What way should I vote, and why

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?

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?

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?

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 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: »

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/

GCU Flexible Demeanour wrote: »

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

25. In light of article 12 of the Convention, the Committee recommends that the State party:

(a) Strengthen its efforts to ensure, including through Constitutional provisions, that children have the right to express their views in all matters affecting them...

You can dismiss that with a hand-waving argument to the effect that they probably didn't really mean it, and don't really care whether we do it or not, but it's incredibly disingenuous to try to pretend that the Committee hasn't identified a need for a Constitutional amendment.

ciarafem wrote: »

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

But it's possible that Catherine McGuinness had an input to it.

Is there a particular reason why you only respect the legal analysis of jurists who happen to agree with your views?

oscarBravo wrote: »

.... it's incredibly disingenuous to try to pretend that the Committee hasn't identified a need for a Constitutional amendment.

Nope, because they haven't identified such a need. It would be disingenuous to say that they had identified a need.

oscarBravo wrote: »

Is there a particular reason why you only respect the legal analysis of jurists who happen to agree with your views?

Ignoring the leading question, can I mention again that the quote from Hardiman J. is taken from his actual Supreme Court judgment, in support of the unanimus Court Decision in the Baby Ann case?

So it's not merely a legal opinion. It's an actual example of reasoning by the Supreme Court with direct relevance to the matter in question, as it illustrates how the Court actually decided a pivotal case.

GCU Flexible Demeanour wrote: »

Nope, because they haven't identified such a need. It would be disingenuous to say that they had identified a need.

"We haven't identified any need for a Constitutional change. Therefore, we're recommending that you change the Constitution."

Yeah, makes perfect sense.

oscarBravo wrote: »

"We haven't identified any need for a Constitutional change. Therefore, we're recommending that you change the Constitution."

Yeah, makes perfect sense.

Ah, you're just being obtuse.

"We haven't identified any need for a Constitutional change. Therefore, there is no requirement to change the Constitution. We're merely recommending that you consider a change along with some other measures."

GCU Flexible Demeanour wrote: »

Ah, you're just being obtuse.

No; I'm disagreeing with you. There's a difference.

"We haven't identified any need for a Constitutional change. Therefore, there is no requirement to change the Constitution. We're merely recommending that you consider a change along with some other measures."

You seem to have a different definition of "need" to that in common use.

When someone recommends that you do something, it's generally because they think you need to do it. My ophthalmologist recommended that I undergo eye surgery this year. He didn't recommend that because he was out of practice, or needed a few bob for his holidays; he recommended it because it was the most effective way of reducing my risk of going blind - in other words, it was something I needed to do.

He never said I needed the surgery; he suggested that the medication I had been taking wasn't as effective as he had hoped and recommended the surgery as the most appropriate course of treatment. Based on that conversation, do you think I should have reported back to my other half that the doctor hadn't identified any need for surgery?

There is no language in that report that can be validly interpreted as meaning "there is no requirement to change the Constitution", unless you summarise the entire report as "feel free to ignore everything herein."

oscarBravo wrote: »

No; I'm disagreeing with you. There's a difference. You seem to have a different definition of "need" to that in common use.

If you mean the argument is around using the term need in the sense of "could be a benefit in" and need in the sense of "cannot do without", you could be right.

oscarBravo wrote: »

Based on that conversation, do you think I should have reported back to my other half that the doctor hadn't identified any need for surgery?

I think you may need surgery. But we don't need to amend the Constitution. No UN committee has identified any problem that needs a solution, unlike your doctor who seems to have identified a need for intervention.

oscarBravo wrote: »

There is no language in that report that can be validly interpreted as meaning "there is no requirement to change the Constitution", unless you summarise the entire report as "feel free to ignore everything herein."

The situation is as I've stated, and you are being obtuse.

GCU Flexible Demeanour wrote: »

The situation is as I've stated, and you are being obtuse.

Noted, for future reference: next time someone says "I recommend that you do xyz", it means "you don't need to do xyz".

Uh huh. And I'm being obtuse? Please.

oscarBravo wrote: »

Noted, for future reference: next time someone says "I recommend that you do xyz", it means "you don't need to do xyz".

