A FORTNIGHT ago, Enda Kenny sought to dampen down public speculation by his Cabinet colleagues on December’s budget by declaring that “silly season” was over.
However, when it comes to the forthcoming referendum on the constitutional amendment on children, silly season is just beginning.
Opposition to the amendment from individuals and groups of a conservative religious persuasion is predictable. Recently, Frances Fitzgerald, the children’s minister, rejected claims by former MEP Kathy Sinnott that the amendment could result in intelligent children from poor families being compulsorily placed for adoption with wealthier families so as to further their educational opportunities. This claim is transparently outlandish and unfounded, but similar accusations are sure to follow in the lead-up to the referendum campaign.
Opponents will claim that the amendment will result in the State looking over the shoulder of every parent in the country and stealing children away from caring and loving homes. No mention will be made of the fact that on any version of the proposal, enormous protection for the authority of families and parents will rightly remain enshrined in Article 41 of the Constitution, or that such an outcome would require the employment of armies of social workers.
What makes such speculation particularly silly at the moment is that the wording of the amendment has yet to be published. It was presented to the coalition parties at their recent think-ins and may well be made public this week. The question is: Will the Government bow to the scaremongering and put forward a weak and ineffectual amendment?
The programme for government gave a commitment to adopt a wording “along the lines” recommended by an all-party Oireachtas committee, of which the children’s minister was a member. It published a wording that was broadly welcomed by children’s advocacy groups and academic commentators.
The mere fact of inserting a provision on children into the Constitution will not necessarily change anything; the precise wording is everything. The 2010 proposal was designed to replace a 2007 proposal universally considered to be unfit for purpose. Its primary flaw was weak language. For example, while international law requires that the best interests of the child “shall be a primary consideration”, the 2007 proposal merely stated that courts should “endeavour to secure the best interest of the child”.
Worse still, this and other principles were not even made part of the Constitution itself; instead, the 2007 wording stated that “provision may be made by law” for certain issues (ie, legislation). This was entirely redundant since legislation already made provision for the best interests principle, among others.
The 2010 wording was welcomed because in all the key places it avoided weak phrases like “endeavour”, “have regard to”, and “provision may be made”. It unambiguously stated that “the welfare and best interests of the child shall be the first and paramount consideration” in cases concerning children. It also guaranteed the right of children to have their voice heard in proceedings affecting them.
When the final wording is published, this is what the public must watch out for. Reading the amendment, you must ask yourself: Does it place a clear duty on the State and the courts to put children first? Or is it worded in such a way that it merely gives the appearance of constitutional reform on children?
The fact is that this is a once-off opportunity. A weak amendment would be worse than none at all — if passed, it would act as a barrier to real reform in the future. If rejected, no government will broach the issue again.
We had a principled wording that had broad support in 2010. The minister herself, and the coalition parties, supported it then. Rather than get cold feet at the last minute and put forward something that is nothing more than window-dressing, it is imperative that the Government sticks to its guns and offers the people a real choice. Do not ask whether to repackage the status quo; ask the people whether they really want to make children a priority in our Constitution, and let them decide.
* Dr Conor O’Mahony lectures in constitutional law at University College Cork
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