For the third time the Irish Times has censored a comment of mine – this one posted last Saturday beneath an article by John Waters about the children’s rights referendum. I don’t usually find myself in broad agreement with what JW has to say but this was different. Waters made a good fist of exposing what he calls the pious humbug of the referendum – and of how when it seemed that the referendum might unintentionally do what it says on the tin – i.e. confer some actual rights on vulnerable immigrant children – Fianna Fail had immediately begun to talk about needing to ‘tweak’ the wording of the wretched thing so as to appease some of the more rabid anti-immigrant racists who have begun to bellow about the referendum.
Unfortunately, despite this being the third time The Irish Times has censored a comment of mine, I haven’t yet learned to keep a copy of what I submit to them. But it said, roughly, that Waters is right; that the referendum is about a transfer of parental authority/responsibility for protecting their children to the state and other agencies; that it does not confer a single, legally enforceable right on any child and that no undertakings of any sort have been given to provide extra funding and supports for the dire state of child protection services which would have to be a cornerstone of any meaningful rights-based legislation. Even if it was a good idea, which it is not, what use is more power for social workers in a situation where they are already on their knees from overwork and are unable to protect children already known to be at risk? Are we going to seriously hamper the existing constitutional protection that children have in favour of a system which sees so many children inexplicably and unaccountably dead and/or missing? Madness. Also, and most worryingly, the ammendment wording does not include a whisper of an increase in a legally enforceable duty of care or accountability of the state and its agencies for failures.
The comment also included a link to a letter that was published in The Irish Examiner (might this be the problem?), which asks for Irish people to be vigilant about politicians playing politics with children’s rights. When I spotted that comments submitted after mine had been allowed, I posted a reminder/request to the moderators yesterday to find out what had happened to my post – to no avail. Today I see that they have, in their wisdom, decided to close the thread completely to any further comment. Is the Children’s Rights Referendum unworthy of public discussion? There are only 6 comments on the thread. Why do other pieces carry umpteen pages of comments and remain open for weeks after they are published?
MEDIABITE 
Your comments are right on the mark. It seems that, the attempt by Barnardo’s to force a change to the Constitution having failed in 2007 (including an ad campaign that was banned by the ASA), the All-Party Committee has taken on the mantle of fronting the move to weaken Constitutional rights. It should be noted that a key feature of Barnardo’s proposed wording was the granting of greater powers to the State to “intervene,” and the removal of the Constitution’s reference to natural, immutable rights.
The latter aspect, in my view, is even more important; Article 40 is based on the natural rights tradition, which holds that human beings have essential rights, which cannot be prescribed or mitigated. Barnardo’s proposal, crucially, would have done away with this in favour of rights to be decided by lawyers and judges, which is madness.
Has the proposed wording for the referendum been made public? I would not be too surprised if the All-Party Committee’s proposals bore a striking resemblance to the Barnardo’s wording in the second aspect I mentioned.
There’s a good discussion at this link – with links to wording and other information.
http://www.politicalworld.org/showthread.php?t=291&highlight=children%27s+rights+referendum
Having read the proposed wording, I am struck by two points. The first is the sneaky qualification to the proposed replacement for the existing Article 42.
Proposed Article 42.1.2: “The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.”
“As far as practicable” is a vague, legalistic disclaimer, allowing the State to deny in the same gesture what it pretends to affirm. If it’s not “practicable”, i.e., if the State claims not to have the resources to uphold the natural and imprescriptable rights of children, then nothing doing.
The implications of this qualification should not be downplayed. This wording undermines the commitments given in the rest of the text, meaning that the Supreme Court is essentially hobbled in its ability to order the State to commit greater resources generally, or to live up to its phraseology in particular cases.
The second point concerns a dramatic new addition to the text: the appearance, seemingly from nowhere, of a State commitment to facilitating adoption within the text of the Constitution itself. So important did the All-Party Committee consider this point that it is expressed in two separate paragraphs, 42.4 and 42.5. Not only can a child now be adopted from its legal guardians on notably vague pretexts (42.5) but any child can potentially be adopted (42.6). “Voluntarily”, of course, in the latter case, whatever that means – it simply isn’t defined. This is what I would call Barnardo’s key contribution to the wording; the disgraceful history of that organisation should have sounded some alarm bells with commentators, but apparently that hasn’t happened. What we have in these paragraphs is a proposal to enshrine the rights of the adoption industry into the country’s key legal document.
As a final note, it is revealing that none of our political worthies who express themselves greatly concerned about the rights of children have demanded robust legislation to uphold the rights of children protected in the existing text. The drafting and implementation of such legislation would be a simple matter, one would have thought, given such cross-party support for its object. But there hasn’t been any talk of that.
Is the contention that the Constitution has somehow tied the State’s hands, preventing it from exercising its boundless goodwill on behalf of children? I have no doubt that that is the contention of the All-Party Committee, as it is implied in their mission statement on this issue. I have yet to come across a convincing case to this effect; indeed, I have yet to come across any case for it, full stop.
The sentence:
“So important did the All-Party Committee consider this point that it is expressed in two separate paragraphs, 42.4 and 42.5”
should of course read,
“So important did the All-Party Committee consider this point that it is expressed in two separate paragraphs, 42.5 and 42.6”
Apologies for the erratum. If you could edit accordingly and delete this comment I’d appreciate it.