OPINION:In most families the interests of parents and children coincide, but we should remember this is not always so, writes CATHERINE McGUINNESS
ON NOVEMBER 3rd, 2006, the then taoiseach, Bertie Ahern, announced that the time was right to place children’s rights at the heart of the Constitution.
There is no doubt that his announcement was influenced, and rightly so, by a series of reports that had revealed the horrifying scale of physical and sexual abuse inflicted on children in institutions supported by the State and by clergy and others in the general population.
In 2010 the all-party Oireachtas committee on the rights of the child, chaired by Mary O’Rourke, reached consensus on a recommended amendment of Article 42. Much of this consensus is reflected in the present wording. Throughout this entire period all of the major non-governmental organisations and charities who had actual experience of working with children joined in seeking similar constitutional change.
The Government’s proposal for constitutional change and the wording brought forward by Minister for Children Frances Fitzgerald have been widely welcomed. To date no concerted opposition has emerged either to the basic need for constitutional change or to the wording proposed by the Minister. Individual commentators and letter writers have made criticisms and the Christian Solidarity Party has voiced its opposition through a letter from Richard Greene in this newspaper.
My former colleague Hugh O’Flaherty, in a column in the Irish Independent, expressed the view that there was no need for a referendum as sufficient rights for children were already recognised in constitutional law.
Not unexpectedly the main critics divide between those who think that the proposed amendment goes too far and those who think it does not go far enough. Those who think it goes too far include the Christian Solidarity Party, Kathy Sinnott, writing in the Catholic monthly Alive, and columnist John Waters.
Their main criticism is that the assertion of the child’s rights will threaten the established rights of parents and the married family. Others fear that the amendment, if passed, will too readily enable State authorities to remove children from the care of their natural families.
It must be remembered that the article 41 recognition of the family and guarantee of its protection remain in place, as do the sub-articles of article 42 on education. The proposed amendment is careful to refer to “exceptional cases” where the safety and welfare of the child are likely to be prejudicially affected, as the reason for any intervention by the State.
Any such intervention must be “by proportionate means” and in accordance with law. I find this difficult to see as a threat to the average family. It is even less a threat to the parents who, in the words of Richard Greene, have been champions of their children’s rights.
One cannot fail to see that in the vast majority of families the interests of parents and children coincide. The fact that most children are safe and happy with their parents does not mean, however, that we can forget that there are a considerable number of families where children’s welfare and even on occasion their lives are under threat through abuse or neglect.
The Minister for Children has made it very clear that the intent and wording of the amendment is to allow for early intervention to assist families and children in difficulties and if at all possible to enable children to remain in the care of their parents.
Vincent Browne, in his opinion piece in this newspaper on September 26th, takes the opposite stance to that of other critics, arguing that the proposed amendment is “deficient in many ways” and that it does not address a significant decision of the Supreme Court in 2006. His criticism is clearly directed at the present constitutionally based difference in treatment of the children of married parents and that of children of unmarried parents.
The repeated assertion of the additional rights of married parents under the Constitution forms the substance of the three Supreme Court decisions which he analyses. He is making an incorrect distinction between the 2006 decision and the two earlier cases. The law set out in all three is basically the same. The intent and wording of the present proposed amendment is to deal with the very problem which he is highlighting in his column.
That is why phrases like “rights of all children” (my emphasis) and “parents regardless of their marital status” are used, and why in the proposed Article 42A.4 the best interests of the child shall be the paramount consideration in all relevant proceedings.
The third criticism is that made by former Supreme Court judge Hugh O’Flaherty that the proposed amendment is unnecessary because children’s rights are already well established in the Constitution by means of various earlier decisions of the courts.
It is of course true that in cases such as the 1980 case of G v An Bord Uchtála there are clear judicial statements that children have rights. This, however, does not deal with the very problem highlighted by Vincent Browne – the position of the children of the married “constitutional” family. Nor does it deal with the difficulties apparent in the present law of adoption, which also stem from the Constitution.
A very practical effect of the amendment will be to permit the adoption of a large number of children now in the long-term care of foster parents but where the exceptionally high criteria of the 1988 Adoption Act cannot be met.
For me, the best recommendation for this amendment is that it has attracted the support of those who work among children, organisations such as Barnardos, the ISPCC, the Children’s Rights Alliance and Campaign for Children, of which I am chair. These four respected organisations have formed a joint campaign, Yes for Children.
Campaign for Children is just one organisation that has received support from the Atlantic Philanthropies and the One Foundation. These funds were provided to support a number of research and advocacy projects. We have now allocated a significant portion of our available funds to advocate for a Yes vote in the referendum as it addresses fundamental issues relating to the rights and protection of vulnerable children.
The Constitution is a legal document, but it is not just a document for lawyers. It is now, as it always has been, a statement of the values we hold as a people. The clear statement of the rights of children is surely a value worth stating.
Catherine McGuinness is a former senator and Supreme Court Judge. She is also chairwoman of Campaign for Children, a member of the Yes for Children campaign.