Uh huh. And I'm being obtuse? Please.

Look, if you honestly don't understand the difference between a recommendation and a requirement, you have my deepest sympathy. Because, truly, you must find this discussion incomprehensible.

Unfortunately, the distinction is quite clear. It means that your earlier statement

oscarBravo wrote: »

A committee of the UNHCHR has indicated that we are not fully compliant with a UN convention that we have ratified.

is pants. That report simply does not say that our Constitution means we are not fully compliant. That's simply not what it means.

passarellaie

The Fundamental question here is is the state better able to look after vulnerable children than families?.
The answer is the Irish state is a failed entity completely incapable of doing anything well except the systematic robbery of the real working people.
VOTE NO

GCU Flexible Demeanour wrote: »

Look, if you honestly don't understand the difference between a recommendation and a requirement, you have my deepest sympathy. Because, truly, you must find this discussion incomprehensible.

I've read that report a couple of times now, and I'm having a great deal of difficulty finding the subtext (which is clearly jumping off the page at you) that the committee is completely satisfied that Ireland doesn't have to do anything whatsoever; that we are completely compliant with all our CRC obligations in every way; that they are recommending that we change our constitution because they don't believe we need to.

I guess I'm missing something. I have a sneaking suspicion that it's confirmation bias.

Unfortunately, the distinction is quite clear. It means that your earlier statement [...] is pants. That report simply does not say that our Constitution means we are not fully compliant. That's simply not what it means.

Yes, I get it. You believe that the Committee recommends changing our Constitution because it believes that we shouldn't. Gotcha. Thanks.

passarellaie wrote: »

The Fundamental question here is is the state better able to look after vulnerable children than families?.

I'm seeing a lot of this ridiculous rhetoric, and - I'm sorry - it comes across as little more than "rabble rabble government bad".

You're making the case that no child should ever be removed from a family, no matter how dysfunctional or dangerous, because families are better able to look after children than the state. Sorry, but that's bollox. Sure: most families are better able to look after their children than the state could ever hope to, but a tiny minority of families regrettably are not.

Make your arguments against the amendment as you see fit, but this sort of nonsense is harming the "no" case, not helping it.

oscarBravo wrote: »

Yes, I get it. You believe that the Committee recommends changing our Constitution because it believes that we shouldn't. Gotcha. Thanks.

Like I said, you are being obtuse. You are obviously distorting what has been said, in a situation where you have been demonstrated to be factually wrong - and not for the first time on this agenda.

I don't see the point of pursuing this matter any further. Your posts are not advancing the matter, and only serve to demonstrate your unwillingness to adjust your position in response to the points made.

GCU Flexible Demeanour wrote: »

Your posts are not advancing the matter, and only serve to demonstrate your unwillingness to adjust your position in response to the points made.

That would be the position that you have decided I hold, and because you have decided it, it's unquestionably the truth?

Fair enough, I guess you'd know better than me what I think.

oscarBravo wrote: »

I'm seeing a lot of this ridiculous rhetoric, and - I'm sorry - it comes across as little more than "rabble rabble government bad".

You're making the case that no child should ever be removed from a family, no matter how dysfunctional or dangerous, because families are better able to look after children than the state. Sorry, but that's bollox. Sure: most families are better able to look after their children than the state could ever hope to, but a tiny minority of families regrettably are not.

Make your arguments against the amendment as you see fit, but this sort of nonsense is harming the "no" case, not helping it.

There is an interesting collection of press articles and background links to the Baby Ann case and the Roscommon Abuse Case at https://www.facebook.com/childrens.referendum?ref=tn_tnmn

ciarafem wrote: »

There is an interesting collection of press articles and background links to the Baby Ann case and the Roscommon Abuse Case at https://www.facebook.com/childrens.referendum?ref=tn_tnmn

That's nice. What's the relevance to the post of mine that you quoted?

