Children's Referendum 10th November

seamus

Glinda wrote: »

Lots of them say they won't vote at all this time, for that reason.

I'm not sure I understand what you're trying to say here. It's a secret ballot, why would people not vote because their vote happens to tie in to what certain organisations are voting?

Or are you saying that these people are concerned enough about the reputation of those on the "No" side, that they're unsure of which way to vote?

I do agree to a certain extent, that there is quite a bit of silence on this, no doubt partially in the assumption that it will just go through. There may also be balance factors in it too though - as RTE noted, it's been very difficult to find "No" represenstatives so that a balance debate can be had. In the absence of an opposing side, there is no debate, so there is silence.

There's a month to the referendum, I would expect to see informational leaflets and discussion starting in the next two weeks. If there isn't, then that's regrettable because many people will abstain from voting because they don't know anything about the issues.

The State's record in caring for children in its care is truly appalling. On a case by case basis, I suspect it has a far worse record than parents do.

That's nearly impossible to say. By definition, a child in state care has ended up there because its parents have failed. So at the purest definition, children in state care have parents with a 100% failure record, but the state doesn't have a 100% failure record, therefore the state has a better record than those parents.

In reality that's a nonsense argument too, it's far more complex than that. Ignoring the issues pre-1990 (as the abuse of children in care was a failure across many areas of society, not just governmental organs), there are no figures for an objective comparison.

Like I say, children who end up in state care are by definition extremely vulnerable and probably victims of severe abuse and neglect. So figures for "X children missing" and "Y children have died", have to be looked at in the sense that many of these children (especially those over ten) already have drink & drug problems, on top of criminal records, before they enter state care.
Absconding from care or dying isn't a result of the state making that child's life worse, simply a case of the state not effecting any overall improvement in that child's life.

The last report on this matter identified one major factor - the majority of those "children" who died or absconded from state care ("missing" is the wrong word) were teenagers. That is, they had been picked up by the state after the damage had already been done. I don't think it needs to be said that rescuing a child who is already mired in drugs, alcohol and crime is an exceptionally difficult task.
By contrast, children under ten fared much much better. The primary problem identified by the report was the difficulty in getting to children when they were young. In most cases, by the time the state was finally given control of the child, that child was already 90% lost.

So the issue of state care is far more complex than, "The state has a poor record". In comparison to the general population, the record is appalling. In comparison to the population of failed parents, the record is outstanding.

Really the issue with state care is the fringe cases. There's no argument that the state needs to take a child out of a family that presents a serious danger to them. And there's no argument that where a child is in a good family, they should be left alone.
Really the issue is families on the line, children "at risk". These would be cases where perhaps the family are provided for, but one parent on occassion gets stociously drunk and leaves the children in a dangerous situation. If you play it safe, you leave children in potentially dangerous situations in order to avoid accidentally taking away children who are not at risk. If you play it tough, then you risk accidentally taking away children who are not risk, in order to ensure you capture those children who are at risk.

From what I can see it boils down to one question:

Is it better that one child is left with a dangerous family so that another isn't accidentally taken away, or is it better to accept that you will accidentally take one child away, knowing that another child who is at risk will be taken away?

In effect, giving the government a little more power in this regard is the latter.

Personally I see no problem with a child being accidentally taken away. It's not a permanent thing, with minimal impact on the child or their family - briefly distressing, sure, but no long-term problems.
On the other hand leaving a child in a dangerous family because you're trying to play it safe, has long-term damaging implications for that child.

It's a no-brainer IMHO.

I also don't agree with asking children in conflict situations to give their opinion on which parent they prefer.

That's a very simplistic way of looking at it. The constitution allows that the child's opinion on any matter relating to them will be given due consideration for their age and maturity. Nobody is going to sit a 4 year old child in front of a judge and ask, "Do you love Mummy more, or Daddy more?".

ciarafem

Came across a great critique of the wording of the proposed amendment.

Essential reading for anyone planning to vote on November 10th

http://www.scribd.com/doc/109500011/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

Ozymandius2011

Moderators can we have a poll on this?

rolly1

ciarafem wrote: »

Came across a great critique of the wording of the proposed amendment.

Essential reading for anyone planning to vote on November 10th

http://www.scribd.com/doc/109500011/Legal-Analysis-of-Children-s-Rights-Ref-Proposal

Excellent in depth analysis of the wording itself. This amendment may well end up pitting children against parents, with the courts intervening to deal with parent/conflict outside of those ‘exceptional’ situations to which Article 42.5 of the Constitution currently applies.

From the analysis:

Therefore, the amendment introduces a new dimension to law in that it provides explicitly and for the first time that children’s rights are justiciable even when the family unit is intact and fully functioning.

It apparently does so by giving children specific rights without parents having any specific rights other than indirectly arising from Arts. 41 and 42, so that the courts could be routinely intervening between parents and children in order to determine what parents must allow their children to do.

The analysis seems to suggest that it is likely to bring about a fundamental change in Irish society that is much broader in scope than the simplistic children’s ‘rights’ rhetoric of some commentators.

It also points out that parents are explicitly excluded from taking action against the State even when the State gets it wrong in any individual case arising out of intervention by the State.

If this analysis is accurate and truthful it is truly shocking stuff that we are being hoodwinked into.

oppenheimer1

Scofflaw wrote: »

Finding it hard to see where the core opposition to this is going to come from, other than groups who don't think it goes far enough.

