What is the problem with the Children's Referendum?

Gloomtastic!

Another year, another government and still no wording for the Children's Referendum.

I don't really understand why they want it changed but:

What is the problem?
Is it going to start costing the state more money if it's amended?
In whose interest is it for the current wording to remain unchanged?

Mark200

Gloomtastic! wrote: »

Another year, another government and still no wording for the Children's Referendum.

I don't really understand why they want it changed but:

What is the problem?
Is it going to start costing the state more money if it's amended?
In whose interest is it for the current wording to remain unchanged?

The biggest complication with the wording will be how it defines "the child's best interest"

Morag

It needs to be amended to that we can finally ratify the UN convention on the Rights of the Child which the UN adopted 1989. What has stopped it so far is the how the churches have had a grip on the education system
and that the parental rights of married parents are enshrined in such away that the children of married parents
can not be adopted.

This is about given children rights sorely needed in a country which for decades allowed children to be abused by those who were their care givers.

http://www.childrensrights.ie/childrens-rights-ireland/un-convention-rights-child
Reply

steddyeddy

Currently the family unit is put above the needs of a child. This needs to change. The state has a horrbile attitude to children in our history and even more recently. The lack of political will is the proble. Mary Harney for example didnt answer one question regarding children in care in her time in dail.

Nodin

....theres probably a dread they'll be legally obligating themselves to provide proper services. I am a cynic, however.

christmas2012

between the hse and the daa there is a fvck up in irish politics on the whole i doubt they will get this fully sorted..

later12

The Children's Referendum is an enormous issue, covering a wide breadth of topics from adoption to child protection to various other, more controversial rights that relate to the child's identity as an individual, which may be somewhat contentious depending on one's ideology.

The people who are likely to have a problem with the latter aspect of the Referedum are religious groups and perhaps those generally skeptical of the wisdom of allowing the state to interfere with the family, and the private lives of individuals. If we were to be a little bit reckless with our terminology, we might somewhat bluntly call them "the right wingers".

The reason why the religious are particularly concerned is they fear a diminution of the perpetuation of their faith and/ or moral philosophy by diminishing the freedom of parents to influence, educate and raise their children as they personally see fit. They fear that the Children's Rights Referendum would bestow a level of 'individuality' or independence on children which would allow the state to step in and impose its own values or morality in the place of that of parents.

Below is the 2010 Cross Party committee's proposal for the amendment to the constitution. In all likelihood, this is going to more or less be the amendment that is put to the electorate later this year.

http://www.oireachtas.ie/parliament/mediazone/proposalforanamendmenttotheconstitution/#d.en.1552

Gloomtastic!

So the wording is there but, once again, we have the government acting subservient to the religious. When will we ever be free from these parasites?

SocSocPol

Biggest problem is defining the "Child", as currently the Irish constitution recognises(argueably) the unborn as a "Child" but places the rights of the mothers life above that of the unborn child,
This proposed referendum could open a whole can of political worms that our cowardly politicans dont want to face.
This referendum could well end out being more about access to the civil right that is abortion , than the rights of actual children.

later12

No I don't think there is a legitimate argument that the Children's Rights referendum would negatively affect the right to life of the unborn.

The right to life of the unborn as affirmed by the eighth amendment to the constitution comes under Article 40.3.3. of the Constitution. That article will remain in place in spite of any amendment to Article 42, which is the article being examined in the context of the Children's Rights Referendum.

I'm finding it hard to imagine how the pro life movement could possibly fit an abortion argument into voting No to the amendment.

Their argument in the context of this referendum will largely & essentially be that children ought have less rights (so-called 'choice' rights), not more. So it's hard to see abortion becoming more than an obscure side issue.

RDM_83 again

Just took a quick through the link Later12 gave of the proposed ammendment and this stood out

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social

What do you think is meant by a minimum 'moral' education

later12

That is open to interpretation, but it should be pointed out that the named provision is already extant in Bunreacht na hEireann as article 42.3.1 & 2. It was re-drafted into the committee's proposed amendment under a different paragraph number, but the wording is unchanged.

conorhal

The real problem as I see it, is that this referendum is not about the rights of a child, it's about the rights of the state and how much control it is entitled to wrest from parents.

