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Column Why I’ll be voting No in the Children’s Referendum

There is no legal need for constitutional change – and it may have unforeseen consequences, writes Gerry Fahey.

RETIRED JUDGE HUGH O’Flaherty recently stated that all – or nearly all – of the objectives of the Amendment are to be found in our existing Constitution, in ordinary legislation or in court judgments, and the one that isn’t can be dealt with by amending legislation.

This is consistent with the view of Supreme Court Judge Adrian Hardiman who stated in 2006 that:

The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights.

The amendment consists of three parts – the welfare of the child, hearing the voice of the child, and adoption issues.

Welfare issues are adequately dealt with in the Constitution, as Judge Hardiman made clear, where provision is made for State intervention under Article 42.5 when parents fail in their duty towards their children. The Roscommon ‘incest case’ is frequently cited by advocates of a Yes vote as a reason for supporting the amendment. However, if the State had acted as it should have under this Article, then the Roscommon case would have been properly dealt with, and the children would have been removed from their abusive home.

No constitutional provision regarding children’s welfare is of value if society ignores it. The abuse highlighted by the Ryan Report was not a consequence of a Constitutional deficiency – it was a consequence of societal values. The industrial schools’ abuses had stopped by the late 1970s because the victims started to speak out and a small number of journalists exposed the abuses. This happened without a constitutional amendment.

The ‘voice of the child’ does not need a constitutional amendment. Germany has almost the identical wording in its 1949 Constitution with respect to citizen rights, the family, children upbringing, and State intervention. In its family courts every child from the age of four has the right to her/his voice being heard. All we have to do is have the courts here to do the same.


The Yes side argue that one of the effects of the amendment will be to permit the adoption of a large number of children, of married parents, now in long-term foster care – and that there are 1600 of these cases. Sadly, this is not true. Only 16 of 4400 children with unmarried parents were adopted in 2010. Adoptive parents generally want very young children with whom they can establish attachment bonds with at a young age.

So there is no need for the referendum because children’s rights are adequately catered for in the Constitution as it is; there is no legal impediment to the voice of the child being heard; and the adoption of a very small number of children can be dealt with by simply amending the 2010 Adoption Act.

Voters should bear in mind the inherent dangers in constitutional amendments arising from ‘unintended consequences’. The best example of this is to be seen in the 8th amendment, from 1983, which reads:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

One of unintended consequences of this amendment was that it actually did allow for abortion in Ireland, although the advocates of a Yes vote thought that the amendment would ban abortion. The unintended consequence of the X Case showed that it didn’t.

One of the unintended consequences of the proposed amendment is that it may pit children against parents on some issues, and that the courts may be called upon to arbitrate these disputes. The X Case was an event not foreseen by the Yes side at the time the 8th Amendment was passed. It is very possible that there are unforeseen events with respect to this proposed amendment.

In addition, Article 42.5 is to be replaced by Article 42A.2.1. The reasons for State intervention in exceptional cases will change from ‘for physical and moral reasons’ to ‘to such extent that the safety or welfare of any of their children is likely to be prejudicially affected’. This will change the role of the courts from one in which each case is evaluated to some degree with retrospective certainty to one in which ‘likely’ future outcomes become the yardstick. The consequence of this will be that children may be taken from parents simply on the say so of social workers in the District Courts, which are courts of ‘summary’ justice.

Finally our family courts are de facto secret courts. There are hundreds of cases going though these courts each year. How do we know whether the constitution and legislation is being adhered to in these secret courts? The simple answer is we don’t. There is no public accountability.

For these reasons, and others, I will be voting NO.

Gerry Fahey is an Occupational Psychologist and a graduate of TCD and the University of Illinois at Urbana Champaign.

Column: For foster children like me, the Children’s Referendum is a new chance>

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