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Children's "rights" referendum
Comments
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Unfortunately, child abuse in Ireland is no longer exceptional.
Wow, that's a pretty sweeping statement. Care to elaborate?
In the Baby Ann case, the child was with foster parents for 22 months before being returned to the now-married parents. However, and this is the crucial point, the parents had sought her return after ten months and were stalled and delayed by social workers - who were conflicted because they were personally acquainted with the foster parents - presumably in the hope that the longer they could keep Ann with them, the more likely the courts would be to find that it was in the child's best interests to remain in their custody. As Judge Hardiman put it in his judgment:
The parents felt that after they attempted to regain custody of the child they were being “stalled”, to use a word the mother used in dealing with the Adoption Board. I cannot disagree with her.
In fact the Baby Ann case was exemplary of the kind of busybody "we know best" attitude of some social workers, which this amendment risks empowering even further.
As far as the McGuinness report goes, again, while I have every respect for Judge McGuinness, her opinion is only an opinion with which we are free to disagree. Anyway, she may have said an amendment was a good idea, but her report didn't recommend this specific amendment. If judges are finding it hard to reconcile the conflicting constitutional rights of the family and the child, then I think no-one could disagree with part of the proposed amendment:
In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.
As for the rest of it, I again believe Waters nailed it when he wrote:
Since children are by definition incapable of exercising such “rights” for themselves, the outcome of a constitutional change in this area is likely to be a transfer of rights from parents to the State, in effect to the Health Service Executive, an organisation with zero credibility in child-welfare matters.
And in fact, it's - for want of a better word - "non-constitutional" families that have most to fear from this, married couples have some protection, but gay couples, lone parents, unmarried straight couples would be like turkeys voting for Christmas if they back this.0 -
Join Date:Posts: 13692
That is incorrect. Some childrens rights are recognised independently of the family but other cannot and are assumed to be best served by protecting the rights of the family.
Really? Sorry about that. I was relying on the decision of the Honourable Ms. Justice Denham in WOR v EH [1996] 2 IR 248 but sure, what do I know? Thanks for telling me that the Supreme Court are wrong.I'm not sure where you got those percentages from or how that logic would even apply to a real-life situation.
Just some arbitrary thing called the civil standard of proof. I can't possibly imagine what relevance it has to the courts and law in general.taconnol wrote:But it has been proven that the assumption that the child's rights are automatically best served within the context of the family have been shown repeatedly to be false in many tragic cases
Ok, where did I say that they are automatically best served? Where? I dare you to point out where I said that. Is it possible, just possible that I said presumed? Is it possible, just possible that there is a legal distinction between a presumption and an automatic determination (in legal terms conclusive presumption)? I'll ignore your idea of "proven" in this context.No, this referendum is seeking to bring about a number of necessary changes, not just the importance of childrens rights being considered equal to those of their parents. It also allows for the collection of soft information on suspected child abusers and reinforce the state's obligation to provide supports for children and families.
As I referred to in my first post, the collection and dissemination of soft information on suspected child abusers a) already happens and b) is not necessarily a good thing. Although from the political football point of view it is solid vote winning territory.
This thing you have about children's rights not being equal to their parents - I don't know where you get it from but it is nonsense. Of course, when i point out why it is nonsense you ignore it, as above.
Re: re-enforcing the state's obligation to provide supports for children and famililes what does that mean? does it mean more money or is it just wishy washy FG fluff?0 -
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Unfortunately, child abuse in Ireland is no longer exceptional.
WTF? Are you putting this forward as your learned legal opinion or are you just engaging in more rhetoric? I suspect it is rhetoric because no honest person would ever suggest that child abuse was not an exceptional circumstance such as to justify state intervention.
But since you seem to know everything about law, please cite a case where any court said that although there was sexual abuse of a child, it was just ordinary sexual abuse and so the child would have to lump it. Come on, this is politics not AH.I would argue that your reading of the judgement is incorrect. The judges received numerous testimonies from psychologists stating that the child would suffer significant psychological trauma by being taken away from her foster parents. It was the fact that her parents were married and the constitutional presumption that her best interests would be therefore served by living with them that resulted in the decision.
How exactly does what you just said make what I said incorrect? The evidence wasof psychological traume was insufficient to rebut the presumption. Anyone who actucally understands basic legal concepts should understand that point - I'm amazed that you fail to understand it yet seem to suggest that you have a greater understanding of the law that I.Moreover, under the Constitution as it is currently worded, it is legally impossible to adopt a child whose parents are married. Once Baby Ann's parents were legally married, it was completely impossible for the Baby Ann's foster parents to fully adopt her.
No, under statutory law. The constitutional permissibility of a statute allowing the adoption of a child from a married couple has not been tested, but eminent judges of the superior courts have suggested that it can. I cited these to you before if I recall correctly, and you conveniently ignored them. Suffice it to say that if you don't understand the difference between statute law and the constitution then your arguments must surely lose a lot of their force.Having these cases reviewed by social welfare specialists is far better than just blindly assuming that the biological parents is always best.
What a remarkable straw man argument. I'm truly amazed how you try to twist what I have said. Where did I say that courts should blindly assume that the biological parents are always best? where did I say that there shouldn't be any review by social workers? Do you have any real points to make or do you just like beating the social worker "won't somebody think of the children" drum?0 -
Join Date:Posts: 13692
In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration..
+1
Especially as this is already the law as regards guardianship, custody and access.0 -
I'm sorry but this is wrong. I've clearly stated a number of examples, along with quotes from Supreme Court Judges, including the general legal framework within which the HSE operates that would all benefit from a proper constitutional standing for the rights of children.
Don't see how this tallies with this quote from another Supreme Court judge, Adrian Hardiman, in his judgement on the Baby Ann case:
There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. 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. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.I'm sorry but this is wrong. I've clearly stated a number of examples, along with quotes from Supreme Court Judges, including the general legal framework within which the HSE operates that would all benefit from a proper constitutional standing for the rights of children.
(By the way, I'm sorry but this is wrong. Leaving aside the fact that there appear to be differing views in the Supreme Court on this topic, nowhere in the thread have you actually quoted any Supreme Court judge. Instead you've paraphrased and put your own interpretation on what you say they said or wrote. Why not give readers the actual words used by the judges concerned and let them decide whether they bear the interpretation you believe they do?)0 -
Report on this case in yesterday's (16/06/10) Guardian. The UK has no written constitution and hence no constitutional constraints on state intervention in families which advocates of the amendment here say are hampering child protection workers. Yet they still couldn't prevent this incident, in a family which was very well known to them (as indeed they were unable to prevent the killing of Baby P). This is as good an illustration as you'll get that while the amendment will greatly increase power of the state to interfere in families, any expectation that it will provide practical improvements in child safety is delusional. What's needed is proper resourcing and for the HSE to do its job. The amendment is just a fig leaf to distract from these issues.
Social workers could not have foreseen the abduction of Shannon Matthews by her mother, a serious case review has concluded.
Shannon's disappearance in February 2008 sparked a £3m police operation and a nationwide search that ended when the nine-year-old was found hidden in the base of a divan bed in a flat about a mile from her home in Dewsbury.
Her mother, Karen Matthews, was jailed for eight years for her part in what a judge described as a "truly despicable" plot with Michael Donovan, in whose flat the girl was found.
The Kirklees safeguarding children board review ruled today there was "little leeway" for social services and other agencies to intervene before Shannon was abducted in February 2008.
"The overview panel concluded that the third-born child's abduction could not have been foreseen by professionals involved in this case on the basis of their historical and current knowledge about the family," the report says.
Kirklees council announced a serious case review after Matthews and Donovan were convicted in December 2008.
The review concludes that the family's history was characterised by "neglectful parenting interspersed with periods of adequate parental care".
"This case starkly demonstrates the difficulty of responding effectively to families where parenting is characterised by low-level neglect which at times escalates into inadequate parenting with detrimental consequences for children's wellbeing," it says.
Reports had suggested the local Kirklees council placed Shannon on the child protection register five years earlier but removed her despite concerns about the Matthews household.0 -
I'm glad this topic is being debated here, as the conventional wisdom among interest groups and many politicians seems to be that the need for a constitutional amendment is self-evident, when in fact there is little to suggest that a reasonable reading of article 42 (5) offers inadequate protection to children. The provision in this article that the state can intervene where the parents 'fail in their duties towards their children' seems to cover all of the cases (Kilkenny incest case included) menitioned in this thread and it is far more likely that it was local failures by the relevant health, welfare and Garda authorities that were to blame for the lack of intervention in those cases rather than the provisions of the constitution.
In arguing that the current constitutional provisions are inadequate, proponents of constitutional change in this area are effectively saying that there can exist circumstances where a child should be taken from its natural parents where either the parents have not failed in their duty towards their children or where such circumstances are not exceptional. Can anyone supporting constitutional change describe an example of when such a situtaion has arisen?
I'd also like to draw people's attention to a passage from the ISPCC document supporting Constitutional change that was linked to in an earlier post:
"It could be accurately said that the Constitution provides no clear statement of women's rights other than in their roles as wife and
mother. Attitudinal and societal change have, however, given rise to the development of a substantial body of positive law and practice which recognises the rights of adult women independent of their family of origin or marriage."
I see no reason why a similar "body of positive law and practice" to that which has been developed around women's rights in the absence of any assertion of such rights in the Constitution can not be built up around children's rights.0 -
Excellent piece by John Waters in yesterday's (11/06/10) Irish Times on this - for me, this is the nub of the issue:
Advocates of this amendment rely on a loose, sentimental use of language, of which the term “children’s rights” is an example. Since children are by definition incapable of exercising such “rights” for themselves, the outcome of a constitutional change in this area is likely to be a transfer of rights from parents to the State, in effect to the Health Service Executive, an organisation with zero credibility in child-welfare matters. There is therefore nothing intrinsically or self-evidently “progressive” about this amendment.
As the father of three children, I would take serious issue with an institution which can't even keep count of the number of children who died in its care being granted any further powers to interfere in families. I'll be voting no.
If a child doesn't have a birth certificate what rights does it have?0 -
hurling_lad wrote: »I'm glad this topic is being debated here, as the conventional wisdom among interest groups and many politicians seems to be that the need for a constitutional amendment is self-evident,
Standard tactic when the underlying arguments are as weak as they are here. Assume the need is self-evident and you don't have to actually demonstrate why, also anyone who disagrees is ipso facto being unreasonable, not "thinking of the children" and is probably a member of Coir, Youth Defence or something like that.hurling_lad wrote: »when in fact there is little to suggest that a reasonable reading of article 42 (5) offers inadequate protection to children. The provision in this article that the state can intervene where the parents 'fail in their duties towards their children' seems to cover all of the cases (Kilkenny incest case included) menitioned in this thread and it is far more likely that it was local failures by the relevant health, welfare and Garda authorities that were to blame for the lack of intervention in those cases rather than the provisions of the constitution.
Ain't that the truth.hurling_lad wrote: »In arguing that the current constitutional provisions are inadequate, proponents of constitutional change in this area are effectively saying that there can exist circumstances where a child should be taken from its natural parents where either the parents have not failed in their duty towards their children or where such circumstances are not exceptional.
Not "effectively" - they're saying it straight out:Unfortunately, child abuse in Ireland is no longer exceptional.hurling_lad wrote: »Can anyone supporting constitutional change describe an example of when such a situtaion has arisen?
Over to you, Taconnol. What constitutes "unexceptional" child abuse?If a child doesn't have a birth certificate what rights does it have?
The same rights as any other child, so far as entitlement to protection from abuse goes. What had you in mind?0 -
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Sorry, I didn't see this thread was still going.
Where did I say any child abuse was unexceptional in the sense that you seem to have chosen to interpret itl? My point was that there is clearly an assumption that child abuse is not commonplace and that it is carried out by strangers, not family and family friends as is what happens in the majority of cases.Over to you, Taconnol. What constitutes "unexceptional" child abuse?
In the current situation, there are a number of unenumerated rights for children that are not clear, due to the nature of unenumerated rights. Moreover they can be subordinated by the rights of the family.0 -
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Please re-read my post. You have misinterpreted what I wrote.0 -
Please re-read my post. You have misinterpreted what I wrote.
No, I think it's more a case of you pretending you didn't mean what you wrote, because on reflection you can't stand over it.