There is in my opinion no requirement for the referendum, it's never been legal to physically, sexually or through neglect abuse a child.
We have a plethora of laws on the statute books that we typically never bother enforcing and if we actually enforced them and were determined fund propper care systems for children (the HSE and it's 9-5 Monday to Friday care services are a joke), 99% of the problems faced by children would dissapear overnight.
I'm pretty sure that if the referendum is passed that not a jot will change on the ground for vunerable at risk children, but, you know, a bunch of self satisfied Laborites will get to feel good about themselves.

oscarBravo

conorhal wrote: »

The real problem as I see it, is that this referendum is not about the rights of a child...

...apart from the suggested wording that "...the welfare and best interests of the child shall be the first and paramount consideration."

Maybe you can explain how that's not about the rights of the child.

gizmo555

Gloomtastic! wrote: »

Is it going to start costing the state more money if it's amended?

Potentially. The last government decided against a referendum on this issue at least in part because it would give children rights that would be enforceable against the state, rather than what was really desired - as conorhal suggests - greater rights for the state to interfere in families.

Boulevardier

A referendum is needed because of the way the existing constitution, as exploited by the lady mentioned below, has permitted cruelty to Children:

Devout Catholic Mina Bean Uí Chroibín helped the parents in Roscommon ‘House of Horrors’ incest case to hold on to custody of their children.

Also this:

Over 16 years ago Judge Catherine McGuinness, as she then was, recommended a constitutional
amendment to protect the rights of children in the family. It arose from her report on the Kilkenny
incest case where a man had sexually abused his daughter over a number of years and social
services felt constrained from intervening because of protections given the family in the
Constitution.
Similarly, in the Roscommon incest case last January, it emerged that the mother in that family had
obtained an injunction restraining the health board from intervening.
In her 1993 report Judge McGuinness said “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 rights
of parents than to the rights of children”.

gizmo555

Boulevardier wrote: »

A referendum is needed because of the way the existing constitution, as exploited by the lady mentioned below, has permitted cruelty to Children:

Devout Catholic Mina Bean Uí Chroibín helped the parents in Roscommon ‘House of Horrors’ incest case to hold on to custody of their children.

She did indeed help them get a High Court injunction preventing the children being taken into care - what you haven't mentioned is that the HSE didn't bother to turn up in court to contest the application.

More a case of the HSE failing to do its job with the already very extensive powers available to it than evidence of a need for constitutional change.

The HSE report is expected to look at why officials did not apply for a supervision order until 2004 despite the family being on their radar as far back as 1990.

And it will look at why officials failed to fight an injunction that stopped the children being taken into care in 2000 when right wing activist Mena Bean Ui Chribin backed their mother in the High Court.

SocSocPol

RDM_83 again wrote: »

Just took a quick through the link Later12 gave of the proposed ammendment and this stood out

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social

What do you think is meant by a minimum 'moral' education

Easy just replace Moral with Catholic!

jonniebgood1

Boulevardier wrote: »

A referendum is needed because of the way the existing constitution, as exploited by the lady mentioned below, has permitted cruelty to Children:

Rubbish- the case you mention was negligence by state officials who did not properly implement the law. It in no way supports the need for a referendum that is not needed.

jimmycrackcorm

SocSocPol wrote: »

Easy just replace Moral with Catholic!

Does that mean then that atheists don't have any morals?

SocSocPol

oscarBravo wrote: »

...apart from the suggested wording that "...the welfare and best interests of the child shall be the first and paramount consideration."

Maybe you can explain how that's not about the rights of the child.

