The Irish Children’s Rights Referendum…

Posted: October 25, 2012 in Uncategorized
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On November 10th Ireland will hold another referendum. Referendums are getting nearly as popular as tribunals with the 2 Nice Treaty referenda, the Lisbon Treaty referenda,  the  “ESM treaty” referendum and now a Children’s rights referendum. I had hoped to avoid blogging about the latter but the matter is too serious and the spin from the “yes” side to thick to ignore it any longer.

You see the proposed constitutional amendment (to articles 42.A.4.1 & 42A.4.2) is being proposed as means to better protect the rights of the children in cases of neglect, abuse, or a combination of these. This is to be achieved by giving the state more power to (forcibly) remove children from their parents custody. Even if this is against the wishes of both the parents AND the child. The state will be able to come and take children out of their homes and forcibly put them up for adoption. If they deem that there is enough reason to do so.

Article 42A.2.1: In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the state as the guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with the due regard for the natural and imprescriptible rights of the child.

Now who can find something wrong with that? Surely its all to the betterment of the rights of the child right? Wrong!

Let’s take a closer look at the parts I’ve highlighted; First of all there is the reference to “the state as the guardian of the common good”. Call me a cynic but I have so far seen very few states where this “common good” was an unequivocal and unilaterally accepted principle. Au contraire, “common good” is an as ambiguous principle as possible. So if we enshrine in the constitution that the state is  the guardian of this ambivalent condition than we basically give carte blanche to future governments to interpret that at will. Secondly there is the suggestion that the state “supply the place of the parents”. That is not only wrong but also biologically impossible. The definition of parents (according to is “a father or a mother”. The state is not only genderless, it is also an abstract entity. While the state can assume guardianship over children they can never be “parents”. Including that term in the proposed amendment is equal measures wrong and insulting. It is impossible for the state with even the best intentions to provide the quality of care for a child that a parent will provide. Lastly there is “”proportionate means as provided by law”. This is a change from the “appropriate means” term in the current constitution. What it means is that the state will not stop at this change in the constitution, the use of the term “proportionate” means they will have to enshrine these constitutional powers in law. This gives them increased powers to enforce these amendments on you.

What also offends me that there is clear mention of the increased powers of the state, the amendment makes no mention of the right of parents. Instead it actually erodes the rights of parents to raise their children in a responsible manner as they see fit. Instead it puts parents in a position where they are accountable to the state for how they raise their children. This is only an intellectual hop and a skip from the state deciding how many children parents are allowed to have or what religions are “preferential”. Lets just note that the Irish state’s record in this area is far from examplary. The reprehensible levels of child abuse that took place in Irish institutions in the previous decades took place after the state put the children in these institutions. Even now the country’s health care system, the HSE, let nearly 200 children die while they were in its care. And the Irish people are now supposed to give this same state more CONSTITUTIONAL powers on a promise that the system will be changed?! Sounds like a cart before the horse approach to me.

Several years ago I had a “experience” with the HSE’s department of child protection that did little to instill confidence in their abilities. At the time someone who lived locally and who I was pursuing for a substantial amount of money owed decided to get back to me by hurting it where it hurts most; my children. What happened is that they made an anonymous phone-call to the local childrens protection office accusing my wife and myself of neglecting our children. As it emerged later the extent of this “neglect” was laughable. Apparently our children sometimes attended school without the sufficient amount of pens, pencils, copybooks or not wearing a complete uniform. Hardly abuse but it was enough to put the HSE machine in motion. The first thing that we learned of it is when we received a letter making us aware of the anonymous complaint and notifying us that a child care worker would visit us for an inspection in two weeks time. Now if we had been abusive parent those two weeks would have given plenty of time to hide any and all signs of abuse and/or neglect. In our case we had done nothing wrong (anyone who knows us is aware that we ALWAYS put our children’s welfare first). and the letter caused so much upset that we were not willing to wait two weeks for any further clarification. What we did instead is contact the HSE and demand they send an inspector to our house ASAP! And preferably without any notice.

