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Legal experts are warning citizens of Ireland about a Nov. 10 “Children’s Rights Referendum” that they fear is so ambiguous it could be used by the government to replace parents in their roles as decision-makers for their children.
“What is proposed in the amendment is a subtle, yet definite philosophical shift short of being the legal maid-of-all work that it may or may not be,” said an analysis developed by University College Cork law professor Bénédicte Sage-Fuller and history professor Gabriel Doherty, along with Grégor Puppinck, director of the European Center for Law and Justice.
At issue is a referendum that would redefine the role of government in helping children the government determines may be in need of assistance.
While it sounds to some like a praiseworthy goal, the analysts have doubts.
“The threshold of intervention … reveals this new approach: ‘when the safety or welfare’ of children ‘is likely to be prejudicially affected’, the state can intervene,” they write, “and take various kinds of measures, from family support to compulsory adoption.”
The current standard allows government to intervene “when the parents fail.”
Changing that to “when the safety or welfare … is likely to be prejudicially affected” is “revealing of the paradigm shift,” the legal experts conclude.
Puppinck said the issue centers on the philosophy of family, children and the state, as well as questions of abuse, neglect, the rights of unmarried fathers, the status of children of unmarried parents and other important pieces of Ireland’s social fabric.
The Irish Constitution now recognizes the family as the bedrock of society, in article 41, and pledges to respect it as an entity in which children are born and raised by their parents in a spirit of love and responsibility towards society. It also makes provision for obligatory intervention to protect children when parents do not fulfill their duties of love, care, protection or education towards their children, the analysts said.
“The type of relationship between the family and the state under the Irish Constitution is therefore based on the philosophy that the family is the best place for a child to be, that the state has the obligation to support families in their endeavor to raise and educate their children, but in some exceptional circumstances, the state must supply the place of the parents when children are not cared for the way they should be,” they note.
Such a philosophy has been illuminating human history at least since the Fourth Commandment: “You shall love your father and mother.”
Such an idea “is perfectly consistent with all major provisions of international law relating to family: the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both affirm that the ‘family is the natural and fundamental unit of society, and is entitled to the protection of society and the state,'” the analysis said.
But the new standard, they said, would allow government intervention if the government itself decides there is the possibility of a child’s status being “prejudicially affected.”
In this scenario, it is “not difficult to accept that the state, speaking through courts of law, should get to decide what is in the ‘Best Interest of the Child.'”
“The family is no longer presumed to be, by nature, the safest place for the children, but the state,” they said.
“The legal debate in Ireland is about the precise future effects of the proposed precautionary threshold of intervention, and whether it will or not allow the state to interfere unduly in the life of the family, not for real reasons of abuse or neglect, but because children may not be raised in accordance with state standards,” they said.
In a separate analysis, Michael A. Vacca, a Blackstone Fellow with Alliance Defending Freedom, wrote: “The problem with the referendum is not that it implements the Convention on the Rights of the Child in Irish law: the problem with the Children’s Rights Referendum is that it violates the Convention on the Rights of the Child.”
He said adoption will leave Ireland “out of step with the most widely ratified human rights treaty in the world.”
He warns that the other treaties and conventions establish that parental rights are not absolute, but they are primary. But he said the Irish proposal contemplates state action “that is not mediated through the protection of parental rights and duties.”
“The child is viewed as an isolated individual rather than as part of a family. As a result, the child becomes a creature of the state of Ireland. Ironically, by claiming the authority of Ireland to safeguard the best interests of the child independent of parental rights, Ireland would thus violate the right of children not to have their families interfered with through the dismissal of parental rights in violation of the Convention on the Rights of the Children,” he wrote.
Further, it creates a state-run guessing game, he noted, where “Ireland must make projections about the future welfare of children in determining whether it will ‘endeavor to supply the place of parents.'”
He warned, “If this referendum passes, Irish children will belong to the state, and parents will be powerless to protect their own children form the state.”
He explained that’s because terms such as “duty” as well as “best interests” remain undefined and so could be applied in any way a social agency would choose.
“The Children’s Rights Referendum gives Ireland absolute control over children in Ireland, who are subjected to the fancies of the state and can be deprived of loving and caring parents without a clear showing of parental neglect or abuse,” he concluded.