Which means it will negate the X Case ruling which placed paramount consideration on the rights of the mother.
Instead of legislating for the x case ruling the Government are seeking to re-introduce the constitutional ban on abortion under the guise of a childrens rights amendment!

oscarBravo

SocSocPol wrote: »

Which means it will negate the X Case ruling which placed paramount consideration on the rights of the mother.
Instead of legislating for the x case ruling the Government are seeking to re-introduce the constitutional ban on abortion under the guise of a childrens rights amendment!

Well, no. Let's look at the rest of that clause:

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.

I don't think abortion has anything to do with disputes concerning guardianship, adoption, custody, care or upbringing of a child.

gizmo555

I have to say that Judge O'Flaherty's opinions only serve to confirm my view that the referendum is at best mere tokenism and a convenient distraction from the country's economic woes, and at worst an enabler for the state to interfere at will in families.

FORMER Supreme Court Judge Hugh O'Flaherty today says there is no need for a new referendum to protect the rights of children.

In his new weekly column -- starting in this morning's Irish Independent -- Mr O'Flaherty says: "We need to cherish our children but we don't need a referendum to prove it."

Mr O'Flaherty said that the children's rights referendum was likely to implement the recommendations of a 2010 Oireachtas Committee.

He said these were to treat and protect all children fairly and equally; make the welfare of children a paramount consideration; extend the right to adoption where child's welfare requires; provide education, including free education at primary level; and make sure the State's laws and services match the United Nations Convention on the Rights of the Child.

Mr O'Flaherty says: "These are very laudable precepts but . . . they are all -- or nearly all -- to be found in the existing articles of the constitution, in our ordinary legislation or in court judgments."

ciaranmac

gizmo555 wrote: »

I have to say that Judge O'Flaherty's opinions only serve to confirm my view that the referendum is at best mere tokenism and a convenient distraction from the country's economic woes, and at worst an enabler for the state to interfere at will in families.

FORMER Supreme Court Judge Hugh O'Flaherty today says there is no need for a new referendum to protect the rights of children.

In his new weekly column -- starting in this morning's Irish Independent -- Mr O'Flaherty says: "We need to cherish our children but we don't need a referendum to prove it."

Mr O'Flaherty said that the children's rights referendum was likely to implement the recommendations of a 2010 Oireachtas Committee.

He said these were to treat and protect all children fairly and equally; make the welfare of children a paramount consideration; extend the right to adoption where child's welfare requires; provide education, including free education at primary level; and make sure the State's laws and services match the United Nations Convention on the Rights of the Child.

Mr O'Flaherty says: "These are very laudable precepts but . . . they are all -- or nearly all -- to be found in the existing articles of the constitution, in our ordinary legislation or in court judgments."

Isn't he the one who resigned because he intervened to give a drunk driver early release after killing a mother who was in a car with her kids?

gizmo555

ciaranmac wrote: »

Isn't he the one who resigned because he intervened to give a drunk driver early release after killing a mother who was in a car with her kids?

(a) O'Flaherty has consistently denied he did anything wrong.

(b) Whether he did or not has nothing whatsoever to do with the points he makes in this article.

gizmo555

gizmo555 wrote: »

She did indeed help them get a High Court injunction preventing the children being taken into care - what you haven't mentioned is that the HSE didn't bother to turn up in court to contest the application.

More a case of the HSE failing to do its job with the already very extensive powers available to it than evidence of a need for constitutional change.

The HSE report is expected to look at why officials did not apply for a supervision order until 2004 despite the family being on their radar as far back as 1990.

And it will look at why officials failed to fight an injunction that stopped the children being taken into care in 2000 when right wing activist Mena Bean Ui Chribin backed their mother in the High Court.

Minster for Children, Frances Fitzgerald was challenged by Matt Cooper on his radio show this evening (19 Sep) to give just one example of a case which demonstrated the need for this constitutional amendment.

Unbelievably, this is the case she cited . . . the point cannot be overstated that while the Roscommon incest case involved appalling physical and sexual abuse of children, that abuse continued for as long as it did because the HSE didn't do its job - not because of any constitutional impediment to them acting.

Boulevardier

Gizmo, the HSE didnt do its job because they were convinced that a constitutional impediment existed, and most legal experts now agree that there was.