Perhaps it'll be opposed by those who believe the State has no business interfering in family life - that is, bar upholding the sanctity of marriage by preventing gay people doing it and enforcing divorce restrictions, upholding the sanctity of pregnancy by outlawing abortion, and so on.

a little cynically,
Scofflaw

I would think that opposition could come from the fact that this referendum really doesn't give any rights to children. The actual rights children will have will be conferred by the Supreme Court. This is the bills greatest weakness - what children are getting should be spelled out exactly.

Ozymandius2011

I was leaning towards a "Yes" having listened to a debate between Kathy Sinnott and Olivia O'Leary. My concerns as explained earlier relatedd to the phrase "imprescriptible rights". However, it turns out that phrase is already in the Constitution, and Sinnott was claiming this amendment would reduce these rights by making them subject to proportionality.

But now I'm leaning to a "no" again, as it turns out this phrase in the existing Article 41.1. arefer to the imprescriptible rights of the family - not the child specifically. I do not want to see a situation where the courts could prevent parents exercising proportionate punishment of unruly children engaged in anti-social behaviour. I often wondered where the parents were when neighbour's children would break my windows and smash my motorbike some years ago, costing me a fortune to repair.

I can see no practical reason to vote yes to this.

Though I suppose it's easier than having an abortion referendum.

ciarafem

seamus wrote: »

Personally I see no problem with a child being accidentally taken away. It's not a permanent thing, with minimal impact on the child or their family - briefly distressing, sure, but no long-term problems.
On the other hand leaving a child in a dangerous family because you're trying to play it safe, has long-term damaging implications for that child.

It's a no-brainer IMHO.

But what about the situation where the accidental removal is permanent, with the state not allowing the child to be re-united with its parents. The state institutions have a poor record in acknowledging errors. The HSE refused to let the Inquiry team have access to records of children who died in care, using the in camera rule as an excuse. Emergency legislation had to be passed to overcome this objection.

rolly1

seamus wrote: »

Personally I see no problem with a child being accidentally taken away. It's not a permanent thing, with minimal impact on the child or their family - briefly distressing, sure, but no long-term problems.
On the other hand leaving a child in a dangerous family because you're trying to play it safe, has long-term damaging implications for that child.

It's a no-brainer IMHO.

Yeah Id say it was a no brainer for the Webster family too..

A Norfolk couple who lost their bid to overturn adoption orders on three of their children have pledged to continue their legal challenge.
Senior Appeal Court judges accepted Mark and Nicky Webster may be right in thinking they had suffered a miscarriage of justice.
But they said it was not in the interests of the children to set aside the adoption orders.

seamus wrote: »

That's a very simplistic way of looking at it. The constitution allows that the child's opinion on any matter relating to them will be given due consideration for their age and maturity. Nobody is going to sit a 4 year old child in front of a judge and ask, "Do you love Mummy more, or Daddy more?".

No they will sit a 10 year old in front of him and ask him/her "do you want to live with Mammy or Daddy?" Or they will carry out a predictive value - laden psychological assessment where Parental Alienation, where one parent turns the child against the other, is completely ignored so the voice of the child becomes in fact the voice of the alienating parent.

Yeah you are absolutely right, nothing to see here folks, move along now quietly. Don't debate this issue just vote so the state agencies and judiciary can decide our children's best interest in secret with zero accountability; they are after all completely trustworthy aren't they?

mariebeth

seamus wrote: »

Personally I see no problem with a child being accidentally taken away. It's not a permanent thing, with minimal impact on the child or their family - briefly distressing, sure, but no long-term problems.
On the other hand leaving a child in a dangerous family because you're trying to play it safe, has long-term damaging implications for that child.

While I agree with most of your argument, on this point I have to totally disagree. Children naturally form attachments to their primary caregivers, no matter how lacking those caregivers are. And separation, whether brief or prolonged, for whatever reason, be it accidental or based on proven concerns, can have a detrimental long term effect on a child's overall emotional development, impacting on their future lives, not just the present. As a result, the current international model of best practice in child welfare cases is to provide support to families, with the aim of keeping the child in the family, rather than removing them from their primary attachment figures unless there are strong concerns that the child is at risk of being physically harmed or sexually assaulted by their primary caregivers. When children do have to be removed from the home, the next best option for the child is for it to be placed in a home with relatives if possible, or in the area, so that their schooling and social relationships are not disrupted also.

On this point, voting 'no' to the referendum will change nothing for children in Ireland. It is my hope [however misguided that hope may be] that passing the referendum would set some groundwork for responsible, level headed bodies of people to use the basis of the amendment and the basis of the UN Convention on the Rights of the Child to argue for increasing the numbers of social workers in the country, and introducing 24 hour access to social workers nationwide, in order to begin providing family supports in all communities in order to prevent the situations where children might need to be removed from their families or situations where children fall through the cracks because there are simply too few social workers and too many cases to get through.

I would also hope that it might provide framework to argue that the government needs to provide public funding to creche's and pre-schools in order to reduce costs for working parents, and increase salaries for those working in childcare in order to attract staff with higher levels of education and encourage upskilling in order to improve levels of childcare around the country and make it more accessible for all parents.

