Referendum on Children's rights

EDmon

With regards to the children’s rights referendum and I am wondering whether the importance of constitutional reform may be being overstated. And perhaps there are other means to upholding their rights which may be deemed as important.


What other elements would ensure that children are treated with respect and dignity?

MagicSean

The necessity for constitutional reform in regards to the family and children cannot be overstated. This ammendment, however, does not address any of the issues which need to be ammended for. Children already have rights. The issue is one of implementation of these rights through legislation and policy.

It's similar to the right to an abortion. The constitution gives the right in certain circumstances but the government refuse to implement this in any way. So why should we people believe this ammendment will be any better?

goalscoringhero

I was wondering as well: Why does it have to be stated explicitly in the constitution?
Why does legislation not suffice?

The current relevant articles in the constitution are as follows:

http://www.constitution.ie/reports/ConstitutionofIreland.pdf

FUNDAMENTAL RIGHTS
Personal Rights
Article 40
1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
[...]

The Family
Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
[...]

Education
Article 42
[...]
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.
[...]
5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, 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.

Ironically, state intervention is mentioned in paragraph 5 of the Education article, and it covers pretty much anything there is to cover.
However, I don't see anything that prevents the adoption of a child, which is one of the reasons often quoted when it comes to motivating the amendment.
I do agree that explicitly stating that the views of the child must be heard is a good idea, however this appears to be covered already implicitly by article 40.1(?) Surely the courts must consider children's rights equally as anyone else's?

Apart from that, the newly proposed article mentions "Provision shall be made by law" in 2.2, 3, 4.1, 4.2.

Why does the constitution have to be the driver to legislate for the scenarios mentioned in the referendum?
What in the current form of the constitution is preventing the state from legislating for the scenarios mentioned, such that the constitution has to be amended?

Procrastastudy

There are various cases surrounding adoption, and I'm sure other issues to do with the family, which would render legislation unconstitutional. You have to look at case law for interpretation of Constitutional articles.

Jesus I'm hung over that doesn't look right but no matter how many times I write it - it still sounds wrong. Suffice it to say the amendment is needed to allow legislation to happen.

Its a stupid referendum and will get the turnout it deserves. I would like to see any amendment that doesn't get a certain turnout automatically struck down to be honest.

EDmon

Procrastastudy wrote: »

There are various cases surrounding adoption, and I'm sure other issues to do with the family, which would render legislation unconstitutional. You have to look at case law for interpretation of Constitutional articles.

Are there any case in particular that you could refer me to which highlight such issues regarding children's rights that and unconstitutional legislation, as mentioned above?

Procrastastudy wrote: »

...Suffice it to say the amendment is needed to allow legislation to happen.

I cannot think nor find another appropriate way to recognize children's rights other than such a referendum. Are there any alternatives that may enable such legislation to be put into practice?

Procrastastudy wrote: »

...I would like to see any amendment that doesn't get a certain turnout automatically struck down to be honest.

Perhaps I would agree that it is unfortunate that the constitution itself does not have a minimum percentage of the voting population that must vote for a referendum to be validly passed!

Many thanks for your response.

EDmon

goalscoringhero wrote: »

...Why does it have to be stated explicitly in the constitution?
Why does legislation not suffice?

I suppose the constitution would give a higher level of protection to such rights. However I am unsure whether it is indeed necessary. As IMO the rights of a child are already suitably protected by the constitution as you have outlined in your comprehensive response.

goalscoringhero wrote: »

...in paragraph 5 of the Education article, and it covers pretty much anything there is to cover.
...I do agree that explicitly stating that the views of the child must be heard is a good idea, however this appears to be covered already implicitly by article 40.1(?) Surely the courts must consider children's rights equally as anyone else's?

It would appear that you may be of the opinion that this referendum is unnecessary. Could you please enlighten me as to any other means that the rights of a child could be recognized ?

Thank you for your response.

EDmon

MagicSean wrote: »

The necessity for constitutional reform in regards to the family and children cannot be overstated. This ammendment, however, does not address any of the issues which need to be ammended for. Children already have rights. The issue is one of implementation of these rights through legislation and policy.

Do you think it is those who are responsible for executing such legislation and policies simple are not doing so. Or are you of the opinion that a reform in legislation and policies would be necessary for the preexisting acts of the Constitution relating to the rights of a child can be carried out ?

MagicSean wrote: »

It's similar to the right to an abortion. The constitution gives the right in certain circumstances but the government refuse to implement this in any way. So why should we people believe this ammendment will be any better?

Interesting comparison. Who are the bodies that ensure the government carry out such responsibilities and duties correlating to upholding the constitution?

Thanks for your response!

GCU Flexible Demeanour

Procrastastudy wrote: »

Suffice it to say the amendment is needed to allow legislation to happen.

But what legislation, precisely, is obstructed by the Constitution? That's not at all clear.

The adoption issue seems to be a complete non-event - adoption, other than by others relatives, is as rare as hen's teeth these days, for reasons that have nothing to do with the Constitution and everything to do with there being far less drama around non-maritial births, plus (you'd guess) contraception and (albeit inconvenient) access to abortion.

The "Baby Ann" case gets chucked out there if someone asks what's wrong with the Constitution at present. However, when you read the actual case, you find the Courts made a perfectly reasonable decision. It would be quite appalling to have to tell Baby Ann, when she's Adult Ann, that her natural parents wanted her back but she couldn't be returned because of some legal procedure. It would actually be a nightmare, if you entertain the thought.

If the purpose of this amendment was to reverse the effect of the Baby Ann case, I'd certainly oppose it. I wouldn't see how someone could reasonably argue otherwise.

Anyway, even the citation of that case may be a red herring. It's very hard to pin down what exactly this amendment is supposed to be adding to our lives.

EDmon

GCU Flexible Demeanour wrote: »

But what legislation, precisely, is obstructed by the Constitution? That's not at all clear.

...

The "Baby Ann" case gets chucked out there if someone asks what's wrong with the Constitution at present. However, when you read the actual case, you find the Courts made a perfectly reasonable decision. It would be quite appalling to have to tell Baby Ann, when she's Adult Ann, that her natural parents wanted her back but she couldn't be returned because of some legal procedure. It would actually be a nightmare, if you entertain the thought.

If the purpose of this amendment was to reverse the effect of the Baby Ann case, I'd certainly oppose it. I wouldn't see how someone could reasonably argue otherwise.

Anyway, even the citation of that case may be a red herring. It's very hard to pin down what exactly this amendment is supposed to be adding to our lives.

The D O'H -v- H S E ('baby ann case') is an interesting one. As in the case the THE GUARDIANSHIP OF Infants Act, & the Child Care Act etc were brought up.
Are there any other ways of recognizing children's rights than acts and referendums ?

cruizer101

Replying to this thread in part to bump it as it raises some of the questions I had myself in regards to the referendum.

Its not that I disagree with anything in the referendum per say more that I'm inclined to vote no as I don't see the point of it. From my reading of the ammendments there is nothing there that needs to be the existing article to me seems to alrady cover all that is being stated.

Got the information booklet in the door today and it lists 5 objectives of the new wording:

1. Dedicated Constitutional provisions for children
   This is basically specifially affirming the rights of children. Are the not already affirmed by the existing constitution affirming the rights of all citizens, are children not also citizens. I don't see the need for this.
2. Protecting children and supporting familes
   'Putting the safety and welfare of children at the centre of decision making' and 'intervention must be proportionate'.
   To me this is already covered by the existing article... due regard to rights of the child.
3. Removing inequalities
   Irrespective of the martial status of their parents.
   Why would the martial status of the parents have been an issue anyway when regarding the best interests of the child.
4. Adoption: A second chance for children
   The booklet talks about the draft legislation already published can this not just be brought into law without need for the constitutional changes
5. Recognising children in their own right
   'That the views of the child be given due weight, having regard for to age and maturity'. Again surly this is alreayd covered by the 'imprescriptible rights of the child.

As I say to me(legal layperson) I can't see the need for these changes which inclines me to vote no. Not that I disagree with the changes just don't see the point. So I am looking for more information if legally these changes actually make any difference.


The wording 'provision shall be made in law' occurs a number of times, I realise this forces but can changes in law not be made anyway.


So really from a legal standpoint is there need for this ammendment or can all that thet are talking about be implemented anyway.

EDmon

cruizer101 wrote: »

...


Removing inequalities
Irrespective of the martial status of their parents.
Why would the martial status of the parents have been an issue anyway when regarding the best interests of the child.
...
So I am looking for more information if legally these changes actually make any difference.

In my research I have found that a child with married parents cannot be adopted, regardless of their capacity as parents and the child's best interest. However can someone please refer me to any statute or other legislation which has enabled this to happen ?

cruizer101

According to the booklet that was delivered 'this part of the ammendment mandates the Oireachtas to introduce legislation...'

The proposed ammendment to the Adoption Bill is here:

http://www.childrensreferendum.ie/wp-content/uploads/2012/09/General-Scheme-of-Adoption-Bill-19th-September-2012-lc.pdf

From what I can see it does talk about situations where parents can propose to put the child forward for adoption, although to be honest I find it hard eough to read.

GCU Flexible Demeanour

EDmon wrote: »

In my research I have found that a child with married parents cannot be adopted, regardless of their capacity as parents and the child's best interest. However can someone please refer me to any statute or other legislation which has enabled this to happen ?

The situation is that marital children are not normally available for adoption, unless the High Court rules that their parents have failed in their duty towards them. The relevant legislation is section 3 of the 1988 Adoption Act:

http://www.irishstatutebook.ie/1988/en/act/pub/0030/sec0003.html

This would be quite a rare event. That said, as I've said a few times, adoption of any child, whether a marital or non-marital child, by non-family members is quite a rare event these days. Just taking two recent years as a for instance there were only 190 Irish Adoption Orders in 2009, 148 of which were within families (and 140 of them were by "natural mother and her husband"). There were only 189 Irish Adoption Orders in 2010, of which 154 were within families (151 were by "natural mother and her husband"). To get a sense of context, there were more than 1,000 adoptions every year from 1964 to 1984, with the exception of 1979 when there was still a whopping 988 adoptions.

Adoption belongs back in the Jurassic period, and I don't know why folk aren't aware of its near irrelevance. It's certainly very strange to see the Government using it as a ground for changing the Constitution.

EDmon

GCU Flexible Demeanour wrote: »

The situation is that marital children are not normally available for adoption, unless the High Court rules that their parents have failed in their duty towards them. The relevant legislation is section 3 of the 1988 Adoption Act:
...

Adoption belongs back in the Jurassic period, and I don't know why folk aren't aware of its near irrelevance. It's certainly very strange to see the Government using it as a ground for changing the Constitution.

Would it be correct in thinking that new legislation through an modification of the adoption act 1998 s3 in order to make adoption easier for a child in these circumstances ?
Thank you for your response.