Thursday 23 October 2014

It's time we gave our young a hearing

Olivia O'Leary

Published 04/11/2012 | 05:00

Canvassing on a windy street in recent weeks, I met a grandmother, a strong admirable woman, and she told me a tale of such hurt that it has stayed with me ever since. Her son's partner had left him and taken their little girl and this woman and her son had battled for years to get joint custody. Eventually they won. But years of bitterness could have been avoided if only somebody had listened to the child. She would have told them that she wanted to be with all the people she loved: her mother, her natural father, and her grandparents. Nobody listened to the child.

Children aren't stupid, you know. In most cases, they know who loves them and who will care for them and they seek out that caring love like the roots of a plant will seek water. We must listen to children. That's one of the most important things that the proposed change in the constitution in next Saturday's referendum will bring about: where practicable, the voice of the child will have to be heard in all proceedings relating to them. At the moment, Guardians ad Litem, who represent the child's views, are used in less than 40 per cent of child care proceedings. In any case, as the independent referendum commission booklet says: ''There is no explicit constitutional reference to the views of the child as a consideration in determining proceedings.'' If the referendum is passed, there will be.

I have waited all my adult life for this referendum, watching government after government dodge the issue as a procession of reports into cases of child abuse or neglect or even death called for constitutional change. What difference will it make? Well, as well as putting children's rights explicitly in the constitution in a whole separate article, 42A, it says that in all proceedings concerning them, the best interests of the child shall be of paramount consideration. Isn't that already the case, you might ask? No. As Judge Catherine McGuinness, who chaired the Kilkenny Incest Investigation, said in its report: ''The very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the right of parents than to the rights of children."

The other difference it will make is in the area of adoption. At the moment it is almost impossible for the children of legally married parents to be adopted, even when their parents give consent. This means that children of such parents who can't look after them for a number of reasons, including drug or alcohol addiction or mental illness -- spend all their lives in care. Sometimes their foster parents will want to adopt them, and the children will want that, too. But the threshold of proof of abandonment by their natural parents is extraordinarily high -- that their parents have not looked after them for the past 12 months, and that there is no chance of them being able to look after them until they are 18. As a result, these children are caught in a limbo between those who want to be their family and those who can't. They haven't the same name as the family they live with; they can't go on a school tour, or undergo a medical procedure or get a passport without contacting the social worker who isn't always available. They are always different from other children.

Geoffrey Shannon, chairman of the Adoption Authority, who has such vast experience in this area, says : ''This is the dilemma we face on a regular basis -- that children are on the cusp of adulthood before their cases are presented to the adoption authority.''

Opponents of this amendment say that this can be dealt with by legislation. It can't. The Adoption Act of 1988 was supposed to have dealt specifically with this obstacle. It didn't.

This amendment will finally change the Constitution so it allows the adoption of any child, irrespective of the marital status of its parents. According to the Government's proposed adoption bill, when children are in care but continue to have contact and a strong beneficial relationship with birth parents and wider family, the question of adoption would not arise unless the parents gave their consent. But where such contact and relationships do not exist and there has been a continuous failure on the part of parents towards the child for at least three years, and where the child has been in the care of those wishing to adopt it for at least 18 months, then adoption could be considered. Those who oppose this amendment say it pits the rights of parents against children. That would happen only where the child was being abused or neglected. Articles 41 and 42 copperfastening parents' rights remain.

Those against the amendment say it will make it easier for the State to take children into care. The fact is that the new Article 42A still says that only 'in exceptional cases' will the State step in. What it also says, however, is that the State in stepping in shall use ''proportionate means''. This allows for earlier intervention before the problem reaches crisis point and may avoid children being taken into care.

None of this is to suggest that the State has a good record on children's rights. It doesn't and I would be the last to defend it. But the explicit statement of children's rights in the Constitution will mean that now the State, too, can be held accountable.

In over four decades as a journalist, I have always tried to maintain a distance from campaigns. I have never before stepped out from behind my reporter's notebook, never before worn the badge, and put on the T-shirt. But like so many other people, I sat reeling from the effects of a series of reports on the abuse and neglect of children, and asked myself what we as citizens could do. Here's one answer. Go out and vote next Saturday. Don't assume that everyone else will. And when your grandchildren ask you how you voted, be sure you can tell them: "I helped to change things for children in this country. I voted 'Yes'."

Olivia O'Leary is heading up the Yes campaign for the Children's Rights Alliance

Sunday Independent

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