independent

Thursday 17 April 2014

Hugh O'Flaherty: We don't need a referendum to protect our children's rights

Picture posed. Thinkstock

The children's rights referendum is said to be "on track" to be held in November. The wording that will be put before the people has yet to be settled but is likely to implement the recommendations of an Oireachtas committee that was set up in 2007.

That committee, in 2010, set out its recommendations as follows:

• Enshrine and enhance the protection of the rights of children.

• Express recognition of children's rights.

• In its laws and actions the State shall cherish all the children of the State equally and the State should not discriminate as between children.

• Protection of a child at risk -- children of marital and non-marital families to be treated identically.

• Welfare of the child to be of paramount consideration.

• Extension of the right to adoption where the child's welfare so requires.

• Provision for education, including free primary education.

• The rights of parents to be preserved except in exceptional circumstances.

• The State's laws and services to accord with the United Nations Convention on the Rights of the Child.

Now there is no doubt that these are very laudable precepts, but the question is -- do we need a new referendum to deal with them? They are all -- or nearly all -- to be found in an existing article of the Constitution, in our ordinary legislation or in court judgments.

The only new dimension is the extension of adoptions. But that can be done by ordinary legislation; and if there is any doubt about the Bill, it can be referred by the President to the Supreme Court to test its validity.

A constitution should contain the basic requirements for the exercise and protection of any right. It is for the Dail and Seanad to spell out the dimensions of the provision in question and, on occasion, the courts.

When Eamon de Valera came to draft the Constitution in 1937 he was pressed by some churchmen to include very elaborate provisions often based on Papal encyclicals. He resisted that and opted for concise statements that could be elaborated upon in due course.

A good example is Article 40 which provides that all citizens shall, as human persons, be held equal before the law; the State may have due regard to differences of capacity, physical and moral, and of social function.

Then there is a provision that the State shall, in particular, vindicate the life, person, good name, and property rights of every citizen. Beginning with a case in the 1960s, the courts have hovered in on the words in particular to hold that the State must protect not only the expressed rights but other implied rights.

In that spirit, up to 20 implied rights have been recognised -- such as the right to work, marital privacy and access to the courts, to cite just a few examples. Thus, the Constitution has done its job. It is up to the other organs of State to do theirs.

To take another example: Article 41 deals with the family and recognises that it has "inalienable and imprescriptible rights". Then comes what were back in 1937 -- and maybe still -- very controversial provisions.

Section 2 of the article provides that, in particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

It goes on: "The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home."

As recounted by Professor Diarmaid Ferriter in his book 'Judging Dev', letters of protest came from international organisations, including the Six Point Group in London, who suggested that "these clauses are based on a fascist and slave conception of woman as being a non-adult person who is very weak and whose place is in the home.

"Ireland's fight for freedom would not have been so successful if Irish women had obeyed these clauses."

But would any court now, or indeed at any time since the 1960s, give the provision such a malign construction? There is a better one provided by Dr Yvonne Scannell in an article 'The Constitution and the role of Women'.

In it, she notes: "There are two ways of looking at this article. The first is to take De Valera at his word and to regard the first paragraph as a tribute to the work that is done by women in the home as mothers.

"The second paragraph ... can be read as a constitutional guarantee that no mother is to be forced by economic necessity to work outside the home to the neglect of her duties there.

"The mothers covered by this guarantee would include widows, unmarried mothers, mothers whose husbands are unable or unwilling to support their families, even relatively rich mothers with heavy expenses such as those necessitated by caring for ill or handicapped children."

We can pass over the other, older, way of looking at the article. As far as I know this article has not been explored to any degree in the courts but the interesting thing is that it refers to mothers, not women in general, and it is a constitutional guarantee for the rights of mothers as opposed to a pious platitude

I give these as examples -- there are many more -- of how constitutional provisions should point the way but the important engine to implement rights should come in ordinary legislation. That can be enacted and amended speedily if found wanting. Working towards a constitutional referendum seems a cumbersome way of doing business.

Hugh O'Flaherty is a former judge of the Supreme Court

Irish Independent

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