Given the complexity of the issues, it's a blessed relief that the proposed referendum on children's rights will not proceed before the election, writes John Waters. But the blessings should not yet be counted.
While I was participating in a recent debate at the Newman Society in UCD, along with Minister for Children Brian Lenihan, Mr Justice Adrian Hardiman of the Supreme Court and Fergus Finlay of Barnardos, two things struck me.
One thought was that the proposed wording published some weeks ago by the Government is, ostensibly, so diluted (compared to the initial soundings) that it might fail to attract support at both ends of the spectrum - from those who object to State interference in the family as a matter of principle, and those who applaud such interference but do not regard this amendment as meeting their demands. The other thought was that the wording is so cleverly constructed that it may falsely reassure the former group, while obtaining the support of the latter on the basis its provisions can be improved on by legislation. The latter seems more likely.
The new wording, on the surface, appears a simple assertion of the rights of children, combined with a handful of measures concerning adoption and the sexual abuse of children. But, examined as a package, it goes much further than its individual elements suggest. In a general sense, it is worrying that this amendment proposes that the constitutional protection of children would be removed from the general context of family protections. The intention is to create a new subsection of the Constitution, Article 42 (a), replacing and incorporating the substance of the present Article 42.5, which outlines the context in which the State may intervene in families.
Article 42 (a) will bring a range of issues affecting children under the ambit of a discrete section dealing specifically with children. The problem is there is no predicting how this will affect the ecology of family rights now provided for in Articles 41 and 42. The amendment would enable a family's children to be provided for separately and, more importantly, on an individualised basis, potentially in opposition to broader family rights currently provided for on a collective basis and vested in the married parents of children. There is no telling how a future Supreme Court might reconcile or balance these potentially counterposing rights.
There are, in addition to this general point, a number of difficulties with the detail of the proposed amendment. Section four, for example, stipulates that "the best interests of the child" shall be the guiding principle of any court proceedings. Actually, this is already nominally the case, and what has emerged so far is not encouraging as to the implications of this becoming a constitutional imperative. How are "the best interests of children" to be defined?
Who decides? Where can the citizen parent go to discover the principles of such a provision and its guiding philosophy? Why are we not required to vote on these details also? Subsection 5.1 of the amendment provides for the "collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children or other persons of such a class or classes as may be prescribed by law".
Most of us want to protect children from sexual predators. But this clause goes much further than is required to, for example, monitor known paedophiles.
First, it refers to "endangerment", a concept not necessarily connected to sexual abuse. What is endangerment? Who decides? And what of this phrase "or risk thereof"? Who decides when there is "risk"? By whom is such information to be collected? Between whom is it to be exchanged?
This section risks becoming a charter for vindictive and vexatious accusations, such as those lobbed as a matter of routine into family law disputes. As such, it would establish a new "ghetto of the guilty", with those subjects of informal accusations having no way of even discovering what they were accused of.
The final two subsections, 42(a).5.2 and 42(a).5.3, propose to continue this trend in an unprecedented manner by extending to the legislators the capacity to legislate beyond the limits set by the Constitution: "No provision of this Constitution invalidates any law providing for absolute or strict liability" (42(a).5.2); and "The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences" (42(a).5.3). Hitherto, the Constitution operated to, in effect, immunise the rights of citizens from any encroachment by the legislature.
This amendment would turn this mechanism back-to-front, immunising the legislators from the safeguards of the Constitution.
Part of what we are being asked to do in the proposed amendment is insert in our Constitution a device capable of disabling any protection currently in the Constitution, protection which those who decide - anonymously and unaccountably - what is in our children's "best interests" deem repugnant to their agendas. Do they think we're mad? And are we, indeed, mad enough to vote for this?