(I would have ignored the constitution in that case, but that's another story)

gizmo555

Boulevardier wrote: »

Gizmo, the HSE didnt do its job because they were convinced that a constitutional impediment existed

Source for this please?

(More to the point, why didn't they show up, argue their case, and let the courts do their job of adjudicating on what the constitution permits?)

Boulevardier

Sorry, I have no source to hand.

I would agree that the HSE should have gone to court and I have no idea why they did not.

However, there seems to be an almost overwhelming consensus that a referendum is necessary, particularly if we are to improve adoption opportunities.

Icepick

SocSocPol wrote: »

Easy just replace Moral with Catholic!

must be sarcasm

donaghs

oscarBravo wrote: »

...apart from the suggested wording that "...the welfare and best interests of the child shall be the first and paramount consideration."

Maybe you can explain how that's not about the rights of the child.

Perhaps he meant it was not really about the "best interests" of the child. Certainly it is related to the "rights" of the child.

I think the problem is that the "the welfare and best interests" are quite open to interpretation. e.g. the state could have made the claim in decades past that it was in the best interests of the children of a poor single parent to be removed from them and placed into the care of religious orders. And most of the society of the time would have agreed.

Can anyone give a succint outline of why we really need this referendum, as opposed to enforcing existing laws?

oscarBravo

donaghs wrote: »

I think the problem is that the "the welfare and best interests" are quite open to interpretation.

Anything written in English is open to interpretation. That's (among other reasons) why we have a Supreme Court whose job it is to interpret the Constitution.

donaghs

oscarBravo wrote: »

Anything written in English is open to interpretation. That's (among other reasons) why we have a Supreme Court whose job it is to interpret the Constitution.

Of course, but somethings are more "open" than others.

e.g. if Roman Catholicism had been explicitly made the official state religion in the 1937 Constitition, rather than the vague and rather meaningless "special position" text.

walshb

If helps children stuck with scum parents then I am all for it.

James Jones

oscarBravo wrote: »

donaghs wrote: »

I think the problem is that the "the welfare and best interests" are quite open to interpretation.

Anything written in English is open to interpretation. That's (among other reasons) why we have a Supreme Court whose job it is to interpret the Constitution.

Its not as simple as that. There is no definition of "the best interests of the child" as stated by the Freedom of Information Commissioner in NMCK and the HSE.

I note that the term "best interests" is not defined or clarified in FOI or other legislation.

.
That means that no one knows what the outcome of this referendum will be because the best interests will be defined afterwards.

James Jones

walshb wrote: »

If helps children stuck with scum parents then I am all for it.

The problem with a Constitutional amendment is that it has a bearing on us all, not just the "scum parents". Such parents can already be dealt with under current legislation but the HSE have failed miserably in their Statutory duty.

oscarBravo

James Jones wrote: »

Its not as simple as that. There is no definition of "the best interests of the child"...

I'm unconvinced that that's a good argument against the proposed amendment. If the choice is between the best interests of the child not being a consideration, or the best interests of the child being a consideration but not being defined, it's hard to see an argument for the former being the better situation.

The Constitution is full of terms for which there is no concrete definition. For example, Article 6 mentions "the common good" without defining what that means. Article 9 talks about "fidelity to the nation" - highly open to interpretation; Article 38.2 talks about "minor offences" but doesn't elaborate on what makes an offence minor.

If you were told that you had to take the best interests of a child into consideration when making a decision, would you really be at a complete loss as to what that meant?

GCU Flexible Demeanour

Boulevardier wrote: »

However, there seems to be an almost overwhelming consensus that a referendum is necessary, particularly if we are to improve adoption opportunities.

The last time there was a political consensus like this was when the Dáil approved the bank guarantee.

There is no substantial need for this referendum. As pointed out, the Roscommon incest case did not have to do with some block in the Constitution. The HSE were already engaged with the family. Case law has already set a correct balance between the right of the State and the right of parents to determine what is in a child's interest.

