LegalEagleStar

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Posts Tagged ‘Rights of the Family

Childrens Referendum. A Sinister Constitutional Amendment or just another botched job ?

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Mother holds Child

Mother holds Child (Photo credit: Wikipedia)

There are several issues or questions which arise when looking to the proposed Referendum on November 10th. Your legal right under Article 42.5 of the Constitution deciding on what is in the “best interest” of the child could now ultimately be decided by the State. The Courts already use this “best interest” test when deciding issues of custody, guardianship and access on a daily basis when parties cannot agree in Family Law proceedings.

 Personally, I think that adoption is the biggest issue in the yes/no vote debate. Your child could be placed for adoption against your will. While I do not think this decision would be taken lightly and several steps have to be taken in this regard, it is a scary thought. This can happen in the context of what is the current child care procedure in which a child can be taken off its parents / parent / guardians and into the care of the State. An Interim Care Order is sought firstly and must be renewed every 28 days until the full hearing where it is decided whether a full Care Order is made or not. If a Care Order is made, it is put in place until the child attains 18 years of age. There are times however when parents etc. do apply before that time and a new Hearing occurs. Access can still take place between the parents and the child while the child is under the care of the State. The care system is in dire need of reform with the scary statistics showing the number of children who either die (260), go missing (500) or are ultimately abandoned by the State at the age of 18 years. This gives the State the power to make the child available for adoption once in their care. The Child Care Courts come under the remit of family law and therefore these proceedings are held “in camera” or in private and therefore the parties concerned are not permitted to discuss the matter in public.

There are flaws in the system and reform is needed in that, for example, while unmarried parents can voluntarily place their child up for adoption, there is no provision for a married couple to do so. There are children in long-term State care in which adoption would be appropriate in these cases. However, an argument for the yes vote says that in the past Judges hands were tied, in that they had to be satisfied that there was a high level of failure on the part of the parents and reform would mean a shift to a question of the child’s safety and welfare. I think in lowering any burden or moving the focus to the child is not necessarily the way forward. Independent Cllr Pat Kavanagh said recently to RTE that she is concerned that if the referendum is passed the State might move too early to forcibly remove children from families for adoption. The Wicklow town councillor, who has fostered children and who was a Social Care Worker for 16 years, said fostering costs the State a lot of money and is concerned there is an element of cost-cutting about the proposal. She also went on to state that adoption has ongoing consequences in that children will lose contact, not only with their parents but also with siblings and grandparents, as extended family will have no right of access to an adopted child in the long-term.

In England, in the Baby P case, 2 Doctors were struck off and 4 Social Workers were fired. In Ireland, 260 dead and 500 missing in a decade and nobody has been punished. Baby P, or baby Peter as it was later revealed, was a 17 month old boy who died in London after suffering more than 50 injuries over an eight month period. During this time he was seen several times by Haringey Children’s Services and NHS health professionals. The baby’s name was released on the conclusion of a subsequent trial of Peter’s mother’s boyfriend on a charge of raping a two-year-old. The child’s full identity was revealed when his killers were named after the expiry of a Court Anonymity Order on 10 August 2009.

Another issue that could possibly arise, for example, is that the State could decide that every child should and would be vaccinated and take away the power given to the parent to refuse. That’s not to say this would definitely happen or that these are the intentions of the Government, however, this is an example of the powers the Government could have if such Referendum is passed. Plus what little sovereignty, if any, Ireland still has, could be lost as the UN and EU could make new laws concerning children without the consent of the Irish Government. The United Nations Convention of the Rights of the Child is a legally binding Human Rights Treaty which, if article 42 is changed, will allow unelected people in the EU and UN re-write Irish Law. Like everything else in this country of recent years, it is the loss of the power of the people which is my main concern.

It’s definitely arguable that the UNCRC does not give Irish Children any real new rights which they did not possess before and by giving powers to the State, in fact, removes or takes away children’s rights. While the UNCRC gives rights to children there is no guarantee of these rights. There are developing countries which have ratified the UNCRC and therefore the children have rights to food and water and yet these children are still dying. Some countries also allow for child soldiers, forced marriages to name but a few. At the end of the day the UNCRC does not protect children, their parents, families etc. do.

I believe there should not be a simple Yes or No Vote in the upcoming Referendum but several sections broken down in which you could Vote Yes or No for each. There are flaws and there needs to be change and reform, but bundling it all together in the way it has been proposed, I personally believe is wrong.

LegalEagleStar , 1st. November , 2012 .

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