The news this evening is full of the announcement of the publishing of the wording for the new amendment to the Constitution. I use this inelegant formulation because no publishing yet appears to have occurred, though there has been plenty of announcement. Press releases and speeches are easily available online, but they’ve neglected to make the actual wording of the proposed amendment available, or at least in a place where I can find it. I can’t help but suspect that this was no accident, a way of guaranteeing at least a few hours of uncritical coverage. Certainly, most journalists don’t seem to have gotten hold of the actual bill, as I see nothing in any news report that hasn’t been provided by the government press offices.
The press release does however provide some bullet points, which I’ll take in turn:
“The Government’s wording will provide:
An acknowledgement by the State of the natural and imprescriptible rights of all children.???
Legally speaking this is meaningless, though presumably the government is hoping it will make them look like nice guys. If children have natural and imprescriptible rights, then “acknowledging??? them is a waste of ink which makes no difference in reality. This is a government which dragged Kathryn Sinnott all the way to the Supreme Court rather than acknowledge that it had a duty to provide her son with special needs education. It dragged another child there rather than acknowledge a duty to provide secure units for children taken into care. Kids, legally in the care of the Government, end up on the streets on a weekly basis, a moral outrage that gives an acid bitterness to the phrase “taken into care???. Much has been made by this government of the need to protect the rights of children, but you don’t need an amendment to the constitution to get up off your backside and do something. If the government was interested in “acknowledging the natural and imprescriptible rights of all children???, it could do worse than to put a roof over the heads of the children it is directly responsible for making homeless. There’s nothing in Bunreacht na hÉireann as it stands that prevents them from doing that.
“Restatement of the existing protection of children and parents contained in the current Article 42.5 and the extension of this provision to all children.???
“Restatement???? Only at bullet point number two and the padding is starting to look a bit desperate. This is more cant that does nothing to help a child in need or in danger.
“Legal authority for the adoption of children who have been in care for a substantial period of time if it is in the best interests of those children.???
In all family law cases it is a long standing principle that the best interests and welfare of the child be of paramount importance (“The Welfare Principle???). In the “Baby Ann??? case, the Supreme Court held that her welfare was best served by being with her natural parents. Given that our constitution acknowledges the role of the family, this is unsurprising. However, in some circumstances, the child’s best interests may lie elsewhere. Examples from case law include where there are serious drug problems in the biological family. This legal authority is already in existence, which makes this particular part of the amendment another empty gesture. The Minister for Children has assured us as much when he says “This Government is in total agreement with Mr Justice Hardiman who, in a recent much publicised Supreme Court decision, said the welfare of the child is best secured in his or her natural family. Nothing in this amendment seeks to change that position.??? This quote, along with earlier use of words like “acknowledges??? and “reaffirms??? is intriguing. That the government is so keen to admit the pointlessness of so much of this amendment suggests that its heart really isn’t in it. As a side-note, it should be recalled that it wasn’t the big bad constitution that caused the painful dilemma in “Baby Ann???, it was the failure to allow the parents to withdraw from the adoption procedure – a act of cruelty and administrative stupidity, not a legal conundrum. The above proposal suggests that the Government is anticipating more such cruelty and stupidity. They are probably not wrong in this anticipation.
“Ensuring that all children are eligible for voluntary adoption.???
This is an actual legislative proposal, unlike so much else on offer here, but it seems to be in the wrong place. I am not aware of any constitutional bar to such an extension of eligibility, and suspect that this provision is here merely to make up the numbers. Nonetheless, I am open to correction by those with expertise in adoption law, something which I lack.
“Legal authority to secure the best interests of children in any court proceedings relating to adoption, guardianship, custody or access.???
At the risk of sounding like a broken record, I must again pull out my “empty gesture??? label. The Welfare Principle operates in all such proceedings, and the idea that the law currently denies authority to secure the best interests of children is absurd. It is underfunding and inaction that prevent the serving of their best interests. This can be fixed without any need for a referendum.
“Legal authority for the collection and exchange of information relating to the risk or actual occurrence of child sexual abuse.???
Here we get to the meat of the matter. The Taoiseach feels that “it is difficult to warn employers about people who have been suspected of, but not charged with, sexual misconduct relating to children??? (italics mine) and wishes to make it less difficult. I am deeply conflicted by this proposal. While I remain appalled that priests, swimming coaches, scoutmasters and others were employed to work with children despite having clouds over them, there is such a thing as the presumption of innocence. There is also the grave danger that a loose interpretation of “suspicion??? could lead to the branding for life of those who did nothing worse than be the subject of an unfounded accusation. Whether this is a consequence unpleasant but unavoidable, a risk worth taking, is too big a question to answer here; I simply raise the point that such provisions are not without their downside.
“Legal authority to create offences of absolute or strict liability in respect of offences against or in connection with children.???
Which brings us to the reason for the whole show. A strict liability offense is one for which there is no legal defence. For example, were murder to be made a strict liability offence, you’d be guilty if you killed the person, irrespective of whether you acted in self-defence, or under provocation. At present, strict liability tends to attach only to regulatory offenses – failure to file certain documents, or pollution offenses for example. In the “C??? case, it was held that the absence of a defence of reasonable mistake rendered the offense of Unlawful Carnal Knowledge unconstitutional, in that it denied the defendant all the elements of a fair trial. The government is now seeking to make such offenses constitutional if they are against children. This would render a boy who has just reached the age of consent guilty of an offence if he had consensual sex with a girl one day younger than him. That this seems unrealistic and absurd is precisely the point; under strict liability, no acquittal would be permitted.
It is a principle of the law that persons accused are to be presumed innocent until proven guilty beyond reasonable doubt, by way of a fair trial of the facts. That we may be horrified by the crimes they are accused of is surely reason to be all the more careful in administering justice. And yet, when children are thrown into the equation, we seem to swing the other way. Rules and principles that apply when adults are involved get tossed out the window as we vie to be regarded the toughest protector of children. I submit that this is because of a sentimental and ultimately harmful attitude towards children. Often in practice I meet men who announce passionately “I’d do anything for my kids, anything.??? The problem is, they don’t need “anything???, they need a few euro maintenance a week, and some regular love and support. I was not surprised to learn that the man who scaled Buckingham Palace in a Batman suit to raise awareness of father’s rights was perhaps not all he might have been when it came to the less exciting duties of parenthood. Dads often prefer big gestures to meaningful effort, leaving the mother to do the thankless work of bringing a child up. This is sentimental in the truest sense of the word; it is not about caring, but about making yourself feel like you care. Certainly, actually doing anything for those you profess to care for is not high on the agenda. It is this attitude that the government epitomises when it publishes proposals like this. The words boom out that it cares. The actions tell a different story.