OPINION:The Constitution must be amended to ensure laws and proceedings are robust and child-centred enough to protect children, writes ASHLEY BALBIRNIE
NOW THAT the long-awaited wording for the constitutional amendment on children has finally been announced and November 10th has been set as the date for the referendum, it is time to look at why Ireland needs such an amendment.
The requirement for the proposed change is rooted in the fact that in the past the Constitution has not provided the protection our children have needed. It has not ensured that the best interests of a child are fully taken into account in decisions that affect their welfare. It has not treated all children equally.
On occasion this has led to terrible consequences. These have been echoed time and again through various reports and investigations and the common theme is that children are not adequately provided for in the Constitution.
The Constitution was written in 1937 and reflected life and the vision of the people at that time. Life has changed economically, socially and culturally and our Constitution as a vision for Ireland must reflect this. An amendment would acknowledge that Ireland values children and would ensure that all children are treated equally.
This referendum is not about the State wanting to interfere unnecessarily in family life. It is not about the State wanting to take more children into care. It is about protecting the most vulnerable in our society so that they are seen and heard.
No one would disagree that, in most instances, the best place for a child is within their family unit. However, experience has indicated that sometimes this is not the case and it is imperative that Ireland has the structures in place to listen to children and to intervene in accordance with the best interests and welfare of the child.
I feel it is important to point out that no change will be made to article 41, which defines the family and the protection provided to the family. An amendment will not diminish parent’s rights; it will enhance children’s rights.
The rights of the family and the rights of the child are not mutually exclusive. However, currently the rights of children are not explicitly stated in the Constitution, so it is often not possible for them to be taken into account in the courts.
What this referendum is about is protecting children and treating all children equally. The proposed amendment would:
Ensure children are regarded as individuals and treated equally irrespective of their parents’ marital status. There is currently a distinction between children of married and unmarried parents.
Allow for vulnerable children to receive timely and appropriate support and protection. Currently many interventions only occur at crisis point.
Ensure all decisions are made in the best interests of the child. An amendment would give legal authority at the highest level to the principle of best interests, which is already recognised by statute law.
Ensure all children have a voice in issues that affect them. Children’s voices would not be determinative, but would be taken into account in line with their age and maturity and weighed against other factors.
Ensure children in long-term foster care are given the opportunity through adoption for a “second chance” of a stable and secure family life.
We will hear repeatedly in the coming weeks that we don’t need a referendum, that legislation already exists. This is not the case, a referendum is necessary.
While changes to legislation can and have been made to enhance the support and protection of children, they do not go far enough.
The Constitution is the foundation on which all our legislation is based. To ensure that laws and proceedings are child-centred and robust enough to protect children appropriately, the Constitution must be amended.
We all know that the Constitution is not a cure-all remedy for all that has been wrong with the current system, but the amendment is a vital step that represents the shift in cultural attitude when it comes to how we view children and is a step that will underpin and allow for other reforms.
For too long, Ireland has had to face the shame of our history and the needless abuse and neglect of thousands of our citizens. Sadly, this is not confined to the past; it is a stark and uncomfortable reality for many children here and now in 2012.
We do not need more recommendations from a litany of reports that outline how children have been failed – we need change. Change that begins with our Constitution.
An amendment would lay the foundations for an Ireland where all children are treated equally and where vulnerable children are better supported and protected. Is this the Ireland that we want and that children deserve? Yes.
Ashley Balbirnie is chief executive of the Irish Society for the Prevention of Cruelty to Children. The ISPCC is working in partnership on the referendum with other children’s organisations under the umbrella ‘Yes for Children’.
PROPOSED WORDING: 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 those rights.
2.1: In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2.2: Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
3: Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4.1: Provision shall be made by law that in the resolution of all proceedings –
(i) brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected,
or (ii) concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
4.2: Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1 of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.