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The Children's Rights Referendum: 'A watershed for our young'

TAOISEACH Bertie Ahern has unveiled the wording of the proposed referendum on the rights and protection of children, declaring it "a watershed for Ireland's children".

The new draft charter will restore Ireland's defunct statutory rape regime, which collapsed in the wake of last year's Supreme Court decision in the 'CC' case.

The defence of "honest belief" as to age will be removed and the referendum will facilitate the introduction of a "zone of absolute protection" below which it would be automatically criminal to have sex with a child.

The referendum will also allow for collection and exchange of 'soft information' on suspected child abusers, with plans to allow such information to be shared on an all-Ireland basis, which has received an enthusiastic welcome from children's rights advocates.


However, as child rapporteur Geoffrey Shannon writes in today's Irish Independent, 'soft information' must be strictly regulated to ensure it is accurate and not the result of malicious or speculative allegations.

Unveiling the new wording, Mr Ahern said putting the rights of children into the Constitution would protect children without undermining the role of parents or the constitutional safeguard for the family.

However, a last minute change to the wording that will allow the Oireachtas to create new offences of absolute or strict liability in respect of as yet unidentified, non-sexual offences has raised concerns that the referendum will confer a carte blanche on the State to create a new class of crimes against children.

The decision to allow creation of absolute or strict liability offences in non-sexual crimes could lead to introduction of zero-tolerance laws in respect of, for example, sale of alcohol and cigarettes to minors.

In such circumstances, the defence of honest mistake will not be available to defendants, prompting concerns about the abrogation of the civil liberties of citizens beyond the limited sphere of rape and sexual violence against children.

The seven-point amendment says the State will:

* Acknowledge the natural and imprescriptible rights of all children.

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* Restate the existing protection of children and parents in the Constitution.

* Allow for adoption of children in care for a substantial period of time.

* Ensure all children will be eligible for voluntary adoption.

* Ensure the 'best interests' of children will be secured in any court proceedings relating to adoption, guardianship, custody or access.

* Draw up laws to allow for collection and exchange of 'soft information'.

* Draw up laws to create offences of absolute or strict liability regarding offences, including non-sexual offences, against children.

The opposition has called for a full examination of the likely fallout and impact of the referendum and said draft legislation should be published immediately to allow the electorate to fully debate the issues and to ensure unintended consequences do not flow from any constitutional reform.

"Every single word counts, entire cases have turned in the Supreme Court on single words," said Jim O'Keeffe, Fine Gael justice spokesperson.

"It is necessary to explore where this wording will lead to, as there may be unintended consequences that flow from it. We also need to explore who is going to enforce these rights for children, and what liability the State and the taxpayer will be exposed to if the State fails to protect those rights."

The Irish Council for Civil Liberties expressed disappointment at the wording of the draft bill. Director Mark Kelly said the planned referendum was, in essence, one regarding child protection, rather than a referendum on children's rights.

"An Taoiseach claimed that the proposed amendment of Article 42.5 will 'introduce an explicit protection of the rights of children'. It will do nothing of the sort," he said.

Dearbhail McDonald

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