Constitution not at fault for our failings with children

OPINION: I favour cherishing children and ensuring their rights are enforced, so why then am I so uneasy about the referendum?

Making a change in our Constitution is a serious step.

It may happen when a legal case declares that a piece of legislation cannot be enforced because it is in conflict with the Constitution. The choice for the voters is then clear: do they really want the law that has been set aside by the courts or not?

It may also be needed when the legislators wish to join the Republic with an international body that they consider would be in its interests but would not be covered by the Constitution.

One could include the referendums that arose out of the membership in the European Union in that category. Again, the voters have a choice as to whether they want such membership (or a specific change in traditional procedures), with all that it would entail, or not.

This time the referendum is proposed because legislators, the members of the Dáil and Seanad, have in mind some legislation that they think might not be covered by the existing Constitution.

The good guide that has been issued by the Referendum Commission to help the voters explains there are four main elements in the proposed amendment.

First, the rights of children will be explicitly guaranteed. These rights are not listed in the referendum and it will be a matter for the courts, on a case-by-case basis, to identify the rights protected by this provision.

Second, there will be three changes from the existing article 42.5 to make it explicit that:

– the State may intervene to protect the child whether or not the parents are married to each other;

– “the existing article provides that intervention may occur if the parents fail in their duty towards the child for physical or moral reasons. The proposed new article provides that the intervention may occur if the parents fail in their duty towards their children to such an extent that the child’s safety or welfare is likely to be prejudicially affected.”

– “the existing article requires the State to use appropriate means and does not require that these means be set out in law. The proposed new article provides that the State’s intervention must use proportionate means, which must be set out in law.”

There are, in addition, two clauses proposed that deal with adoption.

Again, going to the commission guide for help, voters are told: “If the proposal is passed, the proposed article 42A.2.2 will mean that the State must put laws in place allowing for the adoption of any child, whether or not the parents are married to each other, if the following conditions are met:

“ – that the parents have failed in their duty for a period of time to be specified in law.

“ – that the best interests of the child require that adoption take place.

“The proposed new article 42A.3 will mean that laws must be passed to allow for any child to be adopted by being voluntarily placed for adoption.”