The announcement last week by the Taoiseach that there is to be a referendum on constitutional amendments to protect the rights of children, though long overdue, must be welcomed nonetheless. It comes 13 years after it was recommended in the Kilkenny Incest Report, and has been reiterated many times since by individuals and bodies as diverse as the Review Group on the Constitution, the Law Society, the Ombudsman for Children, legal academics working on the law in relation to children and Opposition politicians.
The challenge for the Government now is to find a formula that will ensure that the rights of the child are paramount, rather than merely given due regard, while also protecting the rights of the family as a unit. This will not be easy or uncontroversial. There are many who fear that spelling out the rights of children sets them in implicit opposition to the rights of the family as a unit, and undermines the position and authority of the family. Fears will be expressed that the privacy and integrity of the family will be intruded upon by the State.
Such fears can and must be addressed. The security and welfare of children are best guaranteed in a stable and loving family, and the State must support families in providing a safe environment for children. But the unfortunate reality that the constitutional family fails some children also needs to be addressed, so that we can do everything to avoid a repetition of horrors like the abuse and even death of children at the hands of their own parents, and deal with issues like the near impossibility of adopting the children of married parents, even when they have been taken into care. The relevant clause of the South African constitution may be of assistance here. This states the right of children to parental care as their first right, outlines a series of other specific rights, and states that the interests of the child should be paramount in all matters concerning him or her.
Such an approach will have implications far beyond a constitutional referendum. It will challenge many institutions and policies. It will have implications for the way in which our childcare system functions, for children before the courts and family law, for decisions taken by a wide range of professionals including doctors. It will have resource implications as the State will be committed to vindicating specific rights.
None of this can be shied away from and it will be a major achievement of this Government if the proposed referendum is accompanied by a wholehearted commitment to making children's rights a practical reality.