A new dawn on protecting children

At last, a duty to do right by our children is in place, writes Catherine Ghent

IS this the morning after or a new dawn? Both turnout and result will and should be the subject of considerable analysis into the future.

It is disappointing that we did not come out in greater numbers to endorse this constitutional amendment, but there is relief that it has passed.

There is now a constitutional imperative — in cases where the State is taking children into care, in cases where parents are separating or getting divorced, and in cases where guardianship is at issue — to bring the child to the centre of the proceedings and make the best interests of the child the paramount consideration. There is also now a constitutional imperative to actively find out what children are saying about their own circumstances and preferences in decisions affecting them and give those views due weight having regard to their age and maturity.

In the area of adoption, the constitutional change means children of married and non- married parents must be treated equally and the new test will pare back the unfeasibly high requirement as presently exists.

A child in long-term foster care will now, subject to the establishment of failure on the part of their parents, have a constitutional right to be adopted which can only be exercised where it is in their best interests.

For the first time, we now have constitutional recognition and, importantly, affirmation of the natural and imprescriptible rights of children and the State has an obligation, as far as is practicable not only to protect, but also to vindicate those rights.

Does this change the legal status of children for the better? Yes. Does it represent a panacea? No. What this new constitutional article does, is advance legal obligations to protect and promote the interests of children and listen to and hear what they are saying.

Some have said the Constitution did not need to be changed, that legislation could have solved these problems. In relation to adoption, it could not have. In relation to child protection, while the best interests and voice requirements will represent the most significant change; there has been widespread acknowledgement that the threshold criteria for intervention in families needed re-calibration, so that decisions about a child would be taken, viewed through their individual lens and taking into account their particular circumstances.

This re-calibration has been passed, and although it will rightly remain an exceptional thing to remove children from their parents’ care; where that care has prejudicially affected their child’s safety and/or welfare, the State must step in.

The new requirement of proportionality emphasises an obligation to keep families together where it is safe to do so and will require greater attention is paid to early intervention and prevention strategies. The new shift in emphasis from blameworthiness on parents, to promotion and protection of the child’s right to safety and welfare, will be welcomed by all of us who have represented those vulnerable parents who love their children but cannot care for them.

We will not have noticed huge queues outside courthouses today or even in the coming weeks, months, or years, full of social workers aiming to take any child they want into care. We will not have woken up to the destruction of the family as the fundamental unit in society. We will not walk out our front doors to see as one prominent no voter suggested, “loving parents put on a spit”. It would have been better for all, had a more serious and thoughtful debate been had.

Much has been said about our “secret” courts. The in camera rule does require reform, but we must be extremely careful as to how we achieve this. The aim of the rule is to protect the privacy of children and families. At times it has been misused to protect the State. A mechanism must be found whereby the public are greater informed, but children and families are not put at greater risk. It struck me throughout the debate that there was an aspect of incredulity at what children need to be protected from, and unless we face up to the circumstances in which some children in our society are living, we will not fully understand why protection is necessary.

However, the purpose of giving information must be to promote greater understanding, not prurience. Marital breakdown and children coming into care are exceptionally sensitive incidents, which in and of themselves are both indicative of and generate huge pressures on those involved and this must be borne in mind.

The mechanics of implementing the new Article 42A will require substantial and urgent attention, in particular how to give effect to the requirement to hear the voice of the child. In public law cases, a guardian ad litem is sometimes appointed and this requires greater regulation, accountability, and independence. In the private law arena, parents going through separation and/or divorce proceedings, sometimes need to re-focus on what is actually happening for their child, rather than what they think is happening. Battle lines are often drawn in hurt, not just fact and it is extremely important that a new dispensation now exists which requires parents, lawyers, and judges to hear what children at the heart of acrimonious proceedings are saying. Judges will need specialist training and high standards, particularly in the district court, where most cases are heard, will be expected.

We have an abysmal history when it comes to not accepting responsibility for the welfare of our children and we will not eradicate with the passing of this referendum. What we have done, is acknowledge those failings and put in place a constitutional obligation to do better. It is definitely a new dawn.

Referendum reaction

“The Irish people have said they want to change the way we value and treat children in our society and in our laws.” — Barnardos CEO and yes campaigner Fergus Finlay

“The dinner party circuit is voting yes.”

— No campaigner John Waters on the differences in constituencies.

“Of course I accept that it was my responsibility as minister leading this campaign, but ... the intention was to give out information and to give as much clarity as possible because that’s quite clearly what the people needed.”

— Children’s Minister Frances Fitzgerald on whether she accepted responsibility for the Government website and booklet found to be unfair by the Supreme Court

“Contaminated.”

— No campaigner and former MEP Kathy Sinnot’s verdict on the result given the Supreme Court judgment on the Government’s information campaign

“Questions need to be asked about how the Government brought controversy into what should have been the least contentious referendum in the history of the State.”

— Fianna Fáil TD Robert Troy welcomed the result but questioned the Government’s performance

“The Government must now put in place the legislation necessary to give the amendment legal effect. It must also put in place the resources needed to vindicate children’s rights, especially for vulnerable children who require the protection of social services. It needs to match words with actions.”

— Sinn Féin TD Caoimhghín Ó Caoláin TD also welcomes the result but warns the Government that the work is only beginning

“It may well be that people’s voting pattern works better with their working pattern than it does with the kind of routine that families have on a Saturday.”

— Tánaiste Eamon Gilmore on the low turnout

“To the no voters and those who campaigned for a no vote, I’d just kind of like to say ... what Mother Teresa said: it’s more important to be faithful than to be successful.”

— No campaigner and ‘Alive!’ magazine editor Fr Brian McKevitt

“We want fair play for Seán Quinn.”

— Message written on a spoiled ballot paper in Cavan in support of the jailed Quinn

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