Children’s Rights Referendum – a symbolic step forward as opposed to practical change? | Morgane Conaty
Morgane Conaty examines the practicalities of the Children’s Rights Referendum.
The upcoming Children’s Rights referendum has been billed as one of the most significant in the history of the state. Minister Francis Fitzgerald stated, when the wording was published, that it would “represent a major and historic change.” However, with little debate on the issue, can we be certain that this is in a fact a great step forward in the area of children’s rights, as is claimed by the government and most groups supporting it?When the government published the wording of the referendum the reaction was predominately positive with all political parties endorsing it and children’s groups welcoming it. A recent poll by the Irish Times confirmed that the referendum was highly likely to be approved with 58 % stating that they would vote ‘yes’ and only 4% declaring an intention to vote ‘no’. (33% were still undecided). With a vote in favour of the amendment highly probable, the wording and its impact have not been questioned. The same poll revealed that merely 10% of people admitted that they have a good understanding of what the issues are about. I find this to be extremely worrying; the electorate seems to have very little appreciation for the details of the amendment and as the general consensus is that there urgently needs to be a constitutional change in favour of children’s rights, it is presumed that this amendment must be the best solution. I agree that the referendum is a positive step, but is it merely a step in the right direction and not a solution to the problems regarding children’s rights? Will the amendment provide practical change?The wording of the referendum has to be examined in detail. Proposed article 42A.1 introduces an explicit obligation to protect and vindicate the rights of children. The article is symbolic as it is the first time children’s rights are recognised in the Constitution. However when taken on a practical level these rights must always be viewed with respect to the rights of the family in Article 41.1. It remains to be seen how the courts will balance the “natural and imprescriptable” rights of children with the “inalienable and impresriptable” rights of the family. Though it is progress to finally have children’s rights recognised in the Constitution, there is a worry that this progress may be merely symbolic, as the courts have always strongly upheld the rights of parents.This is the only proposed article which does not contain the phrase “provision shall be made by law”, meaning that it does not rely on State legislation for its implementation. The rest of the articles, (regarding State intervention if parents fail in their duty, adoption and the best interests and views of the child), hold little constitutional validity until legislation is passed by the State. The only article upon which the government has published a draft bill is the one concerning adoption, so with regard to the remaining articles it is unclear how the government hopes to reinforce them. We will be voting for a referendum that obliges the State to pass laws, yet we do not know when the State intends to do so, or what the legislation will entail.What is surprising is that there hasn’t been much concern over these issues in the media or by children’s rights groups. It appears that everyone is happy believing that the referendum is a great advance for children’s rights. In fact the ‘Yes for Children’ campaign, states that “[t]he referendum will insist that judges who are making decisions that affect children's lives will consider their best interests and hear their views. There will be a constitutional basis for this.” However, the amendment merely obliges the State to legislate for this, there is no express statement requiring judges to take into consideration a child’s best interests and their views.This wording is actually different from the proposed amendment recommended by the Joint Oireachtas Committee in 2010, which would have been a much stronger endorsement of children’s rights. Here specific rights of children were vindicated (including the right of the child to such protection and care as is necessary for his or her safety and welfare, the right of the child to an education, and the right for the child’s voice to be heard). The best interests principle was also constitutionalised. Why it was decided not to retain the wording and to opt for a weaker amendment is not clear. The stronger wording is unlikely to have alienated much of the electorate as any change in re children’s rights would be regarded as a positive move and would be supported.Despite these worries I am not in any way advocating a ‘no’ vote on Saturday 10th. This amendment is a positive change even if it doesn’t quite live up to expectations. One would hope that the amendment will be seen as the beginning of a new era in the courts and in legislation, where the rights of children will be better protected and their views held in higher regard. However there is a danger that people and politicians will believe that their job is done; that children’s rights will be sufficiently protected from now on whereas in fact much practical change is unlikely. Read the counter argument here