Annasopra

Uriel. wrote: »

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

Catherine McGuinness former supreme court judge has given some very good arguments in favour

http://www.irishtimes.com/newspaper/opinion/2012/1009/1224325059406.html

There is also some excellent legal analysis here

http://www.humanrights.ie/index.php/2012/10/30/the-childrens-referendum-explanation-and-analysis/#more-16688

mango salsa wrote: »

Catherine McGuinness former supreme court judge has given some very good arguments in favour

http://www.irishtimes.com/newspaper/opinion/2012/1009/1224325059406.html

There is also some excellent legal analysis here

http://www.humanrights.ie/index.php/2012/10/30/the-childrens-referendum-explanation-and-analysis/#more-16688

On the other hand you can look at:

Retired Supreme Court Judge Hugh O'Flaherty views on the need for a referendum http://www.independent.ie/opinion/analysis/hugh-oflaherty-we-dont-need-a-referendum-to-protect-our-childrens-rights-3226110.html

Alternative excellent Legal Analysis can be found here http://www.scribd.com/doc/109500011/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

Excellent source of information on various aspects of the referendum https://www.facebook.com/childrens.referendum?ref=tn_tnmn

Annasopra

ciarafem wrote: »

On the other hand you can look at:

Retired Supreme Court Judge Hugh O'Flaherty views on the need for a referendum http://www.independent.ie/opinion/analysis/hugh-oflaherty-we-dont-need-a-referendum-to-protect-our-childrens-rights-3226110.html

Alternative excellent Legal Analysis can be found here http://www.scribd.com/doc/109500011/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

Excellent source of information on various aspects of the referendum https://www.facebook.com/childrens.referendum?ref=tn_tnmn

I really can't take most of that seriously at all though.

The so called "legal analysis" is not a real legal analysis

The facebook page is made up of people like John Waters who are going through this campaign shouting, scare mongering, coming up with completely unverified information, making outlandish conspiracy theory claims - I have read almost nothing from the no side that is convincing, well researched or rational.

mango salsa wrote: »

I really can't take most of that seriously at all though.

The so called "legal analysis" is not a real legal analysis

The facebook page is made up of people like John Waters who are going through this campaign shouting, scare mongering, coming up with completely unverified information, making outlandish conspiracy theory claims - I have read almost nothing from the no side that is convincing, well researched or rational.

I suppose that you would be just as dismissive of Supreme Court Judge Adrian Hardiman when he said, in passing, in the Baby Ann case:

There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.

K-9

ciarafem wrote: »

On the other hand you can look at:

Retired Supreme Court Judge Hugh O'Flaherty views on the need for a referendum http://www.independent.ie/opinion/analysis/hugh-oflaherty-we-dont-need-a-referendum-to-protect-our-childrens-rights-3226110.html

Alternative excellent Legal Analysis can be found here http://www.scribd.com/doc/109500011/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

Excellent source of information on various aspects of the referendum https://www.facebook.com/childrens.referendum?ref=tn_tnmn

That's an opinion of an ex-Supreme Court judge that had to resign in "controversial" circumstances, an anonymous blog type post and a link to a facebook campaign.

I'd respect Hardiman's opinion but that is all it is, his expert legal opinion which obviously other expert opinions disagree with.

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

K-9 wrote: »

That's an opinion of an ex-Supreme Court judge that had to resign in "controversial" circumstances, an anonymous blog type post and a link to a facebook campaign.

I'd respect Hardiman's opinion but that is all it is, his expert legal opinion which obviously other expert opinions disagree with.

And your comment on what Dr. Conor O'Mahony, Law lecturer at UCC, has to say would be?

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.

Annasopra

ciarafem wrote: »

And your comment on what Dr. Conor O'Mahony, Law lecturer at UCC, has to say would be?

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

I know you didn't ask me that question but I believe there is absolutely nothing wrong with what you have bolded. I think what you have put in bold is a good thing in fact.

K-9

ciarafem wrote: »

And your comment on what Dr. Conor O'Mahony, Law lecturer at UCC, has to say would be?

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

My comment on opinions would cover that too! I'd respect his opinion but I wouldn't give it anymore weight than Catherine McGuinness and others on the yes side. That's probably because I haven't made my mind up on it yet.