What way should I vote, and why

oscarBravo wrote: »

Have you read their critical appraisal of the amendment? What's the basis of your assertion that the CRA lacks legal expertise?

I doubt if either Hugh O'Flaherty or Adrian Hardiman wrote the CRA's document

Interesting article in the journal.ie today on the referendum http://www.thejournal.ie/readme/no-campaign-childrens-referendum-649534-Oct2012/

johnnyskeleton wrote: »

Did they identify a constitutional impedimet to such legislation?

The short, and accurate, answer is no, the cited report did not identify any constitutional impediment whatsoever.

oscarBravo wrote: »

...and retired Supreme Court Judge Catherine McGuinness disagrees. Neither of which has anything to do with which legal analysis is superior.

I think it does - wasn't Hardiman reporting the actual decision of the Court?

oscarBravo wrote: »

I think it's only fair to point out that the analysis I linked says: "This issue potentially affects hundreds of children among the 2,000 children who have been in long-term foster care (defined as over five years)." That doesn't imply that all 2,000 are awaiting adoption to me.

Even the "potentially affects hundreds of children" line is a gross distortion on their part. Would it worth doing if just one was impacted? I don't know if there is even one case materially impacted; I do know that the CRA are being deliberately misleading in how they present the issue.

And, again, I'd point out that the practice of children being routinely adopted by complete strangers belongs in the Jurassic period.

oscarBravo wrote: »

So you think it's better for children to have to litigate for their rights than to have them guaranteed in the constitution?

Meaningless question. The only way of obtaining your Constitutional rights is by litigation.

If you wanted to ensure children could just avail of some service, you'd do it by enacting a statue; or, even simpler and more effective, by the Dáil voting money into a subhead for that express purpose. Just like they do every year, for every State service and benefit.

johnnyskeleton wrote: »

did they recommend a consttutional amendment instead of ordinary legislation? Did they identify a constitutional impedimet to such legislation? The need for some changes in our law is clear, what is not at all clear is why we have to put a legally vague amendment into the constitution first.

Regarding the principle of "best interests of the child", the committee recommends that the state ensure that that principle is a "primary consideration ... and is fully integrated into all legislation relevant to children; and ... that this principle is also applied in all political, judicial and administrative decisions, as well as projects, programmes and services that have an impact on children." It also recommends that the state ensure, "...including through Constitutional provisions, that children have the right to express their views in all matters affecting them and to have those views given due weight..."

If you want to make something a guiding principle of all relevant laws, as well as political, judicial and administrative decisions, it seems logical that the way to do so is through a constitutional provision.

So, yes: the committee have recommended that we change the Constitution. Granted, this specific recommendation applies only to the right to be heard, but their other recommendations clearly imply that the measures they recommend should form the backdrop to all legislation around children; in other words, constitutionally-guaranteed rights.

because they get funding and publicity for doing so, but sadly lack the legal expertise or even common sense to critically appraise the wording and necessity of the amendment.

Have you read their critical appraisal of the amendment? What's the basis of your assertion that the CRA lacks legal expertise?

johnnyskeleton

oscarBravo wrote: »

committee of the UNHCHR has indicated that we are not fully compliant with a UN convention that we have ratified. I get that it suits your argument to pretend that's not a problem that needs solving, but it would be more intellectually honest to debate the proposed solution on its merits than to keep pretending that an entire constitutional amendment has been dreamed up without there being a single compelling reason for it whatsoever.

did they recommend a consttutional amendment instead of ordinary legislation? Did they identify a constitutional impedimet to such legislation? The need for some changes in our law is clear, what is not at all clear is why we have to put a legally vague amendment into the constitution first.

why do you think that every single one of the hundred-plus organisations who are advocating a constitutional amendment have all made the exact same mistake of believing that there's a problem that requires such an amendment?

because they get funding and publicity for doing so, but sadly lack the legal expertise or even common sense to critically appraise the wording and necessity of the amendment. Plus, they know it will probably breeze in on the nod so why fight it?

ciarafem wrote: »

Here’s why.

