The Perilous Position of Amendment 42a
The Yes Vote in last year's Children's Rights Referendum began proceedings to change Children's Rights in Ireland. However, a legal challenge to the referendum has suspended the referendum process and, for now, prevents the Irish president signing this amendment into the constitution.
Ever wanted to know more about the Children's Rights Referendum and amendment 42a? Read on to find out.
In 1992, Ireland signed and ratified the UN Convention of the Rights of the Child (UNCRC). Now Ireland was committed to bringing about a new set of children's rights that are guaranteed when parental rights are transferred to the State. The first public call for a Children's Rights Referendum to enact these changes came by a now retired Supreme Court judge, Catherine Mc Guinness, following the notorious Kilkenny incest case in 1993. In September 2012, after twenty years of pressure from the UN Committee on the Rights of the Child to make the changes to the Irish constitution required by the UNCRC, the Irish government finally announced a Children's Rights Referendum. Through the mainstream media the public were told that the referendum was based on strengthening children's rights but it was in fact a cover for stripping parental rights and the introduction of a new children's rights. Voters were not told the true purpose of the referendum. People were left to presume the children's rights in question were ones you would normally think of such as rights to love or shelter or food. But some of the new rights being introduced are ones we wouldn't expect like the new right to “the freedom of assembly”: the right to hangout where children like and with whom children like without parental interference.
The public was told amending the constitution would protect children's rights, give all children the same protection from the State and help Ireland move away from past failures. The proposed amendment looked at areas such as adoption, protection, giving children a say in protection proceedings and most importantly State intervention in neglect cases. These are all areas that gives the State control that was previously invested in the family. Article 42.5 in the constitution already obliges State intervention where there is parental failure for physical or moral reasons and all categories of abuse are capable of being dealt with. Proponents of the referendum want article 42.5 removed and replaced with the new article 42a, which can remove parental authority and transfer it to the State.
An umbrella group for the Yes campaign was spearheaded by Barnardos, ISPCC, the Children's Rights Alliance and Campaign for Children. Bernados believed a Yes vote would make a huge difference to the lives of vulnerable youngsters in Ireland. The charities supported it, the politicians supported, so it was simple: if you care about children vote Yes. The Yes vote carried 58% to 42% but the turn out for the referendum was only 33.5%: one of the lowest ever. The low turnout suggests the amendment was passed without adequate consideration. The Taoiseach suggested a lack of co-ordinated campaigning from the No side may have led voters to believe a Yes vote was inevitable, thus the low turnout. Indeed, there were no slick Vote No posters to be seen along the byways and highways of the country. Certain voters who would not vote Yes because they did not trust the Yes campaign's slogans could not bring themselves to vote No because the emotional pull of the Yes for Children campaign was so strong they couldn't risk making a mistake by voting No.
Children's rights groups welcomed the referendum result and the Minster for Children described the result as historic but admitted the issue of Saturday voting need to be examined. However the Taoiseach accepted the Supreme Court ruling that 1.1 million euros of public money had been misused and this 'probably' had an effect on voter apathy and a lower than expected majority. The Taoiseach's comments followed the Supreme Court decision, made a few day before the referendum, that the government's information booklet was 'not fair, equal or impartial'. The Supreme Court case was taken by Mr Mark Mc Crystal, an engineer with track record of concerns with the way the government treats the Irish people. Mc Crystal's case was based on the 1995 Mc Kenna judgement that said public funds cannot be used to promote a vote one way or another in a referendum. Extensive passages of the information leaflet were found to breach rules on fairness. Government pamphlets were incorrect and no effort at correction was made. This is not in keeping with a free and open democracy. The government stated its intention was to comply at all times with the Mc Kenna judgement and all the Department of Children had done was follow the normal processes. Still, the government's information booklet ended up biased towards the Yes campaign.
And how come all the political parties were unanimous in favouring a Yes vote in the referendum? The referendum is not black or white issue. No matter which way the referendum goes up to 2000 children currently in long term state care should still have the opportunity to be adopted. The people were badly informed and the Mc Crystal case showed the contempt the government had for voters by producing a biased information leaflet. The big problem with the Children's Referendum was that the public were dissuaded from looking at the details. They did not read the amendment or understand its implications before they voted on it. People were allowed to vote solely on the sentiments and reassurances from politicians without ever looking at and understanding the key words used in the constitutional change. Instead many relied on bland media coverage and dishonest information from the official source in the referendum: the Yes campaign.
The No Voters
What about the 42% of people who voted No: 445,863 is still an impressive figure. And three constituencies rejected the referendum. Why would over 400,000 people vote No? Do they not care about children? Did they not want to protect children or step away from past failures? Did they not want decisions to be made in the best interests of the child or all children to receive the same protection from the state? Surely not. It is quite obvious children should be protected in society, everyone can agree on that, especially regards the dozens of child protection horror case that have come to light in the last two decades. Proponents of the amendment repeatedly discussed cases of extreme neglect and grotesque elements of abuse, sexual and otherwise, to bolster their arguments. In Ireland however, all categories of abuse are already capable of being dealt with under article 42.5 and dealt with firmly. Two Supreme Court judges (Hugh O Flaherty and Adrian Harliman) suggested the amendment was unnecessary because the rights of children were already dealt with in the context of family and personal rights, and specifically in the child’s rights outlined in article 42.5.
