The Children’s Referendum November 10 2012

Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin

The last 24 hours, if nothing else, has focused the attention of the children’s referendum campaign, not (perish the thought) on the rights of children, but on how the government spent public monies to promote a a Yes vote. It is important to emphasise that the Supreme Court were not in any way expressing an opinion, good, bad or indifferent, to the proposal before the people tomorrow. Rather (and correctly in my view) sought to ensure that public money should not be spent by the government advocating one side in a referendum that would result in a change to the Irish constitution.A relatively lackluster campaign in all, assisted by a lackluster amendment, but one that nevertheless, in my view should be accepted.  The amendment should be accepted because:


  1. It will provide further constitutional recognition of the rights of the child, in harmony with the essential and important role of the family in the life of the child already recognised under the Irish Constitution;
  2. In exceptional cases will allow the State to intervene in a proportionate manner where the safety or welfare of a child is prejudically affected;
  3. Will allow the State to equalise adoption laws and allow any child to be placed for adoption;
  4. In proceedings relating to adoption, custody, access to a child, the best interests of the child will be the paramount consideration AND a child capable of forming a view on matters relating to adoption, custody and access, will have their views heard (not necessarily followed) in these proceedings.

A number of groups emerged throughout the campaign arguing for a No vote, Two Rights Now demanding that the government respect and protect certain rights already in the constitution before adopting another amendment. The Alliance of Parents Against the State argue that this amendment will provide unwarranted powers for the State to intervene in the family. Other arguments that have emerged relate to forced vaccination of children (a particular obsession amongst some elements of the No campaign), and being ‘forced’ to pass this referendum due to an interfering EU and UN (Quick, run kids, Ban Ki Moon and Manuel Barroso are coming to get you!)  There were also some worrying trends that emerged in the debate, in particular on the Vincent Browne and RTE Frontline debates.: A hostile attitude to any sort of state intervention whatsoever in the family. With arguments akin to something that has come to dominate US politics, some of those on the No side basically inferring that ‘child snatch panels’ would be established. The current legal regime for removing children from families will remain in place (see generally, Child Care Act 1991 (as amended)). The 1991 Act quite rightly places substantial restrictions on the Health Services Executive (HSE) removing a child from a family (and the situation in Eastenders would not happen in either the UK or in Ireland). There are court proceedings,  with an impartial judge, the parent(s)  of the child will have access, advice and representation from a legal practitioner, and so too will the HSE. As many of you will be aware, by the HSE, I of course mean social workers. The judge will always examine if the actions of the HSE are proportionate i.e. could something less than placing the child in care be a satisfactory solution.  Only after the reason for placing a child into care is established satisfactorily, will a child be placed outside the care of his or her parents. Only in emergency situations will the Gardaí be able to remove a child from his or her parents, and then the issue will come before a court as speedily as possible.

John Waters and Kathy Sinnott have been particularly vocal on this proposed amendment representing an unwarranted intrusion by state services on the family. It is not. What purpose would be satisfied by the state just ‘snatching’ children from parents and placing them into foster care? Why would the state suddenly seek to remove children who are looked after and cared for by their parents and place these children in foster families? This New World Order view on the State merges a high degree of disrespect and distrust for the state, coupled with paranoia about hidden agendas.

Similar arguments have been made about ‘forced adoption’, once again ignoring the significant hurdles that have to be overcome before any child in the State can be adopted. There will continue to be significant hurdles to adopting a child if the amendment is carried tomorrow (see here and here).

For a detailed analysis of the each of the provisions of the proposed Article 42A, and for commentary on aspects of the proposed constitutional amendment, see here.

This concludes Human Rights in Ireland’s blog carnival on the children’s referendum.  The blog carnival was organised by Liam Thornton and Aoife Nolan. Aoife Nolan is Professor of International Human Rights Law in University of Nottingham. Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin.