We are being asked to reallocate family rights and give the State enhanced powers to interfere in family life, writes JOHN WATERS
ON WEDNESDAY, following the publication of the proposed “children’s rights” amendment wording, I listened in vain to RTÉ Radio in the hope of hearing some teasing out of the type of definitional and other issues which inevitably arise from any legal formulation.
The overwhelming sense of the coverage was of welcome for the wording and celebration of the fact that we are now to have the referendum for which – it was persistently implied – we had all been waiting for years.
One after another, the voices to be heard were those of long-time champions of such an amendment, punctuated occasionally by the voices of sometime sceptics who appeared to have momentarily scanned the wording and precipitately decided to row in behind it. Laughably, the only reservations were voiced by commentators who thought the amendment did not go far enough.
This absence of sceptical, cautious or neutral voices is especially ominous considering RTÉ will shortly be expected to provide a fair and objective platform for both sides of a democratic referendum on the issue.
In every programme, the implicit theme-question of the referendum was reiterated and consolidated: how could any right-thinking person object to the extension of constitutional rights to children?
This tone had been established by the Taoiseach, who in launching the Government’s wording declared: “For too long in Ireland we have lived by the dictum that children should be seen and not heard.” Who lives by this “dictum”? What Irish parent has contrived to bring a child into the world with the intention, express or otherwise, that that child’s voice should not be heard?
The question facing us in this referendum is not whether to give children constitutional rights, but whether to reallocate existing family rights so as to give the State enhanced powers to interfere in family life.
In view of recent revelations concerning fatalities among children in State “care”, any reasonable debate on this question would rapidly arrive at a disposition of wariness. But we must, it seems, forgo our right to an open discussion so journalists and politicians can parade their “pro-children” credentials.
There are several potential problems with this wording. For example, the proposed article 42a.1.1 states: “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.”
What, here, shall be the effect of the word “imprescriptible”? Article 41.1.1 already extends “imprescriptible” rights to the family, and these will purportedly endure, being “antecedent and superior to all positive law”. But one meaning of the word “imprescriptible” is: “Not capable of being lost or impaired by neglect, by disuse, or by the claims of another founded on prescription”.
What, then, will happen when two sets of “imprescriptible” rights come into conflict? What will legislators do? What will judges decide? And what, in the context of the proposed new article 42a.2.2, shall be the meaning of the word “exceptional”?
Who decides when the parents of a child have failed, sufficiently or often enough to justify an intervention by the State? What are to be the criteria? Economic means? Mental capacity? Culinary ability? What if both parents happen to be ill at the same time? Would this qualify as “exceptional”, as “failure”? And what, in the same proposed article, is the meaning of the word “proportionate”? Again, who decides?
These are rhetorical questions. We know judges will decide on the basis of so-called “expert” evidence and advice, which means, in effect, that these momentous matters will be disposed of according to ideological logic of precisely the categories of interests which have campaigned relentlessly for “children’s rights” – social workers and the like – creating a tautological decision-making context impervious to intervention from outside itself.
Since this debate first gained traction about six years ago, opponents of so-called “children’s rights” have advanced a persuasive argument that what was being attempted was the undermining of family life by reassigning parental rights to the State.
Previous proposed wordings were shot down because they sought to dismantle existing family protections in the Constitution. It is erroneous to interpret the new proposed wording as more “family friendly” merely because it leaves existing provisions intact. In effect, it fudges these issues for the purpose of getting the amendment passed, but leaves the important question in the hands of judges, who will in practice farm out their authority to those deemed to be “qualified”.
In recent years I have come across many disquieting cases of abuse of family rights by courts, social workers and other official agencies with near unlimited powers in this area. I have witnessed unbelievable vindictiveness on the part of social workers who later had their actions rubber-stamped by courts following the minimum of scrutiny.
I have seen Irish courts return the children of clearly blameless parents to foreign jurisdictions in the certain knowledge that these children would be put up for adoption against the wishes of those parents. I have listened on a mobile phone as a Garda officer snatched an infant from the arms of his loving Irish mother with the intention of delivering the child over to British social workers who pursued this woman to her home country, intent upon taking her child away. These outrages, it should be noted, occurred under the present constitutional dispensation, which we are told accords excessive rights to families and parents.
I freely admit: I have failed adequately to communicate the gravity of what I’ve found out, largely because of the power of the legal profession, which operates a hegemonic grip on the instruments of public reporting and commentary in this area – to the apparent indifference of the journalistic profession.
Many times I have sought vainly to persuade editors in this and other media organisations to take these issues up. Yet, these same organs of supposed democratic protection are now poised to campaign for the introduction of a regime which may well render such occurrences commonplace and beyond all possibility of challenge.