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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.
Sep 20th 2012, 7:30 AM 4,252 14

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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Aoife Barry

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