And finally I would hope that it would allow for bodies to argue on behalf of children with special needs and their families. The services in this country are shocking, early intervention isn't happening early enough for a lot of children unless parents go privately to seek diagnosis and treatment. Access to SNA's and the numbers of resource teacher hours are being cut, which is going to lead to more children falling through the cracks caused by the system.

ciarafem

mariebeth wrote: »

While I agree with most of your argument, on this point I have to totally disagree. Children naturally form attachments to their primary caregivers, no matter how lacking those caregivers are. And separation, whether brief or prolonged, for whatever reason, be it accidental or based on proven concerns, can have a detrimental long term effect on a child's overall emotional development, impacting on their future lives, not just the present. As a result, the current international model of best practice in child welfare cases is to provide support to families, with the aim of keeping the child in the family, rather than removing them from their primary attachment figures unless there are strong concerns that the child is at risk of being physically harmed or sexually assaulted by their primary caregivers. When children do have to be removed from the home, the next best option for the child is for it to be placed in a home with relatives if possible, or in the area, so that their schooling and social relationships are not disrupted also.

On this point, voting 'no' to the referendum will change nothing for children in Ireland. It is my hope [however misguided that hope may be] that passing the referendum would set some groundwork for responsible, level headed bodies of people to use the basis of the amendment and the basis of the UN Convention on the Rights of the Child to argue for increasing the numbers of social workers in the country, and introducing 24 hour access to social workers nationwide, in order to begin providing family supports in all communities in order to prevent the situations where children might need to be removed from their families or situations where children fall through the cracks because there are simply too few social workers and too many cases to get through.

I would also hope that it might provide framework to argue that the government needs to provide public funding to creche's and pre-schools in order to reduce costs for working parents, and increase salaries for those working in childcare in order to attract staff with higher levels of education and encourage upskilling in order to improve levels of childcare around the country and make it more accessible for all parents.

And finally I would hope that it would allow for bodies to argue on behalf of children with special needs and their families. The services in this country are shocking, early intervention isn't happening early enough for a lot of children unless parents go privately to seek diagnosis and treatment. Access to SNA's and the numbers of resource teacher hours are being cut, which is going to lead to more children falling through the cracks caused by the system.

The referendum will not bring about any change in support services for families in need - I agree with the hierarchy of solutions to families in trouble, by the way.

Just as during the Industrial and Reformatory Schools area the State dumped the problems onto the religious orders. Today it is dumping them onto the overworked social workers who can't cope and make errors of judgement frequently as a result.

The referendum will make things worse by raising the barrier for intervention because of very woolly and vague wording. This will worsen the damage currently being done, particularly to single mothers from socially deprived background, in the lower courts of summary justice which are secret courts. Secret implies something to hide. Do you know what goes on there? I don't but I suspect that it's bad.

rolly1

mariebeth wrote: »

While I agree with most of your argument, on this point I have to totally disagree. Children naturally form attachments to their primary caregivers, no matter how lacking those caregivers are. And separation, whether brief or prolonged, for whatever reason, be it accidental or based on proven concerns, can have a detrimental long term effect on a child's overall emotional development, impacting on their future lives, not just the present. As a result, the current international model of best practice in child welfare cases is to provide support to families, with the aim of keeping the child in the family, rather than removing them from their primary attachment figures unless there are strong concerns that the child is at risk of being physically harmed or sexually assaulted by their primary caregivers. When children do have to be removed from the home, the next best option for the child is for it to be placed in a home with relatives if possible, or in the area, so that their schooling and social relationships are not disrupted also.

Absolutely agree. This view has also been publicly expressed by Eric Plunket, former Social Worker with 35years experience in the area see here.However he doesn't see the issue being a problem with the constitution or indeed the extension of adoption, he identifies the systems failures within bodies such as the HSE as being the main roadblock towards looking after the welfare of these children:

The problem of stability for children in care will not be resolved by extending the availability of adoption. Instead, the solution lies in accurate identification of children’s needs and supporting them and their carers in meeting the challenges which that poses. The HSE has extensive powers of intervention. If there is a problem affecting the stability of children in care, it is that those powers are applied inconsistently and sometimes to an inadequate standard......The present legal position under the Adoption Act 1988 allows the adoption of children without the consent of married parents when a court determines they have been abandoned. The test for abandonment is high and rightly so. If it cannot be established, then parental contact exists and the focus should be on promoting rather than extinguishing it. This balances both parents’ and their children’s rights to know and have a relationship with each other.
There is no evidence that adoption provides greater stability for children who have suffered adversity. Widening the threshold for adoption may simply reduce the cost of providing for children in care while doing nothing to meet their needs.

In addition nothing in this referendum strengthens the best practice model; blood relatives, including grandparents, are given no special legal position with regard to fostering/adoption, local area is not mentioned and neither is continuity re schooling. All we have got is the vague term called the "best interest of the child" which is not defined, measureable or tested to see if it positively impacts on the child.

mariebeth wrote: »

On this point, voting 'no' to the referendum will change nothing for children in Ireland.

And voting yes will absolutely ensure for at least a generation that these issues are not addressed either.

mariebeth wrote: »

It is my hope [however misguided that hope may be] that passing the referendum would set some groundwork for responsible, level headed bodies of people to use the basis of the amendment and the basis of the UN Convention on the Rights of the Child to argue for increasing the numbers of social workers in the country, and introducing 24 hour access to social workers nationwide, in order to begin providing family supports in all communities in order to prevent the situations where children might need to be removed from their families or situations where children fall through the cracks because there are simply too few social workers and too many cases to get through.

I would also hope that it might provide framework to argue that the government needs to provide public funding to creche's and pre-schools in order to reduce costs for working parents, and increase salaries for those working in childcare in order to attract staff with higher levels of education and encourage upskilling in order to improve levels of childcare around the country and make it more accessible for all parents.

