The Dáil debate on the Government’s children’s rights referendum has, sadly, generated precious little light. It was, 
instead, full of clichés.
Instead of a nuanced discussion of the finer points of the wording itself, the debate (and that word is used very loosely in this context) rehashed a series of unfortunate misapprehensions about what the children’s rights referendum will actually solve.
For example, the Labour Minister of State for Housing, Jan O’Sullivan, correctly pointed out that there were 2,000 children currently in long-term foster care (five years or more), while only 16 had been adopted in 2010 and 2011.
The reason for this, she suggested, was that the “[i]n the case of foster parents adopting a child, the current test is extremely arduous”.
This, in turn, she suggested, was because the Constitution “does not refer to the circumstances in which adoption will be provided for in law”.
There are two serious mistakes in this analysis, mistakes which an experienced politician shouldn’t make.
Firstly, the only obstacle created by the current Constitution where adoption is concerned is in respect of the adoption of the children of married parents. It is accepted that it is currently very difficult to adopt the children of married parents.
But we currently do not know how many of the 2,000 children currently in foster care are the children of married parents. So we can’t say to what extent the Constitution is an obstacle to their adoption.
Secondly, the main reason for the arduous test for foster parents adopting the children, whether of married or unmarried parents, is Government legislation, which can be changed without the need for a referendum.
Fine Gael TD for Kildare Bernard Durkan sought to take on the argument that holding the referendum was unnecessary.
His counterargument: “The unfortunate reality is that it is indeed necessary.”
Throughout the past two decades, he said “there was a serious erosion of the individual child’s rights which pointed clearly to a deficiency in the system”.
Again, there is certainly evidence that children’s rights were tragically failed both by individuals and in some cases, State agencies. The Roscommon case is one such case, and reports on State mismanagement of various children in its care showcase various other examples.
But even Geoffrey Shannon, a leading advocate of a children’s rights referendum, accepts that the Constitution was no excuse for the lack of action by social workers in the Roscommon case, or (in the main) for the disorganisation which led to the deaths of 200 children either in the care of, or known to, the HSE.
Mr Durkan went on to again note that “the view has been expressed in some legal quarters that the proposed constitutional amendment and accompanying legislation are not necessary”.
“Everybody is entitled to their opinion, of course, but I reject that view. What is true is that while the amendment certainly should not be necessary, unfortunately it is. That is the difference.”
Again, the lack of a supporting argument is glaring.
Labour TD Dominic Hannigan referred to the reports into the deaths of children in HSE care.
He said: “I think we all agree that these situations cannot be allowed to continue.” However, he neglected to point how, exactly, the Government’s referendum would ensure that the problems which led to these tragic situations, namely poor organisation and mismanagement, would be rectified
Another Labour TD, Derek Nolan suggested that the Constitution as it stood was failing children.
He said: “Historically, parents’ rights were seen as paramount and, despite evidence to the contrary, it was widely accepted that parents knew best.
“The family was afforded special protection by the State. This special protection can be seen in many different cases over the years and while no one is denying that the family has a special interest and should have that place of paramount importance in the Constitution, it cannot be used to denigrate the rights of children as a secondary issue.”
But as Supreme Court judge Adrian Hardiman has pointed out, the Constitution does not, fact, put parents ahead of children, it places parents ahead of the State, or any other third party, as being those best placed to defend the rights, welfare and interests of the child.
However one views the Government’s amendment, it is to be hoped that we have a more informed national debate than the discussion served up to us by our elected representatives.