Next we contacted the primary school which our children attended to discuss this with the schools principal.Her relief when we spoke to her was immense. Apparently the HSE had contacted her when the complaint was initially made to verify the accusations. She had vehemently denied these and made clear to the HSE person that we actually took very good care of our children and that they were smart, and pleasant children. However this was not enough for the HSE, in spite of the fact that the allegations had now been refuted by a reputable 3rd party. She was instructed *not* to discuss the matter with us and that the HSE would investigate the matter further.

The inspectors visit was rather uneventful as it was obvious that the complaints was without both without any basis and made maliciously. However rather than dismiss the case we received a notifications several weeks later that the investigation was closed “due to lack of supporting evidence”.  As you can imagine this whole affair was a far from pleasant experience and we are far from happy with the way it was handled.

However considering all that I am of the opinion that if the HSE had, at the time, the powers that the proposed constitutional amendment would give them it would have gone far different. It would make it likely and legal for the HSE to remove children from parental custody while a case is investigated. And to do so without informing the parents of the exact details of the case. This is already common practice in the UK where even the family court cases are being held in “secret”.

There is also the case of “common good”. Take the example of recent large scale vaccination programs. Take the case of the H5N1 (avian flu) outbreak. In a panic measure a vaccine which had only had limited trials was pushed on the general public. Everyone was strongly “advised” to vaccinate not only themselves but more urgently their children. Based on our own research we decided that the risk of being injected with a largely untested vaccine was greater than the risk of contracting Avian flu. Looking back we were correct as several side effects have manifested while the number of actual infections with the virus have been minimal. Then there is the case of the mass vaccination of pre-teen girls with the human papillomavirus vaccine to prevent cervical cancer. Vaccination programs were organised through schools rather than voluntary through doctors practices and as nobody wants their children to develop cancer we allowed our two eldest daughters to receive the vaccine. As it now expires it not only can cause premature ovarian failure, it also only protects against 2 out of 5 possible strains of the cancer.

Anyway, my point is that increased power to the state would put them in a position to say that vaccinations are in the name of the common good (in fact they have already said so) and to force parents to either have their children vaccinated or to take the children into custody.  If you think that’s crazy thinking then I advise you to check Minister of Social Protection statement recently where she hinted that vaccinations could be tied to child benefit payments and or school admittance. Where I come from that’s called a “worrying development”…

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  1. eoinmadden says:

    The current 42.5

    In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

  2. eoinmadden says:

    So what I am getting at is “state as the guardian of the common good” and ” supply the place of the parents” are already in the constitution.

    The real change in 42.5 is from
    “appropriate means”
    “proportionate means as provided by law”

    • evertb says:


      Agreed, those two are already in the current article.
      However the proposed amendment would make it mandatory to write the revised content into law (the “appropriate means”) thereby making it enforcable and granting the state much more authority in this area. So yes on both fronts; I think the current constitution needs updating but the proposed amendment would only make matters worse..

  3. eoinmadden says:

    I’m sorry to hear about that nasty incident by the way.

    But I’m a little confused.. do you think that the HSE over-reacted or that they under-reacted?

  4. shoegirl says:

    1. The flu vaccine did not have “limited” trails. The pharma I was managing a testing system for at the time was put on 24×7 duty to get validation tests done in order to satisfy requirements. FDA don’t drop testing requirements for public health alerted vaccines. Its extremely common for drugs and vaccines, despite full and intensive testing over time to reveal unintended consequences as mass use increases. This is misinformation, pure and simple.
    2. It is not “common practice” to whip children into care away from parents in the UK. Please see here –
    At present, in fact, in Ireland, if there is a serious risk to a child, it will most likely be moved to a concerned family member, and the local health authority will start the process of background checking with a view to longer term placements. Its very rare, even in cases of extreme violence (and I have seen this happen in practice) to take a child into the care of the state – the reason for this is that there is generally nowhere to place the child (one of the consequences of the childrens home closures of the 1990s was that short term placements became very close to impossible – nowadays foster carers take the place, if and where they can cope).
    3. Legal cases such as the Baby Leane case, the Roscommon case and other in camera cases reinforce the case for needing legal change as constitutional law was used in these cases to obstruct what was perceived as family break up. Even now, a case is pending before the courts for a man who has beaten his wife into a state of complete disability, for custody of his children, and this case is expected to proceed under the terms of the existing constitution. Removing loopholes like this would help prevent people like this man from being able to misuse the courts to inflict further harm on those around them.
    4. Even where parents consent, children cannot be placed for adoption. Adoption law is crying out to change.