If you read the earlier analysis you will see that these aspirations are misguided. The wording of the referendum ensures that the state is protected against litigation for failing in it's duty towards children,
in the proposed wording under section 4.1 it states the following:

4.1°
Provision shall be made by law that in the resolution of all proceedings i
brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii
concerning the adoption, guardianship or custody of, or access to, any child,the best interests of the child shall be the paramount consideration.

The legal analysis of this wording states the following on the state's liability towards children(BIC=Best Interest of the Child):

Finally, and anomalously, this clause explicitly excludes

proceedings brought against the state

from the list of proceedings that are to have the BIC as the paramount consideration.In fact, the state is one of the primary offenders in relation to the welfare of children. This clause seeks to insulate them from litigation that could otherwise be taken in order to compel them to implement Children First, or to seek remedies on behalf of children who have died, or been raped and abused and/or neglected in state care. If this is not merely a drafting oversight, it tends to indicate that the state is not primarily interested in securing the BIC, but only in doing so when it will not have to bear the responsibility for doing so. It seems to be quite a hypocritical position.

The Irish Council for Civil Liberties have also highlighted another anomaly with the wording whereby the voice of the child will NOT be heard when the child is litigating against the state:

However, the rights watchdog noted that the scope of the best interests principle and the requirement to hear the voice of the child are more narrowly drawn than in the recommendations produced by the Joint Committee on the Constitutional Amendment on Children over two years ago.
Mr Kelly said:
“The O’Rourke Committee recommended the inclusion of the 'right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity'. However, Frances Fitzgerald’s wording appears to restrict the right of child to have his / her voice heard to proceedings brought by the State. Is the Minister really proposing that children should be seen but not heard in proceedings brought against the State and its agencies?”

mariebeth wrote: »

And finally I would hope that it would allow for bodies to argue on behalf of children with special needs and their families. The services in this country are shocking, early intervention isn't happening early enough for a lot of children unless parents go privately to seek diagnosis and treatment. Access to SNA's and the numbers of resource teacher hours are being cut, which is going to lead to more children falling through the cracks caused by the system.

The above separate and independent analysis of the wording shows that this is highly unlikely to be the outcome if passed. Apart from this, I think it is naive to believe a government which is daily flying budgetary kites which will negatively impact on children's lives will somehow compel themselves through constitutional change to look after the welfare of children. Kathy Sinnott, a person so hugely outspoken on the issue of children with special needs, is vociferously against this amendment.

Glinda

seamus wrote: »

I'm not sure I understand what you're trying to say here. It's a secret ballot, why would people not vote because their vote happens to tie in to what certain organisations are voting?

Or are you saying that these people are concerned enough about the reputation of those on the "No" side, that they're unsure of which way to vote?

I am saying that their instinct is to vote no based on worries about the wording, but when they see that this would place them in an isolated group, away from their peers, in the company of people they generally consider to be loonies and cranks, they are confused. The easiest way to deal with this is to do nothing, i.e. not vote because it is all too head-wrecking.

soulvoice

I've been researching for the past week - having suddenly asked myself the question 'do i trust a government who put banks before people to change our constitution to protect our children?' No, i don't.

The first thing i found is that the constitution as it stands does protect the child and the family - the proposed amendments simply takes away the parental rights, make parents caregivers and destroys the family rights.

I found this link very informative and eye opening- it has been pasted previously in this thread - 10 reasons to vote no
http://www.aps.ie/page8.php

This video is short and concise- Truthful Irish: The children's rights referendum
http://www.youtube.com/watch?v=3Y0sHd-EpCQ

This video definitely falls into what some on this thread would label the 'loony' category- It is UK based and If its true we've definitely entered a science fiction reality. Our constitution as it stands would protect us from the subjects raised in this video. Brian Gerrish- Child stealing by the State
http://www.youtube.com/watch?v=2K8ea1kMN74

Finally this site- if you scroll down to 'Maggie Tuttle’s Referendum NO vote Speech from “The UK End Child Abuse March & Rally, Trafalgar Square Saturday September the 29th 2012.” It adds some weight also to the reality that families are being broken apart- UK residents have being taking refuge in Ireland for the last fifteen years.
http://www.freethinkingvoice.org/index.php/irelands-childrens-rights-referendum-campaign

There is so much information available- alot of which has unnerved me- i know now clearly which way ill be voting and hoping for a miracle that our constitution remains untouched.

Productive researching folks...

secman

I read the actual ammendment this morning and my initial first reaction was to vote NO, put simply I would not trust the state to look after a child bearing in mind their recent and more importantly their current history of looking after children. There are current laws and legislation to deal with parents and neglect, but are simply not used. The problem with this country is that too many laws are neglected. I will do more research but am more inclined at this stage to vote NO.

Secman

Hotblack Desiato

None of the above is a reason to vote no.
You should vote no if you think the amendment will make things worse. I don't see how that is the case.

As for the record of children ending up in care, if a teenager's behaviour is out of control and they are abusing drink/drugs and/or involved in serious crime then the outcome for them is sadly bleak no matter what is or isn't done. If these children had been helped at a much earlier stage it may not have come to that.

Sadly even though we were supposed to have abolished the concept of illegitimacy in our laws years ago, it's still in the constitution that the status of a child is different if their parents are married to each other.
It's still the case that neglectful or abusive parents can make it much much harder to have their kids taken into care by getting married.

