Ut Head-to-head: Children’s Referendum

By Graham Murtagh
University Times
November 9, 2012

http://www.universitytimes.ie/2012/11/09/ut-head-to-head-childrens-referendum/

When you look back on the history of this rocky Atlantic outcrop, children, for all our blather about equality and respect, never really got much of a look in. Undoubtedly, traditional sensibilities viewed children as something to be seen and not heard and to be heard only when spoken to. Where such consequential conversation was deemed necessary, it should at least be mercifully brief. The proclamation, held aloft, to ‘cherish all children of the nation equally’ seemed to produce an unanswerable gulf between those under and over the age of majority.That culture produced one of the greatest scandals of modern times – the Cloyne Report into abuse in Catholic institutions is but one tome that details a history of menacing, dangerous abuse and recalls lost innocence. The pleas of children went unaddressed and attended to, and the humiliation was allowed to continue relatively unchecked. Our sense of traditionalism outweighed our sense of duty towards children, to their cost and to ours – an unwillingness to intervene because it was ‘none of my business’.

That approach simply doesn’t wash today. Tomorrow, Saturday, you will be asked to vote in a referendum on an amendment that, if passed, will place children’s rights front and centre for the first time. This is our time to truly give effect to the intent of our forefathers, and the insertion of Article 42A will provide for greater protection for those in our society who arguably need it most.

The amendment consists of four parts, and provides for the deletion in its entirety of Article 42, and its replacement with Article 42A. The first provision of the new section is a statement of intent – Article 42A.1? provides for an explicit recognition of the rights of the child. These rights are natural and imprescriptible, and therefore cannot be lost under any circumstances. The section amounts to a consolidation of existing Constitutional rights that apply to all citizens, this time tailored to be absolute in their protection of children specifically. This is a long overdue provision – for too long, we failed to accept that children, while possessing intelligence and independence to be themselves and to make their voices heard, are not adults and so deserve explicit protection. That is the protection that Article 42A.1? gives.

Article 42A.2? will provide the State with the ability to supplant the role of parents where they have failed in their physical or moral duty towards their children, although intervention must only occur in ‘exceptional cases’ where the welfare of the child is likely to be prejudicially affected by this failure and must have due regard to the rights of the child from the preceding section. This provision is the most far reaching of the new Article 42A, and the one that has caused the most controversy. Firstly, the section takes the sensible step of recognising how a lot of families in Ireland live today, and applies to both married and unmarried parents equally. This is a positive step in terms of broad constitutional jurisprudence, as Ireland finally appears to shirk the bonds of strict marital family for the application of rights.

Secondly, the section provides that intervention may occur by the State in exceptional cases where the welfare of the child is likely to be prejudicially affected. One can hardly deem this provision to be unfair or unjust. ‘No’ campaigners have been battening down the legal hatches on this reform, stating that this provision will be used willy-nilly in the current economic climate, to shake children from the clutches of the debt-riddled, negative-equity tied, unemployed parents. This is an unrealistic view – safeguards exist to ensure that the provision applies in exceptional circumstances, and with regard to the rights of the child. The section also provides that the State will intervene using proportionate means (rather than ‘appropriate’ means as at present), tightening the legal language and requiring that the method of any intervention must first be set out in law, providing for less arbitrary, more predictable results from the courts where interventions do occur.

The third section, Article 42A.3? concerns adoption. Again, regardless of marital status, the amendment would ensure that laws must be put in place to facilitate the adoption of children where parents have failed in their duty. Crucially, the amendment also proposes to allow children of married parents to be voluntarily adopted – a fundamental change from our present position, but an altogether better one for those children that have grown up in families that are not biologically theirs, but are nonetheless their families.

From my perspective, the last provision is the most interesting. Article 42A.4? provides firstly that any resolution involving State intervention must have regard to the best interests of the child, and secondly acknowledges that the State must have regard to the opinion of the child themselves in any such resolution, being cognizant of both age and maturity.

In one fell swoop, we have come full circle. This section recognizes that children are to be seen and heard, and deservedly so. The most basic law, our charter of fundamental rights, should ascribe that our children are people too, and what can be more fundamental than that? Here, the proclamation truly meets its constitutional match. The proposed Article 42A places the rights of children on an explicit footing, and gives them a deserved role in their fate where fate has dealt them a cruel hand.

When you walk into the booth tomorrow, think of the children. Vote yes.

Dom Gallagher

Contributing Writer

Aristotle is wiser than the Irish Government. Read his “Politics”, the family is the smallest unit of the state. A “Yes” vote will fracture the unity of the family, taking the control of children from parents and placing it in the hands of a state with a recent track record of incompetency and corruption. This is not in the best interests of Children. The reason why Aristotle argues that the family is the smallest unit of the state is because children are not rational. They do not know what is in their best interests. Given the opportunity children will skip school to live on a diet of cake, TV and computer games.

As children are not rational they cannot be involved in deciding upon and agreeing to abide by the constitution of the state which guarantees them rights. They therefore do not have rights because they do not choose them by themselves. You cannot have rights which you do not choose yourself. It is a contradiction to try and enforce someone else’s’ rights. Ie. Forcing someone to vote when they would prefer to abstain or invading a country to enforce democracy.

The amendment is well aware of this and has not given children rights. They do not have the right to vote and their views shall only “be ascertained and given due weight having regard to the age and maturity of the child” 42.A.4.2. They are not being treated like adults.

From this we see that the amendment is no more “child centred” than before. The child’s input will still be valued only so far as they are rational.

What has changed is that instead of the parents deciding upon what is in the best interests of the child it is the state who will do this. The state has usurped the natural place of the parents.

The state has always had the power to decide upon the safety of the children from physical harm and sexual abuse. Failures in this area are due to a failure of our social workers, not our laws.

What now changes is the state also has the power to decide upon the “welfare” of the child.The Guardianship of Infants Act 1964 says “welfare” includes a child’s “religious, moral, intellectual, physical and social welfare”. This is very worrying. How can the state decide on a child’s “intellectual” and “moral” welfare? Will the state decide which ideas are good and bad? But most shockingly, how can the state decide on a child’s “religious” welfare? The state can have no say in this area. To do so would be a transgression of the separation of church and state. We cannot allow this attack on our religious freedom.

There are many good natured people supporting the “Yes” vote who care deeply about the wellbeing of children. They have been rocked by the recent abuse scandals in Ireland and they want to take a stand. However this is not the way to do that. Our laws are already sufficient to protect the safety of our children, we must apply them with greater vigilance. We must not give the state the power to bring about the “adoption of any child” 42.A.3 if the state decides that the parents’ raising of that child is contrary to the state’s own views.

This amendment is an over-reaction caused by fear and it has parallels with the Patriot Act in America. Through fear of terrorism the U.S people allowed the U.S government to detain an American or Foreign citizen without charge. Furthermore to assist terror investigations they may now monitor religious and political institutions without suspecting criminal activity. Likewise through fear of abuse the Irish people are in danger of giving up to the state their rights to decide upon the “religious, moral, intellectual, physical and social welfare” of their children. In each case freedom is destroyed for the sake of safety. We must fight to defend our freedom, our children will thank us for it one day.

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin