28th Amendment to the constitution

johnnyskeleton

What is the vox populi on the potential upcoming referrendum?

The bill gets rid of Art. 42.5 and adds a new Art. 42A, the wording of which is:

Article 42(A)
1. The State acknowledges and affirms the natural and imprescriptible rights of all children.

2. 1° In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child, and where the best interests of the child so require.

3. Provision may be made by law for the voluntary placement for adoption and the adoption of any child.

4. Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.

5. 1° Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.

2° No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age.

3° The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.

I suppose some questions are:
1. Will it make any substantial difference to the executive's ability to legislate for childcare?

2. Should 42.5.2° be included with the rest of the amendment, or should there be two separate amendments?

3. Should the provisions go further?

And of course, does anyone have any initial views on how they will vote or arguments for and against the amendment?

padser

It's very worrying as there is some talk that 5.1 could be interpreted as meaning that 'soft' or unproven information could be spread.

Also 5.2 in my opinion will come in conflict with the ECHR (at least I am hoping so if it passed). It's a disgraceful attempt to pander to (unfounded) public fear imo. The difficulty in showing 'honest mistake' is protection enough.

I for one will be voting against it.

maidhc

padser wrote:

It's very worrying as there is some talk that 5.1 could be interpreted as meaning that 'soft' or unproven information could be spread.

Also 5.2 in my opinion will come in conflict with the ECHR (at least I am hoping so if it passed). It's a disgraceful attempt to pander to (unfounded) public fear imo. The difficulty in showing 'honest mistake' is protection enough.

I for one will be voting against it.

What? You mean you don't want to protect the children? How could you?


(I agree this amendment seems yet another broadside on human rights, and I don't see how it can be compatible with the ECHR. Pity we don't have a strong Supreme Court like the US, where a number of "child protection" statutes were struck down as being a small bit invidious e.g. Reno v. ACLU)

Victor

I can understand the arguments for and against strict liability in relation to (a) offences against children and (b) offences carrying severe sentences (courts have been more willing to accept strict liability for minor offences).

However, is there a risk that 5.2 enables the Oireachtas to make any offence involving a child one of strict liability?

Our man in Havana

I think the proposed ammendment is flawed as it will no doubt lead to "soft" information being spread, It will end up at the ECHR in due course.

I can see this as another 95% yes vote shoe in affair. I will vote no.

padser

Victor wrote:

However, is there a risk that 5.2 enables the Oireachtas to make any offence involving a child one of strict liability?

It's not a risk, its pretty much the only interpretation of the statute that makes sense. Any crime committed against a child, or even by a child.

Indeed if you wanted to stretch it you could argue it could even apply to a crime which indirectly 'involved' a child.

Bond 007 wrote:

I can see this as another 95% yes vote shoe in affair.

Maybe I just have too much faith in the general public, I would really expect this not to get passed...surely somewhere there is a line where people will say enough is enough.


I don't understand why people (qualified legal people) drafting the legislation don't say 'look there is absolutley no need for this. No 50 yr old man will ever be able to sucessfully argue that he thought his 13 yr old neice was 17! But if this passes there will be a 16 yr old girls parents who will insist on pushing a case through against her 16 yr old 'partner in crime'! Or a 21 yr lad who meets a girl on the over 20's night in D2 some weekend.

Our man in Havana

I agree with you there is absolutely no need at all for this. But I fear that any opponents of the amendment will be seen in the popular media as promoting pedophilia and the press will make short work of any opposition campaign.

maidhc

If McDowell and his Junta get in again we could easily see Ireland withdrawing from the ECHR! The UK have made muted suggestions of doing so, and it wouldn't take much to convince our Michael that he knows more than all those guys in Strasbourg put together.

His plans to abolish the right to silence certainly appear to fly in the face of ECtHR jurisprudence, and this constitutional amendment seems to put the good name of those who work with children at the mercy of scurrilous rumor.

And I used to be a card carrying member of the PDs! No more I tell you.

fred1

Could 45.2.3 give carte blanche for any law to have strict lianility or just those involving children?

johnnyskeleton

fred1 wrote:

Could 45.2.3 give carte blanche for any law to have strict lianility or just those involving children?

No, on any reading I think it only applies to children. But that said, on a literal reading it suggests that if a crime of strict liability involving a child was infringed an unrelated constitutional ground e.g. equality, right to a fair trial right to liberty, citizenship, even life, the law would still be valid. I think there is a quote in Irish constitutional law that even the right to life is not absolute (I think it was Walsh J). So it is worring that there is an absolute right to punish citizens for an alleged offence involving a child. That, plus the word "involving" as opposed to "committed against" makes it a very poorly drafted section.

Overall, I am very worred about this issue. I think that there are two completely separate issues being fudged together by the government in the hope that the total will be greater than the sum of its parts.

On the child sex offences part [42A.5] I think that it is the Minister for Justice's attempt to regain credibility as "tough on crime" after he (it must be said) dropped the ball last summer. I don't think the changes themselves will help protect children from sex offenders - on the information issue I think the system that should be imposed is that anyone applying for a job working with children must prove that they are not a sex offender (i.e. get a copy of his/her own criminal record from the Gardai). The free for all naming and shaming in England has had some terrible results and no clear benefit.