This amendment puts marital and non-marital children on an equal footing before the law and that alone is a very good reason to vote Yes imho.

ciarafem

ninja900 wrote: »

None of the above is a reason to vote no.
You should vote no if you think the amendment will make things worse. I don't see how that is the case.

You should read this article in today's Irish Times http://www.irishtimes.com/newspaper/opinion/2012/1031/1224325936152.html

If the amendment is passed, it will further marginalise some of the most vulnerable and disadvantaged people in Irish society, including victims of domestic violence, people with addiction/psychiatric difficulties, prison populations and the homeless.

As regards illegitimacy that is covered by Art. 40.1 also - if there is a stigma it is a societal, not a constitutional, one

ninja900 wrote: »

Sadly even though we were supposed to have abolished the concept of illegitimacy in our laws years ago, it's still in the constitution that the status of a child is different if their parents are married to each other.

ninja900 wrote: »

It's still the case that neglectful or abusive parents can make it much much harder to have their kids taken into care by getting married.

That is not true because Art. 42.5 applies whether the parents are married or not.

42.5. 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.

ninja900 wrote: »

This amendment puts marital and non-marital children on an equal footing before the law and that alone is a very good reason to vote Yes imho.

They are already on an equal footing because of Art. 40.1

ALL children (who are citizens) are equal under the law as Article 40.1 of the Constitution makes clear:

40.1. All citizens shall, as human persons, be held equal before the
law.

Hotblack Desiato

ciarafem wrote: »

You should read this article in today's Irish Times http://www.irishtimes.com/newspaper/opinion/2012/1031/1224325936152.html

Would agree with him in relation to resources etc. - doesn't everyone? That is no reason to vote No.

As regards illegitimacy that is covered by Art. 40.1 also - if there is a stigma it is a societal, not a constitutional, one

It's not, marital children cannot legally be adopted at present. A non-adopted child has the right to see their original birth records, an adopted child does not. Those are just two examples off the top of my head.

You cannot interpret 'persons' as referring to adults and children equally, children do not have the full rights of adults e.g. voting or driving a car.

That is not true because Art. 42.5 applies whether the parents are married or not.

42.5 refers to putting children in care but not to adoption. There are some opinions saying that 42.5 doesn't place a higher barrier towards putting marital children into care, but whether that's true or not the HSE have taken that view.

They are already on an equal footing because of Art. 40.1

ALL children (who are citizens) are equal under the law as Article 40.1 of the Constitution makes clear:

What about 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.

...

3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

This has been interpreted in court as providing particular rights to marital families. The constitutional protections to the 'family' have been interpreted as referring only to marital families.

ciarafem

ninja900 wrote: »

It's not, marital children cannot legally be adopted at present.

Yes they can - see subsection 2, section 54 2010 Adoption Act

ninja900 wrote: »

You cannot interpret 'persons' as referring to adults and children equally, children do not have the full rights of adults e.g. voting or driving a car.

Citizens can be babies children, teenagers, elders or adults. Children are not adults and Art. 40.1 recognises this. They are in a state of dependency for some years. The Constitution prefers parents to third parties such as the HSE when children need to be looked after and cared for, as Judge Adrian Hardiman pointed out

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.

ninja900 wrote: »

42.5 refers to putting children in care but not to adoption. There are some opinions saying that 42.5 doesn't place a higher barrier towards putting marital children into care, but whether that's true or not the HSE have taken that view.

Here's what 42.5 says - it doesn't refer to either 'care' or 'adoption'

42.5. 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.

ninja900 wrote: »

What about Article 41

This has been interpreted in court as providing particular rights to marital families. The constitutional protections to the 'family' have been interpreted as referring only to marital families.

Art. 41 simply recognises the established empirical evidence from numerous studies in the social sciences that the best outcomes for children emanate from the married family - that's all. It doesn't discriminate against children from other family types because of Art. 40.1.

Boulevardier

"Art. 41 simply recognises the established empirical evidence from numerous studies in the social sciences that the best outcomes for children emanate from the married family - that's all."

How so? Article 41 was written long before anyone looked for "empirical evidence."

The empirical evidence also states that numerous married families have treated their children with appaling brutality. That, of course, is precisely why this amendment is necessary.

ciarafem

Boulevardier wrote: »

"Art. 41 simply recognises the established empirical evidence from numerous studies in the social sciences that the best outcomes for children emanate from the married family - that's all."

How so? Article 41 was written long before anyone looked for "empirical evidence."

The empirical evidence also states that numerous married families have treated their children with appaling brutality. That, of course, is precisely why this amendment is necessary.

Article 41 is consistent with the body of research from the social sciences that confirms the intact married family as being better with respect to outcomes for children. eg http://130.102.44.246/login?auth=0&type=summary&url=/journals/demography/v043/43.3brown.pdf

"Numerous married families have treated their children with appalling brutality" Really? Evidence please.

GCU Flexible Demeanour

Boulevardier wrote: »

The empirical evidence also states that numerous married families have treated their children with appaling brutality. That, of course, is precisely why this amendment is necessary.

Nonsense. The Constitution already provides that marital children can be taken into care if abused.

There is simply no need for this Amendment. And the default position in any referendum is "No". There needs to be a substantial positive reason for voting "Yes".

Boulevardier

Oh come on. There are countless accounts of children treated badly by their families; everything from beatings by fathers (with Mothers too scared to do anything) to family murder-suicides. The majority of these are in married families.

In any case, idealising any particular kind of family structure is not going to work in the 21st century. The day of the patriarchal nuclear family is over, thank God.