Previously the family (mothers and fathers but also sisters, brothers, grannies, granddads and so on) vindicate the rights of children and the State only vindicates the rights of children when the parents fail. What the new amendment does to the constitution is take parental authority and transfer it to the State. The basis of the transfer is article 42a where the State vindicates the rights of all children. The mechanism for the transfer is the wording of the new article. With the amendment, provisions will be made in law for '(1) voluntary placement for adoption and (2) also for the adoption of any child'. There are two clauses in relation to adoption because there are two types of adoption: voluntary and compulsory/forced adoption. The first clause of the amendment relates to the voluntary adoption of a child and the second clause relates to the compulsory adoption of a child. The words 'forced' or 'compulsory' are not present in the second clause but that is what is implied.
In the UN convention on children's rights the wording is that the best interest of the child will be 'a primary concern'. The family is established around a child to protect and care for it. And within the family a child's rights are a primary concern. The wording in the constitutional amendment is different. It says that the best interests of the child shall be paramount. The new wording fits an unacceptable model of the family because 'paramount' is a word that is strong enough to cancel out the rights of the family, the privacy of the family, the integrity of the family and the right of the family to decide what is in the best interest of its own members. A child's rights must be a part of the family's rights. The word 'paramount' becomes a mechanism that will allow an expert to give an opinion that you are unfit to bring up your own child and disables established protections that already exist for the family. The word 'paramount' is very potent and it hands over the issue to experts who think according to textbooks and ideologies and espouse their own personal, well-educated, yet subjective views. This expert will face the judge up on his bench who will be guided by this expert opinion.
People are lead to believe we must intervene to stop parental failures. The statistics show that the number of children being taken into care because of abuse (sexual, physical and neglect) is the roughly the same as the number of children being taken into care because of housing and financial issues. In fact, time and again more children are taken in to care on an economic basis than on an abuse basis. Many parents are financially hard pressed in today's economic climate of austerity policy. The State might deem the children of families who are struggling with money issues to be 'neglected'. The State proposes to take these 'neglected' children and give them to a stranger who they will pay upwards of three hundred euros a week to foster them. Eventually the child could be put up for adoption. What if this money was given to the financially hard pressed family? It could help keep a family together and avoid the heartbreak and psychological damage for the parent and child.
Recovery from recession is repeatedly promised but is never guaranteed. If parent do not have enough money they will fail in their duty to their children. In fact, parents do not even have to fail to lose their authority because the wording is parents have to be 'likely to fail'. What if a parent loses a job or becomes ill or becomes disabled? Could a parent lose their rights because of this: possibly with amendment 42a. The concept behind the amendment is taking the rights of the parents and transferring that authority over to the State. It is the State that defines what 'failure' is. It is the State defines what the best interests of the child is and the State can then say that their opinion is paramount, it is over and above the rights of the family. The amendment only takes into account parental failure and overrides the family’s natural support system of grandparents, aunts, uncles, siblings. Most domestic adoptions in Ireland are within families and many children in this country are reared by the extended family. What about when a parent dies? This is the ultimate failure from a child’s point of view. With the new amendment the extended family, even the child’s siblings, do not have the same right to be kept together as they currently have in the Irish constitution.
Many people, especially people who are in comfortable situations, would dismiss the idea of forced adoption. But the idea of social workers coming to homes and moving children is not farfetched. Forced adoption, where social workers accompanied by police can even walk into maternity wards and take children from their mothers, has been occurring for years in the UK. We need to put this new amendment in perspective. Today, the Irish government and Irish families are under so much pressure from debt and financial austerity. Back in the 1950s and 1960s Ireland was emerging from third world status. Men from the NSPCC (now the ISPCC – Ireland's oldest children's charity) would come to poorer people's homes to earmark which children could be brought to an orphanage or institution. We need to avoid this type of situation where a family's entitlement to their children becomes based on their economic stability.
Consider the social consequences that could evolve from the new amendment. It could introduce a fear into every home. Before, when parents were struggling they could look for help and the constitution obliges the State to give that help. Once that obligation is removed (when article 42.5 is removed) and Ireland introduces forced adoption parents would think twice before asking for help or admitting weakness of any kind. Asking for help means they have admitted failure and in the proposed amendment to the constitution the punishment for failure is confiscation of children, with the ultimate penalty being forced adoption. An expert can have a say on the basis of the 'rights' of children what is in the best interest for the child. An outsider can say a child is entitled to this or that: the child may not want it, need it or benefit from it but if the State says so the parent better act or the State will say that parent has failed. When the State pronounces it is unsatisfied with your care of your own children they can move in and the government becomes the real parent. Anyone with a child will have reason to fear the State absolutely. The amendment could start an era of State control of children if it affects parental rights.
