The following opinion on Ireland’s Children’s Rights
Referendum was prepared by Father John I Fleming PhD, Adjunct Professor of
Bioethics, Southern Cross Bioethics Institute, Adelaide, South Australia
Corresponding Member of the Pontifical Academy for Life.
Proposed Amendment to the Irish Constitution
Article 42A
An Opinion
The Irish Constitution as it currently stands
The Irish Constitution is exemplary in its recognition of
the rights of the family as first educators of the children of the family. This is an explicit recognition of the
family as the fundamental group unit of society which preceded the formation of
the state.
Admirably, the Constitution provides a parens patriae role
for the state in exceptional circumstances where the child is at serious risk
because of parental neglect. This
role is carefully circumscribed in the Constitution such that the natural and
imprescriptable (inalienable) rights of the child are safeguarded. Those rights include the natural right
of the child to be brought up by his or her own parents in the context of their
family life.
Here the opinions of experts and others cannot be held to
override the rights of parents to bring up their own children. It is only when the rights of the child
are, objectively, being violated that the state has a role. Those exceptional cases occur, for
example, when the child’s life and health are at risk, or the parents fail in
their duty to provide an adequate education for their child. It is manifestly not when, in the
opinion of some, children are to be free to use freedom of speech, freedom of
association, or freedom of religion in ways that are not in keeping with the
standards of the family.
The need for change
It is difficult to see how the present Constitutional
arrangements are not fit for purpose.
The rights of the family and the child are already safeguarded. The need for such an amendment should
be more clearly stated and more adequately explained and justified.
The Proposed Constitutional Amendment Article 42A
The draft proposal, while on the surface appearing to be a
fuller iteration of the existing provisions, in fact represents a dramatic
ideological shift in both emphasis and practice.
1. The
shift is away from the prior rights of the family, of parents, to bring up
their children as they see fit (subject only to the “exceptional cases” already
referred to), to a more general application of the principle of the best
interests of the child (undefined) to be supervised by the state.
In short, the state becomes the arbiter of what constitutes
“best interests” and how “best interests” are to be applied.
2. This
is achieved by the requirement that the state legislates to protect the “best
interests” of the child according to its own lights.
3. The
only point of supervision of the state is through the courts where an unelected
group of individuals will be encouraged to move well beyond the black letter
requirements of the law to impose their own personal preferences and opinions
as to what constitutes “best interests” in the light, no doubt, of a plethora
of “experts”.
4. The
caveat “but always with due regard for the natural and imprescriptable rights
of the child” is no safeguard at all.
What is “due regard” and who determines what it means? The reality is that we will be left
with state bureaucrats, politicians, and judges “balancing” the different
opinions in some kind of utilitarian calculus, a calculus which has been aptly
described as a “smokescreen for arbitrary preferences and desires” on the part
of those who will have the power to judge and enforce.
5. The
state may be a “guardian of the common good” but it is not the only “guardian
of the common good”. The people
approve a Constitution and only the people may amend it. But if the wording is “elastic” then
the one with power may usurp from the people what constitutes the “common
good”.
6. It
is important to note also that the amendment provides no independent
supervision of the state’s behaviour when it exercises its parens patriae role.
At the very least, this amendment provides a beachhead by
the state into what has traditionally been the preserve of the rights of
parents in the upbringing of their children.
Relevant Catholic Teaching
Part Three, Chapter Two, Article I of the Catechism of the
Catholic Church (the Catechism) sets out the fundamental understanding of the
relationship between the family and the state that ought to obtain if human
beings are to attain their full potential.
Particularly relevant here is what is necessary if the
family and the state are to correspond more directly to the nature of man:
To promote the participation of the greatest number in the life of a society, the creation of voluntary associations and institutions must be encouraged "on both national and international levels, which relate to economic and social goals, to cultural and recreational activities, to sport, to various professions, and to political affairs." This "socialization" also expresses the natural tendency for human beings to associate with one another for the sake of attaining objectives that exceed individual capacities. It develops the qualities of the person, especially the sense of initiative and responsibility, and helps guarantee his rights.1
Having said that the Catechism then immediately gives us a
warning:
Socialization also presents dangers. Excessive intervention by the state can threaten personal freedom and initiative. the teaching of the Church has elaborated the principle of subsidiarity, according to which "a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to co-ordinate its activity with the activities of the rest of society, always with a view to the common good."2
God has not willed to reserve to himself all exercise of power. He entrusts to every creature the functions it is capable of performing, according to the capacities of its own nature. This mode of governance ought to be followed in social life. The way God acts in governing the world, which bears witness to such great regard for human freedom, should inspire the wisdom of those who govern human communities. They should behave as ministers of divine providence. 3The principle of subsidiarity is opposed to all forms of collectivism. It sets limits for state intervention. It aims at harmonizing the relationships between individuals and societies. It tends toward the establishment of true international order. 4
The Catholic Church and the Convention on the Rights of the
Child
The Holy See has signed and ratified the Convention on the
Rights of the Child (20 Apr 1990).