Firstly, because retired Supreme Court Jdge Hugh O’Flaherty agrees with what SC Judge Adrian Hardiman said about the constitutional position of children in the case known as the Baby Ann case 2006:

...and retired Supreme Court Judge Catherine McGuinness disagrees. Neither of which has anything to do with which legal analysis is superior.

Secondly, advocates of the new amendment agree that the situation will alter from that spelt out by Judge Hardiman. For example a yes supporter and campaigner, law lecturer at UCC, Conor O’Mahoney spells out the change, resulting from 42A.1, out in a manner that agrees with the analysis in http://www.scribd.com/doc/109280995/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-1/

When the first Legal Analysis makes the point that 42A.1 will allow the State to involve itself in intact and functioning families, and just the ‘exceptional’ failures set out in old 42.5 or new 42A.2.1 Conor Murphy’s comment above.

Why do you repeatedly interpret 42A.1 to mean that the state can intervene in non-exceptional cases, when 42A.2.1 explicitly states that such intervention can only be in exceptional cases?

It strikes me as a bizarre interpretation to decide that a relatively non-specific article of the constitution can override a much more specific article. What makes you so certain that 42A.1 carries such weight that it totally nullifies an explicit provision of the article that follows it?

Thirdly, the Children’s Rights Alliance on a number of occasions refers to 2000 children and implies that they are all awaiting adoption, but can’t be because of the Constitution.

Given that we're discussing the relative merits of two different analyses of the proposed amendment, I think it's only fair to point out that the analysis I linked says: "This issue potentially affects hundreds of children among the 2,000 children who have been in long-term foster care (defined as over five years)." That doesn't imply that all 2,000 are awaiting adoption to me.

Sadly, but understandably, adoptive parents want young children with whom they can easily form a bond.

So there are no foster parents who want to adopt their foster children? Or just not enough to matter?

Finally, under the European Convention on Human Rights Act 2003 the ECHR jurisprudence now applies in Ireland and Sahin v Germany gives a voice to the child – also consistent with Art. 40.1 of the Constitution. If children are not being given a voice then it is the courts and not the Constitution that is at fault.

So you think it's better for children to have to litigate for their rights than to have them guaranteed in the constitution?

oscarBravo wrote: »

I'm automatically suspicious of the "if you don't know, agree with me" argument. Why is that one better than this one?

Here’s why.

Firstly, because retired Supreme Court Jdge Hugh O’Flaherty agrees with what SC Judge Adrian Hardiman said about the constitutional position of children in the case known as the Baby Ann case 2006:

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.

Secondly, advocates of the new amendment agree that the situation will alter from that spelt out by Judge Hardiman. For example a yes supporter and campaigner, law lecturer at UCC, Conor O’Mahoney spells out the change, resulting from 42A.1, out in a manner that agrees with the analysis in http://www.scribd.com/doc/109280995/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

A limitation of the current framework is that Article 42.5 only mentions children’s rights indirectly as something that the State must have due regard for when intervening to supply the place of parents who have failed in their duties towards their children. The existing framework is premised on the concept of State subsidiarity in family affairs, and places the State under no direct obligation to protect the rights of children as long as parents are adequately performing their functions. The obligation is a default one that arises only in exceptional cases.
The amendment, if passed, will shift the emphasis so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty. In part, this is intended to reinforce the fact that children have rights as individuals and not merely as a sub-set of the family unit.

http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-1/

When the first Legal Analysis makes the point that 42A.1 will allow the State to involve itself in intact and functioning families, and just the ‘exceptional’ failures set out in old 42.5 or new 42A.2.1 Conor Murphy’s comment above.

Thirdly, the Children’s Rights Alliance on a number of occasions refers to 2000 children and implies that they are all awaiting adoption, but can’t be because of the Constitution.

In 2010 there were 5974 children in care. According to the Minister for Social Affairs, Joan Burton, 1600 of these were children of married parents. The number of children in long term foster care that were adopted was 16 (out of 4374). On a pro rata based there are probably 5 who might have been adopted by their long term foster carers. Some of these 5 could be adopted under Section 54, sub section 2, of the 2010 Adoption Act. So maybe the true figure is 2 or 3. Of the 189 children who were adopted from Irish sources the average age was 1 year. 288 children were adopted from overseas sources. Of the 2200 children taken into care in 2010 only 9% were under the age of 12. Sadly, but understandably, adoptive parents want young children with whom they can easily form a bond.

Finally, under the European Convention on Human Rights Act 2003 the ECHR jurisprudence now applies in Ireland and Sahin v Germany gives a voice to the child – also consistent with Art. 40.1 of the Constitution. If children are not being given a voice then it is the courts and not the Constitution that is at fault.

Uriel. wrote: »

However, I cannot take either analysis as being particularly good or sound without knowing the qualifications behind the analysis. To be honest, I'd far sooner listen to members of the Judiciary on this, particularly those of the Supreme Court.

Judge Adrian Hardiman made these comments in passing in the Baby Ann case in 2006:

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.

K-9 wrote: »

But you don't know if a yes would be a better scenario, you're voting for the status quo through ignorance, never a good way to decide important issues.

Your comment is just repeating a point already answered. The issue is not over whether yes or no is the best option. It is about what you should do when you don't know which is the best option, same as when you don't know the implications of signing a contract. As this is a collective contract, which will be voted on whether or not any particular individual participates, abstaining from a vote is effectively consent.
So, to repeat

The point is about how to cope with that uncertainty, not about assumptions as to consequences. You simply don't consent to something out of ignorance. That's a very basic, and very sound, principle.

K-9

GCU Flexible Demeanour wrote: »

No, you are simply refusing consent to the alteration of the current contract.

Do recall that our Governments have, several times, put the same question before the people again within a few years of a "No" vote. Not just the EU treaties, but the divorce amendment as well. A No is not closing the door on necessary change; it might be a necessary step to clarifying if there actually is some issue that people need to take note of.

No is the default option.

But you don't know if a yes would be a better scenario, you're voting for the status quo through ignorance, never a good way to decide important issues. As for a second vote, given how long it has taken to get the first one that can't be taken for granted either.

K-9 wrote: »

By voting no you are in a way signing a contract for things to remain the same.

No, you are simply refusing consent to the alteration of the current contract.

Do recall that our Governments have, several times, put the same question before the people again within a few years of a "No" vote. Not just the EU treaties, but the divorce amendment as well. A No is not closing the door on necessary change; it might be a necessary step to clarifying if there actually is some issue that people need to take note of.

No is the default option.

K-9

GCU Flexible Demeanour wrote: »

Nope, there is no assumption about consequences. It's the same scenario as signing the contract.

Maybe a failure to sign a contract has negative consequences. Maybe it doesn't. The point is about how to cope with that uncertainty, not about assumptions as to consequences. You simply don't consent to something out of ignorance. That's a very basic, and very sound, principle.

Abstaining isn't a solution, because a referendum is like a contract that others can sign on your behalf and apply to you. So it's more a case of "if we don't hear to the contary, we'll assume you consent". Unfortunately, as this turkey is on the agenda, the choice can't be avoided.

By voting no you are in a way signing a contract for things to remain the same. Thing is you don't know what you are voting about at all, you don't know if voting yes would be better than a no, you don't have a clue. It doesn't make any sense as you've no idea of the consequences of a Yes vote, why favour either? It makes sense to people who want a no vote, nobody else. Just abstain if you don't know anything either way about it.

K-9 wrote: »

Voting No and not knowing why means you may miss out on the positives of voting yes, it isn't a zero sum game. Really, if you haven't a clue what it's about, abstein, it's the wisest choice.

oscarBravo wrote: »

Option 2 is predicated on the assumption that voting "no" has no negative consequences. That's not an assumption I'm comfortable with.

