With all political factions agreeing on the need for a referendum, Barnardos is about to launch a campaign to propose specific amendments, writes Fergus Finlay
The Nigerian writer Ben Okri once wrote that children show us what is good, what is true, what is pure, what is striven for and what is natural in nations and families. All of us want to believe children in Ireland are cherished and protected, loved and cared for. But we must ask the following questions:
* How can one in 10 children in Ireland live in consistent poverty, without adequate access to housing, nutrition, healthcare and education?
* How can one in three children from disadvantaged areas leave school unable to read and write?
* How can children with disabilities have so much difficulty gaining access to an education appropriate to their needs?
* How can mental health services for young people be so woefully inadequate, even though we have known for years that mental health issues, often including suicide, are on the increase?
* How can some children be homeless, and others disappeared from care?
* How (apart from in criminal proceedings) can children have no right to be heard in legal proceedings that directly relate to them and to their futures?
* How can children, even still, not be fully protected from different forms of abuse at the hands of carers, in inappropriate institutional settings, or within the family?
Last December, an All-Party Oireachtas Committee recommended the Constitution be changed to protect the rights of children. The committee's recommendation was the latest in a long line, dating back to the Kilkenny Incest Inquiry and including the Ferns Report, that all said protection of children and childhood should be a paramount concern for the State. All the political parties are in favour of change.
The Minister for Children is undertaking a review of the Constitution to "child-proof" it. Most recently, the UN Committee on the Rights of the Child included a recommendation in favour of constitutional change. And now, the Taoiseach has announced the intention to hold a referendum.
If it is to be meaningful, we must all ensure the referendum covers the protection and welfare of children. Organisations like Barnardos, with the Health Service Executive, which work with children and families every day, know how little priority children are really afforded.
Services for children are massively under-funded, and yet there are seldom headlines about the inadequate support for families in crisis and children at risk or the absence of preventative, early intervention and specialised therapeutic services.
Children are remembered when a crisis emerges and our state of blissful ignorance is shattered. When it emerged that those convicted of statutory rape - the rape of children - might have to be released because of a deficiency in the law, we were all horrified. That problem was fixed, at least temporarily, by a new law that allows children to be cross-examined in court so alleged abusers can attempt to prove the children had lied about their ages. And the issue seemed to disappear.
Legal experts tell us again and again that unless we do something real and substantial to copper-fasten the protection and welfare of children, the courts will always find themselves choosing between different sets of rights - and the rights of the child, set out nowhere, will be of secondary importance.
The irony is that when we discuss with politicians enshrining the protection and welfare of children in the Constitution, the questions that come back are: how can we be sure the people will support change in our Constitution on an issue like this? What changes could you make?
Later today, we hope to provide at least some answers to those legitimate questions. Barnardos is launching our Children's Constitutional Campaign at our conference on children's rights in the President's Hall of the Law Society. Specifically, we will be proposing the following addition to Article 40 of the Constitution (which deals with the personal rights of citizens):
"The State recognises the unique and vulnerable nature of children and promises to guard with special care their welfare. It shall by its laws and its actions protect and vindicate the welfare of children and such welfare shall be the paramount consideration in any decision made by the State, or its authorities, in relation to children."
We will also be proposing a change to Article 42.5, which at the moment allows the State to intervene to "endeavour to supply the place of the parents", but only where the parents "for physical or moral reasons fail in their duty towards their children". We will be proposing that that article be replaced by the following: "In exceptional cases, where parents fail to protect the welfare of their children, the State shall take such action as is necessary to ensure such protection."
The two changes we are proposing would place the welfare of children at the heart of our laws and Constitution, and place an obligation on the State to make the protection of that welfare its paramount consideration in all matters concerning children. It would enable and oblige the State to intervene in those rare cases where the welfare of children was not protected in the family context. But it would still recognise that the welfare of children is best realised in a nurturing family environment.
In proposing these changes, we are not claiming a monopoly of wisdom, far from it. People of all political persuasions, all income groups and all regions of the country have told us that they want to see the welfare of their children fully protected in the Constitution.
A major national opinion poll, which we are publishing today, shows we are reflecting the wishes of a significant majority of people who want to see our Constitution including a provision that protects the welfare of our children.
Now is the time, as the Taoiseach said last Friday, to give real meaning to the phrase "cherishing all the children of the nation equally", by putting it in the Constitution.
Fergus Finlay is the chief executive of Barnardos, Ireland's largest children's charity