    • evertb says:

      1) This was a new strain of Avian Flu and hence a new version of the vaccine. As the average
      length of clinical trials is 700+ days (According to Tufts: there is no way
      that the vaccine was submitted to the same scrutiny as other, similar, pharmaceutical products.

      2) Using a UK government website stating that the UK government does not ” whip children into
      care away from parents in the UK” is hardly supporting your argument. The chances of a UK
      government actually admitting the practices highlighted by people such as Brian Gerrish are
      fairly small wouldn’t you agree?

      3) Basing constitutional change on a few extreme cases is hardly good practice, I do agree that
      the current constitution requires changes (not only these few articles) but before we enshrine
      increased governmental powers into our constitution we need to overhaul the current broken
      system. There has been more failures to protect children through bad practice than that there
      have been cases of failure due to inadequate legislation.

      Lastly this is also principal matter; those who think that the state always knows best and who support the subordination of individual rights to that of the government will certainly welcome the proposed constitutional amendment…

  5. Terms such as ‘natural rights’ and ‘imprescriptible rights’ belong to a narrow Roman Catholic moral tradition that is widely considered to be discredited by most philosophers and thinkers in ethics. Utilitarian moral philosopher and law reformer Jeremy Bentham called these terms “nonsense upon stilts”.

    The proposed amendment is written in technical, obfuscatory language that only legal experts can understand, and only Catholic legal scholars would agree with. Yet the general voting public is being asked to endorse it. In order to make a judgement, they have to pass their decision-making powers over to the judgement of Catholic “experts”. Isn’t that exactly how so many chiold rapes were committed in Ireland in the first place.

    This self-righteous and foolish piece of legislation stinks.

    • evertb says:

      Excuse me? Can you say that again in plain English please?

    • redser says:

      Quite a number of “Catholic legal scholars” are opposed to this proposed amendment. However, I agree that in order to accurately interpret the change to article 42 one would have to at the very least have a legal dictionary to hand. The “Yes to Children” spin is ridiculous and patronizing. Those opposed are being painted as uncaring and even sinister in some cases. This could not be further from reality. A huge swath of the electorate will be emotionally blackmailed into a Yes vote and many others will vote Yes due to ignorance and intimidation. The apathetic % will do what they usually do, either not bother to vote or just vote yes because they couldn’t be bothered to do even the minimum amount of research. A nation deserves the government & justice arrived at by its own ignorance and apathy. It’s a shame the very children so patronizingly referred to in the shameful spin have no say in the destiny our coalition so enthusiastically concocts for them.

  6. I reject your premise … you raise suspiscion against State then you go on twitter and say, “prove me wrong”. Cant be proven but doesnt make you right. If you don’t trust the State that’s fine, I respect that. But by extension of that, then you don’t trust the Constitution. Therefore you shouldn’t vote at all in the ref as there’s no point. Calling the actions of the Yes side “spin” is in itself spin. I’m all for arguments on the no side, but I’d rather read a rebuttal of Olivia O’Leary’s piece in the Indo that is supported by facts rather than suspicion and cartoons.

