Experts claim proposed changes to law ‘lack teeth’

A GOVERNMENT proposal to give the rights of children specific recognition under the Constitution does not go far enough, according to a group of experts on constitutional and family law.

A bill, published in February 2007, forms part of a government commitment to hold a referendum in order to bolster the constitutional rights of children.

According to Dr Ursula Kilkelly of University College Cork’s Law Department, however, the proposal has “no teeth”. She, along with colleagues Dr Conor O’Mahony and Dr Catherine O’Sullivan, have made a submission to a joint Oireachtas committee on law reform expressing concern that the proposed amendment would do little to address the issue of children’s rights.

“Part of the amendment would recognise the rights of children but what we feel is essential is that the Constitution pledges to vindicate and defend those rights in the way it does for all citizens. Otherwise, the amendment will have not teeth,” she said.

Article 40 (3) of Bunreacht na hÉireann pledges that the state ‘guarantees... by its laws to defend and vindicate the personal rights of the citizen’.

The cohesion of the family is considered more important than the welfare of its individual parts, resulting in the rights of parents taking precedence over children’s. The proposed amendment acknowledges the rights of children as a group but fails to address the defending of those rights.

“Of course it is important to keep the family together if at all possible,” said Dr Kilkelly, “but that should not be at the expense of the welfare of the child. The wording at present is so weak that it is unlikely to address the current shortcomings in the Constitution. What is needed is a far more radical approach.”

Her colleague, Dr Catherine O’Sullivan agreed. “The proposed amendment is simply replicating the current constitutional position which prioritises the rights of parents over children. Acknowledging the rights of children is a far cry from vindicating and defending those rights,” she said.

“That means the problem is being perpetuated and not addressed. The amendment does not entirely replicate the current position as it, for instance, allows for the adoption of marital children but the main ambition of the bill to provide rights for children will not be met as it is currently drafted.”

According to the Irish Association of Social Workers, a referendum is urgently needed as social workers can now only intervene in extreme circumstances.

The proposed amendment has been on the back burner for the past year and the Lisbon treaty debacle has dampened any appetite among politicians for another referendum of any kind.

However, one positive outcome from the Roscommon case is that it is likely to generate renewed interest in holding a referendum. “I hope it will galvanise support for a more radical response,” said Dr Kilkelly.

“We either have to commit ourselves to put child rights first or accept we have the kind of laws we want.”