Annasopra

GCU Flexible Demeanour wrote: »

Nonsense. The Constitution already provides that marital children can be taken into care if abused.

There is simply no need for this Amendment. And the default position in any referendum is "No". There needs to be a substantial positive reason for voting "Yes".

I haven't seen any substantial or rational arguments against this referendum at all.

ciarafem

mango salsa wrote: »

I haven't seen any substantial or rational arguments against this referendum at all.

Here's two for you:

http://www.scribd.com/doc/109280995/Legal-Analysis-of-Children-s-Rights-Ref-Proposal
http://www.thejournal.ie/readme/no-campaign-childrens-referendum-649534-Oct2012/

Annasopra

ciarafem wrote: »

Here's two for you:

http://www.scribd.com/doc/109280995/Legal-Analysis-of-Children-s-Rights-Ref-Proposal
http://www.thejournal.ie/readme/no-campaign-childrens-referendum-649534-Oct2012/

I've read them.

They are still not in anyway substantial or rational.

Hotblack Desiato

ciarafem wrote: »

Yes they can - see subsection 2, section 54 2010 Adoption Act

That's a very high bar.
I should have said though that what I was thinking of was voluntary adoption, afaik it is not possible for a married couple to volutarily give their children up for adoption and the bar for involuntary adoption is very high.

Citizens can be babies children, teenagers, elders or adults. Children are not adults and Art. 40.1 recognises this. They are in a state of dependency for some years. The Constitution prefers parents to third parties such as the HSE when children need to be looked after and cared for, as Judge Adrian Hardiman pointed out

Don't we all, problem is that parents do not always act in the best interests of the child.

Here's what 42.5 says - it doesn't refer to either 'care' or 'adoption'

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.

The state to 'supply the place of the parents' is clearly referring to making care arrangements for the child other than leaving it in the care of its parents.

Art. 41 simply recognises the established empirical evidence from numerous studies in the social sciences that the best outcomes for children emanate from the married family - that's all. It doesn't discriminate against children from other family types because of Art. 40.1.

Nonsense, it recognises nothing of the sort because no such research was available at the time that article was written.
Do you really believe that children in non-marital families have poorer outcomes? Please do elaborate on what you mean by this.
What is the relevance of this referendum to families whether marital or non-marital, which are NOT failing in their duty of care to their children? I would contend zero.
It appears to me that you are trying to set the amendment up as being some sort of attack on the marital family.

bajer100

This thread is nonsense. I doubt if anyone who has contributed has actually appeared in the family courts. I'm a fairly well educated bloke who has been in and out of Dolphin house over the last couple of years. I have had a good legal team. It's a nightmare. I've read this proposed amendment - IMO, it's nonsense. If they decide - ill educated social workers will have more power to take away my child and put her up for adoption in a decision made in a secret court. I would love to tell you about my previous experiences in the district court - but I can't! That's illegal.

Children's right's my arse.

GCU Flexible Demeanour

mango salsa wrote: »

I haven't seen any substantial or rational arguments against this referendum at all.

Ah, not another one.
The onus is on the "Yes" side to produce positive reasons for supporting this referendum. You don't just change the Constitution for the fun of it.

ninja900 wrote: »

... afaik it is not possible for a married couple to volutarily give their children up for adoption

And why would you expect there's a need to provide for married couples volunteering their children for adoption? It's a bizarre concept.

And why the fixation with adoption? Adoption is a practice that's dying out for reasons that have nothing to do with marital children. There's plenty of non-marital children in long-term foster care, but very few adoptions at all other than cases where the natural mother and her husband decide to adopt her child.

People still seem to have this 1950s mindset about adoption.

ninja900 wrote: »

... Don't we all, problem is that parents do not always act in the best interests of the child.

And that problem is already well provided for by the Constitution, as proven by relevant case law. Both martial and non-marital children are protected from abusive or neglectful parents.

RandomName2

I was seriously confused for a while in relation to this amendment;

There was a lot of talk of how it would give children a political voice, where previously they could be ignored; that some sort of ombudsman for children to represent them would be instituted. There are lots of posters around saying children should be "heard as well as seen".

Another much vaunted aspect of the legislation was the prevention of the sort of abuses that were perpetrated by the Church and state over the several decades following the country's independence. The posters claiming "protecting childhood starts here", seem to be a nod in this direction.

The above is complete BS - I mean absolutely nothing to with, and not in any way related to the proposed amendment.

But I'm confused about the actual legislation as well; namely the aspects specifying that children have rights, and that children can be adopted regardless of the martial status of their parents.

In the constitution all citizens have rights. Children are citizens. Ergo all children have the rights of citizens - there is no requirement to single out any particular section of society. What, we need an amendment to specify that all adults have rights, that all mentally and physically disabled have rights, and that the elderly have rights too?

In relation to adoption; the constitution currently doesn't make any declaration concerning martial status at all. It just says where parents fail, "appropriate means shall endeavour to supply the place of the parents". If there is no constitutional block on this bar on adoption of married couples' children, why not introduce legislation to address this instead of constitutional change, as suggested by John Waters.

Boulevardier

I think it is generally accepted that adoption of children of married couples is almost impossible under the constitution as at present. I am not a lawyer and can't prove that, but I do know that that is an almost universal view among those who know.

People who say that this referendum is unnecessary need, in my opinion, to explain why they think this referendum is being put to the people if that is so.

