarantee “the natural and imprescriptible rights of children” in cases where parents may fail in their duties towards them.

Furthermore, it would allow for the adoption of children born to married parents and allow for parents voluntarily to offer up a child for adoption.

The courts would also be required to “endeavour the best interests of the child in any legal proceedings, including divorce and separation cases.

“By putting this onus on to the State – both the courts and the legislature – to protect and continually develop the rights of children, we will ensure that Ireland remains to the forefront among our international peers,” he said.

Minister of State for Children Brian Lenihan, the lead architect of the wording, accepted that some found the need for greater constitutional protection for children “bewildering, if not a little threatening”.

That attitude was “not surprising” because the vast majority had the very good fortune to live in the security of happy families where children were cherished.

“That is why at the very outset I want to stress that this amendment in no way changes or undermines the constitutional position of the family based on marriage as the fundamental unit of our society,” he said.

The Government was “in total agreement” with the Supreme Court’s Mr Justice Adrian Hardiman who had said the welfare of the child “is best secured in his or her natural family”.

The intention of “strengthening the position of children” had to be balanced with other principles, including the duties of parents and “the regard in which the family is held by the Irish people”.

“The amendment makes no change in the circumstances where the State can intervene in the family.

The test for family failure remains unchanged.

“If this amendment is passed, it will be neither easier nor more difficult for a child to be taken into care,” said Mr Lenihan.

Rights contained in Article 40 of the Constitution covering equality and the vindication of personal rights did not need explicit or exhaustive restatement, he said.

Minister for Justice, Equality and Law Reform Michael McDowell said the referendum could be held during the lifetime of the next Oireachtas if the current Oireachtas passed the legislation ordering it to be held.

Under the 1994 Referendum Act, a referendum must be held no earlier than 30 days after legislation is passed by both Houses, but no later than 90.

Mr Lenihan was asked if a referendum could be held before the Dail was dissolved The Minister of State replied: “Clearly, if the Opposition agreed tomorrow to a referendum, there would be a referendum.

There has been an understandable call for a debate on this issue and I certainly don’t want to put pressure on anyone, but I hope the Opposition will come forward with their detailed responses in the next few days.

“They have known for some weeks of the substance of these proposals, but they were anxious to study the wording.

They now have that opportunity.” The referendum would grant the Oireachtas powers to create offences of absolute or strict liability for those in connection with a child under 18, although the wording does not limit its application to sexual offences.

“The age of consent has nothing to do with this referendum,” Mr Lenihan said.

“In fact, we deliberately formulated this proposal to ensure that the age of consent does not enter in any way.

This is about an age of protection. “Mark Hennessy, Political Correspondent, 2007 The Irish Times.

Broad support for wording, if not timing

Carl O’Brien, Social Affairs Correspondent

Children’s rights lobby groups have welcomed the Government’s wording for a referendum on children, although there is division within the sector over whether a vote should be held before or after the general election.

The Children’s Rights Alliance, a coalition of more than 80 non-governmental organisations, said that publication of the wording was a significant step in the right direction.

Its chief executive, Jillian van Turnhout, said: “This brings us closer to our goal of securing constitutional change that will make a real and positive difference to all children in Ireland.”

The alliance is to hold a consultation meeting with its member organisations to review the likely impact of the proposed wording.

It will then take a formal decision on whether to support the amendment. The ISPCC and the Dublin Rape Crisis Centre (DRCC), which also welcomed the wording, said it was vital that a referendum be held as soon as possible.

Ellen O’Malley-Dunlop, of the DRCC, appealed to all parties to agree to the referendum going ahead now. “Our children are at risk as the law stands. We must act now to ensure that there can be no exceptions, no loopholes and no excuses for sexual offences against children.”

However, children’s charity Barnardos and One in Four, which offers support to victims of sexual violence, said that sufficient time would need to be provided for debate and discussion.

The Ombudsman for Children, Emily Logan, also warned at the weekend about rushing into a referendum without adequate time to debate the issues. The chief executive of Barnardos, Fergus Finlay, said:

“We would urge all parties across the political spectrum to join together to put children first.

If it is decided not to proceed with a referendum in advance of the election, we would urge all political parties in the Dail to agree to a joint motion, which we have no doubt would be adopted unanimously, committing the Dail to reintroduce the legislation as soon as a new government is formed and to make speedy progress towards a referendum in the autumn.”

Solicitor and child law expert Geoffrey Shannon also welcomed the Government’s wording.

“These propositions will remove several roadblocks in the legal system that stand in the way of children having the best possible family life,” he said.

Mr Shannon said that the provision relating to laws on allowing the sharing of “soft information” would need safeguards to protect citizens’ civil liberties.

“Legislative safeguards will need to be developed to ensure that an individual is notified of the exchange of information and has an opportunity to challenge this information,” he said. Carl O’Brien, Social Affairs Correspondent, 2007 The Irish Times

Current wording of the Constitution……… Article 42. 5.

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Proposed wording for amendment to the Constitution* Article 42(A) 1.

The State acknowledges and affirms the natural and imprescriptible rights of all children.

2. 1o
In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2o
Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child, and where the best interests of the child so require.
3.
Provision may be made by law for the voluntary placement for adoption and the adoption of any child.
4.
Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.
5. 1o
Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.
2o
No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age.
3o
The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.
Article 42.5 will be repealed and replaced with the text above 2007  The Irish Times

Coalition rejects FG offer of deal on referendum.

The Government last night rejected Fine Gael’s offer to reach a pre-Christmas deal on stronger children’s rights in the Constitution, if it held a pre-election referendum on tougher child abuse laws.

In a speech in Dublin the Fine Gael leader Enda Kenny urged the Government not to go ahead with the wording it published on Monday that puts both issues together.

Instead, the Government should hold a pre-election referendum to ensure that adults can be prosecuted in all cases for having sex with minors, and that State agencies should be able to share information about suspected paedophiles.

“Take out the child protection issues.

Take out the issues dealing with the zone of protection and ‘soft’ information and let’s have a referendum on those issues,” Mr Kenny told a Fine Gael rally in west Dublin last night.

“And let’s have it as soon as possible so that the black hole which emerged last year [ when legislation making it a crime in all circumstances for an adult to have sex with a child was struck down] can be closed and closed quickly.

“This formula will allow the urgent measures to be put to the people and allow adequate time for the wider, more complex children’s rights elements to be considered and debated in depth,” he declared.

“After the election, no matter what the outcome, my party will commit to taking up these other issues with a view to reaching all-party agreement on a referendum before the end of the year,” said the Fine Gael leader.

However, Mr Kenny’s move was rejected quickly by the Minister of State for Children, Brian Lenihan, who insisted that the issues could, and should be, considered together.

He said he was “very glad” that the two main Opposition parties “had signed up” to supporting two of the provisions in the Constitutional amendment, and that they had not ruled out the others.

The full wording proposed by the Government, he said, should be carefully considered during a Second Stage debate in the Daiil. “I am very glad that they have refrained from criticising the other proposals, other than to call then very complex. ” I believe that they are not as complex as they believe they are,” Mr Lenihan told The Irish Times last night.

The Government has proposed a lengthy Constitutional amendment to acknowledge and affirm “the natural and imprescriptible rights of all children”.

Under it, children of married couples could be adopted for the first time, while the courts would be obliged to “endeavour to secure the best interests of the child” in all adoption, guardianship, custody and access cases.

Dealing with protecting children from sexual abuse, it proposes to allow laws covering the collection and exchange of information dealing with the “endangerment, sexual exploitation or sexual abuse, or risk thereof, of children”.

If accepted, the amendment would allow for the return of absolute and strict liability laws to the State’s legal canon, following the decision in the so-called “C” case of the Supreme Court last year. Earlier the leader of the Labour Party, Pat Rabbitte, said it was clear that the amendment could be “broken down” into two clear sections, dealing with child protection and child welfare.

“Does the Taoiseach accept that these are two easily distinguishable and separate issues? One issue relates to criminal law and the protection of children from sexual predators and the other relates to the welfare of children,” he told Taoiseach Bertie Ahern. However, Mr Lenihan dismissed the view that the issues are separate ones that should be considered in separate referendums: “I wonder about having two separate votes on children in one year.

It seems to me a remarkable proposal. “Mark Hennessy, Political Correspondent, 2007 The Irish Times

Last edited by Marie-Therese O’ Loughlin (2007-02-21 03:33:20)

 #131 2007-02-18 08:08:38 Marie-Therese O’ Loughlin
Re: From the CrookedLawyers.com Guestbook {2}

What was real reason for Bertie’s apology to State’s abuse victims?.

Sunday February 18th 2007

THE Commission to Inquire into Child Abuse, and the Redress Board, are winding down their operations and tidying up some of the loose ends connected with their work, including that of the Investigation Committee. This has borne the brunt of the inquiry process and is chaired by Judge Sean Ryan.

Last October, the Investigation Committee was asked by Noel Barry, of Right of Place, whether the commission “has completed taking evidence from survivors of industrial abuse and is the report due to be given to the Government in December of this year?”

A solicitor for the committee said it was open to the commission or the committee to hear evidence and that a small number of witnesses remained to be seen.

One such witness is the Taoiseach, who appeared before the commission on July 5 2004. Yet he has been excluded from being seen a second time.

On the basis of his testimony on that day it is clear that he seriously needs to “clarify particular issues”.

He told how the issue of making an apology arose. He said it came up at Cabinet from Micheal Martin, in March 1998, and that by the end of the year a decision had been made “to act” in respect of abuse.

This resulted in the Government Working Group to address abuse in industrial schools. The group, with several secretaries-general of departments, was unprecedented in its seniority and importance.

Bertie Ahern, in 1998 and later, gave the impression that this was motivated by his knowledge of the suffering of abused people and his encounters with them. It was central to his testimony before Sean Ryan.

The evidence, however, raises serious questions. The report of the working group, and the Taoiseach’s response to it, is primarily about legal issues involving Church and State. The victims of abuse feature as part of that larger legal issue.

In his testimony on July 5 2004, Ahern implied that the Government’s package of abuse legislation was a response to demands from victim organisations.

This was not the case. The whole programme – of legislation and its implementation pursued now for 10 years – came from the Government.

Though Bertie Ahern said he had been inspired by those who had been abused – represented by groups as well as individuals – this could not have been the case because none of the groups existed. Further, very few individuals had met either the Taoiseach or any of the relevant ministers before 1999.

In answer to a question, during his July 2004 appearance before the commission, about the actual apology given on May 11 1999, the Taoiseach said the recommendation for an apology was “not in the report”. It came, he said, “from the representatives of the various groups”.

Yet these groups did not exist at the time. They were formed after the apology and in response to it, on the basis that the abused now saw, and believed in good faith, that action was at last starting and would remedy their long-standing anguish.

But Bertie Ahern told the commission: “I remember how the apology came around very clearly, because, while all of the issues that we were talking about; professional help and caring and trying to assist these people back who had been badly dealt with by the State in our view, the hurt was not going to be removed unless you said sorry.

We made the decision. They felt that we owed them something.”

He went on, using this lyrical language, and vividly recalling a whole sequence of personal experiences that, he claimed, helped to set the agenda for the next few years.

His testimony was in conflict with evidence by Micheal Martin, Michael Woods and Tom Boland, the key figure in the whole creation of the strategy for dealing with the victims of abuse.

It was also in conflict with the facts surrounding the representative groups.

These are as follows:

The Alliance Victim Support Group was formed in May 1999 after the apology and as a direct result of that apology. Christine Buckley, of Dear Daughter fame, was originally part of this group, but later separated and formed the Aislinn Centre for Healing.

The Survivors of Child Abuse, known as SOCA, was formed in June 1999, following the apology, and led by Mick Waters. There was a split in February of the following year, and two SOCA organisations now exist.

Right of Place/Second Chance which then represented the Upton School inmates and is based in Cork, was formed in June 1999, after the apology, founded by Noel Barry.

Micheal Martin was asked by Mr Clarke, a barrister for the commission: “As I understand it the report from your working group became available in April 1999.

That report was then considered by the Cabinet sub-committee which you chaired. That Cabinet sub-committee recommended a number of measures to Government at that time, of which the apology was one, and indeed the establishment of the commission was another; is that correct?”

Martin replied: “That’s correct, yes.”

Bertie Ahern was not on that working group [chaired by Martin] nor on the sub-committee [chaired by Tanaiste, Mary Harney].

The actual recommendation in favour of an apology was reportedly contained on page five of the Report on Measures to Assist Victims of Childhood Sexual Abuse and went to the Government in April 1999, but passages on that page, dealing with the Government’s “pro-active” response to the abused, have been blanked out.

This, after all, was a sensitive strategic document.

The day of the Taoiseach’s appearance at the Abuse Commission, I wrote an article saying that the apology was “pivotal to the whole process” and listed the areas that needed to be addressed in response to the almost complete loss of confidence in the process, by then, among victims of abuse.

“The Taoiseach needs to change this perception and tell us what the State will do in legal terms, to meet the implied promises and undertakings that are now being given or made.

” This was in the context of the difficulties that had led to Judge Mary Laffoy’s resignation and her replacement by Judge Sean Ryan.

I wrote a further article published July 10, 2004, analysing the conflict of evidence between Bertie Ahern and the other ministers and officials.

The following Monday, John Kelly of Irish SOCA wrote to Bertie Ahern, telling him that Irish SOCA had asked Judge Sean Ryan to “recall him [Ahern] to the Commission and obtain clarification” about the apology.

The Taoiseach replied to John Kelly saying that the correspondence had been sent to the commission.

Nothing happened. After seeing the correspondence I wrote to the Taoiseach, who confirmed what had been said to Kelly.

This letter was dated May 17 2006, but referred to the transmission of correspondence in July 2004.

This was therefore long after any action might have been initiated by Judge Sean Ryan. The Taoiseach’s letter concluded: “Taoiseach has no objection to publication of the correspondence in question, if Mr Kelly agrees.”

I wrote twice to the commission, questioning its inaction in respect of the Taoiseach.

The commission refused to comment and clearly had set its face against any clarification of the Taoiseach’sposition.

This was a serious omission. It was made more serious due to one key issue.

When Bertie Ahern said that the apology and all that depended on it would have to be processed “wholeheartedly” he omitted a key problem for many abused people.

This was that they had been criminalised by the court processes, which had consigned them to the industrial schools – to all intents and purposes ‘prisons’ – and they had not been exonerated.

They cannot be exonerated.

If they were, it would lay the State open to unlimited further actions for damages, notwithstanding the processes already completed in respect of individual abused victims.

And in any case, if they have received compensation, they have sold their rights in the restrictive terms of acceptance.

Judge Sean Ryan, in a statement predating the hearing at which Ahern gave testimony, provided a postscript that is worth quoting here.

On May 7 2004, he said: “The Taoiseach’s apology of the 11th May 1999 marked a transformation in attitudes.

How did this change take place and why? It seems to us that this is a legitimate area of inquiry and we want to ask those who apologised to victims of abuse and who contributed to the redress fund – we want to ask them: ‘How did you come to apologise?'”

At the desk of the Taoiseach, this key question remains unanswered.  Bruce Arnold
Who will answer the Victims questions?

February 18, 2007

May we refer to the article “What was real reason for Bertie’s apology to States abuse victims” by Bruce Arnold in the Irish Independent dated 18th February 2007?

It should be quite clear to Bruce Arnold that the real reason for the Taoiseach’s apology is because it was spurred on by the High Court proceedings Delivered against the State and the Religious Orders before the Taoiseach’s apology of the 11th May 1999.

It is also quite clear from one of the Phase 3 public hearings transcripts that many victims of institutional child abuse have no confidence in the Ryan Commission.

Many of the survivors who made submissions to the Ryan Commission spoke strongly of their bitterness at having “a criminal record” as a result of their committal to a reformatory or industrial school thirty, forty or more years ago, some told us that they had even been refused employment on account of such record.

The Ryan Commission at that time failed to give such matters any detailed consideration in relation to the Criminal Records Page 83 Criminal records 8.13.

