The Irish constitution – Bunreacht na hÉireann – was adopted in 1937. It is 75 years old. There have already been many amendments made to the constitution on a very piecemeal fashion, and there have also been several failed attempts to change the constitution, most notably on the issue of proportional representation and multi-seat constituencies.
For over thirty years it has been obvious that the rights of children were not adequately protected in the constitution. Internationally we had the drafting and the adoption of the International Convention of the Rights of the Child, and its acceptance into domestic law in many countries. Conversely, in Ireland from the Kilkenny Incest case, through the Ryan Report, the Murphy report, and the more recent report on the deaths of minors in HSE care and the treatment of young offenders in St Patrick’s Institution, the lack of constitutional and statutory provision for children has been highlighted.
It is instructive to take note of some of the comments of Judge Catherine McGuiness in her report on the Kilkenny incest case.
On page 19 the report states “A major review of personal and social services for children was undertaken by the Task Force on Child Care Services which was established in 1974 by the Minister for Health.
The final report of the Task Force was published in 1980. Additionally an Adoption Review Committee was set up by the Minister for Health. This committee reported in 1984. These two reports contain comprehensive analysis and discussion of various aspects of child care and adoption”.
This clearly shows that almost forty years ago certain civil servants and politicians recognised that Ireland lagged behind most other states in its child protection and child services. Yet it took another decade for a new legislation to be enacted and even longer for all of the sections of that act to be brought into force.
"The major statutory provisions for protecting children who are at risk are still contained in the Children Act 1908 and it is these provisions which applied at all material times in regard to the particular case which is the subject matter of our inquiry. Under the 1908 Act, a child may be removed from the custody of his or her parents and placed in the care of a relative or other fit person in specified circumstances". (ibid p26)
"In considering the reporting and investigation of suspected child sexual abuse, it should be noted that no statute lays down in express terms a duty on any person private or official to report child sexual abuse or suspected child sexual abuse. This applies to health care and child care workers, as it does to teachers, friends and neighbours". (ibid p29)
The Kilkenny Incest Case report was written almost 30 years ago. Yet it is only in the last few years, in the wake of the revelations of the most horrific widespread and long term child abuse both sexual and physical, that we have come to the situation where we have legal compulsory reporting of child abuse. Even now there are obscurantist elements which oppose compulsory reporting.
A legislative base can only be secure if it soundly based on the constitution. Unfortunately the 1937 constitution never expressly gave rights to children, but did expressly give rights to the “family”. This has historically been interpreted as meaning that the rights of the child are, in effect, subsumed by and within the rights of the adults / parents. It is in order to correct this, and to give express rights to the child, that the Workers’ Party has long supported the call for a referendum to secure the rights of children.
What is being proposed?
There is in effect a two part proposal being made.
In the first part Article 42.5, which states: “In exceptional cases, where the parents for physical or moral treasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endevour to supply the place of the parents, but always with due regard to the natural and imprescriptible rights of the child” is being deleted.
It is to be replaced by a completely new article, Article 42A, which will state:
- 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.
- 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.
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.
- Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
- 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.
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.
Why the Workers’ Party supports this referendum
The Workers Party has, over the last long number of years, called for a complete redrafting of Bunreacht na hÉireann and, in particular a completely new approach to be adopted to children and to the rights of the child. In policy documents and in public presentations we have set down a three part threshold for the constitutional protection of children.
The three guiding principles to which we adhere, and which are based on the three guiding principles as set out in the UNCRC, are:-
Best interest of the child; and
Right of the child to be heard.
The issue of non-discrimination is central to treating children equally. The concept that children should have different standards of legal protection, or be regarded differently in the eyes of the law because of the marital status of their parents, is abhorrent to us. It is therefore to be greatly welcomed that the new proposed Article 42.A.2. 1° directly deals with this issue. In our view it makes clear that adverse presumptions against children will not be made about children because of the non-marital status of their parents, nor, on the other hand will children be allowed to suffer merely because of the married status of the parents. The child, and the welfare of the child, now comes centre stage.
In terms of Irish jurisprudence this is a major leap forward. For the first time, constitutionally, (proposed Article 42A.4. 1°.ii) it is a recognition that children, qua children, have rights independent of their parents or wider family. This moves away from the paternalistic and socially regressive view, as expressed in the original Article 42.
The express recognition, (proposed Article 42A.4. 2°) that: “the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child” is again a major breakthrough in Irish constitutional law. It is undoubtedly because children were not listened to; and indeed in some instances are still not being listened to; that the litany of abuses that have been revealed and so shocked this country over the last decade was allowed to continue for most of the last century. It is only by children having a voice, and having constitutional protection for that voice, that we as a society can progress.
We reject the scaremongering of certain elements who claim that this amendment is an attack on the family and/or claim that this amendment lays the foundation for some type of draconian policing and state-sanctioned child snatching.
Every section of the proposed amendment states and restates that the state will only step forward to take the place of the parent “in exceptional cases” and “by proportionate means”. Article 41 and Article 42, section 1 to 4) remain intact and in force and the reading of the new Article 42A must be taken in conjunction with these existing articles.
Lastly we would point out that in our view rights are not a zero-sum game. The granting of rights to any individual or group does not deny rights to any other group. It is wrong in our view to set up a conflict between the rights of children and the rights of families. But it also fails to recognise that with rights come responsibilities and families have responsibilities, especially to the weakest members. The amendment is an attempt to deal with the reality that in a minority of cases families fail in those responsibilities.
The Workers' Party is therefore calling for and campaigning for a Yes vote in this referendum.
Central Executive Committee,
The Workers' Party