ANALYSIS:The lack of a Government decision on a date for the children's rights referendum should not prevent discussion
AS THIS Dáil session comes to a close there is no sign that we are any closer to a referendum on a children’s rights amendment. The four months that have elapsed since the all-party committee on the topic produced its unanimously proposed amendment indicate a worrying uncertainty about this proposal in Government circles.
In the absence of any positive decision, rumours are circulating about potential problematic areas. One is the suspicion that inserting positive rights for children into the Constitution could impose positive duties on the State to provide for the vindication of those rights, which could open the door to “social and economic rights”, a concept inimical to policy-makers in this Government and its predecessors.
Non-governmental bodies claiming to defend traditional family values have also been expressing reservations about such an amendment, suggesting it is not necessary, could lead to unjustified State interference in the family and could undermine the family based on marriage.
The all-party committee recommended leaving Article 41 on the Family unchanged. It proposed instead amending Article 42, headed Education, by inserting a section spelling out the right of children to have their welfare “regarded as the primary consideration” in a wide range of circumstances.
Article 42’s existing provision for child protection states: “In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardians of the common good by fair and appropriate means shall endeavour to take the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
This has been held by the courts to require a very high threshold proving that, not only are married parents failing in their duty at any given moment, they are likely to do so long into the future. No such requirement is made for children of unmarried parents, as they are not seen as constituting a family under the Constitution, though the parents and children have personal constitutional rights.
The existing constitutional formulation also means the children of unmarried parents can be adopted with the agreement of the parents, while married parents cannot voluntarily place their children for adoption. These anomalies will be abolished if the amendment is passed.
The amendment proposed by the all-party committee acknowledges that the primary and natural carers and protectors of children are their parents, and guarantees to respect their right and responsibility to provide for them.
It also provides that where the parents fail in their responsibility towards their child the State shall “by proportionate means, as shall be regulated by law” supply or supplement the parents’ place. The word “supplement” indicates that the emphasis is on support for families, rather than on separating children from them.
We do not know what the final wording will be, but if it follows the recommendation of the committee it will provide a modulated framework for a measured response to a series of very real problems with our existing child protection system. It will not be a panacea, and will not fix the dysfunctional aspects of that system. What it can do is enable a thorough discussion of the best way to protect that minority who are deprived of a safe and loving childhood.
It is an indisputable fact that, while the overwhelming majority of children are lovingly cared for by their families, for a minority their family is a very dangerous place to be. We have all been made aware of situations where children are physically tortured, emotionally abused and sexually assaulted by their parents and close relatives.
Such abuse is no respecter of marital status. Some of the most horrendous cases of abuse – and even child murder – that have come to light have involved the children of married parents. The Kilkenny incest case, the Kelly Fitzgerald case, the McColgan sexual abuse case, the Monageer case, this year’s Roscommon incest and rape case, all involved married couples and their children.
Unfortunately, marriage does not fix whatever dreadful deficiency drove the parents in these cases to abuse, starve or kill their children, or to allow it to happen. Quite rightly, we do not prevent people suffering from addictions, psychological problems, personality disorders or other problems that may explain such cruelty to their own children, from marrying or having children. But when they do some of them are unable to adequately parent those children, whether they are married or not. Fetishising marriage and the family based on it will offer no protection to the children in such situations.
Such children need to have their right to be safe and grow up in a secure and loving environment upheld. The question is how.
If opponents of the proposed children’s right amendment present it as one designed to give the HSE more power to intervene in families and take charge of children’s lives, the number of people opposed to it will surely rise. The past six months has demonstrated again and again that the system of child protection in the HSE is dysfunctional and severely under-resourced.
But those who warn against State interference in the family should explain how the rights of children at risk can be upheld if not by the State. The State represents us, the people, and we all have a responsibility to the children of our society.
Carol Coulter is Legal Affairs Editor