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  10th June 2010
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• The proposed children’s rights referendum

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The proposed children’s rights referendum

The wording (see page 15) of a possible children’s right amendment was finally published last month. It is lengthy and complex and gives rises to immediate concerns that it might give the State more power than it really needs to protect children, power that has been abused in other jurisdictions.

The debate we should have must centre not on whether children or parents should have more rights, but on whether parents or the State should have more rights.

The wording is based on an earlier proposed amendment. The Iona Institute was among a number of organisations that made a submission to the Oireachtas Joint Committee on the Constitutional Amendment on Children regarding this proposed amendment.

Much of what is in our submission is still relevant, particularly what it has to say about the concept of a child’s best interests, but also for its general discussion of the concept of children’s rights. We believe it provides a good introduction to the subject.

Our submission is quoted several times in the report of the Joint Committee.

So is constitutional law expert, Professor Gerard Hogan of Trinity College Dublin. Interestingly, he appears to be skeptical about the need for an amendment and also expresses reservations about the concept of a child’s ‘best interests’ because it leaves open the question in many cases of who get to decide what is in a given child’s interests, the parents or the State?

For example, with regard to a child's best interests he is quoted in the report as follows: “it is all very well to say that children's interests must be safeguarded. But who is to decide this and what does it mean? Save in stark cases -such as B V National Maternity Hospital where the child's life was at risk-the State can intervene only with caution. Otherwise, there would be a real risk, as Murray J pointed out, that parents with singular and and unorthodox views would find themselves overridden by official intervention.”

Its proponents say that this amendment is needed to protect children from abuse. However, the State already has the power to protect children from both abuse and neglect, as is fitting. It is currently permitted to intervene in families in “exceptional cases”.

Dr Hogan also emphasises this point: “In my view, experience has shown that Article 42.5 as it stands is sufficiently flexible and has weathered the test of time as well as any formula is likely to do. One could not, therefore, lightly recommend change on this point.”

Under this provision, there are currently 5,600 children in care.

The proposed wording removes the reference to “exceptional cases”. Does this mean that it will be allowed to intervene in non-exceptional cases?

There is much media focus at the moment on the sentencing to 14 years in prison of a man found guilty of repeatedly raping his son. The mother of this family was previously sentenced to 7 years in prison, also for incest.

Advocates of a children’s rights referendum are claiming this cases demonstrates the need to lower the threshold of intervention in families by the State.

But it does no such thing because the State already had the power to intervene in this case. It simply didn’t use it properly.

This was a very severe abuse and neglect case. The vast majority of children removed from their families and currently in care have suffered nothing like this level of abuse, thankfully, but nonetheless the State was still able to remove them using its current powers.

We are told that the word ‘proportionate’ in the amendment will prevent the State from ‘over-intervening’ in families. But presumably the Scottish authorities believed they were acting ‘proportionately’ when they removed obese children from their parents not so long ago.

It is the very condition of childhood that someone has to make decisions as to what is and is not in the best interests of children. In the vast majority of cases that has to be the parents. Only in a tiny minority of cases should it be the State.

So the question again is, will this amendment give the State too much power at the expense of both parents and children?