Facing up to vote’s reality

Misleading information is being presented to the public as part of debate on the children’s referendum, writes Conor O’Mahony

LAST Wednesday in this paper, I wrote an article dedicated to illustrating why I believe the constitutional amendment on children will not give the State any additional or enhanced powers to intervene in family affairs to protect children. You can imagine my surprise, therefore, when during the TV3 referendum debate, John Waters quoted me as saying the amendment would make a “significant” change to the powers of the State. To his credit, Vincent Browne read out my email clarifying that I had been completely misquoted, but since an hour had passed in the meantime, the damage had been done.

This was only one of many instances of misleading information being presented during the debate. One of numerous other examples came when Kathy Sinnott tried to claim that the amendment would remove the provision of the Constitution relied on in her son’s case against the State for failing to provide him with a suitable education. She was referring to Article 42.5 (State supplying the place of the parents by appropriate means); but the Jamie Sinnott case revolved entirely around Article 42.4 (free primary education), which is not being changed at all by the amendment.

Article 42.5 was not mentioned by the High Court in the Sinnott case — not even once. It was only mentioned in passing in the Supreme Court, and when it was, it was to justify holding against Mr Sinnott, and not in his favour (as Ms Sinnott tried to claim).

One wonders whether Mr Waters and Ms Sinnott are deliberately distorting the effect of the amendment or whether they simply don’t understand it. The irony of their exaggerated claims is that, politically, they should actually be quite pleased with the wording of the amendment. It seems to have placated the children’s sector without proposing any real shift in the current constitutional balance between parents, children, and the State. This is probably the main reason why some prominent conservatives (such as David Quinn and Ronán Mullen) who might have been expected to campaign for a no vote have not done so.

If there is a reason to vote no, it is not because the amendment changes so much, but rather because it changes so little. Three sub-sections of the proposed Article 42A — the statement of the rights of children; the provision for State intervention where parents fail in their duties towards their children; and the obligation to legislate for making the best interests of children paramount in court proceedings affecting them — are little more than a restatement of existing law.

The express statement of children’s rights in Article 42A.1 has a symbolic value, but adds nothing concrete to existing constitutional law. The powers of the State under Article 42A.2.1 to intervene to protect children are (as I argued last Wednesday) almost indistinguishable from current law and practice. The obligation to legislate for the best interests principle is redundant, as legislation of this sort has existed since 1964.

The provision relating to ascertaining the views of the child has potential to make a modest change, particularly in custody and access cases (where no such provision currently exists), but this is not something that the no campaign really objects to. Thus, given the exceedingly limited scope of much of the amendment, campaigning for a no vote on the basis that the amendment marks a radical change to our constitution is simply misguided. One could legitimately campaign for a no vote on the basis that the amendment is a missed opportunity for real reform — but apart from a few single-issue groups, the major figures in the no campaign have missed this point.

To an extent, the exaggerations of the no side are mirrored in the yes side’s overstatement of what will be achieved if the vote is carried. The best reason to vote yes relates to the one area where a substantial change will occur, namely the provision that allows children of married parents who are in long-term foster care to become eligible for adoption if their parents have abandoned them for three years and there is no reasonable prospect of them resuming care of those children. This will rectify the legal limbo in which hundreds of such children grow up. All other changes that might potentially flow from the amendment depend on the extent to which the Oireachtas and courts are willing to actively engage in more child-centred policy formation, legislation, and adjudication. The amendment will not guarantee any of that — if passed, the real test will be whether it triggers the necessary shift in mindset.

* Conor O’Mahony lectures in constitutional law at University College Cork

The amendment as it is proposed does not go far enough, but is a worthy starting point, argues Caoimhghín Ó Caoláin

CHERISHING all children of the nation equally has been a long-standing goal of Sinn Féin.

It is a sad situation that currently not all children in Ireland are cherished equally, and rectifying this requires urgent constitutional change. It is for this reason that Sinn Féin, alongside the ISPCC, Barnardos, the Children’s Rights Alliance, and the Ombudsman for Children, among many others, is asking people to come out on this Saturday, Nov 10, and cast a yes vote to begin a process of real change.

It is our view that every person should be afforded social, economic, gender, and cultural equality. We believe this encompasses equality for all, irrespective of race, age, family status, ethnicity, or religion. As a part of establishing an equal society, legislators have a responsibility to recognise that many diverse groups and sections of Irish society that need enhanced protection. Children are one such group.

Under the current constitutional framework, children are not recognised as having rights outside those of their family unit.

This amendment will, for the first time in the history of this State, acknowledge that children have rights as individuals. It will, if passed, establish that the best interests of the child must be considered the paramount concern for courts deciding on custody and guardianship issues. It will ensure that the voice of the child must be taken into account in all judicial cases concerning the child’s care, adoption, custody, and access. This is part of ending the too long and too tragic era in Irish history of children being seen and not heard.

In addition, it will allow for the first time for the adoption of children of marital birth parents, where the parents have failed in their duty, over a specified period, to ensure the safety and welfare of the child, affording those children another chance of being part of a loving, supporting, family. This will not let the State remove children from loving and safe homes where there is no risk to their safety or welfare, but will provide children who have been abused or are at serious risk with a second chance at being part of a caring, stable family unit.

We see the amendment, as proposed, as the first step on the road to real and substantive rights for children, including incorporating the UN Convention on the Rights of the Child into Irish law. The wording presented by Government falls short of this, but it is a foundation on which to build. It is our view that the minimum standard for children’s rights, within any state, within any legal system, is the UN Convention on the Rights of the Child.

Sinn Féin does not view this referendum as having the capacity to rectify the entire myriad of ways in which the State has failed to cherish all children of the nation equally. It is a first step on the road towards ensuring children are listened to, respected, and protected. We must do everything in our power to ensure the abuses inflicted upon the children of Ireland in the past never happen again.

This amendment does not do everything we would like it to do, but it does rectify some of the legal barriers that have, in the past, prevented the State from intervening in marital families where there is a child at risk or being abused. The amendment will recalibrate the threshold for intervention and place an onus on the State to support children and to adopt a “proportionate” response to parental failure so cases such as the Roscommon abuse case cannot happen again.

While the State must do everything in its power to help keep families together and ensure families are given every possible support, there will be cases where this is simply neither possible nor appropriate and, in those cases, the children concerned must receive the State’s proactive protection.

Childhood does not last forever. For too long we have seen generations of children not have their needs met. Passing this constitutional provision means the Irish people will have acknowledged that children have legal rights as individuals.

This is a real opportunity to make tangible changes to children’s lives in Ireland and we are appealing to people to be part of that change. Cherish all the children equally. Vótáil tá. Vote yes.

* Caoimhghín Ó Caoláin is Sinn Féin’s spokesman on health and children


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