Bruce Arnold: This referendum is a waste of time and will do nothing at all for children's rights
Published 29/10/2012 | 05:00
THE Children's Referendum is a grave mistake, confused in its language, absurd in its presumptions, and back to front in that it sets the problems in theory when historically constitutional referendums have generally been the product of court judgments on wrongly-drafted laws.
Rewriting the Constitution for the vast and amorphous "common good" with views about "some children possibly at risk" is part of a new absurdity.
The chairperson of the Referendum Commission, Mary Finlay Geoghegan, is apparently explaining how this will help children. Her father, Mr Justice Tom Finlay, Chief Justice and president of the Supreme Court, had different views. In a judgment in a family law case in the 1980s, he wisely said: "The presumption should be that a child is best cared for within the family."
This view is in the preamble to the present constitutional protection of the family under "inalienable and imprescriptible rights".
The family can no longer be comprehended solely within marriage. A revised view of this is overdue in our Constitution, which should not only recognise marriage as a civil partnership but eliminate the concept of marriage as a "moral institution" or permanent.
Family, marriage and children no longer justify the presence of "inalienable and imprescriptible rights" . . . "antecedent and superior to all positive law". Dr Ken Whitaker rightly recommended the removal of such vaporous terms. He has been ignored and we are going backwards.
We have unscrambled some outdated laws. We need to unscramble high-sounding phrases we do not understand. Marriage is a civil contract mediated by divorce. It is no longer a lifelong commitment.
The referendum should be abandoned because it has been ineptly worded and is ridiculous and confused. This is also the view of Hugh O'Flaherty, former Supreme Court judge, who sees the law as adequate enough.
What is meant by the many dubious phrases used in the critical subsection of the proposed constitutional change, namely the new Article 42A.2.i?
"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."
What are "exceptional cases" and how are they defined? How can parents with children be treated "regardless of their marital status"? All parents with children are in a marriage and they constitute a family. It may have broken up, but it remains part of them all.
What do we mean by "supply"? What do we mean by "the place of the parents"? What is "proportionate"? How will the law measure it?
When we voted to introduce divorce, we made marriage open-ended. We introduced to our Constitution broad states of instability and uncertainty that could not and cannot be focused on children alone. But we did nothing to make the Constitution fit in with the changes.
In the second part of Article 42A.2.ii we invent imagined needs. This raises the spectre of virtually unlimited uncertainty for which no laws have yet been passed or tested. And having said all this, the section concludes that this amorphous task will be done "always with due regard for the natural and imprescriptible rights of the child". What has already been done to marriage and the family has demolished the need for such phrases.
WE ARE attempting to second-guess the futures of a million and more partnerships, including same-sex partnerships, and a couple of million children whose parents have "failed in their duty".
The theoretical remedy will not be comprehensible. We will have instead a bit of ad hoc-ery. Loose thinking and looser use of language litter the text.
In the next section, adoption is provided for "where the parents have failed for such a period of time as may be prescribed by law". This time is three years. Why not say so in the material sent out? Parents who are having trouble should know what the clock will tell them and should also know how "the best interests of the child" will be gauged.
Mr Justice Tom Finlay was correct in saying: "The presumption should be that a child is best cared for within the family." The shape and definition of the married family has changed. Marriage is not what it was. Family is not what it was. The terms are not exactly in keeping with the laws of the country. They still approximate in some instances but not all, and this has the effect of making a mockery of the wording used in the referendum, turning it into outdated jargon.
The men and women of Ireland should firmly reject it and demand something a good deal better.