It was their wish for the record to be expunged in some way, so that no reference could or would be made to their confinement in an institution.

We do not know, for example, whether a person’s formal criminal record includes the details of his or her detention in an industrial or reformatory school.

We have been informed that there would normally have been a record in respect of children who committed offences as a result of which they were detained in a reformatory or industrial school, but that there ought not to be a criminal record in respect of a child placed in such an institution for care reasons.

We are not however in a position to arrive at any conclusions on this question.

The Ryan Commission is aware that the Children Act, 2001 provides in section 258 a type of rehabilitation.

From another source the present Minister of Justice said that the reason the forms with the Heading: Order of Detention was used after our trips to the District Courts was because the Court Service had no other types of forms on hand.

Obviously the Minister of Justice has never seen an Order of Detention.

These forms had only one obvious use and that use was to do with the detention of children in the institutions.

Albert King on behalf of Mary King. (victim of institutional child abuse).

Last edited by Marie-Therese O’ Loughlin (2007-02-20 13:37:01)

 #132 2007-02-21 03:37:35 Marie-Therese O’ Loughlin
Re: From the CrookedLawyers.com Guestbook 2 
Children’s rights charade.

 The grandstanding on the rights of children is nauseating.

This is stunt politics at its worst, a pretence of concern masking profound indifference, writes Vincent Browne .

A constitutional change that permits the adoption, in exceptional cases, of children from legal marriages is welcome. At present the Constitution disbars this.

Almost everything else in the proposed referendum is bogus. It is true there is no explicit acknowledgment of the rights of children in the Constitution.

It is absolutely not true that the Constitution, as it stands, does not protect the rights of children and does not give primacy to the rights of children in all cases, bar the ban on the adoption of children of legal marriages.

The Supreme Court has stated this again and again, most recently in the “baby Ann” case. There is an advantage in having this stated explicitly in the Constitution for there has been judicial uncertainty about the primacy of children’s rights in the past, but this is more ornamentation than substance.

It must be terrifically satisfying for politicians to be standing up for children even when demanding a constitutional change that will make almost no difference.

All the more so for politicians who stand for nothing else, oh, apart from the right to life – so long as it does not cost us anything, equal opportunity – provided we don’t insist on the means, road safety – subject to the divine right of everyone to own and drive a lethal instrument, ie a car, and, yes, happiness. The new feel-good comfort blanket.

For most of the children in this country what matters most to them is that they are brought up in a secure, loving environment, given a sense of self-worth and a sense of being equal citizens, have a real opportunity to realise their potential, have access to healthcare when they need it and adequate accommodation.

And they also need to be protected from violence and sex abuse. But the reality for hundreds of thousands of children is one of poverty, inequity, disrespect, low self-esteem, no realistic opportunity to achieve anything with their lives, consigned to die younger and experience worsening health during their lifetimes, poor education and, for many of them, violence and sexual abuse.

There is absolutely no resolution on the part of those now strutting their concern for children to do anything meaningful about this condition.

At the risk of being repetitive – actually, it is not a question of risk, it is a certainty, sorry! – the ESRI recently published a report called Work Incentives, Poverty, Welfare in Ireland.

This report had interesting data on children. This shows that the rate of income poverty for children in rich countries in 2000 was 2.4 in Denmark, 4.2 in Sweden, 10.2 in Germany, 12.4 in Greece, and 15.7 in Ireland.

Of the 26 rich countries only New Zealand, Italy, US and Mexico had a worse rate.

Now what does that say about our famed concern for children? Ah, it will be argued, that came out in 2004. Well, then, what about 2004? This was a European survey of the pre- enlargement EU – 15 states, plus Norway. Here out of the 16 states, we came half way down. Eighth?

Nope. Seventh? Nope. Fourth last? Nope, Third last? Yep. Yes, third last. Our rate was 22 , only Italy and Portugal were worse at 26 and 23 respectively.

We shared third from the bottom place with the UK. Brilliant. How could it be that a society that cares so much for the welfare of children, that is so protective of children, so committed to the welfare of children that it urgently wants to change its Constitution to copperfasten the welfare of children, that it comes bottom of the league when it comes to child poverty?

How often have we seen children being put into adults’ prisons? Ditto children suffering from mental illness – what facilities for these? What concern do these touchy-feely politicos have for children in trouble with the law? We recently introduced the novel idea of criminalising children at an early age through anti-social behaviour orders,

Asbos. What a ruse! And as for children being subject to sexual abuse, what do we do for them? We have a “Stay Safe” programme which we rarely bother to monitor and which we have discovered recently is not available in a quarter of schools. But aside from that, what do we do?

Again at the risk/certainty of being repetitive, that famous Savi report, which was funded by the Departments of Health and Justice some years ago, found that one in five women reported experiencing contact sexual abuse in childhood and 5.6 per cent reported having been raped in childhood.

It also reported that one in six men reported experiencing contact sexual abuse in childhood with 2.7 per cent of them having been raped in childhood. A whole raft of recommendations was made in this report, most of them ignored.

Instead we have a bit of strutting, remove the defence of honest mistake on unlawful carnal knowledge, and permit the circulation of “soft” information – information which nobody knows whether it is true or false – on “suspects”.

What a great idea and what wonders that will do for children. 2007 The Irish Times
Serious flaws in constitutional amendment on children’s rights undermine important issue?.

Bertie Ahern introduced, on Monday of this week, the Amendment of the Constitution Bill. He listed, selectively, children’s legislation, over the past 10 years.
He said: “The first provision of the new amendment is the central and guiding provision.
It says: ‘The State recognises and affirms the natural and imprescriptible rights of all children’.”
This is a powerful and concise statement of how the unique and precious condition of childhood is to be valued and protected in our society.
He got the wording wrong.

The “central and guiding provision” actually reads: “The State acknowledges and affirms the natural and imprescriptible rights of all children.”

He was also wrong in inferring that this was a new provision. It is a very old provision; in the Constitution for the past 70 years, where it is contained in the Article we are being invited now to change.

Since 1937 “due regard for the natural and imprescriptible rights of the child”, the concluding words of the old Article 42.5, have been the guiding provision.

They were always central.

They were also ignored.

Consistently, during that period, particularly in respect of the most vulnerable group of children – those from dysfunctional families who were put into the care of the Church, the State their seriously defective guarantor – the State ignored those “natural and imprescriptible rights”.

The State did so knowingly.

It is a shameful story, now well known.

It has a marginal place here, but place it does have, bearing on a major flaw in the Amendment, Article 42.1, the correct version of which – not Bertie Ahern’s – uses the word acknowledges. “Acknowledges” is a seriously inadequate word, capable of wide but imprecise and ineffective interpretation.

To protect children, as they have not been protected properly over the lifetime of the Constitution, we need a wording such as “The State will protect by law the natural and imprescriptible rights of children”.

If we have a problem with this, then we have a problem with the whole amendment. And of course we do have a problem.

We do not know what those “natural and imprescriptible” rights are. We have been acknowledging them, and having due regard for them, over the past 70 years.

At the same time we have abused and ignored them, in a long and shameful catalogue of criminal negligence and hypocrisy.

We are meddling with them in a confused and imprecise way.

The erratic process runs through the amendment hurriedly produced by the Government and by Brian Lenihan.

The confusion, which begins with the opening phrase already quoted, continues immediately with Article 42.2.1 and the reference to “exceptional cases” where there is “physical and moral” failure by parents in their duty to their children.

As everyone knows, this is a widespread problem, and growing.

The State has been less than practical in tackling it in any sensible or consistent fashion, has no definition of “exceptional” in respect of cases, has been an erratic “guardian of the common good” whatever that means, and at almost any period in the past, when it tried to “supply the place of the parents” did a botched job, as it has done now.

Why we should waste time with this extended, but approximate version of the previous Article 42.5 is baffling.

It is also baffling to have a second part to this section in Article 42.2.2 which duplicates the muddled right to intervene and puts it in the context of adoption. Constitutionally, it is sufficient to rely on Article 42.2.1 and 42.3, leaving out the superfluous section, 42.2.2 between them.

Article 42.3 will produce the necessary law anyway. It states: “Provision may be made by law for the voluntary placement for adoption and the adoption of any child.” “Any child” embraces children of married couples.

This is sufficient to take care of the Amendment up to that point. Furthermore, it renders redundant the next section, Article 42.4 which is needlessly repetitious about what the law will do and sanctimonious about “securing the best interests of the child” which are already covered in the first two sections.

Article 42.5.1 is in a different category altogether, and should carry a “dangerous substances” warning. It states: “Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.”

A significant part of what the State might see as, and legislate for, in the “endangerment, sexual exploitation or sexual abuse, or risk thereof” in our society is of children by children.

A person up to 18 is still a child. Sexually active children from the age of 12 on are endangering each other and exploiting each other sexually, possibly abusing each other as well. Equally, “children” may regard this as “natural”, even as a “natural right”, of adolescent conquest, widening their experience, and this could mean a 17-year-old male child with a 13-year-old female child.

Constitutionally, legislating against this widespread sexual exploration of their nature by the children in our society, along the lines prescribed, could involve intrusive investigation of the widespread internet communication among children, much of it cheeky but innocent of intent to abuse, yet a basis for prosecutions.

Has Brian Lenihan thought this through?

Do we want this unprescribed and ill-defined exchange of information about our children put into the Constitution?

The word ludicrous also applies to Article 42.5.2 and 42.5.3. This Constitutional Amendment, not thought out properly, is deeply hypocritical.

The Taoiseach’s words on it are self-serving and sentimental.

What does he mean, using Tony Blair language “culture of respect” and “high standards” in respect of the Constitution? Praise for Brian Lenihan is not deserved yet.

Finally, what the Taoiseach says about his apology of May 1999, in the light of what has happened since, would have been better left unsaid altogether.

Referendum on Children’s Right’s

Last year the Ministers for Health and Children and for Education, together with the HSE, fought a five-year-old boy with special needs for a record-breaking 68 days in the High Court.

As the State employed two full legal teams, one for the Ministers and the other for the HSE, and no expense was spared in terms of attending experts and witnesses against the child and his parents, the cost of the case will, when the accounts are done, be millions of euro.

The issue in the case was whether or not the boy should be allowed to continue to receive the ABA education that was clearly benefiting him and that his assessments recommended as appropriate, or whether he must transfer to the generic and inappropriate school placement that State policy dictated.

It is hard to reconcile the relentlessly neglectful Government and Ministers that fought this case with the same politicians I hear on the radio talking solicitously about “children’s rights”.

It may be of interest that the article that is most under threat of alteration in a so-called “children’s rights referendum” is the same Article 42.5 that was relied upon in my son Jamie’s High Court case to prove that the State must give help to a child with special needs and to the parents of the child.

In the case for Jamie’s right to education, the High Court accepted that Article 42.5 can mean that if a parent “fails”, not from malice or neglect but because his or her child’s special needs require more expertise, time, teamwork and/or strength than that parent has, then the State must help that child.

Is that interpretation of Article 42.5 one of the reasons that a Government which so often seeks to shirk its responsibilities to children with special needs wants to change the wording of the article? Of course, the electorate would not vote for a change that would disadvantage children with special needs, so the Government will try to persuade us that its amendments are pro-child.

I hope we will not be so gullible as to believe it. Kathy Sinnot MEP, European Parliament Inter-group for Family and Child Protection.

Last edited by Marie-Therese O’ Loughlin (2007-02-27 04:31:02)

#133 2007-02-21 12:03:38 catherinesara
Re: From the CrookedLawyers.com Guestbook {2}

It is merely copying from UK again,

If you look on www.fassit.co.uk and www.forced-adoption.com you will read the truth of how well it is doing over there too.

Also our government has brought over some UK trained SS and if you look carefully as to where they have been positioned ready for all this to happen. HSE.

Look at where they trained, etc.

It is merely a way of the state owning all children from birth and taking all decisions out of the hands of parents.

Make sure the mothers believe they are equal and have the children brainwashed and de-humanised in childcare.

Childcare taught to suit an agenda of course. The sheep merely follow without question because the money is rolling in and all people are kept busy working so no time to stop and think.

Hitler must be saying, “God I trained them well”

You have to look deep to fully see the plan but it is there.

It began in USA and then spread across to other countries.

All it takes for evil to succeed is that good people do nothing.!!!

  #134 2007-02-21 12:22:19 catherinesarRe: From the CrookedLawyers.com Guestbook {2}

There is only one thing to take note of here.

When they say they care, it means they don’t.

Evidence, my child was abused and was called a liar and so was I. We were demonised as women.

My child was 2 years old.

For years I wondered why all the lies and pretence to care. MONEY!!!!!!!!!!!!!

Yes, money and power. Violence creates millions and peace and joy and happiness do not.

Again, it is unthinkable to caring decent people, but every abused child is going to need to be “fixed”, so lots of money and jobs for the Boys in suits.

Real men are scarce these days. Our country is run by mummy’s boys who have no inner bonding.

Domestic violence I hear you say..OH AWFUL !!!! for children too.

Not to worry, the system will give the abuser access and allow the contamination of the next generation to keep the violence going.

The contamination remains in the child and is passed in the DNA.

So on and on it goes and is allowed to go on because the tax payer pays the bill to have the violence and the abuse continued.

It is like giving the state a whip and asking it to whip you hard and then harder.

Crazy.Yes.!

Would you want to throw all that handy money away, if it is lining the pockets of all agencies of the so called servants of the state???

So, we have Judges, lawyers, probation officers, psychologists, psychiatrists, councillors etc, all making a fortune from the misery of others.

It is encouraged by the legal system. Criminal law is for criminals.

Justice nowhere in sight.

One lawyer said to me, “you are looking for moral justice and it has not even been thought of yet in the old boys club”

All it takes for evil to succeed is that good people do nothing.!!!

 #135 2007-02-21 12:24:08 catherinesara
  Re: From the CrookedLawyers.com Guestbook {2}

As it will all take place in secret gestapo courts, we will not know the real truth anyway.

More gagging orders to choke the masses!

All it takes for evil to succeed is that good people do nothing.!!!

Re: From the CrookedLawyers.com Guestbook {2}

Yeah, Catherine Sara, I am remorseful to hear that somebody purportedly abused your little child.

Abuse should not transpire at any age in a child’s existence. Conversely so at the tender age of two that is so very disastrous without a doubt!

Vis-a-vis the Residential Institutions Redress Board, – to date, the government has given millions of Euro to compensate in various ways those who were as children abused in any way in the institutions.

Nonetheless, the veracity of the situation is that those who should  have been the authentic beneficiaries of these millions are quite emphatically not by any stretch of the imagination. It is appalling.

Cottage Industries have albeit grown up right the way through the country and those who are so-called working in them are the ones reaping the rewards.

To reiterate: Solicitors; Barristers; {sen/jun} Counsellors; Psychologists; Psychotherapists; Psychiatrists; Expert RIRB Panel members.

Also, the Commission to Inquire into Child Abuse Experts; Judges; {those instructed by Solicitor Firms who gave evidence will be trebly so salaried.} Counsel for the Religious.

The list is incessant.

Victims/survivors overall are receiving very miniscule award amounts, which would on average be comparable to a junior solicitors annual wage.

I AM SICK AND TIRED OF PEOPLE REPROVING THOSE WHO WERE IN INSTITUTIONS IN THE PAST OF RIPPING OFF THE TAX PAYER.

As susceptible children of six years and upwards of sixteen/eighteen, we worked ourselves to the bones without any remuneration in the industrial schools, of which I MIGHT ADD – WERE ABOLISHED IN GREAT BRITAIN IN 1933, yet in Ireland they were still up and running forty years later.

Magdalen Laundries then became the next port of call for countless Victims/survivors.

People in general can identify with the privation, adversity band hard labour young girls of sixteen and older had to endure in the laundries because of the contemporary Magdalen {e} film, but there have been no films made of children under the age of sixteen in the institutions who had to do analogous work.

I once lived in an Irish Hostel in London for young girls.

