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Dublin: 14 °C Monday 20 May, 2013

Experts weigh in on Children’s Referendum

What does the wording of the referendum really mean for children? We asked an expert on the constitution and an expert on childrens’ rights what they think.

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Image: Eugene Hoshiko/AP/Press Association Images

THE WORDING OF THE children’s rights referendum was unveiled today, as was the wording of the General Scheme of Adoption (Amendment) Bill. Both will be the subject of a referendum on Saturday 10 November.

We asked two experts to give their opinion on the documents.

Positive development

Geoffrey Shannon, Ireland’s Special Rapporteur on Child Protection said:

I think it’s a positive development and I think it will make a difference for children who currently are in the childcare system. It is also an acknowledgement of an imperfect system.

In terms of the impact that it might bring, he said it would give a second chance to children in long-term foster care who currently aren’t in a position to be adopted, and “afford them vital second chance”.

He added that it is an “opportunity for Irish people to do the right thing” and that the proposal is not about extra children coming into care.

The first part of the amendment is the recognition of the natural rights of the child. “That will in terms of decisions for courts ensure the perspective of the child is very much to the fore”.

It will refocus our child protection system and will mean the State will have to invest more in child supports.

The general scheme adoption bill says that the High Court has to be satisfied that for a continuous period of no less than 36 months before the application for adoption, the parents of the child have failed in their duty toward them to such extent that the safety or welfare of the child is likely to be prejudicially affected.

It will allow children who are already in the care system for lengthy periods of time to be adopted. That is to be welcomed.

He said the amendment “will increase the obligation on the State to support families” and “my view in the last few years we havent done enough to support families.”

At the moment married parents cannot voluntarily place their child for adoption – under the amendment, you can.

It also says the court will have the best interests of the child as a paramount consideration, which will be beneficial in care proceedings, guardianship proceedings, but also in family law cases.

It will lead to a greater awareness of the impact judicial separation has on children and it will put it on the radar for courts as well. The child’s perspective will be heard.

He said this is the legacy of reports such as the Ryan report.

The amendment means the State will look at all the options before looking at care or adoption, and will focus on doing everything possible so the child is not placed in care.

Hopefully it will lead to an increased focus on parents… The success of that would be fewer children coming into the care system and we support children more.

Slightly sceptical

Barrister Paul Anthony McDermott, an expert on the constitution, said that he is “slightly sceptical about the referendum”.

If you look at the constitution, it doesn’t have a particular section protecting elderly people for example, or disabled people. It is generally regarded as protecting everybody.

He said it can be “risky” to carve out specific sections covering specific groups, and that the constitution is supposed to be protecting everyone in the Republic anyway.

If you took the €3 million [the Government] are going to spend on the Referendum and spend it on social workers for children, that would do more good than the referendum.

He also suggested that rights are about having money – having a right to education is only good if you afford to maintain yourself through college.

He added that he has never heard of a case in court that “didn’t have the best regard of children”.

Whatever about 50 years ago, nowadays in modern times I’ve never heard of a judge in the Four Courts saying that the constitution is getting in their way in regarding to getting [something to benefit a child in court]

“The real question you’d ask for a child’s point of view is: could you get this to get the Government to spend more money?” said the Barrister, explaining that means whether the Government can be sued because a child is not being provided with something laid out in the constitution as per the amendment.

He added that it says “as far as practicable in paragraph one – we protect your rights but only as far as practicable”.

It’s not going to make anything worse. If by passing this tomorrow [you think] your children aren’t going to be disadvantaged… that is a naive view. The only way to protect children is by giving money and resources to relevant services.

Read: Opposition parties likely to support Children’s Rights referendum>

Read: Children’s referendum ‘not a charter for breaking up families’ – Fitzgerald>

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Comments (14 Comments)

  • I have to agree that the money being spent on the referendum would be better spent on services desparately needed in areas like social work. There are plenty of families, with maybe a drug addicted or alcoholic parent who find themselves unable to care for their children temporarily. I think it would be sad for that parent to lose their children permanently instead of the state providing the necessary treatments to help the parents. I know there are some cases where the parent never seeks help and doesn’t seem to care but from what I read, judges are not hampered from acting in the best interest of the child in those situations with the current system.

