Fine Gael leader Enda Kenny (pictured) has said that he would back a children’s rights referendum with a 
wording similar to that proposed by an Oireachtas committee last year, according to a report in The Sunday Times.
That wording would lower the threshold at which the State can intervene in families. It amends the current Article 42 of the Constitution which deals with Education.
Currently, Article 42.5 permits the State to endeavour “to supply the place of the parents” only in “exceptional cases”.
The amended clause, which Mr Kenny favours, 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.
Mr Kenny said he planned to hold the referendum in October, to coincide with the Presidental election and a referendum to abolish the Seanad.
His comments came after the outgoing Government agreed a children’s rights wording which retained the phrase “exceptional circumstances”.
A number of legal experts criticised the committee’s proposed wording. Dr Gerard Hogan of Trinity College, who is now a High Court judge, warned that the wording’s use of the phrase “best interests of the child” could give courts excessive powers.
Speaking last February in the wake of the publication of the committee’s wording, he said: “We’re all in favour of the best interests of the child, and there is something of a mother and apple pie dimension to this.
“But in practical terms you have to ask yourself, when you’re talking about the best interests of the child, who is going to decide what is in the best of the child, and how is this going to be done? And if you’re talking about the State vindicating the rights of the child, you have to remember that this is likely to be officialdom, or some judge making this decision.”
Dr Hogan added: “This Constitutional amendment will be for life, and will be interpreted by the courts in the coming decades.
The wording agreed between the office for the Minister for Children and the Attorney General would not give social workers more power to intervene in families and would not give agencies a right to sue the State on behalf of children.
The revised wording came after several Government departments raised concerns about the committee’s proposals, fearing they could prevent the deportation of parents unlawfully in the State and entitle children faced with expulsion from schools to legal representation.
The revised wording for the amendment recognised the rights of all children but does not contain a provision that would allow the State be sued in order to have economic or social specific rights vindicated.
According to reports, the new wording retains the phrase “in exceptional cases”. It is thought that Government feared the consequences of the referendum being derailed over an argument about State interference in the family.
Several government departments also strongly opposed previous wording proposals over fears that the referendum, if passed, would ‘open the floodgates’ to litigation by neglected children who claim they were failed by the State.
Mr Kenny said that he had spoken to children’s rights groups who had criticised the Government’s revised wording, saying that they were “most unhappy with this [wording]”.
Last month, Barnardos head Fergus Finlay said he was unhappy with the revised wording, calling it a dilution of the Oireachtas committee wording.