Wednesday, November 07, 2012

A Sensible Reason to Vote No to The Children Referendum

Apart from the drafting and interpretive issues with the Children's Rights amendment to the constitution, there are other practical issues.  I'm not talking about John Waters and The Austerity Man coming to your door - but policy issues.

Most of the rights that the amendment provides for are already available to the courts through interpretation, or could be provided for in legislation.  These rights accrue based on citizenship.  In addition, the UN Convention on the Rights of the Child, which the Government has signed and ratified but not legislated for, more than compensates for any perceived shortcomings.  The reason that the government has neither chosen to legislate either specifically for adoption laws to be changed or for the voice of the child in the family law courts to be expressly provided for, is that it would provoke a constitutional challenge most likely from the religious right on the position of the family.  As it stands, we are going to have two conflicting sections in the constitution that judges will have to decide between - the centrality of the family as the fundamental unit of society, and the right of the child to be separated from that family (thereby compromising the integrity of society's fundamental unit) should others decide it is in their interests.

Put another way, if the government legislated for extended children's rights, the legislation could be challenged in the Supreme Court, and the Court would have to decide whether it was appropriate to diminish the pre-eminence of the family in legislation.  It would be a negative proposition, and the question before the court of public opinion would not be whether we should protect Children, but whether we should acknowledge the demise of the 'conventional' family.

There is another more basic issue, however.  If the Government were to legislate to give effect to the UN Convention on the Rights of the Child, they would concurrently subject themselves to monitoring and reporting against a standard that would be expensive.  The rights of the child as expressed in the convention are detailed and wide-ranging.  The UN Infrastructure would require that the State subject itself to examination and review under the convention, something the State is clearly unwilling to do.

Finally, in a related way, this is about money.  The State is not and will not be investing in children.  Actually, it is going to be reducing the money spent on the infrastructure to support Children and Children's Rights by reducing the health budget, the social welfare budget, and the courts budgets, the combined effect of which will be to further compromise the position of children in Ireland.  This is part of the reason not to subject itself to the Convention; and part of the reason why it is pushing ahead so bullishly with its grandstanding on the Constiitutional Amendment.  When people say in years to come - what did you do for Children, who were so abysmally treated in the years before they came to power?  They will answer "we amended the constitution and changed the way children were viewed".  In truth, of course, they will have undermined state services and exacerbated the failures on the part of the state in relation to some of the most vulnerable people on this island.

If you care for Children, vote no - you will force the State to face up to its responsiblities, and not simply let them off the hook.

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