Although there is much to be welcomed in the proposed amendment, some key elements need to be clarified, writes Eoin Carolan.
In 1993 Mrs Justice Catherine McGuinness's report on the Kilkenny incest investigation called for a constitutional amendment on children's rights. It was an appeal which the former Supreme Court judge made again last week at the launch of a policy document by children's charity Barnardos.
The announcement by the Taoiseach of the details of the proposed referendum on children's rights suggests that, after almost 15 years of inactivity, Mrs Justice McGuinness's call may, at last, be about to be answered.
It is important to emphasise that there is much to be welcomed in the published text. Groups working in this area have long campaigned for a specific constitutional acknowledgment of the rights of the child. The referendum proposal so provides.
The proposed amendment also follows the recommendations of the Ferns report on clerical sex abuse concerning the use of "soft information".
All parties seem agreed on the need for constitutional reform. This spirit of political co-operation should not, however, preclude a proper review of the details of the amendment. The good intentions of the Government are no substitute for the strict scrutiny of others. One issue worth examining is the amendment's pledge to ensure that the best interests of the child are treated as paramount in adoption, care, custody and access proceedings.
This provision seems to be intended to address public concern about decisions like that in the "baby Ann" case. There the Supreme Court ordered that custody of the two-year-old be entrusted to her natural parents rather than to the prospective adoptive parents with whom she had lived for almost her entire life. There is, however, a significant risk that the text will, in its current form, change nothing.
The Guardianship of Infants Act, 1964, already directs the courts to treat the welfare of the child as paramount in cases where "the custody, guardianship or upbringing of an infant" is at issue.
The proposed Article 42A.4 would effectively enshrine this statutory instruction in the Constitution, thereby underlining the importance attached by the law to the "best interests" of the child. This must be welcomed.
However, the argument can be made that by simply restating an existing law (albeit in constitutional form) the amendment may not substantially alter the way in which the law operates in practice. The best interests of the child are, after all, a factor to which the courts already have regard.
Will a stronger repetition of this rule therefore have any practical effect?
In cases like baby Ann's, the perceived problems flow not from a failure on the part of the courts to consider the child's best interests, but from the obligation imposed by the Constitution on the courts to balance the welfare of the child with Article 41's protection of parental autonomy.
The courts are currently given two contradictory directions by the law. This places judges in a very difficult position in situations where the wishes of the parents are argued to adversely affect the child's welfare.
On the one hand, the court is told that the welfare of the child is paramount. On the other, it is reminded that the right of the parents to take decisions should not be questioned. If this amendment was adopted, the courts would still be faced with this often intractable task.
In the past, the judiciary has tried to square this circle by presuming that the best interests of the child are protected by the decisions of the parents.
This presumption is not based on the evidence before the court. In fact, in several cases, the evidence has suggested that the parents' preferred course of action may have a detrimental impact on their child.
With baby Ann, for example, expert witnesses gave testimony that removing Ann from the couple to whom she was attached could cause psychological damage. This was insufficient, however, to rebut the presumption that her best interests were protected by her parents' decision.
In 2003 the Supreme Court similarly relied on the presumption to refuse to allow the carrying out of a heel-prick test on an infant against the wishes of his parents. This was in spite of the fact that the test was accepted by the court to be "in medical terms . . . unquestionably in the best interests of the infant".
This reflected the very high threshold of proof required by the old Article 42.5 - that it be an "exceptional case" where the parents had failed for "physical or moral" reasons. Article 42A. 2.1 reproduces these restrictions. The amendment can therefore very plausibly be taken to require the courts to perpetuate the approach by which fixed Article 41 assumptions about what is best for a child take precedence over the evidence available in an individual case.
This is probably a result of the Government's desire to secure consensus and avoid political controversy. A striking feature of the political debate on this issue has been the lack of a clear vision on the part of any party. Mantra-like recitations of the importance of children's rights have been preferred to detailed engagement with the more difficult or controversial question.
Few have been clear, for example, on how they see those rights interacting with those of parents or of the State.
The central questions about what should be done in concrete cases has not been clearly considered. Should the State be able to intervene to secure necessary medical treatment for a child against the opinion of parents? In an adoption case, should the court pay more heed to the evidence of experts, or to the wishes of parents?
The text is fatally ambiguous on these issues, reflecting the ambiguities of the political debate up to this point. The referendum proposals on criminal offences also give rise to some concerns. The amendment would give the Oireachtas extensive powers to create strict liability offences. It is important to bear in mind what a strict liability criminal offence is.
Criminal offences traditionally require some fault or moral culpability on the part of an accused. As Mr Justice Hardiman has, however, explained, strict liability offences allow the "morally innocent" to be convicted of a crime.
An individual may face criminal charges in circumstances where he is without blame. Because of this obvious injustice, most countries permit strict liability offences only in very limited circumstances. That is not the case with this amendment.
Questions can be asked about the necessity for the removal of the defence of reasonable mistake in the first place. It shows a striking lack of faith in juries to suggest that they might believe that an accused honestly and reasonably believed that a 12- or 14-year-old was actually over the age of consent.
If the real concern is that such young victims might be cross-examined in court, might it not be preferable to deal with that issue in a referendum, rather than to introduce an unfair and over-broad system of no-fault crimes?
If it is felt, however, that a strict liability system is indeed required, its use should properly be limited to carefully defined circumstances. What should be made clear to the public is how the proposed amendment goes far beyond what is necessary to deal with the statutory rape issue. In the first place, the amendment covers offences against individuals up to the age of 17. Many students start college at 17. Many 17-year-olds might very easily pass as older people.
Is it reasonable to expose an individual to criminal conviction for sex with a college student whom they may have met in a bar or nightclub and reasonably (but incorrectly) assumed to be 18? Will such persons be imprisoned? Will they face certification as registered sex offenders?
Secondly, the amendment is not confined to sexual offences. It instead allows the Oireachtas to create no-fault crimes in respect of "offences . . . in connection with a child".
This is an astonishingly broad provision, which would give future governments sweeping powers in relation to any matters capable of being dressed up as "child protection" measures.
Might parents be made criminally liable for the absenteeism of their offspring from school? Could shopkeepers be given lengthy criminal sentences for the sale of alcohol or cigarettes to under-18s? Will broadcasters be pursued for publication of material deemed unsuitable for children at any time of the day or night?
Could the phrase "in connection with a child" even cover cases in which the child is an accused?
Such offences would apply even if the accused parent, shopkeeper, TV station or child was not at fault. Hypothetical as these examples might be, they do illustrate the extensive powers which this amendment would confer on our politicians. The people may, or may not wish to confer such powers. But the public should be clearly informed that that is what they are being asked to do.
In her address last week, Mrs Justice McGuinness emphasised the importance of careful consideration rather than pre-election speed. "The important thing is to get it right rather than rushed." Like her words 15 years ago, this is, again, a call that should be heeded.
Eoin Carolanis a practising barrister and a lecturer in constitutional law. He will be among the speakers at the conference on Children's Rights and the Constitution in Trinity College Dublin today