The Oireachtas Joint Committee on the Constitutional Amendment on Children has published the proposed wording of a revised article 42 of the Constitution, dealing with the rights of the child.

This is not a new issue. The 1993 McGuinness report of the Kilkenny incest investigation said that “the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the right of parents than to the rights of children” and recommended an amendment to include “a specific and overt declaration of the rights of born children”.

This recommendation was repeated and expanded upon in the 1996 Report of the Constitution Review Group (CRG). Recent years saw the reports of the Oireachtas Committee and the abandoned 28th Amendment of the Constitution Bill 2007.

Repeated returns to the drawing board highlight the difficulty in getting the wording of any amendment right. Dr. Aoife Nolan points out that the new wording “still evidences some serious shortcomings in ensuring holistic protection to the rights of the child.” Certainly, the CRG’s 1996 report emphasises the need for a balancing of constitutional provisions, but the Committee’s wording does not propose any amendment to article 41.

The cross-party support underpinning the new proposal and the fact that it has been applauded by a wide range of interest groups suggest that, subject to the approval of the Cabinet and the Attorney General, the proposed wording will be put to the people in a referendum. It seems fair to assume that the campaign in favour of the amendments will be supported by all major parties and the panoply of child rights organisations. However, recent constitutional history shows that cross-party support can quickly be derailed by non-party pressure grouping.

Within hours of the publication of the Committee’s proposed revisions to article 42, the Iona Institute published a statement warning that the changes would “lower the threshold at which the State can intervene in the family.”

[T]he proposed wording will give recognition to a child’s “best interests” … while “no-one denied that a child’s best interests had to be to the fore when making decisions about children, the crucial question is, who gets to make this decision, parents or the State?

Iona cite a Scottish example where children were taken into care because of concerns that the children’s health was at risk due to obesity and assert that such a move “is itself arguably a violation of the rights of the child”.

The statement by Iona suggests that it might oppose a referendum to introduce the proposed amendment. It might not be alone: the Renew campaign, which has to date only been heard in the media when campaigning against the Civil Partnership Bill 2009, lists the following among its campaign issues:

The promotion and protection of marriage and family life

To influence government legislation which protects and supports family life

In the February 2010 issue of Solas, the publication of Youth Defence, Maria McMeanmain writes that parents cannot “trust the state to do the right thing by their children”, primarily on the basis of the Ryan report and her surprising assertion that “[a]ny objective observer will conclude that the girl in the C-case was kidnapped by the state.” Ms. McMeanmain concludes:

The most reliable agent of a child’s welfare is almost always his or her parents. Denying a child those agents must only be done where it is absolutely clear that the child’s parents have repudiated that role. That is the position under our Constitution today. Anything else is an attack on children’s rights and must be opposed!

Further tweaking of the wording might result from Cabinet discussions but, whenever a referendum takes place, the contours of the campaign are beginning to emerge.

Update (18 February 2010):

• Senator Ivana Bacik notes failure to address article 41 and, in particular, to update article 41.2 concerning the life of women “within the home” and their “duties in the home”.
• Dr. Ursula Kilkelly‘s analysis: “Although not perfect, the proposals represent a significant step forward in Ireland’s commitment to realising the rights of children in Irish law.”

See:

• Redline showing the proposed changes to the original text is here.
• Initial analysis of the proposal on the Human Rights in Ireland blog, which will provide further analysis in coming days.

• Irish Constitution