Greater protection for children's rights may have unforeseen consequences, writes Carl O'Brien
On first examination, the Government's plan to hold a referendum on children's rights is one which is likely to attract significant support from the public, children's rights campaigners and Opposition parties.
The scope of the proposed amendment makes five key changes in areas such as the rights of children; protecting the best interests of children in care and adoption; and addressing the fallout of the statutory rape controversy last summer.
However, even at this early stage, it is clear the changes could also have unforeseen consequences and complications.
The most popular change is likely to be the one which would provide for the introduction of offences related to sexual exploitation and sexual abuse of children.
The Oireachtas would be authorised to draft legislation to provide for a zone of absolute protection below which it would be automatically criminal to have sex with a child. This would also remove the defence of "honest mistake", used by some adults who have had sex with children.
While this change addresses the concerns raised during the statutory rape controversy, it would in effect give a carte blanche to the Oireachtas to set an age at which the offence of strict liability comes into effect.
Given the heated debate over the age of consent, it is questionable whether Opposition parties or the public will rush to accept such a proposition, especially in the absence of any draft legislation on the matter.
The issue of the protection of children being taken into care is also likely to receive a wide welcome, especially in seeking to introduce a uniform standard of child protection regardless of the marital status of a child's parents.
However, some groups may express reservation at the apparent lowering of the threshold for State intervention in families where children are considered to be at risk. This use of the term "proportionate" could arguably make it easier for a child to be taken into care and lead to an increase in the number of children in care, although the Government will insist this is not the case.
There is also the spectre of conflicting rights arising from the changes. In one part of the Constitution (Article 40), it speaks of the "inalienable" rights of the married family, yet in the planned change to Article 42.5 it seeks to treat marital and non-marital families in the same way. It will be left for the Supreme Court to make sense of these apparent contradictions.
All in all, there is little doubting the positive and robust safeguards for children's rights contained in the proposed wording. It will take a prolonged public debate, including a detailed teasing out of the implications of the changes, before the extent of public support for the measures becomes clear.