In this morning’s Irish Times Vincent Browne writes that Saturday’s Children’s Rights Referendum is an unnecessary stunt by the government. He dismisses the claim that children’s rights aren’t recognised in the existing constitution as “shameless nonsense,” arguing that:
Children as citizens of the State are conferred with as much in the way of rights as anybody else in article 40.3.1, which states: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” The proposed change makes no difference at all legally but it conveys a cosy feeling that we care about children.
This argument, while not uncommon, is very obviously incorrect. Children are ineligible to vote, are prohibited from holding public office, cannot own property, and cannot work to make reasonable provision for their domestic needs. To suggest that they are “conferred with as much in the way of rights as anyone else” is ludicrous.
Of course, there are good reasons for that – I’m not arguing for Baby TDs or child labour. However, because children’s limited agency forces them into dependence on others for access to basic needs and because the constitution denies them the rights that allow citizens personal independence, it is entirely consistent that in the same constitution special provision be made for their protection.
There are legal impediments to children escaping situations of violence or abuse – that they cannot be independent through work, that they can’t gain ownership over a place to live and the person responsible for the violence is very often also responsible for the child. Adults can independently escape from abusive situations, though there are obviously significant barriers to doing so. Children can’t. Given that the constitution incapacitates them, it should also affirm the state’s responsibility to protect them.
Children do not have avenues to expressing themselves effectively. Adults, when their needs are not being met, can vote, can take legal action, can appeal legal decisions to higher courts and can involve themselves in the political system. Those avenues to being heard are universally available to those over the age of 18. In cases pertaining to children a decent judge will consider the view of the child, a good social worker will interact with the child to assess his or her opinions and preferences, a guardian ad litem (in the very rare cases when they are provided) can represent the voice of the child in legal proceedings. But these protections are dependent on circumstance and luck. This amendment provides children with a universal entitlement to speak and be heard in the discussions that shape their lives.
Many people I’ve spoken to are concerned that more power is being given to the state, which has failed so monumentally in the past. That concern is valid, but I feel that if you look at instances of state failure, in a huge number of them the problem was that organs of the state didn’t know what to do or were given too much freedom to do as they pleased.
Social workers and judges who left children in situations of appalling abuse weren’t criticised or held to a higher standard, because in the current constitution that standard doesn’t exist. It establishes that the family is good and it establishes that abuse is bad, but everything else is remarkably hazy. By making these things explicit, we make the responsibilities of the state explicit. Therefore, if they fail there isn’t the same scope to sweep it under the rug and hope for the best. Instead, if the state fails children (and it will at times) it can be more easily challenged and held to account, right up to the highest court in the land.
I’ve only addressed one element of the discussion, you can read analysis of the others at Yes for Children. Please support this referendum, and please please please get out and vote on Saturday. The higher the turnout, the stronger the mandate, the better for children.