NUI Galway

The Children’s Referendum Ireland, the Children’s Referendum and Comparisons with Sweden

Compiled by Ammi Burke 10/23/2012

I. Introduction

II. The proposed change to the Irish

Constitution

III. Recent Statistics regarding

Children in State care

IV. Implications of such a change

V. Case Study: Law on Children and

Children’s Rights in Sweden

VI. Why I Am Voting No

VII. Conclusion

Compiled by: Ammi Burke

Email: a.burke36@nuigalway.ie

Table of Contents

Introduction

In June 2012, a press conference was held in Ireland. Frances Fitzgerald, the Minister for

Children was present, as were Norah Gibbons and Dr Geoffrey Shannon, the authors of the

recent Report of Child Death by Independent Review 2000 – 2010.1

Dr Geoffrey Shannon, one of the authors of the report, said that deference to parental

rights in the Constitution impeded the State in intervening in a number of cases. When it did

intervene, it often came too late. He said he hoped the legacy of the report would be a

referendum on the rights of the child.2

A referendum was indeed proposed and planned, and will be put to the people on

November 10.

1 Irish Times: June 21, 2012: http://www.irishtimes.com/newspaper/ireland/2012/0621/1224318357809.html

2 Ibid

For more on public response to these HSE care findings, see: http://www.irishtimes.com/newspaper/ireland/2012/0621/1224318357825.html and also: A Story of Shame - http://www.irishtimes.com/newspaper/opinion/2012/0621/1224318357346.html?via=rel

Proposed Change to the Constitution

The Government proposes to change the Constitution by adding the following new article

42A. The current Article 42.5 will be removed.3

PROPOSED NEW ARTICLE 42A

Children

The State recognises and affirms the natural and imprescriptible rights of all children and

shall, as far as practicable, by its laws protect and vindicate those rights.

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 guardian of the common good shall, by

proportionate means as provided by law, endeavour to supply the place of the parents, but

always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have

failed for such a period of time as may be prescribed by law in their duty towards the child

and where the best interests of the child so require.

Provision shall be made by law for the voluntary placement for adoption and the adoption

of any child.

1° Provision shall be made by law that in the resolution of all proceedings-

(i) brought by the State, as guardian of the common good, for the purpose of preventing the

safety and welfare of any child from being prejudicially affected, or

(ii) concerning the adoption, guardianship or custody of, or access to, any child, the best

interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings

referred to in subsection 1° of this section in respect of any child who is capable of forming

his or her own views, the views of the child shall be ascertained and given due weight

having regard to the age and maturity of the child.

3 http://www.referendum2012.ie/proposed-article/ You should read the analysis given regarding this change

on the page headed “State intervention if Parents fail in their duty”

Children in State care: the track record of the State so far

Before the implications of such a change in the Constitution are discussed, it is necessary to consider the record of the State so far, in its care of vulnerable children. (The information below, obtained under the Freedom of Information Act, was provided by the HSE and was never made available before.)

In 2010, more than 2000 were children taken into care. o 218 children disappeared

o 26 ended up expecting their own child

Over the past decade (2000 – 2010), 196 children in State care have died [with 112

of these deaths attributable to “unnatural causes” – overdoses, suicide, unlawful

killings and other non-natural causes].

That is an average of 18 children’s deaths per year4

The HSE has blamed its failure to collate these figures up to now on its "lack of

national standard for notifying deaths of children in care or deaths of children known

to child protection services".5

Do we wish to give more power to a State with such a record?

4 http://www.dailymail.co.uk/news/article-2083736/Revealed-Twenty-children-HSE-care-pregnant-year.html

The official analysis, provided by the HSE itself is available here: http://www.hse.ie/eng/services/News/newsarchive/2010archive/june2010/childrenjun4.html 5 http://www.hse.ie/eng/services/News/newsarchive/2012archive/may2012archive/nationalreviewpanel.html

This HSE webpage also contains figures for child death rates in the period 2010 – May 2012: In this recent period 46 deaths have been notified to HIQA (the Health Information and Quality Authority). These children were either in care, known to Child Protection Services or young adults who had previously been in care.

Implications of the Proposed Change

The Amendment will provide “by law for the adoption of any child” and also provide that “the views of the child shall be ascertained and given due weight”.

THE YES SIDE

There are many children’s “rights” groups in favour of the amendment. The Yes campaign is being led by Barnardos, the Children’s Rights Alliance, and the ISPCC; under the umbrella name of Campaign for Children.

Here is what some of those campaigning for a Yes vote say about the proposed change:

“A children’s rights amendment could provide the State with the necessary tools to develop the very best care, adoption and child protection systems. For example, at present, the Constitution hinders the adoption of children whose parents are married. This effects up to 2,000 children currently in long term foster care, who have grown up with little or no regular contact with their married birth parents.”

