Yes could be a real game-changer

On Saturday voters will decide whether children’s rights are to be inserted into the Constitution. After a lacklustre campaign – characterised by rhetoric from the Yes campaign and misinformation from the No side – the people will have a single vote on four key issues.

We will vote on a statement recognising the rights of the child, a change to the threshold for State intervention in the family where the welfare of the child is affected, a duty to pass laws to make adoption available to all children, and another to make the best interests of the child paramount and the child’s views heard in certain judicial proceedings.

Much of the debate has focused on the threshold for State intervention and, to a lesser extent, the adoption issue. There is little to quibble with here: these are sensible if modest changes that have the potential to improve some children’s lives.

Somewhat more ambitious claims have been made that the amendment will, if supported, ensure that children are at the heart of judicial decision-making and that their voices will be heard in all matters that affect them. Rather less attention has been given to the fact that the amendment merely requires the Oireachtas to legislate to make these things happen. In my view this has either already happened or could be achieved without constitutional change.

But that is not to say that the change, if approved, would be worthless. In other countries constitutional protection of children’s rights has been linked to the creation of a children’s rights culture that can have positive effects on the way services are provided to children and the extent to which children enjoy their rights in practice.

It can lead to legislation that advances the rights of children in the areas of health, education, child protection, youth justice and immigration, for example. By investing in education and training, decision-making across children’s lives can be more effectively informed by regard for their rights and their views.

Holding the State to account

Skilled advocates and lawyers can use the Constitution to ensure the legal system works for children by holding the State to account and providing an effective remedy to children whose rights are ignored or violated. In my view there is a single provision in the proposed amendment that holds genuine promise in this respect. In article 42A.1 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 these rights.

This clause has the potential to fundamentally change the relationship between the State and children, by stating in constitutional language that children are rights-holders and the State is duty bound to protect those rights.