Nope, there is no assumption about consequences. It's the same scenario as signing the contract.

Maybe a failure to sign a contract has negative consequences. Maybe it doesn't. The point is about how to cope with that uncertainty, not about assumptions as to consequences. You simply don't consent to something out of ignorance. That's a very basic, and very sound, principle.

Abstaining isn't a solution, because a referendum is like a contract that others can sign on your behalf and apply to you. So it's more a case of "if we don't hear to the contary, we'll assume you consent". Unfortunately, as this turkey is on the agenda, the choice can't be avoided.

K-9

Voting No and not knowing why means you may miss out on the positives of voting yes, it isn't a zero sum game. Really, if you haven't a clue what it's about, abstein, it's the wisest choice.

Uriel.

oscarBravo wrote: »

I'm automatically suspicious of the "if you don't know, agree with me" argument. Why is that one better than this one?

The analysis prepared by the Children's Rights Alliance looks far superior and could be argued has more weight behind it given the breadth of organisations that make up the Alliance, however, it is unclear to me who the actual author is. Presumably, it was written in conjunction with a legal professional.

However, I cannot take either analysis as being particularly good or sound without knowing the qualifications behind the analysis. To be honest, I'd far sooner listen to members of the Judiciary on this, particularly those of the Supreme Court.

For transparency, for what it's worth, I am leaning towards a Yes vote, but am not 100% convinced, yet

Uriel.

ciarafem wrote: »

If you read this critique of the wording of the amendment it might help you arrive at a decision http://www.scribd.com/doc/109280995/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

Who is the author and what qualifications does he have in regard to the law?

Option 2 is predicated on the assumption that voting "no" has no negative consequences. That's not an assumption I'm comfortable with.

oscarBravo wrote: »

Sounder advice might be "educate yourself if you don't know".
I agree that you shouldn't sign a contract that you don't understand, but I'd suggest it's better to make the effort to understand it and make an informed decision on whether or not to sign it than to simply not sign at all.

I'll meet you half way.

1. Best option; inform yourself, and decide which way you want to vote on the basis of your understanding.

2. Middling option; Vote no in ignorance, as at least you won't have consented to something that you don't understand.

3. Worst option; vote yes in ignorance, and then act surprised when you find out what you've just signed up for.

GCU Flexible Demeanour wrote: »

"Vote no if you don't know" is sound advice, for the same reason that people should not sign a contract they don't understand.

Sounder advice might be "educate yourself if you don't know".

I agree that you shouldn't sign a contract that you don't understand, but I'd suggest it's better to make the effort to understand it and make an informed decision on whether or not to sign it than to simply not sign at all.

oscarBravo wrote: »

I'm automatically suspicious of the "if you don't know, agree with me" argument.

You're not comprehending the context. That said, I'm not convinced you want to - but that's only how your posts appear.

"Vote no if you don't know" cannot be equated to an assertion o f "Vote yes if you don't know".

"Vote no if you don't know" is sound advice, for the same reason that people should not sign a contract they don't understand. Vote yes, and you've committed yourself to support something you don't understand. Vote no, and you've made no commitment.

And if we all vote no, as we know from past experience, our Governments are never shy about putting the same question to us again. Again, a Yes vote is like signing a contract - you've consented to the change, without having a clue what it's about. A No vote might be opposition, or might just be "you haven't explained why I should sign this contract".

James Jones wrote: »

"If you don't no, vote No!"

I'm automatically suspicious of the "if you don't know, agree with me" argument.

If still not sure read this Legal Analysis

Why is that one better than this one?

James Jones

fupduck wrote: »

In layman's terms , can anybody convince me which way to vote, and why?