As for the absolute liability issue, I think that as a law becomes more unfair, people's sympathy for the offenders increases. More importantly, the idea that a 50 year old man reasonably believed that a 12 year old was 17 is a non runner. So the reasonable belief only comes into play where there is a genuine injustice.

As for the other provisions, I think that contrary to the specious logic that a child having its own rights and representations is in its benefit, these provisions will only serve to give more power to social workers over families. At present, genuine abuse cases are dealt with satisfactorily by the courts, cases where there is no serious or substantiated abuse are usually left be, and where there is a genuine doubt as to what should be done, I think that the presumption that the child's best interests are with its natural family should be considered.

I might have an unduly low opinion of social workers, but it seems to me that they assume all people in deprived areas are somehow abused, and would like to shift them out to nice rich homes where the couple can't have babies.

I also find the logic used in the baby anne case quite suspect. Because baby anne was with the adoptive parents for so long, including a good amount of time waiting for the case to get to the supreme court, it was claimed (apparently on her behalf) that it would be a shock to her system to be moved now. I think this is a very short term view of what is best for the child. Is it right that some government worker could take away a my child merely because they don't like the look of me, don't like my home schooling hippy ways, or if I were a single working parent, that I don't have as much time as a married housewife/househusband who wants to adopt.

Ultimately I think that these provisions are not so much in the child's best interest as they are in the interest of lobby groups, childrens charity workers, social workers and soundbite loving politicians.

Victor

padser wrote:

Victor wrote:

However, is there a risk that 5.2 enables the Oireachtas to make any offence involving a child one of strict liability?

It's not a risk, its pretty much the only interpretation of the statute that makes sense. Any crime committed against a child, or even by a child.

I just remembered, the goverment employs 17 year old soldiers ...

alliekatt

johnnyskeleton wrote:

As for the other provisions, I think that contrary to the specious logic that a child having its own rights and representations is in its benefit, these provisions will only serve to give more power to social workers over families. At present, genuine abuse cases are dealt with satisfactorily by the courts, cases where there is no serious or substantiated abuse are usually left be, and where there is a genuine doubt as to what should be done, I think that the presumption that the child's best interests are with its natural family should be considered.

I might have an unduly low opinion of social workers, but it seems to me that they assume all people in deprived areas are somehow abused, and would like to shift them out to nice rich homes where the couple can't have babies.

I also find the logic used in the baby anne case quite suspect. Because baby anne was with the adoptive parents for so long, including a good amount of time waiting for the case to get to the supreme court, it was claimed (apparently on her behalf) that it would be a shock to her system to be moved now. I think this is a very short term view of what is best for the child. Is it right that some government worker could take away a my child merely because they don't like the look of me, don't like my home schooling hippy ways, or if I were a single working parent, that I don't have as much time as a married housewife/househusband who wants to adopt.

Ultimately I think that these provisions are not so much in the child's best interest as they are in the interest of lobby groups, childrens charity workers, social workers and soundbite loving politicians.

This is especially true in the United States where child welfare is delineated by racial socio-economic boundaries. In Pennsylvania for example, orphanages and foster homes are full of african american kids of all ages, but there are little or no caucasian children and no caucasian babies. This is not a coincidence: because caucasians in the States are more likely to be higher income, and incidence of infertility is much higher because they have children when they're older, _and_ the incidence of caucasians being unable to afford or practice birth control is less likely in the event of unplanned pregnancy, this means that demand for adoptive caucasian children in the US is off the scale.

This, combined with the large award/stipend a social worker gets when a child is permanently placed and removed from the cost liabilities of the state, has created an alarming increase in open interpretations of 'abuse' from social workers who work with low-income caucasian families. Basically what this means is, if a child is in an african american family, any definition of abuse would have to be overtly criminal and blatant in order to get the attention of social workers. Whereas, if a caucasian child who is supervised by social workers due to parents claiming low income welfare benefits, is spanked for a breach of behavior, social workers are on them in a scrum to trump up a list of violations to that child's welfare. There have been uncounted numbers of bitter legal battles between parents and social workers who want to yank children away from birth parents for the sake of guaranteed placement perks. However, when you read these horrible stories of children imprisoned for years , you will see working parents who stayed out of the view of the authorities. It is a very sticky question to assess just when and where the state has the ability to step in when situations like this happen because of the definite possibility of violation of parental rights if the suspicion is incorrect.

When a social worker makes a claim regarding the welfare of children, career or financial motive of a social worker has to be taken into account before the case can be assessed with the child's best interests at heart. If the parents of a child claim that there was more than their children's welfare at stake to that social worker, then the court has the right to investigate the situation. If there were a requirement for social workers to maintain a correct ratio of placements based on the demographics of state-sponsored foster children and orphans, you would find a more balanced system that does not leave suffering children out in the cold.