ONE WEEK TO GO AND I AM VERY UNSURE

One week to go and I am still struggling with how to vote in this bloody Children’s Rights Referendum.  We have too many bloody referenda in this country anyway.  Do other so called civilised countries entertain their citizens with this stuff as regularly as we do?  It seems to rank right up there with our obsession with how others view us.

Anyway in order to make one final attempt to come to a definite decision I am going to try to articulate my feelings and ask questions, in the hope that I might get some answers to my concerns.

My first concern is about the wisdom of actually putting children’s rights into the constitution.  Surely children have the same rights as everyone else on the basis of their humanity.  My question is this.  If we are enshrining their rights on the basis of their vulnerability well then are we going to carry on and have further referenda to protect other vulnerable citizens?  I am thinking particularly of the elderly and especially those with dementia.  Elder abuse is possibly going to be the next big scandal to rock our society.  I am also thinking of those with learning disabilities etc.  Surely if children’s rights need to be specified, so should theirs?  Or does their humanity not automatically give them exactly the same human rights as the rest of the community?

Secondly I am annoyed by the Governments campaign on this issue.  Posters telling us to ‘Vote Yes for Children’ are the stupidest of all.  The vast majority of people in this country are ‘for children’.  This Government telling us to Vote Yes for children merely makes me see red.  I voted Yes for this Government in February 2011 and in so doing managed to reduce the circumstances of many vulnerable children in this country through this on-going austerity programme.  My question is this.  Will this amendment change the circumstances for poor children, for children who need SNAs in schools?  If not, then we are not voting Yes for Children… we are voting Yes for some children.

I understand that the main reason put forward for supporting this referendum is to sort out the legal limbo that many children currently in foster care find themselves in by virtue of the fact that they cannot be adopted by their foster parents.  But, if I understand things correctly, this situation will have to be rectified by legislation following the passing of this amendment.  So my question is this.  If the Government is so keen on sorting out these children why was this legislation not passed years ago?  Along with other legislation to sort out other anomalies (polite word) in our out of date, not fit for purpose adoption laws.

By amending our constitution next weekend we will be giving the state increased power over families and their children; a state who have failed children spectacularly in the past.  If my understanding is correct, the State already had the power to intervene in cases of abuse and neglect and repeatedly didn’t.  Children were left to suffer on.  My question is this.  Surely before we are asked to amend our constitution in this way we should have knowledge of exactly how the state is going to exercise this new power?  Who will decide if parents have failed in their duty to their children?  What safeguards are going to be put in place in order to ensure that children are not removed from families inappropriately?

If this referendum is passed will it really make children’s voices heard?  I have a number of questions relating to this.  Firstly, if passed will this open the way for adult children to access their adoption records?  Will it enable adult children in the future to get information on their biological parents – children who have been conceived through donations of sperm or egg?  Will it enable a family take a legal challenge over their special needs child’s right to an education?  Will this amendment force Government to really give all children all their human rights?  

My fear about this referendum is that we are being sold a pup.  The government will congratulate us all for making this a great country to be a child in.  And then they will sit back on their laurels and other than children in foster care, no other vulnerable lives will really change?

Maybe I am just an old cynic.  But I don’t trust our politicians or our system of politics.  I have a feeling in my gut that this referendum is just window dressing that actually won’t make a hill of beans to the vast majority of children.  I have a letter from 1996 from the then Minister of State at Dept of Health, Austin Curry which stated that he was aware with issues relating to step adoptions and was “having investigations made into…. an alternative mechanism.. in such cases.”  1996 – and nothing has changed.  I am very far from convinced that this Government like others before them, are serious about children?

Please tell me I am wrong?  And I am serious about these questions…. if you can provide an answer to one of more of them, please leave me an enlightening comment.  Thank you

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9 Comments

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  1. Hi Barbara,

    I shared your first concern until I understood why it was recommended. It came from the belief that the article defending the family would put children at a specific disadvantage when deciding if they needed to be removed from an abusive home. It's not about protecting their rights per se; as you rightly say, they are protected elsewhere.

    On your second concern, I don't think it has anything to do with SNAs as I read it. “Vote Yes for Children” is, as you rightly say, a meaningless platitude. The point of the change is quite specific: elevate the rights of children above the rights of a family to stay together in situations where they come into conflict.

    On your third point, the way I understand it from talking to a friend who works with children, the criteria social workers use to determine if children are being abused don't change because of the referendum, they change whenever best practices are updated and you can't enshrine that in a constitution for obvious reasons. Where it will make a difference is in court cases where, as has happened in the past, third parties cannot get involved to challenge the constitutionality of removing a child from an abusive home, as has happened in the past.

    On your last point, I don't think it addresses those issues directly but I could be wrong. What it boils down to is this: do you prefer a situation where children are possibly kept in abusive homes because of the current constitution or do you prefer a situation where children are possibly removed from a home for no good reason under the amendment?

    I think the first case is the greater crime and talking to a social worker and a paediatric nurse about this reinforced my view that the amendment is required.

    I hope this helps,
    Colin.

  2. Niall Foley @Qwikpix November 3, 2012 — 7:23 pm

    Barbara,

    Concerning abusive situations, I do not think that any court would intentionally leave an abused child in an abusive home because of the constitutional protection afforded to the family.

