OPINION:THE PROPOSED children's rights referendum has once again moved up the political agenda. This proposal is undoubtedly motivated by the upset (and, in some cases, horror) at the ways in which families, the State, and society in general have failed children.
“Children’s rights” is a compelling political slogan but provides a vague programme for constitutional law-making. There is a real risk that people will view any children’s rights proposal as a panacea for a whole range of problems. What can be achieved by constitutional reform, however important, is more limited. Moreover, to have any chance of success, any amendment must be carefully focused on the real issues. Public debate over reform proposals must be alert to these limitations.
The first cause for concern is that the promotion of a children’s rights amendment may lead people to believe that children’s rights are not protected by the Constitution. This is incorrect. Generalising somewhat, we can say that children 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).
It seems unlikely that the Government will propose an amendment that contains any new constitutional rights for children. If that is so, public understanding would be impeded by calling this a “children’s rights” proposal.
The real source of contention in current debate, and the likely focus of any referendum proposal, is 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. 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.
Most people would also accept that parents and the State should, when making decisions for children, do so based on the child’s best interests, rather than the personal preferences of the parents or the public policy of the State. The difficulty concerns 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?
The Constitution currently sets this threshold in Article 42.5:
“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
Many people think this threshold for intervention is too high. It unquestionably allows for intervention where parents abuse their children or are serially neglectful of their children. However, where generally competent and well-meaning parents make one-off decisions with potentially negative consequences, the courts tend to intervene only where those consequences are highly likely and almost immediate.
For example, the courts routinely allow hospitals to provide blood transfusions to children contrary to the sincerely held religious beliefs of the parents. However, in one leading case the Supreme Court refused to order parents to submit their child to a PKU (phenylketonuria) test. This procedure involves merely a pin prick to the heel of an infant in order to obtain blood. It can detect certain serious diseases, the treatment of which would benefit from early diagnosis.
The conclusion of the Supreme Court allowed parents to decide that their children should run very serious risks rather than undergo the slightest infringement of their bodily integrity. It is cases such as this that have strengthened calls for constitutional change. Unfortunately, reform proposals to date have only indirectly addressed the question of the appropriate threshold for State intervention. In particular, many of the reform proposals operated on the mistaken view that the simple inclusion of a “best interests” test would solve the problem.
It cannot, because it fails to address the only relevant question: in what circumstances can the State impose its understanding of best interests in place of the parents’ understanding of best interests?
When this question is not directly addressed, one is left vainly trying to infer from a number of provisions what precise change would be effected by an amendment. Any such referendum proposal cannot be meaningfully debated and, if passed, could not provide any meaningful guidance to State agencies or the courts. I would suggest the following wording as a way of addressing the need for reform in a more focused way:
“Where the parent or parents of any child act or fail to act in respect of that child in a manner that no reasonable parent would and that has the potential to affect significantly the interests of the child, the State by appropriate means shall endeavour to supply or supplement the place of the parents, but always with due regard to the best interests of the child.”
This proposal directly addresses the threshold for State intervention, but makes it somewhat easier for the State to intervene than at present.
A “reasonable parent” test replaces the current “failure of physical or moral duty” test. The scope of this is controlled by allowing State intervention only on significant matters. The State is given the power to supplement as well as supply the place of parents. The best interests test is made the standard for the State when intervening.
This wording, which I am certain can be improved, does not allow us to anticipate precisely how State agencies will act or how the courts will decide cases that come before them. However, it hopefully ensures that they would at least be asking the right questions.
Oran Doyle is a Fellow of Trinity College Dublin