GCU Flexible Demeanour

Boulevardier wrote: »

I think it is generally accepted that adoption of children of married couples is almost impossible under the constitution as at present. I am not a lawyer and can't prove that, but I do know that that is an almost universal view among those who know.

Why is there this fixation over adoption? Do people really not know that adoption is dying out, for reasons that have nothing to do with the Constitution and everything to do with not having the sweep it under the carpet culture of the 1950s. Allow me to present the evidence

GCU Flexible Demeanour wrote: »

.... 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.

Hardly anyone, whether marital or non-marital child, is adopted these days. Do people really still have some picture that it's normal to say "We'll pretend the child is ours, and never speak of this unpleasantness again"?

Boulevardier wrote: »

People who say that this referendum is unnecessary need, in my opinion, to explain why they think this referendum is being put to the people if that is so.

Why? That's a barmy suggestion. There is absolutely no obligation whatsoever on "No" voters to state whether or not they want to give Fergus Finlay a character reference. The last time we'd a similar level of political consensus was the night of the Bank guarantee. Do we have to account for their motivation, too?

Seriously, if you can't think of a valid reason for voting yes, you should be voting no. End of.

Annasopra

I've read a huge amount of the no arguments and I am still see no valid reason at all to vote no. There is a lot of scaremongering, shouting, conspiracy theories, extreme libertarianist reasons but none of them are valid or rational.

Ozymandius2011

The amendment states that a child can be removed from their parents if they have 'failed in their duty'. Who decides whether such a failure has taken place? Social workers? Unelected judges? Politicians even (remember the recent intervention reported in the Independent alleging political interference in a family law case)? Suppose a child is obese and the authorities decide the parents have failed in their duty not to feed the child too much. Can they then take the child away? Is this the sort of Nanny-State we want?

GCU Flexible Demeanour

mango salsa wrote: »

I've read a huge amount of the no arguments and I am still see no valid reason at all to vote no. There is a lot of scaremongering, shouting, conspiracy theories, extreme libertarianist reasons but none of them are valid or rational.

I doubt that you have, because they're haven't been a huge amount of no arguments. You're just ranting.

Ranting, incidently, in a context where no-one seems capable of advancing even one sound reason in favour of this proposal.

Again, you don't need a reason to vote No. You need a reason to vote Yes. If you've no reason to vote Yes, you must vote No. Nothing else makes sense.

Hotblack Desiato

RandomName2 wrote: »

In the constitution all citizens have rights. Children are citizens. Ergo all children have the rights of citizens - there is no requirement to single out any particular section of society. What, we need an amendment to specify that all adults have rights, that all mentally and physically disabled have rights, and that the elderly have rights too?

Stating that all citizens have equal rights is all well and good but some such as children are particularly vulnerable and in need of protection well above and beyond the need of the average adult.
Maybe we should have a similar referendum on behalf of the disabled, or elderly, but that's not the question we're voting on now.

In relation to adoption; the constitution currently doesn't make any declaration concerning martial status at all. It just says where parents fail, "appropriate means shall endeavour to supply the place of the parents". If there is no constitutional block on this bar on adoption of married couples' children, why not introduce legislation to address this instead of constitutional change, as suggested by John Waters.

Other articles provide strong protections to the integrity of the family and the courts have interpreted these as applying only to marital families, hence the two-tier system we still have, 30 years after illegitimacy was supposed to have been abolished. The integrity of the family is great provided the family is acting in the best interests of the child. I don't care if their married or not, gay or not, if they're providing a loving and caring family.

Annasopra

GCU Flexible Demeanour wrote: »

I doubt that you have, because they're haven't been a huge amount of no arguments. You're just ranting.

Ranting, incidently, in a context where no-one seems capable of advancing even one sound reason in favour of this proposal.

Again, you don't need a reason to vote No. You need a reason to vote Yes. If you've no reason to vote Yes, you must vote No. Nothing else makes sense.

I'm not ranting at all.

Take last nights debate on TV3 - you had John Waters shouting down the opposition and TV3 having to apologise because his comments were potentially defamatory. He also completed misinterpreted a legal opinion from Conor Kelly in UCC.

ciarafem

mango salsa wrote: »

I'm not ranting at all.

Take last nights debate on TV3 - you had John Waters shouting down the opposition and TV3 having to apologise because his comments were potentially defamatory. He also completed misinterpreted a legal opinion from Conor Kelly in UCC.

It is Conor O'Mahony that I think you are referring to. I would suggest you consider carefully the implications of what Dr. O'Mahony said in his legal opinion:

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.

I suspect that a neutral observer might well conclude that the amendment will bring about a major restructuring of the balance between parents and children in intact and functioning families.

Dr. O'Mahony clearly thinks so. http://www.humanrights.ie/index.php/2012/10/23/legal-analysis-of-the-childrens-referendum-article-42a-1/

Annasopra

What is wrong with the state having a constant obligation and duty to protect and vindicate childrens rights?

Ozymandius2011

mango salsa wrote: »

What is wrong with the state having a constant obligation and duty to protect and vindicate childrens rights?

Nothing provided it is clearly defined what that means. I don't trust the first paragraph because it is too vague and aspirational, meaning unelected and possibly activist judges will decide what it means, as happened in the 1992 X-Case.

Annasopra

http://jme.bmj.com/content/28/3/136.full

This article about the PKU case is an excellent analysis of what is wrong in Ireland with the constitution and why it needs to be changed.

