"Referendum on the Rights of the Child" - A Position Paper

Two proposed amendments to the Irish Constitution were announced by Barnardos at a press conference on Monday 6th November 2006. In an apparent gesture of official support for the measure, Finance Minister Brian Cowen headlined the presentation. In a press release on their website (http://www.barnardos.ie/news132.htm), Barnardos detailed the proposals announced at the press conference.

This press release is reminiscent of standard Government PR, which invokes the supposed general prosperity created by their economic policies, and explains away poverty as an anomaly rather than a result of these policies. On the one hand, according to Barnardos, “we” enjoy “our new-found wealth”. On the other hand, it is said, there is child poverty, but it is exceptional rather than institutional. This is an expression of political solidarity with Government policy. Barnardos’ announcement has been made in the run-up to the 2007 general election, providing the Government with campaign PR, i.e. that it is concerned for childrens’ rights. But what Barnardos is in fact saying, with Government approval, is that the Constitution is an obstacle to be cleared aside. Recent Government legislation has established this as the official attitude.

The first of Barnardos’ proposed amendments to the Constitution is the addition of an extra subsection to Article 40, which deals with Fundamental Rights. This is the proposed text of the amendment:
Article 40.3.4. "The State recognises the unique and vulnerable nature of children and promises to guard with special care their welfare. It shall by its laws and its actions protect and vindicate the welfare of children and such welfare shall be the paramount consideration in any decision made by the State, or its authorities, in relation to children."

This proposed amendment nowhere states what these rights are, or what defines childrens’ “welfare”. Barnardos’ stated objective is to strengthen the rights of children in the Constitution. This proposed amendment, in its vagueness, does nothing of the kind. It is therefore open to broad interpretation by a party who might invoke it as a legal pretext, for instance the State, which is given a prominent role in the amendment.

Article 42 of the Irish Constitution deals with education. In its current form, Article 42.5 reads as follows: "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."

Barnardos proposes the deletion of Article 42.5, and its replacement with the following: "In exceptional cases, where parents fail to protect the welfare of their children, the State shall take such action as is necessary to ensure such protection."

This is the most radical aspect of Barnardos’ proposal. Whereas the existing Article 42.5 gives a clear specification of circumstances where parents might be judged unfit, i.e. severe physical disability or cruelty, the proposed amendment is wide open to interpretation. According to this wording, the State is no longer required “to supply the place of the parents”, but merely “take such action as is necessary”. This undermines the right of children to be cared for by their parents, and removes the obligation on the State (in “exceptional cases”) to provide care of a standard approaching that of parental care. It also removes any reference to “the natural and imprescriptible rights of the child,” and for good reason: together with the proposed Article 40.3.4, this amendment would make it possible for these rights to be stipulated by the State.

In theory, the proposed Article 42.5 also gives to the State the power to take children into care based on any number of criteria, including financial. Instead of being obliged to assist families in hardship, the State will have the option of removing children from their parents without consent. The adoption industry, which has faced setbacks owing to tightening of state regulations on international adoption, will be bolstered by such an amendment.

The State’s poor record with respect to children in its care has been highlighted in recent years. These amendments, if ratified, could make it easier for the State to continue its questionable policies, which have seen children being sent to adult prisons or to antiquated psychiatric facilities. Barnardos, if it is committed to the rights and protection of children, ought to be opposing this referendum instead of proposing it.

These proposals are the latest manifestation of a campaign against the Constitution at official level. NGOs such as Barnardos are now joining forces with the Government in an attempt to dissolve the existing rights and protections in the Constitution. In place of these protections, they propose increased State intervention in the life of the individual. In this case, the proposals also undermine the rights of the family.