Constitution not at fault for our failings with children


OPINION: I favour cherishing children and ensuring their rights are enforced, so why then am I so uneasy about the referendum?

Making a change in our Constitution is a serious step.

It may happen when a legal case declares that a piece of legislation cannot be enforced because it is in conflict with the Constitution. The choice for the voters is then clear: do they really want the law that has been set aside by the courts or not?

It may also be needed when the legislators wish to join the Republic with an international body that they consider would be in its interests but would not be covered by the Constitution.

One could include the referendums that arose out of the membership in the European Union in that category. Again, the voters have a choice as to whether they want such membership (or a specific change in traditional procedures), with all that it would entail, or not.

This time the referendum is proposed because legislators, the members of the Dáil and Seanad, have in mind some legislation that they think might not be covered by the existing Constitution.

The good guide that has been issued by the Referendum Commission to help the voters explains there are four main elements in the proposed amendment.

First, the rights of children will be explicitly guaranteed. These rights are not listed in the referendum and it will be a matter for the courts, on a case-by-case basis, to identify the rights protected by this provision.

Second, there will be three changes from the existing article 42.5 to make it explicit that:

– the State may intervene to protect the child whether or not the parents are married to each other;

– “the existing article provides that intervention may occur if the parents fail in their duty towards the child for physical or moral reasons. The proposed new article provides that the intervention may occur if the parents fail in their duty towards their children to such an extent that the child’s safety or welfare is likely to be prejudicially affected.”

– “the existing article requires the State to use appropriate means and does not require that these means be set out in law. The proposed new article provides that the State’s intervention must use proportionate means, which must be set out in law.”

There are, in addition, two clauses proposed that deal with adoption.

Again, going to the commission guide for help, voters are told: “If the proposal is passed, the proposed article 42A.2.2 will mean that the State must put laws in place allowing for the adoption of any child, whether or not the parents are married to each other, if the following conditions are met:

“ – that the parents have failed in their duty for a period of time to be specified in law.

“ – that the best interests of the child require that adoption take place.

“The proposed new article 42A.3 will mean that laws must be passed to allow for any child to be adopted by being voluntarily placed for adoption.”

It is well known that there are problems in the provision of adequate or proper care for too many children in the Republic. The children then become “problems” for themselves and those around them. Excellent reports have been compiled but, more significantly, if we walk through any town or city we can see the examples.

Indeed, in the field of so-called petty crime and in other not so venial matters, a visit to the juvenile law courts will reveal an unacceptable number of children who have broken the law. The defence is often that they receive no acceptable level of care. And this is too often the truth.

The proposed amendment lays great emphasis on the importance of getting “the views of a child capable of forming his or her own views” where proceedings are taken by the State to protect the safety and welfare of a child and where issues of adoption, guardianship, custody of, or access to, a child arise.

“The views of the child are obtained and taken into account in many court proceedings at present but there is no explicit reference to the views of the child as a consideration in determining proceedings,” the commission guide states.

I am in favour of protecting, and cherishing children and ensuring that their rights are rightly, indeed implacably, enforced in Ireland.

Why then am I so uneasy about this referendum?

We have had referendums before and never passed the legislation needed to bring them into effect. I would prefer to have the necessary law before the courts – and us – before passing the referendum. If it were properly drafted the courts might well accept it.

The Constitution is quite explicit. Article 42.5, the article that is to be replaced, states: “In exceptional cases, where the parents, for physical or moral reasons, fail in their duty towards their children, the State, as guardian of the common good, by appropriate means, shall endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptible rights of the child.”

The “appropriate means” will cost money. These have been identified in the reports mentioned already. Indeed, anyone involved in trying to improve the problems of child neglect, abuse and injustice will give a list of requirements that will initially cost some money, even though they will also save considerable sums in other areas.

But the “means” need to be established now. Once again the legislature must act.

There is a significant possibility that, without such steps by our politicians, the referendum will be passed and there will be a glow of national self-satisfaction but it will make no difference to children.

Perhaps this is an instance where we should blame ourselves and not our Constitution for the failings in our dealings with our children.

Dr Miriam Hederman O’Brien is a public analyst who has chaired numerous commissions and investigations including the independent review group investigating the handling of allegations of abuse at Our Lady of Lourdes Hospital, Drogheda.

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