Yes campaigners in the referendum believed the constitution should contain specific and overt declaration of the rights of the born child. But it is untrue to say children need an overt statement of their rights in the constitution because we cannot focus on children as if they exist in complete isolation. The family is family, it is not parents, it is not children: it is both combined. The Irish constitution recognises the family as an organic unit. In the constitution as it was before the referendum children have more rights than anyone. Case after case in the high court has proved the very strong rights children have in the Irish constitution. First of all they are protected as persons and have the same rights as anyone else. Secondly, they have their rights upheld within the family in the strongest way, the child's rights being both antecedent and superior. And thirdly, the State has certain obligations to the child. The child has the rights to education, meaning all the means to healthy childhood development, and the right to have protection when the parents fail.
The Big Question
The amendment to the constitution affects the rights of the family and the right for the child to have family protection. Very young children do not have the capacity to act like an individual exercising their rights. If the amendment is allowed the State can rightly say that it represents your child and it can wield his or her rights against their parents and against the children themselves. Furthermore, the State will interpret what those rights mean and can predict a parent's capacity or incapacity to uphold those rights in the future. The State will have unlimited power to say a parent is not a good parent and to take the child and give it to someone else. The government of course claims the Children's Referendum is about the use, and not the abuse, of power. This power will only be used in extreme circumstance. Nevertheless, if the amendment gets written in to law that power over young people will be there to be used or not.
The big question is why are the government pushing for an amendment at all? The simplest answer is rights cost money. Traditionally the State has fought its responsibilities to children. So perhaps the government are offering us a formula of words that reduce their responsibilities to children and at the same time increase the control they can exercise over children, parents and families. There are no provisions in this amendment for the parents to confront the State for a failure on its part in relation to children, which lets the government off the hook with regard to their own State neglect of children. If the State cannot be held accountable they will be absolved of all liability: So much for moving away from past failures.
No campaigner Dana Rosemary Scanlon said, 'The State unfortunately proved itself to be unfit to care for children. Why would we therefore give the State more power?' Ms Scanlon also made comment that, “to allow a referendum through that will weaken the rights of the parents to protect their children cannot be right.” and believed there was a lack of media exposure for those campaigning against the amendment. Dana suggested the introduction of the amendment was prompted by outside pressure from the EU and the UN. Father Brian Mc Kevitt, editor of the Catholic newspaper Alive, describes the referendum as a massive confidence trick on children and parents, “If passed, the amendment will lay the groundwork for a massive transfer of authority over young people from parents to State.” Parents for Children spokesperson Maria Mhic Mheanmain also agreed a Yes vote in the referendum would weaken the rights of the child by undermining parental power and said, “If passed, this amendment will remove from children the most important right they have – that is the right to parental protection and advocacy.” Kathy Sinnott insists the proposed amendment could lead to State provisions of birth control without parental knowledge or consent and give the State the authority to mandate vaccinations.
Ex-MEP Kathy Sinnot has worked on mounting a legal challenge to the referendum, ideally to establish we did not achieve a safe result in the referendum. The legal challenge is a double case: a petition case and a plenary or constitutional case. The petition case argues the referendum result is unsafe because of illegal interference. The other case argues sections of the Referendum act are unconstitutional. Backed by a powerful grassroots effort Kathy and her supporters raised funds to cover the referendum petition fee. Rather than pay legal expenses funds were raised mainly to commission expert witnesses and opinions to support the legal argument. The hope is that with the Mc Crystal decision and the strength of the legal argument there is a reasonable expectation for a worthwhile outcome for democracy. Our sovereignty is foremost exercised in our right to referendum. Our sovereignty is being eroded and if we do not defend our right to free and fair referenda we will lose that right. The future of democracy is riding on this case, and it is a shame the case lacks mainstream media support.
The legal challenge seeks to confront and expose the level of contamination in the Children's Referendum process and looks at the government's information campaign that was condemned by the Supreme Court. The idea is to comment on the effects of government spending and campaigning on the public mind set and to convince the court the public mind was wrongfully manipulated in a way that made it extremely difficult for the other side of the argument to make a significant impact, despite making considerable headway in the face of considerable odds. The argument is the government should not be allowed to benefit from their illegal behaviour and the public should have an opportunity to properly consider all the issues in the case. The government should have respected the people’s sovereign right to a free and fair referendum. The public should not have their views formed by any illegal actions on behalf of the government, which is the one body in the campaign the public should have felt entitled to trust.
Having misused public money to mislead a referendum campaign the government are in an uncomfortable position. The State seems to be placing enormous weight on the fact that its advertising doesn't work and the government information booklet and advertising campaign had little or no impact on the eventual outcome. The opposition have located experts to challenge this view and show that the government's expenditure of over one million euros was not - as they now claim - a complete waste of money.
The legal team is enthusiastic and the support for the challenge is growing. Kathy Sinnott believes things are on the right track. The concerned public needs to continue its support and it is very important to spread the word about the case. The high court challenge suspends the referendum process and the president can't sign the amendment into the constitution.