    Maybe I’m just being a bit cynical but I don’t have much confidence in the government acting in the best interests of anyone but themselves. And I don’t think they care about children, apart from their own. Just look at the battle some parents are fighting for certain medical treatments, or parents of autistic children battling for SNA’s etc. I guess I’m just worried about doing something we all later regret…

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  • agree with P.A.McD. But referendum still has strong merits and might act as bulwark against family rights trumping deecency. Adoption will be easier in some cases. State still needs to stop stealing from children to fund the protected classes

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  • how and where and more importantly why have the irish goverment removed the right to children to free education in artical 42,very sinister and should be stopped today

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  • this referendum is an example of the ‘hard cases make bad laws’ truism.

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  • Look what happened in the past when the politicians & judiciary allowed the church to be the guardians of the children.
    they were forced into what can only be compared to concentration camps with slave Labour.
    the government at this time and moment don’t have the money to cover the exiting problems, they are taking money from special needs, old age pensioners, in particular people suffering all levels of disability including our children they cannot fulfill the current commitments they have to the Irish people but when it comes to failing banks then and only then does money become plentiful.
    this money is being taken to please Europe, a Europe where it looks like all our adopted children will end up.
    there is no mention of the immediate or extentended family taking care of these children children in this referendum but in the old referendum it state the the constitution prefers the parent over the church state and other third parties some in history had the wisdom to put this paragraph in there what does that tell us.
    I have now been given the opportunity to stop and prevent the horrific injustices done to children in the past happening again. SO FOR ME ITS A BIG FAT NO

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  • Now try it, you just try to run all that is proposed here without reference to the special case of the Traveller families, you can’t , not even with a solid YES vote on Saturday November 10th – and this is why this referendum is a complete and total Confidence Trick because no legislation that will work , without provision for the Traveller families can actually work, and such provision can’t work either as everybody must be equal under law.
    So if Frances Fitzgerald gets her Yes Vote she still cannot legislate as laid out for the purposes of this referendum with no mention of the Travellers anywhere, but even if she now produced legislation to make them exceptions to the rule it can’t be done anyway as we all have to be treated the same under law.
    Any or all legal eagles here must by now realise that it is all a Sham and a Confidence Trick of being asked to vote for something that can’t be done without that Traveller exception , that can’t be done either!
    Come on the Travellng People your existence has not now only shattered the Government but all Irish political parties in Dail Eireann as well and exposed them all as Fakers and Charlatans.
    Thanks for your help, Lads:-)

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  • louise 20/09/12 #

    Too right Andrea

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  • A child is 6 times more likely to die in “Care” at the hands of the State than in the care of their parents.
    * 4 out of 5 girls leaving “Care” at age 18 are either pregnant or already have a child.
    * 42% of our prison population have been in “Care”.
    * 68% of boys will be homeless and destitute when they “age out” of the “care” system at age 18 (dumped on the streets.)
    * Less than 3% of “care” inmates will ever go on to further education.
    * 84% of youths currently in “care” use hard drugs.
    * A child in Foster “Care” is likely to suffer Post Traumatic Stress Disorder in the region of 4 times more severe than troops returning from Afghanistan.
    * The HSE have 5,643 children in “care” currently, but about 400 are missing.
    *The number of children taken into “care” tripled in a 3 year period 2004 to 2007, the plan is to increase this number TENFOLD in the coming years.

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  • Children are dying because the HSE will not fund appropriate treatment, and children with special needs are being further disabled for lack of appropriate care. Basic rights and important child services are NOW being cut to placate the TROIKA. 6,000 families have been evicted by the banks. Last year the number of children removed from parents by the HSE increased by 103% WITH NO INCREASE in criminal convictions for child abuse. There is a shortage of speech therapists, midwives and paediatric nurses, yet the HSE has employed 260 new social workers. How can we hand over control of children to a State who doesnt meet its current constitutional responsibilities. WHERE ARE WE GOING ?

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  • we know that but removal should be discussed and not just removed,when ur paying for the teachers it will be to late

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  • A former Supreme Court judge has spoken out against the move for a referendum to protect children’s rights.Mr Hugh O’Flaherty said that “all, or nearly all the proposed rights are already to be found in an existing article of the constitution, in our ordinary legislation or in court judgements”. He notes that the only new dimension is the extension of adoptions. He said that that can be dealt with by ordinary legislation and should there be doubts about the bill, it can be referred by the President to the Supreme Court to test it’s validity” Supreme Court justice Adrian Hardimann has also warned against “a view calling itself child-centred because it is prepared more easily to dispense with the rights and duties of parents” “The (existing) constitution does not prefer parents to children” But it prefers parents to third parties, official or private, priest or social worker, as the enabler and guardian of the child’s rights” PARENTS BEWARE

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