IT’S BEEN A strange sort of Referendum Campaign. In the weeks which followed the announcement of the polling date it appeared there might not actually be a campaign at all, simply on the basis that there didn’t seem to a No side to mount one. It was the ‘Mother and Apple Pie’ referendum we were told, a foregone conclusion, after all who would oppose an effort to strengthen children’s rights given the child abuse and neglect scandals of the past twenty years or more?
In the past week or so a No campaign has emerged more clearly. Not so much an organised and cohesive coalition or movement but rather a collection of individual voices that share some degree of common concern about the proposed amendment.
It seems to me that those concerns centre on a few issues.
There is a view that the State should not be granted increased power to intervene in families as the State is not to be trusted and has failed egregiously in the past to protect children and defend their rights.
I am fascinated by how some people approach the question of State power and State intervention. The whole point about the State’s power of intervention, and indeed human rights protection is that is applies to all of us equally. It is inconsistent to demand greater State power and intervention, for example in demanding increasingly harsh criminal justice responses that will certainly limit the rights and freedoms of others who are perceived to be some sort of threat, while insisting that the State has no right to interfere in any way your own life, even if it is doing so in a considered and proportionate manner and in an effort to ensure that the rights of others are properly protected.
Of course the State should never be simply trusted to exercise the very considerable power that we as citizens grant it. We should always question and carefully monitor how and to what end the state exercises its power. This is in part what a constitution is intended to clarify; the scope of the States authority, the purpose to which it should apply it and the contexts within which the State can intervene in the people’s lives and freedoms.
“Any intervention must be proportionate to the needs of the child”
This amendment seeks to clarify when and why the State might be required to intervene to ensure that children are safe and from protected abuse. It makes clear that any intervention must be proportionate to the needs of the child or children concerned and in their best interests. The rights of families are not diminished by this amendment.
Article 41 of the constitution is utterly unambiguous in asserting the status of the family, recognising it as “the natural primary and fundamental unit group of society possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. The same article requires the State to protect the family, and asserts that the family is indispensible to the welfare of the Nation and the State.
This article will not change.
Rather the amendment will work with this other important provision and guide how the State should intervene to support families and protect the children in their care.
We must remember that children living within families do sometimes require extra State care and support and that sometimes families are not in fact safe places for children. In the rush to reassure society that it recognises that the vast majority of families are places of love and security for children, we cannot shirk from naming the fact that the opposite is also on occasion true.
The most extensive and reputable research into sexual violence in Ireland, the SAVI Report, commissioned by the Dublin Rape Crisis Centre and carried out by the Royal College of Surgeons in Ireland, was published in 2002. It found that 27 per cent of Irish adults reported an experience of sexual abuse in their childhoods. A fifth of respondents were abused by members of their own families. Yesterday the Rape Crisis Network of Ireland revealed that of 2,308 people who accessed their services last year, 65 per cent were sexually abused before the age of twelve and a staggering 47 per cent reported that their abusers were family members.
“Hasn’t the past taught us anything?”
There is nothing pro-family about ignoring these facts. It can surely never be acceptable that the price of some kind of blissful ignorance on the part of those who refuse to confront uncomfortable truths is the continuing suffering of children in abusive family situations. Haven’t we done enough of that here in Ireland? Hasn’t the past taught us anything?
We cannot decry the State alone for its past failures. The widespread abuse of children in Ireland, in the care of families and the State alike, was only possible in a society wilfully blind to the very fact of such abuse. The State failed egregiously, but it did so because the rest of society failed too. The State could ignore the plight of children who were raped, abused, neglected and brutalised because we collectively allowed it do so.
It’s not that we didn’t know, it’s that we didn’t either care enough to intervene or accept that we had a collective responsibility to do so.
The State failed, and to varying degrees so did the rest of Irish society. I am not alone in that view. In a survey carried out for Amnesty International last year 85 per cent of respondents said that they believed individual members of society should have done more to protect the children whose abuse was revealed in the Ferns, Ryan, Murphy and Cloyne Reports. Some 71 per cent believed that wider society bears some responsibility for the abuse revealed in the reports, and 88 per cent agreed that individual members of society should have demanded that the State act to prevent such abuse.
Irish society appears to have learned from the failures of the past, and the State appears to be learning too. The proposed referendum is just one in a series of recent reforms to protect children.
In the past year we have seen the establishment of the Child and Family Support Agency, which will take over responsibility for child protection and family support from the HSE. We have seen state child protection guidelines given the force of law, minimum standards introduced for child protection and family support services which will be subject to independent inspection for the first time in the history of the State. These vital steps will help to ensure, even in our financially straitened times, that our services are more fit for purpose and that we do not repeat the failures of the past.
“John Waters argues that children are not equipped to directly claim their rights”
John Waters, who has emerged as one of the leading spokespersons for the No Campaign, questions the very principle of recognising children as possessing individual rights. Waters has rightly pointed out that the vindication of an individual’s rights is dependent upon the negotiation, or balancing, of those rights against the rights of others. He argues that children are not equipped to directly claim or vindicate their rights and are dependent upon their parents to do so for them. From this he concludes that children cannot be viewed as possessing individual rights.
If we follow John Waters’s argument through then we can only conclude that other vulnerable people like the elderly, people with intellectual disabilities, or people experiencing mental health problems do not posses rights because they cannot vindicate them for themselves.
But the vindication of individual rights is always dependent upon a power or authority beyond the individual human being who possesses those rights. No matter our age, our legal or intellectual capacity, the enjoyment and vindication of individual rights is always dependent upon the support and protection of the State.
The State has a responsibility to protect the rights of all people who live within its borders. In doing so it must carefully consider and balance competing rights, and it must ensure that it is properly accountable for doing so.
The proposed amendment is not a human rights amendment. It will not enshrine the UN Convention on the Rights of the Child in Irish law, nevertheless it will hopefully take us some of the way towards respecting the important rights set out in that convention.
It will advance key principles that should ensure that children who are in particularly vulnerable situations are better considered and protected. It is a significant step forward in that regard, which is why Amnesty International Ireland is supportive of the amendment and why I personally will be giving the proposal my unequivocal support.
Colm O’Gorman is the Executive Director of Amnesty International Ireland.
Check TheJournal.ie tomorrow morning for final arguments from the ‘Yes’ and the ‘No’ side on the Children’s Referendum.