Monday 18 November 2019

Emer O'Kelly: Referendum will hear the voice of vulnerable children

We need laws that will protect children from harm and give them status as individuals, writes Emer O'Kelly

WHAT will change because of the Referendum on Children's Rights? In some ways, very little. And for very few people. Yet everything will change.

We will be voting to insert an article in the Constitution "dedicated entirely to children as individuals, as citizens in their own right", as the Taoiseach said. For the first time in the authoritarian history of the State, children will become more than the property of their parents.

The former Supreme Court Judge Hugh O'Flaherty pointed out recently in the Irish Independent that when the Constitution was being drafted in 1937, Eamon de Valera actually resisted pressure from Roman Catholic Churchmen for many elaborate provisions based on the encyclicals of the Papacy. Yet in the light of the internationalisation of civil rights since the Second World War, and the opening of Irish society to outside liberalising influences, our Constitution still seems cautious, wordy, and decidedly to the right of centre. Every time we make progress, especially in sociological terms, we need to hold a referendum.

But we are getting better at civil inclusiveness. Nonetheless the seemingly endless need for referenda to ensure basic decency and civil liberties still has not induced us to scrap a document that has proven itself so frequently not to be fit for purpose. In particular, individual and collective scandals in our neglect of and indifference to children and their rights over the years, right back as far as the Kilkenny Incest Case so ably brought to judicial light by former Supreme Court Judge Catherine McGuinness in the early Eighties, have seen us dragging our heels. Much was promised, but never until now delivered upon.

Parental rights were seen to be paramount, and despite abundant and shocking evidence to the contrary, it was accepted that parents knew best, and did best; that parental failures were minor and something to be regretted but glossed over. The spiritual nature of the bond between parent and child was seen as bestowing controlling rights: this despite the sad stream of arguably psychotic men and women brought before the courts to be found guilty of unspeakable cruelty to their own children. Just as the spiritual calling of clerics, male and female, was seen as ensuring they were best fitted to replace parental care and supervision where necessary.

But the Tanaiste got it right when he spoke of our (at last) "being informed by the bitter lessons of our history", (when) as a State "some of the darkest moments in our past are a direct consequence of ignoring children's interests and children's right to be cared for and protected". If our Constitution is to remain as the proscriptive document it so clearly is, then we have to ensure that its provisions are not merely valid, but competent.

Hugh O'Flaherty is of the opinion that De Valera's opting for what he called "concise statement" in the 1937 Constitution has given us up to 20 "implied rights" which have been recognised, such as the

right to work, the right to marital privacy, and the right of access to the courts. And he is not sure that we actually need a referendum to ensure children's rights. He believes that they could be provided for under legislation without access to a Constitutional addition. But the word "implied" is what would make many of us, admittedly less expert in the law than he is, disagree with him.

Yes, where there is doubt about the implications in various articles, we can depend on the legal profession to interpret them. But recourse to law is costly, long drawn-out, and complex. It is also horribly painful for the people who may be the subject of specific disputed rights. It could also, one imagines, clog up the courts to an unmerciful degree.

Far better, where children, and particularly vulnerable children, are in a no man's land of care, that there should be neither doubt nor uncertainty. We need laws passed which have constitutional status which will protect children from harm, give them status as individuals, and ensure that the State has a duty every bit as inalienable as that of a parent, to protect children and give them security as of right. And if the parents cannot, or will not, then that child must be taken away from those parents and be given the emotional and moral security it is entitled to.

There will be people who disagree with this. The former MEP Kathy Sinnott, who came to national prominence while campaigning for State assistance for her handicapped son, is one. Interviewed on radio on Thursday morning, she said she believed that the proposed terms of the referendum are too close for comfort to those of the UN Convention on the Rights of the Child. She also referred to differing meanings in Irish and English for specific terms in the Constitution, in itself an alarming thought. If the State has the power to decide, she says, it reverses the natural order, and gives a neglectful State even more power than it already has. Asked about parental neglect and/or abuse, she stated that even this was a State failure, not a parental one, and the parent should remain the central authority for the child's welfare.

John Lonergan, the former Governor of Mountjoy Prison and now involved with the children's charity Archways, had a diametrically opposed view. He has seen the tragic results of childcare failures when persistent young offenders have ended up as recidivist adult criminals. We can never get it perfectly right, he admitted. But he went further: the State continues to fail its children miserably, he said forthrightly, particularly through lack of intervention on behalf of children at risk. He is profoundly certain from his vast experience that if there is State intervention early enough, most at-risk youngsters will never end up in trouble. But, he pointed out, it will cost us.

And that creates another problem: will the lofty terms of the Amendment become yet another ephemeral aspiration, or will we, the already adult citizens of the State, be prepared to pay the cost of our dutiful compassion?

Legislation is planned following the passing of the Referendum which will allow the children of married parents to be adopted, particularly those who have been in long-term foster care, described by one foster mother as giving them "the security of being able to belong".

As things stand, the law requires proof that the natural parents will never be able to care adequately for the child until it reaches 18, almost an impossibility of proof, according to Geoffrey Shannon, Chair of the Adoption Board. Seventeen major reports have found serious gaps in the protection we give our children. We have left them rudderless (in the past), Shannon says, and added that far from bringing more children into the care system, the proposed referendum will ensure that the right children will be brought into the care of the State.

Adoption reform will be one definite move which will give equal treatment to children, whether their parents are married or not.

But perhaps the greatest adjudication on the proposed Amendment came during the week from a woman called Anne Rennison, who for 25 years has fostered six children long-term, and 20 short-term. She said on Morning Ireland that the referendum will acknowledge the rights of children, and hear the voice of children, the children who in the past, and to this day, are "no longer safe" in our society. It was a chilling and tragic endorsement, but it said it all. Wonderful woman. Wonderful amendment.

Sunday Independent

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