    • evertb says:

      I am sorry but I don’t *just* “raise suspicion against the State”. I actually provide solid facts to underpin my position. The state send children the religious institutions were they were abused on a large scale. The same state was responsible for nearly 200 children that died while in it’s care in recent years.
      The same state that acted careless and failed to ensure the welfare of children on a large scale is now asking us to give them more authority over children than the children’s own parents.
      I fully agree, and I hope that’s clear from my personal experience described above, that the current system is a categorical failure. So rather than provide the failed system with more (constitutional) power we need to solve the problems first and then have an constitutional referendum.

  7. Darragh O Neill says:

    Excellent article. Very candid re your personal experience. Just wondering what would you have liked to see from the HSE regarding allegations???

    • evertb says:

      I can see several means to improve on the approach taken by the HSE. First of all as the (false) allegations all were centered around the school the chat with the schools principal should have cleared everything up and no further investigation should have been necessary. Secondly if you investigate alledged abuse you don’t give the party two weeks written notice. Lastly, as the complaint was categorically proven to be false and malicious I would have liked to see the file destroyed and any references removed from the HSE records.

      • Darragh O Neill says:

        Sorry, saw you kind of answered these questions in previous posts. I would be worried that a call to the school head might not uncover potential issues in the home and to dismiss allegations at that point could show the HSE to be inept or more inept of you will. Thankfully the poliece in UK are looking beyone the head of Dunsfold school in the Jimmy Savile inquiry. According to her nothing happened and the complaints are from trouble makers looking to capitalize on the situation. HSE scheduling an appointment for 2 weeks is just bizarre though.
        Either way I don’t believe this refferendum is in children’s best interests, too many kids I state care missing, abused and dead for my conscience to allow more power to be given. Perhaps they need to get their house in order first.

  8. Colin says:

    I don’t follow. A complaint was made, followed through, and you were vindicated. I don’t see anything in the amendment that would remotely change that. You can see a detailed treatment of this here:

    Included in that analysis is a repudiation of the notion that vaccines could be forced on children. A previous judgment on a related case established that the harm to the child needs to be far more direct. In that case, the parents refused a blood test that checks for a number of conditions on the basis they did not want anything invasive done to their child, and included in that definition taking blood in the normal way.

  9. Jerry says:

    The State really care alright about the children of Ireland – Not. two simple examples as follows. Primary School bus passes by my house every day – my children cant get on it as they are too near the school, too near being a mile and a half! so i have to drive them their as the road is too busy. secondaly one of my children go to a private montessori school where the owner has to have a fridge for their lunch at a certain temp, but it is ok for my other kids lunchs to sit in their school bags all day on the floor in the local national school. Double standards. The State dont care full stop. Vote NO

    • eoinmadden says:


      If there is spare seats on that school bus, then the driver may bring the kids, at his discretion, AFAIK. Either way, it is an inconvience for the parents moreso than the children. It is hardly comparable to child abuse.

      On the topic of school lunches. Would you like HSE come around and inspect the schoolbags of your children, or would you rather they don’t inspect the school fridge. Which is it?

      • eoinmadden says:

        Also Gerry, I will admit that Irish society doesn’t value children, I think, as much as other societies. There is lots that can be improved.

        But voting No won’t improve anything. Not in the slightest.

  10. Bob Merrilees says:

    I was in Dublin last Saturday and the place was covered in ‘Vote YES’ posters. Do you really trust your Gov this much? Even when they’ve already sold you out with the bankers?

    I truly hope the people of Ireland vote ‘NO’ to this. Why? simple, why would you want government to decide what is right and wrong for your children. Don’t they already have ‘rights’?

    Currently we in the UK are listening in horror to the stories of Government cover-ups of paedophilia – jimmy saville as ‘fixer’. But it goes deeper. Many have named Ted Heath as an abuser of young boys from government run care facilities, and Tony Blair issuing ‘D’ notices to hide cabinet ministers caught out using their credit cards to ‘buy’ online child pornography.

    They will ‘fund’ childrens rights which means taking a child into care will ‘gain’ money to the relevant departments and these children will be place ANYWHERE in EU.

    DON’T let them take your children.

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