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national | rights and freedoms | opinion/analysis Friday September 28, 2012 20:01 by Sonya Oldham - People's Association Watchdog irelandpaw at gmail dot com
It is a child's right to grow up safely and to reach their own potential. Unfortunately this does not always happen, so will this constitutional change provide the impetus and the framework to allow the betterment of children's circumstances?
We eagerly awaited the wording of the children's rights amendment as we all want what is best for our children, and for all children. It is a child's right to grow up safely and to reach their own potential. Unfortunately this does not always happen, so will this constitutional change provide the impetus and the framework to allow the betterment of children's circumstances? I do not believe so. After reading the amendment, some questions and observations come to mind:
The wording in relation to the intervention level at which children may be adopted without consent from the parents is ambiguous and widely open to interpretation.
The express rights of children are not included.
With this in mind, before voting please ask yourself:
- Are the provisions what you envisioned? Are they implicit in safeguarding children's rights?
If you are not completely satisfied with the provisions, please consider voting No. This does not mean you are voting against children's rights but that you want their express rights to be included and you want an unambiguous threshold for their adoption against their parents wishes .
Indeed, instead of an emphasis on children's rights, the object of the suggested constitutional change seems to be to provide for greater eligibility for adoption and would seem, at first reading, to be an adoption amendment, with the majority of the substance being concerned with the process of enabling adoption.
The present legal position under the Adoption Act 1988 allows the adoption of children without the consent of married parents when a court determines they have been abandoned. The test for abandonment is high and rightly so. If it cannot be established, then parental contact exists and the focus should be on promoting rather than extinguishing it. This balances both parents’ and their children’s rights to know and have a relationship with each other.
The Constitution currently states in Article 42.5, viz. “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 referendum disappointingly focuses less on the rights of a child than on a lowered threshold for state intervention. This lowered threshold seems ambiguous and it's wording indeterminable.
Dr Oran Doyle, a law lecturer in Trinity College said, “The real source of contention in current debate, and the likely focus of any referendum proposal, is the question of when the State may intervene and take children into care or start making decisions on behalf of children that override the wishes of the parents.
“To call this a children’s rights issue is somewhat misleading; the issue here concerns who exercises for children the rights that they cannot exercise themselves.''
- *2.1°* 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.What does this mean, prejudicially affected?
By definition Prejudicial can mean harmful, damaging, undermining, detrimental, hurtful, unfavourable, counterproductive, deleterious, injurious, inimical, disadvantageous.
This encompassing and indeterminate word has a wide variation in it's interpretation from being harmed to being at a disadvantage. Would this definition, as it is being proposed for the constitution, include a child whose welfare is at a disadvantage?
Vague terms that leave interpretation wide open are not in the best interests of our children, if we are to change our constitution to the advantage of our children, the meaning must be precise and not open to varying degrees of interpretation. This is especially important when it is allowing for the adoption of children whose parents are not consenting.
- *2. 2°* Provision shall be made by law for the adoption of any child where the parents 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.This raises concerns; What period of time and What duty? As parents, we have many duties to our children, from providing emotional security to the basics of them having breakfast on the table and what does the 'best interests' of the child mean? Who decides?
As has been noted by several commentators, including Professors William Binchy and Gerard Whyte of Trinity College Dublin, any such failure under this wording, need only be temporary and could even be of extremely short duration.
- *3. * Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
Again, the bar seems to be set as 'prejudically affected' and in the 'best interests' of the child, but what do these mean? These ambiguous statements leave the amendment dangerously open to interpretation.
Constitutional law expert and high court judge, Professor Gerard Hogan of Trinity College Dublin also appears to be skeptical about the need for an amendment and expresses reservations about the concept of a child’s ‘best interests’ because it leaves open the question in many cases of who get to decide what is in a given child’s interests, the parents or the State? For example, with regard to a child's best interests he is quoted in the report as follows: “it is all very well to say that children's interests must be safeguarded. But who is to decide this and what does it mean?"
According to Mr Hogan the phrase, “best interests of the child”, is ambiguous. He has also raised concerns that a children's rights referendum might lower the threshold for State intervention in an excessive way.
A constitutional amendment where provision is being made for the adoption of a child against the parents wishes should be clear on what circumstances, degree of failure and time period.
*So What about Children's rights*
Both the* *Joint Committee on the Constitutional Amendment on Children (*JCCAC*) and Children's Ombudsman recommended the amendment should include the express recognition of children’s rights whilst also expressly recognising that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents.
They also recommended that the proposed wording specifically requires the State, by proportionate intervention, to support the family so as to ensure that a child is only removed from his or her family where no other appropriate action can be taken which will ensure the protection of a child at risk and/or to protect the child’s welfare and best interests.
Ten years ago, the Constitution Review Group recommended that an express guarantee of certain rights of the child should be added into the Constitution as well as an express requirement that in all actions concerning children the best interests of the child must be the paramount consideration.
According to the children's ombudsman, the failure of the All-Party Oireachtas Committee on the Constitution to recommend that express rights for children be included in the Constitution is a retrograde step in strengthening and protecting children's rights. This means that children will not be recognised as individual rights holders.
Children's Ombudsman: the current proposal to refer to the rights of children falls short of what is required. The proposal states: “The State acknowledges and affirms the natural and imprescriptible rights of all children” [Article 42(A)1 of Twenty-Eighth Amendment Bill]
The recommendations of the Children's Ombudsman:
Specifically, I recommend the inclusion of a provision setting out express rights for children to include:
- The right to participate in matters affecting the child.
To clarify, I fully support the proposal that provision be made for the adoption of children in long-term foster care, but we must not assume that this is in the best interests of all children in this situation