That's the element I don't see present in this thread so far. The point at issue is not substantially "childrens' rights", in the sense of rights that children will exercise. The issue is who has the capacity to determine rights for children without the maturity to decide for themselves. The choice is between parents and the State. This referendum would be more correctly termed the "Reduction of parental rights" or "Increase in State rights".

Sometimes both parents and the State fail in deciding on children's rights. My feeling is the legal balance between this is correct at this point. I don't see why we would increase the rights of the State to make a hames of children's lives, given the denial over decades regarding abuse of children in State-funded care, which seems to be the intention in this amendment.

I support the retention of the balance of rights established at present - including the right of adopted children to be re-united with their natural parents, as established in the Baby Ann case, and the obligation on medical staff to engage with rational parents with respect to procedures performed on their children, as established in the PKU case.

I'm against this amendment. I cannot see one single positive reason for it.

_Kaiser_

Some very good points in this thread and I would tend to agree that were we just to enforce the laws we have rather than inventing new ones, we might actually make more progress in resolving these issues and - in this instance - making a REAL difference to children who need help.

However, I fear that the general electorate who care more for the happenings on Eastenders or in the Premier League will simply equate this as "Children's rights = good = yes" leading to nothing more than political grandstanding and backslapping when it's inevitably passed.

Meanwhile life (such as it is) will go on unabated for most of these children

gizmo555

GCU Flexible Demeanour wrote: »

The point at issue is not substantially "childrens' rights", in the sense of rights that children will exercise. The issue is who has the capacity to determine rights for children without the maturity to decide for themselves. The choice is between parents and the State. This referendum would be more correctly termed the "Reduction of parental rights" or "Increase in State rights".

+1

As serving Supreme Court Justice Hardiman put it in his 2006 judgement on the "Baby Anne" 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.

If the prerogatives of the parents in enabling and protecting the rights of the child were to be diluted, the question would immediately arise: to whom and on what conditions are the powers removed from the parents to be transferred? And why? (my emphasis)

Certainly, even though she is in favour of the referendum, if we take this recent comment of the Children's Ombudsman at face value, it's extremely hard to answer why this amendment is claimed to be necessary:

My office has never examined a case involving a conflict between parents’ rights and children’s rights. And if there is one thing that has become confirmed by the eight years of this office’s operation, it is that parents are by far the strongest and most tenacious advocates for children.

oscarBravo

Justice Hardiman paraphrases Article 42.5. Article 42 deals with the right of children to an education. It's notable that that right is the only explicitly enumerated right of children anywhere in the entire Constitution, apart from vague references to not being forced to work at a young age and being provided for in the event of divorce.

It would be much more useful in any debate on this topic if those opposed to the amendment would point to the specific wording in the proposed Article 42A that they feel would be detrimental to children's rights, rather than the sweeping dismissals that we've seen so far.

gizmo555

oscarBravo wrote: »

Justice Hardiman paraphrases Article 42.5. Article 42 deals with the right of children to an education. It's notable that that right is the only explicitly enumerated right of children anywhere in the entire Constitution, apart from vague references to not being forced to work at a young age and being provided for in the event of divorce.

So? As barrister and Constitutional law expert Paul Anthony McDermott put it recently:

"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 . . ."

oscarBravo wrote: »

It would be much more useful in any debate on this topic if those opposed to the amendment would point to the specific wording in the proposed Article 42A that they feel would be detrimental to children's rights, rather than the sweeping dismissals that we've seen so far.

On the contrary - it behooves those who claim this amendment is necessary to make a coherent case for it, otherwise voters would be justified in deciding not to fix what isn't broken.

Personally, I haven't heard any such case yet.

oscarBravo

gizmo555 wrote: »

So? As barrister and Constitutional law expert Paul Anthony McDermott put it recently:

"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 . . ."

So Article 45.4.1 is completely redundant and unnecessary, and you would be perfectly content to see it deleted in a future referendum?

On the contrary - it behooves those who claim this amendment is necessary to make a coherent case for it, otherwise voters would be justified in deciding not to fix what isn't broken.

