Since the origin of the Irish Constitution in 1937 there have been thirty amendments added. On Saturday, 10 November 2012 Irish voters went to the polls to decide if a thirty-first amendment on children’s rights should be added. The proposed new article read as follows.
Thirty-First Amendment of the Constitution
PROPOSED NEW ARTICLE 42A
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.
2 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.
3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4 1° Provision shall be made by law that in the resolution of all proceedings –
Calls for such an amendment had been made nearly 25 years ago after a notorious child abuse case (Kilkenny Incest Case). In view of numerous reports and scandals since, especially the Ryan Report (2009) and more recently the Roscommon Case (2011), those calls increased.
As a reading of the proposal will show, phrases like “as far as practicable,” “by proportionate means,” “best interests of the child,” “exceptional cases” became footballs in the debate, tossed back and forth in terms of what and by whom interpretations of those particular phrases might mean and be given.
On the YES side, uniquely, all political parties in the Dail (Irish Parliament) gave their backing to this amendment and numerous child advocacy groups and NGOs also supported it. The Minister for Children, Frances Fitzgerald, herself a former social worker, was the most prominent face of government during the campaign. With such organised and specific support, it was surmised when the wording was published, that the eventual outcome would see over 90% of voters saying YES.
The NO side did not have an organised campaign as such but a small number of individuals emerged calling for the amendment to be rejected. These included, inter alia, a well known Irish journalist, John Waters, writing for years about the secrecy of Irish courts in family law cases, Kathy Sinnott a former MEP, a number of solicitors, a former High Court judge, a lecturer in social care and a number of pro-family lobby groups.
All argued that the rights of children were already implicitly recognised in another articles of the constitution which gives paramountcy to the family’s status. They also argued that current Irish child care legislation had adequate provision to allow the state to intervene where the abuse of children was evident and the proposed amendment would give the state too much power. The section about adoption in the wording was perhaps the least contentious element throughout the debate.
A number of references to the UK were referred to by the NO side and described by the YES side as mythical. One reference was to the “East Enders effect” where the threshold for state intervention will be so low that the authorities can come and take children at will. In a TV debate the journalist referred to above said we were going the “way of England” with police and social workers going into hospitals in the dead of night and taking children from their mothers! Strange as that may seem (has this happened in the UK?) the journalist got a resounding round of applause while the Minister for Children looked on in disbelief. Since becoming minister, Ms Fitzgerald has brought a certain conviction and passion to her job and this was evident throughout the campaign. She, among others, argued that the NO side was simply scaremongering and at times it was hard to disagree with her. The NO side on occasion gave the impression that social workers were waiting around every corner to take children away from families and give them over to the state. The Minister argued regularly as to why the state, in a dire economic climate, would want to take children away from families unless it was absolutely necessary. The NO side asserted that the government and pro amendment sides were putting a case that wrongly suggested a panacea for all the ills in the child care system.
One journalist, Dearbhaill McDonald suggested that the amendment did not go far enough in view of what has emerged otherwise around the concept of family in recent years. She wrote, while indicating she would be voting YES,
Part of the Government’s problem, I believe, is that the referendum campaign has been dismal, not because it is controversial, but because – despite all the handwringing and weeping and mourning in the wake of scandals – it is not radical enough. What about the children of unmarried dads and gay marriage? What about children in prison, children with special needs or those born by surrogacy or IVF? (Irish Independent 6 November 2012)
Two days before polling came a bombshell. A case, dismissed in the High Court but taken on appeal to the Supreme Court, elicited a judgement that left the government with egg on its face much to the delight of the NO campaign and opposition parties. The ruling said that the government was wrong to spend 1.1 million euro on an information campaign to gain a YES vote as this was prohibited by a previous Supreme Court ruling which said both sides in a referendum debate should have equality in putting their particular view. Significantly, however, but lost in the government’s discomfort as far as the public was concerned, was the Court’s view that the substantive issue of the proposed referendum, as laid out by the Referendum Commission, was valid. The NO side argued that the YES vote was being bought while the government said it had sought the legal advice of the Attorney General. A few opposition politicians argued that the referendum should be postponed for a few months but in the event voting went ahead.
The turnout on polling day (a Saturday) was abysmal. Only 33.5 % of the electorate voted and the outcome was far closer than anticipated. The amendment was carried by a vote of 58% to 42%. Since then, the significance of the low turnout and the close margin has given and will continue to give the government as well as political and social analysts much food for thought.
The next step in the process is that legislation giving effect to all aspects of the new amendment will have to be drafted and approved by the Dail and Senate – a necessary process but slow and agonising at the best of times. Then it will be down to the courts in specific cases and here the cynics have noted that the legal profession, not children, may well be the ultimate beneficiaries.
Overall, the placing of children’s rights in the Irish constitution is significant and symbolic. It means the rights of children, formerly argued about in the context of the child’s place in the family and the status in the constitution of parents’ rights, now stand alone. Some commentators note that in the current recession resources and staffing are being cut back to the extent that the constitutional amendment may become mere window dressing. A fair point perhaps?
The abysmally low voter turnout was seen by some as further evidence, as if needed, that after all the uncovering of abuses and scandals in Ireland (with more to come) people pay lip service to the rights of children and when given an opportunity to do something about it, over 65% are simply too lazy or uninterested.