(www.childrensrights.ie)

“‘The amendment affirms the rights of the child and allows the State in exceptional circumstances to take the place of parents. It also provides for the legal adoption of children where parents have failed in their duty. The new article also states the best interests of the child should be the paramount consideration in any legal proceedings.”

(United Nations)

But who will define what the best interests of the child are?

The question is not so much WHETHER children are entitled to such rights

but WHO is to provide them.

Should the State be responsible for those rights, or the family?

Until now, the parents were the primary body in deciding the best interests of

the child.

In Reality

Dr Oran Doyle, a Fellow of Trinity College Dublin writes in his article, “The real source of

contention in current debate, and the likely focus of any referendum proposal, is the

question of when the State may intervene and take children into care or start making

decisions on behalf of children that override the wishes of the parents.

“To call this a children’s rights issue is somewhat misleading; the issue here concerns who

exercises for children the rights that they cannot exercise themselves.”6

The phrase, “best interests of the child”, is ambiguous. With regard to a child’s best

interests Dr Gerard Hogan7 is quoted in the report as follows: “it is all very well to say that

children’s interests must be safeguarded. But who is to decide this and what does it mean?”

Vague terms that leave interpretation wide open are not in the best interests of our

children, if we are to change our constitution to the advantage of our children, the meaning

must be precise and not open to varying degrees of interpretation. This is especially

important when it is allowing for the adoption of children whose parents are not

consenting.8

Regarding Abuse cases:

Nobody will deny that abuse happens. What the current controversy is about is how we

should respond. Do we give more power to the state, or to we empower the family? The

amendment does the former, while I support the latter (as the only ethical way to go).

To place the state in the position where they have ultimate power to decide ethics ("lawful

duty") is to absolve the family of responsibility.9

The more one studies it, the more one realizes that the Children’s Referendum is a complete

misnomer. It doesn’t give rights to children at all, but transfers ultimate authority of all

children to the “State”. 10

6 This article appeared in the Irish Times, February 21:

http://www.irishtimes.com/newspaper/opinion/2012/0221/1224312113156.html There are some good quotes following this article. 7 Mr Justice Gerard Hogan, constitutional law expert and High Court judge

8 News Beacon Ireland; Sonya Oldham, PAW - http://news-beacon-ireland.info/?p=7111

9 Enoch Burke, Director of Campaign for Conscience

10 A letter written by Nora Bennis, North Circular Road, Limerick - http://news-beacon-ireland.info/?p=7089

See Joe Burns’ article, New Children’s Rights Explained: http://news-beacon-ireland.info/?p=6389

Case Study: Law on Children & Children’s Rights in Sweden

Case in Sweden

Sweden is touted as the country at the forefront of children’s rights implementation in

recent decades. The Children’s Rights movement is represented by Rädda Barnen (Swedish

Save the Children) and Barnens Rätt i Samhallet (Children's Rights in Society).

The Law in Sweden on Investigation

(The following data is taken from “Child Welfare in Sweden – an overview” by Sven Hessle

and Bo Vinnerljung).

It is mandatory for all professionals who come into contact with children and youth in their

work, to report anything that may cause child welfare authorities to intervene for a child's

protection. For other citizens, the law says they "ought to" notify child welfare authorities.

Child welfare social workers must start an investigation when they receive a report, without

delay. If needed, a child can be taken into compulsory care immediately, for investigation

purposes or in emergency situations. These kinds of placements have increased

considerably during the 1990ies (Socialstyrelsen, 1998a).

The national prevalence and incidence of reports is unknown, since there are no uniform

routines for registering and counting reports.

In one Stockholm district, 7% (!) of all 15 - 17 year olds were in care 1998 (Begler & Wanell).

The Result of Children’s Rights Law

In February 2011, social service workers in Sweden snatched 2 girls from a music class

without warning. The two were held for a week before the mother was notified of

allegations that the family were “psychologically troubled”. This was enough, legal under

Swedish law, even if there was no evidence of problems.

Jenny Beltran, a lawyer, told the Russian news agency, “It is considered legal because the

law, it’s a protection law, protection for the children. So it means that even if there is a

slightest risk, even if there is no evidence, sort of there are no witnesses, there is nothing,

but there is a risk of something happening, then the law, the social workers within the law

are able to take the child to a social office and take them away from the family.”

As you can be sure, the news agency was unable to get a comment from Swedish social

services – who instead cited a “Privacy Policy.”

The mother was told that the chances of getting her children back were slim, and that they

were at this stage likely with a Swedish family.

Jacob Sundberg, international lawyer, was interviewed regarding the case and said that

Sweden is a consensus country. People are not prone to speak up against the consensus.