Personally, I haven't heard any such case yet.

If your only quibble with the proposed Article 42A is that it's completely unnecessary and redundant, then that's a fair enough perspective. My point was directed more towards those who have argued - notably without reference to the text of the proposed amendment - that it would be actively harmful.

GCU Flexible Demeanour

oscarBravo wrote: »

It's notable that that right is the only explicitly enumerated right of children anywhere in the entire Constitution, apart from vague references to not being forced to work at a young age and being provided for in the event of divorce.

Why is it notable? In principle, children have all the rights that any other citizen enjoys. Would you feel there is any issue in children, along with other people under the age of 35, being ineligible for election as President?

oscarBravo wrote: »

It would be much more useful in any debate on this topic if those opposed to the amendment would point to the specific wording in the proposed Article 42A that they feel would be detrimental to children's rights, rather than the sweeping dismissals that we've seen so far.

Ah, here. The burden lies on Yes supporters to produce a positive case for this change. You don't just amend the constitution for entertainment. You do it because of some serious omission. There is no serious omission - the Constitution already provides a reasonable balance, proven in the Courts, between the rights of parents and of the State in promoting the welfare of children who lack the maturity to exercise their rights independently.

I actually have cited some cases, although there is no onus on me to do so. What's actually lacking on this thread is any positive case whatsoever form Yes supporters, who seem to have swallowed the spin wholesale.

Identify even one case where the Courts have struck the wrong balance in favour of parents. Just one. The Courts have even ruled that a parent cannot refuse a blood transfusion for herself on religious grounds, let alone for her child, if that would deprive the child of his/her natural mother.

Just what is the problem that this amendment solves?

Mario007

Honestly guys? Arguing whether this referendum is even needed or what the 'best interest' of a child is?

Here's an excerpt from an essay I did in first year law. That should clarify a few bits for you:

Introduction
Ever since the controversial decision of the Supreme Court in the case of Re JH (an infant)1 when the court was asked to interpret articles 41 and 42 there has been a strong call for reform regarding children’s right and their place within the framework of the Irish Constitution2. It is the aim of this essay to strengthen the call for this reform and to suggest a wording that would allow for this constitutional change to take place. In order to do that this essay will examine the field of children's rights under the Constitution.

Best Interest:
The greatest difficulty the children face under the current wording of the Constitution is the fact that the courts do not look at the best interest of the child when deciding a case before them. This adherence to the child's best interest, also known as the 'welfare principle' is set out in legislation3, however as such it must submit to the constitutional provisions under the hierarchy of laws.
This is quite clearly shown in the case of Re JH. In this case an unmarried woman gave her child up for adoption right after giving birth. However, as the procedures dragged on she got married and decided she wanted the child back. In the High Court the learned judge looked at the best interest of the child which lay with its new parents, however the Supreme Court overruled this, Finlay C.J. stating:
“[A] constitutional presumption that the welfare of the child … is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and continue to fail to provide education for the child for moral or physical reasons.”4
It is submitted that this is a clear illustration of the welfare principle being overridden by the Supreme Court. O'Mahony5 points out that the court has created a presumption that the child's best interests are best served within the marital family of its natural parents. Though this presumption can be rebutted, the threshold as suggested in the last two lines of the Chief Justice is a very high one to meet.
That Re JH is still law in this jurisdiction is quite obvious from two quite recent cases, namely. North Western Health Board v HW6 and N v Health Service Executive7 . In the PKU case the court has actually set the threshold of when the child can be taken away from its marital family even higher. Murray J. summed up the court's position promptly when he said that:
‘[T]here must be some immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically, morally or socially, deriving from an exceptional dereliction of duty on the party of parents to justify such an intervention’8
Both the PKU case and Re JH were also strongly approved in the Baby Ann case which mirrored the facts and judgment of Re JH.
It is quite clear that courts interpret article 41 in such a way that they do not look out for the best welfare of the child once the its natural parents are married but rather decide whether the circumstances are exceptional enough to satisfy article 42.5 to take away the child from its natural married parents.9
It is therefore submitted, and supported by academical writing, that this position should be changed10. This author believes that the only way to do this is through the means of constitutional amendment..11 The amendment submitted, taking into consideration all the case law beforehand and the academical writing regarding it should do the following:
insert a provision which explicitly puts the welfare principle on constitutional footing into article
clearly state that in the even of conflict between the best interest of the child and the rights of the family, the best interest of the child takes precedence.