In order for the smooth closing down of this hostel, the Daughters of Charity [butterfly nuns] to give them their proper title = Sisters of St Vincent-De-Paul, Congregation shrewdly brought in a n unfamiliar Sister with specific training skills for the job to hand

It was patently clear to the helpless girls  who had no homes what the secreted unsealed agenda was; she was there to do the polluted grimy job.

IN OTHER WORDS – TO GET RID OF US.

It was a case of ‘a new broom sweeps clean‘.

The new sister who came did not hesitate in giving the girls’ notice of eviction.

WITH  THE SAME RESPECT VICTIMS/SURVIVORS ARE COPPING ON TO NOT DISSIMILIAR TACTICS BEING EMPLOYED ALL ACROSS THE BOARD

The “winding down” methodology is uncannily so akin in nature to that which was employed to get rid of homeless girls

Victims/survivors are noticing also particularly the distance the professionals [mentioned above] are creating; they see the manoeuvres in place in their personal practices.

The new innocent “brooms” employed at their offices – at the outset of both the RIRB AND THE CICA HAD NOTBEEN IN EXISTENCE, were not even created , some would have still been in nappies.

Therefore, they are not aware of what it is they have to do to sweep.

The employers  simply pay them to do a job.

The wheel keeps on turning.

THE RIRB, THE CICA HAS MADE SOME OF THEM MULTI-MILLIONAIRES.

WE DETERMINEDLY SO FOUGHT TO KEEP OUR LEGAL TEAMS WHEN IT WAS SUGGESTED AT THE VERY EARLY STAGES THAT A TEAM BE APPOINTED.

Is this the kind of pay back we should be now receiving.

Some of them cannot wait to shut the doors permanently in our faces.

OH, WELL, IF YOU ARE NOT HAPPY FIND A NEW SOLICITOR IS JUST NOT GOOD ENOUGH.

Shame on any solicitor who says such to any victim/survivor of institutional abuse. Marie-Therese O’ Loughlin

Last edited by Marie-Therese O’ Loughlin (2007-02-22 05:31:12)

 #137 2007-02-22 04:59:31 Marie-Therese O’ LoughlinRe: From the CrookedLawyers.com Guestbook {2}

Warning of childcare ‘recruitment crisis’.

Proposed amendments to the Constitution concerning the exchange of information about suspected child abusers, could create a “recruitment crisis” in the area of childcare, the president of Irish Association of Social Care Workers (IASCW) has warned.

Addressing more than 120 delegates at the association’s annual conference in Limerick yesterday, Phil McFadden said his organisation welcomed measures that would strengthen child protection, however he expressed concern about some of the proposed measures.

“The organisation is concerned that the proposals to introduce the use of ‘soft information’ in the vetting process, would allow information about accusation

“We believe this could have the unintended effect of undermining essential services to vulnerable children, as well as depriving social care staff of the right to their good name,” he added. Mr McFadden said introducing unproven allegations in the vetting process for social care workers could leave innocent staff unprotected against false allegations, which could have a “devastating effect” on their careers, incomes and standing in society.

“Our fear is this could discourage many high quality social care professionals from seeking work or continuing to work in childcare.

This could have a devastating impact by creating a recruitment crisis in a sector, where it is already difficult to recruit and retain staff,” he added. Mr McFadden said the association was available to discuss its concerns with the Government.

Addressing delegates last night, Minister of State for Children Brian Lenihan said it was a matter of grave concern that the Constitution currently does not permit the exchange of so called “soft information” about child abusers.

“It is a matter of grave concern to the Government that the Constitution as it stands inhibits the power of the Oireachtas to provide for the exchange of information between the Gardaí, social services and prospective employers of people working with children,” Mr Lenihan said.

“This means that it is difficult to warn employers about people who have been suspected of, but not charged with, sexual misconduct relating to children.

This is clearly an imbalance in our Constitution, one which this present amendment will set right,” he added.

The IASCW yesterday welcomed plans to regulate the occupation of social care workers under the Health and Social Care Professionals Act 2005.

About 14,000 practitioners in 12 health and social care professions will be subject to regulation. Kathryn Hayes

We don’t need a referendum.

Friday February 23rd 2007

So, the cognoscenti have informed the nation that the Constitution needs to be altered because it does not adequately recognise or protect the rights of children.

How could it be that our Constitution had not recognised the fundamental rights of such a large group of persons and that we had to be lately informed of this great lacuna in our most basic law by a few particular interest groups, and some individuals within the social or legal professions?

Not surprisingly, there is another much more reasonable explanation for the call for constitutional change.

The campaigners for “children’s rights” do not wish simply to make clear that children enjoy the rights of all persons under the Constitution, for that is already clear.

No, they wish to alter the Constitution so as to reduce the recognition given to the natural and primary authority and duty of parents in respect of their children. However, it is not nor can it ever be the right of a parent, to act against his/her child’s interests, so to suggest a possible conflict of interests is a fallacy.

The Irish Constitution does not confer human rights on the person.

The Constitution, having a natural law basis, recognises every human being/person, as having fundamental rights above and beyond the influence of that of man-made (positive) law, solely due to the fact of each one’s humanity.

This guards against political/ideological arbitrariness – the hallmark of the current campaign.

The Constitution also recognises that children are best cared for, protected and controlled by their parents, within the natural family.

Children cannot, by their very nature, exercise their own rights – so who is to do so on their behalf?

The natural and best persons to do so are their father and mother.

As Hardiman J. said, in last November’s Supreme Court judgment in N v HSE (the Baby Ann case): “A presumptive view the [sic] children should be nurtured by their parents is, in my view, itself a child centred one and the alternative view, calling itself ‘child centred’ because it is prepared more easily to dispense with the rights and duties of parents must guard against the possibility that in real individual cases it may become merely a proxy for the views of social workers or other third parties.”

The Constitution also fully protects a child’s fundamental rights where his or her parents fail to protect their child’s interests, welfare by the recognition of the State’s duty to intervene in such exceptional circumstances.

“Children’s rights” campaigners argue that the Constitution is incompatible with the UN Convention on the Rights of the Child (CRC).

However, much of this Convention is positivist in nature, which is an approach to human rights that is not in keeping with the natural law philosophy, values and tradition, upon which Ireland’s Constitution, its laws, and its recognition of human rights, are based.

The CRC does not give adequate or proper recognition to the natural institution of the family, thereby depriving a child of the greatest assurance of its rights and welfare.

Ms Justice McGuinness, one of the five Supreme Court judges in the Baby Ann case, agreed that the child should be returned to her natural parents only with “reluctance” and “regret”.

McGuinness J, has been for some years one of the major campaigners for the change to the family/parental provisions of the Constitution, which, she believed, if adopted, would have allowed her to rule that Baby Ann remain with the prospective adopters and not be returned to her natural parents.

Ms Justice McGuinness criticised the special recognition of the marital family in our Constitution in this regard, yet, the other judgments of the Court make it clear that the child was being returned because it was in her best interests to do so.

Removal of the constitutional recognition of the parents’ natural authority in this regard could mean that employees of State agencies make crucial health and welfare decisions in place of a child’s parents.

Is this what we want, or do we want the Constitution to continue to reflect the truth of human nature and relationships by recognising the human rights of all persons, while also recognising that those of children are generally best exercised by his/her parents?

To continue to reflect that – as in the words of Hardiman J. in Baby Ann: “Though selflessness and devotion towards children may easily be found in other persons, it is the experience of mankind over millennia that they are very generally found in natural parents, in a form so disinterested that in the event of conflict the interest of the child will usually be preferred.”

Government’s goals on childcare law are unclear.

Many of the Government’s stated objectives in its proposed constitutional amendments affecting the rights of children have already been addressed, writes Dervla Browne .

It is difficult to understand what the Government hopes to achieve by paragraphs 1 to 4 of the proposed new Article 42A of the Constitution.

It is not true to say that the proposals would, for the first time, allow adoption of children of a marriage.

Since the enactment of the Adoption Act, 1988, long-term foster carers have been able to apply to adopt a child in their care, whether or not the child’s parents are married.

The grounds for so doing are similar to those set out in the proposed wording of Article 42A (paragraph 2.2) but also include a requirement to prove that the failure amounts to abandonment and is likely to continue until the child reaches 18, when adoption is no longer a possibility.

One could be forgiven for believing that there is no present requirement on the courts, in dealing with matters such as adoption or custody, to place “the best interests of the child” at the forefront of its considerations.

But this is already required by the Guardianship of Infants Act, 1964, and in the adoption legislation.

Indeed the statement in proposed Article 42A 1, that “the State shall vindicate the natural and imprescriptible rights of the child”, creates the impression that at present there is no such duty and there are no such rights.

But as far back as 1980, in the case of G vs An Bord Uchtála, Mr Justice Brian Walsh stated that all children had the right to have their welfare and health guarded.

These same natural and imprescriptible rights are referred to in the relevant childcare legislation.

The only provision not already contained in our legislation is that proposed in paragraph 3 of Article 42A, which enables any child to be voluntarily placed for adoption. This would enable the Oireachtas to enact legislation that would allow married parents to agree to their child being adopted.

If such legislation was enacted it would undoubtedly assist where married parents of a child in long-term care could consent to the adoption, rather than the court having to decide. Otherwise it would appear to be of little relevance.

Voluntary placements of Irish children have decreased dramatically in recent years.

There were 109 placements through adoption societies in 1995. This dropped to just 26 in 2004.

If more and more single mothers no longer wish to place their babies for adoption, it is even more improbable that couples who have committed to marriage would wish to do so.

It is certainly the case that children born into a married family have rights expressly stated in Article 42 of the Constitution to grow up in and be educated by that family.

The proposed amendments do not clearly state that children born outside marriage have the same right.

Some commentators have stated that the present difficulty with the Constitution is that the courts are asked to balance parental rights against the rights of the children.

Perhaps by inserting Article 42A the Government may intend to in some way “correct” that balance.

If so, the proposed wording does not appear to achieve this result. In any event it may be that this is the wrong view to take of the position of children in the Constitution. In the “baby Ann” case Mr Justice Adrian Hardiman specifically referred to “public airings of misapprehensions relating to the position of children in the Constitution”. He thought it was untrue to say that the Constitution puts the rights of parents first and those of children second.

“The Constitution does not prefer parents to children.

The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights,” he said. He went on to acknowledge that the Constitution allowed State intervention where the parents had failed in their duty.

He said, “a presumptive view that children should be nurtured by their parents is in my view itself a child-centred one”.

The underlying ethos of the Irish system of childcare is to reunify the family where possible. The emphasis is on continuing the bond between parents and child after the child is in care.

Foster care, not adoption, is the alternative where it is not possible for the child to stay at home. Intervention by the State in family life giving rise to permanent termination of family ties is severely limited.

Even where the child is not a child of marriage there is an acknowledgment of the right of the child to grow up knowing his or her family.

In contrast, in the United Kingdom, applications are made on a regular basis to free children in care for adoption on the basis that this is in their best interests.

In the year ending March 2006, 3,700 children were adopted from care. Sixty-four per cent of these children were aged 1-4 years. The aim in the UK is to free increasing numbers of children in care for adoption.

The ethos in the English system was put in sharp focus by the case of London Borough of Sutton vs RM. In 2002 the High Court was asked to return three children to the care of the London Borough of Sutton after their married parents had brought them to Ireland.

Although she had a drug addiction the mother was receiving treatment, and had been a good carer of her children when well.

Even though psychiatric and social work reports all stated that the children had very strong family links and, in particular, not withstanding their mother’s drug addiction, they had a strong attachment to her, the London Borough of Sutton openly acknowledged that the two younger children had been advertised as being available for adoption.

The criteria for making a decision about their adoption in England would fall far short of the requirements under Irish law. The High Court refused to order the return of the children, relying on the possibility of their adoption as one of the reasons for the refusal.

Similarly, a cursory look at the jurisprudence of the European Court of Human Rights demonstrates the widespread practice in other European countries of freeing children in care for adoption.

There is another difference between the Irish system and that in many other countries. There is no legal basis for open adoption in this country. Adoption in the Irish context is the permanent termination of parental rights.

Even if a parent has had ongoing access to a child in long-term care, and has had some meaningful involvement in making decisions about his or her welfare, the adoption order will of necessity bring this to an end.

After adoption, natural parents cannot apply for and obtain enforceable orders for access to their children, even where they have previously exercised access to their children on an ongoing basis. This has been the subject of comment by the Adoption Board in its annual report.

The vast majority of children in care come from poor and deprived backgrounds.

Poverty is one of the highest indicators in children’s mental health problems. In considering whether or not to lower the threshold for State intervention, we must acknowledge that it is these same children who will most likely be affected. Surely we should ensure that lack of resources can never be a reason why children are placed in care, perhaps never to return home.

Parents who need assistance from the health services must be secure in the knowledge that everyone is working with the aim of their child returning home.

The wishes of children in disputes about where they will live should not be influenced by the socio-economic differences between the two families.

It may be that a constitutional amendment could be used as a weapon to coerce the State to resource children in need or to litigate on behalf of children who are impoverished and marginalised.

But it is unlikely that this proposed amendment, as currently worded, constitutes such a weapon… Dervla Browne SC specialises in family and adoption law…………………………………………………………………..  2007 The Irish Times  Lynda  Finneran, NCR, Dublin 1 © Irish Independent

Last edited by Marie-Therese O’ Loughlin (2007-02-24 12:41:04)

Re: From the CrookedLawyers.com Guestbook {2}
Doing nothing is not an option
February 22, 2007
It’s quite clear that the Minister for Education & Science Mary Hanafin T.D has a lot to answer for she has faltered and failed to give support and commitment she should have done.

The Minister for Education & Science Mary Hanafin T.D said Members of the Oieachtas Committee on Education have been assured that awards by the Redress Board were inline of the High Court, and that it had an obligation to do this.

This has simply not happened.

By comparison with court awards for sexual abuse, the offers and handouts from the Redress Board have been derisory.

We have a fast track method of redress in which the actual survivor never gets to present his/her case in reality and in the main is left with only a vague description as to what the solicitor presented or the Redress Board accepted as evidence as to his/her suffering.

We have a Redress Board composed of personnel that haven’t the remotest idea of what an Industrial or Reformatory School was or is like and they haven’t the slightest bit of intelligence in how to get their heads around the medical reports so they deliberately demoralize the reports and mark down the scores to award pittance.

It’s quite clear that the Redress Board and the Ryan Commission has failed many victims of institutional child abuse with their lack of response in relation to their concerns and to their submissions forwarded to the Ryan Commission.

There are many shortcomings.

There have been breaches of their Constitutional Rights to bodily integrity.

Their right to protection against unjust attacks on minors, which the new proposed constitutional amendment on Child Protection is designed to strengthen, was not respected.

They were deprived of their personal liberty and this was not done in accordance with law.

They were not given a basic minimum education, nor proper moral, intellectual and social guidance.

They were not fed, clothed or educated.

Their parents were not respected nor helped to provide a family life for their children who were taken from them.

This involved meddling in the natural and imprescriptible rights of the children sent to industrial schools.

In their recent attempt to rectify these wrong doings, the Religious Orders, the Department of Education and Science, the Department of Health and Children, Ireland and the Attorney General, have all failed to make discovery of documents, notes, records or memoranda in their possession, thus undermining any possibility of abuse victims getting true justice.

This particularly applies to the orders for detention and the case history files of victims, admission records and discharge records.

Industrial School attendance records and other documents are missing or have deliberately been lost..

So too have details of children being put into care, copies of court proceedings and correspondence from next of kin.

Medical records are missing, including dental records, hospital attendance and inspections by doctors of institutions.

Not surprisingly, details of complaints against any member of the Religious Orders, lay staff, child minders or gardeners, regarding allegations of abuse are missing.

Similarly, complaints in relation to corporal punishment have not been made available and in most cases have not been preserved.

There has not been any submission to the Child Abuse Commission, nor any fully enforced request for this, of accounts of money paid by the State to the Religious Orders for work in institutions and how it was dispersed.

