The Government’s proposed children’s rights amendment could give the State too much power to intervene 
in families, the Iona Institute has warned.
In a statement responding to the publication today of the proposed wording by the All Party Committee on Children’s Rights, the Institute said that while the wording needs careful study, a guiding principle has to be that “any amendment must not give the State more power of intervention in family life than it needs”.
Overseas, such powers were often “abused to remove children from their families in very controversial circumstances,” the statement said.
The proposed wording amends the current Article 42 of the Constitution which deals with Education. While the new wording would acknowledge “that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents” it lowers the threshold at which the State can intervene in the family.
Currently, Article 42.5 permits the State to endeavour “to supply the place of the parents” only in “exceptional cases”.
The amended clause would remove the phrase “exceptional cases”, and instead allow the State to intervene in cases as regulated by law”, in other words, as determined by legislation.
The Committee on Children’s Rights, chaired by Mary O’Rourke TD, did not seek to meet with groups who expressed any misgivings about giving the State more power to intervene in the family.
Commenting on the proposed wording, Iona Institute Director, David Quinn said:
“While the proposed wording will require further examination, we would be extremely concerned if this wording, while purporting to protect children, in fact gives the State more power of intervention in families than is required.
“An amendment that gives the State the same sort of sweeping power as exists in other jurisdictions will ultimately not serve the best interests of children at all.”
The statement also pointed out that over five thousand children are currently in the care of the State under this provision.
Citing the fact that the proposed wording will give recognition to a child’s “best interests”, the statement said that while “no-one denied that a child’s best interests had to be to the fore when making decisions about children, the crucial question is, who gets to make this decision, parents or the State?”
The statement quoted Justice Adrian Hardiman’s comment in the Baby Ann judgement, that it was “quite untrue to say that the Constitution puts the rights of parents first and those of children second.”
Justice Hardiman said: “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.”
The Iona Institute statement asked: “Will the new wording mean that in too many cases, third parties such as social workers will, in fact, be preferred over parents?”
The statement also referred to a case in Scotland where children were removed from their parents because social services decided that the children were obese and therefore their health was at risk.
“Removing children from their parents in such controversial circumstances is itself arguably a violation of the rights of the child,” the statement added.
In Canada, a father’s decision to prevent his adolescent daughter going on a school trip because she was posting ‘inappropriate’ images of herself on the internet, had his decision quashed by a court in her supposed ‘best interests’.
The proposed new wording will also allow married parents to surrender their children for adoption under circumstances to be decided by the Oireachtas.
The statement said it agreed that “it should be made easier to adopt the children of married parents where those parents have manifestly failed in their duties towards their children, but we should be very slow to permit the adoption of the children of married parents where they have not failed in their duties”.