Generally, when it come to Constitutional referenda, "If you don't no, vote No!".
No cases have been put forward where the current Constitutional positions has failed children. All of the cases that the YES side rely on are failures of the Child Protection Services rather than the Constitution.
Barnardos have a vested interested in a YES vote. See HERE.
"The Best Interests of the Child" principle has not been defined. It will be up to individual Judges to decide what is in the best interests of any child in a secret court. At the moment, "The decisions of the parent of minors are presumed to be in the best interests of that minor in the absence of evidence to the contrary" (see NMcK v the Information Commissioner). However, a Judge will be allowed to decide what they think is in the best interests of a child, without having to rely on any evidence.
If still not sure read this Legal Analysis

ciarafem wrote: »

Germany's 1949 Constitution is very similar to ours with respect to children's rights, the family, State intervention. It is not having a referendum on the UNCRC. Its laws require the voice of the child to be heard from 4 years upwards.

I think its worth expanding on that a little; although, I know the pertinent point is the one you've already made - that there's no need to change the Constitution to provide for a child advocate.

In Germany, the child has a lawyer appointed, on the pretext that this lawyer will be the child's voice. But, you'll appreciate, it's not that the actual voice of the actual child gets heard. What happens is the lawyer says "M'lud, if this child was a 45 year old barrister, s/he would agree completely with what I'm about to say".

tayto lover wrote: »

This Referendum will be passed without any problem so why are we wasting a small fortune with all the posters around the country?
This is madness in times of austerity in my opinion.

Just to be fair, we aren't paying for the posters. The posters are being put up by the political parties. The taxpayer will cover the cost of the actual vote. But that's just the way it works. I'd much rather that they needed to have a vote to change the Constitution, rather than (for the sake of argument) allowing the Oireachtas to change it directly with a two-thirds majority.

oscarBravo wrote: »

You can take this as a concession of the point if you like; I know you will anyway.

I don't need the 'point' to be conceded. It is simply the case that you are factually wrong in your contention.

oscarBravo wrote: »

Why does it have to be in my words?

Oh, if you'd prefer someone else's, fire ahead. All I'm looking for is a valid and substantial reason.

Which hasn't yet appeared.

tayto lover

This Referendum will be passed without any problem so why are we wasting a small fortune with all the posters around the country?
This is madness in times of austerity in my opinion.

GCU Flexible Demeanour wrote: »

There is, but the present situation is much simpler than that. You asserted that a UN Committee stated that changing our Constitution is a requirement. That is factually wrong, on the basis of the evidence that you linked.

Wow. As much as I'd love to join you in your game of let's-use-every-semantic-niggle-we-can-find-to-avoid-actually-discussing-the-issue, I'm reminded of the exhortation against wrestling with a pig. You can take this as a concession of the point if you like; I know you will anyway.

I've no idea what their motivation is.

Interesting. You state, repeatedly and with great conviction, that there are no arguments in favour of this proposal, but you haven't even bothered to find out the motivations of those who support it.

Can you tell us, briefly and in your own words, what the problem is that these hundred-plus organisations see this as solving?

Why does it have to be in my words?

You are absolutely certain that there is no valid reason for this amendment. That means that those hundred-plus organisations have, individually and collectively, deluded themselves as to the need for it. Aren't you even a little bit curious as to how so many organisations can be so utterly and hopelessly wrong? I mean, curious enough to even try to figure out what their motivations are?

oscarBravo wrote: »

There's a subtle difference between "there's no reason do this", and "there's no reason to do this that I find sufficiently persuasive to accept its very existence".

There is, but the present situation is much simpler than that. You asserted that a UN Committee stated that changing our Constitution is a requirement. That is factually wrong, on the basis of the evidence that you linked.
So the situation is that you have not yet provided a valid reason. The reason you suggested is factually wrong.

oscarBravo wrote: »

why do you think that every single one of the hundred-plus organisations who are advocating a constitutional amendment have all made the exact same mistake of believing that there's a problem that requires such an amendment?