The Ryan Commission has failed to grasp that between the 1920s and 1980s, an estimated 150,000 children were sent to Ireland’s notorious institutions, where many suffered horrific abuse and neglect at the hands of the Religious Orders.

Hard manual labour replaced education and substantial numbers of abused children left the institutions unable to read or write.

Since the Redress Board and the Ryan Commission inception, an estimated 75 victims of institutional child abuse have taken their own lives.

This is a short summary of just some of the wrongs, indignities and illegalities we, abused people, have faced.

It seems that the State’s so-called remedy is drawing to a conclusion.

Many of us regard this as a travesty of justice and totally disdainful of our right.

We view the abuse as the consequence of human rights violations perpetrated by church and state.

Human rights are about giving each individual dignity, fairness, equality and decent treatment, particularly by authorities.

The main purpose of human rights culture and framework in law is to give everybody the ability to challenge unfair treatment by government protection from abuse of power.

Doing nothing is not an option.

Albert King on behalf of Mary King. (victim of institutional child abuse.)

Last edited by Marie-Therese O’ Loughlin (2007-02-22 05:27:19)

#139 2007-02-27 04:38:33 Marie-Therese O’ Loughlin
Re: From the CrookedLawyers.com Guestbook {2Rape crisis group appeals for early referendum.
The Dublin Rape Crisis Centre (DRCC) has called for the proposed children’s rights referendum to be held on the same day as the general election to prevent it being “lost”.

It’s the latest of several appeals to the Government to press ahead with the referendum despite growing concerns that the full impact of extending children’s rights has not been fully considered.

The vast majority of children’s rights advocates have called for an immediate referendum to restore Ireland’s statutory rape regime which collapsed in the wake of the Supreme Court decision in the ‘CC’ case.

But some legal experts have warned that the impact of the referendum on children’s rights is far from certain and controversial provisions should not be placed before the electorate at the same time as the child protection provisions.

Ellen O’Malley-Dunlop, the DRCC’s Chief Executive said “Of course it is a very serious matter whenever a proposed constitutional amendment is put before the people and we do want to get it as right as is possible.

However there seems to be an underestimation of the Irish electorate’s ability to understand the issues.” Last week, delegates at a legal conference were warned that the proposed amendment has the potential to make the position of some children in our society worse.

The conference, attended by judges and lawyers, was also told that poor parents, very young parents and parents with disabilities could find it harder to retain the care of their children if a court is required to secure the “best interests” of the child in all adoption, guardianship, custody or access cases.

Legal uncertainties about the potentially ‘radical’ interpretation and impact of some provisions of the children’s rights amendments were raised at the conference at the Law School in Trinity College, Dublin.

Regius Professor of Laws at Trinity William Binchy said that the proposed amendment has many desireable goals, but warned that the difficulty was that it may well go further than these goals. Dearbhail McDonald

#140 2007-02-28 03:15:31 Marie-Therese O’ LoughliRe: From the CrookedLawyers.com Guestbook {2}

Nuns fight claim they ignored mother’s wishes on adoptions

Wednesday February 28th 2007

A Religious order has asked the High Court to stop a woman’s legal battle over alleged inhumane treatment in the order’s home for unmarried mothers.

The woman, who is now in her 70s, claims that the Good Shepherd Sisters facilitated the adoption of her two sons without her consent and deprived her of the opportunity to parent her boys and their elder sister.

Described as virtually “a recluse” who is afraid of the outside world, the woman claims she spent up to 20 years in homes run by the order.

The woman alleges that she gave birth to a girl who was taken from her without her consent and placed with a relative. She later had two sons who were adopted without her consent, she claims.

She says that her name was changed at the home.

She was compelled to work long hours without pay; she was put to bed at 7pm in a room with barred windows.

Because she was illiterate, she could not write home and had no visitors, she claims. Because of her experiences in the homes, the woman claims, she became afraid of the outside world and lives virtually as a recluse.

Because of alleged severe trauma, the woman alleges, she could not bring court proceedings against the order, the North Eastern Health Board and various State defendants until 2004.

Yesterday was the start of the case brought by the Congregation of Our Lady of Charity – the Good Shepherd Sisters – for an order halting the woman’s action on grounds of delay and unspecific claims. A similar application has been brought by the North Eastern Health Board.

The hearing continues today. Ann O’ Loughlin  Irish Independent

Woman claims no consent for adoptions.

A religious order has asked the High Court to halt a case against it by a woman who alleges she was badly treated in unmarried mother homes run by the order and that it facilitated the adoption without her consent of two of her three children.

The woman, now in her 70s and described as virtually “a recluse”, claims she spent up to 20 years in homes run by the Good Shepherd sisters, where her name was changed, she was compelled to work long hours without pay, put to bed at 7pm nightly in a room with barred windows and was subject to physical neglect and inhuman and degrading treatment.

She claims that because she was illiterate she could not write home and she had no visitors.

She was also not permitted to see her mother when she came to the home on one occasion.

She says when an invitation came for her to attend her daughter’s wedding when the girl was aged 20, a nun had torn it up in front of her.

She alleges she had jumped through a window to escape and did later manage to meet her daughter, who had been reared by a relative from birth, for the first time.

The woman also alleges that a son born to her and placed for adoption with a couple without her consent was in his 30s when she first met him.

She had not met her third child, also a son and also allegedly adopted without her consent, but now had regular contact with her daughter and her first-born son.

The court heard the woman came from a large family, her father died when she was a teenager and she left school at an early age.

As a result of becoming pregnant outside marriage while working as a chambermaid, she claims she was brought by a health board social worker to the Ard Mhuire unmarried mothers’ home run by the Good Shepherd sisters in Dunboyne, Co Meath.

She remained there until she was brought to hospital to have her baby, after which she was taken to another of the order’s homes.

It is alleged the woman gave birth to a daughter who was taken from her without her consent and placed with a relative. She claims that when she gave birth later to a son, she had kept him with her for two years in a Good Shepherd home but then he was adopted without her consent.

A third child, another boy, was also adopted without her consent. She also claims that her mother took her out of the home for a time during which she went to England and was raped.

She claims she was returned after that by her mother for periods to homes run by the Good Shepherd sisters and remained with them until 1974. Because of her experiences in the homes, the woman claims she became afraid of the outside world and was unable to work or form relationships.

A psychologist who assessed her had expressed the view the woman would have presented differently if she had reared her children.

Because of alleged severe trauma, the woman claims she was effectively disabled from bringing court proceedings against the order, the North Eastern Health Board and various State defendants until 2004.

Details of the woman’s claim were outlined yesterday at the opening before Mr Justice Iarfhlaith O’Neill of an application by the Congregation of

Our Lady of Charity – the Good Shepherd sisters – for an order halting the woman’s action on grounds of delay and lack of specific detail of the claims made.

A similar application has been brought by the North Eastern Health Board and, the judge was told, the State defendants may move such an application later.

The Good Shepherd sisters say their right to a fair hearing has been prejudiced by the woman’s delay in bringing her claim.

They also claim the woman’s claims are “garbled” and “riddled with inconsistencies”.

A representative of the sisters said in an affidavit that the claims had to be seen in the context of a time when families here were unwilling to care for daughters who were pregnant outside marriage.

Before the 1952 Adoption Act, children born out of wedlock were regularly sent to the US……………………By Mary Carolan 2007 The Irish Times

Last edited by Marie-Therese O’ Loughlin (2007-02-28 05:11:19)

 #141 2007-03-02 11:51:33 Marie-Therese O’ LoughlinRe: From the CrookedLawyers.com Guestbook {2}

May we refer to the article “No right to preach at us” by Michael Martin dated 1st March 2007.

We totally agree with Michael Martins response to John Cooney’s article in the Irish Independent dated 24th February 2007 especially his last paragraph “If these religious and political forum members want to find out what are the root causes of problems in society today look no further than the examples of Church cover-ups of abuse and the endemic corruption in politics right to the highest levels.”

However, in the aftermath of the resignation of Justice Mary Laffoy in September 2003 Michael Martin should also look at the cover-ups when the Government appointed Mr. Sean Ryan as Chairperson designate and requested him to conduct an independent review of the Commission.

Mr. Sean Ryan forwarded a report to the Government in which he suggested certain amendments to the legislation governing the operation of the Commission which the Government accepted at the end of 2003.

There is a great deal of correspondence arising from this delivered to various Government Departments and Solicitors from many victims of institutional child abuse in relation to the corrupt Ryan Commission and the corrupt Redress Board.

It’s quite clear that victims of institutional child abuse are usually very good at putting up with inconvenience and impediment.

They make allowances for awkward factors.

They make excuses for uncooperative people.

They stoically accept a less than ideal situation and they grin and bear adversity with great grace.

Right now, though, they are not in the mood to be mucked about.

Nor are they prepared to sit back quietly and meekly.

Something needs to happen in relation to the corrupt Ryan Commission and the corrupt Redress Board.

Doing nothing is not an option.

Albert King on behalf of Mary King. (victim of institutional child abuse)

Last edited by Marie-Therese O’ Loughlin (2007-03-22 16:46:56)

Re: From the CrookedLawyers.com Guestbook {2}

Will any amendment really support children?

Yet again, our children have managed to illustrate the annoying capacity not to do what we say, but to do what we do.

The report on the state of the nation’s children shows that our children provide us with faithful mirrors of our own failings.

Just like adults, some of our young people are apparently deeply happy and at the same time, misusing alcohol and drugs at a record rate.

We know that there is something askew here, but finding solutions demands a degree of soul-searching that many of us balk at. Our avowed commitment to children is not always translated into actions to improve their lives.

Care needs to be taken that the proposed children’s rights amendment does not fall into the category of worthy sentiment as a substitute for real action.

As far back as 1919, the Democratic Programme of the First Dáil affirmed that it was the first duty of the Republic “to make provision for the physical, mental and spiritual well-being of the children, to secure that no child shall suffer hunger or cold from lack of food or clothing or shelter, that all shall be provided with the means and facilities requisite for their proper education and training as citizens of a free and Gaelic Ireland”.

Of course, after 1919 children continued to leave school at 12 or 14. Some blame the failure to translate rhetoric about the welfare of children into action on the sea-change between 1919 and the framing of the 1937 Constitution.

In the Constitution, the emphasis seems to be less on individual rights of family members than on protecting the family from unwarranted interference by the State.

Some, like Mrs Justice Catherine McGuinness when writing about the Kilkenny incest investigation, suggested that the very high emphasis on the rights of the family may have been consciously or unconsciously interpreted as giving a higher value to the rights of parents than to the rights of children. Yet is that true? Does the fault lie in the family-focused 1937 Constitution?

After all, the preamble to the 1989 UN Convention on the Rights of the Child is just as family focused:

“The family as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.”

The fault lies more in a culture that does not truly value children. Article 42.5 allows the State to intervene in “exceptional cases” where the parents fail in their duty for “physical or moral reasons”.

This gave the State a mandate both in Kilkenny incest case and the McColgan case. How much more “exceptional” can you get than a nine-year-old girl with a broken nose sitting smiling in a hospital bed, because the injury had temporarily placed her beyond reach of her vicious and depraved father, and she thought she was now safe?

Instead, Sophia McColgan was to be returned to the hell that she, her siblings and her mother inhabited.

The review group that examined the failures in the McColgan case acknowledged that that the north western health board did have the legal means at its disposal to take action to protect the children.

The problem was that the management had failed to co-ordinate its response to the evidence of abuse, did not marshal all the information and did not properly brief lawyers. In short, the mandate was there, but the will to enforce it was not. We go on failing children.

Certainly, things have improved, and no one could doubt the commitment and work ethic of Brian Lenihan as Minister of State with responsibility for children.

However, glaring gaps remain. During the week, I attended a rally on suicide held by 3Ts (Turning The Tide of Suicide).

A litany of broken promises regarding the provision of psychiatric beds for adolescents was recited.

The last such promise was that four 20-bed units would be in operation by the end of 2007.

As Prof Kevin Malone said, 2010 is probably a better estimate of when they will be opened.

Meanwhile, children continue to be inappropriately placed in adult wards.

One mother told a heartbreaking story of losing her 15-year-old son, an only child, to suicide. At one stage shortly before his death, he spent a week in a locked adult ward, and even after he moved to an open ward, he found hospital intolerable. Suicide is a complex and multi-faceted phenomenon, and it would be facile to blame his death on this.

However, it is not facile to state the obvious: that young people will fare better in units designed for their needs, and that the stigma attached to going into hospital for treatment for mental illness would be considerably reduced if such units existed.

he proposed changes to the Constitution fall loosely into two categories, that of child protection against abuse of various kinds, and the State’s ability to intervene when a family fails a child or children. How will the proposed amendments help in situations where the State fails children?

There are many, many situations where the family, far from being dysfunctional, is fighting fiercely to secure the rights of a child, and the State is resisting all the way.

The fight to vindicate the rights of children with disabilities to an education springs to mind.

Even in extreme cases, where families are unable to provide for children, sometimes it is as a result of prolonged failure by the State to resource support services for families.

Will this amendment allow greater pressure to be placed on the State to provide adequate services? Some campaigners for children’s rights have very understandably expressed frustration at those who urge caution and greater debate.

We have been looking for a referendum on children’s rights since 1993, they say.

However, it is important that a laudable urge to secure children’s rights does not stifle debate.

It is easier to change a constitution than to change a culture. As we have seen before, noble sentiments in a constitution do not always translate into action for the welfare of our children.

The Irish Times.  March 2007

Kitty Holland

Sat, Mar 03, 2007

No political party is serious about creating a society which puts the rights of children first, the outgoing chief executive of the Irish Society for the Prevention of Cruelty to Children (ISPCC) has said.

Paul Gilligan, in an interview with The Irish Timesto announce his departure from the charity, said too much of the political focus over the past seven years – the time he has been chief executive – has been on economic progress.

Mr Gilligan leaves his post in June to become chief executive of St Patrick’s psychiatric hospital in Dublin.

“Economic growth has been wonderful of course but none of the political parties is talking about increasing taxes to increase investment in children. None is talking about a society which puts children’s rights first, regardless of the costs.

“The Scandinavian countries come at the issue from a way we are not even discussing. They asked: ‘How do we create a society which values children?’

And then looked at what needed to be done to lift all children out of poverty, even if it meant increasing social welfare payments to parents who didn’t work, and halving class sizes to tackle educational disadvantage.

The question here always is: “How much will it cost?” he said.

This was not necessarily a criticism just of politicians, he stressed, saying politicians “respond to the electorate”, though he added his belief that if people “really believed raising taxes would be spent on a genuinely equitable society they would agree to increases”.

Among his greatest disappointments over the seven years have been the introduction of Asbos (AntiSocial Behaviour Orders) and the fact that hitting children is still legal.

He said he regretted the “failure” of the society to convince the public against Asbos.

© 2007 The Irish Times

Last edited by Marie-Therese O’ Loughlin (2007-03-03 05:15:43)

 #143 2007-03-06 03:50:31 Marie-Therese O’ LoughliRe: From the CrookedLawyers.com Guestbook {2}

Children’s rights poll likely to be held in autumn.

The Government is hoping to get Opposition parties to sign up to a commitment over the coming weeks to hold a referendum on children’s rights in the autumn.

This follows growing recognition within Government that it will not be possible to get agreement on a referendum before the general election.

Taoiseach Bertie Ahern had expressed support for a pre-election referendum, but Fine Gael and Labour have warned that it is too complex to debate within such a short period of time.

The changes to the Constitution are aimed at providing greater recognition for children’s rights, as well as providing for more robust child-protection measures.

The Government is now focusing on securing all-party agreement to the main propositions set out in the planned referendum.

This could be accompanied with a declaration to hold a referendum at the soonest available opportunity once a new government is formed.

Once a general election is called, any legislation that has not yet been enacted automatically falls.

A declaration of intent to hold a referendum, however, could help maintain the momentum behind the current proposals.

“There is a good basis for agreement on the issues.

We would like to find a way forward with some form of declaration or commitment which would survive an election and not just disappear into the ether,” a senior Government source said.