    Children are to be given “the right to be heard” in very limited circumstances. These are in proceedings brought BY (but NOT against) the State and in private proceedings involving adoption, guardianship, access and custody.

    This right will be defined in and limited to the above by legislation. #Crref does not give a child a specific Constitutional right to know the identity of its natural parents. That right could be given by legislation but the government will not do it because of assertions of confidentiality made at the time of adoption.

    At present, children, the elderly, men and women have enumerated and unenumerated inalienable and imprescriptable rights. I don't see how the amendment can give additional unenumerated rights to children.

    The courts will, as at present, decide all matters arising from the amendment. The matters themselves will be presented to the courts by lawyers on behalf of the State, parents and interested parties.

    If successive governments had the will, we could have world class child laws. Deficiencies in current law could be removed by legislation enacted as a priority. The relevant Bill could be referred to the Supreme Court via Article 26 of the Constitution to test its constitutionality. If any defect is found, an amendment to deal with the specific issue could be put to the people in a referendum.

    The amendment also states that “Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.” This means that married parents will have a bald constitutional right to surrender “any child” for adoption.

    I think “shall” (which is mandatory) should have been replaced with “may” which would give the Dail discretion as to the circumstances in which a child may be surrendered, adopted and maintained.

    In theory, failed asylum seekers will now be able to surrender (teenage) children for adoption so as to prevent those children from being deported. I mention this only to illustrate a possible unintended consequence of the amendment.

    A constitution is a statement of legal principles and, as a living document, is always written in the present tense. That is why today's Americans have a constitutional right to own automatic weapons. When their constitution was drawn up, “arms” were primitive. But the principle remained the same over centuries while weapons evolved. That is why legislation is usually more precise than additions to a constitution.

    All the best.
    Niall.

  3. A pup indeed Barbara. The ludicrous suggestion that those who are not convinced that this amendment is necessary are either anti-child or pro-abuse (or both) is perhaps by far the most idiotic aspect of the spin pushing for a landslide Yes. The suggestion on the cover of the Department of Children and Youth Affairs booklet “Protecting Children”, “Supporting families”, and “Recognising children in their own right”, is that under current legislation these things are absent. One would almost imagine we live in a Dickensian world where children are either sent up chimneys or down mines. The fact is children, as with all citizens are protected and provided for under Article 40 of the constitution where all citizens are held equal. I wonder if as with many of the changes that have taken place in Ireland of late, this is yet another Troika lead measure to save the State another pound of flesh so that it can in turn be handed over to our paymasters elsewhere. An interesting point was made by independent Wicklow Town Cllr Pat Kavanagh. The current foster care system is costly & a Yes vote would assist in speeding up the adoption process which would in turn ease the burden of the State. This in itself is not necessarilly a bad thing but if it is the true impetus behind the rather heavy handed emotional blackmail element of the Yes campaign, without due consideration to the potential societal changes as a whole, then I am rather sceptical to say the least. It is difficult to look as a slogan containing the words “Yes for…” anything without a twinge of suspicion with the current government's track record to date.

  4. Hi Barbara
    I have read most of what is available as an analysis of the proposed referendum, some of it is too simple and minimalist, some is sensationalist and facile. What I have done is look at who is writing regularly from an academic standpoint and see what they are currently contributing to the current debate; luckily for me the good folks at humanrights.ie have assembled some great academic pieces. Below you will find each piece of the amendment taken separately by a law expert and expanded upon in an analytical, legal and clear way. If you want to talk about how it affects young people in care settings in a more practical way I would be happy to do that too.
    Thanks
    Ado (adomackno1965@yahoo.ie)
    http://www.adomackno1965.wordpress.com

    1) http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-1/
    2) http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-2-1/
    3) http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-2-2/
    4) http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-3/
    5) http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-4-1/
    6) http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-4-2/

  5. Hi Ado

    None of those links seem to be clickable

  6. Thank you all so much for taking the time to leave such long and detailed informative comments on this post. I am still mulling over it all.

    I also found the OPEd piece in the Irish Times by Miriam Hederman O Brien in todays Irish Times very informative.
    http://www.irishtimes.com/newspaper/opinion/2012/1105/1224326140875.html

  7. I also found reading this very informative. You posed the questions that I found hard to articulate myself.

  8. I'm sorry I'm a bit late in responding – however. I'm glad to see that the Referendum returned a 'Yes' vote…

    I suspect that the Referendum had more to do with commitments given by your Government to the UNCRC. The Scottish Government has brought forward similar strengthening legislation – and this was in response to UNCRC commitments.

    The bulk of your legislation relating to children was rooted in the 1930s and its 'seen and not heard' approach to children. Modernisation of this was long overdue.

    It's also a particular legislative response to the powerlessness of children as highlighted by recently disclosed child abuse scandals (and I refer as much to Scotland as to your own country).

    I worked in Child Protection here for 10 years. The system in Scotland is not the worst. However children's voices need the support of legislative force if they are to be meaningfully heard.

    In Scotland the 'the welfare of the child is of paramount consideration' and every legal body has a duty to take into consideration the views of the child. All too often that does not happen – and children are marginalised – a form of institutionalised abuse which 'silences' them.

    My own hope is that the legislative change promotes and nurtures a real change in the way that our society views and treats children.

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