Parental rights for State will undermine family
We are being asked to reallocate family rights and give the State enhanced powers to interfere in family life, writes JOHN WATERS
ON WEDNESDAY, following the publication of the proposed “children’s rights” amendment wording, I listened in vain to RTÉ Radio in the hope of hearing some teasing out of the type of definitional and other issues which inevitably arise from any legal formulation.
The overwhelming sense of the coverage was of welcome for the wording and celebration of the fact that we are now to have the referendum for which – it was persistently implied – we had all been waiting for years.
One after another, the voices to be heard were those of long-time champions of such an amendment, punctuated occasionally by the voices of sometime sceptics who appeared to have momentarily scanned the wording and precipitately decided to row in behind it. Laughably, the only reservations were voiced by commentators who thought the amendment did not go far enough.
This absence of sceptical, cautious or neutral voices is especially ominous considering RTÉ will shortly be expected to provide a fair and objective platform for both sides of a democratic referendum on the issue.
In every programme, the implicit theme-question of the referendum was reiterated and consolidated: how could any right-thinking person object to the extension of constitutional rights to children?
This tone had been established by the Taoiseach, who in launching the Government’s wording declared: “For too long in Ireland we have lived by the dictum that children should be seen and not heard.” Who lives by this “dictum”? What Irish parent has contrived to bring a child into the world with the intention, express or otherwise, that that child’s voice should not be heard?
The question facing us in this referendum is not whether to give children constitutional rights, but whether to reallocate existing family rights so as to give the State enhanced powers to interfere in family life.
In view of recent revelations concerning fatalities among children in State “care”, any reasonable debate on this question would rapidly arrive at a disposition of wariness. But we must, it seems, forgo our right to an open discussion so journalists and politicians can parade their “pro-children” credentials.
There are several potential problems with this wording. For example, the proposed article 42a.1.1 states: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
What, here, shall be the effect of the word “imprescriptible”? Article 41.1.1 already extends “imprescriptible” rights to the family, and these will purportedly endure, being “antecedent and superior to all positive law”. But one meaning of the word “imprescriptible” is: “Not capable of being lost or impaired by neglect, by disuse, or by the claims of another founded on prescription”.
What, then, will happen when two sets of “imprescriptible” rights come into conflict? What will legislators do? What will judges decide? And what, in the context of the proposed new article 42a.2.2, shall be the meaning of the word “exceptional”?