The Government has reiterated its committment to holding a referendum on children’s rights this year. 
Speaking yesterday in the Dáil, Minister for Children and Youth Affairs Frances Fitzgerald (pictured) said that the referendum was a Government priority.
In response to a question from Fianna Fáil’s Charlie McConalogue, she pointed out that the Government had decided recently to hold a stand-alone referendum on the issue “to allow for a full debate on the issue and in order that the people clearly understand the proposition”.
However, she said that the precise timing of the referendum had not yet been decided upon.
Minister Fitzgerald said that she intended to make available the adoption legislation which would be introduced based on the successful outcome of the referendum at the same time as the referendum.
She said she hoped that “a broad-based consensus will be forthcoming to support the incorporation of children’s rights within the Constitution”.
Deputy McConalogue claimed that there had been “considerable confusion in the last couple of weeks about whether the commitment given in mid-February that the referendum would take place in 2012 still remains in place”.
He said that the Taoiseach had “refused to commit to holding it (the referendum) in 2012” to commit at last week’s order of business.
Mr McConalogue said: “He stated no broad timeframe had been agreed to by the Government. We need clarity on this issue.
“The date has been bandied about and commitments were given that were subsequently rolled back on. This is an important referendum that will be key in enshrining the rights of children in the Constitution and ensuring we will have in place a robust system for child protection.”
However, a series of legal experts have pointed out that the rights of children are already enshrined in the Irish Constitution.
Last month, writing in The Irish Times, legal academic Dr Oran Doyle of Trinity College said that the belief that children’s rights are not protected by the Constitution was incorrect.
Children, he said, “have the same personhood rights as adults (eg, the right to bodily integrity)”.
“Children do not have the same political process rights as adults (eg, the right to vote). Children have, however, a number of age-limited positive rights that are not held by adults (eg, the right to a free primary education),” he added.
And he said that the real source of contention in the debate was “the question of when the State may intervene and take children into care or start making decisions on behalf of children that override the wishes of the parents”.
He said: “To call this a children’s rights issue is somewhat misleading; the issue here concerns who exercises for children the rights that they cannot exercise themselves.
“On this issue, most people would accept that parents should have the primary decision-making role in respect of their children, but that there must be some residual or fallback role for the State to protect vulnerable children.”
The difficulty, he said, concerned “the appropriate threshold for State intervention. What level of bad parenting must be reached before the State can, in effect, assume parental responsibility for a child?”
Constitutional expert and now High Court judge Gerard Hogan has argued that suggestions that the current Constitutional arrangements are inadequate to protect children were based on “a grotesque misstatement and misunderstanding of the present Constitutional provision.”
He said he disagreed with the notion that the present provisions hadn’t worked well, or that they didn’t “strike the right balance, or are in some way responsible for lots of modern ills”.
He also questioned the introduction of the concept of the best interests of the child, asking “who is going to decide what is in the best of the child, and how is this going to be done?”