I would have thought, in the previous years of this amendment being slowly brought to the decision of the people, that my personal decision would be an easy one. Rights for children? Adoption cleaned up? What’s not to like?
But then the actual text came out, and I was left with a deep sense of confusion and unease. I will try and elaborate on those feelings in the following. But, to save time for those who want to know the gist of what I am saying, I have decided to vote “Yes” to the 31st Amendment on Saturday.
But, one last brief comment before I get into the nitty-gritty. If I had decided to vote “No”, and I came close to that decision, I can assure everyone that it would have had nothing to do with the actual “No” campaign which was populated by overly-religious types, conspiracy theorists and unpopular political groups. The few times I saw “No” proponents in debate, they sounded dim and crazy, content to waffle on with nonsense of a Catholic bent and misrepresentation of the issues. And I am a Catholic. Sorry, when one of your arguments is that foster families are “in it for the money”, I don’t want to listen to you.
The “No” side might get a few more votes than expected thanks to some unease with the amendment, and it will look even higher than it really is thanks to an expected low turnout, but they should not kid themselves: they did a lousy job in my opinion, of discussing the issues rationally or with a modicum of sense.
Anyway, I thought I’d take this a bit at a time. Firstly, all of this:
1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
All of that rather important stuff remains in the constitution. I’ve actually seen and heard of some confusion on that point. Parents will still have as much control over their children’s educational and religious upbringing after/if this amendment is passed as they do now. End of. Anyone who claims otherwise is misinformed or lying.
The proposed amendment is only replacing the following:
5. 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.
So, the actual amendment. First part:
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
Well, this doesn’t sound too bad does it? This is a pretty standard opening for any constitutional article, a general catch-all section designed to simply put the gist of the whole thing in a sentence. In this case, it is still a bit vague. We’re told this is a reference to the UN Convention on the Rights of the Child, which can be considered as high a source as you can get for this topic. Still, it isn’t an open affirmation of that convention, so that is a concern. It would be good if those “natural and imprescriptible rights” were spelled out more clearly.
Aside from that, I have no issue with this particular part of the amendment. Some criticise it for leaving out the Easter Risers “cherish all the children of the nation equally” line, but it doesn’t need any window dressing. I also don’t think it is the states job to “cherish” anybody. Protect and serve, that’s all.
2.1. In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such an 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.
This is the modified version of what is already there. The inclusion of “regardless of their marital status” is welcomed by me as an appropriate change to dismiss the inexcusable legal protection that people have simply because they are married. This has been a damaging part of the constitution to people’s lives in the past and present, and needed to be addressed. Having a ring on your finger is no guarantee of virtuousness when it comes to welfare of children, anymore than the absence of one means the opposite.
In place of the “physical and moral” failures, too vague really, the state will intervene when children’s safety and welfare are “prejudicially affected”. No problem with that either, it’s just different wording for the same taken meaning at the end of the day. When it’s proven that you cannot look after your children as the first article makes out – which coming from the UN CotrotC means physical safety and basic needs – the state has the right to intervene. The “proportionate” part seems like a sop to the more conservative element of society, worried about the government snatching up children on any pretext.
When it comes right down to it, this is what the “No” side is complaining about the most. Why should we give the state “more power” to take away children from their families?
Well, the only way this really gives the state more power to take away children is by eliminating the legal protection that married couples have, which I agree with. In reality, everything else is just the same. The state will have as much power to take children away from families as it did before the 31st Amendment is passed, that power will only be extended to the entirety of the population.
But hasn’t the state failed children in the past? That’s the common answer (and talking point) of the “No” side, that many children have died in state care as a result of negligence.
This is undeniably true. But it ignores (and deflects away from) another basic truth: some people shouldn’t be allowed to raise children, through personal fault, addiction or whatever reason. Who else is going to take those children and put them in a position to find another home?
Who? Who else has the authority, the democratic mandate, to take such a momentous action? I suppose we can talk about the government improving the means by which it does this – the social workers, the hospitals, the bureaucracy, the courts – but it doesn’t change the fact that the government governs. The state is the state, the highest authority. Past failures are there, but there are no palatable alternatives. Certainly, acting as if every parent should have no legal boundaries enshrined in the constitution as to the welfare of their children is lunacy, which I will not even attempt to contemplate.
And there have been some government developments on that front after all. The Children and Family Support Agency, the Children First Guidance, the National Vetting Bill, etc, etc. There is work being put in, but funding, in this economy, remains an issue.
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 is going to be set at three years from what I’m hearing. I find this to be a totally reasonable section of the amendment, which eliminates some of the cruel delays to adoption proceedings from foster families, and is a further destruction of the legal protection of married couples. If a situation has developed whereby a parental unit has been deemed unfit to look after a child for three years – a very long amount of time when you think about it – then something is seriously wrong. I would wager that such a unit would likely never be in a position to adequately look after minors. You can argue definitions and the state’s rights here all you want, but these situations happen. Sometimes the best interests of the child require that child to be out in the care of another home. If that home wants to adopt that child, there should not be such an entangled mess to get to that point.
3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
I would consider this just an extension of the first, accepted by the same logic. If a person believes they are not capable of looking after a child, regardless of marital status, than there should be no legal block to a voluntary adoption.
