With no public debate scheduled for the upcoming Children Referendum, Catherine Murnane considers the arguments being made by the ‘Yes’ and recently created ‘No’ campaign.
On November 10th, the State will ask the nation for its opinion on a potential change to our Constitution. The change will alter the Constitution’s relationship with children and the rights they hold under it. Until this fortnight, no organised argument against the amendment had been visible, leaving none of us with any informed concerns about the implications that this change could have on Irish society.
With organisations such as Parents for Children, the Christian Solidarity Party and Alliance of Parents Against the State now publicly vocal on the issue, the need for a legitimate debate is paramount. For many people, awareness of this campaign is limited to a familiarity with the posters of a giant pencil-wielding child which can be found all over Dublin.
So what exactly is this referendum about? It’s about a State aim that has been in the pipeline for a number of years: to improve the rights of children and to ensure that the state protects those rights. Should it pass, the amendment will alter the structure of the Constitution, inserting a brand new article to follow after Article 42 which concerns education. The amendment will also delete the last section of Article 42. As the Constitution stands, this is the only area that directly addresses the requirement of state intervention in scenarios where parents have failed in their duty to provide for their children. Article 42A will take on that role instead. Though it may seem like a mere structural change, there is a whole lot more to it than that.
“The amendment will make very specific changes in relation to adoption,” explains Professor John O’Dowd, Constitutional Law lecturer at UCD. “A married couple in future will be able to give their child up for adoption voluntarily. At the moment only unmarried couples can, so that will be changed.” The amendment will also make it easier for the State to introduce the option of adoption without the consent of parents when it is in the “best interests of the child”.
This changes the current standard which is required to be met for this to occur. O’Dowd describes that standard as one where “there has been a total failure by the parents or abandonment of the child”. Thus, involuntary adoption will be permitted under this amendment when it is in the child’s “best interests”, a standard which will be left to legislation to precisely define. In practical terms, this will increase the number of adoptions that take place in Ireland. O’Dowd believes there to be “about 2,000 children in foster care at the moment who might be affected by this and not all of them, but several hundred could be adopted by foster parents.”
This increase in the State’s responsibility for children is supported by a number of children’s charities. According to Catherine Joyce, Head of Advocacy at Barnardos, this referendum is something the charity has been campaigning for over the last number of years. “We had a conference in 2006 that looked at the need for Constitutional change. We’ve fought for it for a long time. It’s crucially important for the progress of protecting children in Ireland. The support such charities are giving to the yes vote has become publicly evident in the last month.”
A number of organisations including Barnardos, the Children’s Rights Alliance, the ISPCC and Campaign for Children have joined together to form the ‘Yes for Children’ campaign. The campaign group even organised a bus tour and have been travelling across the country canvassing potential voters since October 8th. At the launch of the campaign, Ashley Balbrinie, Chief Executive of the ISPCC, emphasised the need for constitutional change to ensure child protection mechanisms in Ireland are enhanced. “Turning a blind eye to the suffering of vulnerable children children is no longer acceptable. It is everyone’s responsibility to ensure we create a society where children are protected, valued and have the right to a safe and happy childhood.”
There is nobody on either side of the fence that would argue against creating such a society. Rather, the division in this referendum arises from the implications that this amendment will have on state childcare functions within such a society.
The first area of debate in this referendum is the concept of preventative intervention. We must consider whether or not it is appropriate for the state to interrupt family life at the first signs of problems in the aim of preventing a child from being deprived of their best interests. Joyce says that Barnardos are “hopeful that the amendment will place a better emphasis on the well being of children and family support services so that early intervention and preventative support services exist which will allow the state to move in before the situation reaches crisis point.”
However, Kathy Sinnott, member of Alliance of Parents Against the State, is concerned about the consequences of giving the State the authority to intervene too early. She points to the wording of the currently standing Article 42.5 which is to be removed in this amendment. “Under this Article, the state are obliged to step in by appropriate means in situations where the family has failed. Appropriate here means according to the needs of the child. In the new Article, regard must be given to the natural and imprescriptible rights of all children from day one. Under the current Constitution, the family has regard for that and the state is supposed to support them if they are struggling.”
