The constitutional amendment on children’s rights opens a door to arbitrariness in relation to family law that should frighten any sensible person
IT GOES without saying that the “children’s rights” amendment is driven by people and interests seeking radically to subvert the ecology of family rights that is currently recognised and affirmed in the Constitution.
In truth, though, their intentions are irrelevant, because the amendment will place these matters in the lap of unknowable entities and forces. What is required, then, is not the persistent bland assurances of the Yes side but a penetrative debate concerning every conceivable angle of the potential operation of the new articles – both in terms of notional interaction with the existing provisions and with the long history of constitutional jurisprudence accumulated over the past 75 years.
We, the electorate, may or may not “know” what we desire and intend, but far more important will be the future interpretations of these desires and intentions by judges, some as yet unborn, who will have little or no information to hand about what the electorate in 2012 was seeking to achieve, and may well care less.
It is nonsensical to insist, as amendment proponents have been doing, that the existing wordings will remain unaffected by the new insertions. If the amendment is to have any point at all, the result – obviously – will be to qualify or vitiate existing provisions of the Constitution.
As things stand, the rights of Irish families are not extended by the State but are given to the people by themselves, under God. Such rights are merely recorded in the Constitution (the State “recognises” the family as “the natural primary and fundamental unit-group of society”, etc.).
The proposed new wordings would introduce an entirely different philosophical understanding. At present, the State’s entitlement to intrude in family life is in effect limited to cases in which there has been a breach of the law. The rights of children are intrinsically accounted for under this understanding: a child has a right to be brought up by his or her parents, unless, “in exceptional circumstances”, the parents, “for physical or moral reasons”, fail in their duty.
Indeed, there is a salutary reminder here for anyone who imagines that wordings alone can provide guarantees, for it is clear that the Constitution has already been “stretched” in this area to permit forms of intervention not envisaged when it was drafted.
Article 42.5, which allows the State “in exceptional cases” to “take the place of the parents”, explicitly refers to educational issues only. This indicates a potential for creative interpretation by judges that might in the future take us a very long way from anything the electorate decides now.
The proposed amendment would introduce a new element: that particular members of a family – children – would acquire individualised, State-granted rights in potential opposition to their parents, which could be vindicated by the State even when there was no evidence of a parental failure per se.
It is by no means unreasonable to anticipate that, depending on how these provisions may be interpreted by future manifestations of the Supreme Court, this could mean the end of the family as self-contained unit, nullify the idea of “self-given” rights and reduce parenting to an arrangement-of-convenience by appointment of the State.
In the new dispensation, parents would become mere caretakers of their children, with the State reserving the right to intervene according to principles that remained opaque and methodologies that remained unaccountable in any meaningful sense. This would mean, in effect, the abolition in constitutional terms of the idea that parenthood has natural rights arising from biology.
The mainspring of the new wording in this connection is the concept of “the best interests of the child” (BIC), which appears twice in the proposed new Article 42A. Article 42A.2.2 provides for the use of what practitioners call the “BIC test” in the adoption of children whose parents are deemed to have “failed” in their parental duties. Article 42A.4.1 provides for the use of this test in childcare proceedings brought by the State or in civil family law proceedings. This section provides also that the best interests of the child should be “the paramount consideration”, which suggests that the “BIC test” will override all existing constitutional provisions and jurisprudence.
The test is already in widespread use in family law, but nobody knows what its values are. It makes of parenting a pseudo-science, by the opaque principles of which dubiously qualified “experts” are permitted to put parents on trial in secret courts. To have any chance of defending themselves, parents must respond in the language and logic of the “experts”, whose interest in and concern for children is deemed by the system to be greater than any mere parent can aspire to.
Occasional published judgments reveal no consistent interpretation, suggesting that the test is a matter for the judge on the day. In the UK, for example, the “BIC test” is used to justify the forced adoption of children in a fashion that, as things stand, most Irish people would consider unthinkable and barbaric.
By virtue of being elevated to the “paramount consideration”, the “BIC test” opens a door in the Constitution to a potential for arbitrariness that should frighten any sensible, sentient human being.