The consensus is that the State is always right. Social services can take children away using

their own criteria, by working together with doctors, pyschologists, and lawyers all wrapped

up in a big business. Say you have 6 foster children, Sundberg said, you can make a fortune.

Swedish Law on Children11

It is always what is best for the child that decides what the Social Office does. The Social Office can give the family advice and support. They can give treatment and medical care. Sometimes the child can feel better if it gets to live and have care outside the home. If the Social Office and the parents or the person who cares for the child cannot agree about what they will do, the Social Office will see what the child needs and give it to the child, even if the parents or the person who cares for the child do not agree.

Sometimes the Social Office will say that the child needs to be looked after outside its home, even if the family does not want this.

The Care of Young People Act (LVU) says that The Social Office can ask a court to decide. Both the family and the child are given legal help, usually by a lawyer. The court (Länsrätten) will then decide if the child should be taken away for care outside the home or not.

The Social Services Act says that all grownups must say if they think a child has problems.

Everybody who works with children in a municipality for the county council or state must say if they think a child is badly treated.

11http://www.nyiostergotland.se/engelska/6childrensrightsandswedishfamilypolicy.4.1a95f7bc121e4b14435800010346.html Accessed 2/10/2012

Why I Am Voting No

1. Irish law already adequately protects children.

a. Children rights currently exist under Article 40: ‘All citizens shall, as human

persons, be held equal before the law.’

b. Under the Lisbon Treaty, Ireland adheres to the Charter of Fundamental

Rights of the European Union. This charter includes Article 24 – ‘The Rights of

the Child’.

i. 1. Children shall have the right to such protection and care as is

necessary for their wellbeing. They may express their views freely.

Such views shall be taken into consideration on matters which

concern them in accordance with their age and maturity.

ii. 2. In all actions relating to children, whether taken by public

authorities or private institutions, the child’s best interests must be a

primary consideration.

iii. 3. Every child shall have the right to maintain on a regular basis a

personal relationship and direct contact with both his or her parents,

unless that is contrary to his or her interests.

c. The HSE has overall responsibility for the assessment and management of

child protection concerns.

d. An Garda Siochana has responsibility for the investigation of alleged offences,

and also has power to intervene to protect children in emergencies and to

remove a child to a place of safety.

2. The problems presented to us as reasons to vote Yes are the result of bad practice

on behalf of State services. Solutions for these pressing problems already exist.

3. This amendment is really about removing power from parents and giving it to the

State.

a. The amendment states that in certain cases, ‘the State as guardian of the

common good shall, by proportionate means as provided by law, endeavour

to supply the place of the parents’.

b. This will give power to social workers to remove children immediately from

their parents, on the basis of some ‘subjective’ future problem, where the

‘safety or welfare of [a child] is likely to be prejudicially affected’.

c. The indefinite nature of such wording leaves it open to a variety of

interpretations.

4. The State record is far from commendable and leaves much to be desired.

a. Since 2000, 509 children have gone missing from State care. 451 are still

unaccounted for.

b. 23 children in State care or known to the child protection services died from

March 2010 – June 2011 (this excludes deaths from natural causes). Causes

of death were 9 by suicide, 4 by drug overdoses, 2 by homicide, 5 in road

traffic incidents and 3 in other accidents.

5. Parents are better for children than the State.

Studies comparing children in non-parental care with children in parental care (e.g. living

with their parents) show that children in parental care perform significantly better

academically and socially and are less likely to be aggressive. Children in non-parental care

have a greater risk of developing emotional and psychological problems and are more likely

to go to prison than university.

Conclusion

Who, ultimately, has responsibility for the child? Is it the state? Or is it the

family? Who should we empower to care for the child? To whom should we assign

responsibility for their development? How one answers this question means

everything in this referendum.

Responsibility means power. Power means responsibility. At present, the family is

strongly protected in the Irish Constitution. Furthermore, it is understood that the

family has “inalienable and imprescriptible rights” (41.1). It has rights. It has

responsibilities. The welfare of the child is understood to be one of those

Essentially, this amendment will empower the state. It will make the

state more responsible for the child’s welfare. For this to happen,

however, power must be transferred. The parents must, inevitably,

accede responsibility for the children to the state. The family must be

made less powerful, if the state is to be made more powerful. The family will

be made less responsible if the state is made more responsible. There is no

middle ground. Power given is power transferred.

This paper has demonstrated the tragic consequences of a blanket transfer of power

to the State. Sweden is a clear case of such. The Irish record of state-sponsored

childcare in the form of the HSE has proved a destructive saga.

Such a transfer is not only judicially compromised and socially unsustainable,

it is ethically unsound.