Fine Gael and Labour have expressed support for provisions of the referendum which relate to child protection, but have voiced concern about some of the planned changes on children’s rights.

They have suggested holding two separate referendums, however, the Government has insisted that all issues should be dealt with in a single vote.

In the area of children’s rights, the changes are aimed at ensuring the best interests of children apply in court cases relating to them; making children’s individual rights more explicit; introducing a uniform standard of child protection for all children, regardless of the marital status of their parents; and to remove barriers which prevent children born into a marital family from being adopted.

In the area of child protection, State agencies would be able to share so-called “soft” information about suspected paedophiles, which they cannot do now because it interferes with a person’s constitutional rights.

This would allow for information on suspected paedophiles to be shared among relevant bodies even in cases where a conviction had not been secured.

It would also provide for the introduction of a strict liability offence for adults who have sex with children. Strict liability would remove the defence of “honest mistake” available to adults and introduce a zone of absolute protection, below which it would be automatically criminal to have sex with a child.

The age at which this zone of protection comes into force will be left for the Oireachtas to decide. Most of the contentious public debate over the referendum has focused on whether changes will undermine parental rights.

The Government has insisted parental rights will not be affected.

The issue of State intervention in families on child-protection grounds has also emerged as a potentially divisive point.

The Government maintains that the grounds justifying State intervention in families will not change…………….. Carl O’Brien, 2007 The Irish Times

 #144 2007-03-06 04:16:14 Marie-Therese O’ LoughlinRe: From the CrookedLawyers.com Guestbook {2}

Top Barrister calls for 15-year Limit on Sex Abuse Trial

Irish Examiner, 30 May 2005 by John Breslin

A STATUTE of limitations should be placed on criminal proceedings taken against those accused of sexual abuse, one of the country’s leading defence barristers told a conference this weekend.

Patrick Gageby, who has defended individuals accused of sex crimes sometimes decades old, said it may be time for the Government to step in and draw a line in the sand

Mr Gageby suggested a limit of 15 years, adding that all civil cases are subject to time limits, except ironically those relating to claims of sexual abuse.

Speaking at the National Prosecutors Conference, the defence barrister said there were inherent dangers in old cases, where the key witnesses have inaccurate, faded, changed or intruded memories and where there was little additional or corroborating evidence.

In too many cases, a jury trial can turn in to a “pure beauty contest.”

“Who do you like more, who’s the more attractive? Who exactly is telling the truth? It comes down to body movements, gestures and the like,” Mr Gageby said.

Trials often descend into desperate searches for collateral information, such as the colour of paint, whether a bicycle was in a yard or whether a school was open that year.

Mr Gageby cited a number of cases one dating back to 1951, where the accused was in his 70s and the complainant in his 50s.

The jury had to decide events that happened in a closed room 50 years ago.

In another trial, there was much discussion over when Dana won the Eurovision Song Contest after it was initially claimed the assault took place some time between 1964 and 1970.

While the higher courts have consistently ruled it was up to the trial judge to decide if a case was proceeding fairly, there was little jurisprudence over when to intervene to protect an accused from an unfair trial, Mr Gageby said.

On the plus, side, there are high standards within the prosecution service and the gardaí, a strong commitment from all to secure a fair trial and the common sense of juries.

The barrister reserved his most trenchant criticism for the media and what he described as the “large industry abroad” of counsellors and psychologists.

The media is “wholly uncritical” of the redress and compensation system for victims of institutional abuse and there is almost “uncritical” acceptance of everything an alleged victim says.

Mr Gageby said he had never come across a psychological report that has found any difficulty with any person who has made a complaint. All the reports authors seem to assume the complainant is telling the truth, he said.

Comment

Patrick Gageby SC acted for the Sisters of Mercy at the Commission to Inquire in to Child Abuse. HE WAS THROUGH AND THROUGH AN UTTER DISGRACE.

If the barrister had his own way the Commission would literally have been scrapped.

Just to give one example.

He stood by while Sister Helena O’ Donoghue ascertained that Goldenbridge, {a child labour camp} was like a “HOME FROM HOME”.

HE HAD undoubtedly PUT HER THROUGH HER PACES.

“Patrick Gageby, who has defended individuals accused of sex crimes sometimes decades old, said it may be time for the Government to step in and draw a line in the sand”

More the fools, were the defendants who put their faith in this barrister. Can one envisage having a character of this ilk, with his crap ideology defending them. Gosh,one would not have a hope in hell.

I would not for the life of me touch this despicable biased barrister with a barge pole. He, many moons ago – actually courted a victim/survivor of institutional  child abuse.

Now he is courting the religious AND DOES NOT GIVE A FIG ABOUT ALL THE SUFFERING THAT THOUSANDS OF PEOPLE WENT THROUGH IN IRELAND’S INSTITUTIONS.

“The media is “wholly uncritical” of the redress and compensation system for victims of institutional abuse and there is almost “uncritical” acceptance of everything an alleged victim says”.

I see Mr Gageby is biting the hand that feeds it.

What a detestable man indeed. Yeah, there has been almost  “uncritical” acceptance of everything the religious said at the Commission to Inquire into Child Abuse.

I wonder why that was – Mr. (useless government/religious licker) Gageby. “This is red” is true or “this is not red” is true or both “this is red” and “this is not red” is true.

So just what is “truth” and “falsehood”?

Last edited by Marie-Therese O’ Loughlin (2007-03-06 04:52:06)

 #145 2007-03-07 05:13:38 Marie-Therese O’ Loughlin
Re: From the CrookedLawyers.com Guestbook {2Constitutional change is vital for children.

The proposed child amendment will help provide a more modern framework for the implementation of policies to support children, writes Geoffrey Shannon As a solicitor who has advocated for over a decade reform of our adoption laws and of the rights of children, I feel compelled to respond to the article by Dervla Browne SC in this paper (Feb 24th).

This response is intended to contribute to an open debate on the proposed wording for a referendum on the rights of children.

Ms Browne asserted that “many of the Government’s stated objectives in its proposed constitutional amendments affecting the rights of children have already been addressed”.

I disagree with her analysis of the proposals contained in the 28th Amendment to the Constitution Bill: the changes proposed relate to issues that can be resolved only by constitutional change.

They are necessary and require a referendum. However, I will confine my comments to two issues: the adoption of children in long-term foster care and the “best interests of the child” principle.

Provision 2.2 of the proposed amendment allows for the adoption of any child where there has been a failure of parental duty for such a period as prescribed by law and where the best interests of the child so require.

The Adoption Act 1988 does provide for the adoption of children of marriage. However, the drafters of the 1988 Act relied heavily on the text of article 42.5 of the Constitution.

In fact, the test for parental failure set out in the 1988 Act makes it virtually impossible for a child of marriage to be adopted.

The grounds for adoption under the 1988 Act are not similar to those set out in provision 2.2.

On the contrary, this is an enabling provision that will allow for a revision of the basic principles of the 1988 Act.

Under that Act, adoptions can only occur where the High Court is satisfied there has been total failure, for physical or moral reasons, by parents in their duty towards the child for the previous 12 months, that the failure is likely to continue without interruption until the child reaches 18, and that the failure constitutes an abandonment on the part of the parents of all constitutional rights.

The result is that the availability of adoption to children whose parents are married has been severely circumscribed. Only a handful of such adoptions have taken place.

The profound irony of this situation is that it is easier, by means of adoption, to vindicate the interests of a child born outside of marriage to be part of a caring, stable family unit, than it is to secure the same rights for a child of marriage.

The “Outline of Legislative Proposals”, published alongside the Amendment Bill, indicates that a legislative definition of the term “abandonment” will be introduced.

This will be an advance on the current position where the absence of a definition leads to situations where children may find themselves trapped in a legal limbo between intervention and adoption, where the State has removed a child from his or her parents in the interests of the child’s welfare, but is unable to have the child adopted by another appropriate family.

Ms Browne alludes to the experience in the UK where children can be adopted with relative ease. We must learn from the UK experience in adoption and avoid its mistakes.

The experience in the UK should not, however, immobilise us.

Surely we can find a solution to this issue by setting out criteria for the adoption of children that are less stringent than those currently in operation but stronger than in the UK.

Through the Irish Foster Care Association I have met several children in long-term foster care who have told me of their desire to be given a “second chance” for permanent family life with their foster carers.

Many of these children came into care when very young and have grown up with little or no regular contact with their birth parents.

They deserve the opportunity to experience the stability and security that adoption arguably affords. In relation to provision 4, I agree with Ms Browne that legislation currently exists to provide that the best interests of the child shall be secured in any court proceedings concerning the adoption, guardianship or custody of, or access to, any child.

However, it is clear from the case law in this area that section 3 of the Guardianship of Infants Act, 1964, may be vulnerable to constitutional challenge.

Conflicting court judgments have raised concerns about the ability to apply the “best interests of a child” principle where there is a dispute between parents and a third party (such as a grandmother or a foster parent) who has custody of the child.

This is due to a potential conflict between section 3, which provides that the welfare of the child shall be the first and paramount consideration, and articles 41 and 42 of the Constitution, which grant “inalienable and imprescriptible” rights to parents in relation to their children.

A recent Supreme Court decision, detailed by the Information Commissioner in this paper last September, highlighted the need to address issues in this area.

Ms Browne draws attention to the fact that the “vast majority of children in care come from poor and disadvantaged backgrounds”.

There is a clear need to tackle poverty and inequality and specifically to strengthen supports to children and families where a child is at risk of being, or has been, taken into care.

In this regard, the word “proportionate” should be inserted into provision 2.1 of the proposed amendment so that it reads: “The State as guardian of the common good, by appropriate and proportionate means, shall endeavour to supply the place of the parents.”

An onus would thereby be placed on the State to ensure that the first point of State intervention would be family support, unless exceptional circumstances made this inappropriate.

The principle of “proportionality” is central to the European Convention on Human Rights, and European Court of Human Rights judgments, such as K and T v Finland, make clear deprivation of parental rights and access should occur only in exceptional circumstances and where the range of alternatives is manifestly unsuitable.

Alternatives should be fully considered and the courts must be satisfied that no less radical measure could achieve the necessary end of protecting the child. The Constitution provides us with a framework for our legislation, judicial decisions, administrative practices and societal values.

However, the “doctrine of the separation of powers” limits its capacity to dictate the nature of services and supports for children.

Nevertheless, constitutional reform in the areas covered by the proposed amendment will provide a more modern framework for the implementation of policies to support children and to vindicate their rights.

The provisions will allow us to build a better and brighter future for the lives of children in Ireland.

Geoffrey Shannon is a solicitor and author of Child Law (Thomson Round Hall, 2005) 2007 The Irish Times

 #146 2007-03-12 06:05:24 Marie-Therese O’ Loughlin
Re: From the CrookedLawyers.com Guestbook {2}

Martha Nussbaum, Stelios Virvidakis

Philosophy and public life

Interview with Martha Nussbaum

Political philosopher Martha Nussbaum discusses philosophy’s capacity to influence public life; the future of political liberalism and the role of the state; and her critique of radical feminist thinkers including Catharine MacKinnon and Andrea Dworkin.

Stelios Virvidakis:

What do you think about the possibility of philosophy playing a more active role in public life, education, applied ethics, and so on?

Martha Nussbaum:

There are many possibilities.

And countries are very different.

I find that the US is in a way one of the most difficult places for philosophy to play a public role because the media are so sensationalistic and so anti-intellectual.

If I go to most countries in Europe I’ll have a much easier time publishing in a newspaper than I would in the US.

The New York Times op-ed page is very dumbed down and I no longer even bother trying to get something published there because they don’t like anything that has a complicated argument.

So I find the US very frustrating. At the other end of the spectrum, the Netherlands has a tremendous public culture of philosophy.

They have a very large selling journal called Philosophy and my Upheavals of Thought, which is an extremely long book and is even longer in Dutch, not only sold very well in English, but was translated into Dutch a few months later and has already sold 4000 copies.

So I feel that that’s quite extraordinary. But it’s because there are TV programmes on philosophy, things involving not just political philosophy, but things like the emotions, the mind, and so on. But one just has to cultivate that over a long period of time; the journalists, the media all have to play a role.

I have found it possible to get involved in philosophy more internationally and this was in a way a matter of luck.

Before that, there were also three other preparatory conferences; at the first, people talked about Amartya Sen’s work on capabilities; the second one was about my work; the third was more general.

There was a lot of interest. We were finding that young people – and not only young people but mostly – in economics, political science, philosophy, and politics were coming from all over the world.

At the conference at which we officially launched the Association there were 200 hundred papers from over 86 countries.

Sen was the president for the first two years; now I am the president.

But of course it is partly a matter of luck: we had the good luck to have a group of young and very talented academics who just decided this should happen.

They would just not let anything stand in their way and they put in so many hours of their own work.

And we now have the Journal of Human Development that is run by the United Nations Development Programme and publishes the best conference papers every year.

And we’re getting more and more money now to pay for the travel of people from developing countries.

I think the best thing about it is that it brings people together, so that people who are working on capabilities.

There are now over six hundred members of the Association, all working together, and they learn a lot about the different arguments being made.

The networking between the academic and the policy world is also very strong.

Our 2005 conference was at UNESCO in Paris where we had people in UNESCO participating.

So I feel that’s what I am now most involved in and I feel that’s very hopeful.

But of course, there are dozens of other thriving partnerships in hospitals – certainly in America, but I think in many other countries – between philosophers and doctors pushing the issues of medical ethics.

In the US, this changed medical practice to a great degree, particularly in the area of decision-making.

There used to be an assumption that doctors know best – and they hadn’t even thought about the distinction between the patient’s interests and the patient’s rights! When the philosophers got in, they insisted that that distinction was quite central, that deciding in somebody’s best interests is one thing but giving them the right to decide is another.

So now everyone understands that distinction and standards of informed consent have been refined.

Now there is very sophisticated related work on emotions being done. I’ve just read a new paper by a psychiatrist who works in a hospital about conditions under which emotions actually remove the decisional capacity – although doctors haven’t recognized that because they don’t really understand how the emotions work. So in all kinds of ways this is getting to be a very major force.

I think in law, which is one of my academic appointments, it’s a little bit harder because the world of the law firm is a profit-oriented world.

So I can teach people about social justice, but when they go out and work with firms they’re not really in a position to say, “this firm should be striving to produce social justice”.

Yes, if the firm takes on cases on a pro bono basis (charging no fees) they may be involved in issues of social justice, but it isn’t so easy.

And if lawyers go into court and talk to the judges, again they are going to be very constrained by the legal precedents and won’t have much latitude to inject their philosophical perspectives.

But getting people to think about these issues at all is a good thing, especially when economists are teaching them to think about other issues; one can provide a kind of counterweight to the law and economics movement, anyway.

SV:

There are a lot of philosophers who contribute to discussions about law, for example Ronald Dworkin in his debates with Richard Posner.

I don’t know how seriously judges, and Supreme Court judges for that matter, take these things into account, or to what extent they are influenced by philosophical discussions.

MN:

I think Dworkin has had close to zero influence on the actual development of the law, and the reason is partly of course that judges aren’t supposed to bring in any old theory they like but to look at the precedents and the principles involved in a case.

But I think there is another reason: while Dworkin is a first-rate thinker, he doesn’t have much practical legal background, and in his books he doesn’t talk much about actual law, so his theories need an intermediary before they can be applied to actual cases.

Of course, he writes pieces in the New York Review of Books about particular cases, but those pieces are not very tightly connected to his theories. So I think a middleman is needed before that connection could become a reality.

There are people who try to introduce considerations of autonomy and equity and so on in a much more hands-on way.

I myself I am writing a book about religion and the First Amendment, a real law book that talks about case law but stresses some of the underlying philosophical principles that I believe run through the case law.

I think that’s the way you have to do it if you’re going to influence actual decisions.

SV:

So the other question is more concerned with political philosophy and political theory.

Are you optimistic about the development of liberalism?

In practice, but also after all these debates about the right and the good, and the need to supplement liberalism with some conception of the good.

