Amendment a threat to rights of parents

The constitutional amendment on children’s rights opens a door to arbitrariness in relation to family law that should frighten any sensible person

IT GOES without saying that the “children’s rights” amendment is driven by people and interests seeking radically to subvert the ecology of family rights that is currently recognised and affirmed in the Constitution.

In truth, though, their intentions are irrelevant, because the amendment will place these matters in the lap of unknowable entities and forces. What is required, then, is not the persistent bland assurances of the Yes side but a penetrative debate concerning every conceivable angle of the potential operation of the new articles – both in terms of notional interaction with the existing provisions and with the long history of constitutional jurisprudence accumulated over the past 75 years.

We, the electorate, may or may not “know” what we desire and intend, but far more important will be the future interpretations of these desires and intentions by judges, some as yet unborn, who will have little or no information to hand about what the electorate in 2012 was seeking to achieve, and may well care less.

It is nonsensical to insist, as amendment proponents have been doing, that the existing wordings will remain unaffected by the new insertions. If the amendment is to have any point at all, the result – obviously – will be to qualify or vitiate existing provisions of the Constitution.

As things stand, the rights of Irish families are not extended by the State but are given to the people by themselves, under God. Such rights are merely recorded in the Constitution (the State “recognises” the family as “the natural primary and fundamental unit-group of society”, etc.).

The proposed new wordings would introduce an entirely different philosophical understanding. At present, the State’s entitlement to intrude in family life is in effect limited to cases in which there has been a breach of the law. The rights of children are intrinsically accounted for under this understanding: a child has a right to be brought up by his or her parents, unless, “in exceptional circumstances”, the parents, “for physical or moral reasons”, fail in their duty.

Indeed, there is a salutary reminder here for anyone who imagines that wordings alone can provide guarantees, for it is clear that the Constitution has already been “stretched” in this area to permit forms of intervention not envisaged when it was drafted.

Article 42.5, which allows the State “in exceptional cases” to “take the place of the parents”, explicitly refers to educational issues only. This indicates a potential for creative interpretation by judges that might in the future take us a very long way from anything the electorate decides now.