OPINION:THE LACK of debate on the children's referendum reflects the uncontroversial nature of the proposed amendment to the Constitution, but also how limited it is in scope.
The amendment is certainly not a threat to the rights of parents. We are not entering a “brave new world” of unbridled State power to intervene in the family, as the opposing voices to this amendment are unjustifiably claiming.
Nor, as John Waters stated in his column (October 5th), is this amendment seeking to radically alter the “ecology of family rights”. However, I agree with his analysis (October 12th) in one respect: the lack of debate on the amendment is worrying.
The amendment has four broad aims: First, article 42A.1 re-emphasises that the child, as an individual, has natural and imprescriptible rights which the State, by its laws, must in so far as it can vindicate and defend. This amendment is similar in wording to another provision of the Constitution (article 42.5) which is to be deleted if the proposal is accepted by the people.
These rights have been interpreted to include, among others, the right to be fed, cared for, educated and nurtured. This provision recognises that for practically all children in the Republic, it is their natural parents who will fully and adequately protect these rights for their children.
Second, article 42A.2.1 sensibly permits the State to intervene, in a proportionate manner and in a way that protects the natural and imprescriptible rights of the child, where the safety or welfare of a child is “likely to be prejudicially affected”.
The precise meaning of the phrase “likely to be prejudicially affected” has not yet been interpreted by the courts. Given the required harmonious interpretation of this provision with other provisions relating to “the family” in the Constitution, this will not seek to supplant decisions of the marital family unless there is some significant threat to the welfare or safety of the child.
Third, article 42A.2.2 and article 42A.3 will permit the Oireachtas to equalise adoption laws for those children from marital families with children whose parents are unmarried. Irish law, in particular the Adoption Act 2010 and the scheme of the 2012 Adoption Bill, provides extensive rights to the natural mother and marital parents.
Extinguishing parental rights may be done voluntarily, or in situations of abandonment. Adoption is a long and complex process and this amendment ensures that only where the best interests of the child are served by the adoption will it be permitted to go ahead.
Finally, under article 42A.4, in resolving proceedings relating to preventing the safety and welfare of the child being prejudicially affected, or in adoption, guardianship, custody and access disputes, the “best interests of the child” is to be the paramount consideration.
In such proceedings, in so far as is practicable and subject to a child’s age and maturity, courts must take into account the views of the child.
The phrase “best interests of the child” causes some concern to those advocating a No vote. On RTÉ’s Morning Ireland programme on September 20th, Kathy Sinnott argued that this principle was an invidious invasion of international law (article 3, UN Convention on the Rights of the Child) into domestic law.
She also referred to the Supreme Court case in 2001 in which the State successfully appealed a High Court decision requiring it to provide education for her son, Jamie, who has autism, beyond the age of 18.
Sinnott argued that whereas the Constitution provided adequate protection for children with special needs, the State built its case on the provisions of the UN convention, which were now to be confirmed by the proposed amendment.
However, this is not reflected in the actual decision of the Supreme Court, which came to its decision firmly on the basis of the education provisions of the Constitution.
The background to the introduction of the amendment is sadly all too well known: decades of societal and legal ignorance or wilful blindness to those in industrial schools and laundries, coupled with a depressing amount of child physical and sexual abuse. No amount of laws, constitutional or otherwise, can prevent all forms of neglect or abuse of children at the hands of those who should be caring for them, or from predatory strangers. Even if funding was increased to State and administrative agencies whose role is to protect children, this would not offer a cast-iron protection of children against all forms of abuse.
It would be wise that those advocating a Yes vote do not overstate the potential impact of this amendment. It will not, of itself, deal with significant issues relating to the funding and administration of child and family welfare services offered by the State.
It does not provide for the best interests of the child or for the views of the child to be considered, in matters outside general child welfare/protection disputes. In areas of social welfare, housing, transport, educational provision and so on, there will be no obligation upon State/administrative agencies to have regard to the best interests of the child or the voice of the child.
Indeed, if one looks back at the key complaints that children or their parents have made to the children’s ombudsman, many relate to public authorities not taking into consideration the rights and/or voice of the child in disputes that affect the family.
So, while this amendment should be passed, it is not the panacea to cure all ills. Given the recession, the task of the Oireachtas, in terms of resources for child and family services is proving ever more difficult.
While the amendment will address particular issues relating to children, it does not reflect a genuine understanding of the voice, the rights, and the inherent dignity of all children. For now, these issues must be addressed by the political system. So while I will be voting Yes, I also regret that a more transformative and less cautious amendment will not be before us on November 10th.
Dr Liam Thornton is a lecturer in law and director of clinical legal education at the UCD school of law and an author at the group academic blog Human Rights in Ireland. With Prof Aoife Nolan (Nottingham), he is organising a blog carnival on the children's amendment at humanrights.ie