I take your work on the capabilities approach and the discussions about the Aristotelian element to point in that direction.

Do you think that theories of liberalism have learned from this? With globalization, there’s a lot of what in Greece we call neo-liberalism – though I don’t know whether the term is accurate, since many liberals complain that neo-liberalism is something the Left has invented.

My question is: to what extent have people like you, who really discuss the need to go beyond the austere old liberal framework, really succeeded in influencing people, including politicians, in practice.

And of course, there are other people who question the republican model, which is something different, moving in a different direction.

MN:

Well, there are many different ways in which a kind of quasi-Aristotelian theory of the good has entered into what we might call liberal political theory; after all it didn’t start with me.

It started long ago, for example in England with T. H. Green and Ernest Barker, who were perfectionist socialists.

They used the Aristotelian notion of human functioning to argue in favour of compulsory education.

They were an important and a clear precedent for my position.

In fact, I didn’t read them until much later, but anyway I now see that they were important and a precedent; their form of liberalism was very comprehensive, it was closer to something like Joseph Raz’s view today.

I would call that a form of comprehensive liberalism, because a notion of autonomy is used across the board to talk about lives that are well lived and so on.

I think the political form of liberalism, in which we don’t advocate a comprehensive doctrine of autonomy but rather certain ethical principles for the political realm, is more defensible in a world in which, for example, we have religions that don’t think autonomy is a particularly great good.

We don’t show respect for them if we say that only autonomous lives are worthwhile.

But as to the political form of liberalism, my own view is that we can defend it best if we use the idea of capabilities as our political goal, rather than thinking of the good in terms of income and wealth alone.

I think that that sort of view has received a lot of attention. Particularly through the Human Development Reports of the United Nations Development Programme, capabilities are popping up all over the place.

Of course, they don’t bring in the whole of my political theory, they’re just using the notion of capabilities comparatively to compare wellbeing in different countries.

Nonetheless, you now see that pretty much every country in the world is talking the language of capabilities and making some measurements of their populations in that way.

In India there’s not just a national Human Development Report, but each state has its own Human Development Report. So, this language is now very widespread.

I think it’s important to not just have that comparative measure but to say there are certain fundamental entitlements based on the notion of capability available to all citizens.

So that takes us to the next step of thinking about constitution making: what should a constitution guarantee and how can that be implemented?

But again, I think that when people are thinking about constitution making they’re aware of these ideas; constitutions such as those of India and South Africa have very similar ideas, no matter what they’re influenced by.

So yes, I do think that these ideas about human functioning and human flourishing are actually quite widespread.

And surely were widespread before I was born: a student has told me that the Social Democratic Party in Japan was founded by a pupil of Barker who brought Aristotelian ideas of human functioning to Japan and used them as the basis for a social democratic conception.

I actually believe that Sen’s idea of capability had such an origin, because Indians studied in Oxford, and Green and Barker taught many generations of leaders from the developing world.

And I think the kind of humanist Marxism in the various Indian Marxist parties in which Sen grew up was also influenced by a kind of Marxian version of Aristotelian idea – which are very prominent, for example, in the Economic and Philosophical Manuscripts of 1844.

Wherever the ideas come from, I think the important thing is now that they do enrich the debate within liberalism and I think they should be defended in a way that’s still recognizably liberal. By that I mean with an emphasis on the idea that each person is the ultimate beneficiary, not large groups of people, not even families, but each person seen as an equal of every other person.

And I also think that it’s a hallmark of liberalism that ideas of choice and freedom are really very, very important. Of course I think one has to stress that we don’t have choice if people are just left to their own devices.

The state has to act positively to create the conditions for choice.

I think the libertarian position is actually quite incoherent, because there is no such thing as absence of state action. Even to defend contract and property rights, and the rule of law itself, the state must take positive action.

SV: Are you talking about so-called negative rights?

MN:

Yes. If you go out into the rural areas of Bihar in India, then you see what “negative liberty” comes to. Total chaos, where nothing is being done, where there no roads, no clean water supply, no electricity, and therefore where no one can do anything, no one has anything.

I am sure my colleague Richard Epstein will agree, up to a point, that a state that’s going to create liberty has got to act, has at least got to protect property rights and contracts and have a police force and a fire department. But then why draw the line at that?

Why not also say that the State has to create public education, has to create the systems of social welfare that makes it possible for people to access health care, unemployment benefits, and so on?

So I don’t see any principled way of dividing those different spheres of state action.

I talk to these libertarians often, and I think the debate really comes down to the question of what’s the best strategy for promoting the human capabilities.

Richard Epstein actually has said to me “you know, your list of capabilities I agree with it totally, we differ only about the means.

I think that private industry should be the largest agent in promoting this and you think that the state should be”.

I have no objection to saying that the State could sometimes delegate part of its function to the private sphere when it judges that that’s sufficient, but I do want to say that the State is the one that bears the final responsibility.

The State is a system for the allocation of human basic entitlements. Its job is to promote justice and wellbeing for human beings; if it’s simply delegated to private industry and that doesn’t work, then the State hasn’t done its job.

SV: Now if I may ask you about your work on the novel, I mean literature, your work related to philosophy and literature.

Do you feel that your line of ethical criticism or of using literature for ethical philosophy has succeeded in moving people towards this direction? And is the fashion for deconstruction and for very post-modern approaches somehow losing its force today?

Am I right in this perception or am I being too optimistic?

MN: I think you are right. I am on the board of the School of Criticism and Theory, which is the leading, cutting edge literary theory organization in the US.

When I taught in their Summer School at Cornell a few years ago I was struck by the fact that all the students were interested in law and ethics. And so were the people that founded some of these deconstruction movements.

Jonathan Culler gave a lecture in which I didn’t hear anything about post-modernism.

It was actually mostly New Criticism, but it had an ethical element as well. I think English Departments always have problems in America, because they always feel they have to have a gimmick. Because English used not to be an academic subject – in England it was always something you were expected to know because it was your language; when you went to university you studied classics.

Because English has to defend itself against people who say it’s not a proper academic subject, it’s prone to fads.

I think we’re not at the end of the fads, there’ll probably be some other fad that will be again rather annoying and we’ll have to fight against that one.

But at present, at least, I think the post-modern one is on the way out.

Whether ethics in its serious sense will become central in English departments I am not sure, because I think very few literary scholars have the patience to do the sustained hard philosophical work that’s needed.

Whenever they talk about philosophy, with the exception of Wayne Booth, for example, they’ll talk about it in a way that seems to me quite embarrassing and amateurish.

So I feel uncertain whether in English departments we are going to get revealing first-rate work of an ethical sort. But certainly through philosophy it’s happening.

Now in philosophy there’s always a problem, which is that many philosophers have a background that’s more scientific; they don’t read novels much.

So you can get departments, often very good departments, where people would make fun of a literary inquiry, or think that it was not proper philosophy.

In my own department, fortunately, it’s not that way at all. Many people would want, for example, to teach a course on Proust.

One time I found I was offering a course on Proust and somebody else was also planning to offer one.

In this very tiny Department of fifteen people, there were going to be two courses on Proust and no course on a major topic in recognized moral and political philosophy.

So I dropped my course on Proust and I did my course on John Stuart Mill. But you know, we all agree, and if somebody wants to do a dissertation on Proust or Henry James we are very happy.

I see more and more dissertations that have a literary element.

If I am advising such a student, I’ll urge them not to do the whole thing on that. If, for example, they’re going to write about Iris Murdoch’s novels, it would be good to have some chapters that are about topics of virtue that are more mainstream.

My friends in Finland organized an international conference on philosophy and literature two years ago – because in Finland philosophy is very narrow and very focused on logic and technical issues of philosophy of science, and young people who are interested in philosophy of literature and literature and ethics felt isolated.

So we thought: all right, we’ll bring in some of the interesting people in Europe and North America who work on this and we’ll show them what a lively field of philosophy it is, and show their professors too.

I think it worked really well and that there was great interest in this subject. Of course, the logicians didn’t come. We can always expect it will be so.

But nonetheless, it gave some encouragement to the younger people.

So I think now it’s a much more open field than it was when I was a graduate student, when you couldn’t even write a dissertation on Aristotle’s views about friendship because people would make fun of you.

They would say it was too soft or something. When I wrote about tragedy, my advisor said “Oh well, for that you have to find a supervisor in the Classics Department”. And I really thought no, because it is a philosophical subject I have here.

It was only when Bernard Williams showed up and understood that, that I gained a sense of permission to do it and to do it within philosophy – and I am always enormously grateful to Bernard Williams for that. But I think now things are different and that there are many people whom one could turn to for encouragement.

SV: And this goes along with overcoming the analytic-continental divide?

MN: Yes, absolutely, no longer would we think that if you worked on literature or other topics in aesthetics you’re non-analytic.

And you wouldn’t have to do it in a kind of narrow pseudo-analytic way focused on meaning or language either. So yes, it’s a better time. When I was in graduate school, aesthetics tended to focus almost exclusively on visual art.

So the greats of that era, Arthur Danto, Richard Wollheim, Nelson Goodman, were really talking about painting.

No one was talking about music; only Stanley Cavell was talking about literature. But now that’s changed, everyone is broader now.

SV:

And one final question about feminism, a more philosophical question. I have always felt that you have a critical attitude towards the more extreme feminist views. I think of people like Andrea Dworkin and to some extent Catharine MacKinnon.

To what extent has your intervention influenced this sort of more radical feminist? Have things changed do you think, have things become more balanced today?

MN: My view about MacKinnon and Dworkin is extremely positive, as I’ve said both in Sex and Social Justice and in Hiding From Humanity.

I think that both are great and I have great enthusiasm for their views. I don’t agree with absolutely everything.

SV:

You tend to be more universal, more ecumenical…

MN:

MacKinnon thinks that she is an opponent of liberalism.

And she thinks that, because when she went to graduate school liberalism was very underdeveloped and wasn’t thinking about women’s issues at all.

Especially in law, liberalism was just talking about how all principles should be neutral, and so she thought that it makes no room for affirmative action.

For example, there were insurance companies that did not give pregnancy benefits and legal liberals argued that this was OK, there is no sex discrimination here, because all non-pregnant persons, both male and female, are going to get the benefits.

And she thought that this was ridiculous and of course it was.

But that sort of obtuseness is not entailed by liberalism.

She had never studied Rawls, she had never studied Dworkin, she had never studied any of the really theoretical works that think that there’s a Kantian idea of human equality and human dignity at the bottom of liberalism.

She’s stressed that she had studied Mill, and she thought Mill was great, you know she is my colleague so I talk to her all the time. So she really objected to a kind of neutralism that was very influential in the legal realm, that made affirmative action for women impossible and refused to take seriously these differences of power.

But of course Rawls never had that failing.

My primary difference with MacKinnon is that she is reluctant to express any universal norms or ideals.

I think the reason for this is her Marxist background, because she thinks we first have to have the revolution and then once the revolution has taken place, women themselves will say what they want to say.

She thinks it’s too dictatorial to announce ahead of time what the norms are. However, in her writings there’s a very obvious normative structure. There are ideas of dignity and equality.

Andrea Dworkin is actually explicit about this, and in fact MacKinnon will say “Oh yes, that’s the humanism in Andrea that I always find so unfortunate.”

She herself will admit that Andrea is sort of on my side in this debate.

But I think she herself is, when you philosophically reconstruct her views.

I don’t think you can do it without employing normative notions; to the extent that she does avoid them it just means that her own ideas are underdeveloped and that there’s not enough of a principled structure.

I think that her views about sexual harassment are very, very important. Her emphasis on differences of power in the workplace is extremely important, as is her idea that what we have to look at is not just sameness or difference of treatment but the underlying structures of power.

I think it’s a liberal idea. I differ with some of her specific claims about pornography. But I don’t actually think that’s so central.

SV:

What do you think of Andrea Dworkin’s book Intercourse?

MN: Oh, I think Intercourse is a great book, I teach it all the time, but it’s not about pornography.

Andrea Dworkin is a fiction writer really. She’s not a philosopher, so she doesn’t always write with a great deal of definitional precision.

I wrote a piece which is in “Sex and Social Justice” about philosophers and prophets in which I contrasted myself with her with some kind of unease, because I think philosophers don’t want to move to the next step until they patiently make the right distinctions.

Whereas I think Dworkin is a prophet. Her mentor was Frederick Douglass, she wants to get out there and denounce an evil.

And like Frederick Douglass, the great abolitionist, she doesn’t always define her terms precisely.

So what I think she really is doing in Intercourse is saying that it’s not just this or that evil offender that we need to be worried about, it is social norms themselves.

When men use force against women, it’s not enough to say: oh well that was a bad guy, or: that was a pervert, but that the problem is intrinsic to some of our social norms.

Men think they have a right to use force in certain circumstances, when they’ve paid for the woman and they’ve got drunk and so on. Actually sociological evidence shows this.

Edward Laumann, who is the greatest sociologist of American sexual behaviour, in his large tome called The Social Organization of Sexuality, said that the biggest problem that emerged from his careful survey of American sexual behaviour was a tremendous discrepancy between men’s perception of what is force in the sexual situation and women’s.

Men simply don’t believe that they’re using force if the woman is drunk and they just go right ahead.

And then the woman does think that that was force. So I think we made progress in having a social dialogue about that. But when Andrea Dworkin wrote, we hadn’t had that dialogue yet.

Still in some states in America, we haven’t had it. Here is one case that was decided in Illinois quite recently.

A woman who weighed 95 pounds was riding her bicycle in a forest preserve. A man who weighed 200 pounds came up to her and said: “Will you come with me into the forest?

My girlfriend doesn’t satisfy my needs”.

There is no one around, and he just picks her up off the bicycle and without struggling or fighting she goes along with his sexual demands in the woods.

He was first convicted of rape, but the high court threw out the conviction saying she hadn’t struggled to the utmost. You see, she was alone; she probably would have died if she had struggled!

That’s the kind of thing Andrea Dworkin is talking about.

And the best criminal lawyers are very inspired by her and try to rewrite rape law and try to make it more adequate.

I think MacKinnon and Dworkin have made great contributions.

MacKinnon happens to be a very good friend of mine by now also, but she is a great thinker I believe.

I think MacKinnon is misunderstood as being a man-hater and that seems to me quite wrong.

It’s not as if she hasn’t got some of the blame to bear for that because her writings are not systematic works.

They’re public speeches that she delivered in the heat of the moment that were recorded and then published.

If my only works were my recorded interviews I would probably be misunderstood.

But she should have written a more patient philosophical book.

A Feminist Theory of the State is not really that book, because it was her dissertation.

It does not answer the questions that philosophers raise about her views. Her new book on international law and women’s human rights is in some ways her best, because its conceptual clarity is very evident.

The ones I don’t think are so very helpful are the post-modernist feminists like Judith Butler whom I have criticized very strongly.

I think that her refusal to advocate any norms and her advocacy of parodic acts of resistance is a turning away from the task of real social struggle in which we used to be engaged.

And when I see academic feminists saying: well we can write these elegant papers in a jargon which parody the norms, I want to know where the feminist struggle that we had is.

Laws and institutions haven’t changed enough, so we should have a lot more solidarity with women who are working to change them, and we should theorize in a way that is helpful to that struggle.

So that’s my complaint against the Butler group.

And then the Carol Gilligan group: I think their work is not so good and I think it provides a handy rationale for the exploitation of women as caregivers.

So I am very critical of those two groups.

SV:

Thank you very much.

COMMENT:
————-
Q
“I think in law, which is one of my academic appointments, it’s a little bit harder because the world of the law firm is a profit-oriented world”.
A
Yeah, it is undeniably “all about profit”…………………..”Move on”……….get out of my space………………..PROFIT IS OUR ONLY PHILOSOPHY……………..is the mantra.
Q
Consequently, I can teach people about social justice, but when they go out and work with firms, they are not really in a position to say, “This firm should be striving to produce social justice”.
A
No thank you, what would necessitate young solicitors to point out social justice issues, to their bosses. Positively so,  sure, all the young solicitor has to do if there are complaints about social justice within the office is to tell the complainant to “move on” “find another solicitor”. WHY SHOULD THE solicitor WASTE his/her TIME?
Q
“There is now a large and I think quite exciting association called the Human Development and Capability Association, which was launched three years ago at a conference in Pavia, Italy”.
A
“I comprehensively advocate All Solicitors join this Human Development and capability Association.