The constitution already provides ample authority for the state to intervene in families in "exceptional" circumstances. When that point was made to you:johnnyskeleton wrote: »Is that not fair enough though? Should the state intervene in unexceptional circumstances? Abuse and serious neglect will always be exceptional circumstances.
you replied thus:Unfortunately, child abuse in Ireland is no longer exceptional.
Any objective reader will take that "no longer" as meaning you are arguing at some point in the past child abuse was exceptional, but now it isn't, so the current constitutional provisions are now inadequate.0 -
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Please try not to second guess what other people are thinking. It's as presumptuous as it is condescending.No, I think it's more a case of you pretending you didn't mean what you wrote, because on reflection you can't stand over it.
We are not just talking about abuse, we are talking about any administrative or legal procedure involving a court whereby the court cannot constitutionally consider the best interests of the child as the assumption is that those rights are best met within the family.The constitution already provides ample authority for the state to intervene in families in "exceptional" circumstances.
You are trying to muddy the waters by making this referendum only about how children are treated in cases of child abuse. It is about the wider issues of how children are treated in our legal system.
But just on that point of "exceptional circumstances", there have been judgements that consider the threshold for intervention too high. So you're opinion that there is ample Constitutional protection for children in the case of abuse, is not one that is shared by many senior legal experts.0 -
Please try not to second guess what other people are thinking.
I generally try to avoid it, but since you've already ignored several requests to clarify what your assertion that "child abuse in Ireland is no longer exceptional" means, what can I do?We are not just talking about abuse, we are talking about any administrative or legal procedure involving a court whereby the court cannot constitutionally consider the best interests of the child as the assumption is that those rights are best met within the family.
You are trying to muddy the waters by making this referendum only about how children are treated in cases of child abuse. It is about the wider issues of how children are treated in our legal system.
OK. Leaving aside abuse or neglect, can you please then give us an example of what sort of children's rights you are talking about and why there needs to be a referendum on them. What wider issues do you mean?But just on that point of "exceptional circumstances", there have been judgements that consider the threshold for intervention too high. So you're opinion that there is ample Constitutional protection for children in the case of abuse, is not one that is shared by many senior legal experts.
Well, as I've already pointed out and you have likewise ignored, there is certainly no unanimity on the matter. Once again, Supreme Court Justice Adrian Hardiman, in his judgement on the Baby Ann case:
There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. 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. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.0 -
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OK there are a few issues. The first one is the unenumerated rights I referred to earlier, which are rights that have been established through case law but aren't in the Constitution. The issues here are that it's simply messy but also that Constitutional law trumps case law. So for example any of these rights can be subordinated by the rights of the family.OK. Leaving aside abuse or neglect, can you please then give us an example of what sort of children's rights you are talking about and why there needs to be a referendum on them. What wider issues do you mean?
The right to participate and for the child to have their opinion on a matter concerning them heard is another issue. This is not the same as the child deciding a particular outcome but rather that if old enough, a child can express their preference or opinion on whatever decision will be made about their future and that this opinion can be taken into consideration in the final decision.
I also don't feel there is enough obligation on the state to provide sufficient family supports. After all, I think we both agree that if at all possible, the family is the best environment for a child to grow up in. And indeed research shows that children place a high importance on their family as a positive influence in their lives. At the moment, the HSE has support guidelines, ie not legal obligations and I would like to see these as legal obligations to help strengthen families, particularly through early intervention so that it doesn't get to the stage where children are suffering and have to be taken out of the family situation.Well, as I've already pointed out and you have likewise ignored, there is certainly no unanimity on the matter. Once again, Supreme Court Justice Adrian Hardiman, in his judgement on the Baby Ann case:
With respect to Adrian Hardiman, I think he simplifies matters when he thinks the argument is simply that parents' rights are put ahead of the child's rights: it is a little more subtle than that. Essentially, my problem with the current situation is that the presumption that is embedded in our Constitution that a child's rights are best met within the marital family means that the threshold for considering whether the parents have failed in their duty doesn't actually look at the rights of the child. It merely becomes an investigation into the right of the child to belong to the marital family and in turn a right of the marital family to look after the child.
In all of this, the crucial focus that should be at the forefront of everyone's minds is lost - ie, the best interests of the child.
This has led to the bizarre situation whereby children that do not belong to a marital family are afforded more rights under our constitution as a court is free to consider the best interests of that child as a priority. It's a funny world.0
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