The rights of children

Thu, Feb 18, 2010
THE PROPOSED children’s rights amendment to the Constitution would herald a major improvement on the present protection afforded to children, and the publication of the wording is long overdue. It was first recommended by the 1993 Kilkenny incest inquiry report and has featured a number of times since in official reports.
This amendment is about much more than intervening in families or in situations where children are being abused, like the unfortunate case this week. It is a positive statement of the rights of children as individuals to have their welfare regarded as a primary consideration and the responsibility of their parents, as the primary protectors of their welfare, to provide for them.
This is the intent of the proposed new Article 42 of the Constitution, to be entitled Children, replacing and incorporating much of the existing Article 42, entitled Education. The old Article set a very high threshold for intervention in the marital family, requiring the family to “fail” for “physical or moral reasons”.
Heretofore, the children of a marital family were not, except in the most highly exceptional circumstances, available for adoption. The threshold for intervening to protect the welfare of children in a non-marital family was lower than in a marital family. This distinction will be abolished if the amendment is passed, and the children of married parents who cannot care for them will have the right to be adopted. All children will have an equal right to have the State supplement the place of their parents where they fail in their responsibility.
Fears were expressed during the Oireachtas Committee on the Constitutional Amendment’s two years of deliberations that, by lowering the threshold for intervention, an amendment could leave parents with unorthodox or marginal views at the mercy of State intervention, or allow the State to take children into care for trivial reasons. These concerns are met by the proposed wording, which states that State intervention shall be “by proportionate means, as shall be regulated by law.” The emphasis is on supporting families in their responsibilities to their children, and the removal of children from their parents will be a last resort.
The committee received many submissions urging the amendment of Article 41 of the Constitution, which declares that the Family, based on marriage, has “inalienable and imprescriptible rights, antecedent and superior to all positive law.” This, combined with the very exceptional circumstances in which the State could intervene in the marital family, was seen as inhibiting the protection of children. The committee decided not to propose any amendment to Article 41, because this might cause concern among parents that their rights were being reduced. There is an ambiguity as to how Article 42 will be read in conjunction with Article 41.
This is a complex question, both legally and socially. The Government must now decide whether to accept the new wording and put it to the people. There are those who hold the view that the rights of children are already recognised within the Constitution but have yet to be enumerated. There is a need for a public debate.
© 2010 The Irish Times