Yesterday's Irish Times front page story appeared to be good news for the many people concerned about Government proposals to change the definition of the family to give rights to children. But certain questions remain.
In the wake of the High Court decision to release a paedophile from prison on the basis that the law under which he was arrested had been deemed unconstitutional, Bertie Ahern had used the eve of his party's Ard Fheis to announce that the Government would be putting a referendum before the people to ensure that children's welfare was the primary concern under the Constitution.
The reason that a referendum would be needed, it was claimed, was that, under the Constitution, family rights trumped children's rights.
Political caution, however, seems to have cooled Bertie's ardour for this change. It was felt that opposition from those anxious about the implications of the law for the Constitutional status of the family, might be too strong.
However, it is still envisioned that a referendum to enshrine children's rights will be held before the next general election. And the rights of parents may yet be infringed upon. One of the proposed changes involves "lowering the threshold for the State to intervene in cases where the welfare of a child is under threat by amending Article 42.5". Article 42.5 reads "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 for the natural and imprescriptible rights of the child."
So it already gives the State the right to intervene in circumstances where it feels that children's welfare is at risk. It will be interesting to know how the Government proposes to "lower the threshold". Already, since 1987, many constitutional scholars feel that the Courts have shifted the emphasis when interpreting this article from parents' rights to children's rights.
Irrespective of the exact proposal, the assumption behind the changes is the same. It is the notion that children's rights are in conflict with those of parent. In this context it is interesting to note the ruling of Supreme Court judge Adrian Hardiman in the recent "Baby Ann" case. He utterly rejected the oft-repeated assertion that the Irish Constitution "puts the rights of parents first and those of children second". Justice Hardiman went on to observe that the Constitution "fully recognises the 'natural and imprescriptible rights' of children, but that it recognises "the inescapable fact that a young child cannot exercise his or her own rights". Rather than preferring parents to children, Justice Hardiman pointed out the real preference of the Constitution, "it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights".
Such clarity of thinking is welcome. It would be even more welcome if it were prevalent in the upper reaches of Government.
28/12/06
Guardian poll on religion [David Quinn]
The headline in the Guardian over Christmas read: “Religion does more harm than good”. The sub-head read: “82pc say faith causes tension in country where two thirds are not religious”.
27/12/06
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