IN TWO weeks, the electorate will vote in a referendum designed to recognise the fundamental rights of children and to ensure their protection under the Constitution. In exceptional cases of parental abuse or neglect, the State will be entitled to intervene and remove children to a safe place. In addition, all children will become eligible for adoption and their views will be taken into account when the Courts decide on such matters. The aims of the referendum are limited, reflecting political concern that a radical approach might generate opposition from religious and conservative quarters and raise issues involving the family and traditional rights.
Because of that, Section 42 of the Constitution, which holds the rights of parents to be “antecedent and superior to all positive law”, will remain untouched. Nevertheless, children are finally being offered a voice, along with rights and formal constitutional protection.
Abuses suffered by children – within dysfunctional families and religious-run institutions – amounted to an appalling indictment of politicians, churchmen, administrators, gardaí and unconcerned citizens, through acts of omission and commission over many decades. As evidence of brutality, sexual abuse and institutional cover-ups tumbled out in recent years, governments repeatedly promised constitutional change but failed to deliver. Against that background, Minister for Children Frances Fitzgerald and this Government deserve commendation. Not a single member of the Oireachtas has advocated a No vote in this campaign. And there is overwhelming support for the referendum among child-centred organisations. Despite that, opposing interests will be offered equal airtime in referendum debates.
Senior Fine Gael figures have taken the opportunity to reopen the issue of Government expenditure and to criticise the manner in which the Supreme Court judgment in the McKenna case is being interpreted. In particular, Minister for Justice Alan Shatter objected to a decision by Oireachtas officials to cancel an all-party photocall in support of the referendum at Leinster House.
The McKenna judgment was tightly circumscribed. At issue was a government decision to spend €500,000 in promoting a pro-divorce referendum that was lost. The court ruled that, in future, public funds should not be used to promote a particular outcome. It also said its ruling should not be regarded as having wider consequences. Despite that, RTÉ and other media outlets concluded that a 50/50 balance should be maintained in all referendum campaigns, even where clear political majorities existed for change.
Sinn Féin and Independent TDs oppose any change in interpretation because of potential publicity advantages in future referendums. The Government, on the other hand, wishes to exercise its political muscle. The McKenna judgment basically held that while government has a right and a duty to give information, clarify a situation and give explanations, it should not attempt to “buy” a referendum outcome.
With campaigns involving EU integration looming, the issue of parity of treatment will not go away.