New referendum will give us chance to say that our children matter

I’M guessing we’re about 60 days away from a referendum.

If my guess is right, that referendum will give our generation an opportunity that no previous generation has ever had. If we get the chance, and we vote yes, we will be doing something profound and important, something that will change the culture of Ireland for ever.

I’m talking, of course, about a referendum on the rights of children. That referendum will give us the chance to say that we demand, on behalf of all our children now and into the future, that childhood is genuinely valued as something that is fundamental, unique, and fragile. It will enable us to say that we want our children protected, respected, and heard.

I wish I had inside information so that I could tell you the exact date of the referendum, and what’s in it. I don’t. But I do know that the Government, and particularly the Minister for Children, has been working hard on developing a set of proposals to put to the people. I expect those proposals to be published some time around this day week, when the Dáil resumes after the summer.

That will start the ball rolling. There will be several weeks of debate in the Dáil and Seanad Éireann, and then the date for a referendum will be chosen, assuming the act containing the proposal is passed. If the usual pattern is followed, that will be 30 days after the passage of the legislation. So the likelihood is that the referendum will take place sometime between Nov 1 and 7.

That will, I reckon, allow a lot of time for debate and discussion, both inside and outside our parliament. Above all it will allow us to decide how we want to see children, and childhood, reflected in our Constitution.

So what will be in the measure? What will we be asked to say yes to? Again, you have to take this as an educated guess. Until the referendum Bill is published, none of us are going to see what’s in it. That’s fine — it’s right and proper, I reckon, that the Dáil should be the place where a referendum starts. That’s what the Constitution provides for.

But even though nobody outside Government has seen the words, it’s still possible to develop a pretty good idea of what they are likely to say. Here’s my stab at it.

First, it will be a new article, headed something like “Children”. That’s important for two reasons. First because it will give Ireland’s one million children their own article of the Constitution for the first time. And second, because there is already an article that sets out the rights of families, and the role of the family. With one exception, that I’ll come back to in a minute, there is no intention to change that.

We all know, after all, that the best place for any child is at the heart of a loving, caring family. For the great, perhaps the overwhelming, majority of children in Ireland, that won’t change. Nor should it.

This new article, therefore, will sit alongside the existing one. And it will have five broad elements, if I can use that term.

The first one will be a general statement that all our children have rights. They have rights because they are children (natural rights, that’s called) and they have rights that can never be taken away (imprescriptible rights, that’s called).

The second element is the one that will involve some change to the existing provisions about the family. At present, the State can intervene to protect children, in exceptional circumstances, as the Constitution puts it, “where the parents for physical or moral reasons fail in their duty towards their children”. Under this new element the State will be able to intervene, again in exceptional circumstances, where children are at significant risk, and the State will be obliged to intervene properly.

The third element will be a particular provision aimed at giving a second chance to a small number of children. It will enable children who have been abandoned by their parents to be adopted, even if the parents who abandoned them are married. This is not possible in any real way at present.

The fourth element will seek to ensure that in any legal or judicial setting where the future welfare of a child is at stake — in cases affecting care, for instance, or custody, or access — the best interests of child will have to be the paramount consideration.

The fifth and final element will say that in cases like these, where the welfare and best interests of a child are at stake, the views of the child will have to be established and given due weight. Of course this will have to have regard to the age and maturity of the child, and it will need expertise to ensure that children are properly listened to.

Now, I don’t want to be accused of over-simplifying anything. We haven’t seen the final words yet, and no doubt when we do there will be an eminent lawyer or ten on every side of every argument. There will, of course, also be an independent commission that will seek to offer an unbiased interpretation, and to explain any nuance of language.

But add up the principles behind it — all children equal; childhood has rights; the best interests of children must come first; children must be listened to when their futures are at stake; children must be protected when they are at risk.

AND then compare those principles to what we know. Tens of thousands of Irish children sent by courts to institutions where they were neglected, starved, abused, deprived of an education, at the hands of religious orders and under the eye of the state. All done for profit. No child ever heard. No judge ever compelled to ask, “is this in the child’s best interests?”

And compare those principles to other things we know. The fact that even more children have been afraid, hungry, neglected, abused, at home than ever were in an institution. The fact that our culture, for most of our lives, said that children should be seen and not heard.

I could write a separate column about each of the elements that are likely to be in this referendum. I’ve no doubt whatever that over the next 60 days, especially after the Bill is published, thousands of words of analysis will be written and published, parsing and analysing what every word and comma in the referendum means.

But it will boil down to this. In around 60 day’s time, we will be given a once in a lifetime opportunity to change the culture for ever. We will have our chance to say that our children matter. Parents all over Ireland, who fight day in and day out to help their children to grow strong and independent, will be able to vote for a provision that says that childhood is special and fragile, and that we — all of us — must protect it. The best interests of our children, written by us into our Constitution. We’ll never get a better opportunity.