Referendum will elevate children’s best interests

The anachronistic 1937 perspective needs sensible, unradical change


Article by Tanya Ward:

My childhood in Cabra, Dublin, was a happy one. Money was probably a bit tight but I had absolute certainty that my parents and family were there for me.

I didn’t end up in Cabra by accident. My Grandad was deaf and he left his home in West Limerick at an early age to attend St Joseph’s School for Deaf boys in Cabra. We lived near the school for many years, often played in its grounds and snuck into deaf sporting events.

The 2009 Report of the Commission to Inquire into Child Abuse (the Ryan Report) included a chapter on St Joseph’s. It found that complaints of child sexual abuse had not been forwarded to the Gardaí because the Christian Brothers thought abuse more a moral failure than a criminal act against a child. It also found a lack of follow-up by the State, when complaints were made.

While I had pleasant memories of this school, I realised that for many it had been a site of abuse and neglect.

The Ryan Report did something very important for us in Irish society. It documented the consequences of institutions putting their own interests before those of the children they were supposed to be caring for. It also uncovered the human cost of not listening to children when they tell us they are victims of abuse.

A referendum on the rights of children will take place in late 2012. The referendum won’t solve all ills, but it should give us an opportunity to make sure that children’s rights are no longer hidden away within the Constitution. The Constitution was written in 1937 when children were ‘seen and not heard’. The legacy of this is that the courts continue to make decisions about children that are not child-centred.

A good example is the ‘PKU’ case, where parents refused to allow their baby to be given the harmless heel-prick test, which involves taking a small sample of blood to identify several diseases, for which early identification can be of huge benefit. When the case reached the Supreme Court, the judges said that even though the parents’ decision not to have the test was “unwise” and was clearly not in the best interests of the child, there had to be an immediate and fundamental threat to the life or health of the child to overrule the parents’ decision. You might agree with the outcome of this specific case, but clearly there is something wrong if the courts can only intervene when a child’s life is in immediate danger.

Poor decision-making for children exists also within family-law cases. The unfortunate reality of family breakdown in Ireland today is that the Courts are often asked to resolve a conflict between a mother and father. If a decision is to be made about a child, the Courts should be required to give first and paramount consideration to the best interests of the child in resolving such disputes: a key current failing.

The Constitution should also enable each child’s actual voice to be heard, in the context of his or her age and maturity. Listening to children does not mean that Court decisions should be based on the child’s view alone. But it does mean that the child’s view of his or her best interest should be taken into account by the judge along with the views of other actors in the case. In care proceedings, the child’s view is often taken into account by way of a Court-appointed independent Guardian ad litem. This type of good practice does not happen in all court cases – something this referendum could potentially remedy.

There are critics of the proposed referendum. Some argue that excessive power will be given to the State and there will be excessive intervention in family life. Ultimately, they fear that ‘the family’ is under attack. This is not true. The Children’s Referendum is not radical. It will not change the status of the married family in the Constitution. It will not lead to children divorcing their parents, or families losing their children because they allow them to eat junk food. The referendum is not about breaking up families.

The Minister for Children and Youth Affairs, Frances Fitzgerald TD, is currently finalising proposals for this referendum. The Minister is not starting from scratch. She is taking, as her starting point, the 2010 proposals from the Joint Committee on the Constitutional Amendment on Children. With all-Party support and general appreciation from the children’s representative sector, these proposals offer an excellent blueprint for this referendum.

We can’t take away what happened to children in industrial and religious institutions in Ireland. And we can’t protect every child from abuse in all situations. However, we can ensure that our Constitution, at the very least, offers the best possible protection to children.


Tanya Ward is Chief Executive of the Children’s Rights Alliance