GCU Flexible Demeanour

Mario007 wrote: »

Honestly guys? Arguing whether this referendum is even needed or what the 'best interest' of a child is?

Here's an excerpt from an essay I did in first year law. That should clarify a few bits for you:

All it does is confirm what I already knew.

....the court has created a presumption that the child's best interests are best served within the marital family of its natural parents.

I'm comfortable with that presumption.

You seem to have some idyllic picture of the life of a child in the care of the State. Can I remind you that the HSE actually aren't sure how many children have died in their care in the last ten years, but are willing to admit that they number at least 200.

The decision to remove a child from its family should be a serious move, because the alternative is so bad that the situation would need to justify making a hames of the child's life through such a move.

Do you want to raise the adoption hare, such as the Baby Ann case? This requires us to suspend our critical faculties and consider the short-term disruption that might occur if the natural parents of a two-year-old put up for adoption sought her return. We're not meant to wonder how to explain to that same two-year-old, when she becomes an adult, that she could have been brought up by her natural parents.

Anyone who would seek an amendment that would cause a different outcome in the Baby Ann case has a grotesque concept of human relations.

apache

What about scumbag kids -16/17 yr olds who used to be locked up in st pats but now go to places where there is no authority and staff can't handle them? They need a lot of convictions to get locked up at that stage so worst of the worst talking about here.

They should not have so liberal a system to give them so many rights while their victims have none!

just a flipside of the coin....

monument

GCU Flexible Demeanour wrote: »

....the court has created a presumption that the child's best interests are best served within the marital family of its natural parents.

I'm comfortable with that presumption.

And you seem to have some idyllic picture that keeping a child with its natural parents is always the best option for a child.

GCU Flexible Demeanour wrote: »

The decision to remove a child from its family should be a serious move,

And what makes you think it'll not be a "serious move" if the referendum is passed?

apache wrote: »

What about scumbag kids -16/17 yr olds who used to be locked up in st pats but now go to places where there is no authority and staff can't handle them? They need a lot of convictions to get locked up at that stage so worst of the worst talking about here.

They should not have so liberal a system to give them so many rights while their victims have none!

just a flipside of the coin....

What about them?

GCU Flexible Demeanour

monument wrote: »

And you seem to have some idyllic picture that keeping a child with its natural parents is always the best option for a child.

That's just a grandstanding distortion of what I've said, that I'm not entertaining.

The point I'm making is clear. Engage with it, and I will respond.

James Jones

oscarBravo wrote: »

If you were told that you had to take the best interests of a child into consideration when making a decision, would you really be at a complete loss as to what that meant?

The decision made by the HSE and backed up by the Freedom of Information Commissioner in NMcK v the HSE was supposed to be "in the best interests of the child" but the FoI commissioner admitted that "I note that the term "best interests" is not defined or clarified in FOI or other legislation". The decision was overturned in the High Court and so the decision makers made a decision on their own interpretation of the best interest principle which was found to be wrong.

This will happen again because mostly, these decisions will be made by young, inexperienced, just-out-of-collage social workers with an "I've got something to prove" attitude. If the families challenge them, they will do so in front of District Court Judges who are mainly old men that did not spend any time looking after their own children. Most disturbingly, these decisions will the made in secret

monument

GCU Flexible Demeanour wrote: »

That's just a grandstanding distortion of what I've said, that I'm not entertaining.

The point I'm making is clear. Engage with it, and I will respond.

I've made my point.

What you think of my point; if you're entertaining it or not; and your wish to engage with it or not is your business.