Here

A troubling aspect of the case is, however, precisely its focus on parental rights—being negative rights against the world in general4—rather than the question of parental responsibilities towards their children. For example, the ruling makes it clear that there is no obligation necessarily to act in a child's best interests. Instead, it would seem, the obligation is not to act manifestly against those interests, and this is a very different kind of duty. It can be contrasted with the position in the United Kingdom, where the limits of parental authority are firmly set around the concept of acting in a child's best interests. Any conduct which is not within these parameters is outside the authority of parents, and, for that matter, the courts. A much lower threshold is established in Ireland—parents can act howsoever they wish towards their children so long as it is not manifestly against the child's interests.

Despite this, the court's insistence that the essential issue was the paramountcy of the child's welfare sets up a conflict paradigm which it ultimately fails to resolve. If this is truly the kernel of the matter then it is a question of the limits of the respective rights and duties of parents and the state towards children within a family, balanced against the rights of the child as an individual in his own right and as a member of the family itself. While it may be easily accepted that family authority is superior to state authority under the terms of the constitution, this is far less contentious than the protection the constitution accords to family authority as against individual rights.

“The family”—and by this is meant the parents—might be able to speak to the issue of what is right for the unit and its members as a collective, but can they also do so for their children in their capacity as individual citizens of the state? Undeniably, it is part of a child's constitutional rights to be with his or her family, but this ruling says very little about what should happen when the child's constitutional rights as an individual—assessed objectively, medically, rationally, or otherwise—potentially conflict with the family's assessment of them. Interestingly, the majority of judges do not even contemplate this issue.

While in many respects the decision is in keeping with established Irish jurisprudence on the protection of the unfettered exercise of family authority, the point remains that the protection of that authority is not always, or necessarily, in the ultimate best interests of the child. For example, in one case the Supreme Court was prepared to remove a child from adoptive parents after six years and to place him with his natural parents who were complete strangers because the latter constituted a “family” under the constitution.5 Although this was a custody dispute, and the Supreme Court was quick to dissociate itself from such authorities in the instant case, the net effect of the present ruling is to endorse the same difficult-to-rebut constitutional presumption in favour of an extremely wide ranging concept of parental rights. This stands in stark contrast to rulings in other jurisdictions such as that of the Supreme Court of Canada which has acknowledged that “[a]s society becomes increasingly aware of the fact that the family is often a very dangerous place for children”, the need for state authority to intervene in a child's best interests “assumes greater importance”.6

Annasopra

Ozymandius2011 wrote: »

Nothing provided it is clearly defined what that means. I don't trust the first paragraph because it is too vague and aspirational, meaning unelected and possibly activist judges will decide what it means, as happened in the 1992 X-Case.

Activist judges!

We don't live in America

gizmo555

mango salsa wrote: »

Activist judges!

We don't live in America

The fact that the proposed amendment would accord "natural and imprescriptible rights" to children without defining what those rights are will require judges to be activist.

oscarBravo

gizmo555 wrote: »

The fact that the proposed amendment would accord "natural and imprescriptible rights" to children without defining what those rights are will require judges to be activist.

Just like the existing article 41 according "inalienable and imprescriptible rights" to families without defining what those rights are has required judges to be activist?

timbyr

gizmo555 wrote: »

The fact that the proposed amendment would accord "natural and imprescriptible rights" to children without defining what those rights are will require judges to be activist.

At this stage I have to assume anybody making the argument around "natural and imprescriptible rights" has not read the amendment, as these rights are already accorded to children by the current constitution in Article 42.5.

K-9

gizmo555 wrote: »

The fact that the proposed amendment would accord "natural and imprescriptible rights" to children without defining what those rights are will require judges to be activist.

Seriously, that's what judges do.

Annasopra

gizmo555 wrote: »

The fact that the proposed amendment would accord "natural and imprescriptible rights" to children without defining what those rights are will require judges to be activist.

Judges interpret law all the time. Every. Single. Day.

gizmo555

K-9 wrote: »

Seriously, that's what judges do.

Indeed it is. Including Irish judges. But that seems to have escaped this poster's attention:

mango salsa wrote: »

Activist judges!

We don't live in America

oscarBravo

I suspect mango's point is that the phrase "activist judge" is an american one, where judicial appointments are invariably tinged by partisan politics, or - worse - judges are elected and as such are required to pander to populist sentiment instead of implementing the law with integrity and impartiality.

gizmo555

oscarBravo wrote: »

I suspect mango's point is that the phrase "activist judge" is an american one,.

It certainly isn't an exclusively American notion - it was, for example, considered a sufficiently significant phenomenon in Irish jurisprudence for Professor David Gwynn Morgan of the UCC Law Department to have devoted an entire book - A Judgment Too Far?: Judicial Activism and the Constitution - to the topic.This comment from the professor's book bears directly on this amendment, with its reference to rights and best interests, while making no effort to define those terms:

". . . what can be said now is that the notion that there is no need for judicial policy-making since the policy is to be found in the Constitution . . . is often unrealistic, for the reason that clear cut guidance from the Constitution is often simply not available."

If one thing distinguishes this proposed amendment, it is its singular lack of clarity, which will force judges to improvise policy on a case-by-case basis

oscarBravo wrote: »

where judicial appointments are invariably tinged by partisan politics, or - worse - judges are elected and as such are required to pander to populist sentiment instead of implementing the law with integrity and impartiality.

God bless your innocence! All Irish judges are political appointees, to the point where it's generally considered impossible to get an appointment without the right party political connections.