A Response to Brian Lenihan TD, Minister for Children,
from the Archbishop of Dublin, the Most Revd Dr John Neill.
I am grateful for the briefing document on the proposed wording for the Referendum to amend the Constitution in relation to children which you sent to me on January 31st. As you wish for a response by today, February 2nd, I make first a few general comments.
I make the following specific comments in the light of consultation:
Proposition 1: Rights of Children.
In January 2005, as part of its submission to the All Party Oireachtas Committee on the Constitution (APOCC), the Church of Ireland recommended “the express guaranteeing of the rights of the child in Article 41.” However, the Church of Ireland did acknowledge that the courts have “interpreted the Constitution as conferring unenumerated Constitutional rights on children arising particularly under Article 40.3.” The Minister has now suggested that the protection of personal rights as outlined in Article 40 apply “equally to children” and therefore do “not need explicit or exhaustive restatement.”
The Minister does propose, however, that there is a need for an explicit expression of children’s rights and how they are linked and balanced with the duties of parents (into Article 42.5). We would welcome this.
We also welcome the extension of protection to all children, regardless of the marital status of their parents. In our submission to APOCC in 2005, we called for a wider definition of the family, and constitutional protection to be offered to all:
We favour the inclusion in the Constitution of a broad definition of the family which will not only continue to protect the institution of marriage but will also allow the State to recognise the numerous units which are generally regarded as family units but which are not marriage based.
………..By amending the Constitution to provide a definition of the family wider than that based only on marriage, such constitutional protection can of course be given.
We did stress marriage as the optimum context, particularly for the raising of children. However, in this briefing document, the Minister assures that there will be no “challenging or amending the concept of the family founded in marriage as the “natural, primary and fundamental unit group of Society (Article 41.1.1).”
We are also happy to see that the rights of the individual child are to be balanced with the rights of the family unit. In 2005, the Church of Ireland proposed:
“The emphasis on the family as a unit under Article 41.1 has meant that at times the rights of the unit have over–ridden the rights of the individual members of the unit. This situation is unsatisfactory. In line with the Constitution Review Group’s views, we feel that, while the family unit may be entitled to special protection from the State, the individual rights and duties deriving from marriage, family, parenthood or childhood should be guaranteed to and imposed on the individuals concerned.”
Any provision that allows for the individual rights of the child to be taken into account, without interfering with the family as the primary unit, is to be welcomed. The Minister, in this document, assures that no such interference will occur.
Proposition 2:
We welcome the word “proportionate” as included in Proposition 2. We take this to mean, that there will be a range of methods of intervention by the State that will be appropriate to the individual case and will ensure that being taken into care only occurs when other interventions have been considered or completed. The Minister assures that this proposed change will not result in an increase in the number of children in care.
However, following on from the Baby Ann case, we would welcome a provision that allows for continuity of care for the best interests of the child. The provision to allow all children, including those of marriage, to be made eligible for consensual adoption, would appear to be consistent with the general desire for equality for all children which prevails throughout all the prepositions.
Preposition 5: Protection of children from sexual exploitation.
In our submission to the Joint Committee on Child Protection, we did not support the lowering of the age of consent. However, we do not wish to criminalise young people. We did call for protection for children, particularly from those in authority. We would therefore welcome the absolute zone of protection and are happy that a Constitutional amendment to allow for the Oireachtas to introduce such protections, be made.
We further note that Proposition 5 provides for the Oireachtas to enact laws providing for absolute criminal liability in respect of sexual activity with children. There is nothing wrong with that but why is it confined to sexual activity? A number of social work reports have highlighted appalling abuse which was not sexual but which was condoned though not in law because of parental rights – The Western Farmer Case and Kelly a Child is dead. The concept of absolute criminal liability might be expanded to at least the area of physical abuse of children.
+John Dublin:
Archbishop of Dublin,
Primate of Ireland
February 2007