Thursday, September 20, 2012

A Few Thoughts

I have been reflecting a little on the wording of the Children's Rights referendum coming up in November.  Last night coming back from my brother's wedding practice (yes, we are finally getting rid of him!! Say a prayer for his fiancee, I think she needs her head examined, but anyway....), I was listening to the debates on Newstalk - Marc Coleman's programme, though someone else was standing in. If Marc had been there the debate would have been more robust because, while there were a few concerns expressed, most were happy with the wording and it went unchallenged.

I have a few thoughts at this initial stage, and perhaps the questions I am asking will be answered in the debate and I am set at ease.

First of all - do we need such a referendum?  Surely children have the same rights as other citizens.  When we get to giving some citizens more rights than others, is that not questionable?  Is this referendum just an attempt to respond to recent crises in an easy way rather than just use the provisions that are already there?

Secondly, I agree with the change in allowing the children of married people to be put up for adoption - there are cases where someone who marries a widowed person cannot actually adopt the children because they had been born in marriage. However, I believe this should only happen with the agreement of the living parents.  Despite the hard cases, I do not think the State should have the power to conduct forced adoptions.  Yes, the wording says "in exceptional cases", but to be honest that will be abused by the State and social workers.  Enshrining this in the Constitution is dangerous.

Thirdly, I do not like the idea that the State can see itself as being a substitute for parents, ie "supply the place of parents" - that is beyond the remit of the state and I think enshrining this in the Constitution is dangerous too.   We have seen various States and regimes attempting to do that, most notably the Soviet Union.   And given that the Irish government's recent history on child care has been appalling and fatal for some children (facts conveniently ignored by the media), can we actually trust the State to look after these children?  

Finally, this wording diminishes the rights of parents with regard to their children.  There are difficult cases, hard cases, but as the legal adage goes, "hard cases make bad law" - is this referendum an attempt to enshrine these bad cases in the Constitution (some of these articles are a response to actual cases)?  If so we need to tread very carefully. 

I cannot help but think of Chesterton's comment on socialism, applicable I believe here too since the government here in Ireland today is a left-wing government on social issues.  He said: "Socialists are specially engaged in mending (that is, strengthening and renewing) the state; [but] they are not specially engaged in strengthening and renewing the family."  Is this referendum about consolidating State power over children (albeit, I accept, with noble intentions), but striking at the heart of the family?

Minister for Children, Frances Fitzgerald, said that this referendum was "not a charter for breaking up families" - I think she believes that.  However I think, perhaps, despite her noble intentions, in reality and in practice it may well become that.   We shall see how the debate pans out.  Unless my concerns are seriously addressed though, I think I will be voting no.


  1. One would be well-advised to refrain from amending the Fundamental Rights provisions of our Constitution, based on a Natural Law philosophy, informed by Judean-Christian principles, and given by the People to the People under the Christian God.
    A few points:
    First, as the former Supreme Court Judge, Mr Justice Hugh O’Flaherty stated recently [Irish Independent 18.09.12] and as was made clear by, inter alia, Mr Justice Hardiman’s judgment (most of the Justices concurring) in the notorious Baby Ann case of 2006, no amendment to the Constitution is needed to recognise or uphold the human rights of any child. There has been NO case where a child’s human rights could not be recognised or upheld due to anything in or not in the Constitution. The reasoning underpinning the statement by Ms Justice McGuinness in Baby Ann that she would have found against the married natural parents who wanted their child back in circumstances where the adoption had not been finalised had the Constitution not recognised as it did the natural rights and authority of the marital family, was clearly erroneous and not accepted by the other Judges. They found that the best interests of the child were such that she ought to be returned to her natural parents and that was not reliant on the fact that the parents had married (though their marriage undoubtedly contributed to finding that that was in the child’s best interests). Ms Justice McGuinness’s statement are not in keeping with accepted constitutional jurisprudence and must be seen in the light of McGuinness J’s political activity of seeking a fundamental change in the Natural Law basis of the human rights’ provisions of the Constitution over many years, including the removal of the recognition of the inalienable rights and authority of the constitutional Family.

  2. Second, adoption of a child, whose parents are married, can and does happen (with consent) under the current constitutional provisions. A child can be removed (including permanently) from his parents where they have been shown to have failed in their duty towards that child and it’s in the best interests of the child to so do (Art. 42.5). Those cases where children ought to have been removed but were not owe nothing to the Constitution.
    Third, the new Article 42A which introduces (explicitly) the concept of “the best interests of the child” in such a way as to suggest that that principle is generally separate from, even in competition with, the rights and authority of the family as set out in the current Articles 41 and 42, is dangerous and misleading. It appears to disconnect the best interests of the child from the rights and interests of the family; to suggest that the best interests of a child could be viewed in opposition to the natural rights and authority of the parents and family (the erroneous positivist thinking of McGuinness J in Baby Ann refers) which can never be so as the rights and authority of the parents and marital family (properly understood) could never be properly exercised against the objective best interests of the child. In my opinion, it endangers the current constitutional presumption that a child’s best interests are generally to be upheld within the natural family. The new provisions, if they are to harmonise with the current provisions and not affect them in a deleterious way, would need to explicitly link “the best interests of the child” with the natural parents or marital family (as indeed is generally done in court cases to date). The new provisions would need to acknowledge, when referring to the “best interests of the child” that, other than in very exceptional circumstances, the best interests of a particular child are best determined by the child’s parents, and realised within the context of the marital family or family comprising natural parents and their children. As the new provisions stand, they could be read in such a way as to diminish the Family and Education provisions that are to remain, rather than reinforce, complement or elucidate them. Note that Hardiman J rightly expounded in Baby Ann that a child’s best interests are generally found to conform to the wishes of the parents and are not in opposition to the interests of the parents:
    “I do not regard the constitutional provisions summarised above, or the jurisprudence to which they have given rise, as in any sense constituting an adult centred dispensation or as preferring the interests of marital parents to those of the child. In the case of a child of very tender years, as here, the decisions to be taken and the work to be done, daily and hourly, for the securing of her welfare through nurturing and education, must of necessity be taken and performed by a person or persons other than the child herself. Both according to the natural order, and according to the constitutional order, the rights and duties necessary for those purposes are vested in the child’s parents. Though selflessness and devotion towards children may easily be found in other persons, it is the experience of mankind over millennia that they are very generally found in natural parents, in a form so disinterested that in the event of conflict the interest of the child will usually be preferred.”

  3. Four, It is not appropriate or in the best interests of the child for the Constitution to say, as proposed, that a court “shall” take account of a minor child’s “views” in accordance with his “age” and “maturity” in coming to a decision. A child of any age or maturity is a legal minor for a reason – to protect the interests and welfare of that child, and protect them from possible manipulation or misuse by adults, who may not have their best interests in mind. Such a mandatory requirement in the Constitution, would, rather than protect the child who ought to be able to rely on the adults to come to a decision that accords with his best interests, it puts pressure on the child to have to directly take some responsibility for the decision to be made. There ought to be no such responsibility (or suggestion of such) on the part of the child, no matter how “mature” they may be or may appear to be. In my opinion, this would diminish the legal protection that a minor has in this regard, simply by virtue of his age. A child, even one relatively “mature” for his age, can be wrongly influenced by adults, including adults representing State agencies. There is much jurisprudence on the necessity of minority for children under a given age and for their having to have an adult to represent their interests before the courts. The courts can and do take account of a child’s views when appropriate in all the circumstances of a given case.