Thus, the fear is that this amendment would give power to the state to take a predictive approach where, for example, a mother who has been caught shoplifting or has a history of drug use could be deprived of the opportunity to even try raising their child. Sinnott claims: “A lot of people change for the better when they have a child. A bond is created.”
It would appear that her desire would be for the state to increase the assistance it gives families in raising their children rather than removing them from their family environment. She references the significant position of ‘the family’ in the Constitution and the special protections it receives under under Article 41 to support her argument. “The family is the natural habitat of the child. There is recognition in the Constitution that the child is going to thrive in the family unit.”
However, O’Dowd reminds us that Article 41 and the protections it provides will still remain in force should this amendment be passed. More so, he focuses on the use of the wording of the amendment which makes the best interests of the child the “paramount” consideration in such scenarios. This places the best interests of the child above any other rights or interests in the Constitution, including those of the family. He explains that “the Courts will have to read that under a presumption of constitutionality and there is a significant constitutional presumption that the welfare of the child is best served by parents”.
Sinnott also argues that the paramount nature of the child’s best interests will only relate to cases taken by the state against parents, not those taken by parents against the state due to the absence of Article 42.5. “The Sinnott case couldn’t be won under the amendment. This was a case where a mother was unable to provide for her son due to a disability and sought for the State to assist her. Article 42.5 was critical to the success of this case which got education for children all over the country.”
On the other hand, Joyce believes that the amendment does not give more power to the state, as there is a requirement for any decision to be proportionate. It is an avenue for the State which she feels is necessary, especially when you look at the figures. In 2011, there were over 32,000 referrals relating to abuse and neglect, and of that number, 1,500 cases of abuse and serious neglect were confirmed. On top of this, according to a recent report on child deaths, some of those children who had died in the care of their families, had in fact been known to State services. It is key that the State has early intervention in cases such as this, however Joyce is clear that there are numerous safeguards in place to stop the abuse of this power, not least of which is the requirement of proportionality.
Joyce argues that the amendment “obliges the state to provide more proportionate responses regarding children’s needs. In Barnardos, we only use the option of taking children into care where there is a significant risk. We need to have that option because there are sadly cases where children are not safe at home.”
Another area of concern that has been highlighted about the proposed amendment is the generality of Article 42A.2 which describes the role the State must take as a guardian in situations where parents have failed to provide for their children. Article 42A.2.2 outlines the State’s ability to to organise the adoption of children in such circumstances. Sinnott sees this as forced adoption. “I have checked with two constitutional lawyers and it’s involuntary adoption, which is the same as forced adoption. This when it comes to the failure of the parents, the bar is raised even higher.”
O’Dowd, however, considers the leeway the provision gives to the Oireachtas to determine the exact mechanisms of the involuntary adoption process. “The government proposes that there be a 36 month waiting period, but that’s what they propose in the legislation.” The time frame and procedures are left to government functions to define.
Sinnott has also publicly vocalised her concern on the potentially dangerous doors that this provision opens to the introduction of compulsory vaccinations for children. “When the State is allowed to decide the best interests of the child and it is written in the Constitution, then that includes medical policy.”
O’Dowd expresses similar concern. “I suppose if you look at the generality of Article 42A.2.1, you could say that it opens up the issue of compulsory vaccinations. The response would be that there is no intention to introduce compulsory vaccinations, but that’s not really relevant. The issue is whether it is lowering Constitutional barriers.”
And that’s what you have to decide. When reading the Referendum Commission’s Independent Guide and the wording of the amendment itself, consider the arguments that have been provided above by those with legal and practical knowledge in this area. The debate is not about whether are not we like children or whether or not they should be protected by our Constitution. The fact that organisations renowned for advocating children’s rights appear on both sides of the debate demonstrates this. Rather, the question here is whether or not this amendment and the subsequent changes it will make to childcare and family law are the correct ways of ensuring children’s rights are fully recognised in Ireland. When you tick a box on November 10th, make sure you know why you’re doing it.