Parents of children with special needs have seen it all before. We now listen with scorn to the slogans of the political parties, the media, the State-funded charities in this so-called children’s referendum.
Until the O’Donoghue (1993) and Sinnott (2001) landmark judgments, many special needs children were denied education and other vital services by the government.
Annie Ryan, in her book Walls of Silence, exposed the cruelty visited on children and adults with disabilities in State care.
In the O’Donoghue and Sinnott cases, the State fought bitterly against parents.
Labour’s minister for education Niamh Bhreathnach’s departmental legal team argued that some children were simply ineducable and therefore not protected by article 42 of the Constitution.
Seeing how this argument failed, FF’s Micheál Martin, as minister for education, had the State legal team change tack. He argued that a child’s basic rights should be subject to resources and that government, not the needs of the child, should decide the help a child receives.
However, our Constitution required a full and appropriate response to the child’s educational and other fundamental rights and needs. In other words, the courts declared the State was wrong and negligent.
But the government did not give up, it just changed tack. Responding to the public outcry at its crass treatment of children with special needs and their parents, minister for education Michael Woods announced that he had “an open cheque book” to meet their needs.
Things started to happen, new services were started, therapy became more available, early assessment and intervention teams were set up, facilities got the go-ahead for construction.
Behind the scenes, however, the State was working to regain control of special needs children and put parents back in their box.
Alarm
It came up with the perfect strategy. Harness this newly awakened public support for children with special needs by having the State campaign and legislate for the “rights” of these children.
Many people smelt a rat: the same State which had neglected children with special needs for decades, and spent millions fighting to deny them their rights, was suddenly claiming to be on their side, even claiming to be their strongest advocate.
The State anticipated our incredulity. Acting like a humble penitent, it consulted selected stakeholders, lulling their suspicions and neutralising potential opposition one by one.
The government, aided by its National Disability Authority, gathered opposition politicians, media, academics and even many State-funded disability groups into its campaign for the “rights” of children with special needs.
Those of us who knew how strong the constitutional rights of our children with special needs were, and how much the State despised them, tried to sound the alarm. But we were asked: “How can you be against ‘rights’ for children with special needs?” When the Education for Persons with Special Educational Needs Bill was released in 2003, our suspicions were confirmed.
In the proposed law, the State was not going to commit itself to giving children the constitutional rights that they had established beyond a doubt in the courts. Rather, government was blatantly seeking to substitute these real rights for “rights” they could manipulate and control.
In the Bill, the State took on the role of the parent. It alone would decide what a child needed through experts on its payroll and then decide whether or not the child would get the services called for in their assessment.
If parents disagreed, the Bill created an elaborate appeal process controlled at every stage by the Department of Education. And of course the provisions of the legislation were “subject to available resources”. There were no actual rights to count on, no independence or fairness.
There was just a new level of bureaucracy, financial get-out clauses and many more hoops for children and parents to jump through. The very arguments that the State had used in court and lost were embodied in the Bill.
When we pointed this out we were told that article 42 was still intact so there was nothing to worry about. However, since the Bill was enacted, parents turning to the courts to rely on constitutional guarantees to help their child have found the judicial landscape contaminated.
For example, the Ó Cuanacháins, whose son Seán had the same right to appropriate education under article 42 as Paul O’Donoghue, were largely defeated by the Education for Persons with Special Educational Needs Act.
The court seemed to give weight to the State’s “rights” with its newfound control of special needs services and over children reliant on them and its disempowerment of parents. The State could then close the cheque book and return to the status quo: neglect of children with special needs.
All considered, the 2003/4 “rights campaign” was a success for government and a disaster for children with special needs and their families. Since then children are again being denied services.
Cheerleaders
Now, in the referendum, the State is again at the same game, sanctimoniously campaigning for “rights” to get rid of real rights. The target is the constitutional rights of children, parents and the family.
To eliminate these real rights, the State is campaigning for the “rights” of abused children, the very children it has grossly failed and still fails to protect. As with the Education for Persons with Special Educational Needs Act, what is proposed usurps caring parents, stripping them of the authority to decide what is in the “best interests” of their children. At the same time it limits the State’s responsibilities to children, protects the exchequer with get-out clauses and indemnifies the State from court challenges to their neglect, past and future. In fact it offers reduced protection for abused children.
And to complete the picture we have the same type of cross-party, media, academic and State-funded charity cheerleaders to make the whole fraud credible and ensure its success. Will we, the voters let them get away with it again? Surely not. For the sake of all children, families and the future of Ireland, vote No.
Kathy Sinnott is a former MEP and a member of Alliance of Parents Against the State, which is campaigning for a No vote in the referendum