But it is a signatory subject to certain expressed reservations:
Holy See Reservations:
"a) [The Holy See] interprets the phrase `Family
planning education and services' in article 24.2, to mean only those methods of
family planning which it considers morally acceptable, that is, the natural
methods of family planning.
"b) [The Holy See] interprets the articles of the
Convention in a way which safeguards the primary and inalienable rights of
parents, in particular insofar as these rights concern education (articles 13
and 28), religion (article 14), association with others (article 15) and
privacy (article 16).
"c) [The Holy See declares] that the application of the
Convention be compatible in practice with the particular nature of the Vatican
City State and of the sources of its objective law (art. 1, Law of 7 June 1929,
n. 11) and, in consideration of its limited extent, with its legislation in the
matters of citizenship, access and residence."
Declaration:
"The Holy See regards the present Convention as a
proper and laudable instrument aimed at protecting the rights and interests of
children, who are 'that precious treasure given to each generation as a
challenge to its wisdom and humanity' (Pope John Paul II, 26 April 1984).
"The Holy See recognizes that the Convention represents
an enactment of principles previously adopted by the United Nations, and once
effective as a ratified instrument, will safeguard the rights of the child
before as well as after birth, as expressly affirmed in the `Declaration of the
Rights of the Child' [Res. 136 (XIV)] and restated in the ninth preambular
paragraph of the Convention. The
Holy See remains confident that the ninth preambular paragraph will serve as
the perspective through which the rest of the Convention will be interpreted,
in conformity with article 31 of the Vienna Convention on the Law of Treaties
of 23 May 1969.
"By acceding to the Convention on the Rights of the
Child, the Holy See intends to give renewed expression to its constant concern
for the well-being of children and families. In consideration of its singular nature and position, the
Holy See, in acceding to this Convention, does not intend to prescind in any
way from its specific mission which is of a religious and moral
character."
The reservation b) "b) [The Holy See] interprets the
articles of the Convention in a way which safeguards the primary and
inalienable rights of parents, in particular insofar as these rights concern
education (articles 13 and 28), religion (article 14), association with others
(article 15) and privacy (article 16)” is of particular importance in the
context of the Irish Constitution which is, as it stands and unamended, is in
line with the position adopted by the Holy See. The amendment would not, in my opinion, be in line with the
position of the Holy See.
Conclusion
There is much more that could be said about the proposed
amendment, Catholic teaching, the natural law and the common good. Time, however, does not permit. Suffice it to say that, in my opinion,
this amendment, if passed, could potentially be a disaster for Irish families. It is by no means clear as to why such
an amendment is held to be necessary given the current provisions of the
Constitution. What is clear,
though, is the effect of such an amendment in assisting excessive intervention
by the state in the rights of parents to care for their children as they see
fit and subject to the qualification of “exceptional cases” where the state may
intervene for the protection of children.
The Catholic Church should not be blind-sided by the clever
manipulation of language evident in the proposed amendment nor by the current
problems afflicting the Church in Ireland and her reputation. The fact of the matter is that the
Church has a crucial role to play in the protection of the “common good” and
that sometimes means standing up to the bullying tactics of professional
politicians and other power elites who have their own agendas. That role is exercised by teaching and
persuasion to explain to people the connection between the common good and the
natural law.
In my opinion the bishops of the Church in Ireland should do
all they can to persuade the Irish people that such a constitutional change is
not in the best interests of Irish families, does not support the common good,
will provide a smorgasbord of opportunities for the secularist left to pursue
its long held policy of state involvement in the private affairs of the family,
and is consistent with the secularist determination to use state power to
exercise control over the personal lives of citizens.
1 CCC 1882
2 CCC 1883
3 CCC1884
4 CCC 1885
Father John I Fleming PhD
Adjunct Professor of Bioethics, Southern Cross Bioethics
Institute, Adelaide, South Australia
Corresponding Member of the Pontifical Academy for Life
23 October 2012
