Government Ministers were given an insight into the complexity of family law by yesterday's Supreme Court judgments in the Baby Ann case and they may, for the first time, realise the political difficulties in providing for the rights of children through a constitutional referendum. Article 42 confers rights on the family that are "antecedent and superior to all positive law" and change could have unwanted consequences.
Politicians should read the Supreme Court judgments before embarking on a referendum. They provide important background and judicial detail and reflect a range of views on aspects of the current legal situation. In that regard, Judge Catherine McGuinness stands apart from her four male colleagues in suggesting constitutional change that would accord greater recognition to the rights of the child, as provided for under the United Nations Convention.
The Baby Ann case concerned a harrowing episode involving two young students who gave up their child for adoption; changed their minds, got married and sought the return of the baby from its adoptive parents. A High Court judgment, based on a failure of duty to the child and the psychological damage that removal from her foster parents might cause, was overturned. The fact that the child could no longer be adopted, because her natural parents had married, was a significant consideration.
Tug-of-love court cases cause pain and heartache to all concerned and their raw emotional content is fascinating for the general public. This case had an added dimension in that it threw some light on issues that may be involved in a referendum on the rights of children, which Taoiseach Bertie Ahern intends to hold early next year. We still don't know the areas of law likely to be addressed, or the extent of the reforms envisaged. But time is short and, if there is to be change, there is an urgent need for an informed public debate.
The issues dealt with by the Supreme Court were specific to adoption and, on the face of it, should not involve other legal protections, such as the age of sexual consent. But caution is required. Especially when the motivating impulse behind a referendum is to please the electorate. This State has an appalling record concerning its "duty of care" to children, and a referendum might simply serve to disguise that reality.
Ireland has one of the highest child poverty rates in Europe. Ten per cent of children go without proper food or warm winter clothing. Mental services are totally inadequate. Parents of children with developmental difficulties have great difficulty in assessing professional care. Young people are incarcerated in adult prisons. Those areas with the highest number of children in care have the lowest level of family support. Pre-school facilities are inadequate. And a growing number of primary school children are housed in sub-standard accommodation. With that record of care, a diversionary referendum would make sense for the Government.