The instant response to the recent Law Society proposal to amend the Constitution to give children rights as individuals would perhaps be agreement with such a worthy objective. Similarly with the proposal to establish a State-funded system of specially-trained guardians ad litem to represent children in court proceedings. But, underneath the worthiness, these are radical proposals which need to be considered carefully.
The proposals are contained in a report of the Law Society Guardian Ad Litem Group, entitled Giving Children a Voice: The Case for the Independent Representation of Children. The report recommends the overhaul of the existing system to enable all children affected by court proceedings to have separate representation.
This would require a constitutional amendment, and the report recommends amending Article 41, which deals with the family's position as "the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and impres criptible rights, antecedent to all positive law", and Article 42, which pledges to respect "the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children".
The Law Society is, in effect, suggesting that, in the interests of extending more rights to children, we abandon the primacy of parenthood and make the State the primary authority over children. In making its argument, the Guardian Ad Litem Group places much emphasis on the changed nature of Irish family life. The report argues that the Constitution extends protection to families based on marriage only, thereby excluding from its embrace a growing minority of children born out of wedlock.
THE report cites a number of cases in which single fathers have attempted unsuccessfully to invoke the protection of the Constitution. The facts are entirely correct, but the inference drawn - that children born out of wedlock do not have constitutional protection - is less so.
In reality, the denial of rights to unmarried fathers enhances the constitutional position of unmarried mothers, because such mothers and their children are by default perceived as families in their own right. While this is, in my view, entirely wrong, it nevertheless represents a different reality to that depicted by the Law Society report, which presents no evidence of unmarried mothers being denied constitutional protection in their relationships with their children. One such case would be enough to guarantee national uproar.
A straightforward way of dealing with the problem the report identifies would be to extend constitutional protection to unmarried fathers, but the report makes no reference to such an option, thereby suggesting an ideological objection to it. We should be careful about the intent behind recommendations advanced on the basis of such an evasion. Not only is extending additional "rights" to children not the most obvious remedy for unmarried parents and their children, but the proposed solution would affect all children and all parents.
There might at first seem to be no sensible grounds for arguing against a proposal to provide legal representation to children affected by court proceedings. But neither is this proposal entirely as it seems.
A guardian ad litem is, literally, a guardian appointed for the duration of court proceedings. The Law Society's proposal is that the child or children whose interests may be affected by the outcome of court proceedings "should be joined as a party to the proceeding and the guardian ad litem should therefore have equal powers with any of the other participants in the proceedings".
This proposal is misleading both in the sense it gives of what is happening now and of what might happen after the proposed changes had been implemented. The primary importance of the "best interests of the child" is already being abused to undermine the rights of parents - usually fathers - whether married or unmarried.
In family law, the "expert" rules, since judges, generally lacking specialised knowledge of child welfare and related matters, in effect leave decisions to those adjudged to be "suitably qualified" - usually social workers, psychiatrists and psychologists. Already, such "experts" have excessive powers, combined with minimal accountability and virtually blanket secrecy. Being "experts", they are beyond scrutiny by anyone not possessing similar "expertise". In effect, what is being proposed is that the primacy of parenthood be set aside and replaced by a system conferring virtual omnipotence on a group of unaccountable people.
The removal of the constitutional primacy of parenthood and the introduction of the widespread use of guardians ad litem would, in effect, confer on such guardians - people with no stake in, or knowledge of, the circumstances of particular families, but with very specific ideas as to the social patterns to be achieved - the powers of God in the lives of families for the duration of proceedings, and the right to determine how a family should live for many years thereafter.
jwaters@irish-times.ie