I've no idea what their motivation is.

Can you tell us, briefly and in your own words, what the problem is that these hundred-plus organisations see this as solving? If you give a valid and substantial reason, then the discussion is over.

Of course, if you can't state the problem, you're also helping by illustrating the absence of an coherent reason for this Amendment.

GCU Flexible Demeanour wrote: »

It’s disappointing when a poster just ignores the points already explained, and repeats an earlier misunderstanding like you’re doing here. You’ve already had it explained to you by gizmo555 on another thread that your picture of what has been said is wrong.

Well, no. I've had it explained to me in another thread that some people don't believe there are any reasons that they personally find sufficiently compelling to justify a constitutional change. There's a subtle difference between "there's no reason do this", and "there's no reason to do this that I find sufficiently persuasive to accept its very existence".

A committee of the UNHCHR has indicated that we are not fully compliant with a UN convention that we have ratified. I get that it suits your argument to pretend that's not a problem that needs solving, but it would be more intellectually honest to debate the proposed solution on its merits than to keep pretending that an entire constitutional amendment has been dreamed up without there being a single compelling reason for it whatsoever.

Well, I could say the implication of Hume’s problem of induction is that no proposition can be taken as fact. But that might be taken as off the point, to say nothing of making any attempt of discussing any issue a little pointless.

Alternatively, you could read the forum charter, particularly the prohibition on stating opinions as facts.

So what I’ll say instead is it is perfectly reasonable for me to say that no problem has been identified that requires an amendment, until such time as someone produces such a reason.

I've pointed out such a problem. You've dismissed it as not being a good enough reason by some standard you've arbitrarily set, and continue to claim that this is an issue for which there are arguments on only one side.

In your own case, on the other thread, you pretty much admitted that you’d no idea why a referendum was needed, other than your assumption that there must be some reason that so many groups were calling for such an amendment.

Wow. That's some pretty breathtaking arrogance: I posit a reason, you dismiss it as not being a good enough reason by your standards, therefore not a reason at all, therefore I have admitted to not having a reason.

Can I get to make up my own rules for this discussion as well? Then we can talk past each other and each feel smug about winning the argument, without having to waste precious mental energy on the possibility that the other might have a point.

An appeal to authority is rather strange, when a point at issue is what’s going to protect us from the authorities abusing their powers. In a context where past experience shows that they do.

You can call it an appeal to authority if that's what it takes to avoid having to answer the question, but I'll ask it again anyway: why do you think that every single one of the hundred-plus organisations who are advocating a constitutional amendment have all made the exact same mistake of believing that there's a problem that requires such an amendment?

oscarBravo wrote: »

I guess the UN Committee on the Rights of the Child is mistaken in its assessment that a constitutional amendment is required, so.

It’s disappointing when a poster just ignores the points already explained, and repeats an earlier misunderstanding like you’re doing here. You’ve already had it explained to you by gizmo555 on another thread that your picture of what has been said is wrong.

gizmo555 wrote: »

The document linked to merely "recommends" that the Convention's right of children to be heard in matters affecting them be reflected in the Constitution. It certainly doesn't state that constitutional change is required and in any case the amendment as proposed goes far beyond this specific point.

oscarBravo wrote: »

It's acceptable to express the opinion that there is no problem that requires an amendment. It's not acceptable to express that opinion as fact.

Well, I could say the implication of Hume’s problem of induction is that no proposition can be taken as fact. But that might be taken as off the point, to say nothing of making any attempt of discussing any issue a little pointless.

So what I’ll say instead is it is perfectly reasonable for me to say that no problem has been identified that requires an amendment, until such time as someone produces such a reason. In your own case, on the other thread, you pretty much admitted that you’d no idea why a referendum was needed, other than your assumption that there must be some reason that so many groups were calling for such an amendment.

An appeal to authority is rather strange, when a point at issue is what’s going to protect us from the authorities abusing their powers. In a context where past experience shows that they do.