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Bruce Arnold: As a nation we are serial abusers of children and we need to tackle this constitutional failure

Has the Government been stupid in announcing a referendum on children's rights? Those rights have as much to do with the report on child deaths in care as the laws of Moses have to do with modern Ireland.

In vast and horrifying coverage of the Report of the Independent Child Death Review Group 2000-2010, I read only one concise and sensible paragraph on the children's referendum.

This was in Thursday's Irish Independent in the column by Legal Affairs Editor Dearbhail McDonald, who said: "The constitutional supremacy of the family based on marriage has spawned a disproportionate legal deference to parents that must be addressed in the forthcoming referendum on children's rights."

The problem of how this will be done is huge. It should have warned off those in power from making abrupt promises. This is because, over exactly the same decade of this modern abuse, we have been exhaustively looking into the similar abuse of children that went on in the industrial school system during every previous decade. As a nation we are serial abusers of children and we need to tackle that.

A critical issue then was the constitutional failure. The removal of children from their families in that earlier period, and their subsequent incarceration in institutions run by the church, was in direct conflict with the constitutional protection of the family in the 1937 Bunreacht na hEireann.

We are in danger again of ending up with judgments being made on uncertain evidence and this situation could be reinforced and made more perilous by a limited amendment to the Constitution which Eamon Gilmore announced as a standalone measure, as if this were a virtue when in fact it is a piece of nonsense.

There is no way in which the Constitution can be made relevant to children alone. The State has to address other rights in respect of marriage and parenthood. In the past those rights were corrosively abused, by the church and by the State in failing to regulate the dishonest religious carers. Together the two ran a coach and horses through the Constitution's articles dealing with fundamental rights, personal rights, the family, women, marriage and parental duty.

As Dearbhail McDonald says the issue is "the constitutional supremacy of the family based on marriage". It is this that has created a disproportionate legal deference to parents as well as damaging the lives of children.

Many years ago I made the point that families are no longer what the Constitution wants them to be. I argued that the single-parent family was a family, that two people living together unmarried, including gay people, with children, constituted a family, and that all extensions of these definitions of the family needed recognition. This would release the stranglehold on adoption of the children of living, married parents and would allow stable fosterage of damaged or abandoned children to be converted into more permanent relationships under the law and based on improved love, care and attention.

It was no surprise that Geoffrey Shannon, in his RTE interview, was unable to explain satisfactorily the significance of the constitutional referendum except to speak of the rights of married people and to refer to a perception about the threshold of intervention.

He was right, but it must have seemed inappropriate to concentrate on this (as his interviewer did) at the expense of the report's revelations.

When it came to the question, might an amended constitution have prevented some of the deaths, he floundered. He did not know the answer, nor see it as possible due to poor HSE records. The HSE shamefully prevaricated over revealing the facts during the work undertaken by Dr Shannon and Ms Norah Gibbons.

We can deal with elements of the Constitution by redefinition through Oireachtas legislation. For example, Article 8, on the language, Article 10 on mineral, land and water rights, Article 12, on the powers and duties of the President and on their emoluments and allowances. These can all be modified by law, as can many others.

This is legitimate and wise. It does not need the Constitution to say "as determined by law" before an Article can actually be determined by law and, if challenged, put to the people. The Constitution can still be challenged. Fresh determination can settle it for our generation.

No section of our Constitution is more in need of a fresh determination than the sections from fundamental rights on. When I think of the quite casual modifications at the behest of Europe I am enraged by the supine pretences over morality in our Constitution, a morality we otherwise ignore. We have done it notably over personal rights though not sufficiently with the articles under the heading, 'The Family'.

Nowhere has there been so fundamental a set of progressive changes in morality, attitude, the realisation of a family, or the tussles within families when they break up, as in these articles. But constitutional amendment remains very slow.

European-based legislation gets the limp nod all the time. We throw away our sovereignty through the stupidity of government ministers, but we can't vote through a new definition of the family and allow the courts to see and rectify marriages and parenthood that have failed.

Instead we should dismantle and rewrite the articles in the family section. The family we thought of in 1937 in Ireland as universally and exclusively valid has gone forever.

Irish Independent