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Judges rarely comment on law reform issues. This is because our TDs are responsible for passing legislation and the judiciary is responsible for upholding the law. So when a retired member of the Supreme Court, like Mr Justice Hugh O'Flaherty, expresses a view on something as fundamental as a children's referendum, it's important to sit up and listen.
In yesterday's Irish Independent, Mr Justice O'Flaherty questioned the need for a constitutional referendum on children planned for the autumn. The referendum will be based on wording produced by an Oireachtas Committee chaired by Mary O'Rourke from 2007 to 2010.
In Mr Justice O'Flaherty's opinion, the Constitution and our laws offer enough protection to children. I do not share this view. And there are very good reasons why we need to update our Constitution.
Today, there are 17 official reports cataloguing how Irish society failed to protect our most vulnerable children from abuse, effectively robbing them of their childhood. For me, the 2009 report of the Commission to Inquire into Child Abuse was the most shocking of the lot. It reveals how children were placed in industrial schools for erroneous reasons. These children were starved, neglected and abused, but, shamefully, when some of them tried to complain no one listened to them.
The Constitution has been consistently flagged in these reports as being part of the problem. If you read our Constitution, you will see that children are virtually hidden away. It only includes two child-specific rights: the right to primary education and the right to be protected when parents fail in their duties. Of course the marital family is very well protected in the Constitution and this referendum will not change that.
The Constitution currently only allows the State to intervene in serious cases of abuse or neglect. And the failure to recognise the child as an individual with rights has resulted in some very poor judicial outcomes, with the PKU case being the most obvious.
This case involved a parental decision to refuse to allow the harmless PKU heel prick blood test to be carried out on their baby. The PKU test identifies diseases where early identification can be of huge benefit. In the Supreme Court, the judges said that, even though the parents' decision not to have the test was "unwise" and clearly not in the best interests of the child, there had to be an immediate and fundamental threat to the life or health of the child to overrule the parents' decision.
Clearly there is something wrong if the courts can only intervene when a child's life is in immediate danger.
The ruling of the Supreme Court in this case cannot be ignored or set aside by ordinary legislation from our Oireachtas. If it could, why would we be calling for constitutional reform?
Mr Justice O'Flaherty argues that the courts through their judgments have provided children with rights. However, this has been a rare occurrence, and, in reality, judges have only partially demonstrated a willingness to take on the best interests of the child or the voice of the child in proceedings. This means that, in care proceedings when the HSE is seeking to take a child away from his or her parents, the child has no right to be consulted.
He also suggests that the legal blocks preventing children in long-term foster care from being adopted can be dealt with through ordinary legislation. On this point, I have to disagree. Legislation dating from 1998 allows the adoption of children of marital families only in limited circumstances.
Because of the special status of the marital family in the Constitution, these types of adoptions can only occur if parents fail in all their duties towards the child and it is likely this failure will continue until the child is 18. Consequently these adoptions rarely take place.
We know from the Minister for Children and Youth Affairs Frances Fitzgerald that there are hundreds of children in long-term foster care that cannot be adopted because of this bar. Mr Justice O'Flaherty suggests that we legislate again and wait for a response from the Supreme Court. Why wait? We know that this issue involves high-level constitutional rights and that there are many cases where the courts have tried to push the boundaries of these rights to no avail.
With all due respect to Mr Justice O'Flaherty, it's really up to the people now. With the children's referendum we have the chance to make sure our Constitution reflects our values as a society. We are not asking for an extensive set of new protections. We are just looking for some key principles that would help us build a legal foundation to ensure that children are no longer sidelined by our courts.
We can't take away what happened to children in industrial and religious institutions in Ireland. And we can't protect every child from abuse in all situations. However, we can draw a line in the sand to ensure that our Constitution, at the very least, offers the best possible protection to children.
Tanya Ward is the Chief Executive of the Children's Rights Alliance
Irish Independent
