The wording of a new children's rights amendment was published this week. But as David Quinn reports, it gives the State greatly expanded powers, powers which have been abused overseas

The wording of the proposed referendum on children's rights has been published and upon first examination it gives cause for concern as it appears to give the State greatly increased powers to decide what is in a child's best interests over the heads of parents.

The Constitution as currently worded gives the State the power to intervene in families in 'exceptional cases', for example, where children are being abused or neglected.

The proposed wording removes the reference to 'exceptional cases' meaning the State will be able to intervene in families in non-exceptional cases.

Article 44.4 of the proposed amendment says that if ''the parents of any child fail in their responsibility towards such child'', the State can, by ''proportionate means'', take-over their role as guardians to that child, ''regardless of their marital status''.

What is meant?

But what does ''fail in their responsibility'' mean? What is meant by ''proportionate means''? Ultimately it would be for a court to decide using the advice of social workers and other 'experts'.

In other jurisdictions, where the state already has the power to take over the role of parents in non-exceptional circumstances, we have seen children removed from their parents because the children are deemed too obese. This happened very recently in Scotland.

In Sweden a child was recently removed from her parents because the parents were home-schooling her, and social services decided she was not being properly socialised.

In Canada, a father decided to forbid his adolescent daughter going on a school trip because she was putting what he believed were inappropriate images of herself on the internet. However, the daughter had his decision over-turned by a court in her 'best interests'.

The proposed new amendment speaks of a child's best interests, but this is an infinitely malleable concept as is obvious from the above examples. Different people will have different ideas about what is in a given child's best interests.

At the end of the day, no-one denies that a child's best interests must to the fore when making decisions about children and their welfare. The key question is who gets to decide what is in a child's best interests, and what isn't.

Left to parents

Traditionally, it has been left up to the child's parents, other than in exceptional circumstances.

The new wording does acknowledge that parents are the ''primary and natural carers, educators and protectors of the welfare of a child''.

It guarantees to ''respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children''.

However, as mentioned, this right will become much more limited than it currently is if the new amendment is passed.

Critics of the present Constitution say it puts the rights of parents first, and the rights of children second. In fact, some critics say, it practically ignores the rights of children.

However, in his judgement in the Baby Ann case, Justice Adrian Hardiman strongly rebutted both of these claims.

He said the Constitution ''fully acknowledges the 'natural and imprescriptible rights' and the human dignity of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights''.

Crucially he added: ''The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child's rights.''

This proposed new amendment gives much more power to 'third parties', especially the State, to override parents and decide what is in a child's best interests.

Dubious

It is extremely dubious whether this will be in a child's 'best interests' at all. The State can, and does make mistakes. When children are wrongly removed from their parents, as happens, this, in itself, violates the rights of a child.

This proposed amendment will have to be more carefully examined.

However, at first glance it appears that it greatly diminishes the rights of parents, greatly expands the power of the State, and in so doing, it is almost certainly not advancing the welfare of children.