The legal professional is  after all an incestuous organisation, which needs to be cleansed profoundly – from within its very core.

The clientele, in the precedent, never stood up for itself, and it is moderately blameworthiness for allowing this self-regulated insular, blinkered, limited, one-dimensional force to operate.”
Q
“But getting people to think about these issues at all is a good thing, especially when economists are teaching them to think about other issues; one can provide a kind of counterweight to the law and economics movement, anyway”.
A
“Thinking very deeply ABOUT FUNDAMENTAL radical REVAMP AND TRANSFORMATION WITHIN THE LEGAL PROFESSION FROM THE ACME DOWN WOULD BE A FIRST STRIDE EN ROUTE TO A SUPPLEMENTARY TRANSLUCENT ACCOUNTABILITY THE LEGAL PROFESSION HAS TO ACUTELY PAY HEED.

AS, ONE ONLY HAS TO READ THE STORIES ON RATEYOURSSOLICITOR TO KNOW THAT THERE IS COLOSSAL UNEASE AND DISSENSION”.

Q
“There is now a large and I think quite exciting association called the Human Development and Capability Association, which was launched three years ago at a conference in Pavia, Italy”.
A
“I thoroughly recommend Solicitors join the Human Development and capability Association”.

Last edited by Marie-Therese O’ Loughlin (2007-03-13 15:53:24)

 #147 2007-03-16 06:38:10 Marie-Therese O’ Loughlin
Re: From the CrookedLawyers.com Guestbook {2}

Judges should be answerable
———————————-

The recent controversy involving the courts, in which a vicious rapist got a three-year suspended sentence, is indicative of the rot that pervades the Irish judicial system. Judges, answerable to no one, are able to hand down inconsistent sentences almost with impunity.

The sentences that are handed down daily in Irish courts have less to do with the law and more to do with the judges’ moods, whims and biases.

These people are living in ivory towers, untouched by the real world and the consequences of their actions. Barristers are able to charge exorbitant fees that guarantee only the rich get adequate representation, while the Law Society holds almost a monopoly on the numbers, training and appointment of future barristers.

Our Minister for Justice is prepared to rush legislation through the Dail for his pet projects but will not initiate the reforms that are desperately needed in our legal system.

He only seems concerned with the welfare of his party’s small number of supporters leaving the rest of us to suffer in an obsolete system.

It’s time that the justice system in Ireland was made answerable to the will of the people. We need to remove the last remnants of the post-colonial legal system that we inherited from the British and install a modern, efficient and most importantly, just system that rewarded the good and punished the bad.

By Sean MacGabhann

Offline

#148 2007-03-19 09:32:47

Re: From the CrookedLawyers.com Guestbook {2}

FALLEN ORDER
——————-

The Piarist Order of priests has for hundreds of years been known for its history of important contributions to education, science, and culture.

Yet in 1646, the Piarist order was abruptly abolished by Pope Innocent X.

Fallen Order is the stunning story of how the sexual abuse of children, practiced by some of the leading priests in the order, led to the Piarists’ collapse.

Karen Liebreich spent several years researching in the order’s archives and in the Vatican Secret Archive, and discovered how the founder of the Piarist Order, Father José de Calasanz (later honoured as the patron saint of Catholic schools) knew of the scandal and tried to keep it a secret.

Cardinals and bishops actively participated in the cover-up in an effort to protect the reputation of an important cleric with influential family connections.

A brilliant portrait of seventeenth-century Rome, and the politics, personal rivalries, and Byzantine workings of the Vatican and the Catholic Church, Fallen Order is an explosive account of a history of cover-ups, deception, and shuttling known abuser priests from school to school that is frighteningly similar to the Catholic Church’s response to child abuse in the priesthood today.

Review:

“Liebreich, a Cambridge-trained historian, recounts the riveting early decades of the Piarist Order.

Founded in the 17th century, this teaching order of the Catholic Church had as its raison d’tre the education of poor boys, and Piarist priests were known for their strict religious rule.

But in the 1640s, sexual scandal began to mar the Piarists’ name.

The scandal turned on one Stefano Cherubini, a priest from a prominent family.

While serving as headmaster of a Piarist school in Naples, Cherubini not only flouted the Order’s rule (eating food more sumptuous than was allowed and so forth), but also sexually abused students.

Buckling under political pressure, the founder of the Order, Jos de Calasanz, more or less looked the other way.

According to Liebreich, this gainsaying of sexual abuse planted the seeds of the Order’s downfall, though it was eventually reinstated and went on to educate luminaries like Victor Hugo and Gregor Mendel.

Although this book may be controversial and is certainly timely — a concluding chapter explicitly connects the 17th-century scandals with the recent pedophilia crisis in the Church — it is not sensationalistic.

Liebreich’s lucid, even-handed prose is marred only by her grating habit of ending chapters with self-conscious cliffhangers (‘[T]hey swallowed their feelings and kept silent.

or the time being’). Scholars and armchair history buffs alike will find this fast-paced history engrossing and informative. (Sept.)” Publishers Weekly (Copyright 2004 Reed Business Information, Inc.)
Synopsis:

Liebreich reveals, for the very first time anywhere, how 300 years ago, the patron saint of all Catholic schools covered up the first recorded child sex scandal in the church’s history which resulted in the Pope shutting down a religious order.

Synopsis:
Fallen Order reveals, for the very first time anywhere, how 300 years ago, Calasanz, the patron saint of all Catholic schools, demonstrably covered up the first recorded child sex scandal in the church’s history — one that reached such proportions that the Pope took the (literally) unprecedented step of shutting a religious order down.

Until this point, no religious order had ever been shut down by papal decree (with the possible exception of the legendary Knights Templar).

Fallen Order draws on documents that have never been seen before, and this story is completely new.

The present Catholic Church has based its defense in recent sex scandals on the fact that it has only recently become aware of child abuse; this book exposes this claim as an absolute lie.

Offline

#149 2007-03-21 10:16:10 Marie-Therese O’ Loughlin

Re: From the CrookedLawyers.com Guestbook {2}

For centralised information on solicitors in Ireland, contact

Law Society of Ireland, Blackhall Place, Dublin 7, Ireland.

Tel. +353-1-671 0711

Fax +353-1-671 0704

www.lawsociety.ie

E-Mail general@lawsociety.ie

See the Law Society’s online Directory of Solicitors Firms

The Law Society also  publishes the “Law Directory” annually, which contains contact information for solicitors

Addresses of solicitors in Ireland may also be found at the Golden Pages site or the Kompass site.

Addresses of many Dublin solicitors are listed in the Independent Directory web site.

In Northern Ireland, contact

Law Society of Northern Ireland,
98 Victoria Street,
Belfast BT1 3JZ
Northern Ireland

Tel. +44 (0)28 90 231614
Fax +44 (0)28 90 232606

www.lawsoc-ni.org

E-Mail info@lawsoc-ni.org

The Belfast Solicitors Association website is at

www.belfast-solicitors-association.org

See also the list of Northern Ireland solicitors’ firms at

www.venables.co.uk/firmnort.htm

Also check TDL Infospace UK and www.uklegal.com/solicito/northeri.htm

Some solicitors’ firms are on the web.

Some web sites are as follows. These web sites normally also contain a reference to an e-mail address for the firm.

Solicitors’ Websites and E-Mail Addresses – Ireland

If the firm has a website its e-mail address is not listed as it may be found on the website.

Irish Solicitors’ Firms (from the Centre for Commercial Law, London) – www.icclaw.com/lfe/ir_atoz.htm

Dublin:

A & L Goodbody – www.algoodbody.ie

Anthony Brady – www.probate-ireland.com (specialising in probate and admin. of estates)

Arthur O’Hagan – www.arthurohagan.ie

Beauchamps – www.beauchampslaw.com

Bill Holohan and Associates, Solicitors, Trademark Agents, Arbitrators, Commissioners for Oaths – www.holohanlaw.com    (also Cork)

BCM Hanby Wallace – www.bcmhanbywallace.com

Binchys – www.binchys.com

Brian O’Donnell and Partners – www.brianodonnell.com

Campbell McKee – www.campbellmckee.com (also Ballycastle and Mallymoney)

Carvill and Company – www.carvill.ie

Damien J. Hughes & Co., Corporate Solicitors, Upper Fitzwilliam Street, Dublin 2. Telephone: (353-1) 661 2134/676 6763. Fax: (353-1) 676 6702.

E-Mail djhsolrs@indigo.ie

Dillon Eustace – www.dilloneustace.ie

Eugene F. Collins – www.efc.ie

First Legal (Dermot P.Coyne) – www.firstlegal.ie

Gallagher Shatter – www.gallaghershatter.ie

Gleeson McGrath Baldwin – www.gleesonmcgrathbaldwin.ie

Harry J. Ward – http://indigo.ie/~hjward/

Hayes Solicitors – www.hayes-solicitors.ie

Hollands, Solicitors, 11 Hume Street, Dublin 2. Tel. +353-1-661 3669, Fax +353-1-661 3624, e-mail hollaw@iol.ie

Ivor Fitzpatrick & Co. – www.ivorfitzpatrick.ie

James P. Evans Solicitors – www.jamespevans.com

John Glynn & Co. – www.tallaght.com/lawyer/

Kent Carty – www.kentcarty.com

Kilroys Solicitors – www.kilroys.ie

MacCarthy & Associates – www.mas.ie

Malcomson Law – www.mlaw.ie (also Carlow)

Mason Hayes and Curran – www.mhc.ie

Matheson Ormsby Prentice – www.mop.ie

McAleese and Company – www.mcaleeseandco.com

McCann FitzGerald – www.mccann-fitzgerald.ie

McKeever Rowan – www.mckeever-rowan.ie

Moran and Ryan – www.moranandryan.ie

Muredach Doherty – www.muredachdoherty.com

Neil M. Blaney & Co., Solicitors, 10 Harbour Road, Howth, Co. Dublin. Tel. +353-1-832 0983, Fax +353-1-832 0987, E-mail barney@iol.ie

O’Donnell Sweeney – www.odonnellsweeney.ie

Patrick Igoe and Company – www.igoesolicitors.com

Peter McDonnell and Associates – www.petermcdonnell.ie

Peter Duff & Co. – www.peterduff.com

Reddy Charlton McKnight – www.rcmck.com

Robert Walsh & Co., Solicitors, 2 Herbert St., Dublin 2. Tel. +353-1-6612823, Fax +353-1-6612045, E-Mail robwalsh@iol.ie

Seales Fagan Kenny – www.sfksolicitors.com

Spelman & Co – www.spelman.ie

Taylor and Buchalter – www.taylorbuchalter.ie

T P Robinson – www.tprobinson.com

Tyrrell Solicitors – www.lawyer.ie

William Fry – www.williamfry.ie

Cork:

Anne L. Horgan & Co. – www.alh.ie

Bill Holohan and Associates, Solicitors, Trademark Agents, Arbitrators, Commissioners for Oaths – www.holohanlaw.com    (also Dublin)

Conway Kelleher Tobin – www.ckt.ie

Declan O’Toole & Co., Solicitors – www.dotlaw.ie

Doyle O’Driscoll – www.doyleodriscoll.com

Ernest J. Cantillon & Co – www.cantillons.com

Fitzgerald & O’Leary – www.fitzol.com

Gerard McCarthy & Co. – www.gmcsolicitors.ie

John Hussey & Co. – www.johnhusseysolicitors.com

Henry P.F. Donegan & Son – www.donegans.ie

Michael Enright & Co. – http://eudigital.com/menrightsolicitors/

Murphy & Long Solicitors, Bandon, Co. Cork – murphylong@securemail.ie

Noonan Linehan Carroll, Cork – info@nlc.ie

Ronan Daly Jermyn – www.rdj.ie

Stokes and Co. – www.stokesco.ie
Wills.ie – www.wills.ie

See also:

The Southern Law Association – www.sla.ie

Galway:

Fair & Murtagh – www.fair-murtagh.ie

Geoffrey Browne & Co. – www.geoffreybrowne.ie

Mulroy and Company – www.mulroyandcompany.com

Carlow:

Malcomson Law – www.mlaw.ie     (also Dublin)

Clare:

F. B. Keating – www.fbk.ie    (also Limerick)

Michael Houlihan & Partners – www.mhp.ie

Paul Lynch and Co. – www.paul-lynchsolicitors.com

Donegal:

McInnes and Associates – www.highlandlaw.com

Kerry:

Foley & Co., Solcitors – www.foleysolicitors.com

Liam F. Coghlan and Co. – homepage.eircom.net/~liamfcoghlan

O’Connell Solicitors – Margaret O’Connell, Ballybunion,  Co Kerry – www.kerry-solicitor.ie

Kildare:

D’Arcy & Co. Solicitors, Kildare Town, Co. Kildare. Tel. +353-45-530 807 Fax +353-45 31886 Email info@darcyandco.ie

Limerick:

Connolly Sellors Geraghty Fitt – www.csgf.com

F. B. Keating – www.fbk.ie   (also Clare)

Ted McCarthy – tedmccarthy@esatclear.ie

Holmes O’Malley Sexton – www.homs.ie

Patrick G.McMahon – www.pgmcmahon.com

Louth:

Gary Matthews – www.gary-matthews.com

Mayo:

Helena Boylan – www.helenaboylansolicitor.com –  legal firm based in Westport, Co Mayo, specialising in Conveyancing, Litigation, Probate and Family Law, Practitioner Helena Boylan (email haboylan@eircom.net)

Patrick J. McEllin & Son – www.mayo-ireland.ie/Mayo/Towns/ClareM/WMcEllin.htm

Monaghan:

Myles & Co.- www.my-solicitor.net

Offaly:

Richard Kennedy – www.richardkennedy.net

Sligo:

Michael Monahan – www.michaelmonahansolicitor.ie

Tipperary:

Charles M. Barry & Son, Solicitors, John Street, Cashel, Co. Tipperary. barlex@iol.ie

Lynch and Partners – www.lynchandpartners.com

Waterford:

Kenny Stephenson Chapman – www.ksc.ie

Neil Twomey & Co. – www.iol.ie/bizpark/n/ntwomey/

Treacy & Mullins – www.treacymullins.ie

Westmeath:

Fair & Murtagh – www.fair-murtagh.ie

Wexford:

John A. Sinnott & Co. – www.jasinnott.ie

Wicklow:

Augustus Cullen and Son

Solicitors’ Websites – Northern Ireland

Buckley & Co., Solicitors and Insolvency Practitioners – www.buckleysol.com

Campbell Fitzpatrick Solicitors – www.cfs-law.com

Campbell McKee – www.campbellmckee.com (also Dublin)

Carson and McDowell – www.carson-mcdowell.com

Cleaver Fulton Rankin – www.cfrlaw.co.uk

Elliott Duffy Garrett – www.edgsolicitors.co.uk

Francis Hanna and Company – www.fhanna.co.uk

Gary Matthews – www.gary-matthews.com

Johns Elliot – www.johnselliot.com

John Irwin, Moira, Co. Armagh – www.johnirwinsolicitor.com

Napier and Sons, Solicitors – www.napiers.com

Sullivans Solicitors, Belfast – www.sullivanslaw.co.uk

Wilson Nesbitt – www.wilson-nesbitt.co.uk  :  Wilson Nesbitt Solicitors are based in Northern Ireland and specialise in company and commercial litigation. We also have a claims team dealing exclusively with all types of personal injury litigation and have offices in Belfast, Bangor, Newtownards, Coleraine and Holywood.