4.1. Provision shall be made by law that in the resolution of all proceedings—
i. brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii. concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
This just seems like a re-iteration of things already said, a further confirmation that the state will act only in the best interests of those whom the amendment targets (which is not parents, no matter what the “No” side says). We can talk (and I’m sure the courts will) about what the best interests of the child are, but this section of the amendment is something that can only be viewed in a positive light.
On the face of it anyway. I have a concern about this amendment, that it is all somewhat pointless in this key area, due to the Supreme Court’s repeated rulings on such matters, which is that any child in such a situation as might be covered in this article is better off in the care of its biological parents.
That is, the highest court in the land has repeatedly ruled that the best interests of a child are to stay with its birth parents in the event of any dispute with a foster/adoption family. If this amendment is challenged in law, as it surely will be at some point, it may well end up back at the Supreme Court’s judgement. What can we expect them to say?
That’s a danger to this amendment. It isn’t strict enough in its wording to preclude this possibility, whatever the intentions of authors. The “best interests” of the child are up for discussion, but only after the people have played their part.
In the event that the Supreme Court maintains its views on that score, I can only deem this amendment a failure, on the basis of the writers not being willing (or brave) enough to go that one step further and let the people say that, no, giving birth to a child does not mean you have sole ownership of it for 18 years under all circumstances.
4.2. Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
Ah now, here’s something to be noted. The drawbacks to this suggestion are obvious enough. How will a child be judged to be capable of “forming his or her own views”? What process will be taken to weighing “the age and maturity” of people under the magic number of 18?
I know it can happen. You’ll find many mature 14 year olds and you will find many immature eight year olds. I’d be concerned at how that is determined, how such children could become prejudiced and biased based on their circumstances, and how the rather stressful environs of a courtroom setting could impact on anything a child has to say in such a matter. Yes, we can bring up testimonials from those who, stuck in awful family situations well into their teens, lacked the legal voice to say “I want to get away from this”, but constitutional amendments do not (and should not) operate on individual cases.
That section is dangerous, and could be abused to pervert the course of justice.
So, that’s the Amendment. But what else is there? Or rather, what isn’t there?
Because there is stuff missing. Clarifications, elaborations. Like, how will these newly defined rights of the child be enforced? By who? Will the state be held accountable for any future failings in the protection of children that takes place after the 31st Amendment is passed? How? Under what legislation? How will the decisions being taken under the terms of this amendment be made transparent and clear? Will they at all? How do the rights of the child as defined here match up to the austerity measures being introduced by the government? Aren’t they to the detriment of children, notably those with special needs? And the elephant in the room, what are you doing about making the state more accountable for its past failures? Is that being tossed aside as an issue in favour of the “here-and-now”?
The “Yes” campaign has shirked these questions for the most part, content to simply screech “Vote Yes for children!” in the face of objections. You can get away with that when the opposition is worried about inoculations becoming mandatory under the amendment (sigh) but I am not satisfied as to the answers – or lack of them – given to me. When I asked a friend from a government party, who was going door to door advocating a “Yes” vote, if he could answer some of these questions, the reply was “it isn’t a magic wand” that will solve all problems and “I’ll get back to you”. They haven’t yet. I’ll let you know if they do. I think the “No” campaigns incompetence has made this vote too easy on the “Yes” side.
My other problem is just a general weakness, in that I think this amendment is going to be used to cover a large number of different situations and scenarios, and is far too general and vague to do that. The amount of “What if’s?” here is to be noted.
I almost decided to vote “No” because of all those problems. I don’t like useless amendments. But this amendment is not entirely useless. It has good elements, and changes things that need to be changed, outside of my criticisms.
It doesn’t go far enough though, and the fear I have is that the issue of children’s rights, abuse at the hands of the church and the state, adoption by GLBT couples, will now be kicked down the road, marked as “dealt with”. It has taken years to get to this point, a somewhat weak referendum that is not half as provocative as it could be, probably because the government wanted an easy campaign to pass it. It will be sometime, I wager, before it becomes a major political point again.
In fact, the only way you could guarantee that it would remain a major political stumbling block is if this referendum was defeated. That’s a powerful motivation to vote “No”.
But I won’t vote “No”. Fine Gael and Labour have taken some (small) steps to improve the system of child welfare outside of this referendum, and ultimately I think this amendment is still an improvement on the current model. It does things that need to be done, closing loopholes and protections that need to be closed. I am not enough of an idealist to vote “No” to something based solely on the aspects I don’t like, when there are many aspects I do like.
So I will vote “Yes” to the 31st Amendment and I encourage you to do the same. The unfair protection for married parents must stop, children’s rights should be recognised in the constitution and adoption laws must be reformed at the highest source. Those are all reasons enough to vote “Yes” and many of the “No” arguments fall flat or are largely irrelevant (at least from the official “No” campaign). There are plenty of significant deficiencies in this legislation, and the “Yes” side has done a pisspoor job of answering legitimate questions on the matter, but I deem the amendment acceptable despite those reservations.
When/if this amendment is passed, it will then be up to the government to pass the associated legislation and insure that the new Article 42 becomes a productive part of the constitution. And it is up to us to remember that our elected officials have that responsibility and to make sure they get to it.