Wednesday, September 19, 2012

Interpreting the Children's Rights Amendment

There are five key phrases that are likely to be open to wide-ranging interpretation in the proposed amendment to the Constitution, and likely to forum the nucleus of the upcoming debate:

1. "any of their children"
Clause 2 1° says in essence that the state can take over the role of the parents if they are bad parents.  However, this is a point of vagueness in relation to the parents of multiple children.  It could be interpreted that if a judgement is made that parents of multiple children are deemed bad to one of their children, then the state can legitimately supplant the parenting of all of the children.  This is difficult in a conventional family, but in an unconventional family, for example where there are two or more fathers of children of one mother, it makes interpretation almost impossible.  It should be changed to simply say "a child", rather than "any of their children".

2. "is likely to be prejudicially affected"
This represents a judgement that the extent to which parents are failing in their duties is objectively bad for the child in terms of either safety or welfare.  A standard will need to be set for this judgement, in terms of welfare and safety but possibly other categories.  For example, does "welfare" include education?  If a child is a slow learner, who determines whether such lethargy is down to a failure in the duty of the parent?

3.  "the place of the parents"
This one is a doozie.  I can't imagine how an entire government can spend four or more years developing an amendment and leave this appallingly sloppy phrase in place.  Leaving aside for a moment that this phrase all but codifies the phrase "Nanny State" in the constitution, is it the case that the state will adopt a legal obligation to correctly parent the child, and should that child not turn out so good, have the option to litigate?  Only parents can parent.  If the state seeks to care for a child, then they should enumerate the functions - food, shelter, education, healthcare. No more.  The state will not teach a child right from wrong, or about the birds and the bees, nor should it have any obligation to, save in enforcing the law.  The State is not and never will be a parent.  

4. "the best interests of the child"
Again, who determines what are the best interests of the child?  What are such standards?  Is it in the best interests of the child that he be sent to a fee paying school?  Or to Mosque on sabbath?  Or to soccer training on Saturdays?

5. "any child who is capable of forming his or her own views"
This one is a nightmare.  On the one hand, it needs to go in - you have to ask the child what they want, but then you also need to make a determination as to whether the child actually should have it.  Children may ask for sweets for breakfast, lunch and dinner, but it's not good for them.  But that is certainly a view, and the child will have been well capable of articulating it, even demanding it.  This phrase really boils down to the definition of a child.  Is it someone under eighteen?  There are boys with AK47s in the jungles of Congo as young as 10.  So putting in an age would have been difficult too.  

All in all, this reads more like a policy paper than a constitutional amendment.  My view?  They should have been more brief and less prescriptive.  That's what constitutions are about.  This is too long winded, and dives into too much detail and tries to do too much.  It will fail, because any one of the five items above, interpreted in a particular way, has the potential to upset everyone.

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