Further Irish or Northern Irish solicitors’ firms may be listed at
www.venables.co.uk/firmirel.htm
or
www.iol.ie/~aidanh/business/cat13.htm#83
or
www.globalgateway.com/Search.asp?criteria=solicitors

Irish Solicitors in London

Cormac Cawley, Gordon Dadds Solicitors – www.gordondadds.com/iacontent/en/7.phtml

Advertisements for Irish solicitors in London may be found in the print edition of the the Irish Post (website at www.irishpost.co.uk)

Many of the larger Irish solicitors’ firms also have London offices, e.g.
www.arthurcox.ie  ;  www.algoodbody.ie  ;  www.mop.ie  ; www.mccannfitzgerald.ie

Barristers

Barristers are normally briefed through solicitors.
The Bar Council of Ireland has a web site at www.lawlibrary.ie

The Bar Council and Bar Library of Northern Ireland have a website at www.barcouncil-ni.org.uk

Some barristers have e-mail addresses. See the list of e-mail addresses at

http://irishbarrister.com/barristers.html

See also the following web sites:

Kieron Wood, Barrister-at-Law – www.irishbarrister.com

U.S. Law Firm operating in Ireland

Peter McLaughlin Associates – www.pma.ie

Patent & Trade Mark Attorneys

F.R. Kelly & Company – www.frkelly.ie

Tomkins & Company – www.tomkins.ie

Bill Holohan and Associates, Solicitors, Trademark Agents, Arbitrators, Commissioners for Oaths – www.holohanlaw.com

Legal Services

Rochford Brady Legal Services Ltd – www.rochfordbrady.ie

Ashford Temple & Co., Legal Services, 29 Buckingham Village, Dublin 1. Tel. +353-1-855 4844. Email: thomaspphelan@eircom.net

Will Writing Companies

www.global-wills.com

www.uk-wills.com

Legal Costs Accountants

Connolly Lowe – www.legalcosts.net

Advisors

Martin O’Malley, Chartered Quantity Surveyor, Arbitrator, and Conciliator/Mediator in construction-related disputes – http://www.ucc.ie/law/irishlaw/practiti … lley.shtml

Article about the Legal Professions in Ireland

Are Irish Lawyers Anti-Competitive? By Kieron Wood – http://irishbarrister.com/competition.html

Last edited by Marie-Therese O’ Loughlin (2007-03-22 16:48:19)

Re: From the CrookedLawyers.com Guestbook {2}

Child abuse in schools – Government must accept responsibility.
The idea of a child being sexually abused by their teacher is every parent’s nightmare. And while the risk may be minimal, for all that, judging by the evidence on last night’s Prime Time investigation, the possibility of a boy or girl being abused in the classroom is real.

In the aftermath of the programme, parents who serve on boards of management at the country’s 3,300 primary schools could be forgiven for reconsidering their positions.

From the evidence presented by Mary Raftery, who rocked the system in the States of Fear exposé of widespread abuse of children in State institutions, it is patently clear that boards of management could now end up being sued by the victims of predatory teachers.

The legal anachronism behind this alarming scenario is that primary teachers are employed by the school and not by the State, even though it pays the wages of the country’s 25,000 primary teachers.

Some 95% of primary schools are being run on behalf of the local bishop and most boards of management are still chaired by the local priest.

Effectively, the Government denies having any responsibility for the safety of nearly 450,000 school children who most parents probably imagine are under its care.

To date, 15 teachers have been convicted on charges of sexually abusing school children.

In some instances, when the abuse came to light, the teachers in question were simply moved on to another school where they could continue to prey on innocent children.

What is now clear is that the Department of Education is nowhere to be seen in terms of having a regulatory or supervisory role with regard to primary school children.

The public’s attention was first drawn to this vexed issue by the High Court case involving sex abuse victim Louise O’Keeffe, which failed to prove that the Department of Education bore responsibility for the abuse she suffered at the hands of her former school principal.

Ms O’Keeffe, who was abused when she was eight years old, is taking a Supreme Court appeal against the High Court ruling, which left her facing an estimated €500,000 bill for legal costs.

At the time, she feared she would have to sell her home to defray the huge costs.

But when the Government came under public pressure in reaction to the outcome of that case, Taoiseach Bertie Ahern declared in the Dail that the State was not seeking to take Ms O’Keeffe’s home from her.

The Government, he said, had decided to approach the issue of costs in a sympathetic manner. In a disturbing development, however, it now transpires that the State has warned off a number of other victims, telling them that if they persist in taking legal action against the Minister for Education they would be pursued for costs in line with the ruling of the High Court. In effect, the victims are being punished for pursuing the State.

The fact that teachers are employed in a private capacity by school boards of management means the State has no responsibility to keep children safe in school.

Whatever the legal niceties, there is a perception that the Government is engaging in heavyweight tactics in order to frighten off individuals who were sexually abused by teachers when they were children. This is unconscionable.

At a time when the Constitution is being changed to protect the rights of children, let us hope that the Government will accept liability for the abuse of innocent school children at the hands of teachers whose wages are, after all, paid by the State.

Sex abuse victim angered by State warnings.

School sex abuse victim Louise O’Keeffe last night told of her anger over attempts by the State to stop other victims seeking redress in the courts.

The mother-of-two is facing a €500,000 legal bill after her failed High Court action to make the State responsible for the abuse she suffered as a child in a Co Cork school in the 1970s.

Yesterday it emerged that the State has written to 15 similar claimants telling them to drop their cases or face bills for costs like Ms O’Keeffe’s.

“I find it outrageous,” said the 42-year-old, who still lives in west Cork. “The State is sending them letters and attaching copies of the judgment they received in my case.”

The fact that anyone would receive a letter from the State of that nature is frightening.

Ms O’Keeffe was just eight when she was indecently assaulted around 20 times at Kinsale’s Dunderrow national school by the then principal Leo Hickey from 1973 onwards.

As a small child she regularly hid behind a table-tennis table or in the girls’ toilet in an effort to prevent him from sexually assaulting her.

In 1998, Hickey admitted 21 charges of indecent assault from a sample 380 counts relating to 21 girls and was jailed for three years.

Ms O’Keeffe was awarded €54,000 compensation from the Criminal Injuries Compensation Tribunal but took legal action to make the Minister for Education and the State liable for her ordeal.

Last April, she lost the case in the High Court, landing her with a bill of €500,000, after Mr Justice Eamon de Valera found the State not liable.

He put a stay on the costs pending a Supreme Court appeal by Ms O’Keeffe. No date has been fixed for the hearing. Last night she said victims who launched legal action against the State did so for the best reasons and were under a great deal of stress.

“Anybody who takes a case like I did gives it serious consideration and a lot of thought. The whole nature of the case is stressful. It’s ongoing stress that you have to learn to live with the best you can.”

She said she had great empathy with the 15 claimants who were bringing action against the State and who were now getting warning letters about costs.

“I totally understand what the victims of child abuse are going through. I went through it myself. It’s still hovering over me and is still waiting to be dealt with.”

By Paul Kelly

Outrage at letter threat to sex abuse claimants
Saturday March 24th 2007

The Government has come under fire for threatening 248 people who claim they were sexually abused at school and are taking legal action against the State.

They have separately initiated action against the Department of Education and Science.

But the Chief State Solicitor’s Office sent letters to some of them warning that they could be pursued for costs if they persist.

Opposition parties and the National Parents Council (primary) said it was appalling that such letters should be sent to victims who claim they were abused while in primary school.

Education Minister Mary Hanafin said last night she did not know in advance about the letters, which had been sent for legal reasons to lawyers of claimants.

The letters warned that claimants could face legal costs similar to the €500,000 bill faced by Louise O’Keefe who last year lost a court case concerning abuse while she was a pupil in a Co Cork school.

The State’s position is that it should not have been sued because the Minister for Education and Science has no direct involvement in the daily running of a school.

A department spokesperson said: “No less than three High Court judges have found this to be the case in four separate cases.

“The State is not the employer of teachers in primary schools. Primary schools are private institutions under independent management.”

This statement has prompted fears that parents and others may be unwilling to serve on boards of management if this means they leave themselves open to being sued.

But the Catholic Primary School Managers’ Association issued a strong reassurance last night that this could not happen.

This was clear from the Education Act, it said.

The association’s secretary, Mons Dan O’Connor, said in the case of Catholic primary schools individual members were indemnified by insurance.

Fears

Ms Hanafin also sought to allay fears that individual members could be sued.

She said that, from the next school year on, training would be provided for new boards of management in all aspects of their responsibilities, including pupils’ health and safety.

However, Fine Gael’s Olwyn Enright said: “Teachers are public servants, paid for from the public purse. However, the Government appears to be using a legal loophole regarding the employment of teachers to avoid all responsibility for child sexual abuse in schools.”

Labour’s Jan O’Sullivan said “the attempt by the Government to wash its hands of responsibility for the sexual abuse of children in state schools is quite shameful.”

INTO general secretary John Carr said the Department of Education was jointly responsible with management for running schools.

“The INTO strongly disputes the department’s view that its role is confined to the payment of teachers’ salaries.”

Mr Carr added: “The Department of Education and Science is far more than a paymaster.

“While the legal control of schools has evolved over time and is complex, it must not be used as legal loophole to evade responsibility.”

John Walshe © Irish Independent

Hanafin ‘did not know’ of letter

March 24, 2007

Ronan McGreevy

Minister for Education Mary Hanafin said yesterday she did not know in advance of a controversial letter sent to alleged victims of child sexual abuse.

The letters, which warned recipients they would be pursued for their costs unless they took the Department of Education out of legal proceedings, were not sanctioned by the department, the Minister told RTE’s Six One News programme.

Ms Hanafin said the letters were a “legal response to a legal question” and had been sent by the Chief State Solicitor’s Office on the instructions of the State Claims Office, and not by her department.

“The Chief State Solicitor’s Office sent out letters to lawyers explaining what was the outcome of various cases and explaining to them that the Department of Education wasn’t the person who was responsible in that case,” the Minister said.

“It’s very much a legal letter going to other lawyers,” Ms Hanafin added.

An RTE Prime Time Investigates programme found that letters were sent to 248 people currently suing the Department of Education because of alleged sexual abuse in schools.

A Cork woman, Louise O’Keeffe, is currently being pursued for costs of up to €500,000 after the High Court decided last year that the State was not responsible for the sexual abuse she suffered at Dunderrow national school in the 1970s.

© 2007 The Irish Times

Anger at report of State’s letter to victims of abuse

March 24, 2007

Seanad:

As someone who had worked in government, he had long held the view that the State must have duties towards its citizens and must act with moral authority, Martin Mansergh (FF) said when adding his voice to criticism of the warning given to people claiming to have been abused in national schools that they risked significant legal costs if they pursued damages actions.

Dr Mansergh said he certainly found it very difficult to stand over or defend in any way threatening legal action against those who had suffered child abuse to deter them from seeking redress.

The State had to take a larger view than one based on narrow legal advice designed to protect the financial self-interest of the Exchequer and perhaps that of taxpayers.

“I find it very difficult to accept that the State, which has been responsible for so much of the progress that has taken place in the last 40 years, has nothing whatsoever to do with some of the negative things that happened.”

Joe O’Toole (Ind) said they had witnessed this scenario before, in the case of Mrs McCole, where a minister had acted solely and doggedly on legal advice.

He would advise Fianna Fáil members to read the speeches they had made then, with considerable effect, about Michael Noonan, because they were now walking into the same situation on this issue.

Legal advice taking over from political decision-making was not acceptable.

He thought this was all being done by the State Claims Agency and he would like to know how it managed to bring the Government into court on various issues time after time.

Which Minister was responsible?

The essential question was whether the political system was in charge of decisions to fight claims that were made.

Paul Coghlan, acting Fine Gael leader in the House, said the approach being taken made a mockery of the apology that had been offered on behalf of the State by the Taoiseach to abuse victims.

David Norris (Ind) said it was extraordinarily cowardly of the Government to try to shift this problem to boards of management.

Joanna Tuffy (Lab) said that apart from the insensitivity of this letter, it was premature considering that the O’Keeffe case was being appealed to the Supreme Court.

Sheila Terry (FG) said there was a serious prospect that many people would decline to serve on boards of management, which were due to change next year, because of the enormous bills they might be faced with in the future.

Ann Ormonde (FF) said she had no doubt that the Minister for Education would be able to provide a very good explanation.

The situation would have to be explained, but not in the way it had been spun on the television programme earlier this week.

Acting House leader, John Dardis (PD) said he rejected on behalf of the Government claims that the letters represented a “declaration of war” on abuse claimants.

The best way to deal with the matter would be to have the Minister come to the House and explain it, as well as giving a definitive position on behalf of the Government.

© 2007 The Irish Times

Victims seek help in record numbers after RTE exposé

March 24, 2007 Conor Ryan

Adult child abuse victims have been contacting crisis helplines in record numbers following Wednesday night’s Prime Time exposé on RTE.

More than 70 people contacted Dublin Rape Crisis Centre’s helpline immediately after two linked RTE shows were screened.

Both dealt with the issue of child abuse in State institutions.

The DRCC’s chief executive Ellen O’Malley-Dunlop said most of the callers were ringing for the first time.

“Our helpline was absolutely jammed last night and the callers are continuing to come through today.

“Talking to the counsellors who were receiving the calls one could not but be struck by the overwhelming sadness that came through in all the calls.

Many people calling had never spoken about their experiences before and were so relieved to be doing so now. Some were men and women in their 70s,” she said.

The RTE current affairs show publicised the case of 42-year-old Cork woman Louise O’Keeffe.

She is due to appear in the Supreme Court in her fight to get the State to accept responsibility for the abuse she suffered at Dunderrow National School in the 1970s.

It explored how the Department of Education was not trying to scare off similar claimants by threatening to pursue them for all court costs.

Ms O’Malley-Dunlop said the State should be encouraging people to come forward, because many were still scared to.

“We still have large numbers of silenced adult children, who were sexually abused in our schools. Breaking the silence is one of the first steps to healing,” she said.

Angela McCarthy, Head of Clinical Services DRCC, said: “Breaking the silence, being believed and ideally, reparation being made, are three key aspects of the healing process.”

The DRCC said it wanted to call on the Minister for Education to stand up and “take the responsibility that is hers and say sorry to the victims”.

All children must reach full potential, says Hanafin.

Education Minister Mary Hanafin insisted the Government was “determined to ensure that every child gets the opportunity to reach their full potential”.

Her assurance, however, came a day after the heartbroken parents of a six-year-old autistic boy were told the State had no obligation to provide a specialist educational programme for him.

Cian and Yvonne O’Cuanachain sued the State over its failure to provide their son Sean with 30 hours a week of applied behavioural analysis (ABA), a form of tuition experts believed could dramatically improve his ability to learn.

The State contested the O’Cuanachains’ claims in a case that ran in the High Court for 68 days at an estimated cost of €5 million.

On Friday, Mr Justice Micheal Peart ruled that the education the State will provide for Sean, in a classroom setting and which includes some limited access to ABA, is appropriate to his needs.

Ms Hanafin welcomed the judgment that evening, but a tear-stricken Yvonne O’Cuanachain insisted the “light of learning” had been extinguished for Sean.

More than one hundred autism campaigners subsequently marched to the Department of Education in protest, claiming it was discriminating against children.
But at the Ard Fheis on Saturday, Ms Hanafin insisted the Government’s “overriding objective in education” was ensuring that every child had the opportunity to reach his or her full potential.

“We will build on the progress that has been made in… supporting children with special needs and those from disadvantaged areas,” she told delegates.

“We will complete the roll-out of the Education for Persons with Special Educational Needs Act, giving children with special needs the right to an individual education plan and putting in place a new appeals procedure.”

That act, passed in 2004, is being introduced on a phased basis until 2009. Ms Hanafin reiterated her opposition to school league tables, and criticised Fine Gael for suggesting such tables be introduced.

“We are utterly opposed to league tables, which ghettoise schools in disadvantaged areas, penalise them with inclusive enrolment policies and encourage an even greater emphasis on exams at the expense of… other activities.”

By Paul O’Brien

Last edited by Marie-Therese O’ Loughlin (2007-03-26 05:02:12)

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