There is a strong temptation to vote No in the children’s referendum on Saturday, not at all for reasons advanced by the No side, but to register a protest at yet another political stunt by this Government, for stunt is what this proposed amendment is mainly about (please note I wrote “mainly”, not “entirely”). Only to a marginal extent will anything in this proposed constitutional amendment make any difference to the entitlements of children and once the referendum is passed, the Government parties (as did the previous government parties) will continue their dogged indifference to the welfare of children, including even the widespread sexual abuse of children.
The most brazen stunt is contained in the very first section of the proposed amendment: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.” This has been puffed up to suggest that now, for the first time, children’s rights are enshrined in the Constitution; indeed one prominent Yes campaigner has claimed children’s rights have not been part of the Constitution at all, up to now.
This is shameless nonsense.
Children as citizens of the State are conferred with as much in the way of rights as anybody else in article 40.3.1, which states: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” The proposed change makes no difference at all legally but it conveys a cosy feeling that we care about children.
The bit of the proposed amendment that purports to protect children from future abuse is as limp as they could make it. At present the Constitution states in article 42.5 (which is to be repealed by the proposed amendment): “In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
This to be replaced by: “In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
Only hysterics on the No side think this change amounts to a hill of beans. The same blather ordaining the family with a sacrosanct status is persevered with and I cannot see how any endangered child is going to be protected in a way that doesn’t apply at present.
There is a bit which does make a difference, an important difference, to a tiny number of children. It provides that children of married parents who “have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require” may be adopted.
The bit about children being entitled to be heard in court is more blather. This entitlement could have been provided by law at any time and does not require a constitutional amendment.
When Bertie Ahern first committed his government to a constitutional amendment on children’s rights he spoke of including in the Constitution a provision including an echo of the 1916 Proclamation about “cherishing the children of the nation equally”.
Almost certainly had Bertie remained around he would not have delivered on this because Department of Finance officials and a clutch of lawyers would have warned him of the “dangers” of such a proposal: that at some stage the Supreme Court might give such a provision some real meaning, by declaring that the State’s neglect of children in poverty, for instance, was a breach of that provision.
And it is precisely because the Government parties want to have the flexibility to deny children equality in society, that nothing resonant of that is included.
The campaign slogans “All children matter” and the one about children “being heard as well as seen” are bogus. The policies of this Government (and of all previous governments) are testament to the belief that all children do not matter or at least that some matter more than others. And as for being heard: the voices of very many will never be heard, not just as children but throughout their lives, for those are the inevitable consequences of the policies of all governments.
And as for caring about the abuse of children: how could it be that when there was a foot-and-mouth scare in 2001, there was a massive mobilisation of the people of Ireland to prevent this happening, but when around the same time evidence emerged (in the Sexual Abuse and Violence in Ireland report of 2002) that about 150,000 people had been raped in childhood, there was only the most minimal response?
But there is that marginal advantage in the proposed amendment permitting the adoption of children whose parents are married and because of that, very reluctantly, I will be voting Yes.