Here is the
key question concerning the children’s rights referendum; if passed will it
make it too easy for the State to decide what is in 
a child’s ‘best interests’
and thereby allow the State to override parents in wide-ranging circumstances?
A seminar
in Trinity College Dublin last night considered this very thing. The consensus
was that it makes it somewhat easier for the State to override parents but that
the present constitutional balance between parents and the State will not be
altered by too much.
The present
constitutional balance favours parents over the State very strongly, which is
as it should be.
The seminar
was addressed by a number of constitutional experts including Professor Gerry
Whyte, Dr Oran Doyle and Assistant Professor David Kenny.
Oran Doyle’s
contribution [1] was particularly interesting because prior to the referendum he
had expressed unease about how the ‘best interests of the child’ test (‘BIC’
for short) could easily be abused to give the State too much power over
families.
He did not
like the wording devised by the Oireachtas Committee which was chaired by Mary
O’Rourke and made public in 2010. He believed it shifted the balance of power
too much away from parents and towards the State.
He was of
the view that the wording currently before the Irish people is a lot better
than the 2010 wording (meaning the concerns of organisations like The Iona
Institute appear to have been heeded).
He took the
view that the threshold for State intervention in families has not been greatly
altered by the new wording and that the State can only make decisions about a
child’s best interests once the threshold for Stat e intervention has already been
passed.
In other
words, the State cannot override parents other than “in exceptional cases”
where the parents have to shown to have failed “in their duty towards their
children in such an extent that the safety or welfare of any of their children
is likely to be prejudicially affected.”
The words “in
exceptional cases” appear in the Constitution at present. It had been dropped
by the O’Rourke committee, which was a matter of huge concern, and has been
reinserted into the proposed amendment, which is a matter of considerable
relief.
Dr Doyle’s
views were more or less echoed by Professor Gerry Whyte who is well known as a
supporter of the rights of unborn children, among other things.
David Kenny
in his talk seemed disappointed that the 2010 wording had not been retained.
As he said:
“the extent of the erosion of the threshold [of intervention] has been
significantly scaled back from the 2010 proposal”.
Those of us
who believe it would be wrong to significantly erode the threshold of
intervention should be mightily relieved by this.
Of course, only
time will tell whether the interpretation of these legal scholars is correct
but a considerable amount of comfort can be gained from the fact that they do
not believe the current constitutional balance between parents and the State
will be altered too much by the proposed wording.
PS. In the next few days we will be blogging again on the matter of the amendment.